California’s legal battle over same-sex nuptials is now headed to the U.S. Supreme Court, the final chapter in four years of litigation over the constitutionality of Proposition 8′s ban on gay marriage.
In a brief order Tuesday, the U.S. 9th Circuit Court of Appeals said a majority of the court’s active judges voted against reconsidering a three-judge panel’s decision to overturn the voter-approved 2008 state constitutional amendment. Three dissenting 9th Circuit judges who favored review called the panel’s ruling a “gross misapplication” of the law that “roundly trumped California’s democratic process.” The two judges who voted to overturn the ban last February reiterated Tuesday that their decision was limited to the situation in California.
Lawyers in the case expect the U.S. Supreme Court to review Proposition 8 this fall and decide its constitutionality next June. Until the Supreme Court acts, the 9th Circuit’s order will be on hold and Proposition 8 will remain in effect.
“The end is now in sight,” said Chad Griffin, who started an organization that is financing the legal battle against Proposition 8.
“We are not at the end of the line yet, but we are vastly closer,” said Theodore B. Olson, one of the lawyers for two same-sex couples who challenged Proposition 8 in federal court
The case is heading to the high court at the same time as another landmark gay-rights ruling. The 1st Circuit Court of Appeals last week overturned the 1996 Defense of Marriage Act, ruling that the federal ban on recognizing same-sex marriages violated the U.S. Constitution.
The dissents in Tuesday’s 9th Circuit decision showed that courts remain divided on the issue. Judge Diarmuid O’Scannlain, joined by two other jurists, wrote that even President Obama favored letting states decide “in a respectful way” whether to permit gays to marry.
“Today our court has silenced any such respectful conversation,” wrote O’Scannlain, who was appointed by President Reagan. O’Scannlain complained that the 9th Circuit’s refusal to review the case endorsed a view that “animus must have been the only conceivable motivation for a sovereign state to have remained committed to a definition of marriage that has existed for millennia.”
“Even worse,” O’Scannlain continued, “we have overruled the will of 7 million California Proposition 8 voters.” He was joined by Judges Jay S. Bybee and Carlos T. Bea, both appointees of President George W. Bush.
Judges Stephen Reinhardt and Michael Daly Hawkins, who voted in February to overturn Proposition 8, responded in a concurring opinion that their ruling applied the law to the facts in California, where voters reinstated a marriage ban six months after the California Supreme Court gave gays the right to wed. The panel’s decision was based on a 1996 Supreme Court precedent that said a majority may not take away a minority’s rights without legitimate reasons.
“We held only that under the particular circumstances relating to California’s Proposition 8, that measure was invalid,” wrote Reinhardt, who was appointed by President Carter, and Hawkins, a Clinton appointee. “We did not resolve the fundamental question that both sides asked us to: whether the Constitution prohibits the states from banning same-sex marriage.”
Whether the case will remain so narrow depends on the U.S. Supreme Court. Lawyers fighting Proposition 8 will oppose high court review, lest they lose even their narrow victory. They nevertheless expect the court to take the case and plan to argue that all marriage bans violate the constitutional rights to fairness under the law and freedom from discrimination.
The Supreme Court has a conservative majority, but Justice Anthony Kennedy occasionally departs from it and joins the more liberal justices. Kennedy has written key gay rights rulings and may be the deciding vote in the marriage debate.
The question of same-sex marriage is reaching the high court at a time when public support appears to be rising.
In the three years since the federal suit was filed, a law that banned openly gay men and lesbians from serving in the military has been repealed, more states have permitted same-sex marriage and Obama announced that he believes gays should be entitled to wed. Polls have shown growing support for marriage rights, though some surveys still show a plurality of respondents opposing gay marriage.
The Supreme Court has been reluctant to get ahead of public opinion, and more than half the states now bar gay marriage. But when the high court struck down a ban on interracial marriage in 1967, polls showed a majority of Americans still opposed mixed-race matrimony.
from The Los Angeles Times

ALBUQUERQUE, NEW MEXICO – A photo studio’s refusal to photograph a same-sex couple’s commitment ceremony violates the New Mexico Human Rights Act, the Court of Appeals has ruled, rejecting the Albuquerque studio’s argument that doing so would cause it to disobey God and Biblical teachings.
It was the third loss for the studio, and victory for Vanessa Willock.
Willock first contacted photographer Elaine Huguenin of Elane Photography in fall 2006 about taking pictures of a “same-gender ceremony” and was informed the studio only handled “traditional weddings.” When her partner contacted the studio without revealing her sexual orientation, the studio responded with a price list and sent a follow-up email.
The opinion follows a national trend, according to the Pennsylvania law professor who represented Willock on the appeal.
“I really think what’s most important about this case is that it is the first time (New Mexico) appellate courts have talked about scope of the statute in a really comprehensive way,” said Tobias Barrington Wolff, a University of Pennsylvania School of Law professor who has litigated, advocated and published on gay marriage, constitutional rights and related topics.
The Alliance Defense Fund, “a Christian legal alliance defending religious liberty, sanctity of life, marriage and the family,” stepped up to represent Huguenin and Elane. The fund didn’t respond to a request for comment.
The New Mexico Human Rights Commission and District Judge Alan Malott have concluded in rulings in 2008 and 2009 that the studio violated the Human Rights Act.
Malott found the studio is a “public accommodation” — an establishment that provides services to the public — and as such may not refuse its services on the basis of race, religion, color, national origin, ancestry, sex or sexual orientation, gender identity, or physical or mental handicap.
Elane Photography argued that as a provider of discretionary, unique and expressive services, it was not a public accommodation within the meaning of the act.
Judge Tim Garcia, writing for the court, said a 1981 state Supreme Court case made it clear the concept of “public accommodation” was expanded to other nontraditional and non-historic types of business.
The earlier ruling “signaled that this court should independently evaluate the applicability of the NMHRA in all future cases,” Garcia wrote.
Willock argued, and the court agreed, that the act’s language extends protection to goods and services as well as facilities and that it reaches “commercial activity beyond the 19th century paradigm of inn, restaurant or public carrier.”
Garcia wrote that “cases addressing public accommodations statutes with similarly broad language support a national trend that has expanded the traditional definition of business activity that constitutes a ‘public accommodation.’ ”
Elane Photography argued that categorically refusing to photograph same-sex commitment ceremonies did not constitute discrimination, but rather reflected its owners sincerely held religious and moral beliefs that prohibit the practice. Could an African-American photographer, under that rationale, be required to photograph a Ku Klux Klan rally? Elane asked hypothetically.
“The Ku Klux Klan is not a protected class,” the court noted. “Sexual orientation, however, is protected.”
Judge Cynthia Fry joined in the opinion. Judge James Wechsler wrote a specially concurring opinion that rejected Elane Photography’s claim that its religious freedom rights would be violated by having to photograph the ceremony.
The facts of the case, he wrote, don’t indicate whether the studio was aware there was any religious aspect to the ceremony.
from The Albuquerque Journal
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Clive Barker

Legendary horror maven Clive Barker — who’s responsible for the “Candyman” and “Hellraiser” franchises — gave his ex-boyfriend HIV … and then kicked him out on the street … this according to claims in a new lawsuit.
Emilian David Armstrong says in the suit … he met Barker in early 1996, and they quickly moved in together.   Armstrong had a daughter from a previous heterosexual relationship.  She also moved in.
Armstrong says in November, 1996, he was diagnosed with HIV.  The suit claims Barker had tested positive and had urged Armstrong to get tested.  Armstrong is convinced — Barker gave him HIV.
Armstrong says Barker confessed he had previously engaged in a sexual relationship with his own cousin, who had AIDS — and also engaged in sadomasochism in prior relationships that involved syringes.
As for why Armstrong waited 16 years to file a lawsuit — Armstrong says he and Barker tried to work out their relationship and battle the virus together … but things started to go south in 2003.
According to the lawsuit, that’s when Barker became addicted to prescription painkillers such as Vicodin, Percocet, Demerol, and Oxycodone. Armstrong claims Barker would mix these drugs with alcohol, cocaine, and/or crystal meth and use them for recreation.
But Armstrong says he still didn’t give up on the relationship — and tried to help Barker through his drug problems … but they only got worse.  Armstrong says Barker started throwing drug-fueled parties with young men ranging in age from 19 to early 20′s.
The suit claims in 2009, Barker kicked Armstrong out of his house — along with Armstrong’s daughter — and left them destitute.
Armstrong claims he was a partner in Barker’s business ventures and is entitled to a cut of the profits.  He also says he was promised support for life.
from TMZ

Dustin Lance Black / '8'

The star-studded West Coast performance of the gay marriage play “8″ led by George Clooney and Brad Pitt will be heard again this month — on radio and online.
A recording by L.A. Theatre Works of the March 3 performance in Los Angeles will be broadcast in the coming days on 90.7 KPFK in Southern California, 89.7 WGBH in Boston, 91.5 WBEZ in Chicago, 94.9 KUOW in Seattle, 91.1 KRCB in San Francisco, 89.3 WPFW in Washington, D.C.; and over 100 other markets nationwide. June is Gay Pride Month.
The play is about the 2010 federal court fight against Proposition 8, the gay-marriage ban that California voters approved in 2008. The play by Oscar winner Dustin Lance Black made its Broadway debut last year in similar starry fashion.
Relying largely on transcripts from court proceedings, “8″ introduces viewers to the couples who challenged the California initiative, the attorneys who argued their case and witness who spoke out against them. The legal fight over Prop. 8 is ongoing.
The play made its world premiere on Broadway last year starring Morgan Freeman, Anthony Edwards, John Lithgow and Cheyenne Jackson.
The trial is important to gay activists because former U.S. Solicitor General Theodore Olson and attorney David Boies — who represented opposing sides in the disputed 2000 presidential election — put on a powerfully clear argument in favor of same-sex marriage. It was recorded but Prop. 8 backers have so far succeeded in getting the U.S. Supreme Court to bar broadcast of the landmark case.
In addition to Clooney and Pitt, the Los Angeles edition also featured Kevin Bacon, Jamie Lee Curtis, Christine Lahti, Jane Lynch, Martin Sheen and John C. Reilly. It was directed by Rob Reiner.
from The Associated Press
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