Saturday, November 28, 2009

Another post on why even limited domestic partnerships matter

11/26/09 Washington Post:

I have claimed that limited domestic partnerships can do more good than harm to advance public acceptance of marriage equality, especially in states that ban same-sex marriage (and legal status for same-sex relationships approximating marriage.) It's a debatable claim, of course: marriage represents far more than a bundle of benefits, protections, rights and duties. Marriage equality supporters are divided over the value of perceived half-measures that appear to many to reinforce second-class citizenship for same-sex couples. At any rate, the claim that I have been making is hardly mine; at a recent forum on the right to marry, Keith Boykin identified its origins. He said that civil rights attorney Evan Wolfson was among the first to identify the long-term, strategic value of promoting quasi-spousal benefits through domestic partnerships. On Boykin's account, Wolfson hoped to move the "default" line forward. This Washington Post article appears to confirm Wolfson's foresight:
"Public support for marriage hasn't caught up to public support for relationship recognition benefits, but it will," said Jarrett Barrios, president of the Gay & Lesbian Alliance Against Defamation, a New-York based discrimination watchdog. "Because at the end of the day, the public sees that marriage and all the benefits associated with it are about . . . what people need to honor their commitment to their spouses and protect them."
11/28/09 AP:

In 34 states, same-sex couples lack any form of legal recognition, so - as I have also observed - even limited domestic partnerships matter because these couples will immediately gain from any benefits that limited domestic partnerships confer. And these benefits are hardly to be underestimated:
''When I speak to women from Florida or Wisconsin or Minnesota, they are like, 'I don't care what it's called, I just want to be able to visit my wife in the hospital and cover my children with my health insurance,''' said [Leland] Traiman, who helped pass the nation's first domestic partnership law a quarter-century ago in Berkeley ... Activists like Traiman point to the success of efforts to extend spousal rights and other civil rights protections to same-sex couples, even as the passage of gay marriage bans grab headlines.

Recent developments abroad

Gay marriage advocates’ hopes were deflated today [in Australia] with the long-awaited Committee of Inquiry into the Marriage Equality Amendment Bill report recommending against same-sex marriage. “The Committee recommends that the Bill not be passed,” the report stated.
11/25/09 U.K. PinkNews:
Warren McGaw and Chris Rumble have become the first Australian gay couple to have their civil partnership ceremony legally recognised.The pair, who have been together for nearly 20 years, held their ceremony yesterday afternoon at the Old Parliament House rose gardens in Canberra. They are the first to take advantage of new legislation passed in the Australian Capital Territory (ACT) earlier this month. However, the right may not last for long as prime minister Kevin Rudd has said he will overturn the law.
11/25/09 Irish Catholic:
[T]he Civil Partnership Bill [in Ireland] will give same-sex couples all of the rights of married couples except the right to adopt a child as a couple. Homosexuals can already adopt as single people.
11/25/09 JURIST Paper Chase:
Tom Freeman and Katherine Doyle are the first heterosexual couple to apply for a civil partnership in the UK, where same-sex couples may obtain legal recognition with rights akin to those of a married couple. They allege that the denial constitutes discrimination based on sexual orientation, and that such a distinction amounts to segregation in matrimonial law. The human rights and gay rights activist Peter Tatchell is supporting [press release] the couple in their challenge and has decried the difference in application of the laws experienced by heterosexual and homosexual couples.
Among other reasons for seeking civil parternship, Freeman and Doyle say that "that we object to the way same-sex couples are prohibited from getting married."

11/25/09 Guardian:

Explaining why he supports the U.K. couple's civill partnership application, Peter Tatchell says,
There should be no legal discrimination. The ban on same-sex civil marriage and on opposite-sex civil partnerships is segregationist. It is one law for straight couples and another law for gay partners. Two wrongs don't make a right.
11/24/09 AP:
MEXICO CITY — A lawmaker in Mexico's capital has proposed changing the city's civil code to allow gay marriages.
Two men were granted a marriage license in Argentina’s capital on Monday, breaking ground in a country and region where laws ban gay marriage.

Wednesday, November 25, 2009

Ninth Circuit orders December 1st oral argument on issues presented by its emergency stay of discovery orders in Perry v. Schwarzenneger

11/25/09 Ninth Circuit panel order of December 1st oral argument on issues involving its stay of discovery orders in Perry v. Schwarzenneger

As readers of this site know, a Ninth Circuit panel granted an emergency stay of discovery orders in Perry v. Schwarzenneger. The discovery disputes concerns whether the official Prop. 8 proponents may refuse to disclose certain types of internal campaign communications to plaintiffs, on grounds of First Amendment privilege.

I wish to thank Greg Smith for so quickly alerting me to today's order by the panel, and for offering his comments:
In something of surprise, [the panel has] ordered oral argument in Pasadena on Dec. 1. The scope of the hearing is the entire panoply of issues presented, included the emergency motion to stay discovery.

In the meantime, production of documents is stayed in the pretrial proceedings, but the parties are to continue to negotiate an appropriate protective order. The court will also have before it, under seal, the 21 responsive documents that Walker reviewed in camera.
[Read here about the November 2nd hearing about the discovery dispute, which concluded with Walker's proposed in camera review. Read here about Walker's November 11th order on the outcome of his review.]

Here is the expanded range of issues the panel has asked attorneys to address at its oral argument. I underscore the subject of that expansion:
The parties shall be prepared to address the question of jurisdiction under the collateral order doctrine, the merits of the First Amendment privilege issue, and whether a temporary stay pending a resolution of the merits should be granted under Nken v. Holder, 129 S. Ct. 1749, 1760-61 (2009).

Compromise Uncertain on D.C.'s' Marriage Equality Legislation: The Manhattan Declaration

11/23/09 DCist Blog:

I recently prepared a summary of an attempt by the D.C. Council to accommodate objections by the Archdiocese of Washington to its proposed marriage-equality law (last revised on November 10th). Blogger Martin Austermuhle questions whether Archbishop Donald Wuerl is prepared for a compromise of the kind that D.C. Council members David Catania and Phil Mendelson have suggested to Wuerl. Wuerl appeared to Austermule to have sounded a conciliatory tone in his November 17th Washington Post editorial, although a coalition of advocacy organizations have called Wuerl's arguments in the editorial "defective." At any rate, Austermuhle says,
only a day later, Wuerl appeared at a press conference announcing the Manhattan Declaration, an ecumenical statement outlining Christian opposition to same-sex marriage and threatening civil disobedience to any laws legalizing it. "[Nor] will we bend to any rule purporting to force us to bless immoral sexual partnerships, treat them as marriages or the equivalent, or refrain from proclaiming the truth, as we know it, about morality and immorality and marriage and the family," stated the declaration.
Until now I have reserved judgment on the controversial Manhattan Declaration, whose signers include Alliance Defense Fund President, Alan Sears. I would welcome reader comment on its implications for marriage-equality legislation and litigation. It appears not just likely, but intended to portray marriage equality as a grave threat to religious liberty. Some social conservatives, such as David Blankenhorn, acknowledge that the marriage-equality movement has made sufficient progress to warrant a compromise over perceived conflicts with religious liberty. Far from making any such concession, the Manhattan Declaration's signers expect to rely on the alleged conflict as a continuing means of undermining public support for marriage equality - a strategy that has succeeded in California's Yes on 8 and Maine's Yes on Question 1 campaigns.

The American Prospect on Perry v. Schwarzenneger: "Gay on Trial: Why more than marriage is at stake in the federal challenge to Prop. 8"

11/23/09 The American Prospect:

Garbiel Arana, editorial assistant at The American Prospect, has written an exceptionally succinct, nuanced, and comprehensive article on Perry v. Schwarzenneger. She reviews the controversy over the legal strategy it represents, the legal arguments of attorneys representing parties on both sides, and the merits and weaknesses of those arguments. But, as the title of her article suggests, she assesses the broader importance of the case, beyond the attempt to recognize that same-sex couples have no less right to marry than heterosexual couples. She observes that "[t]he case is really about the place of gay people in society." She emphasizes the far-reaching legal and social ramifications if the constitutional defeat of Prop. 8 succeeds, the consequences if it does not, and the limitations of litigation in securing equal protection of unpopular minorities.

Tuesday, November 24, 2009

Rationale grows for federal legislation on limited domestic partner benefits

11/24/09 Washington Post:

Two federal appellate court judges issued separate rulings last week that came to the same result: Uncle Sam must permit employee benefits for same-sex spouses of federal workers. Though the decisions apply only to same-gender married employees of the U.S. Court of Appeals for the 9th Circuit, and that's a pretty small group even in California, the judges' orders boost the arguments of those favoring legislation that Congress now is considering.

Vermont judge grants sole custody of child to nonbiological mother and former lesbian partner

11/24/09 The Burlington Free Press:
A Vermont judge has granted sole custody of a girl to her nonbiological mother in a custody dispute involving a former lesbian couple. Family Court Judge William Cohen awarded custody of the 7-year-old to Janet Jenkins of Fair Haven on Friday after finding the biological mother, Lisa Miller, in contempt of court this year for denying Jenkins access to the girl. Miller, who lives in Virginia and renounced homosexuality after the couple broke up in 2003, plans to appeal.
The ACLU has information on the case here.

Virginia Appeals Court Give Full Faith and Credit to North Carolina Custody Order for Gay Dads

11/24/09 Leonard Link by law professor Arthur Leonard:
A three-judge panel of the Court of Appeals of Virginia ruled on November 24 that the Fairfax Juvenile and Domestic Relations District Court had properly accorded full faith and credit, as required by the U.S. Constitution, to a North Carolina judicial decision awarding primary legal and residential custody of a child to two gay men (who are registered California domestic partners). Still pending before the lower court is a demand by the woman who served as surrogate mother for this child that the North Carolina custody ruling be modified to give her sole custody. One of the judges on the Court of Appeals argued in dissent that the case was not properly before the court for review. Prashad v. Copeland & Spivey, 2009 Westlaw 4030852 (Va.App., Nov. 24, 2009).
12/05/09 Volokh Conspiracy:
It’s true that most parenting relationships arise within a marriage, and while most court orders determining parental rights happen as a result of the breakup of a marriage. But parenting rights and marital rights are legally quite different. Unmarried opposite-sex couples generally have much the same parental rights as do married couples (setting aside some special problems of proof), and the same access to child custody adjudications. There’s no reason to read bans on same-sex marriage as precluding the recognition of same-sex couples’ custody rights.

South Florida man at forefront of effort to legalize gay adoption

Florida Dept. of Families and Children v. In re: Matter of Adoption of X.X.G. and N.R.G., No. 3D08-3044 (Fl. Ct.App. 3d Dist.) / reply brief filed 08-06-09 by Florida Attorney General / ACLU's case profile / 08/27/09 Daily Business Review (on 08/26/09 oral arguments)

I have not been focused on gay adoption cases, but their bearing on the right to marry strikes me as obvious, especially in a super-DOMA state like Florida. So I am trying now to remedy an oversight in my rather weak coverage of related legal developments.

11/22/09 Palm Beach Post:
More than 32 years after its passage, Florida's blanket ban on gay adoption [Fl. Stats. Sec. 63.042(c)(3)] stands as the last one left in the nation. After a few failed legal challenges, now comes a case that advocates of gay adoption have pinned their hopes and legal prowess on ... Miami-Dade Circuit Judge Cindy Lederman agreed and approved Gill's adoption of the boys. Concluding that sexual orientation is not a predictor of a person's ability to parent, she declared the law unconstitutional. An appeals court's review of her decision could come at any time. If the 3rd District Court of Appeal concurs, the case would automatically move to consideration by the Florida Supreme Court — placing the hot-button topic of gay adoption at the forefront again.

Effect of Referendum 71 on Washington Life and Health Insurance

11/23/09 Gay Couples Law Blog by law student Gideon Alper:
I've gotten a couple questions from people wondering about how the new Washington "everything but marriage" law that passed earlier this month will affect their insurance ... What if you're from another state? Fortunately, the law will cover domestic partners registered in other states. But probably not marriages. So domestic partners registered in Nevada, for example, will receive full benefits of the law, but couples married in Massachusetts will not. Just another reason why, when it comes to gay relationships, names are important.

Monday, November 23, 2009

Counselor in Same-Sex Marriage Dispute Calls for Dismissal of Complaint: Does the Manhattan Declaration Casts A New Light on These Types of Disputes?

11/23/09 Maine Public Broadcasting Network:
A Newport high school guidance counselor is asking the state's Office of Licensing and Registration to throw out a complaint filed against him in connection with a TV ad he appeared in opposing same-sex marriage ... The complaint against Donald Mendell was filed after he appeared in a campaign ad in support of Question 1 on the November ballot. Ann Sullivan, a social worker at Newport Elementary School...contends that Mendell violated a code of ethics established by the National Association of Social Workers that says social workers should not condone any form of discrimination. But Mendell says the complaint is "frivolous," according to the paper. The Palmyra resident says he was exercising his constitutional right to free speech when he appeared in a campaign ad in support of Question 1, the ballot initiative approved by voters in November which repealed the state's gay marriage law.

I would not be surprised if the Alliance Defense Fund comes to Mendell's defense. I welcome from my readers any subsequent news. I no longer regard these legal battles as collateral issues. With the Manhattan Declaration, will controversies like this one, whatever their merits, assume a practical importance out of proportion to their cause.

Sunday, November 22, 2009

9th Circuit panel grants stay of discovery orders in Perry v. Schwarzenneger

11/20/09 order by 9th Circuit Court in appeal of discovery orders in Perry v. Schwarzenneger

[Thanks to an anonymous reader for alerting me to this development yesterday.]

Among other things, a 9th Circuit Court panel has granted a stay of the October 1st and November 19th discovery orders in Perry v. Schwarzenneger. The discovery dispute concerns whether the official Prop. 8 proponents have a First Amendment right to withhold from plaintiffs their internal campaign communications. These documents could show the nature and extent of the Yes on 8 campaign's intent to target gays and lesbians for discrimination - evidence that would support plaintiffs' claim that Prop. 8 violates equal protection under the 14th Amendment.

Prop. 8 proponents raised the First Amendment issue in their appeal. But on October 20th, the panel ordered them to show cause why their appeal should not be dismissed for lack of jurisdiction. The panel requires parties to file briefing on this narrower, jurisdictional question by 5 p.m. on November 23rd.

Greg Smith was very kind to correct my mistake about the panel's order when I posted it earlier today. Here are some of his perceptive comments:
The panel is obviously proceeding with haste to dispose of the question of whether or not the court can even entertain the appeal. Whether the privilege obtains here will have to wait for a separate round of briefing to come only if the court notes jurisdiction.

Off hand, I suspect that the panel's interest has more to do with an appellant who's clogging up the docket with repetitive interlocutory appeals. But, Friday's order could signify some interest in the underlying claim. We should know before the week is out.

D.C. Council Chairman seeks compromise over objections by Archdiocese of Washington to marriage-equality bill

11/20/09 Washington Post:
Some D.C. Council members and Del. Eleanor Holmes Norton are reaching out to the Catholic Archdiocese of Washington to see whether they can find a compromise so the Church will not end its social services contracts with the city if the council legalizes same-sex marriage. [See the version of the legislation as revised November 10th.] After a week of heated rhetoric, District officials said Thursday that they see a way for Catholic Charities to continue operating programs with city money while assuring that the organization's gay and heterosexual employees would be treated equally if they got married.
Law professor Nancy Polikoff questions whether Catholic Charities would be required to extend spousal benefits to gay and lesbian employees, even when, as widely expected, the D.C. Council adopts marriage-equality legislation at its December 1st meeting. (If Catholic Charities self-insures, she believes that neither the marriage-equality bill, nor existing law in D.C., would require the organization to provide health care benefits to same-sex spouses of employees.) Moreover, the District's Human Rights Act already prohibits sexual-orientation discrimination in the kind of public services Catholic Charities provides. So Polikoff considers it a "red herring" for the Archdiocese to object that the marriage-equality bill would create a ban on this form of discrimination.

Responding to the Archdiocese's objections and a Washington Post editorial by Archbishop Donald Wuerl, a coalition of 12 organizations has submitted a November 20th letter to Vincent Gray, Chairman of the D.C.. The coalition includes the ACLU and the local Gay and Lesbian Activists. The coalition recommends that the Archdiocese of Washington follow the policy of the Archdiocese of San Francisco, which allows employees to "designate one person - any person - as an additional beneficiary." The coalition also recommends further amendment of the bill, and claims that Catholic Charities already have a legal obligation to extend spousal benefits to its same-sex employees.

Gray has asked two other Council members to consider how to accommodate the Archdiocese. They are David Catania, a key author of the marriage-equality bill, and Phil Mendelson, chairman of the committee that recently held hearings on the legislation and revised it. In their November 18th letter to Wuerl, they offer examples of how the Archidocese might offer spousal benefits to gay and lesbian employees without recognizing their marriages. However, like the advocacy coalition, they maintain that the Human Rights Act bars Catholic Charities from denying its services to same-sex couples. They express readiness to consider an amendment that will answer the Archdiocese's concerns, "while ensuring that District funds are not used [by Catholic Charities] in a manner inconsistent with the Human Rights Act."

11/24/09 DC Agenda:
A spokesperson for the Archdiocese said she was making inquires over the Archdiocese’s reaction to the San Francisco-Georgetown compromise proposal and the assertion by the 12 groups that Catholic Charities is already bound by law to provide benefits to same-sex partners of its employees.

Saturday, November 21, 2009

Legal battle over D.C. Marriage Intiative petition

In May, the D.C. Council adopted the the Jury and Marriage Amendment Act of 2009 (JMAA), which confers recognition of same-sex marriages licensed in other states. JMAA opponents included D.C resident Bishop Harry Jackson, senior pastor of Hope Christian Church in Beltsville, Maryland. They sought to qualify a referendum on the law, but in June, the D.C. Board of Elections and Ethics ruled that the referendum would violate the Human Rights Act by discriminating on the basis of sexual orientation. Representing Jackson and six other D.C. residents, the Alliance Defense Fund (ADF) filed a lawsuit to try to secure a court order that the Board allow the referendum on the ballot. In July, the judge dismissed the lawsuit, and the JMAA took effect.

Given this outcome, I had thought that marriage-equality legislation was unlikely to follow a similar trajectory, in which Jackson and other marriage-equality opponents would try to defeat the legislation by qualifying a ballot initiative banning same-sex marriages. Events proved me wrong. Jackson and his allies sought to qualify the Marriage Initiative of 2009, and it was "déjà vu all over again."

At a hearing on the referendum, an ADF attorney and colleague made it clear enough that an unfavorable ruling by the D.C. Elections Board would not go unchallenged. On November 17th, the Board ruled that the initiative violated the Human Rights Act (HRA) because it singles out gays and lesbians for discrimination. Again representing Jackson and other plaintiffs, ADF has filed a lawsuit in an attempt to overturn the latest ruling by the Elections Board. [Jackson v. District of Columbia Board of Elections and Ethics, No. 0008613-09 (D.C. Super. Ct., filed 11/18/2009); ADF press release and complaint.] ADF alleges that HRA's restriction on discrimination should not preclude a discriminatory initiative - an exercise in democracy that plaintiffs claim the D.C. Charter guarantees - and that the Marriage Initiative does not violate the HRA.

I would be surprised if Jackson and other plaintiffs stand any greater odds of success than they did with their first lawsuit over the JMAA. The latest lawsuit includes civil rights activist Walter Fauntroy among the plaintiffs. Rev. Fauntroy told the Washington Post that "[e]very child needs to be bonded to a man and a woman" and that " the survival of the species is at stake."

For more news and commentary on the lawsuit, see this 11/20/09 Metro Weekly article.

Friday, November 20, 2009

NY Court of Appeals recognizes out-of-state, same-sex marriages for purpose of public employee health insurance and county government benefits

11/19/09 NY Times:
ALBANY — The state’s highest court on Thursday upheld policies giving some government benefits to same-sex couples who are legally married outside the state, but did not rule on whether gay marriage should be legal in New York, leaving that issue for the Legislature to decide. Though the majority in the 4-to-3 decision focused its decision on the narrow question of benefits, the three judges in the minority went further and said the court should have upheld the policies because same-sex marriages legally performed in other states deserved to be recognized in New York.
11/20/09 New York Law Journal:
ALBANY - The state Court of Appeals yesterday affirmed on narrow grounds the recognition of same-sex marriages by a county executive and a state agency, but by a bare 4-3 margin declined to extend full recognition to all such marriages contracted in other states and countries where they are legal.
11/20/09 New York Public Personnel Law Blog:
Plaintiffs in this action are taxpayers challenging directives recognizing out-of-state same-sex marriages for purposes of public employee health insurance coverage and other benefits. The Court of Appeals held that that plaintiffs' actions were properly dismissed by the courts below.
11/19/09 Lambda Legal press release/ Marriage Equality New York:
In a decision today, the New York Court of Appeals ruled that the State Department of Civil Service and Westchester County could extend government benefits to same-sex couples in out-of-state marriages. The ruling comes in cases in which Lambda Legal intervened on behalf of two married same-sex couples after the Alliance Defense Fund, an antigay legal group, tried to do away with longstanding New York law recognizing out-of-state marriages.
11/19/09 Leonard Link, by law professor Arthur Leonard:
The New York Court of Appeals, the state’s highest court, has unanimously rejected two attempts by the Alliance Defense Fund, an anti-gay litigation group, to obtain invalidation of actions by government officials authorizing recognition of out-of-state same sex marriages. Godfrey v. Spano; Lewis v. N.Y.S. Dep’t of Civil Service, Nos. 147 & 148. The November 19 ruling actually divided the court 4-3, although all of the judges agreed on the result to reject the challenges.

9th Circuit Chief Judge Alexander Kozinski rules that lesbian spouse of circuit court staff attorney must receive health care benefits

11/19/09 order by Chief Judge Alexander Kozinski In the Matter of Karen Golinski:

On November 18th, 9th Circuit Judge Stephen Reinhardt ruled that federal public defender Brian Levenson must be compensated for loss of health care benefits to his gay spouse when the Office of Personnel Management rejected his spousal benefit claims. The next day, Chief Judge Alexander Kozinski ruled that Karen Golinski, a circuit court staff attorney, must be allowed to pursue her claims of health care benefits for her lesbian spouse. The Recorder's Dan Levine thinks that gay marriage has received a "boost" from these rulings, even though they are administrative, limited to circuit employees, and without bind precedent on other courts.

11/18/09 press release by Lambda Legal:
Lambda Legal and the law firm of Morrison & Foerster represented Karen Golinski, a judicial attorney at the court, in her administrative grievance against her employer. In January, 2009, Chief Judge Kozinski ruled that Golinski was entitled to spousal benefits for her wife, Amy Cunninghis. The federal Office of Personal Management – an agency of the Executive Branch – responded that the law governing federal employees’ health insurance and the Defense of Marriage Act (DOMA) prevent coverage for the spouses of gay and lesbian federal employees, and instructed Golinski’s insurer not to enroll Cunninghis.

9th Circuit rules that Campaign for California Families not entitled to intervene in Perry v. Schwarzenneger

11-19-09 opinion by 9th Circuit Judge M. Margaret McKeown on Campaign for California Families' attempt to intervene in Perry v. Schwarzenneger / 11-20-09 Metropolitan News-Enterprise

The Campaign for California Families (CCF) has a reputation as a rival to Yes on 8, the organization of the official Prop. 8 proponents. The proponents are defendant-intervenors in Perry v. Schwarzenneger, the federal lawsuit challenging the constitutionality of Prop. 8. In June, CCF sought to intervene in the case, on the grounds that Yes on 8 would not adequately represent its alleged interest in upholding Prop. 8. Proponents have opposed CCF's attempts to intervene in both Strauss v. Horton and Perry.

Judge Vaugn Walker denied CCF's motion to intervene, and CCF appealed. Now a 9th Circuit panel has affirmed in part, and denied in part, Judge Walker's order. Writing the panel's opinion, Judge McKeown has ruled that CCF is not entitled to intervene.

(Notice the part of the ruling that the Alliance Defense Fund presents at ADF Alliance Alert. ADF here relies on the ruling to misleadingly suggest that CCF and the Prop. 8 proponents have no real differences in goals about the legal status of same-sex relationships.)

11/20/09 Daily Journal, page 5 (subscription required):
Andrew Pugno, an attorney for the official proponents of Proposition 8, said he was "pleased" with the decision, saying it wouldn't be "fitting that [CCF] should have full status on the defense of [Prop. 8]. CCF opposed Prop. 8 at first and resisted our efforts to qualify it for the ballot. They wanted to go beyond what we thought voters would support and roll back gay rights with a much more aggressive measure.

Thursday, November 19, 2009

Judge orders production of campaign documents by official Prop. 8 propnents

11/19/09 order compelling document production by official Prop. 8 proponents in Perry v. Schwarzenneger

This is the third discovery issued to parties in Perry v. Schwarzenneger. (See my last post about the discovery dispute here.) [November 20th: A reader has helpfully corrected my oversight. Judge Joseph Spero issued the order on behalf of Judge Vaugn Walker.] Thanks to California attorney Rick Xiao for alerting me to today's order and for commenting about it:
Today Judge [Spero] dropped the hammer on Prop. 8 proponents and ordered immediate production of internal communications concerning their campaign strategies and messages to voters. Among other things, Judge [Spero] admonished Prop. 8 proponents that his previous discovery orders, while being appealed to the Ninth Circuit, remain in effect because the appellate court has not issued a stay. Thus, Prop. 8 proponents risk contempt of the court if they continue to withhold production. According to today’s order, Prop. 8 proponents are ordered to produce additional responsive documents on a rolling basis to conclude not later than the close of fact discovery on November 30, 2009.

Congressional committee approves Domestic Partners Benefits and Obligations Act of 2009

11/18/09 press release by Edolphus Towns, Chair, House Committee on Oversight and Government Reform / ADF Alliance Alert
Washington, DC - Chairman Edolphus� Towns (D-NY) today announced that the House Committee on Oversight and Government Reform approved H.R. 2517, the Domestic Partnership Benefits and Obligations Act of 2009. The legislation makes available certain employment benefits, including health care, to the same-sex domestic partners of federal employees. H.R. 2517 promotes equality and fairness in the federal workforce, and strengthens the civil service ..H.R. 2517 makes employment benefits available to the same-sex domestic partners of federal employees, former employees, and annuitants. In order to receive these benefits, the legislation requires an employee with a same sex domestic partner to certify in an affidavit that his or her relationship satisfies the criteria set out in the Act for establishing a domestic partnership. Once a domestic partnership is established, the employee and the domestic partner are eligible to receive benefits, including health care insurance.

Gay federal public defender wins compensation for spouse's health care benefits

11/18/09 Order In the Matter of Brad Levenson, by 9th Circuit Judge Stephen R. Reinhardt:

In February, two 9th Circuit judges issued administrative decisions to settle employee disputes in the 9th Circuit. Acting as adjudication officers, Judge Stephen Reinhardt ruled that the federal DOMA should not prevent the spouse of federal public defender Brad Levenson from receiving health care benefits, and Chief Judge Alexander Kozinski ruled that such benefits must be extended to the lesbian spouse of 9th Circuit staff attorney Karen Golinski. They reached their decisions on different grounds with respect to the federal DOMA. And they did not set binding precedents for district courts within the circuit or for the circuit court itself.

Nevetheless, the Office of Personnel Management rejected the spousal benefit claims of Levenson and Golinski. In today's administrative order, Judge Reinhardt ruled that Levenson is entitled to compensation for the benefits his spouse was denied. He ruled that the federal DOMA is unconstitutional under the Fifth Amendment's due process clause, because the federal government's discrimination against Levenson and his spouse bears no rational relationship to legitimate government purposes. Again, his administrative order has no binding precedent for other courts. Yet Dan Levine of the Cal Law Legal Pad asks whether the order will have an effect on Perry v. Schwarzenneger.

Lambda Legal Files Federal Lawsuit Seeking to Block Elimination of Domestic Partner Benefits for Gay and Lesbian State Employees

11/17/09 Lambda Legal press release:
(Tucson, Arizona, November 17, 2009) — Lambda Legal has filed a federal lawsuit in U.S. District Court in Tucson to block a move to strip domestic partner benefits from gay and lesbian state employees. Arizona lawmakers included a provision stripping domestic partner health benefits from state employees as part of a last–minute budget deal signed by Governor Jan Brewer in September, while retaining spousal health benefits for heterosexual workers ... The case is Collins v. Brewer. [No. 2:09-cv-02402-JWS (Az.Dist.Ct.)]
Lambda Legal alleges discriminatory elimination of the benefits in violation of due process and equal protection under the 14th Amendment. Here is the complaint.

Wednesday, November 18, 2009

How D.C. Domestic Partnership Law Will Affect Employers

11/18/09 Gay Couples Law Blog, by law student Gideon Alper:
A new Washington D.C. "everything but marriage" law will give registered domestic partners all the rights that married couples have starting December 3rd.

As lot of the press and blogs on the new law have focused on how the law affects gay couples, I found interesting a guide that Stoel Rives, a law firm focusing on corporate law and business litigation, posted on how the domestic partnership law affects employers ...

Same-sex couples stranded between love and country: Binational partners in U.S. immigration bind

11/16/09 Delaware Online:
An estimated 36,000 same-sex couples, many with children, face similar [binational] separations under U.S. law [the federal DOMA], according to Immigration Equality, a New York-based advocacy group." The situation that lesbian and gay families are in is particularly acute because it's overlaid on unequal treatment for gay families," said Rachel B. Tiven, Immigration Equality's executive director ... Three federal bills that would change how the U.S. government recognizes same-sex marriages for immigration purposes have been proposed -- one in the Senate and two in the House of Representatives [here and here].

Buenos Aires mayor will not appeal ruling allowing same-sex marriage

11/15/09 JURIST Paper Chase:
[JURIST] Buenos Aires Mayor Mauricio Macri [BBC profile] said Friday he will not appeal [press release, in Spanish] a court ruling [VOA report] that allows same-sex marriages [JURIST news archives] in the capital city of Argentina.

Same-Sex Marriage and Religious Liberty: Latest Scholarly Developments

11/14/09 Mirror of Justice, by law professor Tom Berg:
This past Thursday saw a fine conference at Northwestern Law School on the topic, and I gave the "keynote" talk, on "What Same-Sex Marriage and Religious-Liberty Claims Have in Common." I personally have come to find the case for legislative recognition of same-sex marriage to be strong (a position that should in no way be imputed to the co-authors of our letters advocating strong religious exemptions). But my conclusion on the underlying question in no way lessens my commitment to strong accommodations for religious objectors, both organizations and individuals. Indeed, the gravamen of my NU talk was that the very arguments that support recognition of SSM also strongly support accommodation of religious objectors unless they are in a position substantially to block access to marriage. I'll post the full piece when it's written, but here's a summary ...
11/14/09 Mirror of Justice, by law professor Tom Berg:
Readers in and around Des Moines, IA, might be interested in a debate between Georgetown Law prof Nan Hunter and me, this Tuesday at 3 p.m. at Drake Law School. The topic is "Religious Liberty Exemptions and Iowa's Same-Sex Marriage Decision." [The debate appears not to have received a webcast.]
Shannon Gilreath, Not a Moral Issue: Same-Sex Marriage and Religious Liberty, [book review of Same-Sex Marriage and Religious Liberty: Emerging Conflicts], Wake Forest University Research Paper Series in Legal Studies, Working Paper No. 1504170, posted 11/11/09 at Social Science Research Network

Proposed initiatives to repeal Prop. 8 in 2010

11/16/09 SF Chronicle Politics Blog:
No less than five initiatives have been cleared for takeoff by the Secretary of State's office. All five would repeal the current provision in California's Constitution that limits marriages to between a man and a woman; and they all include a clause that would exempt clergy persons from having to perform a marriage ceremony if it conflicts with their religious beliefs.
See the latest ballot update here.

11/16/09 Reuters:
"All eyes are on California now," said John Henning, executive director of Love Honor Cherish, a California gay rights group, and one of the leaders of an effort to gather a million signatures to place the measure on the November 2010 ballot in California.

Gay weekly Washington Blade closes: Storied 40-year-old paper among sister publications abruptly shuttered

11/16/09 Washington Post:
The Washington Blade, the weekly newspaper that chronicled the coming-out of the capital's gay community, was born amid the idealism of 1960s street protests. Monday, the paper died, victim of the unforgiving realities of the nation's sagging newspaper industry.
I ordinarily don't comment on developments beyond the narrow scope of this site, but I find that I can't overlook the closure of the Washington Blade and its sister publications. Unfortunately, I don't know the newspaper's distinguished history. (Perhaps a reader can post a comment?) I know just that I have depended on its reporters for their exceptional thoroughness and attention to detail when covering recent D.C. Council hearings on the . Their obvious professionalism leaves a void that can't be filled - unless, as the Post reports, the Blade reporters form their own newspaper.

As a law librarian and blogger, I depend on local newspapers like the Blade for news I can find nowhere else, and for in-depth reporting mainstream media can't match. Their loss further impoverishes public debate about the most critical issues of our time.

Tuesday, November 17, 2009

GLAD Responds to U.S. Motion to Dismiss DOMA Suit; Seeks Final Ruling in Favor of Plaintiff Couples

11/17/09 press release by Gay & Lesbian Advocates & Defenders (with links to associated filings):
Stepping up its litigation challenging Section 3 of the Defense of Marriage Act, GLAD today filed in the U.S. District Court for the District of Massachusetts both an opposition to the federal government’s motion to dismiss Gill v. Office of Personnel Management, and a motion for summary judgment seeking a final ruling on the law in favor of the plaintiffs.
11/17/09 Huffington Post:
BOSTON — Gay married couples suing the government over a federal law that doesn't recognize same-sex unions say there is "no legitimate or plausible" reason for having a federal definition of marriage that excludes gay couples.

Judge Walker issues discovery order favorable to plaintiffs in Perry v. Schwarzenneger

11/11/09 discovery order by Judge Walker:

On November 2nd, Judge Walker held a hearing on a discovery dispute in Perry v. Schwarzenegger, the federal lawsuit challenging the constitutionality of Prop. 8. The dispute concerned whether the Prop. 8 proponents could withhold certain campaign communications about messages and themes they used to try to persuade voters. These communications may reveal the extent and effect of discriminatory intent in campaign strategy. Thanks to California attorney Rick Xiao for commenting on Walker's November 11th order to resolve the dispute, and for alerting me to the order:
After an in camera review, Judge Walker found that none of the documents submitted by Prop. 8 proponents were not protected from disclosure and ordered them to cull their inventory of documents and other materials in order to respond to plaintiffs’ document request.

Law professor Vikram Amar, "Part 2: Should Summary Judgment Have Been Granted in the Federal Proposition 8 Suit?"

In my last column, Part One in this series, I discussed some recent developments in the federal court litigation over the legality of California's Proposition 8 [Perry v. Schwarzenneger] ... A few weeks ago, as I reported in Part One, Judge Vaughn Walker denied a motion brought by the defendants – the backers of the Proposition -- for summary judgment. Had the defendants' motion been successful (and been upheld on appeal), the federal case against Proposition 8 would have ended. Instead, it is going forward. In this column, I'll continue my explanation of the defendants' contentions, and elaborate my arguments for why the judge's decision to proceed with the case was at least plausible.

Sunday, November 15, 2009

Religious liberty exemptions at center of controversy as D.C. Council prepares to vote on marriage equality law

On November 10th, a D.C. Council committee approved a revised version of the Religious Freedom and Civil Marriage Equality Amendment Act of 2009 (Bill 18-482, as introduced October 6th.) The Blade reports that Phil Mendelson, Chair of the Council's Public Safety & Judiciary Committee, "released a 22-page proposed committee report on the bill." The revised bill removes a provision for the sunsetting of domestic partnerships, a provision that law professor Nancy Polikoff has advocated.

Polikoff has also discussed ongoing controversy over the legislation's religious liberty exemptions. Several types of exemptions have been considered in the legislation or at the hearings on On October 26th and November 2nd. All of them trace their origins to the legislative advocacy program of several scholars on religious liberty and the constitution, including Robin F. Wilson. Wilson is a co-editor of Same-Sex Marriage and Religious Liberty: Emerging Conflicts, a book that develops arguments for the exemptions. (Law professor Shannon Gilreath provides the latest critical review of the book here.) You can find links to other counter-arguments in my roundup of recent scholarship on the subject.) Just before the October 26th hearing, these scholars sent another version of their advocacy letter to D.C. Council members.

The following exemptions have been at issue with the D.C. legislation (and marriage-equality legislation in other states):

1. Religious organizations, and affiliated nonprofits, sought exemption to deny services to the general public, such as shelters, adoption placements, and foster care. However, as Polikoff observes, the D.C. Human Rights Act (HRA) already bars religious entities from engaging in this form of discrimination, because the Act prohibits discrimination based on sexual orientation. (I reached the same conclusion here.) The Committee removed language that would have prohibited such discrimination. They amended the bill to allow objecting religious entities to deprive married gay couples of "religious programs, counseling, courses, or retreats," a protection that may have been borrowed from New Hampshire's marriage-equality law. The Archdiocese of Washington considers the amendment an unwelcome "narrowing" of its preferred exemption, even though the Archdiocese was effectively asking the Committee to allow Catholic Charities to discriminate in ways that the HRA would not otherwise allow. Unless the bill undergoes further amendment, two Washington Post reporters anticipate a "showdown" over a threat by the Archdiocese of Washington to withdraw services by Catholic Charities.

2. Individual merchants in the wedding business - such as photographers, florists, caterers, and bakers - might have been exempted so that they could deny a same-sex couple their commercial services if same-sex marriage violated their religious principles. Law professor Robin F. Wilson advocated for this exemption at the November 2nd hearing (her name is on this list of witnesses), and in a Washington Post opinion article. (You can compare this article with its predecessors in the Bangor Daily News and the Los Angeles Times.) In her op-eds, Wilson has used the same strident language to justify the recommended exemptions, including this so-called "religious conscience clause" for individuals: "individuals and groups will face a cruel choice: their consciences or their livelihoods." At its November 10th meeting, the Committee defeated a proposed amendment to provide this exemption. The Blade reports that a Committee member "called the amendment 'unacceptable,' saying it would go far beyond the exemption already in the bill and result in allowing private, non-religious businesses to engage in discrimination that currently would violate the city’s Human Rights Act."

3. Wilson also tried to convince Committee members to exempt marriage license officials from licensing same-sex marriages if they have religious objections. The primary sponsor of the marriage-equality legislation, David Catania, appears to have lost patience with Wilson for her perceived overreaching. See his unusual letter to her. It's unusual because this is the first time Wilson has received what passes for a rebuke from a legislator. Catania told her, "I am concerned about the ethical implications of your behavior and strongly caution you to consider your professional obligations of competency and candor. "

4. Religious organizations and affiliated non-profits requested legal protection to deny benefits to the same-sex spouses of their employees. Polikoff called this request a "red herring," because the federal DOMA already allows employers to deny health insurance and retirements benefits to same-sex spouses of employees. Of course, repeal of that law could revive the issue. But for other reasons, the Committee did not adopt this exemption.

Saturday, November 14, 2009

Hearing on discovery in Perry v. Schwarzenneger: comments by anonymous reader of this site

Transcript of 11/02/09 hearing on scope of discovery in Perry v. Schwarzenneger to test sufficiency of qualified privilege claimed by Prop. 8 proponents

On October 1st, Judge Vaughn Walker issued a discovery order in Perry v. Schwarzenneger, the lawsuit challenging Prop. 8 as a violation of due process and equal protection under the 14th Amendment. Walker ruled that the official Prop. 8 proponents must disclose internal campaign communications. They had claimed a "blanket" privilege for all of the documents in question under the First Amendment, but Walker decided it could not be sustained. "The intent or purpose of Prop. 8 is central to this litigation," he said, and proponents had failed to identify any specific documents for which they might still assert a qualified privilege. They appealed the discovery order and sought a stay pending a ruling on their appeal. The 9th Circuit ordered them to show cause why their appeal should not be dismissed for lack of jurisdiction. Not surprisingly, Walker denied the stay. (Read the SF Chronicle article here.) But he reserved a hearing over the question about what kind of discovery would be needed to test proponents' assertion of a qualified privilege for certain campaign documents the Perry plaintiffs have requested.

You can now link to the hearing transcript. I am pleased to credit a self-described "fan" for referring me to the transcript, even though the contributor prefers to remain anonymous.

I am also pleased to post the contributor's summary of the transcript and speculation on Walker's motivations. We can thank the contributor for incisive transcript notes and perceptive comments.

Summary of the transcript, prepared by anonymous contributor

I noticed that the transcript of a discovery teleconference in Perry v. Schwarzenegger appeared on the District Court website this week.

In reading it over, it looks like Walker will entertain a sampling of the Prop 8 campaign communications in camera rather than allowing the Perry attorneys access under a protective order. Sounds like a dreadful next step, but so it goes.

p.7 Walker tees up three approaches to resolving the qualified First Amendment privilege: (1) privilege log alone, (2) limited in camera review, (3) redacted documents.

p.13 Attorneys for Perry suggest production of the (unredacted) documents under an attorneys'-eyes-only protective order.

p.14 Walker launches into his standard in camera is antithetical to due process (reprise from al-Haramain).

p.18 Walker seems to be leaning toward a pretty obvious protective order.

p.27 Prop 8 proponents seem to want to invoke privilege over unpaid members of executive committees.

p.32 Perry objects to Prop 8 proponents' sampling documents and separately to in camera review.

p.38 Walker asks about the categories of communications over which Prop 8 proponents assert privilege.

p.42 Walker adopts a privilege log + in camera review of a limited number of doc's to test the privilege assertion.

Comments by anonymous contributor

As for what Walker's up to, bear in mind that he's a tough nut to predict, if not crack, at times.

That caution aside, Walker's determination to get this case on its way to the Ninth Circuit quickly and with a fulsome record is classic Walkerism. He has rather odd habits, however, of trying to corral parties to get to trial without definitively disposing of motions that most judges just rule on.

He very much wants to dispose of the First Amendment privilege claims now. Enough so, that he's tentatively embraced a piecemeal approach. Seems weird, frankly, but Walker's habits include indulging an intransigent party's odd procedural desires if it moves the case over some hurdle.

Insofar as Walker's accomplished anything, he's gotten the defendants to cough [up] some documents on which he can rule. I'd be shocked if he recognized a broad privilege over most of the communications in question, only a sampling of which he'll see in camera. It seems more likely that he'll use his review of the documents to demonstrate why he isn't willing to stifle discovery with a broad assertion of a rather novel privilege. And, he'll offer to help the parties craft a protective order (or perhaps even another in camera review . . . seems less likely) if the Prop 8 folks have documents over which they can articulate a much more concrete First Amendment issue. Voila, discovery can (sort of) get underway again.

There may be a minor conflict in the offing over the identity of some of the "volunteer" executives (and perhaps managers) over which the Prop 8 folks think they have a First Amendment right to participate anonymously. The plaintiffs are probably going to want to (or at least consider) deposing those folks. Again, Walker would probably prefer to not get wrapped around that axle. He may have to hit that question head on.

In any event, if Walker thinks the trial schedule will stick, he needs to get discovery moving quickly. My first reaction to releasing the transcripts well before the usual 90-day restriction and then to put them on the court's homepage is that his discovery plan/order is imminent.

Legislation by Michigan Speaker Pro Tempore Pam Byrnes to overturn state's bans on same-sex marriage

11/04/09 press release by Michigan Speaker Pro Tempore Pam Byrnes:

On November 8th, I posted on what I considered a striking, perhaps novel development: Speaker Pro Tem Pam Byrnes introduced a resolution to repeal Art. 1, § 25 of the Michigan constitution. Art. 1, § 25 is a "super-DOMA" amendment that not bans same-sex marriage, but recognition of a "similar union for any purpose." I have suggested that Byrne's proposal represents what may be a new means of changing public debate on same-sex marriage in states that have super-DOMA amendments. Her statement about "the Michigan she knows" lends support to my interpretation, even if her resolution has long odds of adoption"
"Same-sex couples should not be denied the joys and responsibilities that come with making a lifetime commitment to each other," Byrnes said. "The Michigan I know is not a place that would deny visitation rights to a dying loved one or access to health care just because of someone's sexual orientation. It's wrong to arbitrarily treat certain groups of people like second-class citizens and it's time to update our laws in Michigan to make sure no one is treated that way."
Here you will find links to legislation Byrnes introduced to remove statutory bans on same-sex marriage and out-of-state recognition of such marriages.

Wednesday, November 11, 2009

Rhode Island governor vetoes burial rights for domestic partners

11/11/09 JURIST:
[JURIST] Rhode Island Governor Don Carcieri vetoed legislation on Tuesday that would have allowed domestic partners, including those in same-sex relationships, to claim the body of their partner and to make funeral arrangements. Neither domestic partnerships or civil unions are recognized in Rhode Island, and the bill would have required that a same-sex partner produce documentation establishing the nature of the relationship, such as proof of a joint bank account, mortgage, or car registration, and that the relationship had lasted for a year or longer.

Status of pending marriage-equality legislation in New York and New Jersey

11/11/09 WNYC News:
NEW YORK, NY November 11, 2009 —A special session of the New York state legislature ended with no action on reducing the state’s deficit, or legalizing same-sex marriage, but Governor Paterson says he’s determined to try again next week.
11/10/09 WNYC News:
NEW YORK, NY November 10, 2009 —New Jersey State Senate President Richard Codey says even though he supports gay marriage, there may not be enough support in his caucus to bring it [the legislation] to a vote.

Ohio legislator introduces resolution to repeal state's super-DOMA amendment; another reflection on super-DOMA challenges

11/11/09 Politics Extra:

On November 8th, I prepared a summary of reported legislative efforts to reverse equality-marriage laws, and of state-ballot and legislative proposals to repeal constitutional bans on same-sex marriage (and civil unions.) I am tracking these developments here.

Here is an update. Poltics Extra reports that Ohio state Rep. Tyrone Yates has introduced a resolution to repeal state constitution Art. XV, Sec.11, a "super-DOMA amendment." Art. XV, Sec.11 is a super-DOMA amendment because it bans not only same-sex marriage, but also "a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage."
As the Dispatch reported yesterday, the chances for an actual [legislative] vote [on the resolution] in May are slim.
Despite the long odds of such resolutions in super-DOMA states, is it premature to claim a new trend in long-term challenges to super-DOMA amendments? Do legislative resolutions like Yates', and Michigan Speaker Pro Tempore Pam Byrnes', open up a new means of undermining public support for suxh amendments?

I have already considered another, complementary type of long-term challenge to such constitutional amendments. In Ohio, Cleveland has risked a lawsuit over its adoption of "symbolic" domestic registries. El Passo represents the latest city in a super-DOMA state to at least consider a (more substantive) domestic partnership law for its employees.

I have made the debatable claim that these symbolic or weak laws can begin to change the terms of local public debate, even - or especially - when opponents sue the cities in question, or reach for a larger target, like Wisconsin. I base my argument, in part, on the history of what happened in California, where the San Francisco Board of Supervisors passed the first domestic partnership ordinance in 1982, only to have it vetoed by then Mayor Dianne Feinstein.* That ordinance, though vetoed, set a groundbreaking precedent for subsequent domestic partnership laws in California, and these helped increase public support for marriage-equality legislation as the fulfilment of the right to marry.

*Elaine Elinson and Stan Yogi, Wherever There's A Fight: How Runaway Slaves, Suffragists, Immigrants, Strikers, and Poets Shaped Civil Liberties in California (Berkeley, CA: Heyday Books, 2009), at 340.

Health Care Bill Would Make Domestic Partner Benefits Tax Free

11/11/09 Gay Couples Law Blog, by law student Gideon Alper:

Currently, employees must pay taxes on the health benefits given to their domestic partners or same sex spouses. That's because DOMA doesn't let the IRS recognize same sex relationships.

The new health care bill would stop that. Instead, benefits given to to domestic partners would receive the same tax treatment as benefits given to opposite sex spouses.

Tuesday, November 10, 2009

Changes in marriage bill offer churches leeway D.C. panel expected to approve revisions hailed as 'step forward'

11/10/09 Washington Post:
As currently drafted, the legislation states that religious officials would have to offer wedding-related services to same-sex couples if those services are available to the public. But the Archdiocese of Washington and other religious organizations oppose that language, arguing that it would force them to restrict charitable and other services. Bowing to that pressure, a council committee is expected to revise the bill to state that a church or religious official can deny services related to the "solemnization, celebration, or promotion" of a same-sex wedding without fear of running afoul of the city's anti-discrimination laws. The proposed revisions mean, for example, that church officials do not have to rent reception space to a same-sex couple for a wedding, even if heterosexual couples can access that space. But churches would still have to abide by other aspects of the city's Human Rights Act, including not discriminating against gay employees who choose to get married.

Monday, November 9, 2009

Dutch Views on Same-Sex Marriage: Interview of author of When Gay People Get Married: What Happens When Societies Legalize Same-Sex Marriage

11/09/09 NY Times "Motherlode: Adventures in Parenting," by reporter Lisa Belkin:
When I wrote about same sex parenting in the Times Magazine this weekend, one of the people I interviewed was M. V. Lee Badgett, who is both the director of the Williams Institute on Sexual Orientation Law & Public Policy at the UCLA School of Law and a professor of Economics at the University of Massachusetts in Amherst. She is also the author of “When Gay People Get Married: What Happens When Societies Legalize Same-Sex Marriage,” which focuses mostly on data from the Netherlands, where same-sex marriage has been legal for nearly a decade.

My magazine article focused primarily on the effects of same-sex marriage on children. But Badgett has more to say — about the effects of same-sex couples on marriage, and also about the effects of marriage on same-sex couples.

Revisions to D.C. marriage bill: domestic partnerships retained; religious exemptions broadened

11/09/09 Washington Blade:

One of the draft revisions to D.C.'s marriage-equality legislation concerns the scope of a religious-liberty exemption:
D.C. Council member Phil Mendelson (D-At Large) released Monday a revised draft of the same-sex marriage bill ... [The] original bill noted that “a religious organization, association or society, or a nonprofit organization which is operated, supervised, or controlled by” a church or religious group “shall not be required to provide services, accommodations, facilities or goods” for the purpose of performing any marriage “unless the entity makes such services, accommodations, or goods available … to members of the general public.” The revised bill removes the “unless the entity makes such services, accommodations, or goods available … to members of the general public” language. In a 22-page report that accompanies the bill’s new version, Mendelson’s committee says it “removed this language … after considerable comment from both secular and non-secular organizations ... Including this language would have had the undesirable impact of religious institutions closing their spaces to community groups and organizations, as there would otherwise be civil [liability] stemming from any refusal to solemnize or celebrate a same-sex marriage."

Same-Sex Marriage Already Basically Legal in D.C.?


Martin Austermuhle of the has read a draft report on the District's marriage-equality legislation (Bill 18-482). The D.C. Council's Committee on Public Safety and the Judiciary has circulated the report to the rest of the Council. Austermuhle shares an excerpt from the report, but does not link to the document:
"In recognizing same-sex marriage in the District, Bill 18-482 does not redefine any concept in the law (indeed, the Committee maintains same-sex marriage is already permitted under District law), as nowhere in our Code is the institution of marriage reserved to opposite-sex couples," reads the report. "Rather, Bill 18-482 removes the custom, or practice, that marriage is only between a man and a woman. This simple legislative act puts in the law what is already in the law: that the right of marriage applies fully to all in the District."

A Real-Life Conflict Between Religion and Marriage Equality

11/09/09 WordinEdgewise, by law professor John Culhane:

John discusses a FoxNews report of a Massachusetts employee, Peter Vidala, who was fired for his disparaging remark to a colleague when she told him that she had married her same-sex partner. The employee remarked that her "homosexuality" is bad stuff. He may file a complaint with the EEOC. John doesn't think that the fired employee's claim would have merit. John also examines the consequence of extending, by analogy, a recommended, religious-liberty exemption to Vidalia's case.

As readers of this site know, Robin F. Wilson and Douglas Laycock are co-editors of Same-Sex Marriage and Religious Liberty: Emerging Liberties (2008). Together with other constitutional scholars, they have recommended and advocated specific religious-liberty exemptions for marriage-equality legislation. (Here is the proposal.) Among their recommendations, they favor exemption for individuals employed in the wedding business who claim that they would violate their religious principles if they afforded same-sex couples access to their services. These individuals include wedding florists, caterers and photographers who own their own businesses, and their employees.

John favored this site with a four-part series, Marriage Equality and Religious Liberty. With respect to Vidalia, he asks about a perceived implication of exempting individual wedding merchants:
What would be the result under the religious exemption laws that some scholars flog so relentlessly as needed where marriage equality becomes law? Not so clear, I would say. If religious objectors involved in commerce can “step aside” and refuse to facilitate same-sex marriages (as by declining to cater a gay wedding), can they also be shielded against anti-discrimination laws for expressing a view against gay marriages? Doesn’t such expression have less impact than a refusal to deal? And if the laws could potentially apply to that situation, then let’s pick apart Vidala’s comments to see whether they were based only on the marriage (protected, potentially, under this view), or on a broader discomfort with homosexuality (not protected).
I am doubtful about John's perception of a slippery slope. It's one thing to exempt religious-conscience objectors who sell wedding services. It's quite another to conclude that employees of any other type of employer might equally qualify for the same type of exemption. Suppose employees generally enjoyed exemption from anti-discrimination law to repeat Vidala's example of discriminatory speech (or worse.) If such discriminatory speech were generally allowed, and became common enough (a plausible scenario), wouldn't it have a far-reaching impact on just the kind of discrimination against gays and lesbians that anti-discrimination laws have been designed to prevent or remedy? The consequences here would appear to present a compelling reason for the state to bar discriminatory speech in the workplace that targets gays and lesbians, whether or not that speech also involves on marital status.

Getting Divorced After Marrying in Canada Isn't Easy for Gay Couples

11/09/09 Gay Couples Law Blog, by law student Gideon Alper:
"Folks who live in Maine might be thinking about getting married in Canada after their state voted down a law that would have allowed gay marriage. In fact, many U.S. gay residents go to Canada to take advantage of laws that have allowed gay marriage since 2005. But they better hope they stay together. It's hard for same sex couples to get divorced after getting married in Canada."

Sunday, November 8, 2009

Are Same-Sex Couples Better Parents?

11/06/09 NY Times Motherlode: Adventures In Parenting:
It is striking ... how comparatively rarely children are mentioned as an argument in favor of gay marriage. The issue is framed as a debate over equality and justice, of personal freedom and the relation of church and state, not about what is good for kids ... In most ways, the accumulated research shows, children of same-sex parents are not markedly different from those of heterosexual parents ... More enlightening than the similarities, however, are the differences, the most striking of which is that these children tend to be less conventional and more flexible when it comes to gender roles and assumptions than those raised in more traditional families.

NY State Senator Liz Krueger: Marriage Equality in New York: The Time Is Now

11/05/09 NY Times:
Gov. David A. Paterson said Thursday that he would include gay marriage on the agenda of an extraordinary session he is calling for Tuesday, potentially setting up the first vote on the issue in the State Senate and a dramatic floor debate.
11/06/09 Huffington Post:
Under current New York law, lesbian and gay couples are denied the basic protections provided to heterosexual couples. In such areas as property ownership, inheritance, health care, hospital visitation, taxation, insurance coverage, child custody, pension benefits and testimonial privileges, married couples have a host of important rights and protections. Denying gays and lesbians access to those benefits - as well as the many responsibilities which come with civil marriage - is a violation of the basic principle of equal protection.

Cities in Texas continue to consider extending medical insurance benefits to domestic partners of city employees

11/06/09 Star-Telegram:

Texas Constitution Art. 1, §32 is a super-DOMA amendment. It bans not only same-sex marriage, but also legal status for relationships similar to marriage. Nevertheless, El Passo recently joined Dallas and Austin among city employers extending medical insurance to domestic partners of employees.

Cleveland has been sued for violating Ohio's super-DOMA amendment when the city council adopted a domestic partnership registry database. And the Wisconsin Supreme Court last week denied a petition for an original action challenging that state's domestic partnership law.

Narrow domestic partnership laws arguably represent a new front in challenges to super-DOMA amendments. The Star-Telegram reports that Ft. Worth city officials "have said more study is needed before the council can vote on adding domestic-partner benefits or changing the health insurance plan." Kelly Shackelford, an attorney for the Liberty Legal Institute, claims that the proposal would violate the state's super-DOMA amendment.

Michigan legislator introduces resolution to amend state constitution to repeal gay marriage bans; efforts to repeal bans or overturn marriage equaity

11/22/09 update: See also this Huffington Post on marriage-equality legislation in states whose constitutions ban same-sex marriage

11/04/09 The Detroit News and 11/05/09 East Lansing

Michigan has constitutional and statutory bans on same-sex marriage. Its constitution has a "super-DOMA" amendment (Art. 1, § 25) that also bans recognition of unions similar to marriage "for any purpose." In National Pride at Work, Inc. v. Governor of Michigan, 748 N.W.2d 524 (Mich. 2008), the state Supreme Court ruled that the city of Kalamazoo could not extend benefits to the qualified domestic partners of city employees.

Kalamazoo voters have just adopted a law that bars discrimination in employment, housing and public accommodation on the basis of sexual orientation. The Detroit News reports that Pam Byrnes, Speaker Pro Tem of the Michigan House, has also introduced a resolution to amend the state constitution to allow same-sex marriage:
Both chambers would have to pass the resolution to place the question on the ballot, a scenario unlikely to happen in the Republican-controlled Senate. If the resolution doesn't pass, proponents would have to collect more than 380,000 signatures to bring the question to a vote in the Nov. 2, 2010, general election. 11/04/09 The Detroit News
The resolution is not yet available online.

Despite voter rejection of Maine's marriage-equality law, activists in states other than California may now launch ballot measures to repeal constitutional bans on same-sex marriage. (Incidentally, a recent Los Angeles Times poll shows that 60% of Californians do not want to vote on a measure to repeal Prop.8 in 2010.) The NY Times reports that a group in Oregon may try to qualify a ballot measure to repeal that state's constitutional ban, perhaps as early as 2012. (See this report on Basic Rights Oregon.)

But the Huffington Post reports that "in New Hampshire, conservatives have filed legislation to repeal the state's new gay-marriage law and amend the constitution to ban such unions." (The New Hampshire bill is not yet available online.) According to this article, another "movement is under way that aims to undo the marriage licenses given to same-sex couples since the Iowa Supreme Court legalized gay and lesbian marriages in April."

Although Washington voters have approved the state's "all-but-marriage" law for same-sex couples, advocates of same-sex marriage are reported not to be aiming at an initiative in 2010. Finally, despite the D.C. Council's recent hearings (here and here) on marriage-equality legislation, proponents of the Marriage Initiative of 2009 hope to qualify it for the ballot. The Washington Blade reports here on the D.C. Elections hearing of the qualification question, and has an editorial on the hearing here by attorney Mark Levine.

Commentators, Subjects and Cases