Gay Rights Groups Seek to Intervene in Federal Challenge to Calif. Same-Sex Marriage Ban

Gay rights groups’ attempt to intervene in a federal challenge of California’s Proposition 8 has created a rift with the high-powered attorneys heading the case, turning erstwhile allies into head-butting competitors.

Both sides have diverging visions of legal strategy. The gay groups are pushing a cautious, narrow approach based on the circumstances of Prop 8, while Theodore Olson, David Boies and their backers are seeking a decisive victory for all gay couples under the U.S. Constitution.

The civil rights groups — the National Center for Lesbian Rights, Lambda Legal Defense and Education Fund and the American Civil Liberties Union — are also worried that the Olson/Boies team is underestimating the importance of U.S. District Chief Judge Vaughn Walker’s insistence on a fully developed factual record. They moved this month to intervene (pdf) so they can present evidence of historic discrimination against gays and lesbians and answer Walker’s questions, such as whether sexual orientation can be changed and whether same-sex marriages destabilize opposite-sex marriages.

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WV schedules hearing on marriage ban

Enough sigs for ME marriage ban

Stand for Marriage Maine says they’ve collected enough signatures to have an anti-gay referendum.

Gays Step Up Efforts to Reverse Gay-as-Godless Stereotype

A groundbreaking survey about the faith lives of gay Americans that the Barna Group put out last week got surprisingly little attention. In my latest God & Country column for U.S. News Weekly, I tied the Barna survey’s fascinating portrait of gay religious life to the gay rights movement’s recent efforts to ratchet up outreach and messaging. Much of the work is aimed at reversing the gay-as-Godless stereotype.

Here’s the top:

Though he was raised in the United Methodist Church, Harry Knox knew he couldn’t become a minister in his denomination because it doesn’t ordain openly gay members. He enrolled in a seminary of the more liberal United Church of Christ but was eventually denied ordination anyway. “My whole career as an activist is an accidental ministry,” says Knox, 48, who now works at the Human Rights Campaign, the nation’s largest gay rights group. “I would rather be a local pastor.”

Instead, since 2005, Knox has built HRC’s “religion and faith program,” which works to combat the stereotype of the gay, lesbian, bisexual, and transgender community as antireligious. “For far too long, LGBT organizations did not put religious allies at the forefront of our efforts,” Knox says. “That’s a mistake we’re making less often now.”

Those religious allies may be more plentiful than most Americans think. A Barna Group survey out last week shows that most gay Americans lead pretty robust faith lives. While 72 percent of straight American adults describe their faith as “very important” in their lives, so do 60 percent of gays and lesbians. Almost as many, 58 percent, say they’ve made a personal and ongoing commitment to Jesus Christ.

And though they are much less likely than straights to share the beliefs of born-again Christians—which comes as no surprise, since most churches in the born-again tradition condemn homosexuality—the Barna survey found that 27 percent of gays do hold those beliefs. “Many in the Christian community assume there’s this significant gap between heterosexuals and homosexuals in terms of faith beliefs and activities,” says George Barna, the country’s top pollster on religious issues, who supervised the survey. “While there are statistically significant differences, it’s the narrow size of the gap that’s most surprising.”

The poll unleashed a torrent of hate mail, mostly from believers furious with Barna’s conclusion: that many gays are Bible-believing Christians. But more and more gay rights organizations are joining HRC in stepping up efforts to highlight the faith beliefs of many gay Americans, largely through religious outreach programs. And some religious traditions and denominations are taking steps to welcome gay and lesbian members.

Gay rights activists say that the 2004 election, when voters in 11 states passed gay marriage bans that were heavily promoted through churches, was a wake-up call. To help counter the image of the gay marriage battle as a fight between gays and religious Americans, HRC, the National Gay and Lesbian Task Force, and other national gay rights groups quickly hired religious outreach staff.

Read the full story here.

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U.S. News & World Report

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Federal Judge Stresses Trial Record on Calif. Gay-Marriage Ban

Whatever Chief U.S. District Judge Vaughn Walker winds up deciding on Proposition 8, it’s clear he wants an airtight trial record to support it.

Holding his first hearing Thursday on the controversial measure that outlawed same-sex marriage, Walker repeatedly stressed the importance of establishing a record that will stand the test of time.

He told a packed courtroom that he was “reasonably sure” that the challenge launched by two high-profile litigators is “only touching down in this court” and merely a “prelude” for things to come.

“How we do things here,” Walker said, “is more important than what we do.”

He noted that other courts have rendered decisions on same-sex marriage without holding full trials, which he suggested was a “problem.”

Perry v. Schwarzenegger, 09-CV-2292, was filed in May by Theodore Olson, who represented George W. Bush in the landmark Bush v. Gore case, and David Boies, who represented Al Gore. Boies wasn’t present on Thursday. The suit attacks Prop 8 on equal protection and due process grounds.

Walker had already issued a tentative order allowing Prop 8 proponents to intervene and denying a preliminary injunction (pdf). He stood by both orders during Thursday’s 50-minute session.

Olson, a partner in Gibson, Dunn & Crutcher’s Washington, D.C., office who has argued before the U.S. Supreme Court 55 times, nonetheless made a fleeting attempt to persuade Walker to change his mind on the injunction.

“Every day that Prop 8 is enforced perpetuates a tragic injustice” on gays and lesbians, he argued, saying it “brands” them as “second-class citizens, unworthy and different.”

“The Supreme Court,” Olson argued, “has held again and again and again that the right to marry is the most important relationship in life.”

Representing the Prop 8 proponents, Washington attorney Charles Cooper, who was a top Justice Department lawyer during the Reagan administration, warned that the lawsuit could “sweep away” not only Prop 8, but the definition of marriage in 43 states and the federal government.

The Cooper & Kirk partner also argued that marriage has by tradition always been the union of a man and a woman, and said that every Supreme Court case that describes marriage has noted that its central purpose is procreation.

See Federal Judge Stresses Trial Record on Calif. Gay-Marriage Ban Above the Law

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Voter ‘animus’ to be issue in Calif marriage case

When the U.S. Supreme Court overturned an amendment to the Colorado Constitution that outlawed discrimination protections for gay people, same-sex couples could not enter into civil unions or domestic partnerships anywhere in the nation, much less get married.

But as they seek to persuade a federal judge to strike down California’s ban on gay marriages, lawyers for two unmarried gay couples are using that 13-year-old decision as their road map — one they expect will eventually lead the high court to take up the marriage issue.

In the Colorado case, Romer v. Evans, the Supreme Court majority held that voters’ dislike of gays and the laws that several cities had approved to shield them from bias motivated the state amendment. Such “animus,” it said, was incompatible with the section of the U.S. Constitution that requires the government to treat its citizens equally absent a compelling reason to do otherwise.

The attorneys behind the challenge to California’s Proposition 8 plan to argue during a pretrial hearing Thursday that by stripping gays of the right to wed, the voter-approved ban runs afoul of America’s founding framework in the same way — and for the same reason.

“Romer is a strikingly similar situation to what we have here. You had a ballot initiative, a majority vote of the people, taking away a right,” said Theodore J. Boutrous Jr., a member of the legal team led by former U.S. Solicitor General Theodore Olson and veteran trial lawyer David Boies. “And there was no justification or rationale other than disapproval by that majority of that group.”

U.S. District Chief Judge Vaughn R. Walker on Tuesday issued a tentative order to fast-track the case in his San Francisco court.

Among the questions he said he wants covered at trial are whether sexual orientation is unchangeable, if permitting same-sex marriage “destabilizes” traditional unions and whether Proposition 8′s ballot history demonstrates the measure had “discriminatory intent.”

California Attorney General Jerry Brown, a defendant in the case, has sided with gay rights advocates and declined to defend the ban, which overturned a California Supreme Court ruling that had legalized same-sex marriages. The state Supreme Court five weeks ago upheld the measure, saying it represented a valid exercise of voters’ authority to amend the California Constitution.

Proposition 8′s sponsors, a coalition of religious conservative groups called Protect Marriage, has been given permission to intervene in the federal case. In court papers, the group’s lawyers rejected the assertions that anti-gay attitudes fueled the November measure and that the 1996 Colorado case was applicable.

“Nothing in California law, either Proposition 8 or otherwise, indicates that Californians harbor animus towards gay and lesbian individuals,” they wrote.

Since the U.S. Supreme Court’s 6-3 decision, attorneys for gay rights and Christian conservative groups have debated whether the Romer decision could be used to expand gay rights. The ruling marked the first time the Supreme Court determined that the Constitution’s equal rights guarantees extended to gays and lesbians.

“The basic point of Romer is that government cannot ever act out of hostility toward a group of people, and whether that is in the context of marriage or anti-discrimination law, the point carries over,” said Suzanne Goldberg, who worked on the case and now directs Columbia Law School’s Sexuality and Gender Law Program.

The ruling has been cited, though so far unsuccessfully, in past challenges to gay marriage bans in Nebraska and Florida. At the same time, gay rights groups mostly have shied away from pursuing federal marriage cases in favor of pursuing marriage rights in state courts.

Legal observers on both sides of the debate agree, however, that California’s Proposition 8 presents novel questions

that could make the issue ripe for federal action.

See Voter ‘animus’ to be issue in Calif marriage case
San Francisco Chronicle

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Judge favors trial soon on Calif. gay marriage ban

A federal judge wants a trial on California’s same-sex marriage ban to proceed quickly but says he likely won’t suspend the voter-approved ban in the meantime.

U.S. District Court Chief Judge Vaughn Walker said holding a speedy trial on the merits of a lawsuit challenging Proposition 8 would avoid novel issues that might be raised if he issued a temporary injunction.

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Lawyers: Gay couples’ rights justify injunction San Jose Mercury New

SAN FRANCISCO—Two high-profile lawyers are arguing that any bureaucratic inconvenience caused by suspending California’s same-sex marriage ban is outweighed by the ongoing discrimination being suffered by gay and lesbian couples.

Theodore Olson and David Boies, who represented opposing sides in the 2000 presidential election challenge, Bush v. Gore, filed papers Thursday buttressing their argument that Proposition 8 should be lifted while a federal lawsuit challenging the voter-approved measure proceeds in court.

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San Jose Mercury New

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Obama Admin References Incest, Child Rape in DOMA Defense

Obama defends DOMA in federal court. Says banning gay marriage is good for the federal budget. Invokes incest and marrying children.

At AMERICABlogs, John Aravosis writes:
“despicable, and gratuitously homophobic. It reads as if it were written by one of George Bush’s top political appointees. I cannot state strongly enough how damaging this brief is to us. Obama didn’t just argue a technicality about the case, he argued that DOMA is reasonable. That DOMA is constitutional. That DOMA wasn’t motivated by any anti-gay animus. He argued why our Supreme Court victories in Roemer and Lawrence shouldn’t be interpreted to give us rights in any other area (which hurts us in countless other cases and battles). He argued that DOMA doesn’t discriminate against us because it also discriminates about straight unmarried couples (ignoring the fact that they can get married and we can’t).He actually argued that the courts shouldn’t consider Loving v. Virginia, the miscegenation case in which the Supreme Court ruled that it is unconstitutional to ban interracial marriages, when looking at gay civil rights cases. He told the court, in essence, that blacks deserve more civil rights than gays, that our civil rights are not on the same level.”

See Obama Admin Defends Federal Gay Marriage Ban In Court Filing

References Incest, Child Rape… DOJ Defends

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Schwarzenegger, AG Brown oppose bid to immediately block Prop 8

Gov. Arnold Schwarzenegger and Attorney General Jerry Brown on Thursday urged a federal judge to keep Proposition 8 in force for now, arguing that it would create too much uncertainty across the state to put the voter-approved ban on gay marriage on hold while the latest legal challenge unfolds in the federal courts.

In court papers, state lawyers argued against an injunction that would freeze the current gay marriage ban, opposing a request filed in federal court in San Francisco last month by two gay couples seeking the right to marry. Backed by former U.S. Solicitor General Theodore Olson and renowned lawyer David Boies, the couples moved to counterract the California Supreme Court’s recent ruling upholding Proposition 8, arguing that it violates equal protection rights under the federal constitution.

Brown and Schwarzenegger argued separately that it would create too much havoc to put the law on hold until the constitutional issues are resolved, perhaps eventually by the U.S. Supreme Court. The governor and attorney general did not take a position on the federal constitutional questions, focusing only on whether Prop 8 should be blocked while the case is litigated, a move that would allow same-sex couples to resume marrying in California.

Brown had previously urged the California Supreme Court to overturn Prop 8, and Schwarzenegger has said publicly he believes the courts eventually will permit gay marriage.

See Schwarzenegger, AG Brown oppose bid to immediately block Prop 8 San Jose Mercury News