Law Professor Nan Hunter interviews Kate Kendell on Prop. 8 litigation

09/25/09 hunter of justice:

Law professor Nan Hunter interviewed Kate Kendell, the executive director of the National Center for Lesbian Rights (NCLR), while Kendell was in New York. I have transcribed part of this interview on the Perry case. Kendell speaks to an issue first raised in the amicus brief that NCLR, the ACLU, and Lambda Legal jointly filed in June. That issue concerns the appropriate scope of the challenge to Prop. 8. See the comments that I have highlighted.

Nan Hunter: "What's going on with the Perry case ... What do you think we can expect to see? Many are interested in the 'back story.'"

Kate Kendell: "We did not know the case was coming. We found out ... a couple of days before it got filed .... we got an e-mail from Chad Griff and Bruce Cohen, both people I know who are involved in the foundation funding the litigation. We had the same reaction a lot of people did ... this is a high stakes kind of play that is a huge reward if you are successful at the U.S. Supreme Court ... a huge risk if you loose ... Ted Olson [with whom she talked directly about the Perry case days after its filing] really convinced me that he is completely committed. He said that he thinks it will be the most important fight of his legal career, and I believe he believes that, and he means it. Does that translate into success? Well, that's out of his control, but I do think they are committed, that they will litigate it as well you possibly could. But I have the concerns that anyone would have with the stakes so high ... They have a very short time frame .. they have to present a very convincing case as they go up on appeal ... and they have to present the kind of case that gets Justice Kennedy, who's that fifth vote - I think that they will get the other four votes, but they have to get Kennedy. If it's just a narrow challenge to Prop. 8 - and the fact that Prop. 8 is unconstitutional - I think there's quite a good chance that that lawsuit would be successful. If it's an overall challenge to every law that prohibits same-sex couples from getting married, 29 states have constitutional amendments ... I think that is a really heavy lift for [the Supreme] Court, given Kennedy's leaning as a state's rights jurist ... There is nothing I would hope for more than for the lawsuit to be successful, because it would certainly transform things very quickly for LGBT people in this country.

Can Same-Sex Couples Get a Divorce in Tennessee?

09/29/09 The Tennessee Divorce and Custody Blog:

Considering the divorce case in Indiana, attorney Lawrence A. Ballew offers this comment about same-sex marriages and divorce law in Tennessee:

It may seem unfair, but since Tennessee cannot recognize a same-sex marriage, the courts cannot award a judgment of divorce to these couples. This is exactly the same situation as in Indiana.

Gay marriages easy in British Columbia, but divorces aren’t

09/25/09 Vancouver Sun / Gay Marriage Watch:

It’s easy to get married in [British Columbia], but there’s no such thing as a quickie divorce, as a growing number of foreign same-sex couples who came here to be married — but now want a divorce — are finding out.

I posted earlier today on the latest example of this problem.

Representing Wisconsin, attorney Lester Pines asks state Supreme Court to deny petition for original review of state's domestic partnership law

09/28/09 Greenbay Press Gazette:

MADISON — Lawyers representing Gov. Jim Doyle, a gay rights group and several gay couples have asked the Wisconsin Supreme Court to reject a challenge to the state's new domestic partnership registry ... Madison attorney Lester Pines, hired by Doyle to defend the registry after Attorney General J.B. Van Hollen refused, told the justices there was no urgency and so many facts in dispute that a trial court should consider it first.

The case is case is Appling v. Doyle, No. 2009AP001860 (Wis. Sup. Ct.).

Law professor Sam Marcosson to argue that the Perry case should not have been brought

09/28/09 Bradley University press release, posted at PeoriaStory:

In an upcoming discussion of the Perry case, law professor Sam Marcosson will contend that

[d]espite its strength on the merits, and even despite the undoubted quality of the attorneys handling the case, the plaintiffs’ chances of success are exceedingly small. Indeed, the best that advocates for LGBT rights can realistically hope for is that the case never reaches the Supreme Court at all, or that if it does, the Court ends up not deciding the case on the merits. This is a case study in the necessity of effectively and carefully judging the litigation landscape, and of learning the lesson that Thurgood Marshall and the NAACP Legal Defense Fund taught us more than half a century ago: few qualities are more important than patience in a legal struggle for civil rights and equality. In bringing the Perry case, Boies and Olsen forgot that lesson.

Law professor Katherine Darmer on Varnum v. Brien

09/23/09 Pacific Progressive.com:

At a recent Americans United meeting, law professor Katherine Darmer offered her observations on Varnum v. Brien and ENDA.

Law professor Nelson Lund: The Case against Boies-Olson: Wrong on the law, and on civilization

09/24/09 National Review / ADF Alliance Alert:

Law professor Nelson Lund faults attorneys Theodore Olson and David Boies for their reliance in the Perry case on three central precedents to argue that bans on same-sex marriage violate the equal protection and due process clauses of the 14th Amendment.

Prenuptial Agreements Make Gay Marriage Portable State to State

09/28/09 Gay Couples Law Blog:

Attorney Gideon Alper provides helpful information on the value of prenuptial agreements, not just for married same-sex couples, but also for same-sex couples who can not marry in their states of residence.

Indiana woman to appeal same-sex divorce denial

09/28/09 AP / 09/26/09 IndyStar.com:

On September 4th, a superior court in Indiana denied a divorce petition filed by Tara Ranzy, on the grounds that it has no statutory authority to dissolve a same-sex marriage. Ranzy married her spouse, Larissa Chism, in Canada, and subsequently moved with her to Indiana, where they decided to seek a divorce. The case is In re Marriage of Tara Ranzy and Larissa Chism, No. 49D12-0903-DR-014654 (Ind. Marion County Super. Ct.).

Ranzy has asked her attorney to appeal the ruling, which I expect to post in October. The case is In re Marriage of Tara Ranzy and Larissa Chism, No. 49D12-0903-DR-014654 (Ind. Marion County Super. Ct.).

Contest over discovery in Perry v. Schwarzenneger

09/28/09 The Recorder:

On September 25th, Judge Vaughn Walker heard arguments in Perry v. Schwarzenneger over whether defendants must disclose to plaintiffs e-mail and documents used last year in the Yes on 8 campaign. Thanks to California attorney Rick Xiao for alerting me to this article.

Attorney Rick Xiao on the opposition to motion for summary judgment in Perry v. Schwarzenneger

PLAINTIFFS’ AND PLAINTIFF-INTERVENOR’S JOINT OPPOSITION TO DEFENDANT-INTERVENORS’ MOTION FOR SUMMARY JUDGMENT, filed 09/23/09, in Perry et al. v. Schwarzenegger et al., No. 3:09-cv-02292 (N.D.Cal.)

On September 8th, attorneys for the official Prop. 8 proponents filed their motion for summary judgment in Perry v. Schwarzenneger. On September 23rd, Theodore Olson and Therese Stewart filed a joint opposition to the motion for plaintiffs and plaintiff-intervenor, the City and County of San Francisco.

Rick Xiao is a California attorney and a regular commentator on this blog. He alerted me to the opposition filing, and I am pleased to offer his comment on it:

Plaintiffs’ opposition to summary judgment in the federal Prop. 8 lawsuit is noteworthy in several respects. It deals with Baker v. Nelson head on because defendants have cited that case for a summary dismissal as a matter of law. Given that the Baker decision is almost 40 years old, it is time that the federal court reexamine Baker’s continuing validity (if any) and binding effect on today’s marriage litigation. Because defendants’ argument based on Baker presents a legal question, Judge Walker will need to rule on it directly for the purpose of a summary judgment motion.

Moreover, plaintiffs’ opposition brief identifies several disputed material facts, such as immutability of one’s sexual orientation, political power of gay and lesbian individuals as a minority group, the actual or likely effect of Prop. 8 on heterosexual marriages and procreation. This new approach is significant in that courts have decided similar issues as a matter of law in the past marriage litigation without relying on the parties’ discovery or trial testimonies. But litigating these matters as factual disputes (which require a trial) would help develop a more comprehensive record for the appellate court, which might make a difference in the outcome.

Notably, this is the first time since the commencement of the lawsuit that the parties have fully and clearly staked out their case theories and positions. For example, in their opening brief defendants have asserted several new state interests to justify Prop. 8 under the rational review standard. Correspondingly, plaintiffs have offered their rebuttals of those new assertions. The parties’ summary judgment briefs have drawn the battleground for a showdown at the upcoming trial and the potential appeal to the U.S. Supreme Court.

Even at this juncture, Judge Walker has been called upon to reexamine several precedents of the U.S. Supreme Court and the Ninth Circuit, due to the highly contentious arguments advanced in the parties’ briefs. Moreover, if the case passes the summary judgment stage, Judge Walker will conduct a full trial on the merits as to the constitutionality of same-sex marriage for the first time in U.S. history. To get it right, Judge Walker needs both wisdom and courage. What happens in this case will not only set a new legal precedent, but also influence the legal strategy for marriage litigation in the country.

Congressman Jared Polis on The Respect for Marriage Act

09/24/09 CNN.com:

Rep. Jared Polis, a Democrat, represents Colorado's 2nd Congressional District. He co-authored The Respect for Marriage Act.

[The federal DOMA] prevents states from determining what marriages to allow or not allow by second guessing them at the federal level ... The Respect for Marriage Act will provide couples with much-needed certainty that their lawful marriages will be honored under federal law and that they will have the same access to federal responsibilities and rights as all other married couples.

Love Honor Cherish files proposed ballot initiative to repeal Prop. 8

09/24/09 request for title and summary of proposed initiative to repeal Cal. Const. Art. I, Sec. 7.5, adopted by Prop. 8

Here is the filing organization's press release, and here is a helpful ADF Alliance Defense Fund Alert about the repeal initiative. The proposed initiative has marginal exemption for religious liberty - marginal because the First Amendment already protects the religious-liberty interest at issue. So why has it been included? John Henning of Love Honor Cherish told the Christian Science Monitor:

Many churches would love to perform same-sex marriage, but we all agree that if someone else’s doesn’t want to, they shouldn’t be forced by law or courts. The First Amendment already gives this protection, but people feel better with the language in here, so we’re giving it to them.

It's still unclear why this provision represents anything more than a token gesture to those concerned about the wider (and disputed!) implications of the proposed repeal for religious liberty.

Having just posted on the Balde case, I take particular interest in this disclosure by the Bay Area Reporter:

The proposed initiative does not include a provision assuring people that schools will not be teaching about same-sex marriage. Some California schools do have curriculum that discusses topics such as LGBT-headed families. Including a provision addressing the issue is something that many in the LGBT community are opposed to, noted [John Henning, executive director of Love Honor Cherish.] There's a concern that "no matter how you write that section, there's a possibility there would be a chilling effect on what is taught at schools," he said.

Brief supporting petition for writ of mandamus in Balde v. Alameda Unified School District, why it matters, and AUSD's likely counsel

Memorandum of points and authorities supporting petition for writ of mandamus in Balde v. Alameda Unified School District, No. RG09-468037 (Cal. Alameda County Super. Ct.), filed 09/21/09

As readers of this site know, I have been following a lawsuit in my home town of Alameda, California. In Balde v. Alameda Unified School District (AUSD), plaintiff parents claim a right, under Cal. Educ.C. §51240, to excuse their children from a public school curriculum designed to remedy anti-gay bullying. The curriculum, Safe School Community Curriculum - Lesson 9 ("Lesson 9"), includes instruction on gay families that the parents find at odds with their religious principles. When the AUSD Board adopted Lesson 9 in May, the Board did not also offer an opt-out for these parents. They now allege that Lesson 9 meets the definition of "health instruction" for the purpose of Educ.C. §51240, which entitles them to excuse their children upon written notice.

Of course, the 09/21/09 brief doesn't address AUSD's legal duty to protect the equal right of students to a quality education. State law protects from harassment students who are gay or lesbian, or whose parents are. Although Lesson 9 shares characteristics of "health instruction" as the state Board of Education defines it, so do other curricula, such as social science studies on global diversity in families. Lesson 9 was not developed to advance the goals of health instruction; it was developed to remedy discrimination and prevent harassment. I expect AUSD to mount a compelling defense that Lesson 9 is not health instruction, any more than a social studies program is that has lessons about families. Moreover, other school districts have adopted the same type of curriculum, apparently without controversy. (See, for example, page 9 of this document describing a program by another Bay Area school district.)

Why does the case matter? I have keen interest in a lawsuit that divides my community of Alameda over the extent of legal protections of religious values and students. But the charge of "gay indoctrination in schools" has lately received its predictable share of attention in Maine, owing to tactics that originate in the Prop. 8 campaign. (See posts here and here.) Of course, if opponents of gay marriage in Maine are right, then lawsuits like Balde shouldn't be necessary. Nevertheless, if this lawsuit is not dismissed, Prop. 8 supporters will likely use Balde as an opportunity to defeat a 2010 or 2012 campaign to repeal Prop. 8.

The only real news in the case, incidentally, is that attorneys Louis Leone and Katherine Alberts, of Bay Area law firm Stubbs & Leonne, were noticed (at page 14) in the brief. I expect that they will represent AUSD. The firm focuses on legal issues involving public school districts.

Indiana lesbian spouse who filed divorce petition will not appeal its denial

09/23/09 TheStar.com / Gay Marriage Watch:

In Chambers v. Ormiston, 916 A.2d 758 (R.I. 2007), the Rhode Island Supreme Court relied on a technicality to rule that the Family Court did not have jurisdiction to consider a divorce petition by a Rhode Island lesbian couple who married in Massachusetts. (See this article about the case by law professor Joanna Grossman.) The Indiana Supreme Court might have had opportunity to review a case involving an Indiana lesbian couple - Larissa Chism and Tara Ranzy - who married in Canada, but recently sought a divorce. The Marion County Superior Court recently denied the divorce petition. But Ranzy's attorney, Karen Jensen, told TheStar.com that her client will not appeal. (Ranzy is also closing her practice.)

If the two women seek to marry again, said Janson Wu, an attorney at the New England legal organization Gay & Lesbian Advocates & Defenders (GLAD), their inability to terminate their marriage will pose serious problems: a second marriage with the first still on the books would make them law-violating bigamists.

Lambda Legal aims to join fight on behalf of domestic partnerships in Wisconsin

09/22/09 Milwaukee Journal Sentinel All Politics Blog:

A group of Wisconsin same-sex couples and a national gay-rights legal group is asking to be allowed to be part of a challenge to the creation of Wisconsin’s state’s new domestic partnership program. Lambda Legal, which advocates for civil rights for gay, lesbian, bisexual and transgendered people, is asking the state Supreme Court to allow it to intervene on behalf of Fair Wisconsin, which is defending the domestic partnerships established in the budget Democratic Gov. Jim Doyle signed in July.

The case is Appling v. Doyle, No. 2009AP001860 (Wis. Sup. Ct.). Here is Lambda Legal's press release. I am unable to find online availability of Lambda's motion to intervene. The ACLU has a press release here. It has also filed a motion to intervene, and has filed an opposition to the petition.

09/22/09 AP:

Madison attorney Lester Pines, who is representing the state, said he will also ask the court not to take the case on Tuesday. He had no comment on Fair Wisconsin's planned attempt to intervene, other than to say he had not coordinated with the group his firm has represented in the past. Jim Campbell, a lawyer for the Alliance Defense Fund, which is representing the plaintiffs, said he is not surprised by the attempt to intervene. He said it was too early to know whether the plaintiffs will oppose it.

Indiana court denies divorce petition for same-sex couple

09/14/09 IndyStar.com:

A Marion County court recently denied a divorce for a Hoosier couple because of the state's ban on same-sex marriages, creating an unresolved issue that could cause trouble if either decides to enter into a new marriage ... Marion Superior Court Commissioner Jeffrey Marchal expressed sympathy for the couple's practical concerns, but the order issued Sept. 4 said state lawmakers had not given the courts authority to dissolve same-sex marriages in Indiana's divorce laws. "As the state of Indiana has chosen to prohibit same-sex marriage as a matter of public policy, it might logically follow that Indiana would have a policy interest in granting same-sex divorce," says the order, signed by Marchal and Judge Heather Welch, who presides over that courtroom ... Marchal said his hand was tied by the law, but he did include a declaration in the order that their marriage is "null and void" in the hope they can show it to officials in another state if the need arises.

Attorney Karen Jensen, who represents a spouse in the case, says that no decision has been made to appeal the ruling. Because Jensen will close her practice next month, another attorney will have to represent Tara Ranzy if Ranzy seeks an appeal.

The case is In re Marriage of Tara Ranzy and Larissa Chism, No. 49D12-0903-DR-014654 (Ind. Marion County Super. Ct.). I expect to post the September 4th ruling when I receive it from the Court.

Department of Justice files motion to dismiss in another DOMA case

09/19/09 Leonard Link, by law professor Arthur Leonard::

Professor Leonard provides his usual insightful analysis of the DOJ brief. He also examines the prospect for Gill v. OPM in the U.S. District Court for Masschusetts, and, upon appeal, in the U.S. Court of Appeals for the Federal Circuit.

09/18/09 Volokh Conspiracy, by law professor Dale Carpenter:

Today the DOJ filed its motion to dismiss in another case challenging the Defense of Marriage Act, Gill v. OPM, pending in a Massachusetts district court ... I may have more to say about it later, but for now I don't see anything very surprising in the brief.

09/18/09 Gay Couples Law Blog, by attorney Gideon Alper:

This stance isn't new. The department did the same thing a month ago in a different case. While the government's stance may frustrate people disappointed with the Obama administration's (non) efforts to repeal the law, the government is correct here. The executive branch cannot pick and choose which laws it defends in court. Ultimately it is up to Congress to change the law.

09/18/09 LawDork, by attorney Chris Geidner:

The DOJ’s Motion to Dismiss (pdf) is measured in its defense of the Defense of Marriage Act, which doubtless will leave some unsatisfied, but it is far closer to the type of brief I’d expect the DOJ to file these days than the Smelt brief, which everyone agrees went too far.

09/18/09 NY Times:

Robert Raben, a legislative consultant who worked at the Justice Department during the Clinton administration, called the brief “a really startling political and policy statement” that, while seemingly in conflict with itself, rightly promotes legal stability.

09/18/09 Gay & Lesbian Advocates & Defenders press release:

Mary L. Bonauto, GLAD’s Civil Rights Project Director and co-lead counsel in Gill, said “Nothing in the government’s brief addresses the fact that DOMA is the sole exception in a long history of the federal government deferring to the states’ determination that people are married. Obviously we disagree with any argument that DOMA is constitutional. Married same-sex couples are being treated differently from other married couples. To us, that’s a clear-cut violation of the promise of equal protection.”

LAPD officer Laura Gerritsen entitled to survivorship pension benefit from the death of her partner, LAPD officer Spree DeSha

09/18/09 Metropolitan News-Enterprise / 09/18/09 Daily Journal (subscription required):

In Gerritsen v. City of Los Angeles (Los Angeles Super.Ct. Case No. BC403760), Judge Judith C. Chirlin ruled that Los Angeles Police Deparment (LAPD) officer Laura Gerritsen is entitled to a survivorship pension from the death of her partner, LAPD officer Spree DeSha.

Under Los Angeles Admin. Code Sec. 4.2002(d)(2), to qualify for the benefit, police officers and their domestic partners must file a Declaration of Domestic Partnership; however, spouses, dependant children, or dependant parents of police officers can document their qualifying relationships after the officers have died. Gerritsen and DeSha failed to file the required affidavit before DeSha died. They did not know that they were required to file before the loss of an eligible partner, even though Gerritsen had inquired about the appropriate form to use to qualify her and her partner for a survivorship pension benefit. "The completed form, signed by DeSha, was found on DeSha’s desk after her death."

In a bench trial, Judge Chirlin ruled that the City should have provided Gerritsen "full and complete information concerning what to submit and when.” Chirlin did not reach the broader state constitutional issue that Lisa Maki, Gerritsen's attorney, had raised - whether, under Admin. Code Sec. 4.2002(d), LAPD could treat a qualifying employee differently based on the employee's domestic partnership. "It closes the door on a whole class of people," Maki said. "If you're a same-sex couple, you have to submit paper work before the death of your loved one. No other class of person has to do that while [your] spouse is still alive."

It's unclear whether the City Attorney will appeal. If it does, I believe that Maki would be able to preserve the constitutional question on appeal. In Strauss v. Horton 46 Cal.4th 364 (Cal. 2009), the California Supreme Court ruled that discrimination claims by same-sex couples must receive the most rigorous standard of constitutional review. Under a "strict scrutiny" standard, it's hard to see how the disparity under the Administrative Code would be sustained.

Book Review: Attorneys Explain Gay Relationship Laws and How to Use Them

o9/17/09 Gay Couples Law Blog:

Attorney Gideon Alper reviews the new book by Frederick Hertz and Emily Doskow, Making it Legal: A Guide to Same-Sex Marriage, Domestic Partnerships & Civil Unions:

[T]he heart of the book is its guidance to same sex couples that want to formalize their relationship, whether that’s through a domestic partnership or actual marriage ... In a medium often devoted to rights and equality, Hertz and Doskow have given gay couples something more practical. Regardless of what the law should be, the authors show couples how to best use the law as it is today.

Should the Respect for Marriage Act have been the Respect for Marriage, Domestic Partnerships, and Civil Unions Act?

09/17/09 The Bay Area Reporter / Gay Marriage Watch:

As the Bay Area Reporter first reported in July, the bill aimed at overturning the Defense of Marriage Act introduced September 15 by Congressman Jerrold Nadler (D-New York) only aims to extend the more than 1,100 federal rights and benefits that come with marriage to those couples who marry in the five states that allow LGBT couples to wed ... "I do think it is a mistake not to extend it to domestic partnerships and civil unions," said Jeff Sheehy, who helped create San Francisco's equal benefits ordinance in 1996 that requires city contractors to extend the same employee benefits to LGBT couples who registered as DPs as those given to heterosexual married couples.

Other media reports suggest that the Respect for Marriage Act, even in its current form, has no viable prospect of enactment in the current Congress.

Gay couples who lose jobs face extra sting from COBRA exclusion

09/14/09 The Orlando Sentinel(AARP Bulletin Today):

The [COBRA] exclusion of same-sex partners also applies to couples in states where gay marriage or civil unions are legal. Under the Defense of Marriage Act, passed in 1996, the federal government does not recognize same-sex unions, which eliminates gay couples from COBRA. COBRA also excludes unmarried heterosexual couples, but the provision has a greater effect on gays because they don't have the option of getting married [and having their marriages qualify under COBRA]. "It highlights that when times are bad, it affects people who have fewer legal protections more harshly," said Chris Edelson, state legislative director for the Human Rights Campaign, a Washington-based gay-rights organization.

Legal questions raised by Nevada's new law on domestic partnerships

09/14/09 Las Vegas Review-Journal:

Nevada's Domestic Partnership Act takes effect on October 1st. This article concerns the kinds of questions likely to concern same-sex couples in Nevada who register their domestic partnerships.
Maggie McLetchie, an ACLU attorney,

stressed that although domestic partnerships will be recognized in Nevada, they might not be recognized in states without domestic partner laws — or by the federal government ... Because of the limitations, McLetchie said she recommends partners hire a lawyer to draw up a power-of-attorney agreement, in case their partner becomes ill in another state.

Marriage proposal: Prop 8 suit goes federal, and that worries same-sex marriage advocates

Leslie A. Gordon, Marriage proposal: Prop 8 suit goes federal, and that worries same-sex marriage advocates, ABA Journal, Sept 2009, at 18.

Gordon reports comments by Theodore Olson and Charles Cooper, former colleagues in the Reagen Justice Department, but now attorneys on opposing sides in Perry v. Schwarzenneger. She also revisits the controversy over legal strategy that the case raises.

Rational Basis and Constitutional Line Drawing in the Same-Sex Marriage Debate

09/16/09 Volokh Conspiracy, by law professor Orin Kerr / ADF Alliance Alert:

Professor Kerr favors legalization of same-sex marriage. He considers a standard of constitutional review - the rational basis test - for laws that limit marriage to heterosexual couples. He offers his interpretation of how it might be applied to defense of marriage acts - without endorsing its application:

When the state takes on the task of defining who should receive a government benefit, and that definition requires a great deal of complicated linedrawing, it is presumptively rational for a legislature to draw lines in ways that match traditions or common contemporary practices. As the amount of required linedrawing increases, and it becomes harder to justify one specific line over another, it becomes rational for a legislature to simply mirror the status quo rather than craft a new approach ... My claim — albeit only a very tentative claim, as this isn't my area and I haven't looked closely at the cases — is that the fact that some line needs to be drawn, and the legislature unimaginatively drew it in some relatively traditional way, itself helps provide a rational basis for the legislature's approach.

More commentary and news on The Respect For Marriage Act

09/16/09 Leonard Link, by law professor Arthur Leonard /ADF Alliance Alert:

Professor Leonard examines the federal DOMA, the goals of The Respect For Marriage Act (H.R. 3567) , its effects if enacted, a political argument against it, the reasons for Rep. Barney Frank's decision not to co-sponsor it, and Frank's other civil rights priorities.

09/16/09 Alliance Defense Fund press release:

ADF Senior Counsel Brian Raum said that

“[m]any of those in favor of this bill argue that the repeal of the Defense of Marriage Act is not intended to force same-sex ‘marriage’ on all the states. If that is not the intent, its supporters wouldn’t be seeking to repeal the section of DOMA that makes it clear that states have a right to define marriage as the union of one man and one woman.”

You can read Professor Leonard's analysis as a rebuttal to this "Chicken Little" argument.

09/16/09 San Francisco Chronicle / Gay Marriage Watch:

A spokesman for Speaker of the House Nancy Pelosi said that she wants the law repealed but is "focused on legislative items that we can enact into law now."

09/16/09 NOM Blog:

In this "urgent alert" to supporters of the National Organization for Marriage, executive director Brian Brown identifies the proposed legislation as "a new threat to DOMA," even though it has no real prospect of enactment, and mischaracterizes Rep. Barney Frank's position on the bill. On Brown's account, "even Rep. Barney Frank thinks the DOMA repeal bill is overreaching and has refused to support it."

09/16/09 The Hill's Congress Blog / Gay Marriage Watch:

Rep. Earl Blumenauer (D-Ore.) voted for the federal DOMA in 1996, not because he supported its discrimination against same-sex couples, but because he sought to deflect further political exploitation of homophobic fears. He explains why he erred in judgment, and announces his co-sponsorship of the bill to repeal DOMA.

09/16/09 The Hill's Congress Blog / ADF Alliance Alert:

Rep. Paul Broun (R-Ga.) ureges "the Speaker not to bring any legislation to the floor that will repeal DOMA and instead consider my Marriage Protection Amendment so that the American people and their elected officials determine the law of the land – not activist liberal judges. "

Introduction of Respect for Marriage Act to repeal the Defense of Marriage Act

09/15/09 Congressman Jerrold Nadler press release:

The Respect for Marriage Act would repeal the federal Defense of Marriage Act "in its entirety." When implementing federal laws that affect marriage, the federal government would follow "the place-of-celebration rule recommended in the Uniform Marriage and Divorce Act, which embraces the common law principle that marriages that are valid in the state where they were entered into will be recognized." As a result, the federal government could no longer use sexual orientation as a reason to deny married couples the benefits and protections of federal law.

Congressman John Lewis distinguished himself as one of the leaders of the civil rights movement in the 1960s. Among the authors of the proposed legislation, he said in today's press release:

Respecting the dignity of every human being and the people’s right to freely make decisions about their own lives is in keeping with the most sacred and fundamental principles of our democracy. That is what made the Defense of Marriage Act so wrong. From the founding of this nation, we made exceptions to this high moral mandate, and as our history shows, it has always led to the gravest injustice. Before we travel too far down the wrong path, we must right this wrong. We must repeal DOMA and put in its place federal action that restores the integrity of our democracy. Over the years, thousands have paid the price to make this a more open, inclusive society. We must not turn back. We must progress to that point where we seek to build a national community at peace with itself.

09/14/09 Gay Couples Law:

Attorney Gideon Alper predicts that the bill will not pass because opponents will claim that it undermines state bans on same-sex marriage:

The bill infringes on state rights too much to get enough political support. Not only would it allow federal recognition of gay marriages in states that allow them, but it would also let couples married in these states keep their benefits when they travel to states that don't recognize their marriages.

Representative Barney Frank has decided not to co-sponsor the bill. He prefers reliance on lawsuits such as Gill et al. v. Office of Personnel Management et al. (D. Mass. filed Mar. 3, 2009) to overturn the federal DOMA.

09/15/09 Bay Windows:

The Nadler bill, said Frank, "has zero chance of passage, even out of committee. It’s a mistake." ... But doesn’t Frank’s refusal to co-sponsor the bill, even as a starting point for discussion, essentially kill the bill before it’s out of the chute? "It does send a message that it’s a bad idea," says Frank. "But I want to send a message."

Office of Personnel Management proposes regulations extending limited benefits to same-sex partners of federal employees

09/14/09 Government Executive / Gay Marriage Watch:

OPM's proposed regulations would extend long-term care insurance, and certain types of leave, to same-sex partners of federal employees.

The draft regulations implement President Obama's June 17 memorandum expanding benefits available to the same-sex partners of gay and lesbian federal employees. In that memo, Obama also directed OPM to oversee agency-by-agency reviews of policies that could have disparate impacts on gay and lesbian federal employees. The results of those reviews are due to chief human capital officers on Sept. 15.

The Domestic Partnership Benefits and Obligations Act of 2009 would provide all benefits to federal employees and their same-sex partners that federal employees and their spouses qualify for.

Straight Spouses of Gays and Lesbians Advocate Same-Sex Marriage

09/14/09 AP:

''We are the unacknowledged victims of the victims of homophobia,'' said Amity Pierce Buxton, the founder of the Straight Spouse Network, a New Jersey-based support and advocacy group with 52 U.S. chapters. ''When gays and lesbians feel they have to get married to be accepted and to have kids, that hurts not only gays and lesbians, but straight spouses and kids'' ... Buxton, whose 1991 book, ''The Other Side of the Closet,'' is considered the definitive work on the topic, estimates there are as many as 2 million gay men and lesbians in the United States are or have been in heterosexual marriages. About seven out of every 10 involve women married to gay men, she said.

Judge Vaugn Walker allows Prop. 8 proponents to file 117-page motion for summary judgment in Perry case

09/11/09 order by Judge Vaughn Walker

In his order, Judge Walker allows the official Prop. 8 proponents to file their motion for summary judgment in Perry v. Schwarzenneger, despite a court rule that limits such filings to 25 pages. Attorney Rick Xiao has this to say about the order, in his reply to my earlier post:

Given that the previous case management orders went mostly in plaintiffs’ favor, allowing parties to file equally long briefs indicates Judge Walker is open-minded and unbiased about the merits of the case. Judge Walker is known as a maverick and he has surely lived up to his reputation with this ruling.

Official Prop. 8 proponents file motion for summary judgment in Perry case

09/12/09 Recorder / 09/12/09 Find Law News:

On behalf of the official Prop. 8 proponents, Charles Cooper has filed a motion for summary judgment in Perry v. Schwarzenneger, the federal lawsuit challenging Prop. 8:

Should Chief Judge Vaughn Walker decide to accept the motion as is, he will read Cooper’s request to resolve the case before trial. Since the U.S. Supreme Court already forbid same-sex marriages decades ago [in Baker v. Nelson, 409 U.S. 810 (1972)], the defense contends that Walker must hew to that precedent and reject the plaintiffs’ constitutional claims.

Representative Jerrold Nadler expected to introduce bill to repeal federal DOMA

09/11/09 Crain's New York / Marriage Equality New York:

On September 15th, Representative Jerold Nadler of Manhattan and two other colleagues will introduce legislation to repeal the federal DOMA. Attorney Chris Geidner discusses a "certainty provision" of Nadler's proposed repeal that Senator Barney Frank faults on strategic grounds.

09/12/09 Daily Dish:

Andrew Sullivan of The Atlantic comments on a consequence of Senator Frank's position:

To have the leading gay congressman say that gay couples can wait helps put into perspective Obama's caution.

09/10/09 Advocate / ADF Alliance Alert:

Nadler told the Bay Area Reporter in July that the bill would amount to a full repeal of DOMA, including Section 2, which advises states to disregard same-sex marriages that have been legally performed in other states, and Section 3, which prohibits the federal government from recognizing same-sex marriages.

Votes Aligned for Gay Marriage Bill in Washington, D.C.

09/11/09 Washington Post / Gay Marriage Watch:

[A] bill [to legalize same-sex marriage] by David A. Catania, one of two openly gay members of the council, has been drafted and is ready to be introduced in the coming weeks. Catania (I-At Large) expects a final vote before the end of the year ... Tom McClusky, a vice president for legislative strategy at the Family Research Council, said that "a number of legislators are looking at different things" in preparation for the fight moving to Capitol Hill ... After the council approved a bill in May legalizing same-sex marriages performed in other states, members of Congress from both parties largely steered clear of the issue. House Speaker Nancy Pelosi (D-Calif.) was quoted as saying at the time that the District should be treated like a state."

Catania discusses marriage equality in the District here.

If Congress does not intervene, a referendum to overturn the expected law appears unlikely. This summer, the Alliance Defense Fund sued the D.C. Elections and Ethics Board when the Board found that a referendum on out-of-state recognition would violate the D.C. Human Rights Act. The judge in the case ruled against the plaintiffs. The Human Rights Act would make it equally difficult for a similar lawsuit to succeed if opponents of same-sex marriage tried their luck again with the Elections Board:

Except as otherwise provided for by District law or when otherwise lawfully and reasonably permitted, it shall be an unlawful discriminatory practice for a District government agency or office to limit or refuse to provide any facility, service, program, or benefit to any individual on the basis of an individual's actual or perceived: race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, familial status, family responsibilities, disability, matriculation, political affiliation, source of income, or place of residence or business. (§ 2-1402.73)

Maryland Attorney General expected to issue legal opinion that Maryland should recognize out-of-state same-sex marriages

09/11/09 Washington Blade / Gay Marriage Watch:

Hopes are high that Maryland Attorney General Doug Gansler will soon issue a legal opinion that same-sex marriages performed outside the Free State should be recognized in Maryland. Raquel Guillory, director of communications for Gansler’s office, said Tuesday that a decision is “expected in the next few weeks.”

The expected opinion would probably draw a legal challenge.

California legislature approves California Marriage Recognition and Family Protection Act

09/09/09 Equality California press release / 09/11/09 Gay Marriage Watch:

Governor Schwarzenneger will now have opportunity to sign or veto legislation on the status of same-sex marriages licensed out-of-state. Same-sex couples married before Prop. 8's adoption would have a right to state recognition of their marriages, whether or not they married in California. For out-of-state same-sex couples married after Prop. 8's adoption, they would have all the rights and benefits of domestic partnerships, including heightened protection under the state constitution.

Alliance Defense Fund seeks intervention in Burns v. State of California, a state lawsuit challenging Prop. 8

09/10/09 ADF news release:

In Burns v. State of California (San Francisco Sup. Ct., Case No. CGC-08-481908, filed 11/14/08), a same-sex couple and a lesbian allege that Prop. 8 violates the California constitution's guarantees of equal protection, due process and privacy. The plaintiffs' attorney, Waukeen McCoy, represented plaintiffs in the In re Marriage Cases, 43 Cal.4th 757 (Cal. 2008).

In Strauss v. Horton 46 Cal.4th 364 (Cal. 2009), the California Supreme Court carved out what it understands as a "narrow exception" to the equal protection clause of the state constitution. But according to the latest amended complaint, filed August 13th,

The Strauss Court limited itself to examining whether or not Proposition 8 was a revision or an amendment, and did not hear arguments ... whether the substance of the amendment itself [Article I, Section 7.5, which Prop. 8 added to the state constitution] was in line with the California Constitution. This case does not seek review of the validity of Proposition 8 ... Rather, this case seeks a resolution of the conflict between Article I, Section 7.5 and the equal protection and due process clauses of the California Constitution.

Will this distinction make a difference to the odds that the case survives dismissal? That question will receive a hearing scheduled on October 26th.

The Alliance Defense Fund seeks to intervene in the case on behalf of the official Prop. 8 proponents, who do not expect California Attorney General Jerry Brown to "vigorously defend" the law.

California Assembly Approves Law Clarifying Rights of Same-Sex Couples Married Outside of California

09/03/09 Equality California press release:

The Marriage Recognition and Family Protection Act [S.B. 54] underscores that same-sex couples married before the passage of Proposition 8 are entitled to full recognition as married spouses in California, regardless of whether they married in California or out of state. That rule is consistent with existing law, including the California Supreme Court's prior holding in In re Marriage Cases [43 Cal.4th 757 (Cal. 2008)] that California cannot treat marriages differently based on whether they were performed in state or out of state. The bill also confirms that same-sex couples married outside of California after November 5, 2008, must be given all of the rights, protections and responsibilities of spouses under California law, with the sole exception of the designation of "marriage."

Nevada's Domestic Partnership Act gives rise to questions courts are likely to decide

09/04/09 Las Vegas Sun / Gay Marriage Watch:

In May, the Nevada state legislature enacted the Domestic Partnership Act over Governor Jim Gibbons' veto. The law gives same-sex partners the same rights, protections, benefits, and duties as spouses. How will the law affect employers who offer health insurance to the spouses of employees? Does the federal Family Medical Leave Act entitle employees to take up to 12 weeks of unpaid leave to care for domestic partners (despite the federal DOMA)? Tamara Jankovic of Holland & Hart, and Howard Cole of Lewis & Roca, said that courts will have to answer these questions. Cole said that "[t]here is some unresolved ambiguity with the 2002 constitutional amendment,” Art. I, Sec. 21, which bans same-sex marriage. The Las Vegas Sun doesn't clarify Cole's statement. Perhaps Cole thinks that opponents of the Domestic Partnership Act may challenge its constitutionality, even though the law states that "[a] domestic partnership is not a marriage for the purposes of Section 21 of Article 1 of the Nevada Constitution."

Meet J.B. Van Hollen, Wisconsin’s Sarah Palin

09/02/09 Madison Capital Times:

Here is another editorial faulting Wisconsin Attorney General J.B. Van Hollen for his decision last month not to defend the state's new domestic registry in Appling v. Doyle (Wis. Supreme Court Case No. 2009AP001860). The Milwaukee-Wisconsin Sentinel Journal suggested that his expected run in the upcoming governor's race motivated Van Hollen; the Madison Capital Times claims that he faces a prominent social conservative in the Republican primary, and compares him to Sarah Palin. The analogy to Palin appears to fall short, however. The Madison Capital Times notes that when Van Hollen ran for governor in 2006, he said that the new constitutional amendment (Art. XIII, Sec. 13) would not prohibit state or local legislation extending some marrital benefits, such as health insurance, to same-sex partners. I am doubtful that Sarah Palin would have embraced that view. But the point is rather that Van Hollen has abandoned it, and electoral politics may have influenced his new understanding of his constitutional duties.

Law professor Nan Hunter: "Conservative group appeals denial of intervention" in Perry case

09/04/09 hunter of justice, by law professor Nan Hunter:

As Professor Hunter observes, Yes on 8 successfully opposed the Campaign for California Families (CCF) when it sought to participate in Strauss v. Horton, 46 Cal.4th 364 (2009). The latest contest concerns whether CCF may participate in the Perry case. Judge Vaugn Walker denied its motion to intervene, but CCF has filed a notice of appeal. Will Yes on 8 oppose the appeal?

The Alliance Defense Fund (ADF) is co-counsel for Yes on 8 in Perry. ADF has a history of conflict with Liberty Counsel, which represents CCF. Legal strategy has divided the legal advocacy groups, just as it has divided the parties they represent. I see in these divisions the flip side of divisions over legal strategy between counsel for Perry plaintiffs and counsel for parties seeking to join the case as plaintiffs.

Fox News on"Angry Parents Suing California Schools Over Mandatory Gay-Friendly Classes" : the trouble with Tango

09/03/09 Fox News / ADF Alliance Alert:

Fox News claims that a lawsuit in my hometown of Alameda has become "a test case for schools throughout the country." Although it does not directly implicate the right to marry, its closeness to home - and its bearing on a proposed initiative to repeal Prop. 8 - give me reason to monitor it.

The lawsuit, Balde v. Alameda Unified School District (Alameda County Superior Court, Case No. RG09-468037) concerns whether Alameda Unified School District (AUSD) must let parents exempt their children from a curriculum of a type that they object to on religious grounds, and that Fox News calls (or stigmatizes as) "gay-friendly." This is the Safe School Community Curriculum - Lesson 9 ("Lesson 9"). It concerns family diversity and stereotypes of gay familes. AUSD seeks to prevent repeat episodes of bullying against children of gay and lesbian parents.

Plaintiff parents contend that the curriculum qualifies as "instruction in health" under Cal. Educ. Code Sec. 51240. Under this law, parents may excuse their children from "instruction in health" if it violates their "religious training and beliefs," and if they make written request for excusal. How does Lesson 9 qualify as health instruction? The petitioners identify features of the curriculum that it allegedly shares with the Health Education Content Standards for California Public Schools. In their initial petition for a writ of manadmus against AUSD, the parents describe one of these features:

Students are then required to read, And Tango Makes Three, a book about two Chinstrap Penguins who "fall in love with the help of their keeper, Mr. Gramzay, become fathers to Tango (another male penguin)." The curcciulum states that this book is reqired reading in order to illustrate to students "the beauty of diverse familes." [par. 23]

Not surprisingly, the amended petition leaves out express reference to the offending penguins. Although the book has been controversial among social conservatives, it's not altogether transparent how "health instruction" automatically occurs when teachers and students discuss a story about gay penguins and its meaning for loving families.

In my previous post on the lawsuit, I set out AUSD's likely position. Consistent with the California Student Safety and Violence Prevention Act of 2000, and other laws, AUSD has a legal duty to protect students from discrimination based on the sexual orientation of their parents. It has adopted a curriculum to remedy discrimination rather than to fulfil the "focus" of the Health Education Content Standards. The Standards have as their focus "teaching the skills that enable students to make healthy choices and avoid high-risk behaviors." (page vii).

Lesson 9 and the Standards concern "characteristics" and "responsibilities" of families, and the need to "respect people with differences." But bullying students of gay and lesbian parents harms the students and impairs their access to quality education, contrary to state law. So AUSD will probably answer that Lesson 9 was developed to prevent recurrences of illegal discrimination it has a duty to prevent, not "to help students make healthy choices and avoid high-risk behaviors."

Fox News has been following the case with obvious enthusiasm, perhaps because charges of "gay-friendly" instruction - or rather "indoctrination" - were red meat for supporters of Prop. 8 in their campaign commercials last year. If it's not dismissed, will the lawsuit gain a wider audience? I think it might. Alameda's "angry parents," Fox News, Tango, and the lawsuit may yet converge at the point of an initiative to repeal Prop. 8.

In the meantime, those angry parents have done more than sue the AUSD. According to the Alameda Journal (with articles here and here), Rev. Dione Evans leads an effort to recall the three AUSD Board members who voted to adopt Lesson 9, even as an online petition has gained over 1,000 signatures to oppose the recall. Evans recently told a meeting of supporters that public schools "are not for socializing, and they're certainly not for indoctrination." He has also said that AUSD offers no curriculum to address racial bullying, even though he believes that race more often leads to bullying than sexual orientation. If he is right, why does he think that Lesson 9 represents "indoctrination," when a curriculum to address both types of bullying might be an overdue reform?

Referenda on laws establishing same-sex marriages in Maine and domestic partnerships in Washington

09/02/09 seattlepi.com:

A King County Superior Court judge said Wednesday she had serious concerns that thousands of invalid signatures may have been accepted for Referendum 71, but rejected an attempt to block a public vote on expanded same-sex domestic partnership benefits in Washington state. Judge Julie Spector issued her ruling just as Secretary of State Sam Reed certified the measure that aims to overturn the new "everything but marriage" law for the November ballot in Olympia. (Click here to read Spector's ruling.) Spector said challenges to a referendum must be filed in Thurston County Superior Court after certification - and supporters of the "everything but marriage" law still had that option for trying to get R-71 off the ballot. The group that brought the original lawsuit - Washington Families Standing Together - said it would go to court in Thurston County to try to block R-71.

09/02/09 AP:

AUGUSTA, Maine (AP) -- The governor of Maine has signed a formal proclamation putting the state's gay marriage law up for a vote in November. Gov. John Baldacci signed the measure Wednesday after election officials verified that gay marriage foes had reached the threshold of petitions necessary to put the law on the ballot.

California Assembly Passes DOMA Resolution

09/02/09 California Progress Report / ADF Alliance Alert:

On Monday the California Assembly approved a resolution urging the United States Congress and President Barack Obama to repeal the nation’s Defense of Marriage Act following a contentious, partisan debate.The resolution, AJR 19, was sponsored by Assembly members Julia Brownley (D-Santa Monica) and Mike Feuer, (D- Los Angeles). The resolution had 43 co-authors, indicating strong, if partisan, support.

Death of constitutional right to privacy: transformation of the right to make fundamental personal decisions into an aspect of constitutional liberty

Jamal Greene, The So-Called Right to Privacy, UC Davis Law Review, Forthcoming (Stevens Symposium), Social Science Research Network, Aug. 18, 2009

Although the constitutional right to privacy has its origins in the desire to protect the institution of marriage from state interference, the language of privacy rights is an exceptionally poor fit for extending constitutional protection to same-sex marriage. Marriage is a quintessentially public institution—the notoriety of the commitment is a source of its symbolic gravity. As Massachusetts Supreme Judicial Court Chief Justice Marshall wrote in Goodridge v. Department of Public Health, the case requiring legal recognition of same-sex marriage in Massachusetts, “marriage is at once a deeply personal commitment to another human being and a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity, and family.” [798 N.E.2d 941, 954 (Mass. 2003).] Just as the deeply felt public interest in abortion makes “privacy” a non-starter for many abortion rights opponents, reliance on privacy interests to extend constitutional marriage rights to same-sex couples would give opponents an inviting target for criticism ... Focusing instead on liberty, and by extension on equality, is no guarantee of success, and in [Lofton v. Secretary of the Department of Children and Family Services, 358 F.3d 804 (11th Cir. 2004)] it was no more successful than the privacy argument.150 But a conversation about equality in marriage or family planning invokes an interest that is both compelling and, unlike the right to privacy, exogenous to the interest of the state. [pages 25-26]

Papers to be presented at annual meeting of the American Political Science Association

Here is one of several interesting papers to be presented at the annual meeting of the American Political Science Association:

Jonathan Hensley, Conservative Christian Cause Lawyering, Pluralism, and Same Sex Marriage, American Political Science Association 2009 Toronto Meeting Paper, Social Science Research Network (posted Aug. 13, 2009)

With gay marriage now recognized in four states, and “civil unions” or their equivalent in a few others, conflicts between religious freedom and recognition of same-sex marriage - and between competing versions of pluralism - seem likely. This paper reviews the use of pluralist arguments by Conservative Christian litigation groups, and then examines the arguments made by the same groups in several recent state supreme court cases concerning same-sex marriage. The results show that, for the most part, conservative Christian legal advocacy groups have abandoned their previous commitments to pluralism in their arguments against same-sex marriage.

Professor Michael Dorf on The Federalism Trap in Same-Sex Marriage

Dorf on Law, by law professor Michael Dorf:

Dorf follows up with comments on an article in which he was quoted about lawsuits challenging the federal DOMA. Thanks to attorney Rick Xiao for alerting me to Dorf's comments.

The NLJ article (accurately) quotes me fretting about the risk that the Justices will not think the time is right to invalidate DOMA. But (as I also discussed with the article's author, Marcia Coyle), there is another risk as well: Massachusetts, which has also sued, could win on state sovereignty grounds. Hoping to duck the direct issue of same-sex marriage, the Court could hold that Congress has no business defining marriage because the law of domestic relations is within the reserved powers of the states. Indeed, Massachusetts urges just this result. Yet winning in this way would be a double-edged sword: If the Court strikes down DOMA Section 3 on the ground that the states get to define marriage, that very holding will be invoked by states that do not recognize same-sex marriage in resisting an argument that their laws deny equal protection.