Thursday, July 30, 2009

Charles Cooper responds to WSJ article by David Boies: "California Has the Right to Ban Same-Sex Marriages"

07/29/09 Wall Street Journal (source: ADF Alliance Alert):

Chuck Cooper is one of the attorneys representing the official Prop. 8 proponents in the Perry case. (This San Jose Mercury News article provides background on his career.) In this letter to the editor, he responds to a July 20 op-ed “Gay Marriage and the Constitution,”by David Boies.

House Federal Workforce Subcommittee Approves Domestic Partnership Benefits and Obligations Act

07/30/09 Washington Post Federal Eye Blog (source: ADF Alliance Alert):
A bill granting full health-care benefits to domestic partners of gay and lesbian federal employees cleared its first legislative hurdle today, as a House subcommittee approved the measure along a party-line vote. The House subcommittee on federal workforce issues approved the Domestic Partnership Benefits and Obligations Act by a 5 to 3 vote. It extends several benefits to gay partners, including access to health care coverage, retirement and disability plans, and life and long-term care insurance.

Wednesday, July 29, 2009

Law professor Carlos A. Ball, "Same-Sex Marriage as a Means to Something Better" - and a related article by law professor John Culhane

07/28/09 Huffington Post, by law professor Carlos A. Ball:

In this post, Ball discusses the movement to expand access to the rights and benefits of marriage beyond married couples, recognizing Nancy Polikoff as one the movement's leading proponents. Ball contends that "our goal, over the long run, should be to lessen the prioritization of marital status in the distribution of rights and benefits."

Law professor John G. Culhane has recently argued that the legal rules of dissolution provide a compelling reason to privilege marriage over less formal commitments, such as relationships among unmarried cohabitants. [John G. Culhane, Marriage Equality? First, Justify Marriage (If You Can), 1 Drexel L.R. 485 (posted 07/03/09)] He discusses "ALI’s Principles of the Law of Family Dissolution ... which devotes an entire chapter to suggested rules for first defining, and then allocating property between, domestic partners." [505] Informed by the ALI model, the law, he believes,
"is moving towards a reasonable position on dissolution of relationships: marriages continue in a favored position that recognizes the interdependency and duration that most married couples want, but other long-term, committed relationships are protected to the extent that their lived reality mirrors that of married couples." [507]

Tuesday, July 28, 2009

New York Court Says It Has Jurisdiction to Dissolve a Vermont Civil Union

07/25/09 Leonard Link, by law professor Arthur Leonard:
This decision B.S. v. F.B., 2009 Westlaw 2195786 (N.Y. Supreme Ct., Westchester County, Case No. 010999/2009, July 15, 2009)] marks a significant advance, since it is apparently the first in which a New York trial judge has asserted that the courts in this state can provide a forum for dissolving a civil union formed in another jurisdiction.

Monday, July 27, 2009

Alliance Defense Fund attorney Brian Raum on Commonwealth of Massachusetts v. U.S. Dept. of Health and Human Services

07/23/09 Baptist Press (source: ADF Alliance Alert):

Commenting on Commonwealth of Massachusetts v. U.S. Dept. of Health and Human Services (D. Mass. Case No. 1:2009-cv-11156, filed July 8, 2009)], ADF attorney Brian Raum mischaracterizes the argument that the Commonwealth raises, and begs the question about what the federal DOMA does. He told the Baptist Press:
Federal DOMA was intended to give states the ability to fashion their own marriage laws, but it certainly doesn't give states the right to dictate to the federal government what will and will not be recognized as a marriage. The federal government at that time made it perfectly clear that for all purposes under federal law marriage would remain between a man and a woman. Massachusetts passed same-sex marriage knowing that, and they should have to live with it.

District of Columbia adopts The Domestic Partnership Judicial Determination Parentage Act of 2009

07/23/09 Washington Post (source: ADF Alliance Alert):
"A mother [who uses artificial insemination] should not have to adopt her own child," said [American University law professor Nancy] Polikoff, who helped draft the legislation ... "When a heterosexual married couple uses artificial insemination to have a child, the husband does not have to adopt the child born to his wife. He is the child's legal parent automatically. Now the child of a lesbian couple will have the same economic and emotional security accorded the children of heterosexual married couples who use artificial insemination."

San Francisco City Attorney Dennis Herrera files motion to intervene in Perry v. Schwarzenneger

07/23/09 San Francisco City Attorney press release and motion to intervene:

Having already filed an amicus brief in the Perry case, the San Francisco City Attorney has filed a motion to intervene. Controversy has followed from a motion to intervene by the ACLU, the National Center for Lesbian Rights, and Lamda Legal Defense. The San Francisco Chronicle reports that
The leader of an organization [Chad Griffin of the American Foundation for Equal Rights] that filed the suit against Proposition 8 has already accused established gay-rights groups of trying to undermine the case and promised to oppose their attempt to intervene. San Francisco raised the stakes Thursday by filing a similar motion with Chief U.S. District Judge Vaughn Walker, who has scheduled a hearing for August 19th.
According to Judge Walker's July 13th order, David Boies and Theodore Olson have until August 7th to oppose the motions to intervene.

Canadian court reaffirms finding that marriage commissioner discriminated against same-sex couple

07/23/09 The Star-Phoenix [of Saskathewan, Canada] (source: Gay Marriage Watch):
A Court of Queen’s Bench ruling, publicly released Thursday, upheld a decision by a human rights tribunal that found Regina marriage commissioner Orville Nichols had discriminated against a same-sex couple by declining to marry them ... Last year, Nichols was ordered to pay $2,500 compensation to a man who had telephoned him in April 2005 to arrange for a marriage service. When Nichols, a devout Baptist, learned it was a same-sex marriage, he told the man he could not perform the service due to his religious beliefs. The couple were married the next month by another commissioner ... Justice Minister Don Morgan said the decision hasn’t altered [the provincial government's] plans to ask the Saskatchewan Court of Appeal to rule on the constitutionality of a law that would exempt marriage commissioners from performing same-sex marriages for religious reasons.
The Court found (2009 SKQB 299) that Nichols has no legal right to exemption from his duty to issue a marriage license, even though another marriage commissioner was "readily available" to issue it [37]-[38]. The Court ruled that

[i]n order to observe the [Candadian] Charter mandate that [as a government official] he treat every individual equally, regardless of sexual orientation, he is not entitled to rely on his personal views to justify denying a statutory service [42] ... [F]ew religious institutions countenance gay marriage at this time. Without the availability of civil marriage, the promise of equal opportunity would be unrealized. If marriage commissioners are entitled to incorporate their personal beliefs into the requirements for civil marriage, equal opportunity is denied [54].
I posted here on an earlier Star-Phoenix account of Saskatchewan's proposed religious-liberty exemption for marriage commissioners.

Los Angeles Times interview of Theodore Olson: "The famed lawyer's latest cause is overturning Proposition 8 and legalizing same-sex marriage. "

07/25/09 Los Angeles Times:

Commenting on the Perry case, plaintiffs' co-counsel Theodore Olson was asked whether his conservative credentials will have effect on conservatives:
I'm hoping that it does. I hope some people will open their eyes to the decency of getting to the point where we allow gay and lesbian individuals to be married and have a happy life.
Olson also dismissed the concern that his involvement represents a "trojan horse" to advocates of same-sex marriage, claiming that "we're having support from the ACLU and from national lesbian groups." While Olson appears to have in mind an amicus brief by the ACLU and other gay rights groups, his funding organization, the American Foundation For Equal Rights, has objected to anoth form of support that Olson carefully avoids mentioning - the motion of gay rights groups to intervene.

Asked about the rationale for challenging Prop. 8 in federal court, Olson said,
Not everyone is going to agree with the legal strategy, but we think we are at the right place at the right time in the right court, and we're hopeful we'll be successful.

History Is on My Side, Says California Supreme Court Justice Carlos Moreno, Who Voted Against Gay-Marriage Ban

07/27/09 The Recorder (source: ADF Alliance Alert):

Carlos Moreno stood alone in May when he dissented from the decision upholding Proposition 8 [Strauss v. Horton, 46 Cal.4th 364]. But the California Supreme Court justice says history will prove him right -- that denying gays and lesbians the right to marry is illegal discrimination. Someday at some point my dissent will be the majority view in California," he said during an interview in his San Francisco chambers late Wednesday. "I think that's where the law is headed." "Equal protection is either equal or it's not," he added. "It's not the kind of thing you can chip away at ... It's uncertain whether or not the principles the court upheld [in the Prop 8 ruling] will be extended to other groups. But it's a possibility."
As the ADF Alliance Alert points out,
The article mentions that Justice Moreno is up for a 2010 retention vote along with Chief Justice Ronald George and Justice Ming Chin.

Alliance Defense Fund petitions Wisconsin Supreme Court to overturn newly enacted domestic parternship law

07/28/09 update:

07/28/09 ADF Alliance Alert, "Wisconsin Public Radio: The challenge to Wisconsin’s domestic partner law"

You can listen to the program here.

Initial post:

07/23/09 ADF Alliance Alert, 07/23/09 Milwaukee-Wisconsin Sentinel Journal, and 07/24/09 AP / Wisconsin State Journal:

As part of its budget, Wisconsin recently enacted Governor Jim Doyle's proposal of a domestic partnership registry for same-sex couples. The new domestic-partnership law is Wisconsin Stats. Ch. 770 (2009 Wisconsin Act 28, Sec. 3218, at pages 604ff.). According to the Sentinel Journal,

[C]ouples will be offered 43 of the more than 200 rights and benefits extended to married couples, such as allowing domestic partners to take family and medical leave to care for a seriously ill partner, make end-of-life decisions, and have hospital visitation rights.
Art. XIII, Sec. 13, of the state constitution bans not only same-sex marriage, but also recognition of same-sex relationships that are identical or substantially similar to marriage. Adopted by the voters in 2006 as a constitutional amendment, it has also been called a "super DOMA" amendment.

Wisconsin Stats. Ch. 770 (2009) has the following declaration:

770.001 Declaration of policy. The legislature finds that it is in the interests of the citizens of this state to establish and provide the parameters for a legal status of domestic partnership. The legislature further finds that the legal status of domestic partnership as established in this chapter is not substantially similar to that of marriage. Nothing in this chapter shall be construed as inconsistent with or a violation of article XIII, section 13, of the Wisconsin Constitution.
This legislature based its finding on a Legislative Counsel opinion. As the Wisconsin State Journal reports, the Legislative Counsel concluded that the law

should survive a legal challenge because it does not give "comprehensive, core aspects of the legal status of marriage to same-sex couples." Those include the ability to divorce and share marital property.
Moreover, in Jayne Dunnum v Dept of Employee Trust Funds, Wisconsin's Dane County Circuit Court ruled (at page 28) that the new law does not violate the state's "super DOMA" amendment.

Nevertheless, on behalf of Wisconsin Family Action, the Alliance Defense Fund has petitioned the Wisconsin Supreme Court to rule that the new law violates Art. XIII, Sec. 13. Rather than pursue litigation through a trial court and lower appellate court, ADF has sought direct relief from the Supreme Court in an "original action." ADF contends, among other things, that it needs the Court to intervene because the alleged constitution violation carries exceptional importance to Wisconsin citizens, and requires prompt and authoritative determination.

The case is Appling v. Doyle (Wis. Supreme Court Case No. 2009AP001860).

I have explained why I think the domestic-partnership law has singular importance. As the Sentinel Journal observes,

Wisconsin will become the first state with a constitutional amendment banning same-sex marriage and civil unions to put in place domestic partnerships for same-sex couples. It is also the first Midwestern state to legislatively extend legal protections to same-sex couples.

It's unlikely that the Wisconsin Supreme Court will grant the petition:

Former Justice Janine Geske, now a Marquette University law professor, said it's rare for the court to accept such cases without first having them go through lower courts.

Wednesday, July 22, 2009

I will resume posts on July 27th

Thanks to UK traveler Clara Forbes for this photo of a sunset at Lake Tahoe. I expect to enjoy these sunsets as I take a short vacation.

All Hands on Deck in the Prop 8 Litigation

07/21/09 Huffington Post:

Tobias Wolff , together with James Brosnahan, will soon file an amicus brief in Perry et al v. Schwarzenegger et al., (N.D.Cal. 3:09-cv-02292, filed May 22, 2009) on behalf of Equality California. Addressing the controversy over a motion to intervene by three gay rights groups, Wolff offers a mea culpa:
I was one of those voices that raised questions about timing and strategy when the federal lawsuit was filed. I am willing to admit that I may have been wrong, and that the Olson-Boies team may prove to have been visionary. Only time will tell. Our goal right now must be to ensure the best possible outcome for this lawsuit.

Federal same-sex marriage lawsuits: "horserace to equality"

07/15/09 Bay Windows:
07/21/09 Bay Windows:
A forthcoming article - Part 3 - will concern Perry et al v. Schwarzenegger et al., (N.D.Cal. 3:09-cv-02292, filed May 22, 2009).

Tuesday, July 21, 2009

Navigating a sea of gay lawsuits: Cases to overturn DOMA, Prop 8, may reach U.S. Supreme Court

07/17/09 Southern Voice:

According to the Sexual Orientation and the Law Blog,
Southern Voice has a guide for the bewildered through the multiple suits recently filed in federal courts challenging discrimination against same-sex couples in the ability to marry or to have their existing marriages recognized.

Gay Millionaire Charles Merrill Loses Tax Court Appeal

07/19/09 Leonard Link, by law professor Arthur Leonard:
The United States Tax Court is generally not a place where you can win constitutional arguments, so it is not really surprising that the Court rebuffed an attempt by gay millionaire Charles E. Merrill to win a reversal of the IRS's refusal to let him file joint returns with his then-domestic partner for tax years 2004 and 2005.
I previously posted on this case here.

The State of the Same-Sex Union: Part Two in a Three-Part Series

07/21/09 Findlaw Forum, by Joanna Grossman and Edward Stein (source: hunter of justice)
Here, in Part Two, we describe in detail the states in which same-sex couples can obtain formal recognition from the state – whether in the name of "marriage" or some alternative status – and the states in which recognition is banned. We also explain why significant additional changes to the landscape are unlikely in the near future.

California legal newspaper reports on attempt by gay rights groups to intervene in Perry v. Schwarzenneger; San Francisco may file motion to intervene

07/21/09 The Recorder:

The Recorder reports on the controversy over a motion by three gay rights groups to intervene in Perry et al v. Schwarzenegger et al., (N.D.Cal. 3:09-cv-02292, filed May 22, 2009). (Readers can learn more about the controversy in my ongoing compilation of news on the Perry case.) Mike McGee of The Recorder covers what is by now familiar ground. But he also reports on something new:

Chief Deputy City Attorney Therese Stewart confirmed Friday that San Francisco is contemplating intervention and likewise wants to ensure a complete factual record. She said it's in the city's interest to ensure stable families that don't wind up on the public fisc.

"Strong family units make for productive citizens," Stewart said.

Monday, July 20, 2009

David Boies: Gay Marriage and the Constitution: Why Ted Olson and I are working to overturn California's Proposition 8

07/20/09 Wall Street Journal (source: ADF Alliance Alert):
Recently, Ted Olson and I brought a lawsuit asking the courts to now declare unconstitutional California's Proposition 8 limitation of marriage to people of the opposite sex. We acted together because of our mutual commitment to the importance of this cause, and to emphasize that this is not a Republican or Democratic issue, not a liberal or conservative issue, but an issue of enforcing our Constitution's guarantee of equal protection and due process to all citizens.

Third Circuit Court of Appeals issues ruling in New Jersey litigation over religious organization's ban on civil-union ceremonies

07/21/09 Leonard Link, by law professor Arthur Leonard:

Professor Leonard analyzes an unpublished ruling of the Third Circuit Court of Appeals on whether a state anti-discrimination law would violate the religious-liberty right of a New Jersey religious organization that chooses to bar same-sex civil unions on its property. The Court decided to remand the case to the federal district court in New Jersey to determine the merits of of the organization's First Amendment, free-exercise claim.

07/18/09 The Philadelphia Inquirer (source: Gay Marriage Watch):
The appeals court said Wednesday that the federal judge should consider whether the association [of the United Methodist Church], which owns all the land in the Monmouth County village, can bar civil-union ceremonies on its property outside [a boardwalk] pavilion. The court did not reinstate the association's lawsuit as it pertains to the pavilion, which is not now used for weddings or civil unions.
07/18/09 NJ Star-Ledger (source: ADF Alliance Alert):
[T]he appeals court directed the district court to take on the broader issue of whether the association and the United Methodist Church, which owns all the land in Ocean Grove, can bar same-sex unions from its other properties in town.

DOMA: Death by a Thousand Cuts?

07/15/09 Huffington Post, by law professor Carlos Ball:
Of the lawsuits filed, there are two in particular that are worth paying attention to. The first was brought by the Gay & Lesbian Advocates & Defenders, under the leadership of Mary Bonauto, who has to be one of the ablest and most effective civil rights lawyers in the country today ... The second lawsuit worth keeping an eye on was filed last week by the Commonwealth of Massachusetts. It nicely complements the GLAD lawsuit ... Ultimately, what these types of lawsuits show is the constitutional strain created by a regime of federal rights and benefits that (1) is extremely generous to married couples and (2) permits states to define marriage however they want except when it comes to the possible inclusion of LGBT people.

American Lawyer profile on Dennis Johnson, pro bono counsel in Varnum v. Brien

07/01/09 American Lawyer:
Dennis Johnson was sitting in his Des Moines office in 2003 when he got a call from Lambda Legal, asking him to represent six same-sex couples in challenging Iowa's gay marriage prohibition. A litigation partner at Dorsey & Whitney at the time (he's now of counsel) and a former solicitor general of Iowa, Johnson says the call came "out of the blue; I was surprised."

Friday, July 17, 2009

Smelt v. United States dismissed for lack of standing with respect to its Prop. 8 challenge

07/15/09 Minute Order by Judge David Carter:

Not surprisingly, Judge Carter has dismissed the Prop. 8 challenge in Smelt v. United States of America (C.D.Cal. filed Mar. 9, 2009) on the motion of the California Attorney General, and has done so on narrow, procedural grounds, without reaching the merits of the due process and equal-protection claims:
As Plaintiffs’ marriage is valid within California, they cannot present an injury with respect to the recognition of their marriage by the State of California under Lujan [v. Defenders of Wildlife] and, therefore, they do not havestanding to pursue their claims against the State of California. 504 U.S. 555.
The case continues with respect to its federal DOMA challenge, which Obama's Department of Justice tried to answer with its controversial brief.

07/17/09 Alliance Defense Fund press release:
The court will hear arguments on Aug. 3 concerning the lawsuit’s remaining claims which challenge the federal Defense of Marriage Act.

Thursday, July 16, 2009

Citizen McConkey: a one-man battle against Wisconsin's gay marriage ban

07/15/09 The [Madison, WI] Capital Times (source: Sexual Orientation and the Law Blog):
[William] McConkey, a father of seven and grandfather of eight, is the man behind the pending challenge to Wisconsin's constitutional ban on gay marriage that will be heard this fall by the Wisconsin Supreme Court ... McConkey filed his lawsuit in Dane County Circuit Court in July 2007, eight months after Wisconsin voters passed a statewide referendum amending the Wisconsin Constitution to ban gay marriage and civil unions [that are "substantially equivalent" to marriage] ...In his July 27, 2007, complaint, McConkey challenged the amendment on substance and procedure, claiming it violated the so-called "single subject rule" pertaining to referendums. He said the referendum illegally asked two questions in one -- whether to ban same-sex marriage and whether to ban ["substantially equivalent"] civil unions.

Gay Rights: The Ups and Downs of Going Mainstream

07/16/09 JURIST Forum:
JURIST Guest Columnist Douglas NeJaime of Loyola Law School Los Angeles says that while the mainstreaming of gay rights is a good thing, movement lawyers who have traditionally championed the cause may have to get used to being displaced by mainstream, non-movement lawyers over whom they have less and less control.

Gay Legal Eagles Seek Role in California Federal Suit

07/16/09 San Francisco Bay Times (source: Out For Justice)

In this opinion article, Ann Rostow explains why the ACLU, the National Center for Lesbian, and Lambda Legal have decided to intervene in the Perry case on behalf of other parties, when these organizations had previously opposed the filing of this lawsuit:
The first conflict between the gay groups and the Olson/Boies team was resolved when the lawsuit became a fait accompli. Now the conflict concerns strategy and the best road to victory. The gay groups want to take Judge Walker up on his invitation to beef up the record, and they want to address the courts within the unique legal context of California rather than attempting to end marriage discrimination forever. The Olson/Boies team wants to zip up to the Supreme Court and make an all or nothing stand.

Doing “Work Necessary To Win”: Lambda Legal lawyer led fight for gay marriage in Iowa

Rachel M. Zahorsky, Doing "work necessary to win": Lambda Legal lawyer led fight for gay marriage in Iowa, 95 ABA Journal No. 7, 36 (July 2009):
After a seven-year campaign led by [Lambda Legal] attorney Camilla] Taylor, the Iowa Supreme Court legalized same-sex marriage, unanimously holding that denial of marriage licenses based on sexual orientation violates the liberty and equal protection clauses in the state’s constitution ... “We try to be thoughtful and strategic on where we bring lawsuits; we don’t want to make bad law,” Taylor says, ticking off disappointing court losses in the states of Maryland, New York and Wash­ington. “We try to bring lawsuits where we can do the work necessary to win.”

Wednesday, July 15, 2009

Will Ted Boies and Theodore Olson formally oppose intervention in Perry case by the ACLU and other organizations? We will know soon.

07/13/09 order by Judge Vaughn Walker in Perry et al v. Schwarzenegger et al., (N.D.Cal. 3:09-cv-02292, filed May 22, 2009):

According to Judge Walker's order, Ted Boies and Theodore Olson would have until August 7th to oppose a motion to intervene by the ACLU, the National Center for Lesbian Rights, and Lamda Legal Defense, and these movants would have until August 14th to respond. On August 19th, Judge Walker will hear arguments on this and any other timely-filed motion to intervene.

Tuesday, July 14, 2009

WV legislative committee hearing on need for constitutional ban of gay marriage; ADF Senior Counsel Jordan Lorence compares gay marriage to swine flu

West Virginia Legislature's Joint Standing Committee on Judiciary held a hearing today pursuant to HCR 88, "to study the issue of a constitutional amendment to prohibit the state from recognizing same sex marriages." Here is the scheduled agenda of its Judiciary Subcommittee A:

Tuesday, July 14, 2009, 11:00 am - 1:00 pm

Location: Senate Judiciary - 208W

1. Call to Order

2. Roll Call

3. Approval of Minutes - January 11, 2009

4. Topic of Discussion - A study of whether the State should amend the State Constitution to prohibit the recognition of same sex marriages

A. Speakers

1. Professor Robert M. Bastress, John W. Fisher, II, Professor of Law - West Virginia University College of Law

2. Jeremiah Dys, Esq., President of the Family Policy Council

3. Seth DiStefano, American Civil Liberties Union of West Virginia

4. Jordan Lorence, Esq., Senior Counsel, Alliance Defense Fund

5. Stephen G. Skinner, Esq., Fairness West Virginia

5. Other Business

6. Adjournment

07/20/09 AP (source: ADF Alliance Alert):

The prospects for a constitutional amendment hinge on whether enough lawmakers believe that the state's 2000 law on the subject is insufficient or could fall to a legal challenge.

07/15/09 The Register-Herald (source: ADF Alliance Alert):

ADF Senior Counsel Jordan Lorence compared same-sex marriage to swine flu as part of his justification for a "marriage protection" amendment:

But Jordan Lorence, senior counsel for the Alliance Defense, argued that West Virginians need to vote on the matter, and that it is wrong to assume DOMA will stand up in a court challenge.

“It’s like saying, we don’t need a vaccination for swine flu, because we haven’t had an epidemic yet,” he added.
Other reported statements include these:
DiStefano warned the amendment could eventually bite its own supporters.

“Everyone, at some point and time, is a member of a minority class, be it age, race, ethnicity, religion, disability, gender, sexual orientation, or otherwise,” he said.

“Making minority rights a function of popular opinion, as this resolution seeks to do, would endanger the rights of all persons because no one is a permanent member of any majority.”

Dys disagreed, saying, “Marriage is too valuable of an institution to West Virginia to subject it to attack when there is such a simple solution to its protection.”

07/15/09 AP (posted to The Times West Virginia; source: ADF Alliance Alert)

West Virginia University law professor Bob Bastress counted 122 attempts by voters to amend the state constitution ratified in 1872, with 73 of them succeeding. But he added that amendments to its Bill of Rights have been rare and have tended to expand rights, with the possible exception of prohibition in 1912.

07/14/09 Metro News (source: ADF Alliance Alert)

Alliance Defense Fund Senior Counsel Jordan Lorence was among those who testified. He says the legalization of same sex marriages in other states shows that a Constitutional Amendment is needed here.

But Seth DiStefano, Field Organizer with West Virginia's American Civil Liberties Union, calls the proposed Constitutional Amendment "redundant." "I think it's very unnecessary," DiStefano says. "I think it sends a very dangerous message that West Virginians aren't inclusive people and I think that, ultimately, the rights of minorities should not be a function of popular opinion, which is what this bill sets out to do."

07/14/09 AP (posted to Charleston Daily Mail; source: ADF Alliance Alert)

Council President Jeremy Dys said his group's polling found most voters define marriage as between a woman and a man. But opponents questioned whether public opinion should determine minority rights. A law professor [Robert M. Bastress] said the state constitution's Bill of Rights has rarely been amended.
07/14/09 ADF Alliance Alert:

ADF Attorney Jordan Lorence appeared on Hoppy Kercheval’s radio show to discuss a West Virginia constitutional marriage amendment.The mp3 is online here. It runs about nine minutes.

07/13/09 West Virginia Metro News:

A hearing on a possible Constitutional Amendment in West Virginia that would define marriage as between one man and one woman is scheduled for Tuesday at the State Capitol. Attorney Stephen Skinner with the group Fairness West Virginia says state law already does that adequately in the form of the Defense of Marriage Act. "Same sex marriage is already banned in West Virginia. There's no need to fiddle with our Constitution in order to do what has already been done," Skinner says. But Jeremy Dys with the Family Policy Council of West Virginia says West Virginians should vote on the issue. He says putting a Constitutional Amendment on the ballot would allow that to happen.
07/13/09 Alliance Defense Fund press release:

At tomorrow's hearing, Alliance Defense Fund Senior Counsel Jordan Lorence
will stress to the legislature that West Virginia voters should have the opportunity to vote on whether to amend the state constitution since the state’s Defense of Marriage Act is not sufficient to guard against legal attacks on marriage.

Sunday, July 12, 2009

The State of the Same-Sex Union: Part One in a Three-Part Series

07/12/09, by Joanna Grossman and Edward Stein (source: Sexual Orientation and the Law Blog)
In this three-part series, we will deliver a "state of the nation" report on the rights of same-sex couples in the United States. In this column, we offer a brief history of the battle over the same-sex marriage ... In Part Two, we will describe the current legal landscape for same-sex couples ... Part Three will explore the state of the law regarding interstate recognition of same-sex marriage.

Saturday, July 11, 2009

Martha Nussbaum, A Right to Marry? Same-Sex Marriage and Constitutional Law

Martha Nussbaum, A Right to Marry? Same-Sex Marriage and Constitutional Law, 56 Dissent Magazine No.3, 43-55 (Summer 2009)

"This essay is adapted from her [book,] From Disgust to Humanity: Sexual Orientation and the Constitution, which will be published by Oxford University Press in February 2010."

We have now seen [five] arguments against same-sex marriage. They do not seem impressive. We have not seen any that would supply government with a compelling” state interest, and it seems likely, given Romer, that these arguments, motivated by animus, fail even the rational basis test.

The argument in favor of same-sex marriage is straightforward: if two people want to make a commitment of the marital sort, they should be permittedto do so, and excluding one class of citizens from the benefits and dignity of that commitment demeans them and insults their dignity.

Friday, July 10, 2009

Federal lawmakers consider domestic partner benefits for gay and lesbian employees

07/10/09 ADF Alliance Alert:

ADF Alliance Alert links to a Government Executive article about the 07/08/09 hearing on The Domestic Partnership Benefits and Obligations Act of 2009.

Renewed prospect for passage of marriage equality legislation in New York

07/10/09 Marriage Equality New York:

Now that Democrats have regained control of the state legislature, State Senator Thomas Duane, a leading sponsor of the state's marriage equality legislation told Gay City News that
he expected action not only on marriage equality, already approved by the Assembly and supported by Governor David Paterson, but also on the Gender Expression Non-Discrimination Act and the Dignity for All Students Act. The marriage bill, he said confidently, “will get to the floor this year and it will pass.”

The Letter To NCLR, Lambda & the ACLU and Their Response

07/10/09 Law Dork 2.0:
Chad Griffin, the board president of the recently formed American Foundation for Equal Rights, which is supporting the federal Proposition 8 challenge brought by Theodore Olson and David Boies, sent an explosive letter (pdf) on Wednesday to lawyers for three of the nation’s most established LGBT legal organizations, the American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights ... on Wednesday, as reported here, the three groups filed a Motion to Intervene on behalf of three other groups — Our Family Coalition, Lavender Seniors of the East Bay, and Parents, Families, and Friends of Lesbians and Gays — asserting that the Plaintiffs selected by AFER to bring the case “may be inadequate” to protect the interests of all people negatively impacted by Proposition 8 ... AFER Board President Griffin sent the letter to representatives of NCLR, Lambda and the ACLU. The letter, as noted by the [Washington] Post, declared that AFER “will vigorously oppose any motion to intervene.”

California Assembly Judiciary Committee approves legislation to recognize out-of-state gay marriages before November 5, 2008

07/10/09 The Recorder (subscription required):

The legislation, SB 54, would confer state recognition of out-of-state gay marriages licensed before Prop. 8 became official; and it would ensure that such marriages licensed afterward have all the protections and benefits of marriage, except the designation of "marriage."
"This legislation, in my view, attempts in a limited way to clarify an issue that could result in exacerbating inequality," said Assembly Judiciary Chairman Mike Feuer, D-Los Angeles. It is "utterly consistent with the Supreme Court's ruling in Strauss ," he said.
However, Assemblyman Van Tran, R-Costa Rica, believes that the issue should return as a ballot measure.

The legislation is almost certain to reach Governor Arnold Schwarzenneger's desk. The Governor reportedly takes no positions on pending legislation.

07/09/09 The Bay Area Reporter:
Because they had already gotten married somewhere else [before November 5, 2008], those couples with out-of-state marriage licenses found themselves caught up in a Catch-22 situation. While their marriages were now valid under California law, there was no mechanism for them to register that fact like the 18,000 same-sex couples that received California marriage licenses last year.

Thursday, July 9, 2009

Massachusetts Attorney General Martha Coakley files lawsuit against federal DOMA

07/08/09 press release by Massachusetts Attorney General Martha Coakley:

BOSTON Today, Attorney General Martha Coakley filed a lawsuit in United States District Court (D. Mass.) [Commonwealth of Massachusetts v. U.S. Dept. of Health and Human Services (D. Mass. Case No. 1:2009-cv-11156, filed July 8, 2009)] challenging the constitutionality of Section 3 of the federal Defense of Marriage Act (DOMA). The law, which defines marriage as a union between one man and one woman, unfairly excludes more than 16,000 Massachusetts married same-sex couples and their families from critically important rights and protections based on marital status. The complaint alleges that DOMA, which affects more than 1,100 federal statutory provisions, violates the United States Constitution by interfering with the Commonwealth's sovereign authority to define and regulate the marital status of its residents. The complaint also alleges that DOMA exceeds Congress' authority under the Spending Clause because Congress does not have a valid reason for requiring Massachusetts to treat married same-sex couples differently from all other married couples.
The press release links to the complaint. This federal DOMA challenge joins another in Massachusetts - Gill et al. v. Office of Personnel Management et al. (D. Mass. filed Mar. 3, 2009).

07/09/09 NY Times:

With the suit, Massachusetts becomes the first state to challenge the Defense of Marriage Act, which was passed by Congress in 1996 and prohibits the federal government from recognizing same-sex marriage.


07/23/09 Baptist Press

Alliance Defense Fund attorney Brian Raum begs the question about what the federal DOMA does. He mischaracterizes the argument in the case, claiming that the federal DOMA "doesn't give states the right to dictate to the federal government what will and will not be recognized as a marriage.

07/11/09 WordinEdgewise, by Widener University Law Professor John Culhane:

Culhane responds to Carpenter's view that Congress did not violate the Spending Clause of the constitution when it enacted the federal DOMA.

07/09/09 Volokh Conspiracy, by University of Minnesota law professor Dale Carpenter

Carpenter contends that Congress did not violate the Spending Clause of the constitution when it enacted the federal DOMA. Massachusetts alleges that it did, because it must comply with DOMA to accept all available federal funding of two of its services. But to comply with DOMA the state must also violate the equal protection clause of the 14th Amendment, by denying the services to same-sex spouses who would otherwise be eligible. Massachusetts has instead chosen to assume the full costs of providing these services to same-sex spouses. According to Carpenter, "Section 3 [of DOMA] complicates, and imposes identifiable costs upon, a state's recognition of its own citizens' same-sex marriages" - without requiring Massachusetts to also violate the equal protection clause.

07/09/09 WordinEdgewise, by Widener University law professor John Culhane:

In its brief defending DOMA, the Department of Justice holds that DOMA provides a reasonable means to what DoJ considers a legitimate government end - a policy of "neutrality in federalism." The DoJ claims that DOMA bears a rational relationship to this purpose because, under the law, the federal government allows some states to expand the "traditional definition" of marriage, while deferring to the choices of other states to preserve that definition. Among other things, Culhane observes, this lawsuit challenges the claim of neutrality:

As the complaint states, DOMA forces the state to discriminate against its own citizens — especially in the provision of Medicaid benefits, which are funded by both the feds and the states. Massachusetts gets no federal contribution towards the marriage-dependent benefits of same-sex couples. What’s neutral about this?

Wednesday, July 8, 2009

Law takes effect in D.C. to recognize same-sex marriages performed elsewhere; Alliance Defense Fund supports a marriage initiative

07/07/09 Washington Blade (source: Marriage Equality New York):

On July 7th, a new law took effect in the District of Columbia that extends recognition of the validity of same-sex marriages performed elsewhere.
Gay activists hailed the development as an historic landmark for same-sex couples throughout the country and noted that it opens the way for the [D.C.] Council to pass a separate law later this year allowing same-sex marriages to be performed in the District.
07/07/09 Jurist Legal News and Research:
[JURIST] A Washington, DC law [text, PDF] recognizing same-sex marriages performed in other states or jurisdictions took effect Tuesday, following Congressional inaction on the matter. The Jury and Marriage Amendment Act of 2009, passed by the Council of the District of Columbia [official website] in May by a 12-1 final vote [JURIST report], was subject to Congressional review pursuant to the Home Rule Act [text, PDF] before becoming law.
07/08/09 (source: ADF Alliance Alert)

Last month, the D.C. Elections and Ethics Board decided that a referendum on the law could not qualify for the ballot because it violates the District's Human Rights Act. The Alliance Defense Fund filed a lawsuit to overturn the Board's decision, but the D.C. Superior Court judge dismissed the case. Nevertheless, ADF now claims that D.C. voters are entitled to vote on a "marriage initiative":

With the law now in place, marriage advocates in the capital district will have to appeal to the initiative process in order to preserve the definition of marriage as the union of a man and a woman. According to the Alliance Defense Fund, a legal advocacy group representing the interests of D.C. marriage advocates, the HRA should remain no obstacle to putting such an initiative on the ballot.

"While the Superior Court's decision on the referendum disenfranchised the voters of D.C. with respect to the law that just went into effect, the decision specifically left open the possibility of the voters of D.C. filing a marriage initiative," stated ADF attorney, Tim Tracey.

California state Senator Mark Leno introduces legislation to recognize out-of-state gay marriages before November 5, 2008

07/08/09 The Recorder:

California state Senator Mark Leno last week introduced legislation (SB 54) to recognize the validity of out-of-state marriages performed before November 5, 2008, when Prop. 8 became official. The legislation would also guarantee all the rights, benefits, and protections of marriage for same-sex couples who married out-of-state after that date, except for the designation of "marriage." In Strauss v. Horton, the California Supreme Court, in a footnote, declined to address the validity of out-of-state marriages carried out before Prop. 8 took effect.

Tuesday, July 7, 2009

Judge Vaughn Walker fast-tracks Perry v. Schwarzenneger, seeks to create a record for the U.S. Supreme Court; intervenor attorney Chuck Cooper

On July 2nd, Judge Vaughn Walker held a case management conference for Perry et al v. Schwarzenegger et al. (N.D.Cal. 3:09-cv-02292, filed May 22, 2009). Here are press reports on the hearing.

07/06/09 Recorder (source: ADF Alliance Alert):
Whatever Chief U.S. District Judge Vaughn Walker winds up deciding on Proposition 8, it's clear he wants an airtight trial record to support it. Holding his first hearing Thursday on the controversial measure that outlawed same-sex marriage, Walker repeatedly stressed the importance of establishing a record that will stand the test of time.
07/03/09 San Jose Mercury News:
Walker, toward the end of a 50-minute hearing in a packed courtroom, ordered the parties to file by Aug. 7 joint or separate case-management proposals laying out the facts that they agree are already settled, the facts that still need to be tried and a road map on how best to proceed. The next hearing is scheduled for Aug. 19 ... "This case is only touching down in this court ... and this is only a prelude to what's going to happen later," the judge said, adding he and the attorneys must strive to make as complete a factual record as possible for the higher courts to review.
The Mercury News also reports on Chuck Cooper, one of the attorneys representing the official Prop. 8 proponents:

Cooper — among the nation's most renowned civil litigators and with several Supreme Court arguments under his belt — was a Reagan Administration assistant attorney general who worked alongside John Roberts and Samuel Alito, now the chief justice and an associate justice, respectively.

07/02/09 Reuters (source: ADF Alliance Alert):
"I'm reasonably sure given the issues involved and the personalities in this courtroom this case is only touching down in this court," Walker said. "It will have a life after this court."

West Virginia legislature to hold public hearing for study of a constitutional amendment to ban same-sex marriage

07/07/09 AP (Source: Gay Marriage Watch / ADF Alliance Alert)

On July 16th, the Joint Standing Committee on Judiciary of the West Virginia legislature will have a public hearing to " to study the issue of a constitutional amendment to prohibit the state from recognizing same sex marriages." (See HCR 88 and an April press release by the Family Council of West Virginia; HCR 88 provides the authority for the hearing.) The West Virginia House of Delegates has recently voted against a proposed constitutional amendment banning same-sex marriage.

As Maryland's Attorney General prepares to issue formal opinion, Maryland's Governor supports recognition of gay marriages licensed elsewhere

07/07/09 (Source: NCLR Out For Justice blog):

Maryland governor Martin O'Malley said yesterday that he would support recognition of out-of-state gay marriages, while Maryland attorney general Douglas F. Gansler is preparing a formal opinion on whether the state may legally recognize them. The Gay Chicago Magazine (June 11th issue, at page 18) carries an AP report about the likelihood of legal challenges to out-of-state recognition by Maryland:
Any move to recognize gay marriages could be seen as an end-run around the legislature and is likely to draw legal challenges.
The Alliance Defense Fund (ADF) sued the D.C. Elections and Ethics Board for its decision not to allow a referendum on D.C.'s law to recognize gay marriages licensed elsewhere. The lawsuit was dismissed. Different circumstances in Maryland appear to give ADF an opportunity to challenge out-of-state recognition there, if adopted.

Monday, July 6, 2009

Should Wisconsin have a more inclusive partner registry? Is its new domestic partnership law vulnerable to state constitutional challenge?


American University Law Professor Nancy Polikoff faults the strategy behind Wisconsin's recently enacted law on domestic partnerships. Wisconsin has what Polikoff calls a "super DOMA," because its constitution (Art.I, Sec.25) not only bans same-sex marriage (per "plain-vanilla" DOMA), but also restricts recognition of civil unions. (It bans civil unions that are "substantially similar" to marriage.) I have claimed that the new law represents a promising, long-term strategy for advocates of same-sex marriage to undermine public support for so-called "marriage-protection" amendments, even if the Wisconsin model does not provide a template for other "super DOMA" states, such as Michigan. Polikoff, however, criticizes this strategy for the risk it incurs:
"[Wisconsin's domestic partnership law] has set itself up for a higher likelihood of losing in the courts by pegging eligibility to criteria that look so much like eligibility for marrying."
Indeed, the new law is vulnerable to a state constitutional challenge. The Gay Marriage Watch blog links to Wisconsin Radio Network report on the interest of the Wisconsin Family Council in pursuing just such a challenge.

Polikoff devotes her book and her blog to expanding access to the rights and benefits marriages, so that all families, traditional or otherwise, would enjoy access. Consistent with this ideal, she favors designated beneficiary agreements, which have been adopted in two states - Colorado and Hawaii - whose constitutions ban same-sex marriage, or give the legislature power to ban it. (Here is an opinion article about Colorado's new law on designated beneficiary agreements.)

Has Polikoff overstated the risk that Wisconsin's domestic partnership law will not survive constitutional challenge? She may have. In Jayne Dunnum v Dept of Employee Trust Funds, Wisconsin's Dane County Circuit Court ruled (at page 28) that the new law does not violate the state's "super DOMA" amendment. This ruling offers a reasonable hope that the Wisconsin Supreme Court will sustain the lower court's interpretation of Wisconsin's constitution.

At any rate, in the two states (click here for Hawaii, here for Colarado) that have adopted designated beneficiary agreements, state constitutional amendments that concern same-sex marriage do not also restrict domestic partnerships. If these states also had "super-DOMA" amendments, even the beneficiary agreements Polikoff favors would face risk of credible state constitutional challenges. According to the 07/01/09 Denver Westword Blog,
Today's implementation of designated beneficiary agreements in Colorado, which grant unmarried couples -- including those whose partners are the same sex -- with many of the rights associated with marriage drew fiery condemnation from Bruce Hausknecht, judicial analyst for Focus on the Family Action, the outfit's political wing. "This is a backdoor incremental step towards legalizing same-sex marriage in this state."

Daily Journal Reporter Thinks Prop. 8 Order In Perry v. Schwarzenneger Evokes Civil Rights Era

07/06/09 SF Daily Journal (subscription required):

This article concerns the 06/30/09 order by Judge Vaughn Walker in Perry et al v. Schwarzenegger et al. (N.D.Cal. 3:09-cv-02292, filed May 22, 2009). Judge Walker has requested briefing on the appropriate standard of constitutional review for Prop. 8, and evidence of its discriminatory intent and effect. Daily Journal reporter Rebecca Beyer claims that Judge Walker makes his requests in the context of case law that the U.S. Supreme Court relied on in the historic school desegregation case, Brown v. Board of Education, 347 U.S. 483 (1954). But I find nothing in the order that shows Walker's citations to such case law. Although Judge Walker identifies no direct or indirect connection between Brown and Perry, U.C. Davis law professor Vikram Amar observes that Walker
"lays out the analysis that equal protection is designed to help groups that are discriminated against based on characteristics they can't change" ... [Amar] added that the analysis is out of favor at the U.S. Supreme Court.
Judge Walker cites to U.S. v. Carolene Products Co., 304 U.S. 144, n.4 (1938), for the origins of the heightened, "strict scrutiny" standard of review, in which government must have a compelling interest for a law that discriminates against a unpopular minority. He asks parties for evidence on whether same-sex couples belong to a minority that is a "suspect class" for whom a discriminatory law warrants heightened review.
Karl M. Manheim, a constitutional law professor at Loyola Law School in Los Angeles, said the U.S. Supreme Court has for decades been avoiding the foundational principles in Carolene as it has moved away from finding additional suspect classes, which include race, national origin and religion. Laws targeting suspect classes require strict scrutiny.

"The strategy in writing an opinion that rejects suspect classes is to avoid Carolene," he said. "There has been an overall reluctance on the part of the court to increase the subset of groups entitled to judicial protection."

Sunday, July 5, 2009

Saskatchewa Court of Appeal to rule on constitutionality of proposed exemption for marriage commissioners with religious objection to gay marriages

07/04/09 The Star Phoenix (Gay Marriage Watch):

The government of Canada's Saskatchewa province has proposed legislation that would confer exemption on marriage counselors who refuse to perform same-sex marriages for religious reasons. (Prince Edward Island is reported to be the only province that has this kind of religious-liberty exemption, while other provinces informally allow these counselors to "opt out.") The legislation would ensure that other commissioners are still available to perform these marriages. The government has asked the provincial Court of Appeal to rule on the constitutionality of the legislation, and will not introduce it until the Court has issued a ruling.

The Star Phoenix reports that the government defends the proposal as a means to settle an issue that has been the subject of litigation:

In 2008, the Saskatchewan Human Rights Tribunal fined a Regina marriage commissioner $2,500, ruling he had violated the province's human rights code by refusing to marry a gay couple for religious reasons. That case is under appeal to the Court of Queen's Bench, with the judge reserving his decision, while two other marriage commissioners are also suing the government over the lack of a religious exemption.

Widener University law professor John Culhane has explained why he thinks it is "a bad idea" to exempt marriage-licensing officials who would otherwise have a legal duty to issue marriage-licenses. He considers an unqualified exemption a form of state-sanctioned discrimination that protection of religious freedom can not justify, but would support an informal, administrative arrangement that allowed such officials to "opt out." Kelly Ries, co-chair of the Saskatoon Diversity Network, also faults the proposed legislation as unjustifiably discriminatory:

"I don't think the gay community is prepared to say, 'We're prepared to be discriminated against.' We fought long and hard not to be, we fought long and hard to have a place at the table with everyone else.

07/11/09 Globe and Mail editorial:
This is not, really, about a clash between the religious freedom of marriage commissioners and the rights of gays. Public officials have no right to decline to do their core duties because of religious belief. A public school teacher cannot refuse to teach sex education because of religious objections. A library worker cannot refuse to sign out books that violate her belief system.

Thursday, July 2, 2009

Iowa Lawyer's Fight for Gay Marriage

07/02/09 American Lawyer:

This article is about Dennis Johnson, who was pro bono counsel for plaintiffs in in Varnum v. Brien, in which the Iowa Supreme Court ruled that the state DOMA was unconstitutional.

Today's hearing in Perry v. Schwarzenneger

07/02/09 LawDork:

Attorney Chris Geidner has this to say on today's hearing in Perry v. Schwarzenneger, the federal lawsuit challenging Prop. 8:

Other than possibly scheduling of some dates for action in the future that will be of import, nothing of significance is likely to come out of this conference. Today’s conference is likely to focus on preliminary evidentiary matters and could result in a scheduling order.

Wednesday, July 1, 2009

DC Judge Turns Down Lawsuit to Stop Gay Marriage Law

In its recent D.C. Superior Court lawsuit, the Alliance Defense Fund sought to restore opportunity for a referendum on the D.C. law that recognizes same-sex marriages licensed elsewhere. The D.C. Elections and Ethics Board had decided that a proposed referendum violates the D.C. Human Rights Act, and the Court agreed, dismissing the case. Unless ADF successfully appeals the dismissal, or Congress intervenes before July 6th, the D.C. Council will face no obstacle to adopting a marriage-equality law.

Judge Walker to to move "directly and expeditiously" to a trial on the constitutionality of Prop. 8

06/30/09 SF Chronicle:

In his 06/30/09 order in Perry et al v. Schwarzenegger et al. (N.D.Cal. 3:09-cv-02292, filed May 22, 2009), Judge Walker said that pending a hearing on 07/02/09,

he's inclined to leave California's ban on same-sex marriage in effect for now, but wants an early trial to determine whether the voter-approved prohibition violates the U.S. Constitution's guarantee of equality ... [He] said the case raises numerous issues that may need to be considered at a trial, including the history of discrimination against gays and lesbians and the intent and effects of the state constitutional amendment ... [He] has tentatively decided instead to move "directly and expeditiously" to a trial on the constitutionality of the measure ... Halting enforcement of Prop. 8 at this stage "may inject still further uncertainty."

07/01/09 The Recorder:

On its face, the order seems to give same-sex marriage proponents a lot of ammunition. In addition to [the appropriate] standard of review [under the equal protection clause] and state interests [in banning gay marriage], Walker asked whether Prop 8 discriminates based on sexual orientation or gender ... "To resolve the question [of discriminatory intent], the court may have to consider the 'immediate objective' and 'ultimate effect' of Prop 8, along with its "historical context and the conditions existing prior to its enactment,'" Walker wrote, citing Reitman v. Mulkey , 387 U.S. 369, a 1967 case that vetoed a California ballot initiative found to encourage race discrimination.

07/01/09 LawDork:

The judge’s decision makes a lot of sense on two very basic levels: (1) an injunction of Proposition 8 would mean that, immediately and during trial, same-sex marriages would be taking place in California, which would raise many difficulties both legal and practical and (2) the issues involved in granting a preliminary injunction in a case like this are not likely all that different than those to be decided in the full consideration of the case. As such, this is not an altogether surprising decision from Judge Walker.
07/01/09 Wall Street Journal Law Blog:

Attorney Brian Raum of the Alliance Defense Fund, representing sponsors of Prop. 8, said he sees no need for a trial. “We think this is an issue of law” that does not depend on disputed evidence, Raum said. For example, he said, questions of past persecution of gays and lesbians are irrelevant because Prop. 8 allows them to marry, as long as they wed someone of the opposite sex.

Wisconsin Governor Jim Doyle signs legislation to give same-sex couples limited domestic partnership benefits

07/01/09 The Capital Times (source: Gay Marriage Watch):

The Wisconsin Constitution (Art.I, Sec.25) bans not only same-sex marriages, but also civil unions that are "substantially similar" to marriage. Governor Jim Doyle yesterday signed legislation that he understands the state constitution to allow - the recognition of limited domestic partnerships for same-sex couples:

Along with the recognition come dozens of legal protections that previously were only granted to married couples, including the right to take family leave to care for a sick or dying partner, the ability to access a partner's medical records and the right to inherit a partner's property.
Governor Doyle also approved of legislation that extends health care benefits to the same-sex partners of state employees.

By granting recognition of limited domestic partnerships, Wisconsin has now distinguished itself among states whose constitutions ban same-sex marriages and restrict recognition of domestic partnerships. But a survey of relevant constitutional amendments in these states might show that, like Michigan, they have more latitude for effectively banning domestic partnerships.

The new laws probably face state constitutional challenges. However, a recent trial court ruling gives defendants grounds not only to sustain the Governor's interpretation of Art.I, Sec.25, but to reverse a 1992 precedent [Phillips v. Wisconsin Personnel Commission, 167 Wis.2d 2005, 482 N.W.2d 121 (Wis. Ct. App. 1992)] that upheld denial of benefits to same-sex partners of public employees. Professor Arthur Leonard analyzes this ruling here.

Liberty Counsel files motion to intervene in Perry v. Schwarzenneger on behalf of Campaign for California Families

06/30/09 Liberty Counsel press release:

San Francisco, CA – Today Liberty Counsel is filing a motion to intervene in the recent lawsuit against California’s Marriage Amendment (Prop 8). Attorney David Boies and former Solicitor General Ted Olson filed a federal lawsuit against California’s marriage amendment, claiming that it violates the U.S. Constitution. Liberty Counsel is representing the Campaign for California Families (CCF).

In November, / Yes on 8 opposed Liberty Counsel's motion to intervene on behalf of CCF in Strauss v. Horton. According to SF Weekly, Yes on 8, in a mass e-mail,

criticized CCF's attempts to become a named party in the lawsuit. "Campaign for California Families...actually campaigned against Proposition 8 until a short time before the election," the email read. "Since we are the only organization representing the official proponents and the campaign committee that was responsible for passing Prop 8, allowing outside groups to participate in the defense of Prop 8 will only harm our chances of success." The court agreed with Yes on 8.
As a result, Liberty Counsel could not participate in oral arguments, and was limited to filing an amicus brief.

Will the official proponents of Prop. 8 again object to Liberty Counsel's motion to intervene - for the same reason?

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