Constitutional law scholar Michael Dorf recently gave a lecture at Drake University on "Same-Sex Marriage, Labels, and Social Meaning." In this blog entry, he links to an audio file of the lecture, and describes his aim. Where state courts have overturned "all-but-marriage" laws, their decisions interpret the right to marriage as a "a right not to be relegated to the status of second-class citizens." The difference between "marriage" and "civil union" conveys a social meaning - the stigma of second-class citizenship. Setting aside the "concrete consequences" of all-but-marriage laws, Dorf thinks that the allegedly contested idea of social meaning deserves further study. "The hardest problem here is that social meaning often differs with different audiences." Law professor Courtney Megan Cahill has also addressed the issue of social meaning, from a different perspective: (Still) not fit to be named: moving beyond race to explain why 'separate' nomenclature for gay and straight relationships will never be 'equal,' 97 Geo. L.J. 1155 (2009).
I haven't yet listened to Dorf's lecture. His post raises three questions that his lecture may answer: (1) Is there a problem for social meaning of the kind he describes, divorced from "concrete consequences"? (2) If there is, why does it matter, given the nature and extent of serious, irremedial harms to same-sex couples in "parallel" civil unions or domestic partnerships, and to their children? (3) Can we understand any problem for social meaning in Dorf's context without considering evidence on the nature and extent of harm from inequality?
Maryland Attorney General Douglas Gansler interprets state law to allow recognition of out-of-state, same-sex marriages, and Governor Martin O'Malley has directed state agencies to comply with Gansler's advisory opinion. But advocates of marriage equality will not use the opinion as a means to try to enact a marriage equality law in the current legislative session, even though bills are pending in the state Senate and House (SB 582 / HB 808). Legislation has been introduced repeatedly over the last decade, and has received increasing support, but Equality Marriage has determined that the time is not yet ripe. Even if the legislation were enacted, a referendum would likely follow, and the voters may defeat marriage equality. (Baltimore Sun, cross-posted by Straight Talk on Marriage) "
Equality Maryland has hired Amy Martin, a Field Organizer For Marriage Equality, with twin goals of expanding support from legislators and the public. Executive Director Morgan Meneses-Sheets says that "in the wake of Proposition 8 in California and Question 1 in Maine, Equality Maryland is also looking at a wide-ranging strategy to ensure that we have the necessary public support to beat back a referendum aimed at rolling back our gains." (03/25/10 Equality Maryland press release)
Meneses-Sheets has expressed misgiving about a proposal to amend the state constitution in favor of marriage equality (HB 1176 / HB 1279). Delegate Frank M. Conaway Jr., D-Baltimore, believes that his legislation could help end the legislative stalemate by having voters decide the outcome. But Meneses-Sheets said that the proposed amendment would "not be the way to go for a number of reasons. To have the majority voting on the rights of a minority population is just never a good idea, and it's a pretty unacceptable way to try to make progress." (The Capital, cross-posted by ADF Alliance Alert. This is a fuller version of the Baltimore Sun article.)
Daylin Leach, a Pennsylvania state Senator, advocated marriage equality in a March 24th debate with Maggie Gallagher, executive of the National Organization for Marriage. (Proposition 8 and the Right to Marry) Senator Leach is author of the first bill (SB 935) to overturn the state DOMA (23 Pa.C.S.A. § 1704), even though a state judge recently upheld the DOMA's constitutionality.
You can watch the debate here. At Daylinsights.com, Senator Leach summarizes Gallagher's arguments and how he answered them. Gallagher is a cogent debater, but she more than met her match. Senator Leach graces his intellect with rapier wit and disarming charm. These are rare gifts for an elected official.
Of course, my comments represent no substitute for watching the debate or reading Leach's post. I offer my own selective summary to highlight particular points of interest.
Leach identified grave harm to same-sex couples and their children from marriage inequality. Given the nature and extent of this harm, he said that government's continued unequal treatment of same-sex couples requires compelling justification. To justify current bans on same-sex marriage, Gallagher relied on the familiar arguments that are her hallmark. She predicted that if the state allows same-sex couples to marry, state protection of their right to marry would undermine what she understands as marriage's unique and fundamental purpose - to ensure that a child will have a mother and a father. As a result, fewer families will have mothers and fathers, and children will be harmed. Her prediction depends on speculation. She speculates that, in at least two ways, the government would "marginalize" marriage's alleged purpose. The state would require public schools to teach students that society has no reason to privilege different-sex marriages; and the state would penalize religious believers in traditional marriage.
Gallagher raised the canard of "public school indoctrination" that, in their respective campaigns, Prop. 8 and Yes on 1 proponents successfully deployed against marriage equality. If same-sex couples can marry, then public schools will be required to teach students that a child does not need a mother and a father, and that anyone who believes otherwise is a bigot. When these students reach adulthood, they will have less incentive to form two-parent families, leading to more "fragmented" families. Presumably because more children will grow up in single-parent households, Gallagher concludes that "down the road...a lot of kids will be hurt."
Gallagher also claimed that if Leach's legislation was enacted, the state would "impose" a "definition" of marriage on organizations and individuals that offends their religious principles. She invoked the case of a lesbian who sued a California evangelical physician for refusing to carry out artificial insemination, even though he identified alternative providers. However, in North Coast Woman's Medical Care Center, Inc., v. Superior Court, the California Supreme Court ruled that constitutional protection of their religious speech does not exempt physicians from the Unruh Civil Rights Act, which bans discrimination on the basis of sexual orientation. Same-sex marriage was never at issue in the case, although Gallagher implies that it was because it was decided at almost the same time as In re Marriage Cases. Moreover, Gallagher warned that religious charities could lose their tax-exempt status, and that Catholic Charities would do what it did in Massachusetts and D.C., by withdrawing its adoption and foster care services. But whether or not Massachusetts and D.C. had adopted marriage equality, each has laws barring Catholic Charities from discriminating on the basis of sexual orientation.
Leach observed that same-sex marriages will not stop opposite-sex couples from marrying and raising children, and will not somehow dispose heterosexuals to change their orientation to pursue same-sex marriage. Public schools already have a responsibility to instill respect for tolerance, but their curricula need not incorporate discussion of same-sex marriages. Just as the Texas Board of Education recently adapted public curriculum to conservative ideology, voters could elect education officials to prohibit any instruction involving the subject of same-sex marriage.
Leach characterized Gallagher's objections as mishegas - "crazy talk" about the terrible things that would happen from same-sex marriage. He reduced the objections to variations of the "heckler's veto." The fallacy here involves those who disapprove of civil rights for an unpopular minority. They demand that discrimination continue because otherwise their less rational allies may resort to deplorable forms of confrontation, including violence. Here the heckler's veto applies by analogy to Gallagher's warning about alleged dangers to public school students, and evangelical physicians and Catholic Charities. To prevent the horribile dictu, Gallagher insists that same-sex couples must be deprived of a fundamental right. Leach contends that she and her supporters are not entitled to a version of the heckler's veto.
In February, Maryland Attorney General Douglas Gansler issued an advisory opinion that the state may recognize out-of-state, same-sex marriages. Governor Martin O'Malley directed state agencies to comply with the decision. State Delegate Emmett Burns tried to preempt the expected opinion with legislation (HB 90), but the House Judiciary Committee reported unfavorably on the bill. (The Maryland Reporter) Following release of the opinion, state legislators introduced legislation (HB 1532 / SB 1120) for a moratorium on out-of-state recognition until the state Court of Appeals decides its legality or the legislature approves a law. House Minority Leader Anthony J. O'Donnell sponsors HB 1532, and on March 25th the House Judiciary Committee held a hearing on the bill. "The worst thing we can do as a legislature is give out false hope," O'Donnell said at the hearing. "It would be patently unfair, in my opinion, if people are given rights and then the legislature yanks the rug out from underneath them in a very, very cruel way." (Washington Examiner) Of course, his legislation would deliver the cruelty he protests, only sooner. Laure Ruth, legal director of the Women's Law Center of Maryland, testified that "O'Donnell's bill is a convoluted version of the ban on same-sex marriage - which failed earlier in the session."
Gloria Borger, a CNN Senior Political Analyst, interviewed Theodore Olson and David Boies, attorneys for the plaintiffs. ("The Odd Couple," 03/25/10 Campbell Brown Blog) Law professor Orin Kerr complains about the perceived absence of comparable profiles of Charles Cooper, attorney for the Prop. 8 proponents. (Volokh Conspiracy) I link to a Cooper profile here.
Marriage equality v. "marriage protection" - a debate in Pennsylvania
Daylin Leach is a Pennsylvania state Senator whose district lies near Philadelphia. He has distinguished himself as a marriage equality advocate by introducing legislation (SB 935) to repeal the state's DOMA and recognize same-sex marriages. (Pittsburgh Post-Gazette) In June, he debated state Senator John Eichelberger, who recently failed to advance his "marriage protection" amendment (SB 707) out of committee. Leach introduced the motion to table it, and the motion was approved. (Proposition 8 and the Right to Marry)
Last night in Harrisburg, he debated Maggie Gallagher, executive director of the National Organization for Marriage. (Freedom to Marry) Pennsylvania Public Radio reporter Scott Detrow moderated the debate, and features sound clips here. He expects PCN to carry a video "at some point." (03/26/10 update: You can watch the debate here.)
Marriage equality - D.C.
Sen. Bob Bennett (R-UT) tried to amend the reconciliation bill on medical insurance, with provision for a referendum on D.C.'s marriage-equality law, but his last-minute maneuver ended in predictable defeat. (Law Dork / Washington Post / AMERICAblog Gay / HRC Back Story) Freedom To Marry finds that the defeat makes marriage equality "safe." That reassurance warrants qualification. Bennett's gambit represented no credible threat, even if he scored political points among partisan supporters in advance of his 2010 primary. More importantly, a pending lawsuit on a marriage initiative will likely reach the Supreme Court, and may yet succeed there. (Proposition 8 and The Right To Marry)
Matt Lloyd is a family law practitioner in Austin. At the Texas Family Law Blog, he describes the difficulties of same-sex couples who seek divorces in states that ban same-sex marriage. He discusses two divorce cases in his state, observing that "we may be approaching an interesting family law jurisprudence in Texas."
04/06/10 update: Kern v. Taney, slip, op., No. 09-10738 (Pa. Berks County Ct. Com. Pl. Mar. 15, 2010) (summarized here)
A Pennsylvania judge has decided that he can not grant a divorce petition involving two women who married each other in Massachusetts. The state DOMA provides that same-sex marriages validly licensed elsewhere are void. (23 Pa.C.S.A. § 1704) Petitioner Carole Ann Kern claimed that this ban on recognition violated the state and federal constitutions. (Reading Eagle) Her attorney, Lisa D. Gentile, had argued that the right to marriage requires a government restriction to sustain the highest level of constitutional scrutiny, or strict scrutiny. Gentile had also argued that this right extends to same-sex couples, and that the state DOMA fails the test of strict scrutiny.
Berks County Common Pleas Court Judge Scott E. Lash ruled that same-sex couples have no federal or state constitutional right to marry. He found that the constitutional right to privacy does not guarantee a right to marriage for same-sex couples, and that the fundamental right to marry does not apply to same-sex couples. The voidance provision of the state DOMA "represents a reasonable protection and a proper and lawful exercise of the police power of the Commonwealth, which is available to preserve the public health, safety, welfare, and morals of its citizens." The case is Kern v. Taney, No. 09-10738-2, slip op. (Berks County C.P. Mar. 15, 2010) (Legal Intelligencer / AP / Leonard Link)
"Equality California has filed a motion for a stay in response to Judge Vaughn Walker's ruling ordering Equality California and the American Civil Liberties Union to turn over internal strategy emails and campaign materials from the No on Proposition 8 campaign." (Equality California, cross-posted by Straight Talk on Marriage. See also the ACLU press release.) In their motion, Equality California and the ACLU rely on a recent 9th Circuit ruling in the case - Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010) - to argue that Judge Walker misinterprets their private, campaign communications as falling outside the scope of First Amendment protection. Judge Walker has granted the stay until March 29th to allow the organizations opportunity to appeal.
"The legal wrangling could slow the historic trial still unfolding before Walker." (San Jose Mercury News) Equality California and the ACLU do not want to delay the lawsuit, but they claim that they are "defending issues of a fundamental nature under the First Amendment with consequences not merely for this case but for future election campaigns of all sorts."
Geoff Kors, Executive Director of Equality California, accuses Prop. 8 proponents of having "cherry-picked the three organizations from the [No on 8] campaign that they feel are the biggest threat to their anti-equality agenda."
"While the states are still arguing whether or not to even allow gay couples to get married, the first wave of same sex couples looking to divorce are making their way to the courts. But with no federal ruling, the divorce proceedings for some couples have made national headlines that would normally not even be mentioned in newspapers." (Edge Boston)
Two men in Malawi were charged with indecency when they held a civil marriage ceremony. A court ruled that the prosecutor has cause for the charge, but has delayed a verdict pending a call for defendant witnesses. (Times Online)
Drake University Law School will hold a symposium on April 10th, "The Same-Sex Marriage Divide." The symposium marks the first anniversary of Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009). On March 25th, constitutional law scholar Michael Dorf will speak on “Same-Sex Marriage, Labels, and Social Meaning.” (Legal Scholarship Blog)
Last week, plaintiffs' attorney Steve Bomse tried to convince Judge Walker that he should overturn a discovery order by Magistrate Judge Joseph Spero. Spero's order requires the ACLU and Equality California, among other organizations, to produce certain types communications during their 2008 campaign against Prop. 8. As Bomse tried to make his argument, Walker walked out of the court room. (Cal Law Legal Pad) So it's hardly surprising that Walker has decided to uphold the order. (LGBT POV / AP / San Jose Mercury News) An appeal may follow of Walker's decision.
Jordan Lorence is Senior Counsel for the Alliance Defense Fund, and represents the Prop. 8 proponents. He told the NY Times that "there should not have been a trial.” But "having a trial," said Theodore J. Boutrous Jr., a lawyer for the plaintiffs in the Proposition 8 case, "is precisely the process that has been used time and time again throughout American history to decide landmark civil rights cases." (NY Times) Charles Cooper, lead counsel for Prop. 8 proponents, claimed that "we can’t find that any of the marriage cases, the dozen or so that have proceeded around the country, actually submitted issues of fact to trial." Evan Wolfson commented on Cooper's claim. Wolfson represented same-sex couples in the seminal Hawai'i litigation that tested, at trial, the constitutionality of the state's marriage ban. (Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993), and Baehr v. Miike, No.91-1394-05, 1996 WL 694235). "There is a lot of déjà vu here," Wolfson said. "In the 14 years since Hawaii, the anti-gay forces have not come up with a good argument." Developments abroad
"Portugal’s President Anibal Cavaco Silva has said he forwarded a gay marriage bill to the nation’s Constitutional Court because he has 'doubts' about its constitutionality, Portugal’s Jornal de Noticias reported." (On Top Magazine, cross-posted by Gay Marriage Watch) "On 13 March, Cavaco Silva sent it to the Constitutional Court for review, and the court must act on the review by 8 April. The bill then will return to the president, who will have 20 more days to mull it over. If he signs it, it becomes law. If he vetoes it, Parliament is expected to pass it again, which would then force Cavaco Silva to sign it." (Pink Paper, cross-posted by Gay Marriage Watch)
You can view the filing here, and, for context and synopsis, read a joint press release by Lambda Legal and the ACLU. (reproduced at AMERICAblog Gay.) I wish to thank California attorney Rick Xiao for alerting me to the filing and forwarding it.
Dan Levine of The Recorder reports on Judge Walker's display of impatience as, earlier this week, plaintiffs' attorney Steve Bomse asked Judge Walker to overrule a discovery order by Magistrate Judge Joseph Spero. (Cal Law Legal Pad) The latest discovery dispute may delay Walker's final judgment in the case, as Walker appears likely to uphold the order, and the plaintiffs may appeal.
In his brief, Texas Attorney General Greg Abbott told the state's 5th Court of Appeals that it didn't need to hear oral argument on whether a same-sex couple may divorce. (In the Matter of the Marriage of J.B. and H.B.) But the Court has scheduled argument on April 21st, prompting this comment by Ken Upton, a senior staff attorney at Lambda Legal: "If I were the panel, I would want arguments, because if they follow the law, as opposed to following the political pressure, it’s a winning argument. If I were the appellate court, I’d feel in a bind maybe, because the law really is supportive of the people trying to get a divorce, and they’re faced with big, hot-button issues." J.B.'s attorney, Pete Schulte, believes that the Court can decide the question without considering whether the state's constitutional ban on same-sex marriage would violate due process and equal protection under the 14th Amendment. (Dallas Voice, cross-posted by Gay Marriage Watch)
Dissolution of civil union in New York
Law professor Arthur Leonard discusses a case in which a New York appellate court ruled that the trial court has jurisdiction to consider a petition to dissolve a Vermont civil union. (Leonard Link)
Related news - the preference for marriage; parenting
"More than a quarter (26%) of LGBT partners have gotten married, even though only five states grant marriage licenses to same-sex couples. Many (63%) say they would marry if there was a federal law allowing gay marriage." (Market Watch, cross-posted by Gay Marriage Watch)
"We recently undertook a systematic review of the scientific research — 81 studies spanning the past 20 years — to see what it actually says about how parents’ gender affects child-rearing outcomes. We found no evidence to support the claim that children need both a mother and a father." (Sociology professors Timothy Biblarz and Judith Stacey, USC Politics and Society, cross-posted by Straight Talk on Marriage, "Their article 'How Does the Gender of Parents Matter?' appeared in the February issue of the Journal of Marriage and Family.)
In Lewis v. Harris, 188 N.J. 415, 908 A.2d 196 (N.J. 2006), the New Jersey Supreme ruled that the state constitution's guarantee of equal protection requires the state to accord same-sex couples the same rights, benefits and protections of marriage that are available to opposite-sex couples. (N.J. Const. Art. I, ¶ 1) The Court directed the state legislature to enact a law that would meet this constitutional requirement. But the Court did not decide whether the law must also extend the label of "marriage" to the required legal status for same-sex couples. The legislature enacted a civil union law (N.J.S.A. 37:1-1 to 37:2-41) that gives these couples access to a status with all the rights and duties of marriage, except the label. The law established a Civil Union Review Commission to determine if this parallel status fulfilled the Lewis mandate of real equality. The Commission reported that it doesn't (interim and final reports), and a state legislative committee heard testimony. (Garden Equality has a summary of the Commission's final report.) Despite this extensive factual record of inequality, the legislature recently failed to remedy it by giving same-sex couples equal access to marriage.
Lambda Legal represents six same-sex couples in today's motion. The plaintiffs argue that "that same-sex couples lack workplace benefits and protections, face unequal treatment and lack of recognition in public accommodations and civic life, and that their children are 'prejudiced by the unequal and inferior legal and social status' of civil unions." (JURIST) They also describe inadequate family protections, and pervasive economic and psychological harms to parents and their children. The couples have asked the Court to declare that the Civil Union Act violates the state constitution's guarantee of full equality to same-sex couples, and to direct the state to allow them to marry. (Lambda Legal press release) If the Court somehow finds the factual record insufficient, the plaintiffs have asked that the Court appoint a special master to further develop the record.
Matt Coles is Director of the ACLU's LGBT Project. In this second of his two-part series, he explains why Justice Anthony Kennedy doesn't represent a predictable vote against a national or limited form of marriage equality.
The two Senators have debated each other on the merits of their legislation. (Prop. 8 and the Right to Marry), and Senator Leach honored this site with a guest contribution. I remain hopeful that Senator Eichelberger will find time comment here on his proposed "marriage protection" amendment.
Divorce - Oklahoma
The Oklahoma Court of Civil Appeals has upheld a dismissal of a divorce lawsuit by Cait O’Darling. C. O'Darling v. S. O'Darling, No. 106732, slip. op. (Okl. Ct. Civ. App. Div. I, Mar. 11, 2010) She had appealed a trial court's decision that she failed to present proof of her Canadian marriage to another woman. The lower court also ruled that even if she could document a valid marriage, the court had no authority to grant her divorce petition. Okl. Const., Art.2, §35(B) bars recognition of same-sex marriages in other states, and the court rejected petitioner's argument that it does not apply in her case. The appellate court did not reach the question of whether a trial court may deny a divorce petition when the petitioner has demonstrated a valid marriage. (press release, Alliance Defense Fund / FindLaw Courtside / Tulsa World)
Divorce - Texas
"The Texas Office of the Attorney General, represented by Texas Solicitor General James Ho, filed a reply brief March 12 in a Dallas same-sex divorce case, In the Matter of the Marriage of J.B. and H.B." (Texas Lawyer Blog)
Last year, Governor Bill Ritter signed into law HB 09-1260, establishing designated beneficiary agreements between non-married adults who register for them. (See law professor Nancy Polikoff's posts here and here.) The Act allows these individuals the protections of "laws relating to health care, medical emergencies, incapacity, death, and administration of decedent's estates." The Ft. Collins Coloradan describes how same-sex couples have benefited from designated beneficiary agreements. "While same-sex marriage may be a long way off for gay couples in Colorado [see its DOMA amendment], designated beneficiary agreements provide a handful of legal rights that are small steps toward equality, Lambda Center executive director Andy Stoll said."
Karen Golinski is a staff attorney for the 9th Circuit Court. She tried to enroll her same-sex spouse in her health insurance policy under the Federal Employee Health Benefits Program, but the Office of Personnel Management (OPM) blocked the enrollment. Alex Kozinski, the Court's chief judge, twice ordered OPM to let Golinski proceed with enrolling her spouse. He did so in his administrative capacity as an officer of the Court's Employee Dispute Resolution panel. OPM did not appeal his orders, yet it also did not allow Golinski to enroll her spouse. She then sued the OPM, seeking an order of mandamus against OPM to end its interference, and a preliminary injunction. OPM opposes the preliminary injunction, because "[a] judge acting pursuant to a limited grant of administrative authority to adjudicate grievances within the Judicial Branch cannot ... bind the other branches of government."
Thanks to California attorney Rick Xiao for alerting me to the filing and for sharing it with me. Rick is a site collaborator, and his contributions allow me to monitor the latest developments in cases like this one.
Update on yesterday's post: Voters have not rewarded LetNHVote.com for its campaign to reverse marriage equality in New Hampshire. According to one report, nearly two-thirds of towns and cities in the state either rejected or refused to consider the organization's proposal. (Gay Marriage Watch / updated here)
"Gay people seek the freedom to marry because that freedom to choose is essential to the principle of equal citizenship that is at the heart of democracy," Minter said. "LGBT people are calling on the court to live up to its democratic ideals by exposing the gap between the ideal of equality and our failure to reach it: that is the essence of democracy ... A majority cannot intentionally create an exception to equal protection without violating the constitution. We will not have democracy as long as the majority treats LGBT people as outsiders rather than as equal citizens with the right to belong or be different as others." (USC Law School News)
Out-of-state recognition - Maryland
Maryland Delegate Don H. Dwyer, Jr., R-Anne Arundel County, announced that he will introduce articles of impeachment against state Attorney General Doug Gansler for his advisory opinion on the validity of out-of-state, same-sex marriages.
Lillian Ladele was a registrar of births, marriages, and deaths for the London Borough of Islington. She considers homosexuality "sinful." She claims that her former employer discriminated against her on religious grounds after she expressed her unwillingness to register civil partnerships. Islington has a "Dignity For All" policy, and a senior Islington official found that accommodating her view represented discrimination against same-sex couples, in violation of the policy. She was disciplined and threatened with dismissal. InLadele v. London Borough of Islington,  EWCA Civ 1357, the Court of Appeals of England and Wales ruled that her former employer's action did not represent illegal discrimination against her. The Supreme Court having just rejected her appeal, she plans to pursue a remedy with the European Court of Human Rights. (Islington Tribune, cross-posted by Gay Marriage Watch)
Other developments abroad
"On Monday, Judge Felix Gustavo de Igarzabal of Buenos Aires reversed a decision which allowed two gay men to marry at the city's civil registry office on March 3. In his ruling the judge said no marriage took place “because of the absence of the institution’s structural elements,” in this case a man and a woman, and thus declared the act to be invalid." (Catholic News Agency, cross-posted by Gay Marriage Watch)
"Four same-sex couples became the first to marry Thursday in Mexico City under the new marriage equality law." (The Advocate, linking to Los Angeles Times)
Matt Coles, director of the ACLU's LGBT Project, offers the first part in series at Huffington Post, "The San Francisco Marriage Case: Possible Outcomes." Law professor David Levine has recently expressed his opinion on how Judge Walker could rule.
Maryland's House Judiciary Committee recently defeated legislation (HB 90) to preempt the expected opinion of the state Attorney General validating out-of-state marriages by same-sex couples. (The Maryland Reporter) Nevertheless, state Sen. Nancy Jacobs (R-Harford) has just introduced legislation (SB 1120) to stay the opinion pending review by the Maryland Court of Appeals or legislative action. (NBCWashington.com, cross-posted by Gay Marriage Watch) Jacobs is also co-sponsor of HB 90's companion in the state Senate (SB 852), and of a bill (SB 1097) for a super-DOMA amendment banning any legal recognition of same-sex couples.
Constitutional amendments - New Hampshire LetNHVote.com has led a campaign to reverse marriage equality in New Hampshire (Pam's House Blend), despite what supporters would consider a recent legislative setback. (The Union Leader) Its members have placed, or have tried to place, articles on New Hampshire town warrants for voters to approve this petition: "The citizens of New Hampshire should be allowed to vote on an amendment to the New Hampshire Constitution that defines ‘marriage.'" As Pam Spaulding explains, "warrant articles are sort of like town-level bills, and they may be submitted for consideration by the town meeting by simply gathering 25 or so signatures in support." (See also N.H. Rev. Stat. Ann. 669:2.) Many New Hampshire are holding their annual warrant elections this week. So far, 42 towns have approved the petition language, while 133 towns are expected to consider the issue. (The Union Leader, cross-posted by Gay Marriage Watch and Pam's House Blend)
"James J. “Jody” Scheske, who represents J.B., a Dallas-area gay man seeking to divorce his spouse, says the 5th Court of Appeals notified him it will hear oral argument April 21 in In the Matter of the Marriage of J.B. and H.B." (Texas Lawyer Blog)
Yesterday, Rep. Pete Stark, D-Calif., re-introduced the “Every Child Deserves a Family Act,” H.R. 4806 (previous bill, H.R. 3827). According to HRC Back Story, the legislation would use federal funding to encourage states to place foster and adoptive children with qualified LGBT parents, and to place LGBTQ youths in caring, supportive, foster or adoptive homes. "It comes at a time when the 30+ year ban on “gay adoption” in Florida is being seriously challenged and may be overturned in the Florida Supreme Court (see my post, for example), and when the leading experts in child welfare policy routinely advocate for inclusion of LGBT foster/adoptive families and adherence to 'best practices' when working with LGBTQ youth." (HRC Back Story)
On February 22nd, a Minnesota House committee held an informational hearing on three bills that would establish civil partnerships, out-of-state recognition, and marriage equality. No other hearing has been scheduled (Politics in Minnesota), and it's uncertain that legislators will vote on any of the bills. (WCCO.com) OutFront Minnesota predicts that "it will take 3 to 5 years" to pass a bill on marriage equality. (Minnesota Independent) Nevertheless, the Minnesota Family Council (MFC) expressed concern at a press conference that state Senator John Marty may succeed in gaining legislative approval of his marriage equality bill, SF0120. MFC president president Tom Prichard said that his organization would lobby for the strictest form of a super-DOMA amendment - one that bans any recognition of same-sex relationships. Marty, a candidate for governor, responded that he stands by his "commitment to equality. We can pass marriage equality legislation and sign it into law next year." (Minnesota Independent / Pam's House Blend)
Same-sex couples exchanged wedding vows today (Washington Post / LGBT POV / HRC Back Story), and Evan Wolfson explains what this remarkable development means for the national "freedom to marry." But Brian Brown, executive director of the National Organization for Marriage, offered a different interpretation. Brown warned that "it's not over" for a pending legal challenge to D.C.'s marriage equality law. (Christian Science Monitor). The case is Jackson v. D.C. Board of Elections and Ethics, Civ. No. 2010 CA 000740, slip op., (D.C. Super. Ct., Feb. 20, 2010), aff'd, No. 10-CV-177 (D.C. App. Ct., Feb. 26, 2010), emergency application for stay denied, No. 09A807 (U.S. Mar. 3, 2010). I expect the Jackson plaintiffs to ultimately have the U.S. Supreme review their demand for ballot qualification of the D.C. Marriage Initiative of 2009. (I hope that I am wrong.) I am still plodding along with my compilation of a a procedural history of the case. Adoption - Florida
NPR has again profiled one of three Florida cases in which same-sex couples have secured rulings a state law [Fla. Stat. §63.042(3)] banning their adoptions. (03/09/10 All Things Considered) The profiled case involves Martin Gill and his partner, who seek to adopt two foster-care brothers. ACLU attorney Rob Rosenwald represents Gill. (Click here for briefs.) NPR reports that in Rosenwald's view, the "case has succeeded so far because it focuses on one constitutional issue: a violation of equal protection rights of both children and gay adopting parents." He said that it violates the state constitutional right of "[t]he children, in that it permanently denies them the chance to have a permanent home with their gay caretaker. So they will forever be in a state of foster care. It violates the rights of the parents by treating them differently than their straight counterparts without any rational basis.'" [In re Matter of Adoption X.X.G and N.R.G., No. 3D08-3044 (Fl. Ct. App. 3d Dist.)]
The Civil Partnership Bill of 2009 has been referred to a committee of Ireland's Dáil, or House of Representatives. According to an "explanatory memorandum," the bill would "provide an extensive package of rights, obligations and protections for same-sex couples who register as civil partners." It would also establish "a redress scheme for cohabitants and recognition of cohabitant agreements." The Sunday Business Postreports on lobbying by religious officials for a religious liberty exemption. The desired exemption would cover public officials who, for religious reasons, refuse to conduct civil partnership ceremonies. Dermot Ahern, the Minister for Justice, opposes the exemption. He said that "there is no basis for providing a right to discriminate against a class of persons on the grounds of freedom of religion or conscience." He also warned of "unintended consequences" from the proposed exemption, identifying examples of many other services public employees may be entitled to withhold on religious grounds.
Religious liberty exemption - D.C.
Mirror of Justice is a blog devoted to Catholic legal theory. Discussion continues there about the recent decision by the D.C. Archdiocese to discontinue eligibility for spousal benefits among employees of Catholic Charities. Law professor Rob Vischer asks whether an alternative to a religious liberty exemption could satisfy an organization like Catholic Charities of D.C.. It's exactly the kind of alternative that law professor John Culhanethought was available.
DOMA - Gill v. OPM
Gay & Lesbian Advocates & Defenders (GLAD) represents same-sex couples who are challenging Section 3 of the federal DOMA, which limits recognition of marriage to opposite-sex couples. GLAD has started to post firsthand accounts of the harms to married, same-sex couples.
Renee Harmon and her former partner, Tammy Davis, ended their relationship of 19 years, after Davis gave birth to twins. "Harmon says Davis cut off Harmon's contact with the children, prompting Harmon to sue in Wayne County Circuit Court in a long-shot bid to win joint custody. It's a battle she is prepared to take to the Michigan Supreme Court in an effort to secure joint custody rights for nonbiological, unmarried partners, gay or straight ... The first hurdle for her lawyers will come March 22, when they try to persuade Judge Kathleen McCarthy that Harmon has legal standing to sue." (Citizen-Times, cross-posted by ADF Alliance Alert, and Detroit Free Press) Law professor Nancy Polikoff discusses the case here.
Lisa Miller remains the subject of an arrest warrant, having disappeared with the child she once shared with her former civil union partner, Janet Jenkins. A Vermont family court judge issued the arrest warrant after holding Miller in contempt for failure to comply with a court order to surrender the child to Jenkins, to whom the court transferred permanent custody. LifeSiteNews.com, a Christian news service, reports that "[t]he daughter of ex-lesbian Lisa Miller appeared to have suffered emotional trauma following forced visits with Miller's ex-partner, according to sworn testimony submitted to a Vermont court ... Clinical Therapist Sylvia Haydash, who had two clinical sessions with Isabella and observed her for an hour on another occasion, concluded that the visits were doing serious harm to the child, causing anxiety, renewed bed-wetting, and general psychological regression." To place this testimony in context, I would welcome comment from readers who are following the details of the case.
It will take me more time than I expected to complete the procedural history. As a result, I don't know if I can avoid delays in updating this site. My limitations have an arguably distinguished pedigree, though I would not otherwise compare myself with U.S. presidents. Lyndon Johnson said of Gerald Ford that "he couldn't chew gum and walk straight at the same time." While I am less prone to trip over stairs than Ford, I find myself unable to work on two demanding tasks - more or less at the same time - with equal levels of energy and concentration.
Here's the latest update:
Marriage equality v. religious liberty exemption - D.C.
Upon taking effect, D.C.'s marriage-equality law marks what law professor John Culhanecalls a "another milestone on the superhighway to full equality." (Freedom to Marry links to the Washington Post's video coverage of the historic day.) But he also discusses a carefully timed decision by the Archidiocese of D.C. to ban spousal benefits for employees of Catholic Charities - a decision that its former chief operating officer opposes. (Washington Post) Before the law took effect, Catholic Charities had announced that it would end its foster care program in the District, allegedly to avoid the law's requirement that it provide foster care and adoption services equally to same-sex and opposite-sex couples. (Washington Post) Culhane faulted the latest retrenchment as a "publicity stunt," because Catholic Charities had alternatives to ending spousal benefits. For other examples of alternatives, see letters to D.C. Archbishop Donald Wuerl that I link to here.
Without considering the alternatives, law professor Robert J. Araujo tries to defend the Archdiocese's decision. He finds that, under Church doctrine, granting spousal benefits provides merely a means to an end - the defining goal of promoting "traditional" marriage. The Church would unacceptably risk compromising its identity if it continued offering the benefits - or, presumably, if it reached some other accommodation. To preserve its identity over "traditional" marriage, the Church must deny heath care coverage, and other important benefits, to heterosexual spouses of Catholic Charities employees. That 's an odd position, but, Araujo would claim, it's the inevitable result of the marriage equality law.
One blogger says that it's "hard to spin religious discrimination as a moral principle." The difficulty has not been a deterrent. Sister Anne Flanagan invites comparison between D.C. Catholic Charities with its Chicago counterpart in the era of segregation. (Chicago Tribune) Chicago Catholic Charities refused to follow the city's demand of racial segregation because, she says, doing so would have undermined the Church's identity. Do Catholics agree that the Church's admirable, if uneven,* history of opposing racial segregation provides just the support they need for supporting discrimination against same-sex couples?
The Washington Post has a revealing article on the incremental strategy that marriage-equality advocates successfully pursued. The strategy involved more than timing introduction of legislation after Obama's election, but before the 2010 election. It also involved adding domestic partner benefits since 1992, when a domestic partnership law was first adopted, until the law became an "all-but-marriage" law. All-but-marriage laws are - by design - inherently unstable, subject to legislative action in favor of marriage equality, or to the epic legal battle over Prop. 8 in the Perry case.
Perry v. Schwarzenneger
U.S. Magistrate Joseph Spero has ordered "several gay rights groups that campaigned against California's 2008 same-sex marriage ban to furnish some internal memos and e-mails to lawyers for the measure's sponsors." (AP)
At an address to the Orange County Equality Coalition, constitutional scholar and law school dean Erin Chemerensky said that Perry plaintiffs have not brought their challenge prematurely - or so a blogger in the audience reports.
Marriage equality legislation / out-state recognition - Maryland
Last week, "Maryland Senate’s Judicial Proceedings Committee had hearings scheduled on one bill that would legalize gay marriage in Maryland and another that would invalidate a recent attorney general opinion and prohibit the state from recognizing same sex marriages authorized by other states." (AP, cross-posted by Gay Marriage Watch; see also Advocate.com and the Baltimore Sun)
Constitutional amendments - New Hampshire and Iowa
Legislators in New Hampshire and Iowa failed to gain legislative approval of constitutional amendments that would reverse marriage-equality if also adopted by voters. The proposed amendment in Iowa now appears to have died in the current legislative session, even if "proponents haven't given up on trying to force a debate." (Sioux City Journal) New Hampshire Public Radio reports that more than 100 towns will consider an article urging legislators to let citizens vote on an amendment. Proponents of the articles identify the towns here. Their campaign has led to organized opposition. One opponent of Sugar Hill, New Hampshire, claims that "three or four dozen people from area towns started meeting regularly to defeat the articles."
TheStar.com reports that a same-sex couple in Indiana will not appeal a ruling that nullifies their marriage but bars a divorce. (cross-posted by Gay Marriage Watch)
A same-sex couple in Santa Cruz, California, has settled their legal dispute over custody. The mother who gave birth to twins tried to prevent her former partner from claiming parental rights. (NCLR Out for Justice / Santa Cruz Sentinel)
The Louisiana Attorney General has requested reconsideration in a 5th Circuit ruling that requires the state to recognize a New York court decree of adoption by gay parents. (AP / Times-Picayune / Lambda Legal press release) The case is Adar v. Smith, No. 09-30036 (5th Cir., Feb. 18, 2010).
The European Court of Human Rights has ruled that Poland's government may not discriminate against a man who sought to remain in the home of his deceased partner. (Financial Times, cross-posted by Gay Marriage Watch)
I expect to catch up with legal news and commentary in the next few days. In the meantime, I am working on this document:
Jackson v. District of Columbia Bd. of Elections, Civ. No. 2009 CA 008613 B, slip. op. (D. C. Super., Jan. 14, 2010), petition for cert. filed, No. 10-CV-20 (D.C. Ct. App. Jan. 15, 2010) Procedural History Compiled By Michael Ginsborg, MLS Prop. 8 and the Right to Marry First Update: March ___, 2010
On March 2nd, Chief Justice Roberts deniedan application for an emergency stay of the D.C. Religious Freedom and Civil Marriage Equality Amendment Act of 2009. Plaintiffs sought the stay pending a forthcoming petition for review of a judgment by the D.C. Court of Appeals in Jackson v. D.C. Board of Elections and Ethics, Civ. No. 2010 CA 000740, slip op., (D.C. Super. Ct., Feb. 20, 2010), aff'd, No. 10-CV-177 (D.C. App. Ct., Feb. 26, 2010). The issue involved a proposed referendum on the marriage equality law before it took effect March 3rd. Plaintiffs - a group of ministers - challenged a ruling by the D.C. Elections and Ethics Board that disqualified the referendum. In re Referendum on the Religious Freedom and Civil Marriage Equality Amendment Act of 2009, (DCBOEE, Feb. 4, 2010). On February 5th, plaintiffs petitioned the D.C. Superior Court to review the Board's decision and issue a writ compelling the Board to accept the referendum. They also filed a motion for a preliminary injunction to keep the marriage equality law from taking effect. D.C. Superior Court Judge Brian Holeman denied the motion; plaintiffs appealed; but the D.C. Court of Appeals upheld Holeman's order. Plaintiffs exhausted their alleged remedy for injunctive relief when Chief Justice Roberts denied their emergency application. And this case ended with Robert's decision, because a court could decide the referendum question only if plaintiffs succeeded at staying the marriage equality law.
If the same plaintiffs in a related case succeed, a court order would require the D.C. Elections Board to accept The Marriage Initiative of 2009, limiting marriage to heterosexual couples. The case arises from a decision [insert link] by the Board to disqualify the initiative. It raises three questions: (1) Did the D.C. Council have authority under the Charter Amendments Act to prohibit initiatives that violate the Human Rights Act? (2) If passed, would the Marriage Initiative violate the Human Rights Act by discrimination on the basis of sexual orientation? (3) Is there an implied exclusion of initiatives that, if passed, would violate existing statutes?
I am compiling a procedural history of this "initiative" case - now before the D.C. Court of Appeals - for two reasons. First, voters will have opportunity to overturn D.C.'s marriage equality law if plaintiffs prevail. Plaintiffs have favorable odds of success if the case reaches the Supreme Court. Chief Justice Roberts found that arguments by petitioners in the "referendum" case "have a certain force," even if he declined to consider their merits. The "referendum" petitioners make the same arguments in the initiative case. Moreover, Roberts said that "petitioners will have the right to challenge any adverse decision [in the initiative case] through a petition for certiorari in this Court at the appropriate time." That prospect strikes me as likely.
Second, as a law librarian, I see the need to keep relevant filings in an accessible place, as websites that link to them today may not link to them tomorrow.
[update: "The Chief Justice, in denying an emergency stay filed by opponents of gay marriage, issued a three-page opinion, found here, explaining his action ... Even while saying a delay was not now legally justified, Roberts noted that the challengers may still try to undo the new D.C. marriage provision by attempting to put it on the ballot asking local voters to repeal the law. That separate maneuver is now under review in the D.C. Court of Appeals, Washington’s highest local court." (SCOTUS Blog. See also Leonard Link) The "separate maneuver" involves the Marriage Initiative of 2009, which the D.C. Elections and Ethics Board disqualified as a violation of the D.C. Human Rights Act. The D.C. Superior Court upheld the Board's decision [Jackson v. District of Columbia Bd. of Elections, Civ. A. No. 2009 CA 008613 B (D. C. Super., Jan. 14, 2010)], and plaintiffs appealed to the D.C. Court of Appeals. Roberts states that with respect to this case, "petitioners will have the right to challenge any adverse decision through a petition for certiorari in this Court at the appropriate time."
AP reports on division among African-Americans over marriage equality in D.C., as Bishop Harry Jackson, a black pastor, has led the opposition. While he is the most outspoken of plaintiffs challenging the new law, plaintiffs include Rev. Walter Fauntroy, a 1960s civil rights leader. According to AP, local, marriage equality supporters have made "references to interracial marriage and Martin Luther King." Although AP overlooks Fauntroy, he told the Washington Post that "[e]very child needs to be bonded to a man and a woman" and that " the survival of the species is at stake."
In December, D.C. evangelical Joyce Little failed in her pro se attempt to prevent the D.C. Council from voting on the marriage equality legislation. (DCist.com) She also tried to propose an initiative to repeal the new law, but, on March 1st,the D.C. Elections and Ethics Board rejected it. (Thanks to a helpful reader for alerting me to the Board's decision.)