Saturday, May 22, 2010

Hiatus from my usual schedule of blogging

I regret that, for at least several weeks, I will lack time to update this site on a regular basis. I face two challenges. First, I expect to publish an article on a subject I have been thinking about for 20 years. (I can't say more about the article than that it concerns the professional shortcomings of law librarians - and that it takes inordinate time to prepare.) Second, site collaborator Rick Xiao and I are trying to decide on the appropriate scope of the enterprise that maintaining this site represents, as I lack enough time to achieve ambitious goals identified here and here. I am, of course, grateful to Rick; to a kind supporter, Kathleen Perrin; and to a wonderful contributor, law professor John Culhane. I am also grateful to everyone who has commented on posts.

Saturday, May 15, 2010

Legal news this month

Domestic partnerships

On May 13th, "the Minnesota Senate overwhelmingly passed a bill amending the state’s end of life statutes to add domestic partners to the list of individuals who may purse a wrongful death claim and who may make decisions about the disposition of remains."(HRC Back Story) Governor Tim Pawlenty has said that he would veto the legislation. ( Project 515 has advocated for the legislation. The group takes its name from the number of state laws that discriminate against same-sex couples and their families.

Religious liberty exemption

May marriage commissioners in Canada's province of Saskatchewan claim a religious liberty exemption from performing marriage ceremonies for same-sex couples? The Court of Appeal heard oral arguments this week on the constitutionality of legislation that would confer this exemption, either for all marriage commissioners, or for just those who were commissioners in 2004 (or rather 2005?), when the country's marriage-equality was adopted. (Religion Clause / Regina Leader-Post / CBC News) Law professor John Culhane is among many who object to letting public officials use their offices to carve out exceptions to marriage equality. Culhane has recommended one means of accommodating American marriage license officials who say it violates their religious faith to issue marriage licenses to same-sex couples. (Prop. 8 and the Right to Marry)

The Court's heard a suggestion of a different form of accommodation, suited to the circumstances of the province's marriage commissioners, who perform marriage ceremonies. It involves a "system where couples would submit a form requesting a marriage commissioner and one would be sent to perform their ceremony ... Egale Canada, which advocates for gays and lesbians, said same-sex couples wouldn't face rejection in such a system and marriage commissioners could also be accommodated." ( Apparently the proposal would not apply to all couples seeking to marry. If limited to same-sex couples, doesn't the separate method still give state sanction to an administrative quarantine for these couples, and to associated stigma? "Nathan Seckinger of the GBLUR Centre for Sexuality and Gender Diversity [said that] 'in the end, it doesn't address the deeper concern for us, which is why these people want the right to discriminate against us in the first place.'" (Vancouver Sun)

Perry v. Schwarzenneger

"The Courage Campaign has launched Testimony: Equality On Trial, in which stars reenact the testimony given by the plaintiffs in California's Prop 8 trial ... The Courage Campaign invites supporters of marriage equality to download trial scripts and upload their own reenactments to the Equality On Trial site." (, cross-posted by Freedom to Marry. See also the Prop. 8 Trial Tracker and Wall Street Journal law blog.) "Academy Award-winning actor Marisa Tomei helped the Courage Campaign kick off 'Testimony: Equality on Trial'." (Prop. 8 Trial Tracker)

"ADF attorney Jordan Lorence appeared on Freedom’s Ring with Alan J. Reinach to discuss the Cal. marriage trial in Perry v. Schwarzenegger. | MP3 Audio -13:32 mins" (ADF Alliance Alert)

Marriage equality - Iowa - Gartner v. Newton

"A lesbian couple married in Des Moines last year has filed a lawsuit against two state health department officials, after the department refused to name both women on their daughter’s birth certificate. Heather Lynn Martin Gartner, 38, and Melissa McCoy Gartner, 39, filed the Polk County claim on behalf of their second child, who was born in September ... The Iowa Department of Public Health rejected the couple’s request in March, according to the lawsuit filed in Polk County District Court, on grounds that Melissa had not legally adopted Mackenzie and was not biologically related." (Des Moines Register) "Camilla B. Taylor, an attorney with Lambda Legal ... who was one of three attorneys to file the lawsuit on behalf of the Gartners and their daughter. [She said,] 'I think this is just an error that will be cleared up shortly. Every other state that has allowed same-sex couples to marry or enter into civil unions has applied the spousal presumption of parentage equally to the children of same-sex couples. So, to my knowledge, this has never happened before'... 'Varnum makes it clear that children of same-sex couples are entitled to birth certificates naming both spouses as their parents — just as children of different-sex couples are entitled to those birth certificates,' Taylor said in reference to the landmark Iowa Supreme Court decision from April 2009." (Iowa Independent. See also for press statements by a Department of Public Health official.)

Divorce - Rhode Island

On May 4th, the Rhode Island House Judiciary Committee heard testimony on HB 7990, which would allow the state to divorce same-sex couples, even though it bars them from marrying. (The Provost Journal)


On May 5th, reported on the legal obstacles same-sex couples may face if they seek divorce in a state that does not recognize marriage equality.

Greene v. County of Sonoma

Greene v. County of Sonoma et al., complaint, No. SPR-81815 (Cal. Sonoma County Super. Ct. filed Mar. 22, 2010)

The New York Times reports on the horrors the aging plaintiff in this case suffered when a California county agency separated him from his partner following his partner's injury from an accident.

Marriage of transgender partner - Texas

"Texas Attorney General Greg Abbott has been asked to weigh-in on whether or not a marriage license can be issued to a couple when one of the partners is transgendered." (Texas Capitol Annex) The El Paso Times links to a request for the opinion by El Paso County Jo Anne Bernal. The Dallas Voice also reports on the request.


"The Advocate reports on an immigration reform proposal that is being circulated by the Democratic leadership in Congress. Under the proposal, which could form the basis of an immigration reform bill, U.S. citizens and legal residents would be allowed to sponsor their same-sex partners for residency, ending long-standing discrimination against same-sex couples." (Marriage Equality New York)

super-DOMA - North Carolina

"Sen. Jim Forrester, R-Gaston, has filed a bill [SB 1156] to change the N.C. Constitution to ban same-sex marriages. The bill would provide for a referendum to ratify the constitutional amendment should lawmakers approve it. The bill would recognize 'marriage between a man and a woman' as the only domestic legal union in North Carolina." (05/15/10

Developments abroad - Argentina and England

Earlier this month, "Argentina’s lower house passed a marriage equality bill, paving the way for the nation to become the first in Latin America to legalize marriage for same-sex couples ... If the bill passes in the Senate, Argentina would become the first nation in Latin America and would join Canada as the second nation in the Americas to legalize marriage." (05/06/10

A gay couple in England is suing the owner of a bed-and-breakfast inn for refusing service on the basis of their sexual orientation. (Mail Online)

Wednesday, May 12, 2010

Minnesota DOMA challenged: Benson v. Alverson

Benson v. Alverson, complaint, No. ____ (Minn. Hennepin County Dist. Ct. May 7, 2010)

On May 7th, three same-sex couples in Minnesota - and a couple's baby - filed a lawsuit in to invalidate the state DOMA. (Minn. §§ 517.01 & 517.03, subd. 1(a)(4), as amended by Act of June 2, 1997, No. 203, Art. 10, §§ 2-3) They also seek an injunction requiring the Hennepin County registrar to issue marriage licenses to otherwise qualified, same-sex couple applicants, including the plaintiffs. They allege state constitutional violations of due process, equal protection, freedom of conscience, freedom of association, and the single-subject rule for statutory enactment.

Marry Me Minnesota sponsors the costs of plaintiff representation. I am not sure why they claim that the case challenges Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), appeal dismissed for want of a substantial federal question, 409 U.S. 810 (1972). Unlike Baker, Benson involves only state constitutional questions.

For news about the case, see, The Minnesota Independent, The Star-Tribune, and AP.

Monday, May 10, 2010

Recent legal news and commentary

Lewis v. Harris II

Garden State Equality and five other organizations have filed an amicus brief in Lewis v. Harris II to document the nature and extent of harm children suffer because their same-sex parents cannot marry. They also maintain that "no legitimate state purpose" for continued marriage inequality under New Jersey's civil union law can justify such pervasive and profound harm to children. (Garden State Equality press release /

Religious liberty exemption - Canada

On May 13th, "the Saskatchewan Court of Appeal in Regina will consider whether marriage commissioners are within their Charter rights to refuse to conduct ceremonies that offend their religious beliefs. While some other provinces have allowed for exemptions since same-sex marriage became legal, this will be the first time that a court will evaluate if that refusal meets the standards of the Canadian Charter of Rights and Freedoms, so it could have ramifications for the rest of the country." (National Post / cross-posted by ADF Alliance Alert)

Perry v. Schwarzenneger

Equality Forum gave law professor John Culhane five minutes for an interview last week with David Boies, one of the attorneys representing the Perry plaintiffs. Boies told Culhane that he expects to "win under rational basis." That is, he expects the U.S. Supreme Court to rule that no legitimate state interest provides a reason for same-sex marriage bans. In Boies' view, the Court can find no legitimate state interest for bans that significantly harm same-sex couples and their children, when lifting them would not in any way harm married, opposite-sex couples and their children. ( LGBT advocacy groups, if allowed to intervene, would have limited the "rational basis" test to the unique circumstances of Prop. 8's adoption - increasing odds that the 9th Circuit could issue a narrow ruling on just Prop. 8. (Prop. 8 and the Right to Marry)

Gill v. OPM

"According to two sources who covered the argument in Gill v. OPM, GLAD's challenge to Section 3 of DoMA (the section barring federal government recognition of same-sex marriages), Judge Joseph Tauro seemed from his questions to be applying a rational basis standard for evaluating DoMA's constitutionality." (hunter of justice)

Out-of-state recognition / adoption

[T]he federal government doesn't recognize same-sex marriage, nor do the vast majority of states, including Pennsylvania. Even with a valid out-of-state marriage license, gay and lesbian couples in those states face uncertainty, extra legal bills and inevitable rebuffs that straight couples avoid ... For some couples, among the most galling problems is trying ensure that both are legally recognized as parents of their children. Many states allow second-parent adoption for same-sex couples, which addresses this situation, but many other states do not." (The Daily Transcript)

Sunday, May 9, 2010

Prop. 8 proponents alleged to use latest discovery dispute in Perry case to try to distance themselves from anti-gay prejudice

Plaintiffs' opposition to Prop. 8 proponents' and Dr. "William" Tam's motions for reconsideration to strike, Perry v. Schwarzenneger, No. 09-cv-2292 (N.D.Cal. May 6, 2010)

Plaintiff-intervenor City and County of San Francisco's opposition to Prop. 8 proponents' and Dr. Tam's motion to strike / reconsider
, Perry v. Schwarzenneger, No. 09-cv-2292 (N.D.Cal. May 6, 2010)

Declaration of Therese M. Stewart in support of plaintiff-intervenor City and County of San Francisco's opposition to Prop. 8 proponents' and Dr. Tam's motion to strike / reconsider, Perry v. Schwarzenneger, No. 09-cv-2292 (N.D.Cal. May 6, 2010)

(Thanks to Kathleen Perrin for alerting me to these filings and posting the links.)

Parties in Perry v. Schwarzenneger continue to dispute the scope of First Amendment protection from compelled disclosure of private communications to develop campaign strategy and messaging. The latest version of the dispute concerns whether Prop. 8 proponents, and their recalcitrant witness, Dr. Hak Shing "William" Tam, can now claim a First Amendment privilege as reason to strike from the trial record campaign communications by Tam and other Prop. 8 supporters, and testimony about the communications.

Here's the context. In December, a 9th Circuit panel ruled that Prop. 8 proponents - the "defendant-intervenors" in the case - are entitled to a limited First Amendment privilege for internal campaign communications. "Perry I," 91 F.3d 1147, 1165 n.12 (9th Cir. 2010) In that case, Prop. 8 proponents appealed discovery orders requiring them to give plaintiffs internal campaign communications between proponents and any third parties, including political consultants. Judge Walker had limited the privilege to just the "the identities of rank-and-file volunteers and similarly situated individuals." Proponents appealed the orders, claiming a First Amendment privilege for all of their confidential communications with third parties. They argued that participants in initiative campaigns would otherwise experience a "chilling effect" on their political speech and association if they know that their campaign communications may be discoverable in lawsuits. A 9th Circuit panel limited the First Amendment privilege to "private, internal ... communications among the core group of persons engaged in the formulation of campaign strategy and messages."

To comply with this ruling, Magistrate Judge Joseph Spero applied proponents' First Amendment privilege to "an extremely broad core group that listed 25 individuals and their assistants, employees from ten consulting firms, and any and all 'volunteers who had significant roles in formulating strategy and messaging.'" (Plaintiffs' opposition, at 4) Proponents did not present evidence that Dr. Tam, or other agents of obvious anti-gay bigotry, belonged to the core group of persons eligible for the privilege. In fact, they abdicated any ties to Dr. Tam and other Prop. 8 supporters whose hostile, anti-gay messages could support plaintiffs' claim that proponents used or abetted prejudice to influence Californians to vote for Prop. 8.

After the trial, No-on-8 nonparties appealed discovery orders compelling them to give Prop. 8 proponents their internal campaign communications with Equality For All coalition partners. The same 9th Circuit panel denied review of the appeal, but clarified its earlier holding: a core group of persons subject to the First Amendment privilege can include persons who belong to more than one organization. Perry II, Perry v. Schwarzenegger, No. 10-15649, slip op. (9th Cir. Apr. 12, 2010) (hunter of justice)

The No-on-8 groups, facing the risk of a contempt citation, decided to turn over the campaign communications they had been ordered to provide proponents. But Dr. Tam and proponents recently filed motions to exclude from the trial record campaign communications, and related testimony, that they had not, until now, objected to as privileged under the First Amendment. The communications reveal the nature of the relationship between the proponents and Prop. 8 allies who perpetrated the most hateful messages about gays. Proponents and Dr. Tam do not want Walker to consider evidence about the ways in which proponents and anti-gay groups worked together.

Proponents and Dr. Tam now argue that Judge Walker must reconsider the discovery orders by Spero and him that required them to produce the communications. They claim that, in light of Perry I and Perry II, these orders have "clear errors." Walker and Spero allegedly mistook the Perry I holding to mean that the First Amendment protects communications internal to just one organization - / Yes on 8, and not also private communications between and members of allied organizations. But the 9th Circuit rulings, they say, extend the First Amendment privilege "to those persons who come together 'to advance one's shared political beliefs,' including "myraid social, economic, religious and political organizations." Perry I, 591 F.3d at 1158, 1162 (Defendant-intervenors' motion for leave to strike, at 2, and motion to strike)

Prop. 8 proponents have already appealed Perry I to the U.S. Supreme Court, alleging that it unconstitutionally limits First Amendment privilege to a "core group" of persons who developed campaign strategy and messaging. (hunter of justice) Law professor Nan Hunter has faulted the Supreme Court petition as "weak." Petitioners asked the Court to place the petition on hold pending its decision in Doe v. Reed. But now Prop. 8 proponents appear to present the argument that the privilege holding in Perry I - as clarified by Perry II - has a much broader scope than what they represent in the Supreme Court petition. They understand the holding to effectively eviscerate the idea of a core campaign group as a subject of First Amendment privilege. They now claim, in their motion to strike, that the First Amendment protects from discovery "communications regarding the exchange of ideas and/or formulation of messaging and strategy among persons who associate during the Proposition 8 campaign for the common purpose of that measure" (Defendant-intervenors' motion for leave to strike and motion to strike, at 9)

Plaintiffs and plaintiff-intervenors argue that Walker and Spero did not err in their January orders compelling proponents to produce the now contested campaign communications. Even if they did err, their error was far from clear, because proponents never furnished evidence that these communications were private communications among a core group of persons - persons with decision-making authority to develop campaign strategy and messaging. "[E]ven though (as proponents now finally and belatedly admit but had previously denied) is linked to the messages disseminated by other groups, including messages designed to promote stereotypes about, and prejudice against, gay and lesbian individuals, and even though the evidence shows sometimes knew of, encouraged or acquiesced in, and even funded the distribution of such messages, these facts are not enough to establish that its communication with these groups fall within the [First Amendment] privilege exception to disclosure." (Plaintiff-intervenors' opposition, at 10)

Saturday, May 8, 2010

Update on DOMA challenge in Bishop v. USA: the Alliance Defense Fund joins the defense

Bishop v. USA, No. 04-cv-00848 (N.D.Ok.)

Plainitffs' objection to motions for pro hac vice admission of ADF attorneys, filed 03/23/10

Reply to plaintiffs' objection to motions for pro hac vice admission of ADF attorneys, filed 03/23/10

I could have titled this update, "Round Up The Usual Suspects," because that is what defendant Sally Howe Smith has done in a lawsuit challenging sections 2 and 3 of the federal DOMA. Howe is the Tulsa County Clerk who denied a marriage license to plaintiffs Mary Bishop and Sharon Baldwin, on the grounds that Oklahoma's constitution prohibits same-sex marriages. Howe's counsel has been David Iski, Assistant Tulsa County District Attorney. In March, Iski asked the Court to admit, as out-of-state, co-counsel, four attorneys of the Alliance Defense Fund. On April 1st, the Court granted his request. The ADF attorneys are Brian Raum, Dale Schowengerdt, Jim Campbell, and Austin Nimocks. See also the March 30th press release by the Cimarron Alliance Foundation.

May 6th hearing on the motion for summary judgment in Gill v. OPM

Gill et al. v. Office of Personnel Management, No. 1:09-cv-10309-JLT, (U.S.Dist.Ct., D. Mass.) (case documents)

On May 6th, Massachusetts District Court Judge Joseph L. Tauro heard oral argument on a motion for summary judgment by plaintiffs seeking to invalidate section 3 of the federal DOMA. Section 3 (codified at 1 U.S.C. § 7) excludes married, same-sex couples from over 1000 benefits and protections of federal law that are available to married, opposite-sex couples. Representing the plaintiffs, Mary Bonauto advanced three reasons why they are entitled to summary judgment:
"1) by singling out only the marriages of same-sex couples, DOMA violates the equal protection clause of the United States Constitution; 2) DOMA represents an unprecedented intrusion of the federal government into marriage law, which for 230 years has been legislated by states; and 3) by denying federal protections to families, DOMA burdens the marriages of same-sex couples and their right to maintain family integrity." (05/07/10 GLAD Blog)
Department of Justice attorney W. Scott Simpson defended the law at the hearing, while acknowledging that the Obama administration opposes it as a policy.

Media articles address the equal-protection arguments by Bonauto and Simpson (see links to articles at the 05/06/10 GLAD press release), even though the "federal intrusion" question will return to the forefront later this month in a parallel case brought by the state of Massachusetts. Bay Windows may have the most detailed report on the equal-protection arguments.

Different constitutional tests determine whether a law violates the 14th Amendment's guarantee of equal protection. Under the rational basis test, a law can single out a minority for unequal treatment, if any reasonably conceivable facts provide a reason for the state to do so, and the state has some other reason than moral disapproval of the minority. However, a higher standard determines whether such a law can survive constitutional review under a "strict scrutiny" test. If, among other things, the minority has a history of discrimination, and has been politically powerless to remedy it, then the state must have a compelling reason for treating the minority unequally, and the unequal treatment must be narrowly tailored to its goal.

Judge Tauro focused on whether section 3 passes constitutional review under the rational basis test. (The Advocate) Simpson argued that it does:
"He said Congress had a legitimate rationale to pass the federal law 14 years ago, given that some states [such as Hawai'i] were beginning to consider legalizing same-sex marriage. DOMA, he said, maintains the status quo -- marriage reserved exclusively for heterosexuals -- and prevented the federal government from having to keep track of which states had legalized gay marriages and which had not." (Boston Globe)
Is the federal government challenged over the fiscal and administrative costs of legal bookkeeping it would allegedly need, but for DOMA? "We’re not talking about mom-and-pop operations here," Bonauto replied, "We’re talking about the federal government." (NY Times) Of course, without DOMA, the federal government would not need to tally which states do and do not allow same-sex marriages. It would simply treat all married couples equally. Bonauto also relied on DOMA's legislative history to show that Congress adopted the law to express moral disapproval of homosexuality - an illegitimate reason for the law's unequal treatment of married, same-sex couples. (Christian Science Monitor)

Simpson claimed another reason for restricting benefits and protections to opposite-sex marriages: the restriction allows the federal government to recognize the "status quo" in the 45 states that ban same-sex marriages. Bonauto said that it "upended" the status quo because until DOMA the federal government had always deferred to exclusive state authority over marriage. Tauro demanded that Simpson "point to an incident" when the government assumed such authority. "It’s true," conceded, "that, up until DOMA, the federal government has "simply followed the states’ definition of marriage."(Bay Windows)

(Law professor Nan Hunter comments on DoJ's application of the rational basis test here.)

The Perry case has received disproportionate attention in mainstream and social media, a tendency that this site has been captive to. But Gill v. OPM will have an impact no less sweeping if plaintiffs prevail. The National Law Journal reports that it is "a carefully planned case" that "could be the gay marriage test with the greatest national impact."

Thursday, May 6, 2010

Revisiting what Prop. 8 proponents want to exclude from evidence in the Perry case, and why

I have yet to catch up with today's news about oral argument in Gill v. OPM, a case I consider no less groundbreaking than Perry (and more likely to succeed.) I ask your forbearance as I revisit a question about Perry I raised last week. not just because my initial comments fell far short of the mark, but because my corrections, informed by the latest filings,* will help me focus on what's at stake in the latest discovery dispute. In a subsequent post, I will hazard my guess that the dispute still has significant potential to blow up and cause further delay.

*Thanks to Kathleen Perrin for her timely update on these oppositions to Prop. 8 proponents' motions to strike content from the trial record:

Wednesday, May 5, 2010

Oral argument yesterday in D.C. appellate court case on ballot initiative to overturn marriage equality law

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., Jan. 15, 2010, No. 10-CV-20 (D.C. Ct. App.)

The Alliance Defense Fund offers the public an mp3 file of yesterday's oral argument (ADF Alliance Alert). GLAA Forum also has an mp3 file (GLAA Forum), and links to the brief of the District of Columbia. Perhaps the best summaries can be found at GLAA Forum, Washington Blade, and The Blog of Legal Times. For other summaries, read the AP, Metro Weekly, and JURIST. Journalist Karen Ocamb takes notice of a political aspect of the case - that the "political conservatives and Religious Right are increasingly using the theme of “the people’s right to vote.." (LGBT POV)

Tuesday, May 4, 2010

Law professor Arthur Leonard: "N.Y. Court of Appeals Rules in Two Lesbian Co-Parent Cases"

Read law professor Arthur Leonard's summary and assessment of today's rulings (here and here) by the New York Court of Appeals. (Leonard Link) The New York Times reports on the rulings, with comments by law professor Nancy Polikoff, and The New York Law Journal also has an article.

Monday, May 3, 2010

Oral argument tomorrow in D.C. Marriage Initiative case

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., Jan. 15, 2010, No. 10-CV-20 (D.C. Ct. App.)

Oral argument will occur tomorrow at 10 a.m. in a D.C. appellate case involving the disqualified Marriage Initiative of 2009. (ADF press release / D.C. Court of Appeals calendar) It appears likely to reach the U.S. Supreme Court. Plaintiff-proponents of the initiative were also Supreme Court petitioners who, in March, tried to keep D.C.'s marriage equality law from taking effect, pending the Court's review of decisions to disqualify a referendum on the law. Chief Justice Roberts denied the petition. He did not rule on the merits of the argument by petitioners, but he found that it "has some force." He said that petitioners would not lose opportunity to test a very similar argument, taking notice of the initiative case before the D.C. Court of Appeals:
[T]he D. C. Court of Appeals will have the chance to consider the relevant legal questions on their merits, and petitioners will have the right to challenge any adverse decision through a petition for certiorari in this Court at the appropriate time.
Although the D.C. Court of Appeals offers real-time, video streaming of oral argument, I expect public interest to overwhelm server capacity.

Sunday, May 2, 2010

Time reports on two same-sex divorce cases in Texas

Texas Attorney General Gregory Abbott has filed appeals in two same-sex divorce cases because the judges denied his respective motions to intervene. The 5th District Court of Appeals in Dallas recently heard oral argument in In the Matter of the Marriage of J.B. and H.B. (Prop. 8 and the Right to Marry). While this case was pending, Austin Judge Scott Jenkins granted a divorce decree to a former same-sex couple. Time describes the circumstances leading to the appeal from the divorce decree (Texas v. Naylor and Daly):
The divorce had been granted, the decree signed and the last legal step — the final order — was imminent when a representative of the Texas Attorney General's Office arrived in court to object on the grounds that the marriage was never legal in Texas. Judge Jenkins posed several questions to the AG's office: Did the AG really want to pursue this action since the state was already litigating a same-sex appellate case in Dallas? Had the AG's office given any consideration to the impact of the appeal on the couple's adopted four-year-old son and the custody arrangement included in the divorce decree? "The wise and merciful thing to do in this case is to simply leave these parties alone." Judge Jenkins told the Austin American Statesman after he signed the final order over the AG's objections.

Hawai'i Governor Linda Lingle's choice on civil unions legislation: approve it or accept the outcome of planned litigation

Just before the current session of Hawai'i's legislature ended April 29th, it approved civil unions legislation [HB 444] that seemed all but certain to expire with the session. (JURIST / (For the legislation's legal context, see this press release by Freedom to Marry, Dale Carpenter's post at the Volokh Conspiracy.) Governor Linda Lingle must now decide whether to sign the bill into law. Although she has until July 6th to do so, she has already received a huge volume of e-mail and phone calls. (AP / Honolulu Advertiser) If Lingle doesn't approve the legislation, successful litigation would effectively reverse her decision. In February, Lambda Legal and the ACLU announced their plan of a lawsuit to establish that the state constitution's provision of equal protection requires Hawai'i to establish civil unions. (Lambda Legal press release / ACLU press release) As law professor John Culhane reports, the lawsuit was among subjects of discussion at Equality Forum's legal panel. According to Lambda Legal's press release of April 29th, the advocacy groups "were already on O`ahu this week in final preparations for litigation if the legislature failed to act by today's end of session. We're delighted that, as long as Governor Lingle does not veto the bill, our lawsuit won't be necessary."

Oral arguments this week in Gill v. OPM; DOJ files brief in Commonwealth of Massachusetts v. U.S. Dept. Health & Human Services

Section 3 of the federal DOMA (codified at 1 U.S.C. § 7) excludes same-sex couples from federal laws that apply to married couples. On May 6th, U.S. District Judge Joseph L. Tauro will hold oral arguments in Gill v. OPM on the constitutionality of Section 3. (04/08/10 GLAD press release / 05/02/10 Boston Globe) The Maine Sunday Telegram profiles Mary L. Bonauto, who was lead counsel in Goodridge v. Department of Public Health and will argue on behalf of the plaintiffs. The Perry case has received disproportionate attention from the media and blogs (including this one!), as attorneys for the Perry plaintiffs secure a place among the 2010 "Time 100." But Gill v. OPM will have an impact no less far-reaching than Perry, especially if the Gill plaintiffs prevail.

The Department of Justice filed a brief in another DOMA challenge, Commonwealth v. Dept. of Health & Human Services. ( In its brief, DoJ opposes the Commonwealth's motion for summary judgment (National Law Journal) Among other arguments against Section 3, the Commonwealth claims that it violates the 10th Amendment's guarantee of the state's exclusive authority over marriage.

Law professor John Culhane brings the Equality Forum to everyone who can't attend

This year's Equality Forum has again engaged law professor John Culhane to write about its panels. The schedule required John to highlight certain panels, and he expects to conclude his series with an interview of David Boies, the "yin" to the "yang" Theodore Olson, who together represent the Perry plaintiffs.

Read his latest opinion article, "The Paradox of Legal Gay Unions," for John's wide range of law review publication includes the rights of same-sex couples and other legal issues of sexual orientation. But the law review format has its limitations. It often (typically?) disengages authors from their lived realities of legal inequality, as if they were disembodied agents of legal reasoning. If this artificial disassociation does not neuter their insights, it requires a detachment that disconnects the reader from their own personal seismometers. "The Paradox of Legal Gay Unions" returns John's insights to the fullest measure of their lived meaning. He describes the paradox from the perspective of his partner's incredibly powerful observation about their wedding rings, and of a friend's misfortune in separating from a partner.

Last year, John favored this site with a four-part series on "Marriage Equality and Religious Liberty." His blog, WordinEdgewise, consummates a marriage of zany humor, delightful style, evocative opinion, perceptive insight, and graceful humility. He is a treasure to read.

Saturday, May 1, 2010

What do Prop. 8 proponents want to exclude from evidence in the Perry case, and why?

05/06/10: While I try to avoid rewriting posts, even when I err, I make an exception here, because otherwise I would lose a point I think worth making. See my new comments in red.

I've just returned from vacation. By now, this site's readers know what I've only just learned: in the Perry case, Judge Vaughn Walker has proposed June 16th as the date for closing arguments. (04/28/10 LGBT POV) A discovery dispute had delayed this welcome sign of progress towards a final judgment. The logjam broke when California Equality and the ACLU decided to avoid the prospect of a contempt citation for failure to give a large number of their No-on-8 campaign communications to Prop. 8 proponents. (Equality California press release and associated filing) Plaintiffs and proponents have informed Walker (here and here) that they believe these No-on-8 groups ("the No-on-8 groups") have complied with previous orders for document production, so yesterday he determined that there was no need to consider whether they should be cited for contempt.

Two discovery matters require resolution. (Walker's April 28th order) First, proponents must submit campaign communications from the No-on-8 groups that they want Walker to allow into evidence. Plaintiffs may respond to the submission, and proponents may answer the plaintiffs' response. Walker will then determine what campaign communications, if any, to allow, and he will close the evidence record.

Second, proponents (the defendant-intervenors) and their reluctant witness, Dr. Hak-Shing William Tam, want the Court to reconsider discovery orders in January and strike from the record certain parts of Tam's testimony. Tam - a director of the Traditional Family Coalition - was an official proponent. But neither defendant-intervenors nor Tam identify him among a core group of persons who worked together on Yes-on-8 strategy and messaging. In fact, at trial, defendant-intervenors claimed Tam's testimony and communications were irrelevant precisely because his association with gave him no decision-making role in campaign strategizing or messaging. Nevertheless, they claim that under the 9th Circuit rulings, Perry I and Perry II, Tam' association automatically qualifies some of his testimony and private campaign communications for First Amendment protection. On their understanding of Perry I and Perry II, the First Amendment protects from discovery communications by "those persons who come together 'to advance one's shared political beliefs.'" Walker has granted their requests (here) and (here) to file their proposed motions on the question of First Amendment protection, with opportunity for further argument by Tam, proponents, and plaintiffs. Walker is reported to have said that he is "inclined to grant the defense motion for Dr. Tam’s reconsideration," but he appears to have been referring to the request for leave to file this motion, not the motion itself. (Thanks to Kathleen Perrin for inviting me to reconsider this report.)

Tam testified on Day 8 of the trial (January 21st), displaying obvious hostility and prejudice against same-sex couples who wish to marry. But are Tam and proponents trying to exclude evidence of Tam's animus, as they would have good reason to do? I can't reach that conclusion. Proponents seek exclusions of not just Tam's testimony, but selected declarations or communications by leaders of other religious and allied organizations. In fact, as far as I can tell, proponents and Tam would have Walker remove from evidence material that, if retained, poses a problem they appear to consider serious. Left in the trial record, the targeted testimony and communications risk inviting Walker's perception that proponents' organization,, influenced or aided what Tam what said and did during the Yes-on-8 campaign; and it risks inviting Walker's perception that similarly influenced or aided other religious leaders who displayed obvious anti-gay animus. In other words, proponents would remove evidence on the nature of their relationship with Tam and other clearly hateful supporters, so that, with these omissions, proponents can try to separate Yes-on-8 campaign strategizing and messaging from the allied efforts of obvious anti-gay bigots.

Mine is an initial impression about one of proponents' aims here. I would need more time than I have to confirm it. You can form your own conclusion, of course. Start with the transcript of Tam's testimony. It provides context for specific testimony entries, and referenced exhibits of campaign communications, that Tam and proponents - in their motions here and here - have asked Walker to exclude from evidence. Kathleen Perrin has prepared a document to aid comparison between the transcript of Tam's testimony, on the one hand, and Tam's statements and campaign communications, on the other, that Tam targets for exclusion. Then, if patience and resolve match your curiosity (!), use proponents' motion to compare trial transcripts with targeted statements and campaign communications by Tam and other Yes-on-8 participants.

Finally, I wish to credit and thank Kathleen for her public service as she provides free access to the latest filings in the District Court case. She selectively supplements's less current version of the docket. Almost needless to say, I own responsibility for my inferences from the filings. The mistakes are mine, not hers!

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