Connect with us

National

Court declares Prop 8 unconstitutional

Scope of ruling limited to California; appeal planned

Published

on

In a two-to-one decision, a panel of the Ninth Circuit Court of Appeals has ruled that Proposition 8 is unconstitutional in a federal case challenging California’s marriage ban.

The opinion, authored by Judge Stephen Reinhardt, affirms Judge Vaughn Walker’s 2010 ruling that the law passed by California voters at the ballot violates the Equal Protection clause of the 14th Amendment to the U.S. Constitution because it “serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.”

The court also rejected the argument that Judge Walker should have recused himself from the case because of his sexual orientation and relationship status.

Legal experts began to weigh in on the meaning of the decision immediately.

“I think the biggest story is how narrow [the majority decision] really is,” Douglas NeJaime, associate professor at Loyola Law School, Los Angeles, told the Blade Tuesday. “Which in some ways I think that might disappoint some folks who were hoping it would expand to more states, but I think in terms of setting it up for a Supreme Court review — either the Supreme Court not taking it, or approving it — for supporters of same-sex marriage, this is actually the most strategically sound way for the case to proceed.”

Legal experts agree that the decision represents a big win for same-sex couples in California, even though it was a narrow decision limited to California. The Ninth Circuit encompasses multiple Western states and some Prop 8 opponents had hoped the court’s decision would impact a wider swath of the country.

“The decision is a very narrow decision striking down Proposition 8 on grounds that are very unique to California,” NeJaime told the Blade. “What this doesn’t do is directly affect the laws of the majority of states that don’t allow same-sex couples to marry. It doesn’t announce that same-sex couples have a right to marry under the federal Constitution, and it doesn’t engage the question of whether sexual orientation-based classifications should be subjected to some heightened form of scrutiny under the federal Constitution. So it’s a very narrow ruling that only directly impacts the law in California.”

If left to stand, however, what the decision would do, NeJaime says, is allow same-sex couples to marry in California.

“What you would likely have happen is a bunch of other people would file cases in other states, and you would have more litigation, and the states that have a system most directly related to the court’s ruling here, would be states that have domestic partnership or civil union statues that allow same-sex couples to have all of the same rights and benefits of different-sex couples,” NeJaime said. “So Washington, Nevada, Oregon, Hawaii, Delaware, Illinois, Rhode Island, New Jersey, those states’ laws would probably be the first to be challenged.”

Though the court sided with the plaintiffs, the ruling is stayed until the decision goes into effect, in what is called a “mandate.” This means that same-sex couples will not be able to marry in California until the Ninth Circuit lifts the stay, the Supreme Court decides to uphold the ruling or pass on the case, or the state voters decide to overturn the law at the ballot.

Proponents of Prop 8 now have 15 days to ask for what is called an ‘en banc’ decision by a larger random panel of 11 of the court’s 24 judges — a crap shoot for proponents of the law who could not guarantee the judges assigned to the panel are sympathetic. Proponents also have 90 days to appeal directly to the Supreme Court, if they so choose to skip the ‘en banc’ rehearing.

Though at the onset of the case, gay rights advocates were excited about the prospect of the case advancing to the Supreme Court where they hoped it could be used to strike down same-sex marriage bans across the nation, some legal experts say it’s not so simple.

“Everyone thought this case was going to Supreme Court, but given how narrow this ruling is, the Supreme Court might very likely just not take the case,” NeJaime told the Blade. “The Supreme Court does not have to take the case. And they might decide ‘this only affects California. We’ll let it stand. And we’ll take a case down the road.’”

“If they take the case, then the decision by the Ninth Circuit has really set it up so that the Supreme Court can affirm the decision, meaning strike down Proposition 8, by not having to reach very far.”

NeJaime said that the Reinhardt opinion, much like the Walker opinion, borrows heavily from the case law history of swing vote Supreme Court Justice Anthony Kennedy, whom NeJaime says the opinion “aims” for. Kennedy wrote the majority opinion in the Romer v. Evans case that struck down an anti-gay constitutional amendment in Colorado’s Constitution nearly 20 years ago, but that doesn’t mean the justice will help the plaintiffs change the law across the land.

“So basically because its a narrow ruling, and because the court applied the lowest form of scrutiny for equal protection purposes, the Supreme Court could affirm the decision without having to expand much on its current case law, and without having to comment on the laws of the other states. It could issue a ruling that would allow same-sex marriage in California but doesn’t affect anything else directly. That’s the preferred course of the court, is to issue narrow, incremental, case-by-case rulings, rather than broad sweeping rulings, that invalidate the majority of states’ laws in one decision.”

In 2008, more than 18,000 same-sex couples were married in California during a brief period following the decision by the California Supreme Court that barring same-sex couples from marriage violated the California Constitution. The weddings were halted by the November 2008 voter-enacted law, but the court ruled that the 18,000 marriages performed should remain valid.

For now, same-sex couples in California who did not get married during the narrow 2008 window are in legal limbo, waiting for the stay on the original Judge Walker decision to be lifted once and for all, but that could take some time.

“The mandate would issue seven days after the time for filing a petition for rehearing expires, or seven days after the denial of a petition for a rehearing,” NeJaime told the Blade. “They have 14 days to file the petition, so technically, it could issue as soon as 21 days. But more likely it will be later than that, and if they take it for a rehearing, it would be even later than that, so the soonest would be within three weeks.

“But in the meantime, there’s probably going to be additional motions to stay, so that doesn’t mean that once the mandate is issued, same-sex couples can marry,” NeJaime added.

Despite the continued wait, LGBT rights organizations were quick to hail the victory.

“Today’s decision heartens and gives hope to the 15,698 loving couples in California who are raising more than 30,000 children,” said Family Equality Council Executive Director Jennifer Chrisler. “They, like all Americans, understand that while love makes a family, there is no denying that marriage strengthens it. These parents have raised their children to love their country, support their friends and treat their neighbors with respect. Now they only ask for the fundamental American freedom to demonstrate their love and commitment to their family through marriage.”

California-based Courage Campaign also weighed in minutes after the announcement of the ruling upholding Judge Walker’s decision.

“The 9th Circuit did what it must: it ruled that Judge Walker is competent, not somehow diminished for being gay and it ruled that the Constitution of the United States indeed provides equal protection and due process to all Americans, not just some Americans,” said Rick Jacobs, chair and founder of the Courage Campaign.

Even the LGBT military group Servicemembers Legal Defense Network weighed in with a statement by outgoing executive director and Army veteran Aubrey Sarvis.

“SLDN welcomes today’s important ruling by the Ninth Circuit affirming the lower court decision that Proposition 8 is unconstitutional; indeed, fairness and equality have carried the day,” said Sarvis. “This victory strengthens our case on behalf of married gay and lesbian service members and veterans as we seek to gain equal recognition, support, and benefits for them and their families. This is an historic win for supporters of full equality in the military and in our country.”

“We’re thrilled that today the Ninth Circuit reaffirmed that under our Constitution, all loving couples must be allowed to marry, regardless of the gender of either partner,” said Transgender Law Center Executive Director Masen Davis. “The state should not be in the business of policing who can marry based on gender. I’m optimistic that full equality for all our families is on the horizon.”

 

Continue Reading
Advertisement
FUND LGBTQ JOURNALISM
SIGN UP FOR E-BLAST

State Department

State Department spokesperson criticizes new Russia propaganda law

Statute ‘pushes LGBTQI+ persons further to the margins of Russian society’

Published

on

State Department spokesperson Ned Price, center, speaks at the LGBTQ Victory Fund's International LGBTQ Leaders Conference in D.C. on Dec. 3, 2022. Price, who is openly gay, has criticized an anti-LGBTQ propaganda law that Russian President Vladimir Putin signed this week. (Washington Blade photo by Michael K. Lavers)

State Department spokesperson Ned Price on Tuesday sharply criticized the anti-LGBTQ propaganda law that Russian President Vladimir Putin signed the day before.

Price, who is openly gay, noted to reporters during a press briefing the law “further criminalizes the sharing of information about LGBTQI+ persons.”

“The law is another serious blow to freedom of expression in Russia, and a continuation of the Kremlin’s broader, long-running crackdown against marginalized persons, dissenting voices, civil society and independent media that it has intensified, as it has failed to achieve its objectives in its unconscionable war against Ukraine,” said Price. 

“The law pushes LGBTQI+ persons further to the margins of Russian society, fueling and amplifying the prejudice, discrimination, violence and stigma they face. The legislation is a clear attempt by the Kremlin to distract from its own failures by scapegoating vulnerable communities and creating phantom enemies,” he added. “We stand in solidarity with LGBTQI+ persons in Russia and around the world who seek to exercise the rights enshrined in the Universal Declaration of Human Rights, which recognizes that all human beings are free and equal in dignity and rights.”

The law that Putin signed on Monday expands the existing “Protecting Children from Information Advocating a Denial of Traditional Family Values” statute that took effect in Russia in 2013. 

The new law will ban so-called LGBTQ propaganda and materials that discuss gender reassignment surgery and LGBTQ and intersex issues to minors, which it categorizes as the promotion of pedophilia. Russian media reports indicate the new law will apply to films, books, commercials, media outlets and computer games.

Anyone who violates the law could face a fine of up to 10 million rubles ($165,152.80.) Authorities could also force businesses and organizations to temporarily close, and foreigners who violate the law could face arrest, incarceration for up to 15 days, a fine of up to 5,000 rubles and deportation.

Putin signed the law against the backdrop of Russia’s continued war against Ukraine.

Continue Reading

National

Club Q suspect indicted on 305 charges

22-year-old charged with first-degree murder, bias-motivated crime

Published

on

(Photo courtesy of Club Q Facebook page)

El Paso County (Colo.) District Attorney Michael Allen announced in the first in-person hearing on Tuesday that the 22-year-old suspect in the mass shooting at the LGBTQ nightclub Club Q, which killed five and wounded dozens of others, will face 305 charges including first-degree murder, attempted first-degree murder and bias-motivated crime.

The Colorado Springs Gazette newspaper reported Anderson Aldrich appeared in a Colorado Springs courtroom wearing a green jumpsuit and handcuffs. Aldrich’s facial bruising had significantly healed since a video hearing two weeks ago. 

The total list of charges according to the Gazette is as follows: 

• 10 counts of first-degree murder.

• 86 counts of attempted first-degree murder.

• 86 counts of first-degree assault.

• Four counts of second-degree assault.

• 48 counts of bias-motivated crime. 

• 71 counts of violent crime causing death and using a weapon.

Allen said the prosecution may request to amend the charges in the future.

“We are not going to tolerate actions against community members based on their sexual identity,” Allen said at a news conference after the hearing. “Members of that community have been harassed and intimated and abused for too long. And that’s not going to occur in the 4th Judicial District.”

During the hearing Judge Michael McHenry, following the filing of formal charges, granted a request from Allen for the suspect’s arrest affidavit to be unsealed. The court papers should be available to the public by the end of the day Wednesday, the judge noted according to the Gazette.

Allen said that while he couldn’t talk about what is in the affidavit, he told reporters that it might contain “much less information than you might expect.”

Suspect in Club Q shooting appears in court:

Continue Reading

U.S. Supreme Court

Supreme Court hears oral arguments in 303 Creative case

Dangerous implications for LGBTQ consumers

Published

on

U.S. Supreme Court (Washington Blade photo by Michael Key)

The U.S. Supreme Court on Monday heard oral arguments in 303 Creative v. Elenis, a case that could carry broad implications for whether and in which circumstances states may enforce certain nondiscrimination rules against purveyors of goods and services.

The case was brought by website designer Lorie Smith, who sought to include a disclaimer that her company 303 Creative would not develop wedding announcement websites for LGBTQ couples, but discovered that such a notice would violate Colorado’s anti-discrimination laws, which include sexual orientation as a protected class.

Her lawsuit against the state of Colorado, argued by counsel from the anti-LGBTQ group Alliance Defending Freedom (ADF), reaches the Supreme Court following the ruling against Smith from the 10th Circuit Court of Appeals, which created a circuit split with decisions from the 8th Circuit and Arizona Supreme Court. A ruling is expected to come in June.

The fact pattern in 303 Creative closely mirrors the 2018 case Masterpiece Cakeshop v. Colorado Civil Rights Commission, where the Supreme Court declined to rule on the broader legal questions because it found the Commission exhibited hostility toward the religious views of the bakery that refused to design a custom wedding cake for a same-sex couple.

The high court has since moved substantially to the right, with a 6-3 conservative supermajority. Colorado is one of 20 states that enforces laws prohibiting businesses from discrimination based on sexual orientation, and a ruling that would allow for broadly construed exemptions to be carved out for firms based on their First Amendment protections would carry implications well beyond the context of same-sex marriage.

Monday’s oral arguments focused on preexisting and hypothetical cases that were presented by counsel from both parties as well as by the justices, examples whose scope and fact patterns reinforced the breadth of the legal issues at play in 303 Creative.  

Colorado Solicitor General Eric Olson and U.S. Principal Deputy Solicitor General Brian Fletcher pointed to the Supreme Court’s ruling in Rumsfeld v. Forum for Academic and Institutional Rights, 2006, which found that the federal government may withhold funding from universities that, based on their objections to “Don’t Ask, Don’t Tell,” refuse to grant military recruiters access to their resources.

ADF CEO, President and General Counsel Kristen Waggoner cited the Supreme Court’s decision in Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston, 1995, which upheld the right of private organizations to exclude participation by certain groups without interference by the state, even if that intervention by the government was for the purpose of preventing discrimination.

Much of the discussion during Monday’s oral arguments centered on what kinds of goods and services may be considered public accommodations and which constitute artistic speech or expression by the business provider. Also at issue were questions such as whether their refusal to accommodate certain events – i.e., same-sex weddings – are tantamount to refusing goods and services to members of a protected class of people under the state’s non-discrimination laws.

LGBTQ rights groups fear the implications of a ruling in favor of 303 Creative  

ADF is designated an anti-LGBTQ extremist group by the Southern Poverty Law Center. An amicus brief was filed in support of the government by the corporate law firm White & Case along with a coalition of LGBTQ rights groups and legal advocacy groups: the National LGBTQ Task Force, GLAD, the National Center for Lesbian Rights, Lambda Legal, and the Human Rights Campaign.

“Just two weeks after a shooter killed 5 people, injured 18, and traumatized so many others at Club Q in Colorado Springs, the United States Supreme Court prepares to hear oral arguments in an anti-LGBTQ public accommodations discrimination case from Colorado,” wrote the National LGBTQ Task Force in a statement addressing Monday’s oral arguments.

Liz Seaton, the group’s policy director, highlighted the importance of public accommodations laws and condemned efforts by the opposition to legalize discrimination and segregation in the marketplace. “The brief’s most important argument lifts up the powerful amicus briefs of the NAACP Legal Defense and Educational Fund and of the Lawyers’ Committee for Civil Rights Under Law,” Seaton said. “Those two briefs by venerable civil rights organizations provide a detailed history of public accommodations discrimination against Black and Brown people in this country.”

HRC’s statement on Monday touched on similar themes:

“Granting the unprecedented ‘free speech exemption’ sought by petitioners in 303 Creative v. Elenis would be a dangerous change to long standing constitutional and civil rights law. It would inevitably lead to increased discrimination not only related to LGBTQ+ people or weddings, but also for other vulnerable populations including women, people with disabilities, and people of minority faiths. It’s crucial that justices of the Supreme Court reject discrimination and affirm the equal dignity of every American.”

Likewise, the Congressional LGBTQ+ Equality Caucus released a statement exploring the broad implications that could result from the Court’s ruling on 303 Creative:

“…the Supreme Court could issue a broad ruling that not only implicates nondiscrimination laws’ applications to graphic designers but to a wide range of businesses providing goods and services that have an artistic component. A broad ruling for the graphic designer could not only provide a constitutional basis for discriminating against same-sex couples, but also for discriminating against all marginalized people currently protected by public accommodations nondiscrimination laws.”

Continue Reading
Advertisement

Sign Up for Weekly E-Blast

Advertisement

Follow Us @washblade

Advertisement

Popular