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04/19/2007


What To Watch For in Today's Tenth Circuit Court Marriage Hearing on the Utah Gay Marriage Ban

By ARI EZRA WALDMAN

TenthcircuitThe Denver-based Tenth Circuit Court of Appeals (pictured) is hearing arguments today in Kitchen v. Herbert, the federal case challenging Utah's ban on gays marrying. It is the first in a line of nearly 65 marriage lawsuits speeding their way through the federal and state judiciaries and, therefore, may be the one case to reach the Supreme Court and be the vehicle to determine whether we have a nationwide right to marry.

In December of last year, Judge Richard Shelby issued a broad ruling, holding that marriage discrimination violated both the Equal Protection and Due Process Clauses of the Fourteenth Amendment. It was the first same-sex marriage ruling after the Supreme Court's decision in Windsor and Judge Shelby relied heavily on that pivotal case. In fact, he seems to have set the tone for how the lower federal courts are interpreting and using Windsor. Shelby himself found that Windsor required some level of scrutiny higher than simple rational basis; other courts have found that it demanded heightened review. All courts have essentially found that Windsor made marriage discrimination pretty much untenable. 

It was, then, the second domino after Windsor.

There are a few things to watch for in this closed-door hearing.

1. Will the court issue a ruling as broad as Judge Shelby's or limit it in some way?

2. What, if anything, does the court say about the required level of scrutiny in antigay discrimination cases?

3. Will the political backgrounds of the judges play a role in their decision making?

Let's turn to each of this questions briefly AFTER THE JUMP.

Continue reading "What To Watch For in Today's Tenth Circuit Court Marriage Hearing on the Utah Gay Marriage Ban" »


Tenth Circuit to Hear Challenge to Utah's Gay Marriage Ban Tomorrow: A Preview of the Players

BY LISA KEEN / Keen News Service

The Tenth Circuit U.S. Court of Appeals this week will become the second federal appeals court to tackle the question of whether statewide laws banning same-sex couples from marrying violate the U.S. Constitution.
The Denver-based court will hear oral arguments Thursday, April 10, at 10 a.m. MDT in the Utah same-sex marriage case Herbert v. Kitchen.

ShelbyBy order of the court, there will be no audio or video recording, broadcasting, photography, blogging, tweeting, emailing or any other broadcast mechanism or wireless communication anywhere in the courthouse during oral arguments.

In that crowded courtroom, a three-judge panel will scrutinize the decision last December of U.S. District Court Judge Robert Shelby (pictured, an Obama appointee). Shelby ruled that the state constitution’s definition of marriage as being only between “a man and a woman” is not permissible under the U.S. Constitution. He said the law’s prohibition of same-sex couples marrying violates the due process and equal protection guarantees of the U.S. Constitution. He said the ban denies gay and lesbian citizens their “fundamental right to marry and, in doing so, demean[s] the dignity of these same-sex couples for no rational reason.”

While this case is the first to reach a federal appeals court since the Ninth Circuit heard Brown v. Perry in 2012, it is just one of almost a dozen that have reached the federal appeals level. They are spread across five circuits. The Utah Kitchen case is a pacesetter at the moment. And here’s a look at the players in Thursday’s hearing:

TenthcircuitThe judges: The three-judge panel tasked with hearing the appeal includes two Republican and one Democratic appointee.

Judge Paul Kelly (an appointee of President George H.W. Bush) is considered conservative.

Judge Carlos Lucero (a Clinton appointee) is considered liberal. But both judges voted with the majority at the Tenth Circuit in the Hobby Lobby v. Sebelius case. They said the owners of the retail store were allowed, under the federal Religious Freedom Restoration Act and the First Amendment free exercise clause, to cite their religious beliefs in order to deny contraceptive services in their health plans under the Affordable Care Act.

Judge Jerome Holmes (a George W. Bush appointee) is the wild card. He was recused from the Hobby Lobby case. He was one of two judges in the Tenth Circuit to deny an emergency request from the state of Utah to stay a district court decision pending appeal. They said a stay was “not warranted.”

The attorneys: Attorneys for the two parties in the case – the state of Utah and the plaintiff couples—have 30 minutes each to present their arguments.

TomsicPeggy Tomsic, a lawyer at the private Salt Lake City firm of Magleby & Greenwood, will be presenting arguments for the plaintiff couples. According to the Salt Lake City Tribune, Tomsic asked her life partner Cindy Bateman to marry her shortly after Shelby issued his decision. She and her law firm partner Jim Magleby (straight and married) are known for taking on large, complicated cases. Most recently, they won a $134 million award against PacificCorp, one of the leading utility companies on the west coast.

SchaerrGene Schaerr, who was hired by the state attorney general’s in January specifically to lead Utah’s defense of the marriage ban, will argue for the state and Governor Gary Herbert. Schaerr resigned his partnership at a private law firm to become Special Assistant Attorney General for Utah. In a memo to his firm upon his departure, Schaerr said he was leaving to “fulfill what I have come to see as a religious and family duty: defending the constitutionality of traditional marriage in the state where my church is headquartered and where most of my family resides.” Schaerr has been a sometimes contributor to the Mormon magazine Meridian, including an article urging opposition to a marriage equality ballot measure in Maryland in 2012.

KitchenThe plaintiffs:

The three plaintiff couples are Derek Kitchen and Moudi Sbeity (pictured), who have not yet married; Laurie Wood and Kody Partridge, who married in Utah during the brief window of opportunity this year; and Kate Call and Karen Archer, who obtained a marriage certificate in Iowa.

The organizer behind the lawsuit is Mark Lawrence, director of Restore Our Humanity, a group established specifically to mount this lawsuit. According to a profile in the Salt Lake City Tribune, Lawrence, an information technology specialist who lives with his parents to care for his father who has Alzheimer’s, was inspired by the Proposition 8 lawsuit to tackle something similar here.

After Thursday’s hearing, the 10th Circuit has also scheduled oral arguments in another marriage equality case: Bishop v. Smith out of Oklahoma. That will be on April 17.

On May 12, the Fourth Circuit U.S. Court of Appeals will hear oral argument in Bostic v. Schaeffer, a case led by Ted Olson and David Boies for the American Foundation for Equal Rights and a team of attorneys against Virginia’s ban.

The Sixth Circuit has four marriage equality appeals pending before it, and one of those, Michigan, just asked the court to skip over the three-judge panel phase and go directly to a full “en banc” review. If the Sixth Circuit agreed, that could enable the Michigan case to reach the U.S. Supreme Court before Utah. But getting to the high court first does not guarantee the justices will choose that case to decide the issue at stake in all these cases: whether states can deny same-sex couples the right to marry.

© 2014 Keen News Service. All rights reserved.

More on this case soon from our legal editor Ari Ezra Waldman...


The Fall of Brendan Eich Happened Without Us

By ARI EZRA WALDMAN

Brendan-eich-mozilla-firefox-squareBrendan Eich is no longer the CEO of Mozilla. His tenure was short. But if you believe the media swarm surrounding his quick departure, you would think he left in a blaze of burned bridges and violent protests. I must have missed all that. Mr. Eich was asked to step down because the members of his board of directors made the decision that he could no longer govern their company. That's how boards are supposed to work.

There was no mainstream gay rights organization calling for his head. No one "bullied" Mr. Eich out of Mozilla's headquarters. To say so is an insult to those of us who have been bullied in real life. And no cabal of intolerant gays proclaimed that disagreement with us merits unemployment. That seems to be a bogeyman conjured up in the prolific brain of Andrew Sullivan.

Although this was a legitimate board decision, Mr. Eich did do two things wrong: He took actions that were specifically intended to harm others and he made it worse by refusing to discuss those actions. Those who turned to demonize a straw man of intolerant "gay activists" miss these two facts.

Their argument is essentially about tolerance for evolving opinions and it goes as follows: We cannot punish people for simply disagreeing with us. If we do, we become no better than intolerant conservatives who hate us simply because of who we love. It would have been better to teach Mr. Eich, to sit down with him like mature adults and make our case, thereby showing him that he, like millions of other people, were wrong about us.

Let me say that I agree. I am a proponent of guiding our former opponents on a path toward acceptance with calm, cool rhetoric and a mature approach. I wrote about it here, with respect to Senator Rob Portman's evolution on gay marriage. But it is not clear to me how we can discuss something with someone who refuses to come to the table. Plus, this is not a matter of having differing opinions. Mr. Eich made a jump from having an opinion to taking actions to hurt another group of people. To assert the equivalence of belief and action is not only plain wrong, it is inconsistent with how free speech norms have developed in this country.

This story, then, boils down to three simple facts:

1. Mozilla's Board of Directors did exactly what boards are supposed to do;

2. Mr. Eich took actions that made him unfit to lead a unique community like Mozilla; and

3. Actions have consequences.

CONTINUED, AFTER THE JUMP...

Continue reading "The Fall of Brendan Eich Happened Without Us" »


Gay Man Sues America's Cup for Wrongful Termination, Says Officials Mocked His Sexuality

Larry Jacobson, a motivational speaker and gay former America's Cup employee, is suing the yacht race for wrongful termination stemming from a few incidents in which he was subjected to harassment because he is gay, according to a report on the suit in the Bay Area Reporter:

JacobsonIn his civil complaint filed March 13 in San Francisco Superior Court, Larry Jacobson, who worked as a VIP spectator boat captain during the races last summer, says one man made a limp wrist gesture at him, while another called him a "poof," a derogatory term for homosexual.

However, a former supervisor told the Bay Area Reporter that Jacobson had "pushed his sexuality very hard" and had been "inappropriate."

Jacobson is claiming sexual orientation discrimination, failure to pay overtime, and failure to pay wages upon discharge, among other complaints. He's seeking unlimited damages exceeding $25,000.

Going into more specifics on the incidents, the article continues:

"Although initially friendly to Mr. Jacobson, Mr. Hindley (chief operating officer for America's Cup Race Management) and Mr. Bennett (America's Cup director of on-water operations) became cold and unfriendly toward him," the complaint says.

Jacobson claims that in August, he approached Hindley to request that he be considered for doing break down work once the regatta was over.

Hindley "made a 'limp wrist' gesture" and said, "People like you, don't want work like that," Jacobson claims, and he didn't get the job.

Then, at a party in September, Bennett told friends, "That's our poof," referring to Jacobson, according to the complaint. Bennett lives primarily in New Zealand, where "poof" is a derogatory term for gay men.

On September 12, the filing says, "without warning, and in blatant breach of his contract," Jacobson "was summarily terminated without legal cause or justification." Bennett and Hindley made the termination decision, Jacobson claims.

More on the lawsuit at BAR...


Thursday Morning Speed Read: Mississippi, Lesbian Chef, Tammy Baldwin, New Mexico, Scrutiny Rehearing

BY LISA KEEN / Keen News Service

MississippiLGBT RALLY FOR VETO:

LGBT groups will hold a rally on the lawn of the State Capitol in Jackson, Mississippi, at noon CDT today, in protest over the passage of a religious bias bill by the state legislature Tuesday. The groups, which include the national Human Rights Campaign, Equality Mississippi, and the Mississippi Gulf Coast Lesbian and Gay Community Center, among others, will also hold a candlelight vigil this evening. As of Wednesday night, Republican Governor Phil Bryant has said he will sign the bill.

COURT UPHOLDS LARGE AWARD:

A state appeals court in New York on March 20 upheld a $1.6 million award to a lesbian chef whose boss who made repeated anti-gay statements, including saying all gay people were going to hell. A lower court judge granted the award for Mirella Salemi in 2012 against Edward Globokar, who owned the Manhattan restaurant at which she worked. The appeals panel said Globokar’s actions violated the New York City Human Rights Law by staging mandatory prayer meetings at work and “subjecting [Salemi] to an incessant barrage of offensive anti-homosexual invective.”

BaldwinBALDWIN INTROS FAIR EMPLOYMENT BILL:

U.S. Senator Tammy Baldwin also introduced the Fair Employment Protection Act (FEPA) March 13, to improve the law for the victims of workplace harassment. FEPA is specifically aimed at expanding an employer’s liability for workplace harassment. Under Title VII of the Civil Rights Act, an employer’s liability for harassment perpetrated by a supervisor is greater than if perpetrated by another employee. But last June, the U.S. Supreme Court ruled that for a court to consider an employee a supervisor, the employee authorized to take tangible actions against an harassment victim. If the Employment Non-Discrimination Act (ENDA) is ever passed, LGBT workers would be able to benefit from the anti-harassment laws strengthened by FEPA.

NewmexicoNEW MEXICO BLASÉ:

A Public Policy Polling survey of 674 registered voters in New Mexico between March 20 and 23 found that 76 percent said the legalizing of marriage for same-sex couples has had either no impact or a positive impact on their lives. The poll also found voters closely split on whether they support (47 percent) or oppose (45 percent) allowing same-sex couples to marry. The margin of error was plus or minus 3.8 percent.

SCRUTINY DECISION RE-HEARING?:

At least one judge on the Ninth Circuit U.S. Court of Appeals bench has asked the full appeals court to review an historic panel ruling in January that said the U.S. Supreme Court’s decision in U.S. v. Windsor, which struck the Defense of Marriage Act, “requires that heightened scrutiny be applied to equal protection claims involving sexual orientation.” The court last week asked both parties in SmithKline v. Abbott to submit briefs on whether the case should be reheard by the full court. But Jon Davidson, legal director for Lambda Legal, he seriously doubts a majority of the Ninth Circuit would vote to rehear the case.


Tuesday Morning Speed Read: Darrin Gayles, Staci Yandle, SCOTUS, Indiana, Uganda, Mike Michaud

BY LISA KEEN / Keen News Service

NOMINEE HEARING TODAY:

President Obama’s openly gay African American nominee for the U.S. District Court in Miami goes before the Senate Judiciary Committee this morning. A Committee spokesperson said both of Florida’s senators have indicated they support state circuit court Judge Darrin Gayles.  President Obama dropped another openly gay African American nominee for Miami in January after Senator Marco Rubio objected to the nomination.

YandleLESBIAN NOMINEE GRILLED:

President Obama’s nomination of openly lesbian African American Staci Yandle for the U.S. District Court in southern Illinois was up for a Committee vote last Thursday. But the committee held over her nomination and that of four others in a group of 10. Her nomination is now slated for a committee vote this Thursday.

REWRITING WINDSOR?

Two Republican members of the Senate Judiciary Committee submitted questions in writing for federal court nominee Staci Yandle. Senator Charles Grassley grilled her over how she would interpret the Supreme Court’s ruling in U.S. v. Windsor, which overturned DOMA. Several LGBT legal activists said Grassley’s goal seemed to be to promote a narrow interpretation of Windsor. “They are trying to get her to say that the federalism discussion in Windsor means that the federal courts should not strike down state marriage bans – that they don’t have the authority to do so,” said GLAD Civil Rights Director Mary Bonauto.  Evan Wolfson, head of the national Freedom to Marry, noted that Grassley “chose not to ask about the explicit passages in the [Windsor] decision making clear that the ruling turned on equal protection, not federalism.” Lambda Legal’s Eric Lesh said Grassley has made the Windsor questions a routine line of inquiry for all federal court nominees now.

ElanephotographySUPREME BYPASS:

The U.S. Supreme Court, for two weeks in a row, has given no indication of whether it will hear a New Mexico dispute pitting New Mexico’s non-discrimination law against a commercial photographer’s claim that she has a First Amendment right to deny public accommodations to a same-sex couple based on her religious beliefs. The photographer filed Elane Photography v. Willock in November. The case was on the relatively short lists for the justices to discuss in private conference March 21 and 28. But on the subsequent Mondays, when the court announced which cases it would and would not take, Elane was not mentioned. The next conference is April 4.

IndianaSEEKING RELIEF IN INDIANA:

Lambda Legal on Monday filed an emergency motion in federal district court seeking an order that would allow a lesbian couple’s marriage to be recognized by Indiana. In the motion, Lambda adds couple Niki Quasney and Amy Sandler to the plaintiffs in its Baskin v. Bogan lawsuit challenging the state’s ban on same-sex couples marrying. Quasney and Sandler were married in Massachusetts last August. Quasney has late-stage ovarian cancer and is concerned that, without a court order to recognize their marriage, their children will be “denied important benefits” upon Quasney’s death and Sandler will be considered a legal stranger.

UGANDAN CHILDREN IN SONG:

Thousands of people turned out yesterday in the capital city of Uganda to stage a “thanksgiving” celebration for President Yoweri Museveni’s signing of the Anti-Homosexuality Act in February. According to an Associated Press report, many in the crowd were schoolchildren “who sang and danced to anti-gay tunes that also railed” against U.S. and European countries.

HRC STAFFER JOINS MICHAUD CAMPAIGN:

The Human Rights Campaign’s associate director of communications, Dan Rafter, left that organization to take over Monday as communications director for U.S. Rep. Mike Michaud’s gubernatorial campaign in Maine.


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