Ninth Circuit Says No Marriages Until Prop 8 Case is Over

News for the Week Ended March 23, 2011
BY ANN ROSTOW


Ninth Circuit Says No Marriages Until Prop 8 Case is Over

As we go to press comes the disappointing news that the U.S. Court of Appeals for the Ninth Circuit will not lift the stay of Judge Vaughn Walker’s ruling, which struck Prop 8 last August. As such, gay couples in California will not be able to get married in the state for the foreseeable future.

The appeal in the case against Prop 8 was originally on a fast track. But after a relatively quick schedule of written briefs and oral arguments, the Ninth Circuit panel sent the litigation into a lengthy detour via the California Supreme Court in order to examine one aspect of the issue of standing. I don’t have to explain the standing issue to you. You’ve read all about it. Suffice it to say, it will be well over a year until the case returns to the home stretch.

In view of this torturous pace, our attorneys asked the Ninth Circuit to reconsider their decision to suspend marriage rights for the duration of the case. On Wednesday afternoon, they declined in a brief paragraph citing Southeast Alaska Conservation Council v. U.S. Army Corps of Engineers, a 2006 case within the circuit that I haven’t read, and quite frankly don’t want to.

I promise to read it before next week, because I am perplexed by the panel’s decision. Normally, to get a stay you have to prove that you are likely to win on the merits of the underlying case and that further, you will suffer some harm in the absence of a stay.

In our case, the proponents of Prop 8 are not even guaranteed to have standing to appeal, let alone are they “likely” to win. Obviously, while they may be dismayed at seeing gay couples get married, they are not harmed by such a phenomenon. We, on the other hand, are deeply harmed by the continued suspension of Judge Walker’s decision, particularly under the present timeline.
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Another Federal DOMA Case Hits California

First the Egyptian government is overthrown by popular fiat. Then we have an enormous earthquake and a tidal wave. Four nuclear reactors melt down. And now we’re in a full-fledged air war with Libya. Frankly, it looks as if someone out there is trying to steal our thunder and move the GLBT headlines off the front page.

Not if I can help it! The latest DOMA news out of a federal court in San Francisco will always trump suicide bombings, missile strikes or radiation clouds in this column!

Before I start, isn’t it creepy to watch the various GOP presidential candidates worm their way out from under their rocks? Tim Pawlenty has transformed himself in the last year or two from a bland, albeit ambitious, nonentity, into a far right gay bashing loony tune on the level of Rick Santorum. Newt Gingrich is simply delusional. And Sarah Palin manages to hopscotch between ludicrous figure of fun and evil harridan.
 
It almost makes me long for people like Mitt Romney and Steve Forbes to reenter the public stage. Even John Boehner is looking good in comparison to some of his colleagues. As a good Democrat, I should be hoping that the Republican field is filled with unelectable wingbats. But then again, as a good American, the idea that one of them could win is too frightening to contemplate.

Now, let’s talk about the latest DOMA litigation, because it seems to have slipped under the news radar along with Charlie Sheen, Bahrain and the future of NPR.

You remember, I’m sure, the tricky case of California lawyer Karen Golinski, who works for the U.S. Court of Appeals for the Ninth Circuit? Golinski has been trying to get insurance for her wife, who she married during the six month California window prior to the passage of Prop 8.

Acting as an administrator, the Chief Judge of the Ninth Circuit ruled that Golinski should be awarded the spousal benefits and ordered the federal government to pay up. Obama refused, citing the Defense of Marriage Act, and Golinski sued for enforcement of her boss’s ruling.

So here’s the latest from the courtroom of Judge Jeffrey White. Judge White said he had no choice but to rule against Golinski in the current case. At issue was not the Defense of Marriage Act, but the much smaller question of whether a Ninth Circuit judge could impose his will on the Executive Branch while acting, not as a judge, but as an administrator. Judge White’s answer to this query was no.

But White went on to suggest that the Defense of Marriage Act was unconstitutional, and he gave Golinski and Lambda Legal until April 15 to rewrite their complaint and challenge the Act directly. Judge White strongly implied that he would strike DOMA if only given the chance.

In view of the fact that Obama has since decided to stop defending DOMA in federal court, this means that those private lawyers to be hired by Congress are going to have yet another case on their hands, one with a new set of facts and a looming deadline for written briefs. Unless they get some kind of delay, their DOMA defense would be due in early May.

Meanwhile, these (yet to be hired?) lawyers have briefs due relatively shortly in two other trials in Connecticut and New York, as well as twin DOMA cases now pending before the U.S. Court of Appeals for the First Circuit in Boston.

Assuming that the administration formally bows out of both Boston cases, as well as the Golinski case, the Congressional lawyers seems to be facing a procedural nightmare. I know that the judge in the New York DOMA case has given them a mid-April deadline to intervene in his courtroom. I’m not sure however, what other schedules may be imposed, and as I implied, I’m not even sure that any lawyers have actually been hired in the two weeks since a Congressional committee voted to step up to the plate and pinch hit for the Justice Department in defending DOMA.

It’s all a mess on their side. And as far as I can tell, our side is organized and chomping on the bit. So that’s good, right?

By the way, there’s yet another federal DOMA case in Oakland, where Judge Claudia Wilken denied a motion to dismiss back in January, and where I suppose the Obama Administration will be obliged to clarify its new gay rights position in writing. That case involves a group of married gay couples trying to get long-term federal insurance.
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Let’s Not Forget The Non-DOMA Cases

Continuing our legal roundup, the Ninth Circuit is considering another gay rights case, this one filed against the state of Arizona, where the legislature decided to “save money” by dropping all the partners of gay state workers from the insurance rolls.

Not only did this save next to nothing in terms of the state budget, but it discriminated on the basis of sexual orientation in the process. Saving money is a legitimate state interest, but the budget ax cannot be applied at the expense of a minority group, any more than the legislature could have ordered every state agency to fire one woman and one Black worker in the name of cost cutting.

The case doesn’t directly involve DOMA or the federal government, but it’s interesting because it will test the Ninth Circuit’s view of Obama’s February assertion that laws targeting sexual orientation deserve more searching legal scrutiny. The Ninth Circuit has already ordered a higher level of legal scrutiny for ousted gay servicemembers under the Due Process Clause (in the Witt case). Extending the underlying principle to the Equal Protection Clause would guarantee victories in all the other gay cases now pending in the 9th Circuit’s vast western jurisdiction.
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Obama Gay Rights Policy Might Halt Deportations

So here’s something. Here’s some tasty news meat to contrast the dry court casserole served up in the last sections. After all the excited talk about Obama’s reversal on his gay legal strategy, here’s some beef.

Two women in New York City, Monica Alcota and Cristina Ojeda, got married in Connecticut last August. Alcota, however, is an Argentinean citizen and has been living here illegally for a decade. Caught in a spot border check of some sort in upstate New York in 2009, Alcota has been fighting deportation for over a year.

After their marriage, however, Ojeda applied for a spousal green card, which of course is prohibited by the Defense of Marriage Act. Nonetheless, in court on Tuesday, the U.S. authorities agreed to suspend their deportation efforts while the women make their case for green card status.

The decision is ground breaking in terms of immigration policy and seems to reflect the administration’s new views on sexual orientation discrimination. Indeed, Immigration Equality recently wrote a letter to Attorney General Eric Holder, asking him to put a hold on the deportation of same-sex foreign partners until the fate of the Defense of Marriage Act is established in court.

Of course, one case does not a general rule make. But if our government’s immigration enforcement lawyers are willing to take the cuffs off Monica Alcota, doesn’t it follow that the United States will let other foreign spouses have their day in court as well?

In other words, this could be, de facto, the end of one of DOMA’s cruelest manifestations, the ban on residency for the married partners of bi-national couples.
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There’s No Ap For That

I don’t have an iPhone, so I really don’t care about the Exodus International ap that helps gay people stay straight. That said, Apple has removed the antigay feature after a community outcry.

The left side of my lower back is killing me for some reason and I can barely stand up or sit down. Just thought you’d like to know. I’m fine when sitting or standing. The agony is in the transition, and it’s been so bad in the last few days that I consumed our household’s entire stockpile of Vicodin, left over from two dental surgeries (me), a lacerated skull (Mel) and another bad thing that I can’t remember.

I kind of liked having spare prescription painkillers on hand for emergencies. Now they’re gone until one of us suffers a new medical trauma of some sort. Ah well.

Let’s see. Three gay men have been murdered in Edinburgh over the last month, but it’s not clear whether or not the crimes are related. The latest victim, a semi-retired math lecturer named Roger Gray, was found viciously stabbed to death inside his flat, with the interior bolt locked in place. Bring on the Scots version of the BAU.

Oh, and the city of Fort Worth is shelling out $400,000 to two of the victims of the June, 2009, bar raid that turned into a scene of gratuitous gay bashing by out-of-control police and ATF agents. One man was hospitalized with a concussion and the other one tore his rotator cuff by being yanked around.
I wonder if they still have their Vicodin pills. Probably.

You know who also has some fun medication in his cabinet? Rudy Gay, the Memphis Grizzly who is now out for four to six months with a mysterious shoulder sprain. Poor Rudy.
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The Scarlet T

Here’s something I didn’t realize. In New York, a transgender man or woman may not receive a corrected birth certificate unless he or she has had complete reassignment surgery. Considering the expense, the pain, and the fact that many transmen and transwomen don’t want that kind of overhaul, the restriction is cruel and unfair. Now, The Transgender Legal Defense and Education Fund has filed suit on behalf of three individuals.

Makes you wonder what the mandarins in New York are trying to guard against. Are Empire State officials worried that citizens will change their gender on their birth certificates just for the hell of it? Do they imagine that people will ask for these fundamental documents to be revised back and forth from female to male to female on a whimsical basis, depending on how they feel in any given year? Perhaps New York could insist that transwomen brand a big W on their foreheads or that transmen have an M permanently tattooed on their biceps.

It also occurs to me that if New York has such a policy, so do many other states. I would look it up, but I don’t feel like it. Maybe next week.
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