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GAY SAN DIEGO December 17-30, 2010

Judges hint at Prop. 8 case twists and turns Justices hear three hours of oral arguments

By Rex Wockner | Special to GSD The effort to undo California’s

Proposition 8 inched forward Dec. 6 when a three-judge panel of the 9th U.S. Circuit Court of Appeals entertained nearly three hours of oral arguments from the attorneys in the case. In an ornate courtroom on

the third floor of San Francisco’s historic James R. Browning U.S. Courthouse, amid murals, stained glass and statues dating to 1905, the attorneys replayed some of their main arguments and the judges offered hints of where the case might go.

Lawyers for the gay and les- bian defense, who include famed attorneys Ted Olson and David Boies, sought to defend U.S. District Judge Vaughn Walker’s ruling from August that Prop. 8 violates the U.S. Constitution’s guarantees of equal protection and due process. They also argued that the par-

ties who brought the appeal to the 9th Circuit—the activists who cre- ated Prop. 8 and the deputy county clerk of Southern California’s dusty Imperial County—have no legal “standing” to have mounted this appeal of Walker’s ruling. Those parties are trying to

defend Prop. 8 because all the public officials who were sued in


“no prosecution was imminent.” Nicole Murray-Ramirez, who

wrote a column in the Gay and Lesbian Times for many years, said Portantino’s financial and legal troubles were a result of him try- ing to keep his publication afloat. “He was really depressed the last time he talked to me, and said he should have just shut the paper down (earlier),” Murray-Ramirez said. “The paper was his other baby, and he thought he was a failure.

“I think his legacy is going to be that he helped out the commu- nity,” Murray-Ramirez stressed. “He made sure he supported all the nonprofit organizations through advertising.” Portantino is survived by his

family, which includes: daughters Tatiana and Samantha, mother Barbara Portantino, brother and 44th District state Assemblymem- ber Anthony Portantino, brother Phil Portantino

of New Jersey

and sister Mary Ann Portantino Doran of Georgia.

In a statement, the Portan- tino family expressed grief at his passing.

“Michael Portantino was a fighter his entire life,” the state- ment read. “He provided tireless and unmatched support for the LGBT community and advocated for respect and dignity for all Californians. As a father, brother and son he valued his family and friends. He made us laugh, he made us think and sometimes he even made us angry as he chal- lenged us all to live our lives to their fullest potential and with complete obligation to touch one another for the betterment of our

the case—including Gov. Arnold Schwarzenegger and Attorney General (and Gov.-elect) Jerry Brown—have refused to defend the voter-passed state constitu- tional amendment that re-banned same-sex marriage in November 2008, after it had been legal for 4 1/2 months and after 18,000 same-sex couples had married. It is unclear if the court will grant the Prop. 8 proponents or Imperial County standing to allow the appeal to move forward. The judges seemed unimpressed by Imperial County’s desire to be let into the case. Among other things, they seemed annoyed that the deputy county clerk, rather than the actual clerk, is pursuing the move.

As to whether the people who

put Prop. 8 on the ballot should be allowed to step into the shoes of the state government and de- fend a piece of the state constitu- tion that the state itself refuses to defend, the judges hinted that they might bounce that question off of the California Supreme Court to see how it feels about the idea. If the 9th Circuit does that, it could delay appellate rul- ings on both the standing issue and the merits of Judge Walker’s decision.

On the merits, Olson told the judges that California has


Co-lead counsel of the legal team challenging California’s same-sex marriage ban, David Boies (standing) argues during a hearing in the Ninth Circuit Court of Appeals, Dec. 6, 2010, in San Francisco. (AP Photo/Eric Risberg, Pool)

unconstitutionally “taken a class of citizens and put them in a separate category.” California gives same-sex couples all the rights and obligations of marriage under a domestic-partnership law, but prohibits gay and lesbian couples from marrying. Under another law, gay couples who go get married somewhere else also receive all the California rights of marriage but are prohibited from calling their union a marriage in California. Yet other gay couples, who got married in California or somewhere else before Prop. 8 passed, are considered to be mar- ried in California and are permit- ted to use the word marriage. All of this confusion amounts to discrimination and harms gay and lesbian Californians, Olson said. There is no legal or rational basis for it and it cannot be “justi- fied,” he added.

“California has built a fence

around its gay and lesbian citi- zens and around the institution of marriage,” Olson told the judges. “That is a violation of the equal- protection clause and it’s a viola- tion of the due-process clause.” Attorney Charles Cooper for

the Prop. 8 proponents told the judges that his case in defense of Prop. 8 centers on “procreation.” In Cooper’s view, it is rational for the state to limit marriage to men and women because the reason marriage exists in the first place is because sex be- tween men and women produces children. The state, he suggested, has a unique interest in human unions that are procreative. At the end of the day, court- watchers were talking about three things that piqued their curiosity during the oral argu- ments: Will the case be delayed so

County Supervisor Ron Roberts, endorsing Roberts’ bids for re- election over Democrats and an openly gay candidate, despite pressure from some segments of the community. In editorials and “Publishers Point” pieces Portan- tino underscored Roberts’ early and continued support for the LGBT community. “Michael Portantino was a

Michael Portantino with then San Diego City Council candidate Toni Atkins (center) and City Councilmember Christine Kehoe in 1999.

neighborhoods, communities and country. We have suffered a great loss and pray for Michael as he will no longer be with us in body. We have all been touched by his spirit and passion and we hope that he is remembered for the positive role he played in all our lives.” Elected officials in San Diego

and throughout the state, many of whose candidacies benefited from articles and endorsements in the Gay & Lesbian Times, responded to news of Portantino’s passing. The San Diego City Council

adjourned its last meeting of 2010 on Dec. 14 in memory of Portan- tino. Third District Councilmem- ber Todd Gloria said the publisher would be “deeply missed and left us far too soon.” “Michael was really an advo- cate for our community locally,” Gloria said. “When I first came to know him was when he and a

series of other community leaders came together at a time when our (LGBT) Community Center was failing financially. Michael made a personal financial commitment to keep the doors open and what has allowed the San Diego LGBT Center to still operate today—bet- ter, stronger than it’s ever been. It was Michael and others who came together and made that happen. “Over the years, he donated

probably more than $1 million dol- lars worth of free advertising to charities and other groups, good causes, in his newspaper. He did that without a great deal of fanfare. He did it because it was right.” “It’s easy to eulogize people, to make them larger than life,” Glo- ria said. “It’s kinda hard to do that to Mike because he was larger than life,” Gloria added, smiling. Portantino had a longstand- ing friendship with Republican

brave entrepreneur,” Roberts said. “His risky decision 21 years ago to invest in and publish a well-round- ed LGBT newspaper changed San Diego for the better. He was a good friend and shared with me in those early days both his vision and busi- ness challenges. Our friendship included many discussions about raising daughters. We often shared stories, which were frequently hu- morous, about our girls. Michael’s pride in his daughter was monu- mental. I was so proud of his suc- cesses and then dismayed by the struggles at the end. The loss of Michael is a tragedy and his voice already is missed.”

Noting that community leaders and elected officials were some- times at odds with the stances Por- tantino took in his editorial page, Democratic Assemblymember and former Deputy Mayor Toni Atkins said, “Michael and I had occasion to agree and to disagree. I never doubted his passion, sincerity or commitment. I respected Michael for his convictions. My heart goes out to his family and especially his daughter Tatiana, who he loved with all his being.” Also expressing condolences

were Assembly Speaker John John Pérez (D-Los Angeles), As- semblymember Tom Ammiano (D-San Francisco) and state Sen. Christine Kehoe (D-San Diego). Roman Jimenez served as a

sports columnist for the Gay & Lesbian Times from 2006 to 2008,

the 9th Circuit panel can sound out the California Supreme Court on the question of whether people who put initiatives on the ballot should be able to defend those initiatives when they are struck down by courts? Re- gardless of whether the judges seek advice from the California Supreme Court, the case cannot proceed if the 9th Circuit decides that neither the Prop 8 propo- nents nor Imperial County has legal standing to appeal. If they do not, Walker’s ruling striking down Prop 8 would come back into force.

In hearing the appeal of

Walker’s ruling, will the 9th Circuit rely solely on Walker’s expansive trial record, which seems to demolish most of the myths, lies, arguments and opinions that historically have

see Prop. 8, pg 29

and as editor-in-chief of one the GLT’s biggest competitors, the now-defunct Update.

“He was the kind of guy you hated to go up against, but sure wanted on your team if you were going into a fight,” Jimenez said. “While he was no saint, I believe his legacy will be that he gave to our community much more than he got from it, and whenever some- one like that goes, the community as a whole is a little poorer for it.” Sharon K. Parker served as

president of San Diego’s Lambda Archives for 17 years and sat on the GLT’s editorial board for eight years.

“In my many years of know-

ing Michael, I always found him to be engaging and personable even if ‘agreeing to disagree’ on some issues. I really believe he sincerely started in the busi- ness with the belief, ‘Who shall stand guard to the guards them- selves?,’” Parker said, referenc- ing a variation of the quote by Roman poet Juvenal that was printed in the masthead of every edition of the GLT. George Biagi, who served as editor-in-chief and associate publisher of the GLT in the early ’90s, posted a tribute on his Face- book page: “I am heartbroken and numb,” Biagi wrote. “Michael was my friend, my boss, my mentor, my confidante. It’s incomprehen- sible to me that this is how his life story has ended. RIP, Mike. You will never be forgotten.”

A funeral mass will be Jan. 15

at St. Didacus, 4772 Felton St. in San Diego. A community memori- al at the LGBT Community Center also is planned for January. Details are pending.♚

—GSD contributors Margie M. Palmer and Neal Putnam contrib- uted to this story

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