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LA Times: With same-sex marriage on hold, elderly and ailing couples face a lengthy appeals process

Prop 8 trial Testimony Uncategorized

Did you see this terrific feature-length LA Times article about Courage Campaign members Ed Watson and Derence Kernek? You’ve likely seen the video filmed by Courage Campaign staff about why it is so important that Ed and Derence be allowed to marry in California — before it’s too late. Read their powerful story here, then share it with your friends. -Andy w/ Courage

With same-sex marriage on hold, elderly and ailing couples face a lengthy appeals process

Judges last week extended a stay on same-sex marriage until higher courts rule on Prop. 8. Derence Kernek and Ed Watson hope that process will move faster than the advance of Watson’s Alzheimer’s disease. by Carol J. Williams, Los Angeles Times, March 27, 2011

Photo credit: Glenn Koenig, Los Angeles Times

Reporting from Palm Springs — Derence Kernek and Ed Watson live together each day in fear that they won’t be able to pledge “till death do us part” before it’s too late.

Watson, 78, is in rapidly failing health, afflicted with Alzheimer’s disease, obesity, diabetes and hypertension.

A federal appeals court ruled last week that same-sex marriage will remain on hold in California until a judge’s ruling striking down Proposition 8 as unconstitutional makes its way through the higher courts — reviews expected to take a year or more.

“We don’t have the money to travel to a state where it’s legal,” said Kernek, 80, observing dejectedly that the travel would probably be too grueling for his partner of 40 years. “Besides, we wanted to do it in California, where our friends are, where we live. Now I don’t think we’ll be able to, not while Ed can still remember.”

The ticking clock on Watson’s awareness was one of a chronicle of arguments presented to the U.S. 9th Circuit Court of Appeals in an unsuccessful bid to convey the urgency of letting same-sex marriage resume during the protracted appeals process.

A 9th Circuit panel made up of Judges Stephen Reinhardt, Michael Daly Hawkins and N. Randy Smith denied the request Wednesday without explanation.

Proposition 8 proponents had argued that the voter initiative’s restriction of marriage to one man and one woman should remain in place pending the appeal. They said the stay was necessary to avert social chaos if, as they insist is likely, the courts decide that the voters of California had the right to outlaw same-sex marriage.

The Aug. 4 ruling by U.S. District Judge Vaughn R. Walker in San Francisco striking down Proposition 8 as unconstitutional buoyed hopes across the national lesbian, gay, bisexual and transgender communities that their rights to marry and raise families would eventually earn full legal recognition.

But for some, including Kernek and Watson, “eventually” could come too late.

In response to an online appeal by the Hollywood-based Courage Campaign for testimony to back the legal challenge of Proposition 8 and other gay-rights litigation, more than 3,000 couples came forward with their stories about why they believe marriage can’t wait.

“Life is not eternal — sometimes it is tragically short — and courts should not act as if it were otherwise,” said Chad Griffin, board president of the American Foundation for Equal Rights and a key strategist in the legal campaign to scuttle Proposition 8.

The anecdotes of fatal illness and faltering minds were intended to put human faces on gay- and lesbian-rights advocates’ arguments that continuing to prohibit same-sex marriage after Walker’s ruling inflicts irreparable harm on many.

The Proposition 8 opponents argued that Walker’s ruling recognized marriage as a fundamental right for all Americans, and their veteran lawyers, David Boies and Theodore B. Olson, cited case law dictating that a court should suspend a judge’s ruling only when the party seeking that stay shows that it is likely to win on appeal and be irreparably harmed in the meantime.

“Each day plaintiffs, and gay men and lesbians like them, are denied the right to marry — denied the full blessings of citizenship — is a day that never can be returned to them,” two same-sex couples who brought the successful lawsuit against Proposition 8 argued in their motion.

Those who will be harmed, Courage Campaign chairman Rick Jacobs argued in an accompanying letter to the court, are couples like Kernek and Watson and San Diego residents Jerry Peterson and Bob Smith, both in their 70s and longing to marry before the end of an appeals process that could outlive them. Shane Mayer and John Quintana, 28-year-olds from San Francisco, want to marry while Mayer’s cancer-stricken father can still take part, the friend-of-the-court letter testified.

Andrew Pugno, a lawyer for Proposition 8 backers, hailed the panel’s ruling as “a victory for Proposition 8 supporters and the initiative process as a whole.”

In his appeals court filings, Pugno had argued that the same-sex couples’ claim of urgency “rings hollow.” He pointed out that they waited six months after the initiative passed to bring their lawsuit and failed to challenge the stay when the 9th Circuit first decided last fall to keep the ban in place while the appeal was being expedited.

Pugno’s opponents say they didn’t make an issue of the stay when Walker imposed it or when the 9th Circuit agreed it should remain in place because the appeals court said the case would be fast-tracked, Jacobs said. But when the 9th Circuit on Jan. 4 asked the California Supreme Court to decide whether the Proposition 8 architects have the legal right to appeal Walker’s ruling, it became clear that the process would drag on until the end of this year, if not longer, Jacobs said.

That outlook is dispiriting for Kernek and Watson, who don’t like to contemplate their prospects for surviving the appeals process intact.

“I can’t even say how many times I’ve had to call 911 when he falls or gets into a position where I can’t lift him,” Kernek says of his partner.

The two retired to this gay-friendly desert oasis five years ago, after their eclectic college pursuits — horticulture, social work and engineering — took them from the Bay Area to Kansas City, then an Oregon farm that was their home and livelihood for a decade.

They registered as domestic partners when they arrived in California, and after the state legalized same-sex marriage three years ago, they thought they could make the ultimate commitment to each other when the time was right. The passage of Proposition 8 in November 2008 shocked them, as did Watson’s diagnosis of Alzheimer’s a few months later.

Kernek is more confused than bitter about the legal obstacles preventing them from taking vows before Watson’s memory recedes to a point of no return.

“Why is it important to anybody else who you are devoted to?” Kernek asks. “I just don’t see how who I love hurts anybody else’s marriage.”

Copyright © 2011, Los Angeles Times

Photo credit: Glenn Koenig, Los Angeles Times

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  • 1. Richard A. Jernigan  |  March 29, 2011 at 3:57 am

    The fact that the stay was not lifted is a SHANDA. Of course, the fact that people like Andy Pugno are able to gather the necessary lies and other means of deception to bring something like Prop H8 to pass is also a SHANDA. IN fact, Andy Bugno is a SHANDA DER MENCHEN.

  • 2. Mouse  |  March 29, 2011 at 5:30 am

    I don't understand how the stay can remain. If it is the case that a stay is only granted when A) The party seeking that stay shows that it is likely to win on appeal and B) be irreparably harmed in the meantime.

    A) They can't show they are "likely to win" if it is going to take a year to determine whether they even have standing.

    B) They have not only shown the lack of irreparable harm or even any harm whatsoever, they are on record stating they "don't know" what harm could possibly be caused.

    They fail to meet either of those criteria. Meanwhile, the imposition of the stay is causing real, measurable harm. This case is weakening my faith in the justice system.

  • 3. nightshayde  |  March 29, 2011 at 8:55 am

    I find this disturbing — both because I have a friend named Shanda & because I don't know what it means in the context in which you're using it (though I'm gathering it's not a good thing).

  • 4. fiona64  |  March 29, 2011 at 9:28 am

    Nightshayde, it doesn't translate well from Yiddish to English. The closest is "shame" or "embarrassment."


  • 5. nightshayde  |  March 29, 2011 at 9:43 am

    Oooh – ok. I don't think I'll tell Shanda what her name means, then. >.>

    Thanks, Fiona! You so totally rock!

  • 6. Richard A. Jernigan  |  March 29, 2011 at 10:50 am

    Actually, in Hebrew, s shanda is a disgrace. the name Shanda is from the Celtic, I believe. and has a different meaning.

  • 7. Alan E.  |  March 29, 2011 at 3:59 am

    It will be a very sad day if marriage equality does not come in time for this couple, and the many other people in similar situations. In fact, it's a sad day every day that equality is not the law of the land.

  • 8. Rhie  |  March 29, 2011 at 5:59 am


  • 9. tomato  |  March 29, 2011 at 12:06 pm

    Oh, for a land of freedom and equality!

    Oh, for a land of respect and opportunity!

    Oh, Canada….

  • 10. Straight Ally #3008  |  March 29, 2011 at 1:36 pm

    Canada has one of the best national anthems ever.

  • 11. Ronnie  |  March 29, 2011 at 4:21 am

    Subscribing to read later….also here is something else I wanted to share:

    Watch: Fantastic Follow-Up on Gay Belgian Couple Reunited with Son Kept from Them for Years in the Ukraine

    (me) This is a follow up on Laurent, Peter, & their son, Samuel & how he's adjusting to a stable, safe, & permanent home. Laurent Ghilain & Peter Meurrens are the legally married couple from Belgium who live in Southern France. They used a surrogate to give birth to their son, Samuel, who had been living in a Ukrainian orphanage because restrictive surrogacy laws & anti-gay officials in Belgium stopped the fathers from obtaining a passport for their son.

    In Ukrainian orphanages children are often only fed once a day & in small portions. Children would eat fast & stuff food in their pockets to eat later. The dads say Samuel would do this for the 1st few when they would feed him. English subtitles available.

    I wish the relieved, happy, & proud fathers all the best & good luck to little Samuel when he starts school in September…..<3….Ronnie:

    Here is the video:

  • 12. AnonyGrl  |  March 29, 2011 at 4:23 am

    Thanks for sharing a happy ending to a worrisome story Ronnie! That brightened my day!

  • 13. Gregory in Salt Lake  |  March 29, 2011 at 5:50 am


  • 14. Ray in MA  |  March 29, 2011 at 9:35 am

    Ronnie, that is the most heart warming video you have brought us. THANX!!!!!!!!!!!!!!!! (again) it brought me to tears.

  • 15. Sheryl, Mormon Mothe  |  March 29, 2011 at 3:55 pm

    thanks, Ronnie, for sharing this. Nice to have tears over something positive for a change.

    Sheryl, Mormon Mother

  • 16. Ronnie  |  March 31, 2011 at 2:08 am

    You're welcome…glad you all enjoyed it….<3…Ronnie

  • 17. Kathleen  |  March 29, 2011 at 4:38 am

  • 18. JonT  |  March 29, 2011 at 8:43 am

  • 19. Regan DuCasse  |  March 29, 2011 at 5:02 am

    Mon dieu! Deux ans san les peres?! Eh tien, bon chance a le petit cher. Pour tout les hommes!

  • 20. Ray in MA  |  March 29, 2011 at 9:38 am

    They don't need luck, they have so much love!!!

  • 21. nightshayde  |  March 29, 2011 at 9:44 am

    No matter how much love we have, a bit of luck couldn't hurt. =)

  • 22. Straight Ally #3008  |  March 29, 2011 at 6:34 am

    This cuts me to the quick every time I read about it.

    To NOM and their ilk, do you enjoy how much you're hurting people like these two gentlemen?

    I'm embarrassed to be the same species as you.

  • 23. Rhie  |  March 29, 2011 at 6:44 am

    I know. Me too.

    Well, you and I aren't the same species or even related on a evolutionary tree. After all, even lower primates have the capacity for empathy.

  • 24. Phillip R  |  March 29, 2011 at 7:02 am

    I hate to say it but I purposefully haven't watched the video because I know it'd make me a bit too emotional. Just reading about the problems just about brought me to tears (and I'm definitely not a crying kinda guy).

  • 25. Ray in MA  |  March 29, 2011 at 9:43 am

    Tears like these can be an emotional release… puts your days challenges in perspective.

  • 26. Sagesse  |  March 29, 2011 at 6:49 am

    An excellent article. Scribin' to catch up later.

  • 27. Ray in MA  |  March 29, 2011 at 9:57 am

    Way OT (bullying), but i need to share:

    "Just prior to his death he was stripped nude, tied up and again placed into a trashcan."

  • 28. Matthew  |  March 29, 2011 at 10:34 am

    Did I miss something, or did Indiana just vote to ban civil unions and DPs for everyone? The text I read makes no Distinction between between SS an OS 'unmarried couples'. That's kinda funny.

  • 29. Kathleen  |  March 29, 2011 at 11:17 am

    Interview from this morning with Tani Cantil-Sakauye, Chief Justice of the California Supreme Court. She discusses the Prop 8 case and the decision to not further expedite the schedule.

  • 30. grod  |  March 29, 2011 at 12:18 pm

    We count on you and others to bring important items to the discourse. Thank you for giving us this audiotape. The Chief Justice was articulate and well as informative. There may be some who will dissect this portion of the interview for insights into the courts thinking.
    You pick up on the expedited schedule. I wondered if that aspect was the core message of this segment of the interview. G

  • 31. Kathleen  |  March 29, 2011 at 12:24 pm

    I guess that part of the interview caught my attention only because there was nothing else that was really new info + the order denying the request to further expedite hadn't given any reason. This was the first time I'd heard even a hint of the reasoning behind denying the request.

  • 32. Michael  |  March 29, 2011 at 1:43 pm

    The radical anti-gay pressure group NOM should not be given the special right to inflict cruel and unusual punishment on this couple…and the millions of us Californians that voted against the immoral, evil Prop. 8.

  • 33. paul  |  March 30, 2011 at 1:23 am

    I'm not sure why the court can make a ruling without explaination of some kind. We're all accountable to someone for our actions and decisions esp. as they impact so many.
    What's the deal with this? Why not explain the basis for your decision?
    I'm frustrated and have just about come to the conclusion that the only way to get anything in this life is to "fight" for it….and I don't mean through the courts. Isn't it time we made a louder noise…the blacks did it, and we listened.
    Who is our MLK and when are the streets going to be our courtroom????

  • 34. Back in action « Pr&hellip  |  March 30, 2011 at 9:01 am

    […] the power of the story take hold. I told nearly everyone I talked to about Ed and Derence and the feature Los Angeles Times piece on Monday, and person after person just looked aghast. Even those who I knew weren’t all the way there […]

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