Sunday, February 28, 2010
Just before midnight on February 26th, attorneys on opposing sides have submitted briefs about the pre-trial evidence and trial testimony, to help Judge Walker better prepare for closing arguments that he is expected to schedule soon. (SF Chronicle / San Jose Mercury News / AFER press release / LGBT POV) Attorneys for the plaintiffs filed Proposed Findings of Fact and Law (at just under 300 pages!); attorneys for the Prop. 8 proponents filed a Trial Brief and Proposed Findings of Fact.
Michelle Quinn of the New York Times asked law professor David Levine to identify different types of rulings Judge Walker might make.
Bill Moyers featured a discussion of the case with Theodore Olson and David Boies. Olson and Boies answered familiar objections to marriage equality. They responded to claims that the constitution provides no right of same-sex couples to marry; that judges should refrain from "judicial activism"; that voters and legislators, rather than courts, should decide the question; that traditional marriage protects child welfare and sustains procreation; and that allowing same-sex marriage violates tenets of some religious faiths. The attorneys relied on the constitution, history and the trial to explain how the right to marry is a fundamental, constitutional right; how equal protection of the laws applies to all citizens; how banning same-sex marriage harms same-sex couples who would otherwise marry; and how allowing it would not harm married, opposite-sex couples. They also tried to justify bringing the federal lawsuit now, rather than deferring to a state-by-state strategy of legal advocacy groups that lately succeeded in Iowa. Michael Winship of the Bill Moyers Journal comments on the program.
Gazettes Town-News of Long Beach, California, interviews litigator Christopher Fowler, who married his husband in May 2008. He talks about the Perry case and describes his reaction to adoption of Prop. 8. “As a new father, I want my son to be able to describe his parents and family with confidence,” Fowler said. “When I heard that Prop. 8 had passed, I felt that something was taken away from me. When I used to read about things that happened to gay people that didn’t have rights, it inspired me to become a lawyer. To see that people who were my neighbors voted to tell me that I was not able to have the same family they do was a tremendous disappointment.”
Marriage equality - D.C.
"It's all over now, baby blue." Whether or not the Dylan lyrics apply, the Alliance Defense Fund and allied attorneys have failed in their last-ditch effort to keep D.C.'s marriage-equality law from taking effect later this week. D.C. Superior Court denied their motion for a preliminary injunction in the last of three lawsuits related to recognition of same-sex marriages. Jackson v. D.C. Board of Elections and Ethics, No. 740-10 (D.C. Super. Ct., Feb. 4, 2009). Plaintiffs appealed. On February 26th, the D.C. Court of Appeals rejected their motion for emergency appeal and injunctive relief . Thanks to an astute reader for alerting me to the news (DCAgenda.com / Washington Times / HRC Back Story) and to the appellate court's order.
Out-of-state recognition - Maryland
The Carroll County Times profiles a Maryland couple with plans to marry in Connecticut. The reporter acknowledges "a debate on whether their marriage will be recognized by the state in which they live," without also referencing the state Attorney General's recent opinion allowing recognition of same-sex marriages. In its editorial, the Washington Post supports the opinion, and Maryland Equality is circulating a petition to show public support. The Washington Post also reports on local reaction by same-sex couples.
"Maryland Comptroller Peter Franchot and his staff are trying to work same-sex couples into the state's tax equation without violating federal law ... 'You are going to find people that are married out of state -- that can file here jointly -- come and take advantage of our taxes,' said Stanley H. Block, a Baltimore tax lawyer." (Washington Examiner)
On February 25th, "the European Court of Human Rights, has its first hearing on a case regarding same-sex marriage. The Court’s hearing was on the admissibility and merits in the case of Schalk and Kopf v. Austria (application no. 30141/04)." (International Lesbian, Gay, Bisexual, Trans and Intersex Association)
Friday, February 26, 2010
[02/27/10 update: Journalist Karen Ocamb concludes that the Court's press release last night should end speculation about a public broadcast of closing arguments. (LGBT POV) I disagree.]
Why has the District Court renewed its effort to amend Rule 77-3 when the Supreme Court objected to its initial method of adopting the amendment? The Court still seeks to conform the rule to new 9th Circuit policy on selective public access to courtroom proceedings. Closing arguments in the Perry case have such public importance that it is an obvious candidate for application of the policy. The Court now has the opportunity to remedy procedural defects that a 5-4 Supreme Court majority ruled as a likely violation of federal law. Moreover, if Prop. 8 proponents try to challenge adoption of the rule change, they won't be able to allege "irreparable harm" to trial witnesses from its application to public broadcast of the closing arguments.
Thursday, February 25, 2010
I posted yesterday on the advisory opinion (94 Op. Att'y. Gen. 3, Feb. 23, 2010) by Maryland Attorney General Douglas Gansler. Law professor Nancy Polikoff observed yesterday that the law is not "self-executing." (The Daily Record). But she probably commented before a press conference by Gansler, at which he said that "[s]tate agencies in Maryland will recognize out-of-state gay marriages as of right now." (Washington Post) Governor Martin O'Malley has announced that he expects all state agencies to follow Gansler's interpretation of the law. "Unlike some attorney general opinions that last for years and decades, I would anticipate that this particular opinion will be addressed by litigants," Gansler said. "This will be resolved in the courts." (Baltimore Sun) See The Daily Record for comments by ACLU of Maryland staff attorney David Rocah and University of Baltimore law professor Barbara A. Babb.
Marriage equality law - D.C.
Marriage equality in D.C. has been the subject of three lawsuits. The latest one concerns a referendum on the District's marriage equality law that Rev. Harry Jackson and others sought to qualify for an election. (Catholic News Agency) The D.C. Election Board decided to disqualify the referendum because it violates the Human Rights Act. [In re Referendum on the Religious Freedom and Civil Marriage Equality Amendment Act of 2009, (DCBOEE, Feb. 4, 2010)] (Religion Clause) Representing Jackson and his supporters, the Alliance Defense Fund (ADF) - joined by attorneys for Stand4MarriageDC. -appealed the decision to D.C. Superior Court. [Jackson v. D.C. Board of Elections and Ethics, No. 740-10 (D.C. Super. Ct., filed Feb. 4, 2009)] They filed a motion for a preliminary injunction to keep the marriage equality law from taking effect on March 3rd, pending a final Court ruling. The Court tentatively denied the motion last week, and, on February 20th, issued a written order denying the motion. ADF and allied attorneys have appealed this order to the D.C. Court of Appeals. (ADF press release) Absent a stay by this court or unlikely action by Congress, the law will take effect. "While couples will be able to apply next Wednesday, the three-day waiting period in the District means that couples will not be able to formally marry until the following Tuesday, March 9." (Washington Post)
Marriage equality legislation - Maryland
On March 3rd and March 4th, two legislative committees in Maryland have scheduled hearings to consider marriage equality legislation. (SB 582 / HB 808). (Equality Maryland) HB 808 would require support from State House Speaker Michael Busch, who favors civil unions instead. (Baltimore Sun)
Super-DOMA amendments - Maryland, West Virginia and Indiana
Maryland's state House Judiciary Committee has scheduled a March 4th hearing on a proposed super-DOMA amendment (SB 1079). (Equality Maryland)
State Republican legislators in West Virginia have failed to advance a proposed super-DOMA amendment (HJR 5) out of committee. (HRC Back Story / Charleston Gazette) The Family Policy Council of West Virginia (FPCWV) will hold a rally today at the state capitol to support continued efforts to bring to HJR 5 a floor vote. "The event will feature Maggie Gallagher, president of the National Organization for Marriage; Randy Wilson, national field director for Family Research Council, and Jeremy Dys, president and general counsel of the Family Policy Council of West Virginia." (NewsandSentinel.com; for more on the rally, read the Herald Dispatch.) FPCWV has been circulating a petition whose signers threaten to vote against state legislators for opposing a "marriage protection" amendment. (FOCWV)
Although the Indiana state Senate approved a proposed super-DOMA amendment (SJR 13), it has died in the state House. (Indiana Equality)
Custody - Vermont
"A family court judge in Vermont Tuesday issued a warrant for the arrest of former lesbian Lisa Miller who disappeared with the child she once shared with her former civil union partner, Janet Jenkins ... Just last week, Judge Louis Harrison, a family court judge in Bedford, Virginia, said he could not issue an arrest warrant for Miller because he could not be sure Miller was aware of the Vermont judge’s order. Miller’s attorney, Mathew Staver, founder and chairman of the right-wing Liberty Counsel litigation group, has told reporters he does not know where Miller is." (Keen News Service)
Developments abroad - Australia and Argentina
The Australian Senate has voted against the Marriage Equality Amendment Bill of 2009, introduced in September by Senator Sarah Hanson-Young. (PinkNews.co.uk)
"A judge on Tuesday authorized two men to marry in Buenos Aires in what would be the country's second same-sex marriage." (AFP)
"The Future of Same-Sex Marriage" is the topic of tomorrow's University of San Francisco Law Review's Spring Symposium. (ADF Alliance Alert)
Wednesday, February 24, 2010
Maryland Attorney General issues advisory opinion on legal status of out-of-state, same-sex marriages
Law professor Arthur Leonard favors his readers with a careful analysis of the opinion, and for comparison considers the origins and scope of out-of-state recognition in New York.
The National Center for Lesbian Rights praises Gansler, and has provided legal analysis about Maryland law and policy" to his office. While Lambda Legal welcomes the opinion, it underscores two concerns. First, same-sex couples who reside in Maryland will still have to travel where they can marry. Second, they will face discrimination under the federal DOMA, and in states that don't recognize their marriages. Michael Cole raises similar concerns at HRC Back Story. (Click here and here for press releases by other advocacy organizations.) At least gay and lesbian Marylanders won't have far to travel for a marriage license, if - as expected - D.C.'s marriage-equality law takes effect on March 3rd. (According to the Washington Post, the Alliance Defense Fund is still waging a last-ditch, legal battle to block the law. Click here for more details.)
How will same-sex couples in Maryland gain recognition of their out-of-state marriages? Until Gansler held a press conference later today, his opinion created "uncertainty" about the legal and "policy implications" the moment he issued it. (Washington Post) If same-sex couples had waited on the state legislature to act, they would have waited indefinitely, given recent controversy over failed legislation against out-of-state recognition. A state agency with jurisdiction could independently recognize such marriages in matters within its jurisdiction. For example, the Maryland Comptroller, which collects income taxes, could have allowed married same-sex couples to claim whatever exemptions, deductions, or credits married, heterosexual couples now qualify for as joint, income tax filers. (Or rather it could have made this change, unless state tax law follows the requirements of the federal DOMA. I haven't checked.) But married same-sex couples would have hardly accepted ongoing administrative uncertainty about whether they can claim marital rights and benefits. And, at any rate, each agency action on their behalf would face legal challenge. So it looked as if state court court was the most likely venue for removing uncertainty about out-of-state recognition.
At his press conference, Gansler announced that, under the opinion, his office was exercising its authority to establish the validity of same-sex marriages. The news, of course, all but guarantees a court intervention:
"Maryland Attorney General Douglas F. Gansler (D) said Wednesday that effective immediately, and until challenged in court [highlight added], the state recognizes same-sex marriages performed elsewhere and that Maryland agencies should begin affording out-of-state gay couples all the rights they have been awarded in other places. 'State agencies in Maryland will recognize out-of-state gay marriages as of right now,' Gansler said at a news conference explaining the effect of a long-awaited opinion he released Wednesday morning ... [E]ven advocates said that they expected lengthy court battles [highlight added] and discussions with [Governor Martin] O'Malley's administration would be needed to further refine what Maryland may offer same-sex couples from elsewhere. (Washington Post)
Tuesday, February 23, 2010
Yesterday in Minnesota, the the House Civil Justice Committee held an informational hearing on the Marriage and Family Protection Act (HF1644), which would reverse the state's DOMA. (The Committee also considered HF0999, on civil unions, and HF1740, on out-of-state recognition.) Blogger Joe Sudbay discusses reported testimony by opponents, including Congressional candidate Barb Davis White, and University of St. Thomas law professor Teresa Stanton Collett. (AMERICAblog Gay)
White, who is African American, thinks that marriage equality supporters have "hijacked" the 1960s civil rights movement. She then hijacks it herself, with incitement to bigotry: "Rosa Parks didn’t move to the front of the bus to support sodomy."
Collett foresees terrible harms against religious liberty, even if it's unclear whether she could identify any examples in marriage-equality states:
"'Churches and religiously affiliated institutions will lose their tax-exempt status,' she said. She claimed that Christian colleges would be forced to house same-sex couples in dorms, social work students would be kicked out of school if they refused to counsel gays and lesbians, politicians would revoke funds from religious organizations, and parents would be arrested for speaking out against homosexuality. (Minnesotan Independent)(At this site, law professor John Culhane has offered his ideas on the appropriate scope of exemptions for religious organizations.)
Law professor Dale Carpenter also testified:
He argued that marriage is a powerful legal institution that encourages healthy, monogamous relationships — whether gay or straight. "There have been no negative effects on heterosexual families or on children raised in those families," Carpenter testified of the increasing prevalence of gay marriage. "No slippery slope to polygamy or anything else." (Politics in Minnesota)The bills at issue will not receive a vote in the state House. (WCCO.com)
Commonwealth of Massachusetts v. U.S. Dept. Health & Human Services
Marcia Coyle reports for The National Law Journal on the Massachusetts Attorney General's motion for summary judgment in Commonwealth of Massachusetts v. U.S. Dept. of Health and Human Services (D. Mass. Case No. 1:2009-cv-11156, Jul. 8, 2009).
Super-DOMA amendments - West Virginia
In West Virginia, state House Republicans plan to use procedural maneuvers to force a floor vote on HJR 5, a super-DOMA amendment. "[T]he GOP strategy started unsuccessfully Monday." (Charleston Gazette / cross-posted by ADF Alliance Alert) The Family Council of West Virginia will hold a rally on Thusday to urge state legislators to adopt a "marriage protection" amendment.
Termination of marriages involving domestic partners
"Equality California is sponsoring a new bill [AB 2700] introduced last Friday by Assemblymember Fiona Ma (D-San Francisco) that would create a consolidated form and procedure to dissolve both a civil marriage and domestic partnership." (Equality California press release / cross-posted by Gay Marriage News Watch)
Varnum v. Brien
Last week in the Iowa state Senate, a tax-policy subcommittee rejected provisions of Senate Study Bill 3200 that would have conformed the state's tax code to the requirements of Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009). The issue elicited a response from Danny Carroll, chairman of the the Iowa Family Policy Center Action. Referring to the Varnum Court, Carroll said, "lawmakers should not “bow down to an out-of-control court” by “attempting to sneak through key language changes that would effectively redefine marriage in Iowa." (Gazette Online)
Adoption - Louisiana
Louisiana Attorney General Buddy Caldwell is expected to appeal the ruling in Adar v. Smith, No. 09-30036 (5th Cir., Feb. 18, 2010), which requires the state to recognize out-of-state adoption decrees. (The Times-Picayune / cross-posted by ADF Alliance Alert)
Monday, February 22, 2010
Tara Siegel Bernard of the NY Times has "tax tips for same-sex couples." Her tips highlight the tax burdens of the federal DOMA and the unique benefits available to married, heterosexual couples who file joint income taxes. "[P]lenty of same-sex couples end up paying higher tax bills than their heterosexual married counterparts."
Constitutional amendment - West Virginia
In West Virginia, state legislators supporting a super-DOMA amendment (HJR 5 / HJR 24 / HJR 111 /SJR 3 / SJR 5 / SJR 14*) have so far failed to bring their resolutions to a floor vote in the 2010 legislative session. But the resolution sponsors will receive help this week from a dependable ally - the Family Policy Council of West Virginia (FPCWV), which wants to give voters opportunity to vote on an amendment in the November election. On February 25th, FPCWV will hold a "let us vote" rally at the state capitol to demand action by the state legislature. (FPCWV press release)
(*According to the press release, SJR 14 is not a super-DOMA amendment.)
Sunday, February 21, 2010
That kind of objection has resonance in other super-DOMA states, such as Ohio, where the Alliance Defense Fund filed a legal challenge to Cleveland's domestic registry, claiming that it violates Ohio's super-DOMA amendment ( Ohio Const. Art. XV, sec. 11). [The Ohio case is now on appeal - Cleveland Taxpayers v. City of Cleveland, No. 94327, (Oh. 8th App. Dist.)] Nevertheless, even in Texas, limited recognition of domestic partnerships appears to be gaining public support, with Austin and Dallas having also adopted similar health care coverage for domestic partners of city employees. Yesterday, "[t]he University of Texas hosted the second annual Texas Equity Conference. At issue is the ability of Texas public universities to be competitive in hiring top staff, given restrictive same-sex partner benefit policies." (News 8 Austin)
North Carolina has a DOMA, but doesn't have a "marriage protection" amendment. There, too, an increasing number of cities and counties have embraced the same rationale for granting health care benefits to domestic partners of their employees. The Ashville City Council last week "voted 4-2 to have city staff report March 9 on how workers' same-sex domestic partners could get the same benefits as heterosexual employees' spouses, including health insurance, bereavement leave and prescription drug coverage. A majority of council members said they expect to vote for a final measure after the report." (Citizen-Times.com / cross-posted by ADF Alliance Alert and Straight Talk on Marriage) Two lesbian police officers testified at the Council meeting before the vote. One of them said that "[i]t really does make me feel of less value that I can't provide that same protection to my family that other people that I work with can." But Rev. Keith Ogden objected to the domestic partnership proposal. Like Barney Field of El Paso, he finds that it represents "a way of endorsing gay marriage, something that God forbids."
Saturday, February 20, 2010
Massachusetts Attorney General Martha Coakley has filed a motion for summary judgment in in Commonwealth of Massachusetts v. U.S. Dept. of Health and Human Services (D. Mass. Case No. 1:2009-cv-11156, filed July 8, 2009). She argues that the federal DOMA violates the Tenth Amendment by encroaching on Massachusetts' exclusive authority to define marriage. She also makes two arguments based on the Spending Clause. (Art. I, §8) First, the 14th Amendment's guarantee of equal protection bars the federal government from restricting federal funds according to DOMA's eligibility criteria. Second, the Spending Clause requires a relationship between such restrictions and the purposes of such laws as Medicaid, but DOMA's restrictions bear no relationship to the purposes of federal laws involving federal benefits to married couples. (AP / JURIST)
Adoption - Florida
I have only recently begun to monitor litigation about adoption by gay and lesbian parents. Three same-sex couples have finalized adoptions in Florida since 2008, despite a state law [Fla. Stat. §63.042(3)] that bans such adoptions. (1/26/10 Miami Herald) The latest case - in Miami-Dade County (11th Judicial) Circuit Court - concerns adoption of a one-year-old child by Vanessa Alenier, who lives with her partner, Melanie Leon. According to the Herald, Judge Maria Sampedro-Iglesia decided that the adoption ban is "unconstitutional on its face." It violates the child's right to permanent placement with adopting parents. (The Herald obtained the ruling, but the Court has not posted it at its website, and it's not available through Westlaw.) The Florida Department of Children & Families will appeal the ruling. ( 2/18/10 JustNews.com / cross-posted at ADF Alliance Alert)
A judge in Key West - Monroe County (16th Judicial) Circuit Judge David J. Audlin - was the first to rule that the law violates the state constitution's equal protection clause. [In the Matter of the Adoption of John Doe, 2008 WL 5070056 (Fla. 16th Cir. Ct. Aug. 29, 2008)] In that case, a gay parent was able to adopt a child he had been raising in foster care. The ruling was not appealed.
Less than three months later, a Miami-Dade County Circuit judge granted an adoption petition by a gay foster parent, Martin Gill. (NPR). Judge Cindy Lederman ruled (Scribd.com link) that the adoption law violates the child's right to permanency in adoptive placement, and that the state has no rational basis for its unequal treatment of adoptable children and adopting parents. The case is on appeal in the Third District. (In re Matter of Adoption X.X.G and N.R.G., No. 3D08-3044) The ACLU, which represents Gill, has a case profile, and posts appellate briefs here.
Marriage equality - D.C.
The D.C. Superior Court has - for the third time - ruled against plaintiffs trying to invalidate an Election Board's decision that the D.C. Human Rights Act prohibits ballot qualification of a measure on recognition of same-sex marriage. (Washington Post; Windy City News; HRC Back Story) The latest legal challenge involves a referendum on D.C.'s marriage-quality law [engrossed version]. Judge Brian F. Holeman tentatively denied a motion for a preliminary injunction against the pending effective date of D.C.'s marriage-equality law (Windy City News), and an appeal is likely. (Metro Weekly) The law will take effect March 3rd unless Congress intervenes, or unless the D.C. Court of Appeals issues a stay. Representing the plaintiffs, the Alliance Defense Fund has filed an appeal of the ruling in Jackson v. District of Columbia Board of Elections and Ethics, (DC Super. Ct., Jan. 14, 2010). (Religious Clause) In that ruling, the Superior Court upheld a D.C. Elections Board decision against the proposed Marriage Initiative of 2009.
Today, law professor Nan Hunter addresses "The Future of Sexuality and Gender Law and Scholarship" at the Williams Institute. (LGBT POV) She blogs at at Hunter of Justice.
Friday, February 19, 2010
Last year, Minnesota state Rep. Phyllis Kahn introduced the Marriage and Family Protection Act (HF1644), which would reverse the state's DOMA. On February 22nd, the House Civil Justice Committee plans to hold an informational hearing on the legislation. The Committee will not also take a vote. The Minnesota Independent identifies Doug Benson as the "citizen author" of the proposed Act. He faulted the hearing as " basically a show hearing," but OutFront Minnesota supports the hearing: "Legislators will hear from experts and their constituents that discrimination against people because of who they love or who they are is wrong." OutFront predicts that "it will take 3 to 5 years to get such a bill passed." (Minnesota Independent)
Adoption - Lousiana
Law professor Arthur Leonard analyzes yesterday's ruling in Adar v. Smith, No. 09-30036 (5th Cir.). Emilie Adams, Staff Counsel of the Human Rights Campaign, also discusses the case.
Custody - Ohio
When an Ohio same-sex couple ended their relationship two years ago, Kelly Mullen, the biological mother of 4-year-old Lucy, denied visitation to Michele Hobbs, her former partner. Hobbs sued for shared custody in Hamilton County juvenile court (no. C 0900285). The juvenile court magistrate awarded partial custody to Hobbs and temporary visitation, while recognizing the biological mother and father as the only legal parents under Ohio law. A juvenile court judge later reversed the orders on partial custody and visitation, but reinstated interim visitation by Hobbs (no. C 0900407). She appealed to the First District Court of Appeals, No. C-090285,C-090407, in Cincinnati. Mullens cross-appealed on the issue of visitation. The appellate court ruled that Hobbs is not entitled to custody or visitation, and she has appealed to the state Supreme Court (no. 2010-0276). (kypost.com; cross-posted at Alliance Defense Fund)
Thursday, February 18, 2010
Massachusetts Attorney General files motion for summary judgment in Commonwealth of Massachusetts v. U.S. Dept. of Health and Human Services
Thanks to California attorney and site collaborator Rick Xiao for alerting me to the motion. I expect to link to commentary tomorrow.
A New York couple entered a civil union in Vermont in 2003. Janice R. had a child through artificial insemination; her partner, Debra H., provided the child a mother's loving care. Janice R. and Debra H. ended their relationship in 2006. Two years later, when the child was 4 years old, Janice R. abruptly denied parental access to Debra H., who sued for joint custody and restoration of access. A trial court allowed Debra H. visitation as the case proceeded, but Janice R. appealed the court's interim order, and Lambda Legal entered the appeal on behalf of Debra H.. The appellate court reversed the trial court, but Debra H. appealed the appellate ruling to the New York Court of Appeals. Yesterday, "Lambda Legal argued before the New York State Court of Appeals on behalf of a non-biological mother after an intermediate appeals court denied her right to seek custody and visitation with, and provide financial support to the child she has parented with her former same-sex partner." The case is Debra H. v. Janice R, No. 2009-773 (N.Y.) (Lambda Legal press release)
The Fifth Circuit Court of Appeals has ruled that Louisiana must recognize an out-of-state gay adoption. (Adar v. Smith, No. 09-30036) Gideon Alpers discusses the ruling, concluding that the federal DOMA precludes any effect on out-of-state recognition of same-sex marriages. (Gay Couples Law Blog) (It's unclear to me that the ruling would, in fact, implicate this issue, but for section 2 of the federal DOMA.) He links to a press release by Lambda Legal, which represents the gay parents.
Marriage equality - Iowa
"Officials in the state Department of Revenue have been asked to redraft Senate Study Bill 3200 to drop sections that attempted to craft gender-neutral language regarding married couples into the tax code." (Sioux City Journal)
"Now, in an extraordinary front page article that ran yesterday in Argentina's Pagina/12, the paper takes a look at both the Parliamentary and the judicial paths to marriage equality in Argentina and it begins with quite a bombshell ("The Two Roads to Gay Marriage"). (Blabbeando Blog)
Bob Egelk of the SF Chronicle reports that 14 years before becoming President, Obama "endorsed the right of gays and lesbians to marry."
Wednesday, February 17, 2010
GLAD has filed a reply memo in support of its motion for summary judgment. Click here for the DoJ's opposition to the motion.
Constitutional amendments - New Hampshire
In New Hampshire, the state House has voted against a bill (HB 1590) to repeal the state's marriage-equality law, and against a proposed resolution for a "marriage protection" amendment (CACR 28). The House rejected CACR 28 "by a wide margin, 201-135, short of a simple majority and far below the three-fifths majority -- 238 votes -- it needed to advance to the Senate." (UnionLeader.com)
Rep. David Bates tried to delay the vote on CACR 28 until March 17th. (AP) He has been leading an effort to place a nonbinding resolution on ballots for March 9th town meetings throughout the state. (Union Leader) The resolution expresses a preference of New Hampshire to vote on amendment that "defines" marriage. Against the odds, LetNHVote.com organizers had hoped that the proposed amendment would reach New Hampshires in this year's November election.
Domestic partnerships - New Mexico and Ohio
On February 15th, New Mexico's Senate Finance Committee voted to table domestic partnership legislation (SB 183). (lezgetreal.com)
In August, the Alliance Defense Fund filed a legal challenge to Cleveland's domestic registry, claiming that it violates Ohio's super-DOMA amendment ( Ohio Const. Art. XV, sec. 11). The judge dismissed the lawsuit in November, and, on December 1st, ADF appealed the dismissal to the Court of Appeals of Ohio, Eighth Appellate District. Lambda Legal announces that it has filed an amicus brief in support of Cleveland. The case is Cleveland Taxpayers v. City of Cleveland, No. 94327.
Stampp Corbin defends Washington's "all-but-marriage" law that estabished civil unions for same-sex couples, and that survived Referendum 71 in last year's November election. (gltnewsnow.com) (Check out Gideon Alpers' insightful comments on the law.) Corbin is a San Diego City Commissioner for the Citizens’ Equal Opportunity Commission. He was Co-Chair of the Obama National LGBT Leadership Council and a former Board Director for the Human Rights Campaign.
His argument has problems. The facts suggest a range and depth of harms from "separate-but-equal" civil unions that he does not fully acknowledge - see, for example, findings of the New Jersey Civil Union Review Commission, and a comparative analysis of civil unions and marriage in this report of the New York State Bar. He faults New Jersey's civil-unions law for defective implementation, but better implementation would not remedy more than the most egregious violations, and could not, of course, reach the inherent harms to same-sex couples and their children. He oddly compares rationales for "separate but equal" arrangements in civil unions and male and female bathrooms.
But I accept the core of his argument. He values the immediate benefits that same-sex couples gain. And he regards civil unions as just an interim measure that will help build public support for marriage equality - a concession to political expediency, not to principle. So supporters of both civil unions and marriage equality are not trying to square the circle.
Tuesday, February 16, 2010
Texas Attorney General Greg Abbott seeks to intervene in a same-sex divorce case in Austin, now that the judge has granted the divorce petition. Judge Scott Jenkins appears to have relied on petitioner's argument that he has the authority to divorce the couple under the the full faith and credit clause of the U.S. Constitution. Abbott said that "[a] divorce is an ending or a termination of a valid legal marriage. In this instance there was no valid legal marriage recognized by the state of Texas. Texas can't have a faulty precedent on the books that validates an illegal law. (Houston Chronicle) Abbott claims that voidance of the marriage represents the only alternative to divorce that Texas law recognizes. With voidance, "the parties can achieve a legal termination of their Massachusetts marriage, through an enforceable judgment." (Austin Statesman) Austin News Station KXAN interviewed Angelique Naylor, who petitioned for divorce from her wife, and Naylor's attorney. (linked at Boston Edge and Dallas Voice)
Varnum v. Brien
Republican gubernatorial candidate Rod Roberts wants Iowa voters to vote against three state Supreme Court justices in this fall's retention election. "Roberts notes that the Iowa Supreme Court’s decision in Varnum v. Brien [763 N.W.2d 862 (Iowa 2009)] – in which the court struck down the state’s law restricting marriage to one man and one woman – is one of the primary reasons why he opposes retaining the justices who are up for retention next year." (The Iowa Republican) Republican state legislators have introduced several bills on the state judiciary. One would outlaw the use of precedent; another would require election of judges. The Iowa Independent calls this legislation "the GOP's war" on the state judiciary. In an interview by Iowa Public Radio, Chief Justice Marsha Turnus defended the state's merit-based selection of judges. She said that voters should decide retention according to whether judges fairly and impartially discharge their duties. "[O]ur judges are chosen on the basis of their professional qualifications, their integrity, and their ability to do the job. If we go to political elections it would change the entire nature of judiciary." (Iowa Independent)
Religious liberty exemption - D.C.
Before D.C. enacted its marriage equality law, the Catholic Archdiocese of Washington demanded an exemption allowing religious organizations, like Catholic Charities, to deny married, same-sex couples foster care and other public services it provides. But as law professor Nancy Polikoff observed at the time, the D.C. Human Rights Act already bars discrimination based on marriage or sexual orientation. "What Catholic Charities seeks," she said, "is immunity from existing civil rights laws that predate marriage equality by decades and will continue to exist regardless of whether same-sex couples are allowed to marry in the District of Columbia." Now the Diocese has announced that Catholic Charities will end its D.C. foster care program to avoid placement with married, same-sex couples. (Washington Post)
Maryland Attorney General Doug Gansler has been preparing a legal opinion on recognition of out-of-state, same-sex marriages. He appears likely to interpret Maryland law in favor of recognition. One legislator tried - and failed - to gain approval of a bill that would preclude such an opinion. (The Maryland Reporter) Another legislator has sent a letter to a state prosecutor with a threat of impeachment charges against Gansler. He accuses Gansler of taking “sides on an issue where he potentially intends to abuse the power of his office to usurp the authority of the General Assembly and circumvent Maryland’s High Court regarding Maryland’s current marriage law." (Examiner)
Justice Carlos Moreno dissented in Strauss v. Horton, 49 Cal. 4th 364 (2009). He determined that Prop. 8 would fundamentally change the state constitution by denying same-sex couples equal protection and a constitutional right to marry, and was therefore an invalid attempt to revise the constitution. Bob Egelko of the San Francisco reports what Moreno said during an interview:
"It's of great concern to me that certain basic rights, such as equal protection, the right to privacy and other fundamental rights, can be subject to change by simple majority vote," Moreno said in an interview last week while preparing to accept a gay-rights group's Equality Leadership Award. [See his prepared remarks at the Equality California gala.]
"Majority rule is nice in concept, but I think there has to be some kind of restraint on that to fulfill the larger purpose of our democracy."
Opposing measures by two Pennyslvania state Senators on same-sex marriage: Part 2: Senator Daylin Leach on "Putting Marriage To A Vote"
Yesterday I began this series by reviewing a debate on same-sex marriage between Senator Leach and his colleague, Senator John Eichelberger. Senator Eichelberger represents the 30th district in western Pennsylvania. He wants to give Pennsylvania voters opportunity to approve a constitutional ban on same-sex marriage (SB 707).
Senator Eichelberger has agreed to favor this site with a statement of his reasons for (SB 707), and I look forward to his future contribution. In this post, I am pleased to present comments by Senator Leach. He has revised comments he initially prepared not long after voters in Maine reversed the state's marriage-equality law by approving Question 1. Of course, his comments have bearing on Eichelberger's goal to "let voters decide" whether same-sex couples may marry.
Senator Daylin Leach: Putting Marriage To A Vote
When you follow politics closely, every election night comes with its exhilarating wins and heartbreaking losses. Some years there are more of one than the other, but every year is, to some extent, a mixed bag. Last year, the toughest loss for me to watch was the decision by the voters of Maine to (albeit narrowly) overturn by referendum the legislature's legalization of same-sex marriage.
As a strong supporter of same sex marriage, I was naturally disappointed with the outcome of the election. As I watched the final results came in, however I found myself feeling disquiet beyond that usually elicited by being on the short end of a vote. Something seemed fundamentally wrong to me about the process itself.
At first I thought that my unease was caused by my general antipathy towards government by referendum. I believe we should elect people whose judgment we trust and assign to them the full-time task of studying issues, going to hearings, meeting with stakeholders, participating in debates and coming to the best solution. This seems to me far preferable to distilling complex issues down to one line on a ballot, to be decided in a moment, with no study, by people who often came to vote for things completely unrelated to that issue.
Referendum also makes one of the most important legislative functions, compromise, impossible. If I see a ballot initiative asking if I want to spend $10 million on education, I may think that's too high. But I could support an additional $5 million. In the legislative process, that lower, more reasonable figure might actually be the final product. In a referendum, it's all or nothing, guaranteeing extreme results that up to 49% of the population never buy into.
Finally, voters don't have to square the circle. For example, in states with referendum provisions, voters routinely vote to both cut their taxes and increase spending on services they like on the same day. Unlike the legislature, voters don't have to make it all add up, which can lead to budgetary disaster.
Yet, as I thought it through, I found my concerns went deeper. There is something profoundly wrong about putting the basic human rights of a minority up to a vote of the majority. Rights are rights, whether or not the majority agrees with them. And while there may be an argument (a weak one, as I've explained) for voting on a given tax, or whether to build a highway, individual rights belong to the individual, not 51% of the community.
For instance, should we put what God you can pray to up to a vote? How about whether or not a person has the right to advocate a certain position on an issue, or whether or not they have a right to remain silent if arrested? Maybe we could vote on what books can be read, or whether married couples can use contraception? Obviously, most of us would recoil from such suggestions.
We can examine recent history to see how such votes might go: fifty years ago, if we had put desegregating public schools up to a vote in the South - or much of the North for that matter - would it have passed? How about allowing African Americans to drink out of Whites-Only water-fountains? Even in the context of marriage, at one time, a vote on whether one could marry outside their race would have lost overwhelmingly in much of the country. In some places, it might still lose today.
So what troubles me is that it seems incongruent, and frankly, a little icky to have majorities decide whether a minority is entitled to their human rights. It would, in concept, be like having white people vote on whether black people could sit in the front of the bus, or having Christians vote on whether Muslims can pray publicly. I'd like to think that - in this day and age - those votes would go well.. Even so, it still wouldn't feel like the right thing to do.
It is estimated that 3% of Mainers are gay. Therefore, 97% of the people, whose own lives are utterly unaffected by the status of same-sex marriage, got to give thumbs up or thumbs down on someone else's marriage. Marriage was called by the United States Supreme Court "fundamental to our very existence." Yet gay people are denied the right to marry because a slim majority of straight people don't feel like giving it to them. That process, more than the result, should make all of us, and our spouses, lose some sleep tonight.
Monday, February 15, 2010
In 2006, Republican state legislators in Pennsylvania tried to make a ban part of the state constitution, and they tried to do so again in 2008. A year later, Eichleberger proposed (permanent link) re-introduction of a constitutional amendment to ban same-sex marriages. Having acted on his proposal, he now joins legislators in New Mexico, Indiana, New Hampshire, West Virginia, and Iowa who seek legislative approval of amendments to "defend marriage," and voter adoption of the amendments.
This is the first part in a series on why Senators Leach and Eichelberger have pursued their rival measures. I will summarize their debate on a June 19, 2009, program of WHYY Radio Times with Marty Moss-Coane. I have the honor of a guest contribution from Senator Leach, and a tentative commitment for a guest contribution from Senator Eichelberger. I am still hopeful that Senator Eichelberger will participate. A second part will follow tomorrow, featuring commentary by Senator Leach. He will explain why voters should not be allowed to determine whether same-sex couples have a right to marry.
In the WHYY debate, Eichleberger expressed his concern that the ACLU, or other advocacy organization, will represent Pennsylvanian same-sex couples in a lawsuit to overturn the state DOMA. He did not identify any plans of a lawsuit, and he does not expect one to succeed, but to prevent a challenge based on state law, he thinks that Pennsylvania must add the ban to the state constitution. He repeatedly derided "activist courts" as those that have upheld marriage equality under their respective state constitutions. (These states include Iowa, Massachusetts, Connecticut, and - until Prop. 8 - California.)
Eichelberger believes that heterosexual marriage represents a "proven model" of stability for families and of benefits to society. He referred to a number of studies showing that children do best with a mom and dad as parents, and that divorce and "out-of-wedlock" births have increased in "Scandinavian countries" with legalized same-sex marriage. He also believes that marriage equality for same-sex couples entails marriage equality for polygamy. Finally, he holds that same-sex relationships represent "lifestyle" choices that the state should not sanction.
Leach praised Eichelberger as a friend and as one of the smartest members of the state Senate, even if he finds that Eichelberger has positioned himself on "the wrong side of history." Leach made an impassioned, eloquent case for marriage equality. He compares discrimination against same-sex couples with prior discrimination against interracial couples, noting that the U.S. Supreme Court - then considered an "activist court" - invalidated anti-miscegenation laws in 1967. [Loving v. Virginia, 388 U.S. 1 (1967)] He observes that the same objections once raised against interracial couples have now been raised against same-sex couples. [footnote 1]
Having tried to exhaust research on the subject, Leach found that that same-sex couples are no less capable of parenting than opposite-sex couples. He challenged his colleague to identify the studies he relies on for his claims about heterosexual child rearing and adverse effects of same-sex marriage. Leach argued that same-sex marriages would bring the same benefits to society as heterosexual marriages do; that the current ban harms same-sex parents who would otherwise marry and their children; that sexual orientation does not depend on a deliberative choice but on a person's core identity; and that society should encourage stable, monogamous relationships regardless of sexual orientation.
Of course, my summary of the debate represents no substitute for listening to it. Eichelberger strikes me as a very able advocate for "traditional marriage," capitalizing on divided public opinion. Leach, on the other hand, seeks to build public support for marriage equality. He rejects civil unions even as an interim alternative to marriage, because they would "stigmatize" same-sex couples and perpetuate their inequality. He sees his legislation as a hopeful part of a larger civil rights "struggle."
Leach said during the program that voter majorities must not be allowed to deprive unpopular minorities of fundamental rights, including the right to marry. Tomorrow's post will include Leach's comments on just that issue - comments he prepared in the aftermath of Maine's referendum on Question 1. And I very much hope that Senator Eichelberger will honor this site with his comments.
See also: Gregory Johnson, We’ve Heard this Before: The Legacy of Interracial Marriage Bans and the Implications for Today’s Marriage Equality Debates, 34 Vt. L. Rev. 277 (2009)
On February 9th, the New Hampshire House Judiciary Committee recommended that the House reject a proposed super-DOMA amendment (CACR 28) that would invalidate the state's marriage-equality law. The measure has been scheduled for a House vote on February 17th. (AP)
Justice Carlos Moreno accepted an "Equality Award" from Equality California on February 13th. Justice Moreno dissented in Strauss v. Horton, 49 Cal. 4th 364 (2009), finding that Prop. 8 represents an invalid revision of the state constitution that fundamentally undermines its guarantee of equal protection. Journalist Karen Ocamb shares his prepared remarks on his dissent and In re Marriage Cases, 43 Cal.4th 757 (Cal. 2008). (LGBT POV)
Sunday, February 14, 2010
Law professor Robert Vischer speculates on the risk that married same-sex couples will change the nature of marriage
According to Vischer, the argument should invoke another kind of speculative risk than the one National Review writer Heather McDonald considers. Does same-sex marriage, he asks, "represent changes to marriage beyond the gender of the participants, and if it does, are the changes likely to impede the essential social functions of marriage?" He thinks that the evidence remains open. He believe that monogamy represents an "intrinsic part" of marriage. But in 40 years, he speculates, half of all marriages might become "intentionally non-monogamous," and that would change the nature of marriage. He engages his speculation for the sake of argument, acknowledging that it's a "wild" overstatement of what the facts support. But the risk gives him pause.
What merit does an argument have that begins with a wild speculation? I am reminded of what philosopher Robert Nozick once said about the idea that tacit consent has binding effect: tacit consent "is not worth the paper it's not written on." At any rate, Vischer proposes the argument without endorsing it. But suppose the argument deserves a reply, and that sexual fidelity represents a defining characteristic of marriage. One wonders whether Vischer appreciates the present scale of marital infidelity, involving one spouse's deception in the service of "intentional non-monogamy." Even if his speculation proved right, what is it about "open" marriages that would change the institution any more than the history of infidelity has changed it already? Marriage is a malleable institution that has survived such changes as the rise of a separate legal identify for women. Wouldn't it also survive the change to a non-sexual standard of fidelity, even under Vischer's marital dystopia of the future?
At any rate, opponents of same-sex marriage consider childrearing an "essential social function of marriage." Psychologist Michael Lamb testified at the Perry trial that children of gay and lesbians would benefit if their children could marry, and that sexual orientation makes no difference in parenting. Prop. 8 proponents could produce no expert testimony to rebut Lamb. If same-sex couples could marry, they could raise their children without harm from the stigma of inferiority, advancing the very goal that their opponents attribute to marriage.
(Perry has commented on Vischer's "sketch" of an argument, and asks additional questions about it.)
Saturday, February 13, 2010
In October, a Dallas judge ruled that it would be unconstitutional to deny a divorce to a same-sex couple. Attorney General Greg Abbott filed a notice of appeal before the 5th Circuit that automatically stayed the ruling. (Texas Lawyer Blog). In December, a same-sex couple in Austin sought to dissolve their marriage, but in their case, one of the two wives moved to dismiss the other's divorce petition, preferring a declaration of voidance instead. They later agreed on custody and a division of property. As a result, the wife who initially moved to dismiss the divorce petition prepared to withdraw her motion, and the judge said that he would grant the petition. Now Abbott wants to intervene in the case to get the petition dismissed.
(Texas Lawyer Blog) But News 8 Austin reports that Judge Scott Jenkins has approved the petition.
Constitutional amendments - West Virginia, New Mexico, and Iowa
A year ago, state legislators in West Virginia introduced resolutions (HJR 5 /HJR 24 / SJR7 / SJR 12) for a super-DOMA amendment. The proposals stalled. In July, a specially appointed committee of the West Virginia legislature (study resolution HCR 88) heard testimony on whether the legislature should approve such an amendment. (See, for example, testimony by Jordan Lorence, Senior Counsel for the Alliance Defense Fund.) Republican legislators - like their counterparts in Iowa earlier this week - tried a procedural maneuver to force legislative action on one of the amendment proposals. In Iowa, the procedure involved a "call of the House" that appears to represent that legislature's form of a "discharge" vote - a vote on a request to move Iowa H.J.R. 2001 out of committee and on to the House floor. (You can watch a related, Iowa Press debate between Iowa Family Policy Center Board Chair Danny Carroll and One Iowa Campaign Manager Brad Clark .) In West Virginia, Republican members of the House Constitutional Revision Committee moved to place HJR 5 on the Committee agenda, but the Committee defeated the motion. A discharge motion will probably follow. "I'll be surprised if there isn't a motion soon to discharge the (House Constitutional Revision) committee so we can get this issue on the House floor for a vote by the entire membership," said House Minority Leader Tim Armstead, R-Kanawha. (Herald-Dispatch) The Committee's chairwoman, Delegate Barbara Fleischauer, explains why she thinks it would be premature for the legislature to act now. (West Virginia Public Broadcasting)
The Senate Rules Committee of New Mexico has been scheduled to consider proposed a "defense of marriage" amendment (SJR 1).
Domestic partnerships - New Mexico
In New Mexico, the state Senate Finance Committee has scheduled a hearing on February 15th to consider a domestic partnership bill (SB 183) that would give same-sex couples the protections and benefits of marriage. (e-mail from Equality New Mexico) On February 2nd, the legislation was the subject of hearing by a joint meeting of two other Senate committees. The state Judiciary and Public Affairs Committees approved SB 183, despite opposition by the New Mexico Conference of Catholic Bishops. (Catholic News Agency) At the state capitol, several couples participated in a commitment ceremony to support establishment of domestic partnerships. (New Mexico Independent)
Portugal's Parliament has approved marriage equality legislation. It's uncertain whether President Anibal Cavaco Silva will veto the legislation. (Agence France-Presse)
The Salt Lake Tribune reports on a marriage-alternative proposal that Pepperdine University law professors Douglas Kmiec and Shelley Ross Saxer made last year.
This is Freedom to Marry Week (February 8th -14th). As the nation prepares to celebrate Valentine's Day, gay and lesbian couples mark another year without opportunity to marry by repeating attempts to obtain marriage licenses in states, such as California and Virginia, that ban same-sex marriage. In New York, a lesbian protested denial of a marriage license by picking a random stranger to marry, and a heterosexual man in Florida protested the ban by planning to marry a woman he does not know.
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