9th Circuit refuses to lift stay of Prop 8 strikedown
The 9th U.S. Circuit Court of Appeals on March 23 refused a request from the American Foundation for Equal Rights and lawyers Ted Olson and David Boies that it lift its block on the August 2010 federal district court ruling that struck down Proposition 8.
U.S. District Judge Vaughn Walker had issued an injunction barring further enforcement of Prop 8 after finding that it violates the U.S. Constitution. The 9th Circuit, however, quickly "stayed" Walker's injunction, and his ruling has been tied up on appeal since.
Prop 8, passed by voters in November 2008, amended the California Constitution to halt same-sex marriage, which was legal in the state at the time.
Olson and Boies say the appeal process is taking too long, especially given a lengthy delay introduced into the case in February when the 9th Circuit punted to the California Supreme Court the question of whether the people who are appealing Walker's ruling -- the folks who put Prop 8 on the ballot -- actually have any right, under California law, to appeal.
None of the people who are defendants in the case -- including Gov. Jerry Brown and Attorney General Kamala Harris -- have an interest in appealing Walker's ruling or defending Prop 8. As a result, if the Prop 8 supporters are found to have no standing to appeal, then the 9th Circuit won't hear the case, Walker's ruling would take effect, and same-sex couples could marry again in California -- although the question of standing also could be appealed to the U.S. Supreme Court.
"The stay was originally ordered with the understanding that the 9th Circuit would rule swiftly on the case before it," said Olson. "Now that the issue of the (Prop 8) proponents' standing to appeal has been referred for analysis by the California Supreme Court, substantial additional, indefinite and unanticipated delays lie ahead. It's unreasonable and decidedly unjust to expect California's gay and lesbian couples to put their lives on hold and suffer daily discrimination as second-class citizens while their U.S. District Court victory is debated further."
The 9th Circuit apparently was unswayed by that line of reasoning, though it did not explain why.
On March 23, the judges ordered: "Having considered all of the factors set forth in Nken v. Holder ... and all of the facts and circumstances surrounding Plaintiffs' motion to vacate the stay pending appeal, as well as the standard for vacatur set forth in Southeast Alaska Conservation Council v. U.S. Army Corps of Engineers ... we deny Plaintiffs' motion at this time."
It was unclear if the phrase "at this time" was an indication that the court might see the matter differently at some future time.
For now, LGB Californians will wait for the California Supreme Court's answer to the 9th Circuit's question, which will be taken into consideration by the 9th Circuit judges when they decide whether to give the Prop 8 supporters federal standing to appeal and serve as defendants. The California Supreme Court has said it won't hear oral arguments on the matter until September at the earliest.
Equality California said it was "profoundly disappointed" by the 9th Circuit's refusal to let gays marry while the appeal moseys along.
"Today's ruling is a major setback for same-sex couples and their families who must continue living every day in legal limbo without the basic freedoms and protections guaranteed to them by our nation's Constitution," said Executive Director Geoff Kors. "Every day same-sex couples are denied the freedom to marry, their families suffer significant harm."
National Center for Lesbian Rights Legal Director Shannon Minter also was distressed by the development.
"We are deeply disappointed by the court's failure to lift the stay," Minter said. "A federal court held that Prop 8 is unconstitutional and that its continued enforcement causes serious harm to same-sex couples and their children. Without explanation, the 9th Circuit's ruling today allows that harm to continue. Every day that Prop 8 remains in effect, the state of California is harming families, sending a devastating message to LGBT youth, and perpetuating violence and discrimination against LGBT people."
Obama, Brazil champion OAS LGBT rapporteur
During a visit to Brazil on March 19, President Barack Obama joined with Brazilian President Dilma Rousseff to call for establishment of an LGBT rights "special rapporteur" at the Organization of American States.
In a statement issued three days later, the White House added: "President Obama believes that advancing the human rights of minorities and the marginalized is a fundamental American value. The president was pleased to announce during his trip to Brazil that he and President Rousseff agreed to promote respect for the human rights of lesbian, gay, bisexual and transgender individuals through the establishment of a special rapporteur on LGBT issues at the Organization of American States. This special rapporteur will be the first of its kind in the international system."
The OAS, which dates to 1948, comprises the 35 independent states of the Americas and is the principal political, juridical and social governmental forum in the hemisphere, according to its website. The OAS charter says the organization promotes peace, justice, solidarity and collaboration as well as members' sovereignty, territorial integrity and independence.
Stats: 42% of Americans live in states that recognize gay couples
Equality Matters reports that 42 percent of Americans now live in states that recognize same-sex couples' relationships, and that 30 percent live in states where marriage, civil unions or domestic partnerships give same-sex couples the same state-level rights as married people.
All gay couples, however, still are denied the more than 1,100 federal rights and benefits of marriage, because of the Defense of Marriage Act.
"(D)espite the best efforts of anti-gay groups and politicians, the LGBT community has made rapid progress across the United States," Equality Matters said. "As public support for marriage equality continues to rise, it's only a matter of time before every American has the right to have their loving commitments recognized and respected by their state and federal governments."
85 nations sign UN statement defending LGBT people
In what LGBT advocates described as "a stunning development for the principles of the Universal Declaration of Human Rights," 85 nations signed a pro-gay statement that was read out by Colombia's representative at the United Nations Human Rights Council in Geneva on March 22.
The statement "express(es) concern at continued evidence in every region of acts of violence and related human rights violations based on sexual orientation and gender identity" and "call(s) on states to take steps to end acts of violence, criminal sanctions and related human rights violations committed against individuals because of their sexual orientation or gender identity."
"Today's statement enjoyed the support of the largest group of countries to date on the topic of sexual orientation, gender identity and human rights," said several LGBT organizations and other "civil society" groups in a joint media release. "It builds on a similar statement delivered by Norway at the Human Rights Council in 2006 (on behalf of 54 states) and a joint statement delivered by Argentina at the General Assembly in 2008 (on behalf of 66 states). It is clear that every time these issues are addressed there is measurable increase in state support."
The nations that signed the statement are Albania, Andorra, Argentina, Armenia, Australia, Austria, Belgium, Bolivia, Bosnia-Herzegovina, Brazil, Bulgaria, Canada, Central African Republic, Chile, Colombia, Costa Rica, Croatia, Cuba, Cyprus, Czech Republic, Denmark, Dominica, Dominican Republic, Ecuador, El Salvador, Estonia, Fiji, Finland, France, Georgia, Germany, Greece, Guatemala, Honduras, Hungary, Iceland, Ireland, Israel, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Marshall Islands, Mexico, Micronesia, Monaco, Mongolia, Montenegro, Nauru, Nepal, Netherlands, New Zealand, Nicaragua, Norway, Palau, Panama, Paraguay, Poland, Portugal, Romania, Rwanda, Samoa, San Marino, Serbia, Seychelles, Sierra Leone, Slovakia, Slovenia, South Africa, Spain, Sweden, Switzerland, Thailand, Timor-Leste, Tuvalu, Ukraine, United Kingdom, United States of America, Uruguay, Vanuatu, Venezuela, and the Former Yugoslav Republic of Macedonia.
Nigeria's representative spoke against the statement, purportedly on behalf of the council's Africa Group. The representative said the terms "sexual orientation" and "gender identity" are undefined, talked about God, and said it takes a man and a woman to make a baby. At the end, however, he said that laws that criminalize sexual orientation should be expunged.
Pakistan also spoke against the statement on behalf of an official bloc of 57 majority-Muslim nations. Russia opposed the statement, as well, saying it rejects discrimination and violence against LGBT people but should be allowed to limit rights for reasons of public morality. The representative reportedly said that "these people" should not be granted special rights.
The media release heralding the UNHRC statement was issued by ARC International, the International Commission of Jurists, Amnesty International, Human Rights Watch, COC Netherlands, the Coalition of African Lesbians, Global Action for Trans Equality, the International Gay and Lesbian Human Rights Commission, Heartland Alliance for Human Needs & Human Rights, the International Day Against Homophobia and Transphobia, and Thailand's Sexual Diversity Network.
In a separate U.S. statement, Human Rights Campaign President Joe Solmonese said: "The (Obama) administration has laudably reaffirmed its commitment to the philosophy that LGBT rights are human rights by joining today's statement before the U.N. Human Rights Council. With over 80 nations jointly participating in the statement, the message is clear that hate violence against LGBT people should not be tolerated by any government."
ILGA, the International Lesbian, Gay, Bisexual, Trans and Intersex Association, called the statement "a very significant step forward towards international consensus on LGBTI people's rights."
"The strength of this statement makes the defense of discrimination against lesbians, gays, bisexual, trans and intersex people on the basis of a mistaken sense of 'tradition' or 'natural order' more untenable than ever," said the group's co-secretary general, Renato Sabbadini. "Homophobia and transphobia are more and more acknowledged for what they truly are: the last crumbling pillars of a patriarchal order which belong with other dark pages of our past, like slavery and the Inquisition."
ILGA noted that more nations of the Southern Hemisphere signed this year's statement, and it highlighted the signatures of Dominica, Honduras, Central African Republic, Rwanda, Sierra Leone, and Seychelles.
A statement from the White House said, in part: "Over the past months our diplomats have been engaged in frank, and at times difficult, conversations about the human rights of LGBT persons with governments from around the world. This morning, at the United Nations Human Rights Council, some 85 countries joined the United States in reaffirming our joint commitment to end acts of violence and human rights abuses on the basis of sexual orientation and gender identity. The president is proud of the work we have done to build international consensus on this critical issue and is committed to continuing our determined efforts to advance the human rights of all people, regardless of their sexual orientation or gender identity."
The U.S. State Department said, "This statement adds new references not seen in previous LGBT statements at the U.N., including: welcoming attention to LGBT issues as a part of the Universal Periodic Review process, noting the increased attention to LGBT issues in regional human rights fora, encouraging the Office of the High Commissioner for Human Rights to continue addressing LGBT issues, and calls for states to end criminal sanctions based on LGBT status."
The Human Rights Council is an intergovernmental body within the United Nations system made up of 47 states that aims to strengthen and protect human rights worldwide.
Assistance: Bill Kelley
