National
Another round for Prop 8 in Calif. state court?
Anti-gay groups call for additional input, but legal experts say it’s unlikely
Prop 8 proponents say the Supreme Court may want to send the case back to state court. (Washington Blade file photo by Michael Key)
Anti-gay groups arguing in favor of California’s Proposition 8 are advising the U.S. Supreme Court to send the lawsuit back to state court yet again before deciding to rule on the case based on standing — although legal experts dismiss such a request as a desperate plea.
As noted in SCOTUSblog, the request to send the case back to the California State Court is found in the reply brief that anti-gay groups, such as ProtectMarriage.com, filed on Tuesday. The request is virtually hidden within the brief; it’s found on the footnote on page 6.
The California Supreme Court has already certified in November 2011 that anti-gay groups have standing to defend Prop 8 in court. After being posed the question by the U.S. Ninth Circuit Court of Appeals, the state court determined anti-gay groups had standing to defend the ballot initiative in the wake of the decision from California officials — Gov. Jerry Brown and Attorney General Kamala Harris — to decline to defend Prop 8 in court.
But in the reply brief this week, proponents of Prop 8 assert that neither the California Supreme Court nor the Ninth Circuit addressed the issue of whether anti-gay groups have suffered “personal injury” — a quality that is used to determine standing — and suggest justices may want to return the case to state court to address the issue.
“Accordingly, it may be appropriate again to certify this question to the California Supreme Court if this Court concludes that Petitioners, despite their established authority to represent the State’s interest, must also demonstrate personal injury to satisfy Article III,” the footnote states.
The standing issue in Prop 8 is important because if the Supreme Court determines anti-gay groups don’t have standing, U.S. District Judge Vaughn Walker’s decision striking down Prop 8 would stand, allowing same-sex couples to marry in California. Because the Supreme Court has a history of limiting standing, there’s a good chance the court could rule on Prop 8 in this manner.
Doug NeJaime, who’s gay and a law professor at Loyola Law School, said a decision to send the case back to the state court would accomplish two things: delay proceedings in the case and reconfigure the standing issue in favor of proponents of the same-sex marriage ban.
“This is both an attempt to extend the time at which same-sex couples may marry in California (i.e., send it back for more litigation, rather than allow couples to marry) and a reasonable way to argue that the standing question isn’t completely resolved (and would ultimately favor standing),” NeJaime said.
But legal experts who spoke with the Blade said they don’t expect the Supreme Court to send the case back to the state court because the “personal injury” issue is now a matter of federal law, not state law.
Suzanne Goldberg, co-director of Columbia University’s Center for Gender and Sexuality Law, was among those saying it’s “extremely unlikely” the Supreme Court would once again send the Prop 8 case back to the California State Court.
“If the Supreme Court decides to address that question, it is perfectly capable of evaluating the sponsor’s injury on its own,” Goldberg said. “The court regularly makes assessments of whether litigants have a sufficient injury to proceed with a case in a federal court. This is not a question that the California Supreme Court would have to resolve.”
Goldberg added state courts have an approach to assessing standing that’s different from federal courts, so the Prop 8 lawsuit is “particularly a question where the state court determination would not carry over to the federal court.”
“That footnote seemed to me to be a desperate plea recognizing their standing argument is quite weak,” Goldberg said.
Chris Stoll, a senior staff attorney for the National Center for Lesbian Rights, was similarly dismissive about the notion of sending the Prop 8 case back to state court.
“I see that footnote as a sign the proponents of Prop 8 are very worried that the Supreme Court will decide they did not have standing to appeal and that Judge Walker’s decision striking down Prop 8 will stand,” Stoll said. “They appear desperate to find a way to avoid that result.”
Stoll said the California Supreme Court already delivered a “detailed opinion” on standing and justices are unlikely to seek additional input from the state court.
“Standing is ultimately an issue of federal law, and I believe the U.S. Supreme Court will decide that it has enough information from the state courts to resolve that federal issue now,” Stoll said.
Federal Government
US Census Bureau testing survey on LGBTQ households
Agency proposing questions about sexual orientation and gender identity
The U.S. Census Bureau is seeking public comment on a proposed test of sexual orientation and gender identity questions on the American Community Survey. The test would begin this summer and continue into next year.
The Census Bureau published the request as a Federal Register notice. In its press release the agency noted that the ACS is an ongoing survey that collects detailed housing and socioeconomic data. It allows the Census Bureau to provide timely and relevant housing and socioeconomic statistics, even for low levels of geography.
As part of the process for adding new questions to the ACS, the Census Bureau tests potential questions to evaluate the quality of the data collected.
The Census Bureau proposes testing questions about sexual orientation and gender identity to meet the needs of other federal agencies that have expressed interest in or have identified legal uses for the information, such as enforcing civil rights and equal employment measures.
The test would follow the protocols of the actual ACS — with one person asked to respond to the survey on behalf of the entire household. These particular questions are asked about people 15 years of age or older. Households are invited to respond to the survey online, by paper questionnaire or by phone.
The current Federal Register notice gives the public a final opportunity to provide feedback before the Census Bureau submits its recommendations to the Office of Management and Budget for approval. The public may provide feedback through May 30 online.
The White House
Judy Shepard to receive Presidential Medal of Freedom
Nancy Pelosi is also among this year’s honorees
Beloved LGBTQ advocate Judy Shepard is among the 19 honorees who will receive the Presidential Medal of Freedom, the highest civilian award in the U.S., the White House announced on Friday.
The mother of Matthew Shepard, who was killed in 1998 in the country’s most notorious anti-gay hate crime, she co-founded the Matthew Shepard Foundation with her husband Dennis to raise awareness about anti-LGBTQ violence.
The organization runs education, outreach, and advocacy programs, many focused on schools.
In a statement shared via the Human Rights Campaign, Shepard said, “This unexpected honor has been very humbling for me, Dennis, and our family. What makes us proud is knowing our President and our nation share our lifelong commitment to making this world a safer, more loving, more respectful, and more peaceful place for everyone.
“I am grateful to everyone whose love and support for our work through the years has sustained me.
“If I had the power to change one thing, I can only dream of the example that Matt’s life and purpose would have shown, had he lived. This honor reminds the world that his life, and every life, is precious.”
Shepard was instrumental in working with then-President Barack Obama for passage of the landmark Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act in 2009, which was led in the House by then-Speaker Nancy Pelosi (D-Calif.), who will also be honored with a Presidential Medal of Freedom during the ceremony on Friday.
Also in 2009, Shepard published a memoir, “The Meaning of Matthew: My Son’s Murder in Laramie, and a World Transformed,” and was honored with the Black Tie Dinner Elizabeth Birch Equality Award.
“Judy Shepard has been a champion for equality and President Biden’s choice to honor her with the Presidential Medal of Freedom is a testament to what she’s done to be a force of good in the world,” HRC President Kelley Robinson said in a statement.
“A mother who turned unspeakable grief over the loss of her son into a decades-long fight against anti-LGBTQ+ hatred and violence, Judy continues to make a lasting impact in the lives of the LGBTQ+ community,” she said.
“It is because of her advocacy that the first federal hate crimes legislation became law and that countless life-saving trainings, resources and conversations about equality and acceptance are provided each year by the Matthew Shepard Foundation,” Robinson said. “We are honored that Judy is a member of the HRC family and know that her work to create a more inclusive and just world will only continue.”
Other awardees who will be honored by the White House this year are: Actor Michelle Yeoh, entrepreneur and former New York Mayor Michael Bloomberg, Jesuit Catholic priest Gregory Boyle, Assistant House Democratic Leader Jim Clyburn (D-S.C.), former Labor and Education Secretary and former U.S. Sen. Elizabeth Dole (R-N.C.), journalist and former daytime talkshow host Phil Donahue, World War II veteran and civil rights activist Medgar Evers (posthumous), former Vice President Al Gore, civil rights activist and lawyer Clarence B. Jones, former Secretary of State and U.S. Sen. John Kerry (D-Mass.), former U.S. Sen. Frank Lautenberg (D-N.J.) (posthumous), Olympic swimmer Katie Ledecky, educator and activist Opal Lee, astronaut and former director of NASA’s Johnson Space Center Ellen Ochoa, astronomer Jane Rigby, United Farm Workers President Teresa Romero, and Olympic athlete Jim Thorpe (posthumous).
National
United Methodist Church removes 40-year ban on gay clergy
Delegates also voted for other LGBTQ-inclusive measures
The United Methodist Church on Wednesday removed a ban on gay clergy that was in place for more than 40 years, voting to also allow LGBTQ weddings and end prohibitions on the use of United Methodist funds to “promote acceptance of homosexuality.”
Overturning the policy forbidding the church from ordaining “self-avowed practicing homosexuals” effectively formalized a practice that had caused an estimated quarter of U.S. congregations to leave the church.
The New York Times notes additional votes “affirming L.G.B.T.Q. inclusion in the church are expected before the meeting adjourns on Friday.” Wednesday’s measures were passed overwhelmingly and without debate. Delegates met in Charlotte, N.C.
According to the church’s General Council on Finance and Administration, there were 5,424,175 members in the U.S. in 2022 with an estimated global membership approaching 10 million.
The Times notes that other matters of business last week included a “regionalization” plan, which gave autonomy to different regions such that they can establish their own rules on matters including issues of sexuality — about which international factions are likelier to have more conservative views.
Rev. Kipp Nelson of St. Johns’s on the Lake Methodist Church in Miami shared a statement praising the new developments:
“It is a glorious day in the United Methodist Church. As a worldwide denomination, we have now publicly proclaimed the boundless love of God and finally slung open the doors of our church so that all people, no matter their identities or orientations, may pursue the calling of their hearts.
“Truly, all are loved and belong here among us. I am honored to serve as a pastor in the United Methodist Church for such a time as this, for our future is bright and filled with hope. Praise be, praise be.”
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