Maine Senate passes marriage equality legislation

04/30/09 (Maine) Portland Press Herald:

"The Maine Senate this morning passed a bill that would allow same-sex marriage in Maine. The Senate voted 20-15 in favor of the measure In initial voting. Next, an amendment to require a statewide referendum on the matter was rejected, 22-13. Then the Senate registered its support for the original measure again, this time by 21-14."

Source of article reference: ADF Alliance Alert

04/30/09 NY Times:

"If the Maine Legislature approves same-sex marriage, opponents will try to collect enough signatures to suspend the law until a public referendum can be held — probably in June 2010 — asking voters if they want to overturn it."

Law professor Nancy Polikoff asks whether renaming "marriage" for the purpose of state recognition would abolish marriage

04/30/09 Beyond (Straight and Gay) Marriage:

American University Law Professor Nancy Polikoff says that it never occurred to her that "that keeping a distinct legal status for couples, but renaming that status for all couples to reflect the modern values of partnership, would appear to anyone as indistinguishable from the abolition of marriage." However, this legal reform would have the effect of reserving marriage to an exclusively religious institution. That outcome will not satisfy (would-be) spouses who believe that state recognition of marriage confers an essential, intangible benefit that transcends the bundle of legal rights, duties and benefits of marriage. So far, the "marriage"-substitution proposal, though raised during the Prop. 8 oral arguments, has received little popular support.

New Hampshire Senate Passes Gay Marriage Bill

04/29/09 NY Times:

"The Democratic-controlled Senate voted 13 to 11 in favor of the bill, but only after a last-minute amendment strengthened language granting legal protections for religious groups and organizations that do not want to perform or help carry out same-sex marriages."

The state Legislature's wesbite has posted the latest version of the bill, as amended on 04/29/09. A member of the state Senate Clerk's office told me today that the amendment to the bill provided a complete substitution of its predecessor. Based on the NY Times report, I had expected the amendment to exempt discrimination by religious organizations involved in the wedding business - an exemption that Connecticut's recently enacted law includes. But the relevant provision of the bill falls short of that exemption:

Affirmation of Freedom of Religion in Marriage. RSA 457:37 is repealed and reenacted to read as follows:

457:37 Affirmation of Freedom of Religion in Marriage. Members of the clergy as described in RSA 457:31 or other persons otherwise authorized under law to solemnize a marriage shall not be obligated or otherwise required by law to officiate at any particular civil marriage or religious rite of marriage in violation of their right to free exercise of religion protected by the First Amendment to the United States Constitution or by part I, article 5 of the New Hampshire constitution.

For more on New Hampshire's marriage equality legislation, see this post by New Hampshire family practitioner Kysa Crusco.



Source of reference to article: Stop8.org

ADF Senior Counsel Austin Nimocks on conflict between religious liberty and same-sex marriage

04/29/09 (Vermont) Argus Times:

Austin Nimocks is senior counsel for the Alliance Defense Fund. In this opinion article, he claims that supporters and opponents of same-sex marriage agree that

"that a serious conflict exists between same-sex 'marriage' and religious liberty. [ADF attorneys do not recognize same-sex marriage, so they add quotation marks to the word "marriage" when referencing same-sex marriage.] On this point, there is no debate, except among the uninformed. Even same-sex 'marriage' advocate, and Georgetown law professor Chai Feldblum understands this principle, if you read her Web site and writings."

Nimocks appears to have in mind the Moral Values Project website, which posts articles by Chai Feldblum. One of these is Moral Conflict and Conflicting Liberties, from Same-Sex Marriage and Religious Liberty, published by The Beckett Fund for Religious Liberties, 2008.

Nimocks also claims that "multiple cases continually arise where those who believe in [heterosexually-exclusive] marriage are being asked to face legal punishments and consequences for their beliefs."

Source: ADF Alliance Alert

Legal scholars speaking at this week's Equality Forum 2009

Equality Forum 2009:

"Each spring Equality Forum presents its Global GLBT Event. The Annual Equality Forum comprises seven days of substantive programs, parties and special events."

John G. Culhane, a law professor at Widener University, has been blogging about each day's activities. Tomorrow, American University law professor Nancy Polikoff will participate in the Same-Sex Families Panel. "Her book and the blog it spun off, Beyond (Straight and Gay) Marriage: Valuing All Families Under the Law," says Culhane, "opened my eyes to broader problems of equity that come from exalting marriage over all other forms of familial association."

On 05/01/09, the Equality Forum will host a National Legal Panel that will examine "the role local, state and federal courts play in our fight for GLBT civil rights." Participants include law professors Nan Hunter, Chai Feldblum, and Tobias Wolff, and attorneys Hayley Gorenberg of Lambda Legal and Chris Anders of the ACLU.

Source of reference to Equality Forum: 04/27/09 Leonard Link

Maine Legislature's Judiciary Committee votes in favor of marriage equality legislation

04/28/09 Bangor Daily News:

By large margin, the Judiciary Committee of the Maine Legislature voted in favor of An Act To End Discrimination in Civil Marriage and Affirm Religious Freedom.

"The committee vote took place less than a week after more than 3,000 people crammed into the Augusta Civic Center during an 11-hour public hearing on the bill."

New issue brief examines Prop 8, judicial interpretation of rights, and separation of powers

04/28/09 Sexual Orientation and the Law Blog:

The American Constitution Society has filed an issue brief in which it argues that even if Prop. 8 represents an amendment, and not an improper revision, it violates the state constitution's guarantee of separation of powers.

ACLU of Iowa and the Alliance Defense Fund on religious-liberty exception for state wedding registrars

04/28/09 NY Times:

The NY Times reports widespread compliance by county recorders in issuing marriage licenses to over 200 same-sex couples today. (See the Washington Times on state Senator Merlin Bartz's "petition drive last week aimed at encouraging county recorders to reject marriage applications from same-sex couples until Iowans are able to vote on a same-sex marriage referendum.")

04/24/09 Iowa Independent:

"Caught in an interesting position between State Sen. Merlin Bartz (R-Grafton) on one side and same-sex marriage advocates on the other, the Iowa ACLU determined today that it would represent any same-sex couples who are denied marriage licenses by a county recorder while also offering to defend the man who is asking county recorders to deny them ...The Alliance Defense Fund, an organization founded by evangelical activists to counterbalance the ACLU, has already offered to defend county recorders against same-sex couples should they choose to defy the court." (For more on the role of ADF, see this 04/26/09 article of the Catholic News Agency.)

Will this controversy over county recorders prove to be a tempest in a teapot? Or is the Alliance Defense Fund right that county recorders may deny marriage licenses to same-sex couples if county recorders would otherwise violate tenets of religious faith? According to several legal scholars, the answer may depend on whether the result imposes substantive - and not just "symbolic" - harm on same-sex couples who apply for marriage licenses. (Of course, it's hardly unambiguous to try to distinguish between "substantive" and "symbolic" harm.)

These legal scholars are debating the proper extent of religious-liberty exemption in marriage equality legislation. In the context of this debate, several proponents of exemption for individuals offer the following observation on wedding registrars:

"If one wedding registrar objects to memorializing the marriage but another is immediately available, is there any measurable harm [to a same-sex couple seeking a marriage license] that's not merely symbolic? We think that putting a state employee to a choice between her faith and her job should require something more."

Source of article reference: Gay Marriage Watch

Is gay-marriage momentum building in Utah?

04/24/09 Deseret News:

In 2004, Utah voters approved Amendment No. 3, which not only limits marriage to a man and woman, but also bars state recognition of any domestic union with the "same or substantially equal legal effect" of marriage. Several local gay activists express hope of change in Utah from recent legalizations of same-sex marriage in Vermont and Iowa.

The Deseret News reports that "[l]egal experts say the decisions will have almost no impact on the state's laws." And one of the activists, Jacob Whipple of the All For One Initiative, observes that "[i]t's not going to happen in Utah. We're never going to overturn Amendment 3. It will have to be a top-down thing instead of a bottom-up thing."

Nevertheless, Lynn Wardle, a family law professor at Brigham Young University, concedes that "[i]t's like a flood. You can close the door, but the water is still going to get in under the door and through the windows."

New Hampshire State Judiciary Committee recommends killing gay marriage bill

04/24/09 Boston Globe:

"CONCORD, N.H.—The state Senate's Judiciary Committee has recommended that the Legislature reject legalizing gay marriage in New Hampshire. The committee voted 3-2 Thursday against a bill [HB 436] that passed the House last month."

Source of reference to article: ADF Alliance Alert

New York Assembly Judiciary Committee to hear marriage equality legislation on April 28th

04/24/09 NY Daily News - The Daily Politics Blog:

"The Assembly's Judiciary Committee will take up Gov. David Paterson's same-sex marriage program bill [A7732 / S4401] on Tuesday - the same day the Empire State Pride Agenda is holding its Equality & Justice Lobby Day in Albany."

Source of reference to this blog post: ADF Alliance Alert

Connecticut passes update of marriage law for gays; Governor M. Jodi Rell signs the legislation

04/23/09 AP:

"HARTFORD, Conn.—A decade-long battle for same-sex marriage in Connecticut has ended with the governor’s signature on a bill updating the state’s laws. Gov. M. Jodi Rell signed the legislation Thursday, one day after the state House and Senate both approved it."

Source of reference to AP article: National Center for Lesbian Rights

04/22/09 AP:

"HARTFORD, Conn. (AP) — Connecticut lawmakers voted late Wednesday to update the state's marriage laws to conform with last fall's landmark state Supreme Court ruling allowing gay and lesbian couples to marry ... In an effort to appease some gay marriage foes, lawmakers amended the bill to show they want to protect religious liberties. For example, it says religious organizations and associations are not required to provide services, goods or facilities for same-sex wedding ceremonies."

The law's exemptions for religious faith can be found here and here.

04/23/09 Volokh Conspiracy Blog:

University of Minnesota Law Professor Dale Carpenter blogs about the exemptions:

"The bill obviously draws on the proposal made by the five academics whose ideas I discussed earlier today. It does omit some of the more problematic aspects of the proposal, such as providing an exemption to 'any individual' and its specific reference to the 'sincerity' of religious belief."

Source of reference to blog post: ADF Alliance Alert

04/24/09 Mirror of Justice:

"In response to the proposal of four of us for a broad religious-liberty exception [for individuals] in same-sex marriage bills in Connecticut and elsewhere, Dale Carpenter at the Volokh Conspiracy welcomed but also raised some questions about our proposal. Below is our response."

Source of reference to blog post: ADF Alliance Alert

04/24/09 Volokh Conspiracy:

Dale Carpenter expresses appreciation for the "the great thought, care, and time that went into this reply" by the four scholars on religious liberty, invites his readers to respond, and identifies related posts."


04/22/09 ConnecticutPost.com

The Connecticut Post reports that the Knights of Columbus, the Catholic Church and Family Institute engaged in a "weekend public relations blitz" as they lobbied the state Senate to add religious-faith exemptions to the legislation. As part of this campaign, "the Roman Catholic Bridgeport Diocese circulated a letter sent to [Connecticut Senate President Martin] Looney by four law professors urging the Legislature provide religious conscience protections." The legal scholars urged the state Legislature to follow the example of Vermont's new law on same-sex marriage, which exempts religious organizations from providing "services, accommodations, advantages, facilities, goods or privileges" related to "the solemnization and/or celebration of a marriage."

The Senate was reluctant to add the exemptions, but the media campaign appears to have succeeded. Sen. Andrew McDonald, D-Stamford, a judiciary committee co-chairman, explained why he opposed the law's exemption for religious organizations deny commercial wedding services to same-sex couples:

"Could Christian caterers say, 'I refuse to cater a Jewish bar mitzvah because I don't believe in Judaism'? Once you hold yourself out to the public to provide goods or services to the public at large, you cannot discriminate. That has nothing to do with marriage. It has everything to do with discrimination law in place in Connecticut since 1991. You can't discriminate against anybody based on race, religion, ethnicity or sexual orientation."

McDonald also objected to a "a full-page newspaper ad that ran Sunday [04/19/09] alleging the Senate bill would 'deny citizens their religious rights' and result in the government punishing church groups and in companies going out of business." He said the advertising had been "riddled with misinformation," including a familiar allegation of oppenents of same-sex marriage - that "schools will be forced to teach gay marriage and parents will have no choice in the matter."

Mainers Air Their Views on Same-Sex Marriage

04/22/09 NY Times:

The NY Times reports that about 4000 Maine citizens attended today's public hearing by the Legislature's Judiciary Committee on An Act To End Discrimination in Civil Marriage and Affirm Religious Freedom.

"The Legislature, where Democrats control both houses, can pass or reject the measure, or send it to the voters for a referendum. If the Legislature passes the bill, citizens can collect enough signatures to place a people’s veto of the legislation on the November ballot."

Reports of hearing testimony:

04/22/09 YouTube:

You can watch 41 clips of testimony here.

Source of YouTube reference: Pam's House Blend blog

Testimony by Robert Talbot, Maine NAACP:

Robert Talbot of Bangor was the first director of the Maine Human Rights Commission. He is also brother of former Maine Rep. Gerald E. Talbot, who in 1977 "sponsored a bill to advance human rights for all people regardless of sexual orientation."

Source of link to Talbot's testimony: Pam's House Blend blog

04/23/09 Gay Opinion Blog Spot:

A gay man told the committe that he and his partner of 34 years "are honorable people and there is no reason our lives and love don't qualify for marriage." He describes initial discrimination by the father of his partner against the son, followed by acceptance.

04/23/09 AP (posted to Boston Globe):

"AUGUSTA, Maine - A legislative hearing to extend same-sex marriage to Maine took on the atmosphere of a religious revival yesterday as ministers made impassioned speeches for and against the bill before thousands of cheering spectators packed into a civic arena."

Religious opinion at the hearing was not uniformly against the legislation. Rev. Deborah Davis Johnson - whose Portland church belongs to the Religious Coalition for Marriage Equality - said, "Jesus led a life of doing justice; we are called to do the same."

Same-sex marriage: Gay couple in Louisiana sues over license denial

04/22/09 AP (posted to Shreveport Times):

"A gay couple in New Orleans is suing over being denied a marriage license in Louisiana, claiming their rights are being violated by a state constitutional ban of same-sex marriage. Kristoffer Bonilla, 33, and John Thomas Wray, 18, are asking a federal judge to strike down the constitutional amendment, which lawmakers and voters overwhelmingly approved in 2004."

Plaintiffs claim the state's marriage amendment violates the First Amendment "by curtailing the right to marry based upon a religious interpretation of the nature and purpose of marriage itself. By failing to articulate a legitimate, compelling and secular interest for the restriction on marriage, the state has necessarily established a wholly religious civil institution." (Click here for the complaint.)

This federal lawsuit involves a novel test of the First Amendment. (Plaintiffs also allege violation of the equal protection clause.) Except for an equal-protection challenge in the Central District of California, I am also unaware of any other federal lawsuit against a state's constitutional ban of same-sex marriage.

Randy Evans, an attorney for Forum For Equality, comments on the lawsuit, but the organization does not appear to be involved. The complaint shows that Bonilla and Wray filed the complaint pro se. Will they attract counsel to represent them?

Source of AP reference: ADF Alliance Alert

Same-sex marriage backers plan ballot drive

04/22/09 SF Chronicle:

"Supporters of same-sex marriage are putting together plans for their own ballot measure even before the state Supreme Court rules on the fate of Proposition 8, which banned those unions last November. Gay and lesbian groups joined with progressive and civil rights organizations Tuesday to announce they are collaborating on a poll to determine the best time and message for a ballot measure legalizing same-sex marriage."

Source: ADF Alliance Alert

Same-sex marriage and religious liberty issues in Connecticut; Empire State Pride Agenda challenges claims of harm to religious liberty

04/21/09 Mirror of Justice Blog:

"Here are a couple of letters to the speaker of the Connecticut house arguing for meaningful religious liberty exemptions in the bill [to implement the state supreme court's October 2008 decision in Kerrigan v. Commissioner of Public Health]. One is from four religious liberty scholars, including Robin Fretwell Wilson (Washington and Lee, drafter), Carl Esbeck (Missouri), and MOJ's own Rick Garnett and Tom Berg, proposing a text of a broader exemption. The other is from Professor Doug Laycock, explicitly supporting both same-sex marriage and religious liberty and endorsing the text in our letter."

Source of reference to Mirror of Justice: ADF Alliance Alert

04/21/09 National Center for Lesbian Rights:

Empire State Pride Agenda Executive Director Alan Van Capelle said, “For too long, the religious right has controlled the religious debate around marriage for same-sex couples by promoting misinformation that marriage equality threatens religious freedom. Today a diverse group of [Massachusetts] clergy speaks directly to New Yorkers about their experiences since Massachusetts legalized marriage for same-sex couples.”

04/22/09 Boston Globe:

"Several prominent religious leaders from Massachusetts are lending their support to the campaign for the legalization of same-sex marriage in New York state, arguing in various venues yesterday that gay marriage has not affected religious freedom in the Bay State. The gay rights group, the Empire State Pride Agenda, said it sought out clergy in Masachusetts in an effort to rebut critics of same-sex marriage."

Gay Episcopal bishop V. Gene Robinson favors separation of civil and religious institutions of marriage

04/20/09 Los Angeles Times:

V. Gene Robinson is bishop of an Episcopal diocese in New Hampshire. Last summer, he "was barred from taking part in leadership meetings at the Lambeth Conference, a once-a-decade global gathering of Anglicans."

On 04/19/09, he told a church in Studio City, California, that he favors the exclusive role that France reserves to government officials for performing civil marriages. "In this country," he said, "it has become very confusing about where the civil action begins and ends and where the religious action begins and ends, because we have asked clergy to be agents of the state ... If we can get these two things [religious marriage and civil marriage] separated, we can assure every religious group, no matter how conservative, that they will never have to bless these [same-sex] marriages." If the California Supreme Court upholds Prop. 8, its ruling would, of course, moot the purpose of Robinson's proposal - to guarantee civil marriage of same-sex couples.

With its "2 Million for Marriage" ad campaign, the National Organization for Marriage has renewed controversy over perceived conflict between same-sex marriage and religious freedom. The controversy has inspired others to propose a more sweeping reform than Robinson's, in which the state would continue to recognize all the rights, duties, and benefits of marriage, except in name. During the Prop. 8 oral arguments, Justice Ming Chin had asked Kenneth Starr whether the proposal would provide equal protection to same-sex couples, and whether the Court could order it.

Maine Joint Standing Committee on the Judiciary reschedules public hearing on marriage equality legislation

04/11/09 Boston 7 News:

A day-long public hearing on Maine's proposed Act to Prevent Discrimination in Civil Marriage and Affirm Religious Freedom (124th Legislature, LD 1020 / SP 384) will take place on April 22nd. A large turnout is expected.

Source: Gay Marriage Watch

04/20/09 The Maine Campus (University of Maine):

"The Maine Campus will live stream Wednesday's open forum on gay marriage in its entirety, starting at 8:45 a.m. and ending at 8 p.m.."

Shenna Bellows, executive director of the Maine Civil Liberties Union, said that "[w]e expect that civil rights leaders and constitutional law experts will talk about why marriage is a civil rights issue."

The proposed legislation has a provision to protect freedom of religious practice in (at least) solemnizing marriages - a protection of enacted or proposed marriage equality legislation elsewhere. But Pastor Bob Emrich, director of the Maine Jeremiah Project, told the Maine Campus that "[i]f this bill is passed, it will immediately create a conflict with religious liberties, and that's been a foundation of our country from the very beginning, and we shouldn't institute a new policy that we know will create those conflicts." The National Organization for Marriage has launched a national ad campaign, "2 Million for Marriage," based on the premise that marriage equality legislation jeopardizes religious freedom.

04/21/09 Alliance Defense Fund press release:

ADF Senior Legal Counsel Austin R. Nimocks is among those will testify against the Maine legislation.

Tax and estate planning for same-sex couples in California; uncertainties over whether such couples can divorce

04/16/09 Riverside Press-Enterprise:

Joseph Hahn is Of Counsel in the Estate Planning, Probate & Trust Administration Practice Group of Best Best & Krieger, in Indian Wells, Califonia. On April 16th, he hosted a workshop on tax and estate planning for same-sex couples, who face unique obstacles when filing their state and federal income taxes and preparing their estates.

Frederick Hertz offers advice to same-sex couples who married in California if the California Supreme Court rules that their marriages are invalid. He is co-author of A Legal Guide for Lesbian & Gay Couples, and runs the website SameSexLaw.com. He advises such couples "to register as domestic partners -- just in case."

"Hertz said another question mark is the legal status of same-sex couples married [out-of-state] before or after same-sex marriage was legal in California."

04/16/09 Leonard Link:

New York Law School Professor Arthur Leonard asks whether same-sex couples married in California can now divorce there or in New York, and discusses the inability of same-sex couples married in Canada or Massachusetts to divorce in states with DOMAs.

Opposing views: Defense of Marriage Act is becoming indefensible; Maine's marriage equality legislation is "is simply bad law."

04/17/09 Seattle Times:

Columnist Ellen Goodman discusses Gill et al. v. Office of Personnel Management et al., in which Gay & Lesbian Advocates and Defenders represents plaintiff couples in an equal-protection challenge to the federal DOMA.

"What do you say about a law that 'defends' marriage by denying it?" Goodman asks. "The winds are blowing, but in a very different direction."

Source: ADF Alliance Alert

04/15/09 Bangor Daily News:

Pastor Rick Carver is treasurer of the Maine Family Policy Council. In this rebuttal to the paper's editorial, “Marriage Turns a Corner," he condemns Maine's proposed Religious Freedom and Civil Marriage Protection Act. Claiming that "[m]arriage has always been reserved for one man and one woman for life," he says that society can no more countenance gay marriage, on grounds of equality, than marriage between dogs, between cats, between him and his sister, or between him and his daughter. At the same time, he says that he offers his "comments with the deepest respect for those individuals who find themselves embroiled in this discussion."

Source: ADF Alliance Alert

Florida, 28 other states don't give legal status to gay married couples

04/16/09 SunSentinel.com:

Florida's DOMA and recently amended constitution bar recognition of out-of-state marriages, a practice that the federal DOMA also allows. Columnist Michael Mayo believes that the practice violates the equal protection clause of the 14th Amendment, and then turns to attorneys and scholars for discussion of obstacles to a 14th Amendment challenge. The discussion of obstacles resembles that in a 4/11/09 New York Times article.

"Robin Bodiford, an attorney and gay rights activist, said the conservative makeup of the U.S. Supreme Court could be a deterrent to federal lawsuits." Notwithstanding recent developmetns, Robert Rosenwald Jr. is an attorney who directs the Florida ACLU's LGBT Advocacy Project. He adds that "the timing isn't right for a federal challenge because the societal pendulum hasn't swung far enough." And Bruce Rogow, an attorney and constitutional law professor at Nova Southeastern University, said he doubts a challenge based on the equal protection clause would succeed."

Like those interviewed for the NY Times article, none of these attorneys comments on a recent challenge to the federal Defense of Marriage Act on behalf of eight Massachusetts same-sex couples and three same-sex widows.

Florida evidently presents its own hurdles to gay marriage supporters, as Bodiford points out that Florida activists are more focused on overturning the state ban on adoptions by gay parents.

New York Governor David Patterson announces introduction of marriage equality legislation

04/16/09 Press Release of New York Governor David A. Patterson:

New York Governor Patterson announced today that state Senator Thomas K. Duane will sponsor the Governor's "marriage equality Program Bill," which would "amend the Domestic Relations Law to give same-sex couples the opportunity to enter into civil marriages." A member of Senator Duane's staff just told that she expects the staff to post a link to the Program Bill next week at the legislation section of the Senator's website.

AP reports that the "proposal is the same bill the Democrat-controlled state Assembly passed in 2007 before it died in the Senate, where the Republican majority kept it from going to a vote." The 2007 bill was The Marriage Equality Act, A.8590, sponsored by New York Assembly Member Daniel O’Donnell. According to O'Donnell's 06/19/07 press release, the legislation would have established "equal responsibilities, recognition, benefits, and protections for all married couples, regardless of the sex of the parties to a civil marriage."

AP also reports that "Paterson, who is black, framed the issue in sweeping terms, invoking Frederick Douglass and Harriet Beecher Stowe and drawing a parallel between the fight to eliminate slavery in the 1800s to the current effort to allow gay marriage."

You can watch the Governor's announcement here.

New Hampshire Senate Judiciary Committee takes up gay marriage bill

04/15/09 AP (posted to Chicago Tribune):

"CONCORD, N.H. - At least 500 people crowded into New Hampshire's Statehouse on Wednesday for an emotional and sometimes boisterous Senate committee hearing over whether allowing gay marriage would weaken or strengthen the institution ... The New Hampshire Legislature is weighing a bill that would make it the fifth state to allow gay marriage. The state House has approved it, and it is now before the Senate Judiciary Committee. The governor hasn't said whether he would sign or veto it."

IN ACCORDANCE WITH TITLE 17 U.S.C. SECTION 107, THIS MATERIAL IS DISTRIBUTED WITHOUT PROFIT TO THOSE WHO HAVE EXPRESSED A PRIOR INTEREST IN RECEIVING THE INCLUDED INFORMATION FOR RESEARCH AND EDUCATIONAL PURPOSES. PROP8LEGALCOMMENTARY HAS NO AFFILIATION WHATSOEVER WITH THE ORIGINATOR OF THIS ARTICLE NOR IS PROP8LEGALCOMMENTARY ENDORSED OR SPONSORED BY THE ORIGINATOR.

How Gays Won a Marriage Victory: For 7 Years, Activists Eyed a Seemingly Unlikely Target: Iowa

04/15/09 Washington Post:

"NEW YORK -- For most of the country, the unanimous decision this month by the Iowa Supreme Court to legalize same-sex marriage was an unexpected and seemingly random victory for a movement that has long drawn its deepest support from major cities in liberal coastal states.

"But for Camilla Taylor, a Chicago-based lawyer for the gay rights group Lambda Legal, it was the logical conclusion to a deliberate seven-year effort to make the Midwestern state one of the first in the country to allow same-sex marriage."

Source: Stop8.org

IN ACCORDANCE WITH TITLE 17 U.S.C. SECTION 107, THIS MATERIAL IS DISTRIBUTED WITHOUT PROFIT TO THOSE WHO HAVE EXPRESSED A PRIOR INTEREST IN RECEIVING THE INCLUDED INFORMATION FOR RESEARCH AND EDUCATIONAL PURPOSES. PROP8LEGALCOMMENTARY HAS NO AFFILIATION WHATSOEVER WITH THE ORIGINATOR OF THIS ARTICLE NOR IS PROP8LEGALCOMMENTARY ENDORSED OR SPONSORED BY THE ORIGINATOR.

Dewey Lawyer Vivian Polak Sees Same-Sex Marriage Rights Turning the Corner

04/13/09 National Law Journal Legal Pad:

Vivian Polak, chair of Dewey & LeBoeuf's diversity committee, filed briefs in Varnum v. Brien and the Prop. 8 litigation.

"Polak gives an interview to The American Lawyer about her role in the Iowa decision and her thoughts about the fate of same-sex marriage in America."

Two Lawyers in Gay Practice Reflect on State of the Law 2009

04/14/09 Boston EDGE:

Joseph Trotti and Joseph G. Milizio are partners at Vishnick McGovern Milizio LLP, and practice within the firm's recently launched Gay and Lesbian Representation Practice Group. In their assessment of emerging New York law about same-sex couples, they identify "income, tax, and other advantages," taken for granted by heterosexual couples, "that remain outside the grasp of the LGBT community."

New York Governor Paterson Will Introduce Same-Sex Marriage Bill

04/14/09 NY Times City Room blog:

The NY Times reports that when Governor Patterson introduces legislation tomorrow, it faces unlikely odds of passage, especially in the state Senate. "Albany tradition dictates that the bill is likely to come to a vote only when it has enough support to pass," and right now, it does not have enough support in the Senate to pass.

Source: ADF Alliance Alert

New Hampshire gay-marriage bill may get tangled up in state Senate

04/14/09 Reuters:

The New Hampshire Senate Judiciary Committee will hold a public hearing tomorrow on HB 436, providing equal access to marriage.

"Several senators in the Democrat-controlled legislature contacted by Reuters speculated the bill would face defeat, citing Democratic Governor John Lynch's opposition, or be tabled indefinitely so lawmakers can avoid taking a stance on the issue ahead of elections next year ... gay marriage could face defeat if just four Democrats take their cue from the governor and oppose it."

Source: ADF Alliance Alert

ADF's Dougas Napier: Amend state constitutions to defend marriage

04/14/09 DesMoinesRegister.com:

Douglas Napier, an attorney with the Alliance Defense Fund, has written an opinion article, in which he faults the Iowa Supreme Court for holding, in Varnum v. Brien, that the state's DOMA is unconstitutional. Among other objections, he complains that the Court has put a "choke-hold" on the inherent political power of Iowans. He concludes:

"As for the rest of the nation, those states that haven't yet adopted a marriage amendment must do so with haste. Marriage will be safely protected only when the people exercise the most fundamental tenet of self-government and amend the constitution in no uncertain terms. Only then will those states have adequate protection from courts who take citizens for fools."

Source: ADF Alliance Alert

Vermont's Gay Marriage Law Contains Strong Religious Exemptions

04/14/09 Religion Clause blog:

University of Toledo law professor Howard M. Friedman identifies "strong religious freedom exemptions included in the new law (full text of S. 115)" - exemptions that today's New York Daily News reports on.

Source: ADF Alliance Alert

ADF files motion to intervene in federal district court case, Smelt v. United States of America, challenging Prop. 8 under 14th Amendment

04/13/09 ADF Press Release:

Plaintiffs Arthur Smelt and Christopher Hammer lost their first 14th-amendment challenge to the federal DOMA, Smelt v. County of Orange, when "the U.S. Supreme Court refused to hear the case in 2006." Just a few days after the November election in California, the Orange County Register reported that attorney Richard G. Gilbert "refiled their lawsuit in U.S. District Court in Santa Ana." I have not checked on the status of the refiled lawsuit.

Alliance Defense Fund has filed a motion to intervene in the second of two lawsuits "filed by the same two men." According to its motion to intervene, Smelt v. United States of America (C.D.Cal. Case No. 8:2009-cv-00286), this second lawsuit alleges that Prop. 8 violates the equal protection and due process clauses of the 14th Amendment. It also raises 14th-Amendment challenges to the federal DOMA. It was initially filed in " state court" December 2008 (Orange County Superior Court, Case No. 30-2008-00116748-CU-MC-CJC), and was removed to the U.S. District Court for the Central District of California on March 9th.

Yes-on-8 attorney Andrew Pugno claims that ADF seeks to intervene in the lawsuit "because the defense of California’s constitutional amendment should not be entrusted to the state attorney general, who has already argued that he thinks it should be ‘invalidated.'" But Smelt v. United States of America has a plaintiff attorney who does not inspire unreserved confidence. According to the Orange Counter Register, Gilbert announced his endeavor to place an initiative on the 2010 ballot that would divide California into two states. "New California" would have a constitution that recognized the fundamental rights of all people.

The surprisingly quick triumph of the same-sex marriage movement

04/10/09 Balkinization Blog:

Northwestern law professor Andy Koppelman observes that "[t]he ame-sex marriage movement must now be acknowledged to be one of the most rapidly successful social movements in the history of the United States, revolutionizing the law in an enormous part of the country in less than ten years ... more than a fifth of the population of the United States lives in a jurisdiction that recognizes same-sex relationships as marriages or their functional equivalent."

Source: ADF Alliance Alert

Does the specter of Roe v. Wade hang over gay marriage and the Supreme Court?

04/12/09 Sexual Orientation and the Law Blog:

"After a week in which the number of states authorizing same-sex marriage doubled," Mayer Brown attorney Steve Sanders, writes, "the New York Times explains why the U.S. Supreme Court isn't likely to take up the issue anytime soon. [Northwestern law professor] Andy Koppelman puts his finger on the main reason why this is so: the groups like Lambda that have brought these cases, fearing what could happen if the federal courts get their hands on the issue right now, bring them entirely based on state constitutional law theories, so there's nothing to invoke the U.S. Supreme Court's jurisdiction."

In fact, Koppelman underscores the legal strategy involved in bringing the challenge to Iowa's DOMA. "The Iowa decision,” he said, "is the product of a very smart legal team researching every state supreme court and every state legislature.” Camilla Taylor, senior staff attorney for Lambda Legal in Chicago and lead counsel on the Iowa case, also explains the rationale for targeting in Iowa. She told the Chicago Tribune ("Gay marriage and Iowa: Why's everyone so surprised?"), "We knew we could count on Iowa's leadership on civil rights issues."

Oddly, none of the law professors interviewed for the NY Times article comments on a recent challenge to the federal Defense of Marriage Act on behalf of eight Massachusetts same-sex couples and three same-sex widows.

The NY Times article also suggests a renewed debate on the critical role of courts in advancing democratic reform of state constitutions:

"Since the Vermont Legislature decided to allow same-sex marriages, legal scholars have been debating whether that political victory could have been secured without the judicial decisions that preceded it. 'Without the activist decisions on same-sex marriage,' [Columbia University law professor Nathan] Persily said, 'there might not have been a fire lit under the legislature that passed it.'"

Wisconsin Supreme Court decide whether state's constitutional ban on gay marriage was properly put to voters

04/09/09 AP (posted to Chicago Tribune):

A three-judge panel of the Wisconsin Court of Appeals has asked the state Supreme Court to decide whether a 2006 referendum on same-sex couples violates the state's single-subject rule for referenda. The referendum amended the constitution to ban not only same-sex marriages, but also civil unions.

Family Research Council considering legal challenge to pending D.C. legislation to recognize out-of-state marriages

On April 7th, the Washington, D.C., City Council unanimously approved a measure to recognize same-sex marriages licensed in other states. Next month the Council is expected to give final approval to the measure, which then becomes subject to a 30-day period of review by Congress.

04/09/09 AP:

"Peter Sprigg, vice president for policy at the Family Research Council, a Christian organization that opposes same-sex marriage, said the group was considering several strategies, including a legal challenge on whether the legislation violates the Defense of Marriage Act, which defines marriage as between a man and a woman. 'I'm concerned that every step closer to same-sex marriage that does not meet resistance makes it easier for some people to accept same-sex marriage down the road,' Sprigg said."

Source of reference to AP article: ADF Alliance Alert

IN ACCORDANCE WITH TITLE 17 U.S.C. SECTION 107, THIS MATERIAL IS DISTRIBUTED WITHOUT PROFIT TO THOSE WHO HAVE EXPRESSED A PRIOR INTEREST IN RECEIVING THE INCLUDED INFORMATION FOR RESEARCH AND EDUCATIONAL PURPOSES. PROP8LEGALCOMMENTARY HAS NO AFFILIATION WHATSOEVER WITH THE ORIGINATOR OF THIS ARTICLE NOR IS PROP8LEGALCOMMENTARY ENDORSED OR SPONSORED BY THE ORIGINATOR.

Pending legislation in Maine to end discrimination in civil marriage: Gov. John Baldacci "keeping an open mind"

On April 24th, Maine's House Judiciary Committee will hold a public hearing of proposed legislation on equal protection of the right to marry (An Act to Prevent Discrimination in Civil Marriage and Affirm Religious Freedom,124th Legislature, SP 384).

04/08/09 Chicago Tribune:

"AUGUSTA, Maine - A day after the Vermont Legislature passed a gay marriage bill over the governor's veto, Maine Gov. John Baldacci said Wednesday he was 'keeping an open mind' on the issue he has opposed in the past and the State House will consider this month. 'We certainly watch and listen to what's happening around us, but I think we have a process here in Maine where Mainers have an opportunity at the public hearing to comment on this and give their opinions,' Baldacci told The Associated Press a day after the Vermont House followed the Senate in voting to override Gov. Jim Douglas' veto."

Source of reference to Chicago Tribune article: ADF Alliance Alert

Iowa, Vermont gay marriages spark debate in California

04/09/09 AP (posted to The Herald, South Carolina):

Shannon Price Minter is legal director of the National Center for Lesbian Rights, and particpated in the oral arguments in the Prop. 8 litigation.

Minter said Iowa's ruling "was important to California in two ways. First, the Iowa court stresses 'that equal protection is such an essential structural foundation of our system of government' that it can't be left to the ballot initiative process. Second, Iowa justices adopted the California Supreme Court's analysis of why providing a separate status for same sex couples is inherently unequal."

(I find no support in the Varnum ruling for the first of Minter's assertions, though I would welcome reader comment.)

William Eskridge, a professor at Yale Law School and scholar on the gay marriage issue, said "the Iowa decision actually relies on the California decision ... I think that both their legal analysis and their unanimity was surely influenced by the California decision, which they lavishly quote." But, he added, "I don't believe that will influence the Chief Justice and the majority of the court."

IN ACCORDANCE WITH TITLE 17 U.S.C. SECTION 107, THIS MATERIAL IS DISTRIBUTED WITHOUT PROFIT TO THOSE WHO HAVE EXPRESSED A PRIOR INTEREST IN RECEIVING THE INCLUDED INFORMATION FOR RESEARCH AND EDUCATIONAL PURPOSES. PROP8LEGALCOMMENTARY HAS NO AFFILIATION WHATSOEVER WITH THE ORIGINATOR OF THIS ARTICLE NOR IS PROP8LEGALCOMMENTARY ENDORSED OR SPONSORED BY THE ORIGINATOR.

Renewed resolve to pass and oppose marriage equality legislation, and to pass constitutional marriage amendments banning same-sex marriage

04/09/09 NY Times:

"Advocates for same-sex marriage in New York and New Jersey said the action in Vermont was one more reminder that now, more than ever before, is the time for the states to grant full marital rights for gay and lesbian couples ... On Wednesday, as both sides moved to seize the momentum, Gov. David A. Paterson vowed to introduce a bill that would legalize gay marriage ... New York and New Jersey are both closer to legalizing same-sex marriage than they were a year ago, but it still could be some time before either state acts ... Gov. Jon S. Corzine of New Jersey has said he will sign a bill allowing gay couples to marry."

Source of reference to NY Times article: ADF Alliance Alert

04/09/09 Ben Smith's Politico Blog:

"The National Organization for Marriage, a prominent backer of the successful campaign against same-sex marriage in California, is launching a $1.5 million ad campaign this morning aimed at forestalling same-sex marriage support in other key states."

"UPDATE: The gay rights group Human Rights Campaign responds to the ad's assertions."

Source of reference to Politico Blog: ADF Alliance Alert

The NY Times reports on the ad:

"The first television commercial, with people describing same-sex marriage as a threat to their personal and religious freedoms against a backdrop of dark clouds and bolts of lightening, began appearing on Wednesday [April 8th]."

04/09/09 Leonard Link:

Summarizing the latest developments on the legal status of same-sex couples, New York Law School Professor Arthur Leonard considers evidence that it has reached a "tipping point" for the marriage-equality movement to spread to other states. He thinks that

"the Iowa decision is causing the more thoughtful conservatives to think anew about the marriage issue. After all, it was a unanimous, bipartisan ruling from the heartland of America, written in plain English, making cogent arguments, exploding popular right-wing myths, and ultimately leading to the most important question in this entire debate: 'Why not?'"

He also speculates on the timing of the recent challenge to the federal Defense of Marriage Act on behalf of eight Massachusetts same-sex couples and three same-sex widows. The Gay and Lesbian Advocates and Defenders, which co-filed the lawsuit,

"studiously avoided any head-on challenges to DOMA until there was some momentum towards same-sex marriages - until a tipping point seemed to be reached - so clearly filing the lawsuit was a sign that the point has arrived to seek FULL marriage rights, which requires federal recognition of the marriage status created under state law."

04/07/09 NY Times:

"MONTPELIER, Vt. — Gay-rights groups say that momentum from back-to-back victories on same-sex marriage in Vermont and Iowa could spill into other states, particularly since at least nine other legislatures are considering measures this year to allow marriage between gay couples ... New York, New Jersey, Maine and New Hampshire are among the states where such proposals have gained legislative support in recent months ... Several groups that oppose same-sex marriage suggested Tuesday that the successive victories for gay rights advocates would give the opposition movement new energy." (On expressions of opposition, see also this Christian Post article.)

Jennifer C. Pizer, the marriage project director for Lambda Legal, told the NY Times that in states whose constitutions ban same-sex marriage, "we will have a period that we really haven’t ever seen before in American history of people needing to undo state constitutional amendments — which is not an easy thing to do."

Source of reference to NY Times article: ADF Alliance Alert

04/04/09 NY Times:

"But for now, New England remains the nucleus of the same-sex marriage movement, with a campaign under way to extend marriage rights to gay men and lesbians in all six of the region’s states by 2012."

Source of reference to NY Times article: ADF Alliance Alert

04/08/09 Florida Baptist Witness:

Douglas Napier, an attorney with the conservative Alliance Defense Fund, called the ruling [in Varnum v. Brien]“astonishing.” A native Iowan, he has practiced law there for 16 years. “I don’t think it’s over in Iowa yet. If you look at the track record in the states, 30 out of 30 times when marriage has been put to the people, the people have upheld traditional marriage,” he told Baptist Press. “I expect Iowans to follow that. ... If a marriage amendment was put before the people of Iowa today, I think we would probably see some of the highest numbers in the country in all of the marriage amendment elections in favor of marriage. This decision does not represent Iowa.”

Source of reference to Baptist Witness article: ADF Alliance Alert

04/07/09 Church Executive:

Groups supporting traditional marriage say they expect the Iowa ruling to prompt other states to seek constitutional marriage amendments. ‘This (ruling) will catapult all of those states forward in the marriage amendment process,’ said Douglas Napier, senior legal counsel for the Alliance Defense Fund, a Christian legal group, according to the Associated Press. ‘I think they’re going to work hard to get it on their constitution before another renegade court goes out and creates new law,’ he told AP.”

Source of reference to Church Executive article: ADF Alliance Alert

04/06/09 Google News comment by ADF Senior Legal Counsel Douglas Napier, in response to Evan Wolfson, author of Why Marriage Matters; America, Equality, and Gay People’s Right to Marry:

Napier, in his comment, faults Iowa legislators for not pursuing a state constitutional amendment to reverse the Varnum ruling:

"The [Iowa] politicians who are keeping the marriage amendment bottled up in committee know that if the legislature voted on the amendment, it would pass, and it would pass again during the next qualified session of the legislature, and it would then be approved by the people of Iowa. They know that in 30 out of 30 states when the people have had the opportunity to decide the issue of marriage, marriage as defined as a union between one man and one woman has always won. They know that, when the people decide, their elusive rainbow fades away."


Source of reference to Napier's comment: ADF Alliance Alert

IN ACCORDANCE WITH TITLE 17 U.S.C. SECTION 107, THIS MATERIAL IS DISTRIBUTED WITHOUT PROFIT TO THOSE WHO HAVE EXPRESSED A PRIOR INTEREST IN RECEIVING THE INCLUDED INFORMATION FOR RESEARCH AND EDUCATIONAL PURPOSES. PROP8LEGALCOMMENTARY HAS NO AFFILIATION WHATSOEVER WITH THE ORIGINATOR OF THIS ARTICLE NOR IS PROP8LEGALCOMMENTARY ENDORSED OR SPONSORED BY THE ORIGINATOR.

D.C. Council Votes To Recognize Gay Nuptials Elsewhere

04/08/09 Washington Post:

"The D.C. Council unanimously voted yesterday to recognize gay marriages performed elsewhere, joining a growing number of states to loosen restrictions on the unions ... Under Home Rule, the District's laws are subject to approval by Congress ... [D.C. Council Member David A.] Catania plans to introduce legislation 'very soon' to legalize gay marriage in the District."

Source of reference to Washington Post article: Stop8.org

IN ACCORDANCE WITH TITLE 17 U.S.C. SECTION 107, THIS MATERIAL IS DISTRIBUTED WITHOUT PROFIT TO THOSE WHO HAVE EXPRESSED A PRIOR INTEREST IN RECEIVING THE INCLUDED INFORMATION FOR RESEARCH AND EDUCATIONAL PURPOSES. PROP8LEGALCOMMENTARY HAS NO AFFILIATION WHATSOEVER WITH THE ORIGINATOR OF THIS ARTICLE NOR IS PROP8LEGALCOMMENTARY ENDORSED OR SPONSORED BY THE ORIGINATOR.

Vermont legalizes gay marriage and the role of courts in popular constitutionalism

04/07/09 Burlington Free Press:

"MONTPELIER — Vermont has become the fourth state to legalize gay marriage — and the first to do so with a legislature’s vote.

"The Legislature voted Tuesday to override Gov. Jim Douglas’ veto of a bill allowing gays and lesbians to marry. The vote was 23-5 to override in the state Senate and 100-49 to override in the House. Under Vermont law, two-thirds of each chamber had to vote for override."

Vermont is "now the fourth state to permit same-sex marriage. Massachusetts, Connecticut and Iowa are the others. Their approval of gay marriage came from the courts."

The hunter of justice blog provides this Burlington Free Press link to the veto override in the state House. Vermont Public Radio provides full coverage of the legislature's action on the marriage equality legislation.

04/07/09 Gender & Sexuality Law Blog:

Law professor Katherine M. Franke is Director of Columbia Law School's Gender & Sexuality Law Program. She favors legalization of same-sex marriage "through legislative action as compared with the [defense-of-marriage] law being invalidated from the top down by the courts." A Washington Post editorial also praises the legitimacy of "the right of the duly elected peoples' representatives [in Vermont] to take such action."

But court intervention can provide a critical catalyst to democratic reform of the kind Franke and the Washington Post favor. Former Chief Justice Jefff Amestoy wrote the majority opinion in Baker v. State of Vermont, 744 A.2d 865 (Vt. 1999). This ruling required Vermont to honor its constitutional guarantee of equal protection to same-sex couples, and ultimately led to today's historic fulfilment of that guarantee in enactment of the marriage equality law. Amestoy recently wrote of the Prop. 8 litigation that "a judicial decision may be the opening argument in a process that preserves the ultimate constitutional authority of the people."

Of course, state supreme courts have no opportunity to spark or advance democratic reform in states whose constitutional amendments limit such fundamental rights as the rights to marry. (29 states have constitutional amendments that ban same-sex marriage, and 43 states have amendments and/or statutes that ban it.) And yet even in these states, public opinion may gradually respond to rulings by other state supreme courts to remove restrictions on the exercise of fundamental rights. Rulings to uphold equal protection of the right to marry have the potential to help shift public opinion, especially as married same-sex couples can be expected to follow the example of married same-sex couples in New York, who have challenged that state's DOMA with respect to recognition of their out-of-state marriages.

On the other hand, at least one celebrated, state supreme court ruling on the right to marry did not help change public opinion. Over 30 states had constitutional provisions and/or statutes banning interracial marriage when, in Perez v. Sharp, 32 Cal.2d 71 (1948), the California Supreme Court took the unprecedented step of outlawing restrictions on interracial marriage. (See my 03/28/09 post.) Less than 20 years later, in Loving v. Virginia, 388 U.S. 1 (1967), the U.S. Supreme Court overturned constitutional and statutory bans on interracial marriage. In the interim, 14 states repealed such bans (Loving, at 6, n.5). Perez had no direct influence on the repeals, even as it at anticipated changing public opinion on interracial marriage.

Moreover, as Franke observes, court intervention can backfire in the handful of states that allow voters to directly amend the state constitution through a constitutional initiative. In California, the relative ease of state constitutional amendment may subvert state constitutional protection of fundamental rights when the California Supreme Court acts to uphold such rights. Or so Chief Justice Ronald George appeared to suggest in the Prop. 8 oral arguments.

But over the long-term, the California Supreme Court's ruling in In re Marriage Cases, 43 Cal.4th 757 (2008), may not backfire. If the Court upholds Prop. 8, that outcome is likely to renew democratic participation, in the form of another voter-initiative amendment to repeal Prop. 8. In fact, such an initiative amendment has already been proposed for California's 2010 election. (See pending intiative 1357, reinstating the "Right of Same-Sex Couples to Marry. Initiative Constitutional Amendment.") Reporting on how the Prop. 8 litigation has affected young voters in Colorado, the Denver Post identifies young sponsors of a proposed initiative amendment in that state to repeal its 2006 constitutional amendment banning same-sex marriage.

IN ACCORDANCE WITH TITLE 17 U.S.C. SECTION 107, THIS MATERIAL IS DISTRIBUTED WITHOUT PROFIT TO THOSE WHO HAVE EXPRESSED A PRIOR INTEREST IN RECEIVING THE INCLUDED INFORMATION FOR RESEARCH AND EDUCATIONAL PURPOSES. PROP8LEGALCOMMENTARY HAS NO AFFILIATION WHATSOEVER WITH THE ORIGINATOR OF THIS ARTICLE NOR IS PROP8LEGALCOMMENTARY ENDORSED OR SPONSORED BY THE ORIGINATOR.

Iowa Senate Majority leader says no move to overturn gay marriage decision

04/07/09 ABC News

On March 13th, two Iowa House Representatives introduced a proposed constitutional amendment to ban same-sex marriage if the state Supreme Court overturned Iowa's Defense of Marriage Act [Iowa Code section 595.2(1)]. Although the Court overturned the state DOMA on April 3rd, ABC News reports that Senate Majority Leader Michael Gronstal, D-Council Bluffs, does not intend to act on the proposed amendment.

"One option for gay marriage opponents seeking to amend the state's constitution is to push for a constitutional convention. Every 10 years voters are asked in the general election ballot if they want to hold a constituitonal convention.

"If voters decide in 2010 they want one, it could be held the following year."

(Source of ABC News report: ADF Alliance Alert)

IN ACCORDANCE WITH TITLE 17 U.S.C. SECTION 107, THIS MATERIAL IS DISTRIBUTED WITHOUT PROFIT TO THOSE WHO HAVE EXPRESSED A PRIOR INTEREST IN RECEIVING THE INCLUDED INFORMATION FOR RESEARCH AND EDUCATIONAL PURPOSES. PROP8LEGALCOMMENTARY HAS NO AFFILIATION WHATSOEVER WITH THE ORIGINATOR OF THIS ARTICLE NOR IS PROP8LEGALCOMMENTARY ENDORSED OR SPONSORED BY THE ORIGINATOR.

Legal commentary on the Iowa Supreme Court's decision to overturn the state's statutory ban on same-sex marriage

I summarize the ruling here , and Brisbane family law practitioner Stephen Page summarizes it here. New York Law School Professor Arthur Leonard provides his analysis here.

Press Comments: Impact in California and West Virginia

04/04/09 Washington Post:

"Justices look at opinions from other states," said Jennifer C. Pizer, the national marriage project director for Lambda Legal, which brought the Iowa case. "There's a significant likelihood that [the decision] will influence other states, like California."

04/03/09 NY Times:

Camilla Taylor, a senior staff lawyer for Lambda, said the Supreme Court ruling in a way was merely "vindicating quintessential Iowa values," namely, a commitment to families. That this battle was being waged in Iowa, Ms. Taylor said, would have a "transformative effect" not just on the Midwest, but elsewhere.

"The fact that it's here in some way highlights the inevitability of this all," she said.

04/04/09 Palm Springs Desert Sun:

Shannon Minter is legal director of the National Center for Lesbian Rights (NCLR), and participated in the Prop. 8 litigation oral arguments. NCLR filed an amicus brief in the Iowa case. This article produces a statement from NCLR's press release:

"The eyes of California and the world are now on the California Supreme Court, which must determine whether equal protection means equal, and whether Californians will continue to share that equality in the freedom to marry. We hope the California Supreme Court will uphold the principle of equality, just as the Iowa Supreme Court has done.”

04/03/09 Liberty Counsel press release:

Mathew Staver is founder of Liberty Counsel and Dean of Liberty University School of Law. He filed motions to intervene and amicus briefs in the Prop. 8 litigation and the Varnum case. In his press release, he said:

"The definition of marriage, which throughout history has been defined as a union of one man and one woman, is not discriminatory. Maintaining the definition of marriage does not deprive anyone of the fundamental right to marry. Laws may properly restrict marriage of same-sex couples just as the law may forbid incestuous or polygamous marriages."

He also told the Washington Post:

"The Iowa Supreme Court has become a proselytizing engine of radical social change. Untying the knot that holds together traditional marriage will unravel the family, destabilize the culture and harm children."

04/04/09 SF Chronicle:

UC Hastings School of Law Professor Calvin Massey said, ""I think you're likely to see more victories in judicial chambers for advocates of same-sex marriage. The judiciary in general is more liberal on this issue than the population as a whole."

04/04/09 LA Times:

University of Southern California law professor David Cruz told the LA Times that the ruling could influence the California Supreme Court's decision on Prop. 8 "if there are justices who are still wavering one way or another."

"It shows them that a Republican appointee writing for a unanimous court in a not decidedly liberal state takes the view that there are basic constitutional guarantees that are especially important for the judiciary to enforce," Cruz said.

"The opinion is very, very careful to lay out its understanding of the role of the judiciary at some length and to defend that role," Cruz said, adding that the ruling dealt heavily with "the importance of an independent judiciary enforcing constitutional rights even if they might be unpopular with a large majority."

04/03/09 West Virginia MetroNews:

Speaking about a proposed constitutional ban on same-sex marriage, [attorney] Steven Skinner, with Fairness West Virginia says what happens in Iowa will stay in Iowa. "This is an Iowa decision on Iowa law based on the Iowa Constitution," Skinner said on Friday's MetroNews Talkline. "It really has no effect in West Virginia and we need to make sure that we stay calm about what this means because it really doesn't mean anything in West Virginia."

Source of MetroNews reference: 04/03/09 ADF Alliance Alert

04/04/09 Christian Science Monitor:

"The strongest argument for traditional marriage has always been anchored in faith," says Douglas Kmiec, a law professor at California's Pepperdine University and an opponent of same-sex marriage. "The issue is one that affects every part of the country and it is a topic that requires the balancing of claims of equality and religious freedom," he adds.

He argues that legislatures need to carve out explicit religious exemptions. These would ensure that legal protections for gay equality do not eventually impact churches' tax benefits, hiring practices, and public activities. He and others have also mooted removing the state from marriage altogether.
Blog Posts

04/04/09 NY Times Room for Debate Blog:

"The Iowa Supreme Court struck down as unconstitutional the state’s 1998 law limiting marriage to a man and a woman. Iowa now becomes the third state in the country, along with Massachusetts and Connecticut, to allow gay marriage. The decision is considered groundbreaking because no Midwestern state has permitted same-sex marriage, and at least six in the region have adopted constitutional amendments banning gay marriage.

"We asked Kenji Yoshino and Robert F. Nagel, two constitutional law scholars who’ve written about this issue, to give us their thoughts on the decision and the language of the court."

04/04/09 Sexual Orientation and the Law Blog:

"Professor Pat Cain, who helped organize a law and history professors' amicus brief in Varnum, writes in today's Iowa City Press-Citizen that unlike the California constitution, Iowa's constitution wisely does not allow the people to amend the constitution directly. Iowa's constitution, as the Iowa Supreme Court emphasized today, protects our 'republican form of government.' Under this form of government, the legislative branch enacts legislation and the courts serve as a check on that legislative power to protect individual freedoms and ensure equal treatment."

04/09/09 Gender & Sexuality Law Blog:

Law professor Katherine M. Franke is Director of Columbia Law School's Gender & Sexuality Law Program. She writes:

The court also makes every effort to situate the marriage case within the context of local Iowan values. Whether it was a refusal to recognize the legitimacy of slavery in 1839, a recognition that racial segregation violated the Iowa Constitution in 1873 long before the U.S. Supreme Court did in 1954, or being the first state to grant women the right to practice law in 1869, Iowans have had their own strong sense of justice and fairness, and as the court noted, “in each of these instances, our state approached a fork in the road toward fulfillment of our constitution’s ideals and reaffirmed the ‘absolute equality of all’ persons before the law as ‘the very foundation principle of our government.’”


IN ACCORDANCE WITH TITLE 17 U.S.C. SECTION 107, THIS MATERIAL IS DISTRIBUTED WITHOUT PROFIT TO THOSE WHO HAVE EXPRESSED A PRIOR INTEREST IN RECEIVING THE INCLUDED INFORMATION FOR RESEARCH AND EDUCATIONAL PURPOSES. PROP8LEGALCOMMENTARY HAS NO AFFILIATION WHATSOEVER WITH THE ORIGINATOR OF THIS ARTICLE NOR IS PROP8LEGALCOMMENTARY ENDORSED OR SPONSORED BY THE ORIGINATOR.

Will the Vermont legislature override Governor James Douglas' promised veto of marriage equality legislation?

04/04/09 Brattleboro Reformer:

"[T]he gay marriage bill [S.115] will advance to Gov. James Douglas' desk after the measure passed by 42 votes [in the state House], just a few voices shy of the two-thirds majority needed to override the governor's expected veto."

Iowa Supreme Court unanimously rules that state's defense-of-marriage law violates equal protection clause of Iowa constitution

04/03/09 ruling in Varnum v. Brien

Here is my summary of the 69-page ruling.

In 2005, "six same-sex couples in this litigation asked the Polk County recorder to issue marriage licenses to them. The recorder, following the law, refused to issue the licenses, and the six couples have been unable to be married [in Iowa] ... In turning to the courts, the twelve plaintiffs filed this lawsuit in the Polk County District Court. They claimed the statutory same-sex marriage ban violates certain liberty and equality rights under the Iowa Constitution ... The district court concluded the statute was unconstitutional under the due process and equal protection clauses of the Iowa Constitution and granted summary judgment to the plaintiffs. It initially ordered the county recorder to begin processing marriage licenses for same-sex couples, but stayed the order during the pendency of an appeal."

"In this case," the Iowa Supreme Court ruled, "we must decide if our state statute limiting civil marriage to a union between a man and a woman violates the Iowa Constitution, as the district court ruled. On our review, we hold the Iowa marriage statute violates the equal protection clause of the Iowa Constitution. Therefore, we affirm the decision of the district court."

The Court also ruled that even if a law was enacted to confer all the rights and duties of marriage on same-sex civil unions, that law would not satisfy the state constitution's equal protection clause. In this respect, the Iowa Supreme Court has departed from state Supreme Court rulings in Vermont [Baker v. State, 744 A.2d 864, 887 (Vt. 1999)] and New Jersey [Lewis v. Harris, 908 A.2d 196, 221 (N.J. 2006)], which required the legislature to enact civil union laws as equal protection remedies.

The constitutional issue of equal protection comes to the Court "with the same importance as our landmark cases of the past" overturning slavery and segregation. The Court found that even though same-sex couples can not naturally procreate, same-sex and opposite-sex couples are similarly situated with respect to the purposes of the state's marriage law. The Court also found that the state's marriage law classifies eligibility for marriage according to sexual orientation, even if gays and lesbians may marry members of the opposite sex.

Furthermore, the Court decided that, like the Connecticut Supreme Court [Kerrigan v. Commissioner of Public Health, 957 A.2d 407, 432 (2008)] and the California Supreme Court [In re Marriage Cases, 183 P.3d 384, 442-43(2008)], it must apply heightened scrutiny to whether the state may treat same-sex couples unequally by excluding them from marriage. Distinguishing between stronger and weaker levels of scrutiny - "strict scrutiny" and "intermediate scrutiny," respectively - the Court found that even under the weaker standard of intermediate scrutiny, Iowa's marriage law violates the state consitution's guarantee of equal protection.

Intermediate scrutiny requires the Court to deterimine whether the state has an important purpose in limiting marriage to opposite-sex couples, and whether the law's marrital exclusion of same-sex couples is substantially related to that purpose. The Court considered the government's reasons for excluding same-sex couples from civil marriage. The reasons advanced include:

1. "Maintaining traditional marriage."
2. "Promotion of optimal environment to raise children."
3. "Promotion of procreation."
4. "Promoting stability in opposite-sex relationships."
5. "Conservation of resources."

The Court found that the state constitution's "equal protection clause requires more than has been offered to justify the continued existence of the same-sex marriage ban under the statute." The statutory ban on same-sex miarriage does not substantially further several of the law's stated goals, because the means of the statutory ban falls too short of its goals, or because it overreaches. The ban fars too short of meeting a goal by letting heterosexuals marry even when they lack a trait the goal requires, even as the ban applies to gays and lesbians who have that trait. And it overreaches by excluding same-sex couples whose exclusion the goal does not require.

The Court concluded that the first reason is, in fact, a fallacy of circular reasoning. It is akin to saying that the government must continue to exclude same-sex couples from marriage, based on their sexual orientation, in order to maintain a tradition of such exclusion.

The second reason is an important justification, but excluding same-sex couples from marriage does not substantially advance it. The marriage law does not reach far enough with respect to its child-raising goal, because it allows heterosexual parents to marry who are unsuited to good parenting, even as it also overreaches by denying marriage to same-sex couples who do not wish to raise children. In addition, it does not protect the best interests of children of same-sex couples, and does not benefit the children of opposite-sex couples.

While the third reason also represents an important justification, "the link between exclusion of gay and lesbian people from marriage and increased procreation is far too tenuous to withstand heightened scrutiny." The Court could find no connection between the fourth goal and the marrital exclusion of same-sex couples. And if the fifth goal of banning same-sex marriage is to conserve state resources, the marriage law does not reach far enough, and also overreaches. It does not reach far enough, because "[e]xcluding any group from civil marriage—African-Americans, illegitimates, aliens, even red-haired individuals—would conserve state resources in an equally 'rational' way." And it overreaches, because same-sex couples may not need state resources any more than opposite-sex couples, and yet same-sex couples are not allowed to marry.

Finally, the Court determined that "civil marriage must be judged under our constitutional standards of equal protection and not under religious doctrines or the religious views of individuals." The Court was careful to acknowledge the state constitution's guarantee of religious freedom to solemnize marriages according to religious values.