Sunday, January 31, 2010

"All-but-marriage" legislation introduced in Florida, a super-DOMA state

As readers of this site know, I've focused on super-DOMA states like Florida, in which state legislators, county commissioners or supervisors, and city council members have introduced or adopted laws establishing domestic partnerships, whether restrictive or expansive in the range of benefits offered. One recent example in Florida is South Miami.

Two state legislators in Florida have recently introduced legislation (S.232 and H.477) on domestic partnerships, as reports. They are state senator Eleanor Sobel (D-Hallandale) and state representative Richard Steinberg (D-Miami Beach). Their legislation would grant to domestic partnerships all the benefits and protections, and impose on them all the obligations, of marriage. (See Sec. 21 of S.232 , beginning at line 529.) But Florida's constitution (Art. I) bans not only same-sex marriage, but legal status for any relationship that is "treated as marriage" or is "substantially equivalent to" marriage. So how do Sobel and Steinberg avoid the appearance of proposing unconstitutional legislation? Here is one of the legislative findings in S.232 that concerns the super-DOMA amendment, with language I've highlighted:
The status of marriage in this state is limited by Art. I of the State Constitution to the union of one man and one woman and the Legislature does not seek to alter the definition of marriage in any way. The Legislature also finds, however, that recognition of domestic partnerships can provide an alternative mechanism for extending certain important rights and responsibilities to individuals who choose to form long-term, mutually supportive relationships. Such recognition will provide support to these familial relationships without affecting the definition of marriage, without creating or recognizing a legal relationship that is the substantial equivalent of marriage, and without affecting restrictions contained in federal law.
This provision about a state-DOMA amendment may be the first of its kind to declare, as a matter of "legislative finding," that the amendment does not bar enactment of a domestic partnership law that a court could otherwise interpret as prohibited.

Selection of News and Commentary on the Perry Case


Terry Stewart: Invisible to many, a key player in trial, 01/31/10 Keen News Service

At heart of Prop. 8 trial, a fight over nurturing kids, 01/30/10 Sacramento Bee

Prop 8 witnesses debate scholarship on families, 01/30/10 Keen News Service

Related News

Exclusive cineGLAAD Video: Dustin Lance Black, Joe Solmonese, and Reed Cowan Discuss 8: The Mormon Proposition, 01/29/10 glaadBLOG

'8: The Mormon Proposition': Audacious look at church's role in gay-marriage ban, 01/30/10 Washington Post

Complaint: Campaign Against Same-Sex Marriage (Targeting Andrew Pugno) Violated State Law, 01/29/10 Orange County (CA) Weekly Blog

Prop. 8 lawyer vetted first freedom to marry ban initiative with Mormon leaders, cross-posted 02/01/10 at Straight Talk on Marriage


Dan Walters: California gay marriages may hinge on one man, 01/31/10 Sacramento Bee

Michael Peabody, Some Thoughts on the Implications of the Same-Sex Marriage Trial for Religious Minorities, 01/31/10 ReligiousLiberty.TV

Rewind: Evan Wolfson and Rick Jacobs discuss Prop 8, Freedom to Marry, 01/29/10

Trial Summaries

Perry v. Schwarzenegger, Prop 8 Trial RECAP, 01/29/10 Constitutional Law Prof Blog

Summary of the Prop. 8 Trial, 01/29/10 The United Families International Blog

American Foundation for Equal Rights’ Prop 8 Trial Summary, cross-posted at 01/29/10 LGBT POV

The Future of Same-Sex Marriage: 2-26-10 University of San Francisco Law Review Symposium

The Future of Same-Sex Marriage: 2-26-10 University of San Francisco Law Review Symposium, cross-posted at Mirror of Justice
The University of San Francisco Law Review's Spring Symposium will feature prominent scholars and practitioners considering the future of same-sex marriage from legal, political, and cultural perspectives. Five plenary panels will examine: empirical data regarding the material consequences of denying or recognizing same-sex marriage; recent federal constitutional challenges to state bans of same-sex marriage; the role of competing social movements in shaping marriage; the emerging focus on questions about parenting children and securing families; and, the intersection of religion and anti-discrimination law in the context of same-sex marriage.

Saturday, January 30, 2010

Domestic partnership benefits for federal employees: legislation reaches the House floor for likely consideration

As I mentioned last week, the House Oversight and Government Committee favorably reported an amended version of H.R. 2517, the "Domestic Partnership Benefits and Obligations Act of 2009." The Committee report is now available here, and, beginning at page 24, you will find the Committee's reasons for adopting the legislation. (These include "a more equitable work environment," and better recruitment and retention - reasons cited by state and local governments that adopt such laws. See, for example, why North Carolina's Mecklenburg County recently adopted its domestic partnership law for county employees.)

In the latest development, H.R. 2517 has been "discharged" from two other House committees to which it was referred - the Judiciary and Administration Committees. The discharges mean that these Committees have sent H.R. 2517 to the House floor without reporting on it.

House members typically petition for discharges on the floor of the House when legislation would otherwise remain stalled in committee. In such cases, a majority of House members must sign the petition. If the House then approves a discharge motion, any member may move for the House to take up the bill at issue. This procedure (described here) appears to have been used to bring H.R. 2517 to the floor. Because it involves appropriations, House rules allows unrestricted opportunity to amend the legislation. I am doubtful that the latest version of H.R. 2517, as reported by the Oversight Committee, will escape further amendment, if - or rather when - the House in this election year considers the legislation. Incidentally, I can not explain why the House Judiciary Committee did not report on the bill, except to speculate that Chair John Conyers, Jr., could not forge a majority consensus among Committee members.

I readily admit that I am new to the discharge procedure. If I have erred, I welcome correction from any reader with expertise. (Moreover, I am far from convinced that I am right about my "Conyers speculation." A phone call to his office might clarify the matter.)

Friday, January 29, 2010

Civil unions legislation dies in Hawaii state House

01/29/10 AP (opening paragraphs):
HONOLULU (AP) -- Hawaii lawmakers declined to vote Friday on a bill [HB 444] that would have allowed same-sex civil unions, effectively killing the measure.

State House leaders said a narrow majority of representatives would have voted for civil unions, but they decided to indefinitely postpone a decision on whether to grant gay and lesbian couples the same rights and benefits the state provides to married couples.

01/29/10 Honolulu Advertiser (selected text):

The state Senate last Friday passed a civil-unions bill that would give same-sex and heterosexual couples the same rights, benefits and responsibilities as marriage under state law. The state House had voted 33-17 last session for a civil-unions bill that only applied to same-sex couples. Support for the bill in the House slipped out of concern with taking another vote during an election year.

01/29/10 Star Bulletin:
The state House today decided against moving out the civil unions bill for a full vote.
By a voice vote, the House chose to postpone action on House Bill 444 indefinitely ... The move to postpone indefinitely was made by House Speaker Calvin Say ... [He] has stated that he only wanted to proceed if the measure is supported by 34 of 51 House members -- a two-thirds' majority that would be able to override a governor's veto.
01/29/10 LGBT POV, by journalist Karen Ocamb:

Ocamb posts reactions by gay rights advocacy groups.

Articles and events concerning the Perry case


Perry v Schwarzenegger Update Conference Call, Monday, February 1, 2010

NCLR Director Shannon Minter and law professor William Eskridge, Jr., will discuss the case and take questions from members of The National LGBT Bar Association. The public can listen in on the call.


William N. Eskridge, Jr. and Darren Spedale, Who Will Win the Gay Marriage Trial? 01/29/10

Vikram David Amar, The Ongoing Proposition 8 Trial: Three Key Points About the Evidence and Arguments, 01/29/10

Michael Lindenberger, Gay Marriage Trial Rests, and a Key Ruling Awaits, 01/29/10 Time

Anna Bloom, Same-Sex Marriage Case: The Post-Mortem, 01/28/10 NY Times "The Bay Area"

Bob Egelko, Prop. 8 Defense Only Needs Two Witnesses, 01/29/10 SF Chronicle

Indiana state Senate approves resolution for a super-DOMA amendment to the state constitution


WTVW FOX 7 reports tonight that the Indiana state Senate "voted 38-to-10 in favor of " S.J.R. 13. The resolution calls for an amendment that bans not only same-sex marriage, but same-sex relationships "substantially equivalent" to marriage. Similar resolutions are pending in the state House. (H.J.R. 5 and H.J.R. 7) According to, [t]he House has not granted a hearing to a (super-DOMA) amendment since 2007, when a committee deadlocked on sending it" to a floor vote.

01/29/10 update

(selected text):
The Indiana Senate revived a constitutional amendment banning same-sex marriages Thursday [SJR 13], approving the measure and sending it to the House, where it's likely to meet a quick death ... House Speaker B. Patrick Bauer, D-South Bend, said the amendment is unlikely to receive a hearing this year, arguing the state's trial and appeals courts have upheld Indiana's marriage law [Morrison v. Sadler, 821 N.E.2d 15, 22 (Ind. Ct. App. 2005)]. Conservative activist Eric Miller, though, argued a court decision [Varnum v. Brien, 763 NW2d 862 (Iowa 2009)] last year in Iowa legalizing same-sex marriage should motivate Indiana lawmakers. "Indiana is in danger of same-sex marriages," said Miller, founder of the conservative group Advance America. "Iowa did not have a constitutional amendment. The same thing could happen here [unless voters have opportunity to adopt a constitutional ban.]"
"The proponents of SJR 13 know the next generation feels differently concerning these social and cultural matters," said Don Sherfick, a member of Indiana Equality Action, a group that advocates for lesbian, gay, bisexual and transgender Hoosiers. "They think the right to express their changing views through the democratic process simply shouldn't count. We don't think that's representative government."
Sherfick appears to be saying that a constitutional amendment would prevent younger voters from electing legislators committed to repealing the state's statutory DOMA. But why would a marriage-equality proponent accept Miller's underlying premise - that voters should decide whether members of an unpopular minority have a right to marry? Perhaps Sherfick has conceded the political reality in Indiana of majority opposition to marriage equality. If his is a concession from expediency, he makes the most of it, even as he tries a logical jujitsu with the question-begging claim that democracy requires voters, not "activist judges," to determine whether same-sex couples may marry.


A legislator took objection to what makes the proposed amendment a "super-DOMA" amendment:
Sen. Tim Lanane, D-Anderson, expressed concern that the second sentence in the amendment could affect domestic violence protections afforded to unmarried Hoosiers. That provision says a “legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.” “This certainly will not say welcome to many people in our society,” Lanane said.

01/21/10 Indiana Equality:

Indiana Equality describes the sweeping nature and anti-democratic effect of the proposed, super-DOMA amendment. I am new to the argument that a super-DOMA amendment suppresses representative democracy by preventing the state legislature from establishing substantive domestic partnerships.

Department of Justice files opposition to motion for summary judgment in Gill v. OPM

Brief by Dept. of Justice supporting its motion to dismiss and opposing plantiffs' motion for summary judgment, filed 01/29/10, in Gill et al. v. Office of Personnel Management [No. 1:09-cv-10309-JLT, (U.S.Dist.Ct., D. Mass.)

(Thanks to California attorney Rick Xiao for alerting to me to today's filing.)

Plaintiffs in this case challenge section 3 of the federal DOMA, which bars the federal government from recognizing the marriages of same-sex couples. As a result, married, same-sex couples are ineligible for over 1100 federal benefits.

I expect to update this post.

Many Successful Gay Marriages Share an Open Secret

01/28/10 NY Times:
A study to be released next month is offering a rare glimpse inside gay relationships and reveals that monogamy is not a central feature for many. Some gay men and lesbians argue that, as a result, they have stronger, longer-lasting and more honest relationships. And while that may sound counterintuitive, some experts say boundary-challenging gay relationships represent an evolution in marriage — one that might point the way for the survival of the institution ... Of the dozen people in open relationships contacted for this column, no one would agree to use his or her full name, citing privacy concerns. They also worried that discussing the subject could undermine the legal fight for same-sex marriage.

Thursday, January 28, 2010

Four Columbia law school professors discuss the future of same-sex marriage in the U.S.

01/28/10 Straight Talk on Marriage:
Columbia Law School Magazine
January 7, 2010
Following the many developments regarding the freedom to marry in 2009, Columbia Law School Magazine approached four professors of varying backgrounds to document their thoughts on marriage for same-sex couples in a series of back-and-forth emails—no moderator, no referee. [Link]

8PM ET: Blend exclusive - Prop 8 trial live discussion with Shannon Minter and Chris Stoll of NCLR

01/28/10 Pam's House Blend:
Tonight the National Center for Lesbian Rights' attorneys who have been covering the event on site, Shannon Minter and Chris Stoll, join us to review this week's testimony, which included a complete meltdown by pro-Prop 8 witness David Blankenhorn, and discuss what key issues have been presented and what lies ahead.

Rep. Jason Chaffetz introduces the District of Columbia Referendum on Marriage Act of 2010

On January 12th, a 30-day period of review began for Congress to consider whether it should repeal D.C.'s Religious Freedom and Civil Marriage Equality Amendment Act of 2009 [engrossed version]. On January 13th, Utah Rep. Jason Chaffetz introduced legislation that would require D.C. to suspend "any contrary provision" of its Human Rights Act, so that D.C. citizens could vote on an initiative or a referendum on same-sex marriage. Allies of Stand4Marriage DC Coalition are still trying to have the D.C. Elections Board revisit the issue, even though the Board has twice decided that a referendum or initiative would violate the Human Rights Act, and the D.C. Superior Court has upheld its decisions. Chaffetz told Desseret News that his is a symbolic gesture. "I'm convinced that traditional marriage wins when it's up for a vote," Chaffetz said. "Thirty-one times in a row when it has come up for a vote in the states, traditional marriage has always won."

D.C. Metro Weekly also reports on Chaffetz's legislation.

Maryland House Judiciary Committee holds hearing on bill to bar recognition of out-of-state, same-sex marriages

Maryland Delegate Emmett Burns recently re-introduced legislation (HB 90) to bar recognition of out-of-state, same-sex marriages. Burns seeks to preempt an anticipated opinion by state Attorney General Douglas Gansler on the legal status of these marriage, if - as widely expected - Gansler finds that Maryland law requires the state to recognize them. Among other concerns, Burns worries that Gansler's opinion could encourage Maryland same-sex couples to marry in D.C..

Today the state House Judiciary Committee held a "packed" hearing on HB 90. The Baltimore Sun reports that "Burns, an African-American pastor, spent much of his testimony drawing distinctions between the civil rights movement he participated in and the gay marriage movement he opposes." One alleged distinction is that he could not have been a legislator during the segregation era, but that a closeted gay man could have.

Barnes claimed that recognizing same-sex marriages in other states represents "bad policy." But Susan Sommer, a Lambda Legal attorney, replied that New York "has not tumbled," even though it now recognizes out-of-state marriages by same-sex couples. And "[i]t has meant that people do not have to check their marriages when they cross state lines."

According to, ACLU attorney David Rocah testified on Maryland's "default rule." "It has been the default rule in Maryland to treat valid out-of-state marriages as valid in Maryland," Rocah said. "People who are married in one state should not be suddenly treated as unmarried because they move across state lines." That is just the reason why Delegate Don Dwyer thinks HB 90 should be enacted. But Delegate Heather Mizeur said that although she married her wife in California in 2008, Maryland law does not recognize her marriage. "In Cambridge, Maryland, we are two unrelated women with some very expensive legal documents and a lot of uncertainty."

The Daily Record also reports on the hearing, and so does WBALTV.

Wednesday, January 27, 2010

Death of historian Howard Zinn

This is a rare departure from my usual beat, but I can't help expressing my widely shared sorrow over the loss of eminent historian Howard Zinn, who died today. I am among many admirers who will draw lasting inspiration from his commitment to civil rights, and from his People's History of the United States.

Elections board holds a third hearing on same-sex marriage challenge

02/04/10 update

As the Washington Post reports, the D.C. Elections Board today ruled, "for the third time this year, that a proposed referendum on whether the city should legalize same-sex marriage cannot move forward."

01/27/10 Washington Post's D.C. Wire (opening paragraphs):
The D.C. Board of Elections and Ethics is holding another hearing today to decide whether same-sex marriage opponents can hold an referendum to overturn the D.C. Council bill legalizing those marriages.

The hearing marks the third time this year that elections board has been called on to decide whether voters should have a chance to weigh in on the same-sex marriage. In the two previous rulings, the board determined that a referendum or initiative would violate the Human Rights Act, which is designed to protect gay men and lesbians and other minority groups from discrimination.

California state Senator Mark Leno introduces legislation to reaffirm First Amendment protection of clergy performing marriages

01/27/10 press release by California state Senator Mark Leno:
SB 906, the Civil Marriage Religious Freedom Act, reaffirms the freedom members of clergy have to make faith-based decisions regarding which marriages they solemnize. It reaffirms the principles of the First Amendment of the U.S. Constitution with respect to California’s marriage laws.
The legislation has the support of Equality California and California Council of Churches IMPACT. Bob Egelko of the San Francisco Chronicle reports a favorable response from a spokesman for the Southern Baptist Convention of California. This kind of political support matters.

It may take at least two more years for a final ruling in the Perry case. Voters will have opportunity to reconsider Prop. 8 if a measure for its repeal reaches the ballot this year or in 2012. As Egelko points out, "[t]he threat of churches losing their tax-exempt status for refusing to perform same-sex marriage ceremonies was prominent in the campaign in favor of Prop. 8." Enactment of SB 906 would remove this cause of contention.

Opponents of Prop. 8's repeal would, of course, find the proposed reaffirmation of the First Amendment no answer to other concerns. The Catholic Church might, for example, claim that if voters repealed Prop. 8, the state may later enact marriage-equality, "forcing" Catholic Charities to provide services to same-sex couples. Under the state Unruh Civil Rights Act, a religious organization licensed to provide social services can't discriminate on the basis of sexual orientation. But that fact would not deter the Catholic Church from raising this religious-liberty objection, any more than the D.C. Human Rights Act deterred the D.C. Archdiocese from raising the same obection when the D.C. Council prepared to approve marriage equality legislation.

Adoption of SB 906 would require marriage-equality opponents to show how marriage equality imperils other forms of religious liberty than the kind obviously implicated in religious solemnization of marriage. In fact, they would have to show why other types of religious discrimination against same-sex couples requires exemption from the state civil rights act. If a Southern Baptist Convention continues to support SB 906, wouldn't they find it harder to craft the required arguments for voters?

02/1/10 update

Bill would let clergy refuse to marry gays, 02/01/10 SF Chronicle
"We heard through the Prop. 8 debate great concern from certain clergy that their freedom of religion could be infringed upon and their tax-exempt status revoked," said the bill's author, Sen. Mark Leno, D-San Francisco. "We want to clarify that by putting the constitutional guarantee of the First Amendment, freedom of religion, into statute."

Selection of articles and posts on the Perry case

Because the Perry trial ended today, this will be the last of my daily trial roundups. I use an abbreviated format, providing just the title, date, and source of each article. And I select just the articles and posts that I consider especially noteworthy. I will continue to update this post.

Day 12
  • Media
Laura Keen, Final Yes on 8 expert concedes ‘no scientific evidence’ of harm, 01/27/10 Keen News Service

Maura Dolan, Testimony ends in same-sex marriage trial, 01/28/10 LA Times

Susan Ferriss, Prop 8 witness says gay marriage undermines traditional marriage, 01/27/10 Sacramento Bee

Jesse McKinley, Proposition 8 Trial Pauses, but Not for Ruling, 01/27/10 NY Times

Jesse McKinley, Same-Sex Marriage Case, Day 12: The End (for Now), 01/27/10 NY Times

Howard Mintz, Testimony ends in Prop 8 trial, closing arguments to be scheduled, 01/27/10 San Jose Mercury News
  • Advocacy organizations
ADF Senior Legal Counsel Austin R. Nimocks, Final Day of the Trial, 01/27/10 ADF press release

NCLR’s Legal Director Shannon Minter on Perry v Schwarzenegger Proceedings, Day 12, 01/27/10 Pam's House Blend

Brian Leunitz, This is a Witness for the Defense? 01/27/10 Courage Campaign's Prop. 8 Trial Tracker GC Andrew Pugno, Presentation of Evidence Concludes in Perry v Schwarzenegger Federal Trial, 01/27/10 Action Fund

Related News

Adam Bloom, Same-Sex Marriage Case: The Post-Mortem, 01/28/10 NY Times

Cari Tuna, Gay-Marriage Ban Comes at What Cost? 01/28/10 Wall Street Journal

Defense Lawyers Rest Case at Gay Marriage Trial; Ruling Expected In March

01/27/10 AP:

Testimony in the Perry case has ended. Judge Vaugn Walker "wants to take several weeks to review all the evidence before hearing closing arguments, probably sometime in March."

Tonight I will prepare a roundup of news and commentary on the last day of the trial.

Pennsylvania Senator John Eichelberger introduces resolution for constitutional amendment to ban same-sex marriage

Last year, Pennsylvania Senator Daylin Leach became the first state legislator to introduce marriage equality legislation. It has not received a hearing in the Senate Judiciary Committee, and its prospect of a hearing remains uncertain.

Yesterday, Senator John Eichelberger announced the re-introduction of a constitutional amendment (SB 707) to ban same-sex marriage, following his proposal of last year. (See the text of the resolution in the press release; the state legislature's website has not yet posted it.) He says that he has 15 co-sponsors, and expects that his resolution will be referred to the Senate Judiciary Committee. Read Senator Eichelberger's comments here. The Altoona Mirror also has a report here.

On June 19, 2009, Senators Leach and Eichelberger debated each other on WHYY Radio Times with Marty Moss-Coane. (Listen to the mp3) I expect to issue at least two posts on how they defend their opposing legislative commitments on same-sex marriage, even as they remain friends who respect each other.

Moscow court rejects appeal by same-sex couple for right to marry

01-21-10 JURIST:
[JURIST] A Moscow court on Thursday rejected an appeal of a lower court ruling that denied recognition of a marriage between two women.

Tuesday, January 26, 2010

New Mexico legislators re-introduce domestic partnerships legislation

SB 183 is newly re-introduced legislation that (in 816 pages!) would establish domestic partnerships in New Mexico. According to Equality New Mexico, "[t]angible benefits for families include hospital visitation rights, the ability to obtain health insurance coverage for partners, and family or bereavement leave." Any two consenting adults are eligible to register who are "not related by blood to the degree of consanguinity considered incestuous by the laws of New Mexico." The New Mexico Independent reports on similar legislation that failed last year by 8 votes due to opposition from the Catholic Church. Governor Bill Richardson says that he supports domestic partnerships.

For more on SB 183, see this article and this Rio Rancho Observer article.

Resolutions (SJR 1 / HJR 8) have been introduced for a constitutional ban of same-sex marriage, and so has legislation (HB 121)for a state DOMA.

Selection of articles and commentary on the Perry case

I am preparing my "Perry roundups" in an abbreviated format, providing just the title, date, and source of each article. I select just the articles and posts that I consider especially noteworthy. I will update this post.

Day 11
  • Media
Dan Levine, Walker Put Lawyers on Long Leash, 01/27/10 The Recorder (SF legal newspaper)

Margaret Talbot, Gay Marriage and Competing Goods, 01/27/10 New Yorker

Laura Leff, Witness says marriage threatened if gays can wed, 01/26/10 AP

Susan Ferris, Prop. 8 witness says gay unions would shatter marriage, 01/26/10 Sacramento Bee

Bob Egelko, Prop. 8 witness warns of societal upheaval, 01/26/10 SF Chronicle

Stu Woo, Witness Assails Gay Marriages, 01/26/10 Wall Street Journal

Howard Mintz, Prop 8 trial: Attorney, witness engage in bitter argument as testimony drawing to close, 01/26/10 San Jose Mercury News

Gary Shih, Same-Sex Marriage Case, Day 11: Churches, 01/26/100 NY Times "The Bay Area"

  • Advocacy Organizations
Brian Leubitz, 0 for 2: Blankenhorn Looks Lost, 01/26/10 Courage Campaign's Prop. 8 Trial Tracker

NCLR's Legal Director Shannon Minter, Perry v. Schwarzenegger Proceedings, Day 11, 01/26/10 Pam's House Blend

Related News

Michael B. Farrell, Will California gay-marriage trial go to Supreme Court? 01/16/10 Christian Science Monitor


Gideon Alper, Why Proving Discrimination Isn't Good Enough for Gay Marriage Supporters in Prop 8 Trial, 01/26/10 Gay Couples Law Blog

Andrew Harmon, Minter's Take on the Prop. 8 Trial, 01/25/10

Columbia Law Magazine: Marriage for Same-Sex Couples: A Conversation, 01/25/10 LGBT POV

Human Rights Campaign Foundation releases state-by-state report on LGBT-related legislation

Michael Cole, 01/26/10 HR Back Story:
Today the Human Rights Campaign Foundation released our annual, comprehensive state-by-state report detailing LGBT-related legislation in 2009 with an outlook for 2010. [Click here to download the 2009 report, and here to view previous reports.]

Cole summarizes the HRC findings on marriage equality and legal recognition of same-sex relationships.

Monday, January 25, 2010

Selection of news and articles on the Perry case

I am preparing my "Perry roundups" in an abbreviated format, providing just the title, date, and source of each article. I select just the articles and posts that I consider especially noteworthy.

Day 10
  • Media
Dan Levine, Prop 8 Defense Seeks to Show Gays Have Power, 01/26/10 The Recorder (SF legal newspaper)

Margaret Talbot, Boies at Play, 01/26/10 New Yorker

Jessie McKinley, Supporters of Gay Marriage Ban Start Case, 01/25/10 NY Times

Gary Shih, Same-Sex Marriage Case, Day 10: Domino Effect - New York Times, 01/25/10 NY Times

Lisa Leff, Defense calls first witness at gay marriage trial, 01/25/10 AP

Maura Dolan, Prop. 8 trial focuses on gays' political power, 01/25/10 LA Times

Susan Ferriss, Proposition 8 defense opens with testimony about power in California, 01/25/10 Sacramento Bee

Stu Woo, Gay-Marriage Foes Make Their Case, 01/25/10 Wall Street Journal

Bob Egelko, Prop. 8 defense: Gays don't lack clout, 01/25/10 SF Chronicle

Howard Mintz, Prop. 8 trial Day 10: Live coverage from the courtroom, 01/25/10 San Jose Mercury News

Lisa Leff, Lawyers for plaintiffs rest case on gay marriage, 01/25/10 AP

  • Advocacy Organizations
NCLR's Legal Director Shannon Minter, California's Prop 8 Trial and Its Cast of Compelling Characters, 01/25/10 Pam's House Blend

Brian Leubitz, How A Bad Expert Can Ruin A Case, 01/25/10 Courage Campaign's Prop. 8 Trial Tracker

ADF Senior Counsel Austin Nimocks, ADF Update on Prop 8 Trial: Day 10, 01/26/10 Christian Post's GC Andrew Pugno, A Vigorous Defense for Traditional Marriage, 01/25/10 Protect Marriage Action Fund
  • Unaffiliated
Sarah Ruby, Defense witness on cross: bans on same-sex marriage discriminate, 01/26/10 Prop 8 on Trial
Related News

[Interviews of participants in newly released documentary, 8: The Mormon Proposition], 01/23/10 CNN Newsroom


Geoff Kors, Prop. 8 Case: Progress on LGBT Rights Doesn’t Equal Equality, 01/25/10 LGBT POV

Frances Tobin, California's Prop 8 Trial and Its Cast of Compelling Characters, 01/25/10 Politics Daily

Sunday, January 24, 2010

Lesbian Mother Loses Ohio Custody Court Battle

01/22/10 Gay Couples Law Blog, by law school student Gideon Alper:
A lesbian mother that took care of a child was denied parental rights by an Ohio court, but a sperm donor that had almost no contact was given them ... In the court's opinion [PDF], the judge recognizes that that the non-birth mother acted as a parent while the couple was together, including the facts that the non-birth mother's name was on the birth certificate and that she had been able to make health and support decisions for the child.

Saturday, January 23, 2010

House Oversight Committee reports amended version of domestic partnership bill; House Judiciary Committee likely to consider it next week

The House Oversight and Government Reform Committee has reported an amended version of H.R. 2517, "Domestic Partnership Benefits and Obligations Act of 2009." The Act would extend certain benefits, including health care coverage, to the domestic partners of federal employees. Unfortunately, the U.S. Government Printing Office has not yet posted H. Rept. 111-400, Pt. I, which sets out the amendment. The House Judiciary Committee has been granted an extension for consideration of the legislation. That extension expires January 29th.

Unlikely prospect for legislation in New Hampshire to reverse marriage equality; state House Judiciary Committee holds hearing

01/23/10 update

New Hampshire state Rep. Jim Splaine supports marriage equality, discusses he the January 20th hearing here. He told reporter Laura Keen that he expects the House Judiciary Committee to recommend that the House reject two measures to rescind and ban same-sex marriage. seeks non-binding resolutions from town meetings asking the legislature to approve a constitutional ban. Splaine said that supporters of marriage equality will lobby town meetings to reject the resolutions.

01/20/10 update

AP reports on the hearings by the state House Judiciary Committee. Kevin Smith, executive director of Cornerstone Policy Research, doubts that the legislature will approve HB 159. He favors the strategy - pursued by - of pressuring legislators to adopt CACR 28. If and its allies succeeded, New Hampshire voters would have opportunity to vote on whether to reverse marriage equality.

01/19/10 Sea Coast Online:

This article concerns a proposed law (HB 1590), and a constitutional amendment (CACR 28), that would, respectively, repeal New Hampshire's marriage-equality law and add a same-sex marriage ban to the state constitution. Tomorrow the state House Judiciary Committee will hold a hearing on HB 1590, followed by a hearing on CACR 28. (The Indiana Senate Judiciary will also hold a hearing tomorrow on SJR 13, a super-DOMA amendment.) According to one legislator, "Democratic majorities in Concord aren't going to switch their support" of marriage equality.

Opponents of marriage equality have embraced similar proposals in other states. They want voters to determine whether same-sex couples should have, or will continue to have, a right to marry. They ultimately aim to repeat perceived successes with Prop. 8 in California and Yes on 1 in Maine. Right now they have no better prospect in Iowa than they have in New Hampshire.

Weekend Selection of News and Commentary on the Perry Trial

I am preparing my "Perry roundups" in an abbreviated format, providing just the title, date, and source of each article. I select just the articles and posts that I consider especially noteworthy. I will update this post.


Howard Mintz, Proposition 8 trial at a crossroads, 01/24/10 San Jose Mercury News

Maura Dolan, Prop. 8 foes tell court why they see measure as unconstitutional, 01/23/10 LA Times

Protect Marriage GC Andrew Pugno, Week Two Wrap-up, 01/23/10 Protect Marriage Action Fund

Geoffrey A. Fowler, Defense Set to Press Gay-Marriage Case, 01/23/10 Wall Street Journal

Ben Hallman, Covering History: A Q&A with The Recorder's Prop 8 Courtroom Reporter, 01/23/10 Recorder


Frederick Hertz, San Francisco's Proposition 8 Trial, 01/24/10 Making It Legal

Law professor Katherine Franke, What’s Campaign Finance Got to Do with Gay Marriage? For Ted Olson and Justice Thomas, A Lot!, 01/22/10 Gender & Sexuality Law Blog

Friday, January 22, 2010

Hawai'i Senate passes civil-unions bill with veto-proof majority, 18-7

The Honolulu Advertiser reports that the state Senate has passed the civil unions legislation (HB 444) by a veto-proof majority, even though it stalled there last year. "The bill would allow same-sex and heterosexual couples to enter into civil unions and receive the same rights, benefits and responsibilities as marriage under state law." Now it's up to the state House leadership to decide whether enough House members will vote in favor to reach a two-thirds majority.

[01/24/10 update: The Honolulu Advertiser has an insightful article on the legislation's historical context.]

The legislation's progress represents a significant measure of changing public opinion, notwithstanding a recent display of opposition by participants in the Hawai'i Family Forum. Establishing civil unions would have been unthinkable in 1998, when Hawai'ian voters approved a constitutional amendment (Art. I, Sec.23) giving the legislature "power to reserve marriage to opposite-sex couples." At the time, the legislature passed a "reciprocal beneficiaries" law that gave non-traditional families, including same-sex couples, some of the benefits and protections of marriage. (See this Lambda Legal page for more context.)

Of course, the Perry plaintiffs are contesting the constitutionality of bans on same-sex marriage, and they have have targeted, at the core of their lawsuit, a domestic partnership law having the same purpose as HB 444. They maintain that any separate legal status for same-sex couples - even one conferring equal benefits - deprives them of real equality. Even if the Perry plaintiffs do not succeed, trial testimony over the last two weeks may have the unintended effect of aiding efforts to establish domestic partnerships or civil unions, especially in super-DOMA states. These legal statuses could then be seen, not as permanent alternatives to marriage, but as stopgap means to bring same-sex couples much-needed benefits and protections, and to build growing public support for marriage equality.

Selection of articles and posts on the Perry case

I am preparing my "Perry roundups" in an abbreviated format, providing just the title, date, and source of each article. I select just the articles and posts that I consider especially noteworthy.

Day 9
  • Media articles
Laura Keen, Prop 8 defenders: No sharp line between gays and straights, 01/23/10 Keen News Service

Geoffrey Fowler, Defense Set to Press Gay-Marriage Case, 01/23/10 Wall Street Journal

Bob Egelko, Sexual orientation not a choice, expert says, 01/22/10 SF Chronicle

Lisa Leff, Prop 8 trial witness: Being gay not a choice, 01/22/10 AP

Gary Shih, Same-Sex Marriage Case, Day 9: Research, 01/22/10 NY Times "Bay Area"

Howard Mintz, Prop 8 trial sees joust over whether homosexuality is product of choice or nature, 01/22/10 San Jose Mercury

Howard Mintz, Prop. 8 trial Day 9: Live coverage from the courtroom, 01/22/10 San Jose Mercury

Lisa Keen, Mid-day report: Day 9 Prop 8 trial, 01/22/10 Keen News Service

  • Advocacy organizations
NCLR’s Legal Director Shannon Minter on Perry v Schwarzenegger Proceedings, Day 9, 01/23/10 Pam's House Blend

Julia Rosen, Liveblogging Day 9: Daily Summary, 01/22/10 Courage Campaign's Prop. 8 Trial Tracker

ADF Senior Legal Counsel Austin R. Nimocks, ADF Update on Prop. 8 Trial: Day 9, 01/23/10 Christian Post

Related News

Gerry Shih, A Chinese Tale: Faith, Tradition, Confucius and Same-Sex Marriage, 01/22/10 NY Times

Michael B. Farrell, At Calif. gay marriage trial, marriage is not the only flash point, 01/22/10 Christian Science Monitor [See also this Prospect article.]


Jerry Sanders, Proud to Testify for Marriage Equality, 01/22/10 Huffington Post

Protect Marriage's GC Andrew Pugno, What First Amendment? 01/22/10 Protect Marriage Action Fund

Selection of articles and posts on the Perry case

I am preparing my "Perry roundups" in an abbreviated format, providing just the title, date, and source of each article. I select just the articles and posts that I consider especially noteworthy.

Day 8
  • Articles
Dan Levine, Boies Lands Punches on Prop 8 Supporter, 01/22/10 The Recorder (SF legal newspaper)

Lisa Leff, Prop. 8 backer stands by views on pedophilia, 01/21/10 SF Chronicle

Howard Mintz, Controversial Proposition 8 proponent grilled about views on homosexuality, 01/21/10 San Jose Mercury News

Howard Mintz, Prop. 8 trial Day 8: Live coverage from the courtroom, 01/21/10 San Jose Mercury News

Geoffrey A. Fowler, Gay-Marriage Backers See Hostile Intent in Ban, 01/21/10 Wall Street Journal

Maura Dolan, Prop. 8 proponent says he argued that gay marriage could lead to legalizing pedophilia, 01/21/10 LA Times "L.A. Now"

Michelle Quinn and Gerry Shih, Same-Sex Marriage Case, Day 8: Power and Prejudice, 01/21/10 NY Times "The Bay Area"

Roger Brigham, Prop 8 Trial, Day 8: The Real Motivations of Marriage-Ban Supporters, 01/22/10 EDGE

ADF Senior Legal Counsel Austin R. Nimocks, [Trial Updates - Day 8], 01/22/10 ADF News Release

Lisa Leff, Prop. 8 Proponent to Be Called as Hostile Witness, 01/21/10 AP

  • Blogs
NCLR’s Legal Director Shannon Minter on Perry v Schwarzenegger Proceedings, Day 8, 01/21/10 Pam's House Blend's GC Andrew Pugno, A Head Shaker of an Afternoon, 01/21/10 Action Fund

Brian Leubitz, William Tam: He’s like that Cute Ignorant Uncle That Everybody Cringes At, 01/21/10 Courage Campaign's Prop 8 Trial Tracker

Related News

Pam Spaulding, The first installment of the Perry v. Schwarzenegger Trial Re-enactment, 01/21/10 Pam's House Blend [See a related post by law professor John Culhane.]

Sharon Jayson, Same-sex couples can be effective parents, researchers find, 01/21/10 USA Today

Sarah Wildman, Children Speak for Same-Sex Marriage, 01/20/10 NY Times


Robert Cruickshank, How Today’s Supreme Court Decision Affects The Marriage Equality Movement, 01/21/10 Courage Campaign's Prop 8 Trial Tracker

Attorney Chris Geidner, Justice Thomas on ‘Proposition 8-related retaliation’, 01/21/10 Law Dork

Evan Wolfson, 14 Years After Hawaii: New Freedom to Marry Case in California; Same Old, Same Old From Opponents, 01/21/10 Huffington Post

Thursday, January 21, 2010

New Mexico Senator re-introduces constitutional ban on same-sex marriage; Gov. Richardson's commitment to establishing domestic partnerships

As the New Mexico legislature convenes, state Senator William E. Sharer has again introduced a constitutional ban on same-sex marriage - SJR 1. He appears to have no better odds of success than he has had in previous attempts to move his proposal through the state legislature. Diane Wood, of the American Civil Liberties Union, told an Albuquerque news station that "[m]arriage is about commitment, sharing obligations to your family, and restriction and discriminatory language such as this has no place in our Constitution."

New Mexico Governor Bill Richardson said that he will continue to advocate for legislative passage of a domestic partnership bill, despite the legislature's failure to approve the Domestic Rights and Responsibilities Act of 2009. He faces opposition from the New Mexico Conference of Catholic Bishops. The Conference's executive director said that "[t]he bishops are instructed by Catholic teachings not to give any ground that would lead to same-sex marriage." Equality New Mexico describes the benefits and protections that domestic partnerships would bring same-sex couples.

Wednesday, January 20, 2010

Selection of articles and posts on the Perry case

I am preparing my "Perry roundups" in an abbreviated format, providing just the title, date, and source of each article. I select just the articles and posts that I consider especially noteworthy.

Day 7
  • Articles
Dan Levine, Trial airs Mormon Church’s role in fight over Prop 8, 01/21/10 The Recorder (SF legal newspaper)

Bob Egelko, Gays lack clout, Prop. 8 trial witness says, 01/20/10 SF Chronicle

Maura Dolan, Prop. 8 challengers highlight religion's role in campaign, 01/20/10

Lisa Leff, Professor says gays are politically unpopular, 01/20/10 AP

Howard Mintz, Expert in Proposition 8 trial: Barack Obama unreliable ally of gay marriage movement, 01/20/10 San Jose Mercury News

Howard Mintz, Prop. 8 trial Day 7: Live coverage from the courtroom, 01/20/10 San Jose Mercury News

Austin Nimocks, ADF Update on Prop 8 Trial: Day 7, 01/21/10 Christian Post

Michelle Quinn, Same-Sex Marriage Case, Day 7: Choice, 01/20/10 NY Times "The Bay Area"
  • Blogs
Andrew Pugno, Religion Put on the Stand, 01/20/10 Action Fund

Shannon Minter, Perry v. Schwarzenegger Proceedings, Day 7, 01/20/10 Pam's House Blend

Related News

Jonathan Rauch and Maggie Gallagher to debate same-sex marriage on January 25th, 01/20/10 The Volokh Conspiracy

Julie Bolcer, For the Record: The Prop. 8 Reenactment, 01/19/10

Karen Ocamb, Prop. 8 trial transcripts to be posted online, 01/20/10 LGBT POV


Ed Whelan, Judge Walker’s Wild Witchhunt—Part 4 , National Review Online Bench Memos

John August, Sitting in on the Prop 8 trial, 01/20/10

Updated commentary on U.S. Supreme Court ruling in Hollingsworth v. Perry, 558 U. S. _ (2010) (09A648)

Indiana Senate Judiciary Committee approves of super-DOMA amendment

01/21/10 update: The Facts About SJR-13, the Marriage Discrimination Amendment, 01/21/10 Indiana Equality; Senate panel approves gay marriage measure, 01/21/10; and Constitutional ban on gay marriage may not go far [in Indiana], 01/21/10 AP

Indiana has a statutory ban on same-sex marriage that a state appellate court upheld just four years ago. [Morrison v. Sadler, 821 N.E.2d 15 (Ind. App. 2005)] Nevertheless, marriage equality opponents in Indiana believe that the law might be challenged again in state court. To prevent a future challenge, they have engaged Republican legislators to sponsor a "super-DOMA" amendment, SJR 13.

The Indiana Constitution (Art. 16) sets a high bar for adoption of constitutional amendments. The legislature must approve a proposed amendment by a majority in each house, and it must do so in two successive sessions. Only then can voters decide the outcome in a general election.

Last year the House failed to pass a super-DOMA amendment the second time around. Although the state Senate Judiciary Committee approved SJR 13 today, odds of success seem doubtful. The vote was close - 6 to 4 - and participants, including African Americans, objected that the proposed amendment would constitutionalize discrimination. According to, "[t]here's been no indication" that companion resolutions in the state House (H.J.R. 5 and H.J.R. 7) will receive a hearing.

Attorney Jim Bopp, Jr., helped draft SJR 13. Last year he filed a federal lawsuit on behalf of Protect Marriage to challenge donor disclosures under California campaign finance law. (See this NY Times article.) He also represents a witness for Prop. 8 proponents in the Perry trial. As reports,
He notes several state Supreme Courts, most recently Iowa, have overridden laws like Indiana's, and contends opposition to a constitutional amendment amounts to an invitation to Indiana gay-rights group to go to court until they obtain a similar result.
For more on Bopp's testimony, see this post by another hearing participant, Michael Walleck, who testified on behalf of the Indianapolis Jewish Community Relations Council. Walleck is a board member of Indiana Equality.

9th Circuit staff attorney seeks injunction against OPM to enroll her same-sex spouse in employer's medical insurance plan

Golinski v. U.S. Office of Personnel Management, No. 10-0257 (N.D.Cal. filed 01-20-10)

01/20/10 Lambda Legal press release
/ 01/20/10 Law Dork

[Rick Xiao is a California attorney and a site collaborator. I wish to thank Rick for alerting me to the complaint .]

Karen Golinski is a staff attorney for the 9th Circuit Court. Her employer provides medical insurance to spouses of employees, and she applied for coverage of her spouse, Amy Cunninghis. When the Administrative Office of the Courts ("AO") denied her application, she appealed the denial to Chief Judge Alex Kozinksi, persuant to the Court's Employee Dispute Resolution Plan (EDR). Judge Kozinksi granted her relief, but each time the AO complied with his orders, the U.S. Office of Personnel Management (OPM) interfered and prevented enrollment of her spouse in her medical insurance plan. OPM claimed that the federal DOMA left it with no alternative. Judge Kozinski ordered OPM to allow Golinksi to enroll her spouse, on the grounds that the judiciary, as a separate branch of government, has a right to adjudicate its employee policies without interference from an executive agency. OPM did not appeal the order, but continues to prevent Golinski from enrolling her spouse. She now seeks a permanent injunction against OPM's interference.

Rick Xiao offers the following comment:
Athough Golinski does not seek a judicial determination of DOMA's constitutionality, the issue remains central in this case, because Obama's administration has asserted DOMA as the ground for refusing to comply with the judge's order.

As South Miami adopts a domestic partnership ordinance, consider a possible consequence of such ordinances

South Miami's City Commission has approved a domestic partnership ordinance (permanent link). The ordinance qualifies domestic partners of City employees for all employer-provided, spousal benefits. It also entitles all domestic partners to hospital visitation rights. As the Miami Herald reports, "South Miami joins Miami-Dade and Broward counties as well as the cities of Miami, Miami Beach and North Miami in recognizing domestic partnerships."

Even South Miami's limited form of domestic partnership represents a noteworthy development in a state with a "super-DOMA" amendment. Florida's constitutional amendment bans legal status for relationships "substantially equivalent" to marriage. For this reason, the South Miami ordinance precludes any interpretation that treats domestic partnership "as a marriage," or that otherwise brings the ordinance into conflict with state law, including the state constitution. So the City has accepted an unstable compromise - unstable because it rests on a contradiction. On the one hand, the City acknowledges the unfairness of treating same-sex couples unequally in hospital visitations, and in City-provided, employment benefits. On the other hand, it can't acknowledge this form of inequality, without also accommodating an inherently unequal legal status for same-sex couples.

If the Perry plaintiffs do not ultimately prevail, the "super-DOMA" amendments will remain in force absent repeal. But more municipalities in Florida and other "super-DOMA" states will adopt laws establishing limited domestic partnerships - a process that testimony in Perry may advance. Won't the contradiction such laws entail become increasingly apparent, and increasingly unsustainable?

Tuesday, January 19, 2010

Selection of articles and posts on the Perry case

I am preparing my "Perry roundups" in an abbreviated format, providing just the title, date, and source of each article. I select just the articles and posts that I consider especially noteworthy.

See also yesterday's compilation.

Day 6
  • Articles
Bob Egelko, How San Diego mayor converted to gay-marriage side, 01/19/10 SF Chronicle

Howard Mintz, Proposition 8 trial: San Diego mayor says lesbian daughter should have right to wed, 01/19/10 San Jose Mercury News

Howard Mintz, Prop. 8 trial Day 6: Live coverage from the courtroom, 01/19/10 San Jose Mercury News

Lisa Keen, Mid-day report: second Tuesday morning Prop 8 trial, 01/19/10 Keen News Service

Lisa Leff, San Diego mayor says gay marriage views changed, 01/19/10 AP

Ryan Mac, Same-Sex Marriage Case, Day 6: Civil Unions, 01/19/10 NY Times "The Bay Area"
  • Blogs
Shannon Minter, Perry v. Schwarzenegger Proceedings, Day 6, 01/19/10 Pam's House Blend

Austin Nimocks, ADF CA Marriage Trial Update: Day Six, 01/19/10 ADF Alliance Alert

Davina Kotulsk, Day 6 Prop 8 Trial: A Change of Heart, 01/19/10 LGBT POV

Julia Rosen, Liveblogging Daily Summary: Day 6, 01/19/10 Courage Campaign's Prop. 8 Trial Tracker

Andrew Pugno, Second Verse, Same as the First, 01/19/10 Action Fund

Margaret Talbot, A Conservative Voice For Gay Marriage, 01/19/10 New Yorker

Related News

Dan Levine, Marriage Plaintiff [in Strauss v. Horton] Eyed for Federal Bench, 01/20/10 The Recorder (SF legal newspaper)

Lori Preuitt, Gay Marriage Trial Coming to YouTube -- as a Reenactment, 01/19/10

Susan Feriss, At heart of Prop. 8 trial, a clash over motives, 01/19/10 Sacramento Bee

Bob Egelko, Prop. 8 trial looks at personal, social changes, 01/19/10 SF Chronicle

Same-Sex Marriage Judge Dealt With Other Gay Cases, 01/19/10 AP

Rex Huppke, 'Marriage' benefits costly for gay couples, 01/18/10 Chicago Tribune


Attorney Chris Geidner, Perry: Week Two, 01/19/10 Law Dork

Updated commentary on U.S. Supreme Court ruling in Hollingsworth v. Perry, 558 U. S. _ (2010) (09A648)

Ed Whelan, Judge Walker’s Wild Witchhunt—Part 2, 01/19/10 National Review Bench Memos

Jeffrey Lord, A Rebuttal to Theodore Olson, 01/19/10 The American Spectator

Monday, January 18, 2010

Thousands in Honolulu rally against same-sex civil unions bill

According to the Honolulu Advertiser and the Honolulu Star Bulletin, thousands of marriage-equality opponents rallied yesterday in Hawai'i's capitol to oppose HB 444 on civil unions. (In my earlier post, I have more to say about the legislation and the range of views on civil unions.) The turnout was "significantly smaller than the 24,000 that organizers [of Hawai'i Family Forum] had targeted." (Honolulu Advertiser) The rally occurred as the state Senate convenes this week and prepares for a vote on the legislation. The state House may take no action if the legislation does not pass in the Senate by a two-thirds majority required to override a veto. It's unlikely that the legislation will reach the governor's desk. (Star Bulletin)

If enacted, HB 444 would represent the same kind of "all-but-marriage" law at issue in the Perry case. Plaintffs and expert witnesses have testified on the harmful effects of California's domestic partnership law. Their testimony challenges the idea that a separate, "parallel" status for same-sex couples can in any way "equal" marriage. So it may seem odd that some marriage-equality opponents - including the Hawai'i Family Forum protesters - see no distinction between civil unions and marriage. But they contest any type of legal union for same-sex couples, whose relationships they consider "sinful" and unworthy of state sanction.

Today's selection of articles and posts on the Perry case

I am preparing my "Perry roundups" in an abbreviated format, providing just the title, date, and source of each article. I select just the articles and posts that I consider especially noteworthy.


ADF Senior Counsel Jordan Lorence, ADF Update on Prop 8 Trial: Behind the Scenes, 01/18/10 Christian Post

Dan Levine, A Large Cast Shares Spotlight at Prop 8 Trial, 01/19/10 The Record (SF legal newspaper)

Bob Egelko, Dueling portraits of Prop. 8 backers at trial, 01/18/10 SF Chronicle

Live chat: Prop. 8 trial with San Jose Mercury News reporter Howard Mintz, 01/18/10 San Jose Mercury News

Joe Sudbay, Filmmaker producing video version of Prop. 8 trial, 01/18/10 Americablog Gay [See a related post by law professor John Culhane.]


Law professor Nan Hunter, A historian's view of marriage, 01/18/10 hunter of justice

Law professor Robert John Araujo, S.J., Perry v. Schwarzenegger: questions from a reader, 01/18/10 Mirror of Justice

Sunday, January 17, 2010

What’s Really Behind the Supreme Court’s Decision to Block Access to the Prop 8 Trial?

01/15/10 WordinEdgewise, by law professor John Culhane:
I could live with a contrary decision, though, if it were truly grounded in an argument about procedural deficiency. But the more I study the Court’s opinion, the more convinced I become that this had little to do with procedure ... [H]ere’s one guess as to the difference the Court saw as important, but the one it dare not speak aloud: Public appearances can be sensational ... Sober public education, in other words, is the mortal enemy of the anti-equality forces ...If I’m right about what the Court was really worried about, it’s time to ask: Are Ted Olsen or David Boies, whose politically tone-deaf idea this lawsuit was, starting to have second thoughts about “getting to 5″ (votes)? Probably not.

I provide updated commentary on U.S. Supreme Court ruling in Hollingsworth v. Perry, 558 U. S. _ (2010) (09A648)

Civil union legislation in Hawai'i, the spectrum of opinion on non-spousal, legal unions, and the impact of the Perry trial

As Herbert Sample reports for AP, "a group of Protestant evangelicals" - the Hawai'i Christian Coalition - will join the Hawai'i Family Forum for a rally today in Honolulu to urge state legislators to vote against civil unions legislation (HB 444). Expanding the limited rights and obligations of a "reciprocal beneficiaries" law, the bill would give same-sex couples a full range of spousal benefits and protections. If enacted, Hawai'i would join six other states that have comparable laws. See this Lamda Legal page to understand the historical context in which the state legislature will now consider the legislation after it stalled last year. Pam's House Blend has more on the response by Equality Hawai'i.

Opinion on non-spousal, legal unions varies among opponents and supporters of marriage equality. An overview of the state of opinion strikes me as timely, particularly in light of the Perry trial. At its core, the Perry case concerns the constitutional adequacy of California's "all-but-marriage law" for same-sex couples. Moreover, John Green, a political science professor at the University of Akron, recently told USA Today that marriage-equality advocates "will push for states to grant civil unions or domestic partnerships, which allow similar rights to those of married couples ... [because] Americans are more likely to support those relationships."

Let's first consider the views of marriage-equality opponents. Many who oppose same-sex marriages also oppose any type of non-spousal, legal union. Honolulu Catholic Bishop Larry Silva last week said that civil unions represent "simply a euphemism for same-sex marriage." Before Colorado Governor Bill Ritter approved limited domestic partner benefits for state employees, Colorado Family Action opposed the legislation because "it attempts to elevate same-sex couples to the status of married couples by defining domestic partner as an eligible dependent of a state employee."

Nevertheless, other marriage equality opponents have - as a matter of political strategy - accepted domestic partnerships or civil unions, at least in states that have related laws. In fact, divisions over the issue continued last year among Prop. 8 supporters. Andrew Pugno, general counsel of, faulted an attempt by the Campaign for California Families (CCF) to intervene in the Perry case. CCF takes the same view on domestic partnerships as Silva and Colorado Family Action. The organization initially opposed Prop. 8 because it did not ban non-spousal, legal unions. Pugno said that CCF went "beyond what we thought voters would support and roll back gay rights with a much more aggressive measure."

Finally, David Blankenhorn, a defender of "traditional marrige" recommended a "reconciliation," with backing from Jonathan Rauch, a gay marriage advocate. They would allow the federal government to recognize all spousal benefits and protections for same-sex couples who have married or entered into civil unions, as long as the associated state laws include "robust" religious-liberty protections. (Blankenhorn will testify this week in the Perry trial on behalf of Prop. 8 proponents.)

Marriage-equality supporters have their own spectrum of differences on non-spousal, legal unions. Law professor Nancy Polikoff, author of Beyond (Straight and Gay) Marriage, conditions her support of marriage equality. As long as marriage exists, she believes that same-sex couples should have equal access to it. But she would replace the state's role in marriage with a new status, civil partnerships. Civil partnerships would have all the rights and duties previously reserved for marriage. Polikoff would also extend civil partnerships to traditional and non-traditional families. (See her latest post on the Perry trial.)

Marriage-equality supporters tend to embrace the "conservative position" that Perry counsel Theodore Olson recently articulated. This is the view that that marriage represents "one of the basic building blocks of our neighborhoods and our nation," from which same-sex couples can not be excluded. In states, such as New Jersey, that have "all-but-marriage" laws, same-sex partners have described the consequences of the inherent, "second-class citizenship" that these laws represent. The latest accounts of the effects of inequality have occurred during New Jersey's debate overmarriage-equality legislation, and during the Perry trial - see, for example, this report on testimony by Lian H. Meyer, professor of clinical sociomedical sciences at Columbia University’s Mailman School of Public Health.

I have keen interest in the activities of marriage-equality supporters in states with constitutional or statutory DOMAs. These supporters favor domestic partnerships or civil unions, not as satisfactory substitutes for marriage equality, but as interim measures with important benefits for same-sex couples and their communities. These advocates enjoyed their latest success in Washington, where a narrow-majority of voters approved the controversial Referendum 71, upholding the state's "all-but-marriage." Similar controversies in DOMA states have followed proposals or adoptions of limited domestic partnerships, especially in states like Wisconsin with "super-DOMA" amendments. Lee Badgett expects "a campaign for legal rights that will focus on couples in the middle of the country." The latest campaign involves a proposed, civil-unions initiative in Colorado.

Of course, the Perry trial will educate the public on the merits of marriage equality. Whatever its ultimate outcome, it will likely invigorate advocacy - in Colorado and other states (like New Mexico) - for civil unions or domestic partnerships.

Commentators, Subjects and Cases