Gay couples legally married in other states cannot get a divorce in Texas, where same-sex marriage is banned, a state appeals court ruled Tuesday.
The 5th Texas Court of Appeals ruled that a Dallas district court judge didn’t have the authority to hear a divorce case involving two Dallas men who married in Massachusetts in 2006. Republican state Attorney General Greg Abbott’s office had appealed after Judge Tena Callahan, a Democrat, said she did have jurisdiction and dismissed the state’s attempt to intervene.
“Today’s court of appeals decision overruled the district court’s improper ruling, confirmed the constitutionality of Texas’ traditional definition of marriage and correctly found that Texas courts lack the legal authority to grant divorces to same-sex couples,” said Abbott spokesman Jerry Strickland.
Callahan also had ruled Texas couldn’t limit marriage to a man and a woman, but the appeals court said the state’s same-sex marriage ban was constitutional.
“A person does not and cannot seek a divorce without simultaneously asserting the existence and validity of a lawful marriage,” Justice Kerry P. Fitzgerald wrote on behalf of three Republican appeals court justices. “Texas law, as embodied in our constitution and statutes, requires that a valid marriage must be a union of one man and one woman, and only when a union comprises one man and one woman can there be a divorce under Texas law.”
The appeals court ordered the case be sent back to Callahan, who must vacate her order.
The men, known only as J.B. and H.B. in court filings, separated amicably two years after getting married.
J.B.’s attorney, Peter Schulte, has said the two men had no children and weren’t arguing over how to divide their property, but wanted an official divorce. Schulte said Tuesday they had not yet decided whether to appeal to the Texas Supreme Court.
“We obviously disagree with the justices’ ruling, but we respect the process and respect the court,” Schulte said.
Abbott’s office had argued before the three-judge appeals court in April that the couple was not eligible for a divorce in Texas because the state didn’t recognize their marriage. Jody Scheske, another lawyer for J.B., argued his client was entitled to a divorce because he had a valid marriage.
The appeals court agreed with Abbott that such unions could be dissolved by having the marriage declared void.
Among the reasons J.B. argued for a divorce rather than a voidance was that spousal support and community property laws only apply in divorce cases. The appeals court said those issues are policy arguments that must be addressed by the Legislature.
“It’s deeply disappointing to see courts deny same-sex couples equal treatment under the law,” said Jennifer Pizer, a lawyer for Lambda Legal, which promotes equal rights for gay, lesbian, bisexual and transgender people.
Texas voters passed a constitutional amendment to ban same-sex marriage by a 3-to-1 margin in 2005 even though state law already prohibited it. Kelly Shackelford, president of the conservative Plano-based Liberty Institute, said the Tuesday ruling “strikes down an activist judge’s attempt to take the law into her own hands.”
Abbott’s office also appealed a gay divorce case in Austin after a judge there granted a divorce earlier this year to two women who married in Massachusetts in 2004. The Austin appeals court has not yet heard arguments in that case.
One of the women, Angelique Naylor, told The Associated Press in April, “We didn’t ask for a marriage; we simply asked for the courtesy of divorce.”
She referred requests for comment about Tuesday’s ruling to Scheske, who also is her attorney.
from The Dallas Morning News

Ken Mehlman

Had a former chairman of the Republican National Committee  announced in 2004 that he was gay, it would have been a bombshell. In that hard-fought election year, Republicans and Democrats were rushing to condemn a court for establishing the right to same-sex marriage in Massachusetts.
Six years later, in a midterm election cycle that is otherwise fierce, campaigns are largely silent on the issue of same-sex marriage — even as two federal courts have issued similar decisions in recent months upholding the rights of gay people to wed. And when Ken Mehlman, who ran President George W. Bush’s re-election campaign in 2004 and then became the party’s chairman, said in an interview in The Atlantic this week that he is gay and is working to support a campaign for same-sex marriage, it was met with little controversy.
Even the commentary accusing him of hypocrisy seemed outweighed by people who wished him well, or merely shrugged.
The muted reaction reflects not only changing values in the country generally, but also, more notably, among many Republicans and conservatives.
The center of gravity of the conservative movement in this election season is with fiscal conservatives. The Tea Party is infusing the Republican Party with new energy, and Tea Party leaders and supporters say they do not want to talk about social issues: even if they do not personally support same-sex marriage or abortion, they think the Republican Party spent too much time talking about them and not enough time trying to rein in spending.
As head of the Republican National Committee, Mr. Mehlman advocated the Bush administration’s push for a constitutional amendment banning same-sex marriage, which Republicans had hoped would galvanize the party’s conservative base in 2006.
Now he joins several other members of the Bush inner circle who have publicly stated their support for same-sex marriage. Former Vice President Dick Cheney, who has a daughter who is gay, has said he supports the right of gay people to marry, as has the former first lady Laura Bush.
“There are now more and more Republicans, and conservative Republicans, who have talked about this issue through the prism of being an equal rights issue, and being an issue that should not define the conservative movement and the party,” said Steve Schmidt, who was part of that inner circle as a spokesman and strategist for Mr. Bush’s 2004 campaign.
Mr. Schmidt spoke of his support for same-sex marriage in 2008 to the Log Cabin Republicans, a gay rights group, when he was chief strategist for John McCain’s presidential run. Like Mr. Cheney, he spoke in personal terms, telling the group that his sister is gay and that she and her partner are an important part of his and his children’s lives.
Matthew Dowd, another top strategist for Mr. Bush who broke with him after the re-election campaign, said that same-sex marriage had ceased to be a big issue for many voters — including conservatives and religious ones — even in 2004. In polling and focus groups before that election, he said, Republicans and conservatives cited terrorism, taxes and the war in Iraq as the issues that would move them to the polls.
And even as many commentators declared that ballot initiatives on same-sex marriage that year drove conservatives to the polls for Mr. Bush, Mr. Dowd said that analyses showed that the initiatives stirred no statistical increase in turnout among conservatives or religious voters.
Mr. Mehlman told The Atlantic, “It’s taken me 43 years to get comfortable with this part of my life.” His announcement — and the relatively passive reaction to it — reflects how the country has shifted.
“It’s just not politics, it’s Hollywood folks who struggle with this, people in the news media struggle with it, athletes struggle with it, this question of whether or not they should be open,” Mr. Dowd said. “What we’re seeing is more and more people deciding that staying quiet for the rest of their lives is no longer an option.”
Still, voters may not want to institute same-sex marriage — recent campaigns failed in Northeastern states like New York, New Jersey and Maine, which are usually considered the province of liberalism.
And not all conservatives are willing to concede the fight on social issues.
Tony Perkins, president of the Family Research Council, said Mr. Mehlman’s announcement helped explain “the scandalous failure” of the Republican establishment to fight same-sex marriage. “It is important for the conservative movement that the Republican Party remains committed to its longtime stance on core social issues,” he said.
But polls show acceptance of gays growing among Americans, on a variety of measures. In a Gallup poll in May, 52 percent of Americans said that gay and lesbian relations were “morally acceptable” — the first time that support had crossed what the polling group called the “symbolic threshold” of 50 percent.
Among conservatives, 33 percent agreed, up five percentage points since May 2006. Another Gallup poll in May found that 70 percent of Americans — and 53 percent of conservatives — favored allowing gays and lesbians to serve openly in the military.
The shift is being driven largely by demographics, as a younger generation grows up with more discussion and acceptance of gay rights.
In a New York Times/CBS News poll conducted in March 2004, a plurality of Americans under 45 — 35 percent — said there should be no legal recognition of gay and lesbian relationships. Forty-five percent of Americans 45 and older said the same. By April 2010, just 24 percent of Americans ages 18 to 44 surveyed said that there should be no legal recognition, and 35 percent of Americans 45 and older said the same.
“People want to make sure that government is not intrusive in our lives,” Mr. Dowd said. “Whether it’s the economy or our social lives.”
from The New York Times
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President Barack Obama

In the fall of 1912, as his campaign for president entered its final stage, Woodrow Wilson was speaking in Brooklyn when he was asked for his opinion on women’s suffrage. The issue was very much in the political ether, but Wilson had declined to take a stand on it. According to John Milton Cooper’s excellent biography  of the twenty-eighth president, he responded by insisting that it was “not a question that is dealt with by the national government at all.” The woman who had asked the question was apparently displeased by this blatant dodge. “I am speaking to you as an American, Mr. Wilson,” she retorted.
I am speaking to you as an American: It was a wonderful rebuke, one that anticipated the rhetoric of Martin Luther King and other civil rights leaders who would not rail against America but instead demand to be fully part of it. Wilson, however, was unmoved. And his slippery treatment of women’s suffrage—like his slippery approach on matters of race—did not end once he was in the White House. Running for reelection four years later, he was still playing the same exasperating game. That year, the Democrats did not endorse a constitutional amendment providing for women’s suffrage but, instead, called on the states to extend voting rights to women. Such a half-measure looks cowardly in retrospect, of course; but it also looked cowardly at the time. In November 1916, The New Republic excoriated Wilson for his weak stand on the issue. During his reelection campaign, TNR wrote, Wilson had told a group of suffragists that “[h]e was with them,” even as “he confessed to a ‘little impatience’ as to their anxiety about method.” From this, the magazine concluded that the president had “at best a vague, benign feeling about [the issue], and no conviction whatever that woman suffrage was creating a national situation which called for thorough sincerity, nerve and will.”
An evasive stance on a controversial civil rights issue from a liberal president; an insistence that the issue is primarily local, rather than national, in character; a complete failure of sincerity, nerve, and will: If these things sound familiar in 2010, it is because Barack Obama is taking exactly the same approach on gay marriage.
My colleague James Downie has assembled a fascinating timeline of Obama’s statements on gay marriage over the past 14 years, stretching from 1996 to earlier this month, when the White House responded to a judge’s ruling on Prop 8 by reiterating that it opposes same-sex marriage. What the timeline shows is a pattern that can only be described as illogical and cynical. Obama argues that he is against gay marriage while also opposing efforts like Prop 8 that would ban it. He justifies this by saying that state constitutions should not be used to reduce rights. (His exact words: “I am not in favor of gay marriage, but when you’re playing around with constitutions, just to prohibit somebody who cares about another person, it just seems to me that that is not what America is about.”) Obama appears to be saying that it is fine to prohibit gay people from getting married, as long as the vehicle for doing so is not a constitution. Presumably, then, he supports the numerous states that have banned same-sex marriage through other means, without resorting to a constitutional amendment? If so, he might be the only person in the country to occupy this narrow, and frankly absurd, slice of intellectual terrain. Obama has also said he favors civil unions rather than gay marriage because the question of where and how to apply the label “marriage” is a religious one. This argument makes even less sense than his stance on state constitutions, since marriage, for better or for worse, is very much a government matter.
Obama and those around him seem unaware that all of this is a problem; a look at some of the lessons from Wilson’s experience might help to clarify why they ought to reconsider. The first lesson is that history does not look kindly on this type of presidential conduct. Wilson is today remembered as a near-great president, but his indifference on questions of gender and race is more than a bit unflattering in retrospect. Second, like Wilson, Obama is running out of time to stay ahead of history. In 1912, women’s suffrage was hardly an outlandish cause; one of the three major presidential contenders that year, Teddy Roosevelt, came out in favor of it, even as Wilson remained mum. Similarly, on gay marriage, Obama is now to the right of Laura Bush, Arnold Schwarzenegger, and, according to a new CNN poll, 52 percent of the American people.
Third, there is the problem of the example Obama is setting for the rest of the world. According to Cooper, when Wilson eventually did endorse the women’s suffrage amendment, on January 9, 1918, it was at least partly because of foreign policy. “As one of the Democrats [who had spoken to Wilson that day] recalled two weeks later, the president told them that passing the amendment would send the right message to the world and would acknowledge women’s service to the nation,” Cooper explains. Months later, addressing the Senate on the issue, Wilson cited the “unusual circumstances of a world war in which we stand and are judged in the view of our own people and our own consciences but also in the view of all the nations and peoples.” The point, it seemed, was that you could not wage war in the name of democratic ideals while barring half your population from voting. Obviously, the lesson here does not map perfectly onto contemporary politics—Obama would not exactly increase his popularity in the Muslim world by endorsing gay marriage—but neither does it make sense to think of gay marriage as completely disconnected from international affairs. Obama has said that he wants to restore American moral leadership in the world. But how can he claim the mantle of moral leadership when we are being outpaced by so many countries and so many foreign leaders on one of the central civil rights issues of our time?
The final lesson from Wilson is that what a president says and does matters. The day after Wilson’s January 9 statement, the House endorsed women’s suffrage by two votes. Wilson, albeit years late to the cause, would go on to lobby senators and, eventually, the governor of Tennessee, which became the final state to ratify the nineteenth amendment. Obama, meanwhile, seems to have convinced himself that he can’t make a difference on gay marriage, so why wade into the issue? But, while he may not realize it, Obama is already leading on gay marriage; he is just leading in the wrong direction. Every time Obama or a surrogate reiterates his position, it reinforces the idea that gay marriage is a bit too scary for the political mainstream. Worse, Obama’s stance seems to be a way of conveying to the country that he knows a lot of people still aren’t completely comfortable admitting gays and lesbians as full participants in American life, and that this is OK because he isn’t either. It is about the most cynical gesture you can imagine from an allegedly liberal leader—and we deserve better. I am speaking to you as an American, Mr. Obama.
from The New Republic / Richard Just

Portia de Rossi & Ellen DeGeneres

What’s in a name? Quite a bit.
Or so believes Portia de Rossi, who last Friday filed a petition with the Los Angeles County Superior Court to legally change her name to Portia DeGeneres.
We’re guessing it’s no coincidence that the actress chose to adopt wife Ellen DeGeneres’ surname just two days after a California federal judge came to his senses overturned Proposition 8.
Ms. and the soon-to-be Mrs. DeGeneres tied the knot back in August of 2008.
Along with the paperwork requesting the name swap, Portia also filed a hefty number of documents seeking to redact the couple’s home address on the supporting paperwork, citing concerns that the duo’s personal safety would be at risk. In other words: keep those crazies at bay.
A hearing on the name swap, which will no doubt be just minutes-long as moniker amendments are routinely granted, has been set for Sept. 23.
from E! Online

Chief U.S. District Judge Vaughn Walker

It’s the judge’s turn to be judged.
The federal judge who upended California’s same-sex marriage ban this week is now being scrutinized by some for being gay himself. Which raises another question – should his sexual orientation even matter?
The whole issue has created a rather muddled and finger-pointing debate in newspapers and the blogosphere, as angry supporters of the gay marriage ban argue that Chief U.S. District Judge Vaughn Walker did not act impartially.
But some experts say his private life doesn’t matter.
Larry Levine, a professor at the McGeorge School of Law in Sacramento told the Sacramento Bee that Walker’s sexuality doesn’t—or shouldn’t— make a difference.
“I think it’s profoundly offensive to suggest that a judge who is not of the sexual orientation of the majority or the race of the majority or the religion of the majority is unfit to hear the case,” he told the newspaper.
“Are they saying that an African American judge can never rule on an affirmative action case and a Muslim can never rule on a case dealing with religious expression?”
The San Francisco Chronicle said the judge being gay is “the biggest open secret” in a column, although Walker himself hasn’t addressed the speculation about his sexual orientation.
Nonetheless, supporters of the gay marriage ban are outraged.
“Here we have an openly gay federal judge,” Maggie Gallagher, chairwoman of The National Organization for Marriage, who advocated for Proposition 8, told the Associated Press. She said the judge was “substituting his views for those of the American people”
Some are saying Walker should have addressed his sexuality before the trial, and Bryan Fischer, issues director for the American Family Association, is urging members to contact their political representatives to impeach the court proceedings.
On Wednesday, Walker ruled the voter-enacted ban, known as Proposition 8 “singles out gays and lesbians and legitimates their unequal treatment.”
The ban was passed in 2008 in a narrowly passed referendum five months after the state Supreme Court legalized gay marriage. The case is expected to head to the 9th U.S. District Court of Appeals.
Walker, 65, was born in Watseka, Ill. President Ronald Reagan initially nominated him, but he wasn’t confirmed until 1989 by George H.W. Bush. The New York Times described him as an “independent-minded conservative” who has come out in favor of the legalization of drugs and once ruled in the mid-90s that the cops used reasonable force when they pepper sprayed anti-logging protesters.
Ironically, he’s previously been denounced by feminist and gay-rights groups for being a member of a private club that only recently allowed blacks admission.
One this is for sure, the verdict on this controversy is still out.
from The New York Daily News

SAN FRANCISCO, CALIFORNIA – A day after Proposition 8  was thrown out in court, both sides in California’s debate over gay marriage are focusing on the next fight in a battle that is likely to end up before the U.S. Supreme Court.
Opponents of gay marriage immediately vowed to appeal a federal judge’s ruling saying same-sex unions were legal in California. The next step will come Friday, when U.S. District Chief Judge Vaughn R. Walker holds a new hearing. The judge stayed his order allowing gay marriage at least until then. And it remains unclear if –and when — new gay marriage will begin again in the state.
Lawyers on both sides expect the ruling to be appealed and ultimately to reach the U.S. Supreme Court during the next few years.
Walker’s decision was being carefully analyzed by attorneys with an eye on how the high court might view his legal reasoning.
At least some legal experts said his lengthy recitation of the testimony could bolster his ruling during the appeals to come. Higher courts generally defer to trial judges’ rulings on factual questions that stem from a trial, although they still could determine that he was wrong on the law.
John Eastman, a conservative scholar who supported Proposition 8, said Walker’s analysis and detailed references to trial evidence were likely to persuade U.S. Supreme Court Justice Anthony M. Kennedy, a swing vote on the high court, to rule in favor of same-sex marriage.
“I think Justice Kennedy is going to side with Judge Walker,” said the former dean of Chapman University law school.
Barry McDonald, a constitutional law professor at Pepperdine University, said Walker’s findings that homosexuality was a biological status instead of a voluntary choice, that children didn’t suffer harm when raised by same-sex couples and that Proposition 8 was based primarily on irrational fear of homosexuality were “going to make it more difficult for appellate courts to overturn this court’s ruling.”
Edward E. Dolejsi, executive director of the California Catholic Conference, said he believed the judge’s ruling was both legally and morally wrong.
“All public law and public policy is developed from some moral perspective, the morality that society judges is important,” he said. To say that society shouldn’t base its laws on moral views is “hard to even comprehend,” he said.
Gay-marriage opponents plan to appeal the ruling to the U.S. 9th Circuit Court of Appeals. That court’s decision will probably be appealed to the U.S. Supreme Court.
In his decision, Walker said the evidence showed that “domestic partnerships exist solely to differentiate same-sex unions from marriage” and that marriage is “culturally superior.”
California “has no interest in differentiating between same-sex and opposite-sex unions,” Walker said in his 136-page ruling.
The ruling was the first in the country to strike down a marriage ban on federal constitutional grounds. Previous cases have cited state constitutions.
In striking down Proposition 8, Walker said the ban violated the federal constitutional guarantees of equal protection and due process.
Previous court decisions have established that the ability to marry is a fundamental right that cannot be denied to people without a compelling rationale, Walker said. Proposition 8 violated that right and discriminated on the basis of both sex and sexual orientation in violation of the equal protection clause, he ruled.
from The Los Angeles Times

SAN FRANCISCO, CALIFORNIA — A federal judge overturned California’s same-sex marriage ban Wednesday in a landmark case that could eventually land before the U.S. Supreme Court to decide if gays have a constitutional right to marry in America.
Chief U.S. District Judge Vaughn Walker made his ruling in a lawsuit filed by two gay couples who claimed the voter-approved ban violated their civil rights.
Gay couples waving rainbow and American flags outside the courthouse cheered, hugged and kissed as word of the ruling spread.
“This is a victory for the American people. It’s a victory for our justice system,” said former U.S. Solicitor General Theodore Olson, who delivered the closing argument at trial for opponents of the ban.
He said the ruling “vindicates the rights of a minority of our citizens to be treated with decency and respect and equality in our system.”
Despite the favorable ruling for same-sex couples, gay marriage will not be allowed to resume immediately. Judge Walker said he wants to decide whether his order should be suspended while the proponents of the ban pursue their appeal in the 9th U.S. Circuit Court of Appeals.
The judge ordered both sides to submit written arguments by Aug. 6 on the issue.
Supporters argued the ban was necessary to safeguard the traditional understanding of marriage and to encourage responsible childbearing.
California voters passed the ban as Proposition 8 in November 2008, five months after the state Supreme Court legalized gay marriage.
Walker, however, found that the gay marriage ban violates the Constitution’s due process and equal protection clauses while failing “to advance any rational basis in singling out gay men and lesbians for denial of a marriage license.”
“Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples,” the judge wrote in his 136-page ruling.
Both sides previously said an appeal was certain if Walker did not rule in their favor. The case would go first to the 9th U.S. Circuit Court of Appeals, then the Supreme Court if the high court justices agree to review it.
Walker heard 13 days of testimony and arguments since January during the first trial in federal court to examine if states can prohibit gays from getting married.
The ruling puts Walker at the forefront of the gay marriage debate. The longtime federal judge was appointed by President Ronald Reagan.
The verdict was the second in a federal gay marriage case to come down in recent weeks. A federal judge in Massachusetts decided last month the state’s legally married gay couples had been wrongly denied the federal financial benefits of marriage because of a law preventing the U.S. government from recognizing same-sex unions.
The plaintiffs in the California case presented 18 witnesses. Academic experts testified about topics ranging from the fitness of gay parents and religious views on homosexuality to the historical meaning of marriage and the political influence of the gay rights movement.
During trial, Olson told Judge Walker that tradition or fears of harm to heterosexual unions were legally insufficient grounds to discriminate against gay couples.
Olson teamed up with David Boies to argue the case, bringing together the two litigators best known for representing George W. Bush and Al Gore in the disputed 2000 election.
Defense lawyers called just two witnesses, claiming they did not need to present expert testimony because U.S. Supreme Court precedent was on their side. The attorneys also said gay marriage was an experiment with unknown social consequences that should be left to voters to accept or reject.
Former U.S. Justice Department lawyer Charles Cooper, who represented the religious and conservative groups that sponsored the ban, said cultures around the world, previous courts and Congress all accepted the “common sense belief that children do best when they are raised by their own mother and father.”
In an unusual move, the original defendants, California Attorney General Jerry Brown and Gov. Arnold Schwarzenegger, refused to support Proposition 8 in court.
That left the work of defending the law to Protect Marriage, the group that successfully sponsored the ballot measure that passed with 52 percent of the vote after the most expensive political campaign on a social issue in U.S. history.
Currently, same-sex couples can only legally wed in Massachusetts, Iowa, Connecticut, Vermont, New Hampshire and Washington, D.C.
from The Associated Press

Chief Justice Margaret Marshall

BOSTON, MASSACHUSETTS — Massachusetts Chief Justice Margaret Marshall, who wrote the landmark ruling making the state the first to legalize gay marriage, said Wednesday she’s retiring to spend time with her husband, who has Parkinson’s disease.
Marshall said she would step down in October to be with her husband, former New York Times columnist Anthony Lewis, a two-time Pulitzer Prize winner who retired in 2001.
Marshall was first appointed to the bench by then-Gov. William Weld in 1996, after four years as general counsel and vice president of Harvard University. She became chief justice three years later.
Perhaps her most enduring — and maligned — legacy on the court was the decision in 2003 that allowed Massachusetts to become the first state to legalize gay marriage.
In the 4-3 ruling, Marshall said the denying gays and lesbians the right to marriage “works a deep and scarring hardship on a very real segment of the community for no rational reason.”
“It cannot be rational under our laws, and indeed it is not permitted, to penalize children by depriving them of State benefits because the State disapproves of their parents’ sexual orientation.”
The ruling — and justices — were widely criticized by opponents of gay marriage as being judicial activists.
Weld said Wednesday that the criticism was unwarranted.
“I knew from early on she was committed to justice for everybody,” he said, adding that he dropped her a note a day after the gay marriage ruling to say “she had done the right thing.”
Kris Mineau, president of the Massachusetts Family Institute, welcomed the news that Marshall was leaving the court, saying the state had been under “Marshall law” since the 2003 ruling.
“In our opinion, her legacy will have a far-reaching negative effect on the health of our commonwealth,” he said.
He said he hoped Massachusetts residents would eventually be allowed to vote on the definition of marriage.
Marshall said in 2005 — a year after the first gay marriages were performed — that she was concerned about political attacks on the judiciary.
“I worry when people of influence use vague, loaded terms like ‘judicial activist’ to skew public debate or to intimidate judges,” Marshall said. “I worry when judicial independence is seen as a problem to be solved and not a value to be cherished.”
Marshall, a native of South Africa, was the first immigrant and first woman to lead the state’s 320-year-old Supreme Judicial Court. She was a white student leader of the anti-apartheid movement in the 1960s.
from The Associated Press

The historic Proposition 8 trial reaches its final stage Wednesday when lawyers on both sides have their last chance to influence a federal judge deciding the fate of California’s ban on same-sex marriage.
Chief U.S. District Judge Vaughn Walker has scheduled a full day of arguments, the final step before he rules on a lawsuit that argues that Proposition 8 violates the constitutional rights of gay and lesbian couples. The first federal court test in the nation of a state law forbidding same-sex nuptials, it is widely expected to ultimately push the gay marriage issue to the U.S. Supreme Court.
In January, Walker conducted an unprecedented three-week trial in San Francisco featuring a number of experts and other witnesses who testified on the impact of the law, which California voters backed in 2008, that restored the state’s ban on gay marriage. To prepare for the upcoming arguments, Walker issued 11 pages of questions to the attorneys covering all corners of the legal debate over Proposition 8. The wide-ranging questions asked, among other things:
# Is there evidence that the voters intended to discriminate by enacting the gay marriage ban?
# Does that matter?
# Is there any legal significance to the fact marriage has through history been defined as being between a man and a woman?
# Did the evidence at trial prove that same-sex marriage would alter the institution of marriage?
# Is there anyjustification for the state to distinguish between domestic partnership rights and marriage?
“The judge has thought all the way through this,” said Marc Spindelman, an Ohio State University law professor who reviewed the questions. “There are lots of avenues for decisions being opened up here.”
Walker’s ruling, which is likely to come this summer, is expected to be just a prelude to a legal fight most believe is headed to the U.S. Supreme Court. Whatever Walker decides, the case is expected to be appealed first to the San Francisco-based 9th U.S. Circuit Court of Appeals.
While the case will decide whether gays and lesbians can wed in California in the future, it will not affect the more than 18,000 same-sex couples married in the months before Proposition 8 went into effect in 2008. Those marriages remain legally intact.
During the trial, much of the evidence was presented by the plaintiffs’ high-powered legal team, led by trial lawyer David Boies and former Republican U.S. Solicitor General Theodore Olson. They put on a string of experts who testified on everything from the history of discrimination against gays and lesbians to the scope of gay and lesbian political clout.
The plaintiffs also presented emotional testimony from the two same-sex couples challenging Proposition 8 and from San Diego Mayor Jerry Sanders, a Republican who testified on his political change of heart after learning his daughter is a lesbian.
Defenders of Proposition 8 put on just two witnesses. But they insist they did not need to mount much of defense because, they argue, the plaintiffs failed to prove the law is unconstitutional.
They plan to argue that Walker does not have legal justification to overturn a voter-approved amendment to the state constitution, and that there are a host of reasons to justify restricting marriage to heterosexual couples, from tradition to the need for society to encourage procreation.
Boies and Olson plan to argue that the Proposition 8 side has effectively conceded.
“This is a case we said from the beginning is a very simple case,” Boies said last week. “It’s one in which the facts are really not in dispute. And they just have a circular bumper sticker for a case.”
Andrew Pugno, the attorney for the Proposition 8 campaign, said lead attorney Charles Cooper will argue that there is no “federally protected right to same-sex marriage.”
“The record is very strong to uphold the reasonableness of the people’s vote to pass Prop. 8,” he said.
from The Mercury News
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Teresa Pires & Helena Paixao

LISBON, PORTUGAL – Teresa Pires and Helena Paixao, both divorced mothers in their 30s who have been together since 2003, married at a Lisbon registry office.
The couple – who had campaigned for a change to the law – described it as a “great victory, a dream come true”.
The Socialist government had faced fierce opposition to the law in what is a mainly Catholic country.
But a petition against the change failed to gain enough support for a referendum.
The bill was passed by parliament in January and ratified by President Anibal Cavaco Silva in May – making Portugal the sixth European country to recognise same-sex marriages.
from The BBC

Tim Coco & Genesio Oliveira

HAVERHILL, MASSACHUSETTS – Tim Coco and Genesio Oliveira married in 2005, among the throngs who wed after same-sex marriage became legal in Massachusetts. But for nearly three years, they lived apart — Coco in Haverhill and Oliveira in his native Brazil — because federal law does not recognize their union.
On Wednesday, Oliveira returned to Massachusetts for an emotional reunion after federal immigration officials took the rare step of granting him permission to stay for one year on humanitarian grounds, clearing the way for him to try again for legal residency. His return followed personal appeals by Senator John F. Kerry, US Attorney General Eric Holder, and Homeland Security Secretary Janet Napolitano on their behalf.
“We’re overjoyed. Words can’t express it,’’ Coco, 49, an ad agency owner, said yesterday from their home in Haverhill, where he had decorated his yard with yellow ribbons to mark their long separation. “Every new moment now is a fresh new moment in our life.’’
Kerry called the couple heroes for persevering in their marriage.
“Here were two people who loved each other and were as committed to each other as you could ever imagine, and a quirk in the law was being allowed to keep them apart. I just wanted to do everything I could to reunite them,’’ he said in a statement.
Kerry also praised Napolitano and Holder, saying, “They really listened, and they righted this wrong.’’ Unlike heterosexuals, gays and lesbians cannot sponsor their immigrant spouses for legal US residency.
Oliveira was allowed to return because US Citizenship and Immigration Services, which is under the Department of Homeland Security, granted him humanitarian parole. Parole is a rarely used mechanism that permits otherwise inadmissible people to enter the United States for “urgent humanitarian reasons’’ or “significant public benefit,’’ said agency spokesman Chris Bentley. About 250 to 350 people are granted such parole every year, he said.
He declined to comment on Oliveira’s case because of privacy laws. Holder’s office did not respond to a request for comment.
Humanitarian parole is temporary, but Coco said the couple might seek to reopen Oliveira’s case or try another venue so that he can remain permanently.
According to the 2000 US Census, some 35,000 same-sex couples include one US citizen and a partner who is not.
Mark Krikorian, executive director of the Washington-based Center for Immigration Studies, criticized the move, saying it seemed unfair to grant a special exception for Oliveira when so many others, such as earthquake survivors in Haiti, are clamoring to get into the country.
“It’s a side-door attempt at changing the Defense of Marriage Act,’’ he said, citing a 1996 federal law declaring that marriage is exclusively between a man and a woman. “That’s the problem with our immigration laws; it’s just this vast collection of exceptions for people who get the attention of a particular bureaucrat or judge or politician.’’
But Kerry and others contended that Oliveira was a victim of injustice. He had applied for asylum in 2002, saying a doctor had raped him in Brazil when he was 16 and he suffered discrimination in his native country because he is gay. An immigration judge found his story credible but rejected his asylum claim, noting that Oliveira had returned to Brazil twice without incident, including for his father’s funeral.
Oliveira was ordered to return to Brazil in 2007. By then, he had been married two years and living in Haverhill with Coco and their dog, Q-tip.
For nearly three years, the couple talked nightly over the Internet and lobbied lawmakers and others for Oliveira’s return. Coco estimates they spent about $250,000 in legal fees and other expenses on the case.
Oliveira missed the death of Coco’s mother in 2008 and lived in near seclusion just blocks from the doctor who had assaulted him as a teen in his hometown in eastern Brazil.
Though Brazil recognizes same-sex marriage for immigration purposes, violence against gays persists. More than 100 homosexuals and transvestites were killed last year in Brazil, according to the US Department of State’s human rights report.
Wednesday night, the couple celebrated with family and friends. They finished each other’s sentences. Oliveira whipped up a batch of chicken Alfredo, with strawberries for dessert.
“It seems like I never left,’’ Oliveira said. “This has made Tim and I stronger than ever. Our commitment for each other, I always say to him, is unbreakable.’’
from The Boston Globe

Steven Monjeza & Tiwonge Chimbalanga

Steven Monjeza and Tiwonge Chimbalanga had been given 14-year jail terms for “gross indecency and unnatural acts” after celebrating their engagement.
They were pardoned during a visit by UN Secretary General Ban Ki-moon.
But a government minister told the BBC the men could be re-arrested if they continued their relationship.
The case sparked international condemnation and a debate about homosexuality in the country.
Monjeza, 26, and Chimbalanga, 20, were released from prison on Saturday evening, hours after Mr Mutharika announced their pardon.
Gift Trapence, director of the campaign group Centre for the Development of the People (Cedep) which had been supporting the couple, said they had been taken separately to their home villages.
“The prison authorities told them they had been given instruction from above that they should take them to their respective homes,” he told the AFP news agency.
Mr Trapence said they had been “warmly welcomed by their respective relatives” when they arrived home.
But Patricia Kaliati, Malawi’s Minister of Gender and Children, said Monjeza and Chimbalanga’s release did not mean they could continue their relationship.
“It doesn’t mean that now they are free people, they can keep doing whatever you keep doing,” she said.
Ms Kaliati said they could be rearrested if they “continue doing that”.
The men’s lawyer said they were unlikely to be treated in the same way if they were arrested again.
“The pardon only applies to the offence under which they were convicted. If, for example, they go back and the state is of the view that they have recommited the offence, the pardon will not apply,” said Mauya Msuku.
Monjeza and Chimbalanga were arrested in December last year, a day after they celebrated their engagement and had been in custody ever since.
They were convicted of engaging in gay sex under a law dating back to colonial rule by Britain and sentenced to 14 years with hard labour.
Judge Nyakwawa Usiwa-Usiwa said their actions went “against the order of nature”.
But on Saturday, Mr Mutharika said he was pardoning the pair on humanitarian grounds.
“In all aspects of reasoning, in all aspects of human understanding, these two gay boys were wrong – totally wrong,” he said.
“However, now that they have been sentenced, I as the president of this country have the powers to pronounce on them and therefore, I have decided that with effect from today, they are pardoned and they will be released.”
His comments came after a meeting with UN chief Mr Ban, who praised the decision as courageous.
But Ms Kaliati insisted that the president had not bowed to international pressure in releasing the men.
She said Malawi would not now reconsider its laws against homosexuality.
“We have our own rules and laws which we are following, and our own constitution. Our constitution is not the same as your constitution,” she said in her BBC interview.
Many of Britain’s former colonies have similar laws outlawing homosexuality – India overturned it last year.
In Uganda, MPs are debating whether to strengthen the laws to include the death penalty for some gay people – a move which has infuriated Western governments and human rights campaigners.
from The BBC

Angelique Naylor

DALLAS,TEXAS – After the joy of a wedding and the adoption of a baby came arguments that couldn’t be resolved, leading Angelique Naylor to file for divorce. That left her fighting both the woman she married in Massachusetts and the state of Texas, which says a union granted in a state where same-sex marriage is legal can’t be dissolved with a divorce in a state where it’s not.
A judge in Austin granted the divorce, but Texas Attorney General Greg Abbott is appealing the decision. He also is appealing a divorce granted to a gay couple in Dallas, saying protecting the “traditional definition of marriage” means doing the same for divorce.
A state appeals court is scheduled to hear arguments in the Dallas case on Wednesday.
The Dallas men, who declined to be interviewed for this story and are known only as J.B. and H.B. in court filings, had an amicable separation, with no disputes on separation of property and no children involved, said attorney Peter Schulte, who represents J.B. The couple, who married in 2006 in Massachusetts and separated two years later, simply want an official divorce, Schulte said.
The drawn-out process has been frustrating for Naylor, who says she didn’t file for divorce as an equal rights statement – she just wants to get on with her life.
“We didn’t ask for a marriage; we simply asked for the courtesy of divorce,” said Naylor, 39, of Austin, who married Sabina Daly in Massachusetts in 2004.
That year, Massachusetts became the first state to let same-sex couples tie the knot. Now, Connecticut, Iowa, New Hampshire, Vermont and the District of Columbia also allow them.
Gay and lesbian couples who turn to the courts when they break up are getting mixed results across the nation. A Pennsylvania judge last month refused to divorce two women who married in Massachusetts, while New York grants such divorces even though the state doesn’t allow same-sex marriage.
“The bottom line is that same-sex couples have families and their families have the same needs and problems, but often don’t have the same rights,” said Jennifer Pizer, a lawyer for Lambda Legal, a national legal organization that promotes equal rights for gay, lesbian, bisexual and transgender people.
“It really is an unenviable position that the courts have put these couples in,” said Karen Loewy, an attorney at the Gay and Lesbian Advocates and Defenders.
Abbott, a Republican seeking re-election, declined to be interviewed for this story. He has argued in court filings that because the state doesn’t recognize gay marriage there can be no divorce, but a gay or lesbian Texas couple may have a marriage voided. Attorneys representing such couples argue that voiding a marriage here could leave it intact in other states, creating problems for property divisions and other issues.
“OK, you’re recommending voidance, but how does that work?” asked Jennifer Cochran, Naylor’s attorney. “Is it only void in Texas and can you void a marriage that’s valid in another state? The attorney general I feel didn’t answer those questions.”
In 2005, Texas voters passed a constitutional ban on same-sex marriage by a 3-to-1 margin even though state law already prohibited it. Abbott has said he is appealing the Dallas divorce ruling for two men to “defend the traditional definition of marriage that was approved by Texas voters.”
Abbott disagrees with the judge in that case, who ruled in October that the same-sex marriage ban violates equal rights guaranteed by the U.S. Constitution.
Kelly Shackelford, chief counsel for the conservative Liberty Institute in Plano, called that decision “outrageous judicial activism.” The institute has filed a friend of the court brief to the appeals court on behalf of the two Republican state lawmakers who co-sponsored the amendment banning gay marriage: state Rep. Warren Chisum and former state Sen. Todd Staples.
“It’s a backdoor run at establishing same-sex so-called marriage against the people’s vote,” Shackelford said. “Once you grant the divorce, you are recognizing that there was a marriage.”
Dallas divorce attorney Tom Greenwald said he’s advising gay couples to wait and see how things play out in the courts.
“Getting the court of appeals to even accept the issue is a step in the right direction in getting some clarity on this,” he said. “We just don’t know how to treat it.”
As for Naylor and Daly – the latter declined to comment – they’ve been trying to figure out what to do since separating in 2007 amid escalating arguments.
The couple, who had real estate-related businesses and renovated homes, toyed with the idea of one of them moving to a state where gay marriage is legal until a divorce is finalized, but that didn’t seem practical.
Naylor said that eventually, she and Daly worked out a custody arrangement for their now 4 1/2-year-old son. Naylor said that when she heard about the Dallas divorce, she thought it was worth a try and filed for her own, even though several attorneys she spoke with weren’t so sure.
“They said it’s too up in the air, wait and see for appeals,” Naylor said. “I didn’t have a lot of time to wait and see.”
from The Associated Press

Mike Huckabee

WASHINGTON, D.C. – Mike Huckabee, a possible Republican presidential candidate in 2012, says the effort to allow gays and lesbians to marry is comparable to legalizing incest, polygamy and drug use.
Huckabee also told college journalists last week that gay couples should not be permitted to adopt. “Children are not puppies,” he said.
Huckabee visited The College of New Jersey in Ewing, N.J., last Wednesday to speak to the Student Government Association. He also was interviewed by a campus news magazine, The Perspective, which published an article on Friday.
Huckabee told the interviewer that not every group’s interests deserve to be accommodated, if their lifestyle is outside of what he called “the ideal.”
“That would be like saying, well there’s there are a lot of people who like to use drugs so let’s go ahead and accommodate those who want to use drugs. There are some people who believe in incest, so we should accommodate them. There are people who believe in polygamy, should we accommodate them?” he said, according to a transcript of the interview.
The 2008 presidential hopeful and former Arkansas governor also said that deciding which lifestyles should be accommodated and which ones should not creates a slippery slope.
“Why do you get to choose that two men are OK but one man and three women aren’t OK?” he asked.
Huckabee added that his goal isn’t to tell others how to live, but that the burden of proving that a gay marriage can be successful rests with the activists in favor of changing the law.
“I don’t have to prove that marriage is a man and a woman in a relationship for life,” he said. “They have to prove that two men can have an equally definable relationship called marriage, and somehow that that can mean the same thing.”
Since the magazine published the interview, Huckabee’s remarks have attracted considerable attention on the Web.
In a statement Tuesday, Huckabee said that while he believes what people do in their private lives is their business, “I do not believe we should change the traditional definition of marriage.” He also said he thought the college magazine was sensationalizing his “well-known and hardly unusual views of same-sex marriage.”
In response to a 1992 questionnaire from The Associated Press, Huckabee, then a Senate candidate in Arkansas, spelled out his opposition to homosexuality, saying it was crucial that the country not “legitimize immorality.”
“I feel homosexuality is an aberrant, unnatural, and sinful lifestyle,” he wrote, in response to a question about gays in the military.
He also advocated isolating AIDS patients from the general public, saying it was necessary to confine “carriers of this plague.”
As governor, Huckabee supported an Arkansas policy that prevented same-sex couples from serving as foster parents. On gay marriage, he said in an interview, “Marriage has historically never meant anything other than a man and a woman. It has never meant two men, two women, a man and his pet, or a man and a whole herd of pets.”
from The Associated Press

LOS ANGELES, CALIFORNIA – Los Angeles-based Love Honor Cherish carried out a volunteer-driven signature-gathering effort after large groups decided there was not enough time to ensure victory this year, even with some polls showing more than 50 percent support for same-sex marriage.
A 150-day period to gather signatures to place the question on the ballot ended on Monday.
Courts and state legislatures have legalized same-sex marriage in five U.S. states and the District of Columbia, but popular votes have always rejected such unions, which are illegal in the vast majority of U.S. states.
California voters in November 2008 ended a summer of court-allowed gay marriage by enacting a ban on same-sex unions by a 52 to 48 percent vote. The move by the trend-setting state enthused social conservatives and stunned lesbian, gay, bisexual and transgender supporters nationwide.
A San Francisco federal court now is weighing whether the U.S. Constitution prohibits Proposition 8, which defined marriage as a union of a man and a woman. That battle is expected to be appealed up to the U.S. Supreme Court.
“That trial I think is the most import single event in the modern LGBT equality movement,” said Rick Jacobs, head of the Courage Campaign, speaking of the gay and lesbian movement. His community organizing group considered a 2010 push but decided it was too soon.
“If the court rules that Prop 8 is unconstitutional, that is going to catalyze folks on both sides,” he said.
Many gay activists are wary of the Supreme Court bid, fearing conservative justices would not support their cause.
Love Honor Cherish Executive Director John Henning said if voters overturned Proposition 8 in 2012 — the next time a ballot measure could qualify — it could effectively take the issue out of the Court’s hands.
“I’d rather repeal Prop 8 than see the Supreme Court review it, given the current composition of the court,” Henning said.
from Reuters