Ninth Circuit Won’t Review Arizona Victory

GLBT Week in Review, April 4, 2012
BY ANN ROSTOW


Ninth Circuit Won’t Review Arizona Victory

Our news this week is full of exciting legal developments, but I want to start with the decision by the U.S. Court of Appeals for the Ninth Circuit to let stand one of its panel opinions in favor of gay couples in Arizona. (Oh, for God’s sake, keep reading. It’s good for you. Plus, later on I’ll tell you about the Irish priest who accidentally aired gay porn to the parents of his First Communion class.)

As I was saying, last September, a three-judge Ninth Circuit panel upheld a lower court decision that struck Arizona’s attempt to cancel partner benefits for state staff under the guise of “cost cutting.” The benefits, which applied to both gay and straight workers, were initiated by former Governor Janet Napolitano though an executive order. But when the political west winds blew Jan Brewer and her GOP allies into power, the benefits were revoked.

Did the move save money? Maybe, but if so, the savings amounted to a drop in the budget bucket. Plus, you can’t justify illegal discrimination with financial arguments. After all, limiting state benefits to white workers or men would also save some cash.

Lambda Legal argued that, although the benefits were not confined to gay couples, the impact of removing them hit same-sex partners harder since straight couples had the option of marrying. Our legal eagles then sued on behalf of the gay couples only. They won their case in 2010, and won their appeal last September. Arizona then appealed to the full Ninth Circuit court, and this week, the court declined review. Yay! Arizona’s only option now is a long shot appeal to the U.S. Supreme Court.

First of all, this was a great decision by the full court, even though it came with a strong dissent from the conservative judge with the weird name that I can never remember off hand and don’t want to look up. Second, it’s more grist for our speculation mill, where GLBT legal observers are busy grinding out baseless estimates for when our various gay rights cases will reach the Supreme Court.

In this case, it took the full Ninth Circuit seven months to decide whether or not to review this decision. How long will they take to decide whether or not to review last February’s Prop 8 decision? How long will it take for the full court to decide whether or not to take direct review of last month’s DOMA ruling in the Karen Golinski case? Our fresh grist notwithstanding, the correct answer remains: Who knows?
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Arguing For Gill

Indeed it’s sometimes hard to tell which of our major gay rights cases is leading the race to reach the High Court. Our first challenge to the Defense of Marriage Act was filed on behalf of Massachusetts couples in 2009, and decided in our favor by Judge Joseph Tauro in early 2010. Yet it’s only now, April 3 to be exact, that oral arguments in this case are being held before a three-judge panel of the U.S. Court of Appeals for the First Circuit.

Part of the delay can be blamed on the kerfuffle from the Obama Administration’s change in legal policy in February, 2011, when they determined that sexual orientation discrimination is presumptively unconstitutional. The Justice Department effectively switched to our side in the challenges to the Defense of Marriage Act, forcing Republicans in the House of Representatives to rise to DOMA’s defense. Procedural delays ensued, but it seems as if everything is back on track.

(Can I just pause for a moment and have you reread the first sentence of that last paragraph? The notion that Obama is somehow hedging on gay rights because he won’t come out for marriage equality in some speech is absurd. Working under the radar, this constitutional lawyer has done more for gay equality than we could have imagined possible from a president. If action speaks louder than words, his change of legal strategy last year was a freight train chasing an F5 tornado down the tracks. And, I might add, I was no fan of Obama’s record on gay rights prior to February 23, 2011.)

Continuing along, two of the three judges on the First Circuit appellate panel were appointed by Republicans (Reagan and Bush One) while the third was named by Bill Clinton. Still, party affiliation alone does not suggest where sentiments lie on our issues, and that’s particularly true for veteran judges.

One of the most interesting questions these judges have to weigh is whether a 2008 First Circuit ruling in a challenge to Don’t Ask Don’t Tell is binding law, requiring them to evaluate DOMA under the lowest standard of legal review. Or whether a distinction can be made that opens the door to a higher level of scrutiny.

In his lower court decision, Judge Tauro managed to duck this central issue by stating that since DOMA fails the easiest test, he was not obliged to focus on which test should apply. This is a familiar and frustrating tactic for gay friendly judges, who want to rule in our favor without roiling the waters of gay rights jurisprudence by expanding so-called settled law. And it’s thus noteworthy that in last month’s big ruling (striking DOMA in the aforementioned Golinski case) Judge Jeffrey White went ahead and ruled that sexual orientation discrimination should indeed be given strict analysis. Why does this matter so much? In brief, because laws evaluated under strict or heightened scrutiny almost always fail the test, while laws considered under the easier standard almost always pass.

Ironically, the bad guys from the House of Representatives are represented by none other than former Solicitor General Paul Clement, fresh off his argument to strike down Obamacare before the High Court last week. It will be interesting to hear how Clement now argues in favor of deferring to Congress and respecting the separation of powers, don’t you think?

By the way, the panel is also hearing a DOMA challenge based on states’ rights initiated by Massachusetts Attorney General Martha Coakley. However, I have long since decided to skip covering the arcane details of the spending clause and the Tenth Amendment that govern this parallel litigation. Forgive me.
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Ooops!

There’s another very important new DOMA challenge just filed in Brooklyn by Immigration Equality on behalf of five bi-national couples, but I feel guilty. I’ve forced you to read about marriage cases for over half this column without leavening the heavy text with even a hint of amusement.

So picture instead the scene in the basement of St, Mary’s Primary School, or wherever they set up Power Point presentations for the parents of the wee bairns who are preparing for their first communions in Pomeroy, Ireland. Father Martin McVeigh inserts a memory stick, clicks on a file, and (surprise!) presents his audience with a slide show of explicit man-on-man action.

According to the Washington Post, that audience (which included an eight-year-old) was left “horrified and distracted.” The good father ran off, but returned after about 20-minutes and made a fund raising pitch, which I’m guessing was not particularly successful.

Father McVeigh told church authorities he had no idea how the naughty pix infiltrated his presentation. A day or so ago, Ireland’s Cardinal Sean Brady announced that an investigation was underway, and that although the police were contacted, no criminal charges will be lodged. It’s not clear what will befall the priest, but he’s been missing in action at Mass since the March 26 incident.

What do you think? I think that if Father Martin owned and used a pile o’porn that he kept on a memory stick, he would be damn sure that said stick was not mixed up with his other files. I’m guessing one of his fun-loving brothers in brown decided to pull a priestly prank and laughed all the way to the confessional. Or not. Maybe Martin’s just the dumbest frock in the flock.

By the way, I had to google “gay porn priest” in order to look up the details of this story, and I couldn’t resist clicking on an X-rated video called “The Young Priest,” which featured a priest spying on a bunch of guys having sex to an instrumental of the first act of La Boheme, specifically Rodolfo’s aria “your tiny hand so cold.” Come on, producers! This is one of the most classic heterosexual love scenes in opera, hardly the appropriate score for the tedious slow motion orgy featured on the clip.

My porn viewing was rudely interrupted by Norton Utilities, asking me to reboot my computer in order to upgrade some software. Was that deliberate on their part? I made sure to use my wife’s computer so that no one down the road will start sending me links to X-rated sites. Sorry honey!
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Why Ohio?

Here’s something. The Ohio Attorney General, Mike DeWine has given the green light to language for a petition that GLBT activists will use in their fight for marriage equality in the Buckeye State. In other words, Freedom to Marry Ohio is trying to put a measure to legalize marriage on the Ohio ballot, either this year or the next.

Ohio is not exactly liberal, so while I’d say that the folks trying to pass marriage equality in Maine have a fighting chance, I wouldn’t bet money on a state with something like a 35 percent minority in support of marriage. Unlike court cases, we don’t damage ourselves in the same way by losing an electoral contest. But we exhaust labor and resources, and it’s depressing to be defeated. Why do this? Maybe there’s something I’m missing about the situation, as unlikely as that seems.

Did you know that Ohio’s state insect is the ladybug? Cute little critters. Good choice, Ohio! California’s state insect is a butterfly of sorts, as is the state insect of Texas. Without further research, I’m guessing that most states have pleasant state insects, rather than nasty biting pests.

I’m back. I just checked and I was right. Almost all the states either have some kind of butterfly, a bee, or a ladybug. The exception is New Mexico, which claims the “tarantula hawk wasp.” Say what?

I did some additional checking and the story becomes even more, um, interesting. Back in 1989, it seems as if lawmakers allowed a bunch of elementary school students to decide which insect would represent the Land of Enchantment. For reasons that may seem more evident to a ten-year-old than yours truly, the kids picked this alarming specimen, who lays eggs on top of a paralyzed tarantula. When the eggs hatch, the baby wasps feed on the living spider until it dies. I guess the kids thought that was pretty neat, or something, but I’ll take a ladybug any day of the week.

Well, it’s original, I’ll give them that. What would this country be like, one wonders, if more policy decisions were placed in the hands of elementary school students? I can hear some of you echoing the trite chorus that things would be improved. But judging from the tarantula hawk wasp, I disagree.
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Romney Tried to Hide Prop 8 Gift

That insect discussion absorbed a significant chunk of column inches, but I think we all agree it was worthwhile. Meanwhile, in other news, a gay rights ordinance lost a municipal vote in Anchorage, another school T-shirt case was filed in Ohio and some antigay thugs in Liberia have published a hit list of known gays and lesbians who they suggest should be murdered in the spirit of civic pride.

You know what? I don’t care that Ellen Johnson Sirleaf has the Nobel Peace Prize sitting on the mantle. If she doesn’t stand up against this kind of barbarism, the United States should put its money where its mouth is and cut that country off our foreign aid.

Oh, and finally, it looks like Mittens donated $10,000 to the fight for Prop 8 back in the fall of 2008. That’s not surprising for a conservative Mormon, but the crafty candidate laundered his contribution through an Alabama branch of his political action group, which then gave the cash to the National Organization for Marriage. Sneaky bastard.
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Ann’s column is available every week at sfbaytimes.com. You can contact her at arostow@aol.com.