National Geographic

Yesterday the Log Cabin Republicans filed a brief with the Ninth Circuit Court demanding the immediate end of DADT. The ban on openly gay soldiers remains in place while the Pentagon "certifies" that its repeal won't harm military effectiveness.

[Log Cabin] said that keeping the ban in place after President Barack Obama signed an order to repeal it is “absurd”. The group argues that it is unconstitutional for Congress to allow the military to keep the ban while it trains troops to deal with the change after lawmakers have repealed the policy. President Obama pledged to repeal the 1993 law in his 2008 election campaign but was criticised by gay groups for being slow to act. In December, the US Senate finally voted to repeal the 17-year ban, which is known as ‘Don’t Ask, Don’t Tell’ because it requires gay and lesbian troops to keep their sexuality secret.

Last year 261 soldiers were discharged under DADT.

Today the Ninth Circuit Court of Appeals denied the request to vacate their stay on the overturn of Proposition 8 and allow the resumption of same-sex marriages in California.

Federal Judge Vaughn Walker ruled last year that Proposition 8 was unconstitutional and ordered that same-sex weddings be allowed to resume. That decision was appealed to the Ninth Circuit, where the case is tied up on a legal question the panel asked the California Supreme Court to rule upon: Do Prop. 8 sponsors have legal standing to defend the law in court when the state will not. The order [to deny] was filed by judges Stephen R. Reinhardt, Michael Daly Hawkins and N. Randy Smith.

California Attorney General Kamala Harris today filed a request with the Ninth Circuit Court of Appeals, demanding that they lift their stay on the overturn of Proposition 8 and immediately allow the resumption of same-sex marriages.

Attorney General Harris said it is unlikely that an appeal will succeed in overturning Judge Walker's ruling that Proposition 8 is unconstitutional. The appeal's likelihood of success has been substantially diminished, Attorney General Harris said, "both by the United States Attorney General's conclusion that classifications based on sexual orientation cannot survive constitutional scrutiny and by this Court's certification order to the California Supreme Court, which seriously questions the Court's jurisdiction to decide the merits of the case."

In addition, Attorney General Harris said, "there is no injury that the proponents of Proposition 8 will suffer if same-sex couples are permitted to enter into civil marriages in California." But as long as the stay on same-sex marriages remains in effect, Attorney General Harris said, the due process and equal protection rights of same-sex couples will continue to be violated, perpetuating unconstitutional discrimination and making a stay of Judge Walker's ruling legally inappropriate.

Former Gov. Arnold Schwarzenegger also filed a brief today with the same request.

Even though the Imperial County idiots were essentially laughed out the courtroom on their last attempt, they are trying again and the newly elected county clerk has filed a request to defend Proposition 8 before the Ninth Circuit Court of Appeals. Via Rex Wockner, here's the just-posted notice.

Date: Fri, 25 Feb 2011 08:16:32 -0800
From: ca9_ecfnoticing@CA9.USCOURTS.GOV

United States Court of Appeals for the Ninth Circuit
Notice of Docket Activity

The following transaction was entered on 02/25/2011 at 8:16:30 AM PST and
filed on 02/25/2011
Case Name: Kristin Perry, et al v. Arnold Schwarzenegger, et al
Case Number: 10-16751

Docket Text:
Submitted (ECF) Intervenor brief for review and filed Motion to
intervene. Submitted by Chuck Storey. Date of service: 02/25/2011.
[7659627] (RHT)

UDPATE: Legal costs for Imperial County are being paid by the anti-gay Advocates For Faith & Freedom.

The American Foundation for Equal Rights (AFER) has asked the Ninth Circuit Court of Appeals to lift their stay on the overturn of Proposition 8, saying any delay "can no longer be justified."

Here's a portion of their request:

Today, the American Foundation for Equal Rights (AFER) and its legal team — led by Theodore B. Olson and David Boies — filed a motion with the United States Court of Appeals for the Ninth Circuit asking that the Court immediately lift an order preventing gay and lesbian couples from marrying in California. That order, issued in August 2010, stayed the injunction issued by the U.S. District Court that barred further enforcement of Proposition 8. This comes on the heels of a request last Thursday by AFER to the California Supreme Court to expedite the hearing of questions relating to the standing of Proponents to maintain an appeal in federal court. AFER’s attorneys urged the California Supreme Court to hear arguments in May, rather than September.

“We are respectfully asking the Court to lift its stay on marriage for gay and lesbian couples because it has become apparent that the legal process is taking considerably longer than could reasonably have been anticipated,” said Theodore B. Olson, co-lead counsel for AFER. “It’s important to remember that the stay was originally ordered with the understanding that the Ninth Circuit would rule swiftly on the case before it. Now that the issue of the 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.”

NOTE: This move may not be related to today's news from AG Eric Holder as AFER yesterday announced that they'd have major news today.

Today the San Francisco Chronicle reports:

Chief Justice Tani Cantil-Sakayue says the California Supreme Court will decide soon, maybe next week, on whether to enter the Proposition 8 gay marriage fray. The 9th U.S. Court of Appeals said last month that it cannot decide if the gay marriage ban is constitutional until the state high court weighs in on whether proposition sponsors have authority to defend the measure. A three-judge panel asked the California Supreme Court to decide if ballot proposition backers can step in to defend voter-approved initiatives in court when state officials refuse to do so. The panel suggested it would have to dismiss the case if there's no state high court input.

If I'm reading this right, the Court is going to decide if it wants to decide.

Late yesterday the Ninth Circuit Court of Appeals denied the federal government's request that they suspend the Log Cabin Republicans' lawsuit seeking the repeal of DADT.

The opposed motion to hold these appeals in abeyance is denied. The briefing schedule is reset as follows: the government's opening brief and excerpts of record are due February 25, 2011; Log Cabin Republicans' answering brief and supplemental excerpts of record are due March 28, 2011; and the government's reply brief is due 14 days after service of the answering brief. The pending motions filed by proposed intervenor Joseph Zernik shall be addressed by separate order.

"It’s time to think out of the box, and we can succeed. Just this past year, we notched a huge victory in Iowa against the three judges that superseded the will of the people by imposing their own agenda upon the Constitution. Christians have a warrior in Bob Vander Plaats, who led the fight that resulted in sending three judges home after they grossly overreached their constitutional role in redefining marriage. We must show other judges who have forgotten the constitutional constraints that there are consequences for their actions. Make your voice heard. Watch your email for our ReAL Action Alert. We’re going to tell the Ninth Circuit that their services are no longer required." -Rick Tyler, chairman of Newt Gingrich's Renewing American Leadership, saying his group will somehow eliminate the entire Ninth Circuit Court of Appeals.

The Christianist blogosphere is roiling with anger this week over the Ninth Circuit Court's ruling that San Diego's Mt. Soledad Cross violates the separation of church and state. The status of the cross has been the subject of lawsuits for decades. In 2007, the California Supreme Court ruled that it was constitutional for the city to transfer the land under the cross to the federal government. This week the Ninth Circuit overturned that decision.

CORRECTION: In the first version of this post, I wrongly attributed the above quote to Pastor Jim Garlow of Skyline Wesleyan Church in San Diego, who is part of Gingrich's group. In fact, Garlow will be leading the planned protest against the Ninth Circuit Court's decision. My apologies.

Here's the ruling. Analysis and reactions shortly.