Image by Kahscho

The Ninth US Circuit Court of Appeals announced today that it will not reconsider its previous decision to narrowly uphold Judge Vaughn Walker’s Circuit Court decision overturning Proposition 8 in California.

The issue of same-sex marriage moved a step closer to the U.S. Supreme Court on Tuesday when a federal appeals court, over vehement dissents by conservative judges, reaffirmed its ruling that struck down California’s Proposition 8.

Sponsors of Proposition 8 had asked the Appeals Court to review its three-judge-panel’s decision and appoint an 11-judge panel to make a new decision. That won’t happen now.

The only remaining avenue of appeal is to the U.S. Supreme Court. The case could reach the high court’s docket for the 2012-13 term, along with an appeal of last week’s ruling by another federal appeals court that declared unconstitutional the denial of federal benefits to married same-sex couples.

Most interesting was the public dissent of three conservative judges, who invoked the recent announcement by noted state’s rights advocate President Barack Obama:

The court announces only the results of such votes on requests for rehearings and not number of votes on each side. The only public dissent came from three conservatives who noted that President Obama, in his recent endorsement of the right of same-sex couples to marry, had said each state should make its own decision.

“Today our court has silenced any such respectful conversation,” said Judge Diarmuid O’Scannlain, joined by Judges Jay Bybee and Carlos Bea. They said the court panel had wrongly invoked antigay bias as “the only conceivable motivation for a sovereign state to have remained committed to a definition of marriage that has existed for millennia.”

I suppose Jay Bybee thinks he owes Barack Obama one, because of the president’s “look forward, not backward” policy of not trying Bybee for his torture memos while working at the Department of Justice. Must be nice to be on the states’ rights team going into a presidential re-election.

Judge Vaughn Walker (photo: Mike Linksvayer)

The announcement from the US Court of Appeals for the Ninth Circuit that they will have an announcement tomorrow has stirred some speculation about what is to be announced. JoeMyGod:

KQED’s Scott Shafer said this is almost surely the decision on whether to rehear the case en banc. An en banc panel is made up of 11 judges, chosen at random from the circuit. If the 9th Circuit denies the request, Prop 8 supporters will almost certainly ask the United States Supreme Court to hear the case. Proponents of Prop 8, California’s same-sex marriage ban, asked the 9th Circuit for the en banc review in February, after a ruling by a three-judge panel upheld Judge Vaughn Walker’s 2010 decision striking down the law as unconstitutional.

Courage Campaign’s Prop 8 Trial Tracker reminds us of the state of play:

Here’s where things stand right now: the Ninth Circuit, in a decision by a three-judge panel has affirmed Judge Walker’s decision striking down Proposition 8 as unconstitutional, albeit on narrower grounds than he did. Then, the proponents of Proposition 8 asked the Ninth Circuit for an en banc rehearing, to vacate their decision and put the case before a larger panel of judges on the Ninth Circuit. We have been waiting for the judges to decide whether they will grant the en banc rehearing and start the whole process over, or let the three-judge panel’s decision written by Judge Reinhardt stand.

Either the narrow Reinhardt decision will be affirmed tomorrow by a denial of the en banc request from the Prop 8 supporters, or that decision will be thrown out and a new, larger panel of 11 judges will re-hear the appeal and issue its own decision.

If the former happens, we’ll see an immediate appeal to the US Supreme Court by the supporters of Prop 8 — will the stay of Judge Walker’s decision nullifying Prop 8 remain in place? Stay tuned.

If a new, larger en banc panel will hear the appeal, the possibility exists that the Ninth Circuit could issue a more expansive ruling than Reinhardt’s — or they could overturn Walker’s decision completely. Risk abounds.

“8″ Trailer: Long Version from American Foundation for Equal Ri on Vimeo.

The cast for the West Coast one-night production of Dustin Lance Black’s “8″ has been announced, and it’s rather hottie-intense. Here’s the announcement from the American Foundation for Equal Rights:

All-Star Cast for West Coast Premiere of Dustin Lance Black’s “8” Announced
January 18, 2012

Matt Bomer, Campbell Brown, George Clooney, Jamie Lee Curtis, Jesse Tyler Ferguson, Cleve Jones, Christine Lahti, Jane Lynch, Matthew Morrison, Rory O’Malley, Rob Reiner, Martin Sheen, Yeardley Smith, and George Takei Will Appear in One Night Only Exclusive Event on March 3, 2012

Everyone involved gets more than a little Hollywood polish, including David Blankenhorn, the defendants’ hapless witness who eventually said that we would be more American on the day we permitted same-sex marriages:

George Clooney and Martin Sheen will play plaintiffs’ lead co-counsel David Boies and Theodore B. Olson, the all-star attorneys who notably faced-off in Bush v. Gore. Christine Lahti and Jamie Lee Curtis will play plaintiffs Kris Perry and Sandy Stier, a lesbian couple together for eleven years and the parents of four boys. Matthew Morrison and Matt Bomer will play plaintiffs Paul Katami and Jeff Zarrillo, a gay couple together over ten years.

Jane Lynch will play prominent opponent of marriage equality Maggie Gallagher, co-founder and former chairman of the National Organization for Marriage. Rob Reiner will play David Blankenhorn, founder and president of the Institute for American Values.

Paul and Jeff must be over the moon. Seriously, if Google images is back up after the SOPA/PIPA darkness, check out Matt “White Collar” Bomer. And there’s a built-in “Glee” audience for Matthew “Will Shuster” Morrison.

Tickets and sponsorship for this event, to benefit AFER’s court fight for equal marriage rights, are available here.

Here’s the text of the order from the Ninth Circuit, vacating the previous schedule and asking appellants to address, in their opening brief, the issue of standing. No marriages this week, it appears….

Before: LEAVY, HAWKINS and THOMAS, Circuit Judges.
Appellants’ motion for a stay of the district court’s order of August 4, 2010
pending appeal is GRANTED. The court sua sponte orders that this appeal be
expedited pursuant to Federal Rule of Appellate Procedure 2. The provisions of
Ninth Circuit Rule 31-2.2(a) (pertaining to grants of time extensions) shall not
apply to this appeal. This appeal shall be calendared during the week of December
6, 2010, at The James R. Browning Courthouse in San Francisco, California.
The previously established briefing schedule is vacated. The opening brief
is now due September 17, 2010. The answering brief is due October 18, 2010.
The reply brief is due November 1, 2010. In addition to any issues appellants wish
to raise on appeal, appellants are directed to include in their opening brief a
discussion of why this appeal should not be dismissed for lack of Article III
standing. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997).

[Ed. note: Please note the call to action here; don't let the haters swamp the system and obscure the true numbers of LGBT rights supporters. Be sure to check out Teddy's post on the stay granted yesterday by the 9th Circuit, as well as FDL's Prop 8 coverage page.]

The proponents of Proposition 8 — the folks who got the civil right to marry stripped from gay and lesbian couples at the 2008 ballot box — are now petitioning Governor Schwarzenegger and Attorney General Brown to defend Prop 8 in court. According to reports from the offices of the two highest law enforcement officials in California, calls to their offices are running strongly in favor of H8. Can you please call Arnold as well as Jerry Brown and ask them to continue to stand up for equality?

Here’s part of the letter sent out earlier by the Capitol Resource Institute:

Jerry Brown is not appealing. Put another way, Jerry Brown has refused to file the appeal of the recent federal trial court decision declaring Proposition 8 unconstitutional. Yes, it is his responsibility as the Attorney General (AG) to defend voter-approved measures, but he does not agree with Proposition 8.

And his failure to do his duty may end this battle right here.

As John Eastman points out in the Flashreport, unless the official government defendants file a notice of appeal the issue may end with the decision of one judge in San Francisco. The proponents of the measure may not have standing to file the appeal.

But, as Eastman also points out, the Governor can file this appeal. While the Governor also opposes Proposition 8, we hope that he is fair minded enough to realize that the people of California deserve a full hearing in the courts on this important measure.

Governor Schwarzenegger, under Government Code (GC) Section 12013 has the authority to direct AG Jerry Brown to appear on behalf of the State. If the Attorney General refuses, then the Governor has the right to and should file the notice of appeal. He may also employ additional counsel, as he deems expedient. The lawsuit against Proposition 8, Perry v Schwarzenegger, even includes the Governor’s name because the lawsuit is against the State. GC Section 12013 further reads that the Governor has the right to demand the AG’s appearance and supply additional counsel when suit or legal proceeding is pending against the State.

Folks on their side are responding to this appeal, according to people in the office of the Attorney General and the Governor. Can you please call today to ask Jerry Brown — and Arnold — to continue to stand with us in favor of equality?

Call the Governor
Phone: 916-445-2841
Fax: 916-558-3160

Call the Attorney General
Phone: 916-324-5437
Fax: 916-445-6749

Send an email to both right here.

[Ed. note: see the fun fact at the end which I missed the first time I read this piece -- worth a chuckle over these chuckleheads.]

The hard-core homophobes in the House GOP caucus have revealed themselves, and they are a sorry lot indeed. These are the people American history books will cast into the dustbin: bigots, haters, the sorry folks who see civil rights as a zero-sum game. If you get your civil rights, I lose mine.

A group of conservative House Republicans on Tuesday introduced a resolution in Congress to condemn the recent federal court decision overturning Proposition 8 in California.

The introduction of the non-binding measure is one of the most prominent moves against the ruling from Republicans, whose response has largely been muted, or in some cases supportive of the decision.

Rep. Lamar Smith (R-Texas) is sponsoring the resolution, H. Res. 1607. The measure is pending before the House Judiciary Committee.

A quick reminder here: Lamar Smith is the Ranking Member of this Committee, and would become its Chair should the GOP take over the House this fall.

The resolution goes after Judge Vaughn Walker directly, and makes the incontrovertible statement that the decision is "wrong:"

The resolution offers findings faulting U.S. District Court Judge Vaughn Walker’s decision for engaging in improper conduct during his consideration of the case. It says Walker “failed to conduct himself in an impartial manner” and “attempted to illegally broadcast the trial in disregard of the harassment such broadcast would invite on witnesses supporting Proposition 8.”

The resolution concludes that the sense of the U.S. House is that:

• Walker “failed to conduct himself in an impartial manner before striking down California’s popularly enacted Proposition 8 and thereby redefined traditional marriage to include same-sex relationships;”

• and Walker’s decision to overturn “California’s popularly enacted Proposition 8 is wrong.”

Here is the full text of the hate-filled screed.

And here is the list of the hard-core homophobes in the House, GOPs all, who want their body to reject Judge Walker’s reasoned decision in the face of foolish non-evidence that gays are icky:

Mr. SMITH of Texas (for himself, Mr. FRANKS of Arizona, Mr. JORDAN of Ohio, Mr. KING of Iowa, Mr. AKIN, Mr. CHAFFETZ, Mr. LAMBORN, Mr. LATTA, Mr. SENSENBRENNER, Mr. PITTS, Mr. JONES, Mrs. BACHMANN, Mr. FLEMING, Mr. GINGREY of Georgia, Mr. BACHUS, Mr. HOEKSTRA, Mr. MARCHANT, and Mr. ADERHOLT)

Fun fact: I do believe the resolution mis-names the case decided by Judge Walker. Mr Smith calls it Hollingsworth v Perry and not Perry v Schwarzenegger. Maybe this is the revenge of a gay or lesbian copy-editor in someone’s office on Capitol Hill?

Congressman Henry Waxman endorsed federal Judge Vaughn Walker’s decision to overturn California’s Proposition 8 and told NBCLA he hopes the Ninth Circuit and the Supreme Court uphold Walker’s decision that Proposition 8 is unconstitutional.

"People should be allowed to get married," he said, " Proposition 8 is an unreasonable and unconstitutional barrier, discriminating against people who are gay."

I hope Representative Waxman has an opportunity to speak with President Obama about his convoluted fierce advocacy for gay and lesbian couples, whose liberty and freedom and equality he supports but whose marriages he opposes. Someone needs to explain to the President that he is the way-wrong side of history here.

Here’s the actual text from Vaughn Walker’s court:

ORDER by Judge Walker denying [705] Motion to Stay. The clerk is DIRECTED to enter judgment forthwith. That judgment shall be STAYED until August 18, 2010 at 5 PM PDT at which time defendants and all persons under their control or supervision shall cease to apply or enforce Proposition 8. (vrwlc1, COURT STAFF) (Filed on 8/12/2010)

[Ed. note: You can view the full document at this link: Prop 8 Stay Order. More about the denial here: Breaking: Judge Walker Denies Prop 8 Motion, Stays Decision till 8/18, by bmaz.]

Awaiting Judge Vaughn Walker’s decision today about a stay on his Perry ruling, lesbian and gay couples lined up at San Francisco’s City Hall to take advantage of what might prove to be a narrow window again for legal same-sex nuptials in California.

Rod Wood, 56, and his boyfriend of seven years, Roger Hunt, 52, were the first in line at San Francisco City Hall. The San Francisco couple said they wanted to be there in case the window of opportunity to wed was small.

Wood proposed to Hunt two days ago, and the couple got rings Wednesday night at the Stonestown Galleria. If the two get married, they plan to celebrate their honeymoon by taking a motorcycle trip to the Sierra.

"I’m trying to remain calm, but I don’t want to be devastated if the stay is lifted," Hunt said.

Chief U.S. District Judge Vaughn Walker intends to rule today on whether same-sex marriage can resume. Last week, Walker invalidated Proposition 8, which was passed by voters in 2008 and bans same-sex marriage in California, but he immediately put in place a stay that froze enforcement of his ruling.

And the City and County of San Francisco appears to be fully prepared to provide legal services at the Marriage Licenses window as soon as is possible:

One couple, Teresa Rowe, and her girlfriend of five years, Kristin Orbin, both 31, arrived at 4:30 a.m. from Fairfield. They were playing it safe; rather than wait in line at the clerk’s office, they were sitting on the steps of City Hall to see whether Vaughn would lift the stay.

The clerk’s office, meanwhile, was girding for the likely onrush of same-sex couples seeking to get married.

"We’re fully prepared,’ said deputy county clerk Alan Wong. "We’re fully ready."

Both of the state’s two highest elected officials, in briefs to the Court, have urged the judge not to use potential administrative delays as an excuse to hold off on allowing California to resume marrying same-sex couples:

Schwarzenegger said the state was well-equipped to handle the marriages of gays and pointed to the fact that an estimated 18,000 gay couples were wed in California before Proposition 8 passed.

"Government officials can resume issuing such licenses without administrative delay or difficulty,” Schwarzenegger’s office said in written arguments to the court.

The governor called Walker’s repudiation of Proposition 8 "consistent with California’s long history of leading the way in recognizing the rights of gay and lesbian families to order their relationships and manage their day-to-day lives."

Brown also told Walker that possible administrative difficulties should not be used as an excuse for denying gays the right to wed. Brown said his office last year opposed a pretrial request to block Proposition 8 only because the legal and factual issues had not yet been explored.

The right-wing is in overdrive attacking Judge Vaughn Walker’s bias, since they say he is ‘openly gay.’ Of course, Walker isn’t openly gay by any stretch of the imagination. But Michaelangelo Signorile perpetuates a dangerous stereotype, difficult to shed for men of my generation and Vaughn Walker’s, by calling these lies ‘smears’ in his otherwise excellent HuffPost article today entitled Judge Vaughn Walker Gets Smeared By the Media. It’s not a smear to call someone openly gay, since there’s nothing wrong with being gay in the first place.

Signorile:

The way that the sexual orientation of Judge Vaughn Walker — the federal judge who overturned Proposition 8 last week — has been targeted and exploited by proponents of Prop 8 is not only an example of the ugly smear tactics of the theocratic thugs who call themselves Christians; it’s a testament to how easily the media is manipulated by the right into doing things about which editors and reporters claim to be staunchly opposed.

I’m talking about that fact that every far-right organization, from the National Organization for Marriage to the evangelical American Family Association, has attacked Walker’s decision as biased because he is supposedly "openly gay."

How did the media choose to report on Judge Vaughn Walker’s sexual orientation after the Perry decision was announced?

But more grotesque is the lie Perkins is spinning out, because Judge Walker is in fact not "openly" gay. Perkins surely knows that, as an obsessed proponent of Prop 8 following the trial day in and day out. Judge Walker has not ever confirmed to anyone in the media what sexual orientation he may be. And yet most major media organizations, from the New York Times and ABC News to the Washington Post and National Public Radio, have reported on him as gay or had commentators saying it.

Signorile contrasts the difference treatment from the mainstream media of the Kirby Dick/Mike Rogers documentary film Outrage and points out that most outlets elected not to name the names the film did in their reviews.

Then Signorile goes too far, I believe, in labeling the discussion of whether Vaughn Walker is openly gay a ‘smear’ conducted by ‘smear artists.’ It may very well be a lie to broadcast that Vaughn Walker is openly gay, since he’s never discussed his sexual orientation publicly.

Well, there was NPR last week, in an "All Things Considered" report, jumping on the bandwagon, like the Washington Post and others, reporting on Judge Walker as "openly gay" in the context of the criticisms against his ruling. The only difference was that this time the claims were coming from right-wing smear artists, whom the mainstream media are only too eager to accommodate.

It is no smear in the 21st century to call someone openly gay, because there’s nothing wrong with being gay. Our commentators play into the subtle characterization of ‘wrongness’ when we call an error a smear. It’s wrong, bad journalism, and untrue to call Vaughn Walker openly gay.

But it is certainly no smear.