Proposition 8 and the Right to Marry

Farewell

2010-10-28T09:32:00.000-07:00

In May, I decided that I would need a hiatus to prepare an article on a subject unrelated to this site. I have just completed my forthcoming article for law librarians, "Ending Our Conflicts of Interest to Protect Consumers of Legal Publication." (Attorneys represent the largest share of consumers who need protection. I advance my arguments on their behalf, even if I can only wish that the arguments would engage them also.)

I can no longer commit the time required to maintain this site, although I will leave it intact for future use. The pace of legal news and commentary exceeds the capacity of even the most conscientious blogger to widely cover developments and maintain research resources. I had sought to fill a unique niche in the blogosphere, with support from my collaborator, attorney Rick Xiao, and others. I now realize that even with their generous assistance, I overreached. I have also been unable to engage enough law students and attorneys as volunteers. However, I do not count my experiment a failure. Among my joys of discovery, I have had the joy of sharing insights from such perceptive, lively writers as John Culhane, Arthur Leonard, and Nan Hunter. And I have had the privilege of learning from your comments.

To Rick Xiao, John Culhane, and other supporters, I owe more gratitude than a hearty, and heartfelt, "Thank you!" can express for your contributions and encouragement.

Hiatus from my usual schedule of blogging

2010-05-22T12:37:00.000-07:00

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.

Legal news this month

2010-05-15T10:05:00.000-07:00

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. (TwinCities.com) 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." (CanadaEast.com) 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." (CourageCampaign.org, 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 LifeSiteNews.com 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)

Divorce

On May 5th, CNN.com 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.

Immigration

"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 TheTimesNews.com)

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 GLAADBlog.com)

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)

Minnesota DOMA challenged: Benson v. Alverson

2010-05-12T14:56:00.000-07:00

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 WDIO.com, The Minnesota Independent, The Star-Tribune, and AP.

Recent legal news and commentary

2010-05-10T19:44:00.000-07:00

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 / Advocate.com)

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. (365Gay.com) 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)

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

2010-05-09T10:08:00.000-07:00

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 - ProtectMarrige.com / Yes on 8, and not also private communications between ProtectMarriage.com 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) ProtectMarriage.com 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 ProtectMarriage.com 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)

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

2010-05-08T13:29:00.000-07:00

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

2010-05-08T10:39:00.000-07:00

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."

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

2010-05-06T20:51:00.000-07:00

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:

http://www.scribd.com/doc/31000114/Doc-659
http://www.scribd.com/doc/31000242/Doc-660
http://www.scribd.com/doc/31000321/Doc-661

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

2010-05-05T08:25:00.000-07:00

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)

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

2010-05-04T17:04:00.000-07:00

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.

Oral argument tomorrow in D.C. Marriage Initiative case

2010-05-03T12:46:00.000-07:00

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.

Time reports on two same-sex divorce cases in Texas

2010-05-02T17:45:00.000-07:00

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

2010-05-02T12:58:00.000-07:00

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 / Care2.com) (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

2010-05-02T12:14:00.001-07:00

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. (AmericaBlogGay.com) 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

2010-05-02T10:03:00.000-07:00

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 365Gay.com. 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.

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

2010-05-01T16:51:00.000-07:00

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 ProtectMarriage.com 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, ProtectMarriage.com, influenced or aided what Tam what said and did during the Yes-on-8 campaign; and it risks inviting Walker's perception that ProtectMarriage.com 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 Justia.com'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!

Continued impasse in Perry case's discovery dispute: Walker's order for ACLU and Equality California to show why he should not cite them in contempt

2010-04-25T10:27:00.000-07:00

Order by Judge Walker on discovery dispute, filed 04/17/10

Prop, 8 proponents' response to April 17, 2010 Order, and declaration and exhibits, filed 4/22/2010

Statement of Objectors (ACLU) re April 17, 2010 order ) with 2 attachments (Exhibits A and B), filed 4/22/2010

Plaintiffs' response to April 17, 2010 order with 3 Attachments (Exhibit A, B and C), filed 4/22/2010.

Proponents' motion for Leave to File Motion to Strike and/or Reconsider prior discovery order (Perry I), filed on 4/23/10

[update: Order to show cause why No on 8 groups should not be held in contempt. Sets hearing for 4/28/2010. (filed 4/25/10)]

(I am grateful for links to these documents from Kathleen Perrin, and for an update from California attorney Rick Xiao.)

Judge Vaughn Walker has been trying to resolve an ongoing discovery dispute in the Perry case that has already lasted longer than the trial. The dispute originates with two discovery orders in March. Magistrate Judge Joseph Spero ordered several No on 8 groups - including Equality California and the ACLU - to produce documents that Prop. 8 proponents ("Proponents") demanded. The groups objected, but Walker sustained Spero's ruling. The orders require the Equality California and the ACLU to produce private communications on campaign strategy and messaging that member individuals exchanged among the themselves and their counterparts in organizations belonging to the No on 8 - Equality For All coalition. The No on 8 groups appealed the orders by Judges Spero and Walker, claiming a First Amendment privilege from compelled disclosure of these communications.

In its second discovery ruling in the case, a 9th Circuit panel decided that the No on 8 groups had not met criteria for the Court to review their objections. Perry v. Schwarzenegger, No. 10-15649, slip op. (9th Cir. Apr. 12, 2010) (“Perry II”) As a result, No on 8 groups could not appeal their objections until Judge Walker cited them for contempt over failure to produce the ordered documents.

The Perry II ruling addresses the scope of the First Amendment privilege from compelled disclosure of internal campaign communications. In Perry I, the 9th Circuit panel held that the privilege applies to "communications among the core group of persons engaged in the formulation of campaign strategy and messages.” "Perry I," 91 F.3d 1147, 1165 n.12 (9th Cir. 2010) (emphasis in original). The context then concerned what campaign communications the Proponents - the "core group" - could exempt from discovery. But could they exclude only those communications on campaign strategy or messaging internal to ProtectMarriage.com? The question was not raised at the time, although Proponents reserved, on other grounds, their concerns about First Amendment privilege.

In Perry II, the panel clarified application of the privilege to persons in member organizations of a very different core group - the Equality for All coalition:

Under Perry I, the privilege applies to the core group of persons engaged in the formulation of strategy and messages, whether or not they are members of a single organization or entity. The operative inquiry is whether they are part of an association subject to First Amendment protection. We did not hold that the privilege cannot apply to a core group of associated persons spanning more than one entity. (slip. op., at 9)

Judges Walker and Spero determined that the First Amendment privilege does not extend to internal communications among or between separate organizations that belonged to Equality for All. Given the Perry II clarification, is it clear that the judges erred? The 9th Circuit panel said that it is unclear whether Walker and Spero meant "that the privilege cannot apply to persons who are part of a political association spanning more than one organization or entity."

On April 13th, Judge Walker ordered the Proponents to show cause why the record of evidence should not be closed. Proponents responded that it should not be closed because the No on 8 groups had not complied with the March orders to produce the campaign communications subject to the orders. The No on 8 groups and Proponents had tried to craft a compromise that would allow discovery to proceed. The former would agree to an amendment of Walker's March 22nd order that substantially limited their disclosure obligation to the requirements of the Perry II clarification. Proponents then demanded an "evenhanded" application of that guidance to all of their qualifying campaign documents already entered into the record of evidence, so that they could then ask Walker to remove these documents from the record. The plaintiffs reserved a right to object to Proponents' demand. The compromise fell apart. Proponents recommended that Walker cite the No on 8 groups for contempt. (Prop. 8 and the Right to Marry / Keen News Service)

On April 17th, Walker discharged his April 13th order to allow Proponents and the No on 8 groups time to "confer and negotiate in order to reach a stipulation that will resolve remaining discovery issues." A second round of discussion ensued, but never rose to the level of a real negotiation. Positions instead hardened. The No on 8 groups claimed that "there can be no question" that Walker and Spero had "misapprehended" the scope of their First Amendment privilege. To correct the error, the groups would stipulate to an amended discovery order by Walker that allows them to exclude "communications solely among the core group of persons engaged in the formulation of campaign strategy and messages for the No on 8 - Equality for All campaign, whether or not they are members of a single organization or entity." The No on 8 groups say that Walker should accepts their stipulation, without resolving a related dispute between plaintiffs and Proponents over whether Proponents can revisit Proponents' previous document production.

Proponents would have accepted this stipulation, but only if the proposed amended order allowed them to remove from evidence a large number of their internal campaign communications already in the record of evidence. According to plaintiffs, Proponents would, in fact, have Walker "strike from the trial record virtually every document that they originally tried, unsuccessfully, to shield from discovery."

Plaintiffs responded that they could not accept the latest terms of a reprised compromise. They have asked Walker to order the nonparties, Equality California and the ACLU, to "produce the required documents in three days, or else be held in contempt," and order "Proponents to supplement the trial record within seven days, if at all, upon expiration of the [nonparty] production deadline before the Court closes the evidentiary record."

Plaintiffs have the following objections to the compromise. First, plaintiffs claim that Walker and Spero did not err when they ordered the No on 8 groups to produce campaign communications. Plaintiffs read the March orders as entirely consistent with the subsequent, Perry II clarification. But even if the judges had erred, theirs was not a clear error. Suppose that they had meant that “the [First Amendment] privilege cannot apply to persons who are part of a political association spanning more than one organization or entity.” Perry II, slip op. at 9. Spero had still afforded these groups opportunity to show that their campaign participants functioned as a core group of persons engaged in developing campaign strategy or messaging, so that participant campaign communications could qualify for First Amendment protection. The No on 8 groups did not provide information showing that their individual members functioned as core group of persons, So plaintiffs contend that the groups can not now object that they are entitled to withhold the contested communications.

Second, Proponents want to use the Perry II guidance to reopen discovery orders in January, with a request that Walker remove from evidence many documents Proponents produced. The plaintiffs argue that Walker should reject Proponents' request. Even if the Perry II guidance applies to documents they produced, Proponents failed "to prove and preserve a privilege for any individuals in any organization other than ProtectMarriage.com. Furthermore, Proponents at trial allegedly "conceded that ProtectMarriage.com’s First Amendment privilege did not extend to separate religious organizations" whose members participated in the campaign. (In fact, Proponents said that the religious character of these organizations raised a different question of First Amendment protection.)

Why are plaintiffs concerned about gaps in the record of evidence that would arise if Walker granted Proponents' request? Have a look at the types of documents that Proponents would have removed. My cursory review suggests that the communications at issue were between ProtectMarriage.com and ministers or leaders of religious organizations. Unfortunately, I do not have time to investigate the individual documents, so I can not say whether they stand out for hateful, anti-gay messaging.

What can we expect at this point? Walker might decide that he has no viable option but to issue a contempt citation against Equality California and the ACLU, because he has given them and Proponents reasonable opportunity to resolve their differences. At any rate, expect continued delay in the progress of the case toward closing arguments and a final judgment.

update: Walker has just ordered the ACLU and Equality California to show cause why he should not hold them in contempt for failing to produce documents subject to the March discovery orders. They have until April 27th to submit their written arguments, for a hearing on April 28th. (Keen News Service)

Texas appellate court hears oral argument in same-sex divorce case

2010-04-24T12:30:00.000-07:00

A Texas appellate court heard oral arguments this week in a same-sex divorce case. Publicly available news coverage conveys a sketchy idea of questions arising under state law and the federal constitution. Mainstream media repeat prepared press statements by attorneys. (AP / UPI / Dallas News / Texas Lawyer Blog / Am Law Daily ) The Dallas Voice affords an outstanding exception to unsatisfactory news reports. (The Texas Lawyer probably does a good job at reporting, but I can not judge, because I do not subscribe to it.) I rely on the briefs to summarize the procedural path to appeal, and to summarize the underlying legal arguments by parties on both sides. The legal issues warrant this level of attention. I also conclude that divorce equality under the constitution unavoidably implicates marriage equality. I may be wrong, of course, so I welcome comment.

On October 1st, a Dallas judge ruled that that her court has jurisdiction to hear a divorce suit by a same-sex couple - identified as J.B. and H.B. - who had married in Massachusetts. Judge Tena Callahan found that the court has the power to divorce the couple, notwithstanding Texas' constitutional and statutory bans on same-sex marriage. To the extent that these bans would deprive the court of this power, she found that they violate the 14th Amendment's guaranty of equal protection. She also rejected a motion to intervene by state Attorney General Greg Abbott, who contended that bans on same-sex marriage limit the court's jurisdiction to voiding the marriage. (Texas Lawyer) The next day, Abbott filed a notice of appeal, seeking relief in the state 5th District Court of Appeals. On December 7th, Judge Callahan issued findings of fact and conclusions of law. (Tab 4, Attorney General's brief) Amending her October 1st order, she further ruled that due process under the 14th Amendment protects the right to divorce of married same-sex couples, and that prohibiting divorce would unduly burden their constitutionally protected freedom of association and right to travel.

The parties to the appeal disagree about whether Texas state law allows same-sex couples to divorce. If the law does not allow same-sex divorce, parties disagree about whether it would violate the federal constitutional protections of same-sex couples, although neither party had raised these constitutional questions. Abbott argues that by banning same-sex marriage state law must also ban same-sex divorce - without violating the U.S. constitution. J.B.'s attorneys argue that the prohibition on same-sex marriage has no bearing on eligibility for divorce, but that if the appellate court addresses the constitutional questions Callahan decided, a divorce prohibition would be unconstitutional.

Abbott failed to convince the appellate court that it could dispose of the case without oral argument, by reversing Callahan's decision and granting the Attorney General's position on the court's jurisdiction. (Attorney General's brief) The proper remedy for the couple, he maintains, involves voidance of the marriage, not divorce, because Texas law applies to couples who reside in the state, and the law does not recognize same-sex marriage, even if laws of other states do. And while neither party asked Callahan to rule on federal constitutional protections, Baker v. Nelson 409 U.S. 810 (1972) still has binding effect. In Baker, the U.S. Supreme Court upheld a decision by the Minnesota Supreme Court that excluding same-sex couples from marriage does not violate due process and equal protection under the 14th Amendment. Baker applies to this case, because "divorce is the enforcement mechanism for marriage," so that if it is not unconstitutional to ban same-sex marriage, it can not be unconstitutional to void, rather than divorce, a same-sex couple. Abbott also claims that Texas law does not restrict J.B.'s freedom of association or right to travel: "it simply refuses to extend legal enforcement to the promises and commitments outside the legal institution of marriage." Finally, he claims that Callahan's decision implicitly violates section 2 of the federal DOMA. On his account, section 2 reinforces Texas' right, under the Full Faith and Credit Clause of the constitution, not to give "legal effect" to same-sex marriages through divorce.

(The Liberty Institute also filed a brief supporting the Attorney General, and participated in the oral argument.)

In their brief, attorneys for J.B. explain why the appellate court "need not hold that Texas' same-sex marriage policy is unconstitutional to affirm the trial court's exercise of subject matter jurisdiction in this case, despite the [Attorney General's] unfounded, and wholly politically motivated, arguments to the contrary." A divorce proceeding for J.B. and H.B. would not mean that the state recognizes the marriage policies of other states as its own. Granting a divorce would represent noting the validity of a same-sex marriage "under the laws where it was formed," rather than a judgment that the marriage was valid in Texas.

If the appellate court reaches the constitutional questions of Callahan's decision, J.B.'s attorneys argue that Baker does not have binding effect, because Baker concerned marriage, not divorce, and courts have distinguished the fundamental "liberty interests" in each. The summary nature of the Baker ruling, and case law since 1972, undermines the extent of deference it can receive. In addition, the most stringent test of constitutional review would apply to this case: the state must have a compelling reason not to allow same-sex couples to divorce. Under this "strict scrutiny" test, the federal constitution does not allow the state to bar a divorce proceeding for same-sex couple on the basis of sexual orientation, and guarantees such couples a right to divorce. The core of J.B.'s equal-protection argument is that voidance does not provide same-sex couples an adequate substitute for divorce, and that depriving them of means to divorce stigamtizes them. The state can identify no legitimate interest in imposing that kind of burden on same-sex couples who want divorces.

J.B.'s attorneys also argue that if Texas court can not divorce same-sex couples, the state would unconstitutionally infringe on J.B.'s right to travel. A divorce prohibition has no other purpose than to penalize married same-sex couples for moving to Texas, because it does not apply to married, opposite-sex couples. A divorce prohibition would also create "an atmosphere of hostility to their lawful unions designed to dissuade them from relocating to Texas, in circumstances whether they might otherwise consider moving here."

J.B.'s attorneys answer Abbott's argument that Callahan's decision implicity violates the federal DOMA. They say that the federal DOMA has no bearing on the constitutional right to divorce, or on equal protection of the law in access to divorce proceedings.

Whatever the merits of Abbott's constitutional arguments, they reflect more than the influence of "political motivation." Suppose the appellate court decides the case on constitutional grounds, and rules that equal protection and due process require Texas courts to hear same-sex divorce suits. While the right to divorce and the right to marry involve distinguishable constitutional interests, constitutional arguments for the right of same-sex couples to divorce would have the same force on their right to marry. I do not see how these arguments can be circumscribed. More importantly, neither does Abbott.

Recent news and commentary

2010-04-21T12:53:00.000-07:00

Perry v. Schwarzenenger

Andy Pugno, General Counsel of ProtectMarriage.com, posts an "update" on the case, and promises "more discussion of our legal defense of traditional marriage in coming emails."

Cole v. Arkansas

Law professor Arthur Leonard has commentary on a ruling that invalidates an Arkansas ban on adoption and foster care by same-sex couples. Law professor John Culhane also comments on the ruling.The Alliance Defense Fund plans to appeal the ruling. (ADF press release)

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)

"(San Francisco, CA, April 19, 2010) — Today, NCLR launched a national media campaign to bring visibility to a tragic new case where Sonoma County, California officials separated an elderly gay couple and sold their worldly possessions despite the measures the men had taken to protect their relationship." (04/19/10 press release by National Center for Lesbian Rights) For additional coverage, see The New York Times, The Bilerico Project, and HRC Back Story.

Oral argument tomorrow in In the Matter of the Marriage of J.B. and H.B.

2010-04-20T13:07:00.000-07:00

In the Matter of the Marriage of J.B. and H.B., brief of the State of Texas, No. 05-09-01170-CV (Tx. Ct. App. 5th Dist. Jan. 12, 2010)

In the Matter of the Marriage of J.B. and H.B., Appellee J.B.'s brief, No. 05-09-01170-CV (Tx. Ct. App. 5th Dist. Feb. 8, 2010)

Oral argument in this case takes place tomorrow, starting at 2 p.m.. (AP / Dallas Morning News/ Dallas Voice). The docket is here. For a brief description of the case, see this entry by the Texas Lawyer.

Angelique Naylor responds to Texas Attorney General's appeal of divorce from her former wife

2010-04-18T09:05:00.000-07:00

Angelique Naylor told Newsweek that in appealing her divorce decree, Texas Attorney General Greg Abbott has pursued a "politically motivated attack and attempt to wear me down financially by running up my legal bills." (Newsweek) She also states that the appeal is "is an egregious misuse of state resources when there is already an almost identical case already set for a hearing in the 5th court of appeals next week." The other case on appeal is In the Matter of the Marriage of J.B. and H.B. (Texas Lawyer Blog)

(04/20-21/10 update: AP has a report on the appeal in Naylor's divorce case, but fails to distinguish substantive and procedural issues in the two cases. Commenting on the article, law professor Tobias Barrington Wolff observes that even if Naylor or her spouse could relocate to Massachusetts and divorce there, the federal DOMA would allow Texas to "disregard the divorce decree of a same-sex couple altogether.")

Prop. 8 proponents in Perry case seek order of contempt against California Equality and ACLU over discovery dispute, and aim to expand the dispute

2010-04-17T09:59:00.000-07:00

Perry v. Schwarzenneger, Prop. 8 proponents' response to April 13, 2010, order to show cause why record of evidence should not be closed, and motion for contempt, No. 09-cv-2292 (N.D.Cal. Apr. 16, 2010), and exhibits

(I wish to thank a kind reader of this site for forwarding the referenced filings.)

On April 13th, Judge Walker ordered Prop. 8 proponents in the Perry case to show cause why the record of evidence should not be closed, and he set an April 16th deadline for them to do so. In their response, they contend that the Court must keep the record open because No-on-8 groups - including Equality California and the ACLU - failed to produce documents that two discovery orders in March required them to produce.

The orders apply to a category of nonpublic, campaign communications that individuals within Equality California and the ACLU exchanged with coalition partners of the Equality for All Campaign. The only private communications subject to the orders concern formulations of No-on-8 campaign strategy and messaging. The orders further limit document production to private communications that the No-on-8 groups exchanged; it excepts communications internal to each of the organizations.

The No-on-8 groups lost their appeal of the March discovery orders. (Prop. 8 and the Right to Marry) They had claimed that the documents the orders compelled them to disclose were not relevant to identifying or clarifying the intent of voters who approved Prop. 8. At Courage Campaign's Prop. 8 Trial Tracker, Brian Leubitz says that the issue of relevancy has been "the focus" of objections by Equality California and the ACLU. However, the central issue of concern involves the extent to which the First Amendment protects certain campaign communications from compelled disclosure.

In fact, the No-on-8 groups also claimed that Judges Walker and Spero clearly misinterpreted a previous appellate holding on the scope of First Amendment privilege from compelled disclosure. In January, a 9th Circuit panel had held that "the First Amendment privilege is ... limited to [internal, private] communications among the core group of persons engaged in the formulation of campaign strategy and messages." "Perry I," 91 F.3d 1147, 1165 n.12 (9th Cir. 2010). At the time, this holding protected from discovery the internal campaign communications of individuals within a "core group" - the ProtectMarriage / Yes-on-8 campaign of the official Proponents. In his March 5th discovery order, Magistrate Judge Joseph Spero applied the holding to document production in a different context - to a category of campaign communications that Proponents seek from the No-on-8 groups. On March 22nd, Judge Walker sustained Spero's order against objections by the No-on-8 groups, and required them to complete a "rolling production" of the relevant documents by March 31st.

The same 9th Circuit panel in Perry I issued a stay of the March discovery orders until it dismissed the appeal on April 12th. The panel decided that its prior First Amendment holding does not preclude a First Amendment privilege for private communications on campaign strategy and messaging, exchanged among a "core group of associated persons spanning more than one [campaign] entity." "The operative inquiry," the panel said, "is whether they are part of an association subject to First Amendment protection." (italics in the original) Walker and Spero had not clearly erred in this matter because the N0-on-8 groups never provided information to show that it was the function of their organizations to associate in a coalition. Because Walker and Spero had not clearly erred (and for other reasons), the panel concluded that the 9th Circuit Court lacked mandamus jurisdiction to hear the appeal. The No-on-8 groups could not seek relief until they failed to produce the required documents and Judge Walker cited them for contempt.

Proponents now seek an order of contempt against Equality California and the ACLU for their continuing failure to produce documents subject to the March discovery orders. The March 22nd order required Proponents to assess the document production and determine, by April 12th, which documents would be relevant to enter into the case's evidentiary record. Having received no documents, Proponents contend that the evidentiary record must remain open until the No-on-8 groups produce the documents.

Proponents also acknowledge that the No-on-8 groups offered a "compromise proposal" to end the discovery dispute. The groups expressed a willingness to comply with an amended discovery order. What amended order would satisfy them? Judge Walker would have to rule that their exchanged campaign communications qualify for First Amendment protection under the latest guidance of the 9th Circuit panel. Proponents countered, saying that they would accept the compromise proposal, but only if Walker "evenhandedly" applied the guidance to "the Court’s prior discovery and evidentiary rulings with respect to Proponents’ claims of privilege." In other words, Proponents would want Judge Walker to revisit his pre-trial discovery orders, so that the Proponents could exclude from the record of evidence any private campaign communications on strategy or messaging that Proponents exchanged with allied organizations.

As matters now stand, the No-on-8 groups have filed no motion to set out their compromise proposal. If the groups do file that motion, the Perry plaintiffs say that plaintiffs "reserve the right to weigh in with the district court regarding the content of" an amended order." (Exhibit H) Moreover, whatever the groups do, Proponents plan to file a motion asking that Walker revisit his pre-trial discovery orders: "If the No-on-8 Groups do come forward with a motion for further relief, then Proponents will promptly respond so that the issue can be considered in tandem with Proponents’ own forthcoming motion for similar relief consistent with the Ninth Circuit’s further guidance."

So Proponents are using the discovery position of the No-on-8 groups to outmaneuver the plaintiffs on what campaign communications will ultimately remain in the case's record of evidence. Proponents hope to expand the discovery dispute, but I am convinced that they are not simply manufacturing a pretext to delay closing arguments and final judgment by Walker. They defend the idea that the content of private campaign speech, rather "core group" membership, must determine the scope of First Amendment privilege. (Prop. 8 and the Right to Marry) I find their defense not just plausible, but compelling, and they are pursuing it through a U.S. Supreme Court petition now on hold. (Prop. 8 and the Right to Marr y) Law professor Nan Hunter faults the petition as "weak," but on grounds that do not convince me. If anyone has followed me this far (!), I would welcome comment on why I am wrong.

Cole v. Arkansas: Judge rules that it's unconstitutional for Arkansas to ban adoption and foster-care by unmarried couples

2010-04-16T14:52:00.000-07:00

In Cole v. Arkansas, plaintiffs challenged the constitutionality of an Arkansas statute that bans adoption and foster-care by unmarried couples. The judge in the case has just ruled that the law "infringes upon the fundamental right to privacy guaranteed to all citizens of Arkansas." (Arkansas News Bureau) JURIST links to the ruling and reports on the litigation that led to it.

President Obama's memorandum on increased patient rights to designate hospital visitators and medical powers of attorney

2010-04-16T12:34:00.000-07:00

In a memorandum, President Obama has directed the Department of Health and Human Services to draft rules allowing hospital patents to designate visitors, and to afford the visitors at least the same level of access as immediate family members. The rules would apply to all hospitals that participate in Medicare or Medicaid. Members of LGBT families would be among designated visitors guaranteed equal protection of visitation privileges. The rules would also require the hospitals to have policies for honoring patient designation of medical powers of attorney when patients are, or become, incapacitated. (NY Times / LA Times / Washington Post / LGBT POV)

Law professor John Culhane has a predictably perceptive insight on what President Obama has accomplished. Having argued over a decade for marriage equality, he understands that marriage equality would do much more to remedy problems of discrimination against same-sex couples. But "read the Memorandum closely," he urges, "and you’ll see that the requested change goes far beyond marriage equality: The idea is to allow people to designate the person of their choice (either “on the spot” or through advance directives) to visit them in the hospital ... That respect for individual autonomy and decision-making in the most challenging circumstances is the great accomplishment of this Memorandum, and it shouldn’t go unacknowledged." (WordinEdgewise)

Mainstream media have represented the LGBT community as divided on the importance of Obama's memorandum. (Washington Post) The news has had a welcome reception among several advocacy organizations, including GLAAD, Lamda Legal, the National Gay and Lesbian Task Force, and the Human Rights Campaign. HRC Vice President David Smith called the development "a huge deal." (NY Times) This view has support in the tragic circumstances of an LGBT family that led to a lawsuit filed by Lamda Legal and an apology by President Obama. (The Miami Herald reports on what happened to that family and the subsequent lawsuit.)

While praising the decision, other advocates of marriage equality reserve criticism about what it falls short of. "[T]he dynamic leaves" Andrew Sullivan "queasy." (Daily Dish) Marriage Equality New York asks its supporters to share their appreciation with the President, but to also let him know "that we expect more from the White House on marriage equality." (MENY Marriage News) "It's not full equality, but it's something," says Maia Spotts of GayRightsChange.org. "[D]oes HRC really think this is a huge deal," asks blogger John Aravosis, "or are they simply, yet again, working for the President rather than working for the community?"

The memorandum already has opponents. Peter Sprigg, a senior fellow for policy studies at Family Research Council, questions the President's political motivations, even though he does not reject the proposed benefits for LGBT families. (Washington Post) Pretending to separate intent from outcome, Sprigg said that the memorandum must be taken in its "political context." In that context, he claims, it "clearly constitutes pandering to a radical special interest group. The memorandum undermines the definition of marriage, and furthers a big-government federal takeover of even the smallest details of the nation's healthcare system." (LA Times)

Recent news and commentary

2010-04-15T12:50:00.000-07:00

DOMA

As Americans face today's deadline to file their taxes, advocates of equality for same-sex couples describe the burdens of tax discrimination arising from federal and state DOMAs. (HRC Back Story / Commentary by Evan Wolfson / Gay & Lesbian Advocates & Defenders)

As a result of the federal DOMA, it is clear "that the Social Security system is unfair to same-sex couples," says Michael McGough, of the LA Times, in his post on a proposal of legislation to remedy the unfairness. (Opinion L.A.)

Developments abroad

On April 14th, Italy's Constitutional Court rejected a challenge to the constitutionality of the country's ban on same-sex marriage. (JURIST / Bloomberg News)

In Argentina, a family court judge has "determined that what was the first ever same-sex marriage in all of Latin America is 'non-existent" under the constitution and has, in fact, annulled it ... That leaves Martin Canevaro and Carlos Alvarez and Norman Castillo and Ramona Arevalo as the only two same-sex couples in Argentina with unrevoked marriage equality rulings." (Blalbbeando)

New challenge to federal DOMA filed in U.S. District Court in San Francisco

2010-04-14T12:27:00.000-07:00

Dragovich v. U.S. Dept. Treasury, complaint, No. 10-cv-01564 (N.D.Cal. Apr. 13, 2010)

(I owe a special thanks to site collaborator and California attorney Rick Xiao for alerting me to the filing and forwarding it.)

Yesterday, California public employees and their same-sex spouses brought a class action lawsuit against the IRS and the California Public Employees Retirement System (CalPERS). Under state and federal laws, state employees can not enroll their same-sex spouses and domestic partners in the CalPERS Long Term Care (LTC) program. Plaintiff couples want the U.S. District Court to declare that the laws are unconsitutional, and they want to bar the state government from continuing its exclusion of all other same-sex couples in the same situation.

Section 3 of the federal DOMA (codified at 1 U.S.C. § 7) limits federal definitions of "marriage" and "spouse" to the " legal union between one man and one woman as husband and wife." Under the Internal Revenue Code (26 U.S.C. §7702B(f)1-2), state government employers may qualify for tax-sheltered treatment of their long term care programs. But "qualified" plans must adhere to the federal definition of spouses. To retain LTC's federally tax-sheltered status, CalPERS by law (Cal. Fam. Code §297.5(g)) follows the federal definition and excludes same-sex spouses and domestic partners of state employees. Because the applicable state and federal laws conform to this federal definition, state employees can not enroll their same-sex spouses and domestic partners in the CalPERS Long Term Care (LTC) program. As a result, their employer deprives these couples access to a vital benefit that protects them and the public interest. Plaintiff couples seek a declaration that the federal and state laws at issue violate due process to excluded couples under the 5th and 14th Amendments, and equal protection under the 14th Amendment. They also seek injunctive relief.

Dragovich v. U.S. Dept. Treasury now joins several other prominent legal challenges (here and here) to the federal DOMA. AP covers the case here.

9th Circuit panel dismisses appeal by California Equality and ACLU of order compelling them to disclose Prop. 8 campaign communications

2010-04-13T12:00:00.000-07:00

Filings

Perry v. Schwarzenneger, order of dismissal, No. 10-15649 (9th Cir. Apr. 12, 2010)

Perry v. Schwarzenneger, order to show cause re closing of evidentiary record, No. 09-cv-02292 (N.D.Cal. Apr. 13, 2010)

Hollingsworth v. Perry, petition by Prop. 8 proponents, No. 09-1210 (U.S. Apr. 5, 2010), at 2010 WL 1436438 [04/14/10 update: In her insightful comment on the petition, law professor Nan Hunter includes an extended excerpt.]

(Special thanks to site collaborator Rick Xiao for alerting me to the first two filings.)

Comment

Yesterday a 9th Circuit panel dismissed the appeal of the latest discovery order in the Perry case. California Equality, the ACLU, and other No on 8 groups brought the appeal because they claimed that the order would compel them to disclose private campaign communications protected under the First Amendment. (AP) A key issue in the appeal concerns a prior holding ("footnote 12") by the panel on an appeal by Prop. 8 proponents of a previous discovery order in the case. Perry v. Schwarzenegger, 591 F.3d 1147, 1165 n.12 (9th Cir. 2010) The panel held that "the First Amendment privilege is ... limited to communications among the core group of persons engaged in the formulation of campaign strategy and messages." Appellants and appellees argued that Judges Walker and Spero clearly erred when they interpreted this instruction to mean that the First Amendment privilege does not protect individuals outside the "core group" from compelled disclosure of their campaign communications. Appellants maintained that the judges had not properly examined the function of the privilege - to protect the "associational interests" of individuals who belong to the No on 8 groups, and who formulated campaign strategy and messages.

[04/15/10 update: Brian Leubitz, of Courage Campaign's Prop. 8 Trial Tracker, claims that appellants focus "on relevancy rather than any notion of privilege of free communication within a campaign." Read their brief to see if that's an accurate representation. I don't think that it is.]

Appellees - the Prop. 8 proponents - went even further, questioning not just the application, but the validity of the holding ("the vailidity issue"). They argued that the First Amendment privilege protects individuals not according to their rank or status within campaign associations, but according to the content of their political speech. In yesterday's order of dismissal, the 9th Circuit panel did not reach this question of their prior holding's validity. Instead they clarified the scope of footnote 12's application:

"The operative inquiry is whether [individual members of campaign organizations who formulate campaign strategy and messages] are part of an association subject to First Amendment protection. We did not hold that the privilege cannot apply to a core group of associated persons spanning more than one entity."

Will that clarification satisfy the Prop. 8 proponents? They have reserved the "validity issue" for consideration by the U.S. Supreme Court. (See the referenced petition above, and Hunter's comment that "it's a weak cert petition that the Court will probably deny.")

Finally, notwithstanding these developments, Judge Walker today issued an order to show cause why the evidentiary record in the case should not be closed. Parties in the Perry case have until April 16th to respond. Walker clearly wants to remove another cause of delay to closing arguments and a final judgment.

Recent news and commentary

2010-04-12T12:42:00.000-07:00

Constitutional amendments

Maryland Delegate Don Dwyer "tried to attach an amendment prohibiting same-sex marriages onto a bill that would increase marriage license fees in Baltimore city." Dwyer recently failed in his attempt to impeach state Attorney General Doug Gansler for issuing an opinion upholding state recognition of out-of-state, same-sex marriages." (Baltimore Sun, cross-posted by ADF Alliance Alert) Dwyer has a history of generating controversy. He wanted to impeach Judge Brooke Murdock after she ruled Maryland's ban on same-sex marriage was unconstitutional."

Federal DOMA

"Rep. Linda T. Sanchez (D-Lakewood), who is a member of the House Subcommittee on Social Security, announced that she would sponsor legislation to provide equal Social Security benefits for same-sex couples." (LA Times AP, HRC Back Story, and Los Angeles Gay and Lesbian Center)

Same-sex couples married in Vermont can expect to face an additional burden when filing their taxes. "The complication adds about two or three more hours to file a tax return, compared to a heterosexual couple’s return - and at least $200 more to the bill if an accountant is hired," said Richard Wolfish, a partner and certified public accountant at Gallagher Flynn and Co. in Burlington. (Burlington Free Press)

Developments abroad

Iceland may become the next country to enact a marriage equality law. (Gay Rights Change.org and Straight Talk on Marriage)

"Mexico City’s mayor says he will defend the capital’s gay-marriage law and insists the ordinance will take effect in March despite an appeal by federal prosecutors." (AP, cross-posted by Gay Marriage Watch)

"The Portuguese Constitutional Court has given its approval to a measure that will make same-sex marriage legal and would come into effect just ahead of a visit to the Portugal by Pope Benedict XVI." (Lez Get Real)

Related News

Restore Equality 2010 has failed to meet a required deadline to collect at least 700,000 petition signatures for an initiative that would repeal Prop. 8. (LGBT POV) "In the end, it turns out that we probably were a little smarter than those folks who decided to sit out," said Sean Bohac, San Diego coordinator for Restore Equality. "The polls that have been released lately indicate that the next time we go to the ballot, we’re going to repeal Prop. 8." (San Diego Union-Tribune)

"Marriage on Trial: Should the law limit marriage to a union between a man and a woman?" will be debated (on April 13th) at Providence College's '64 Hall at the Slavin Center. The debaters are constitutional law scholars Gerard V. Bradley and William Eskridge. (The Providence Journal) (04/21/10: BostonEdge reports on the debate.)

Maggie Gallagher, president of the National Organization for Marriage, "spoke to a full house at Franciscan University of Steubenville, [Ohio,] April 6, 2010, on "The Future of Marriage: Why (and How) Christians Must Engage the Same-Sex Marriage Debate."(press release, Franciscan University of Steubenville) Here is the audio recording.

D.C. Court of Appeals schedules oral argument in lawsuit to restore D.C. Marriage Initiative to ballot

2010-04-11T17:32:00.000-07:00

Appellants before the D.C. Court of Appeals seek to qualify the D.C. Marriage Initiative of 2009 for the ballot, after the D.C. Superior Court upheld a disqualification decision by the D.C. Elections and Ethics Board. The case is 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.) Chief Justice Roberts denied their emergency application to stay D.C.'s marriage equality law when, in a related lawsuit, they tried to overturn the Board's disqualification of a referendum on the law. Jackson v. District of Columbia Bd. of Elections, 559 U. S. ____ (2010) But Roberts said that plaintiffs will, "at the appropriate time," have the right to challenge any "adverse decision" in their "initiative" lawsuit. Oral argument has been scheduled for May 4th at 10 a.m. EST, and parties have been ordered to submit briefs. The Court hosts real-time recording of its oral arguments here.

Opening briefs filed in 9th Circuit Court appeal of Perry discovery order

2010-04-10T09:24:00.000-07:00

Perry v. Schwarzenneger, opening brief by appellants Equality California et al., No. 10-15649 (9th Cir. Apr. 9, 2010)

Perry v. Schwarzenneger, opening brief by appellees Prop. 8 proponents, No. 10-15649 (9th Cir. Apr. 9, 2010)

Perry v. Schwarzenneger, plaintiffs-appellees brief, No. 10-15649 (9th Cir. Apr. 9, 2010)

In March, Judge Vaughn Walker upheld a discovery order in the Perry case that requires California Equality, the ACLU, and other "No on 8" organizations to provide Prop. 8 proponents certain types of campaign communications, even though the organizations are not parties in the case. These groups appealed Walker's ruling to the 9th Circuit, alleging that it violates their First Amendment protection of political speech and participation. In Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010), a 9th Circuit panel overturned a discovery order that would have required Prop. 8 proponents to disclose internal campaign communications, other than those by "rank-and-file" members. The same panel has been assigned to this latest appeal, and ordered parties to file briefs by April 9th.

In their opening brief, appellants argue that the Court has "finality" jurisdiction to review their appeal now rather than wait for them to appeal it later, after Judge Walker effectively resolves the question of "finality" jurisdiction by citing them for violating the recent discovery order. Appellants also argue that, under Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010) and another precedent, the Court has mandamus jurisdiction because Judge Walker clearly erred when he sustained the discovery order: they allege that the required document production violates the First Amendment right of their members, and would chill political speech in future campaigns. "To cite but one obvious example, the district court’s holding that there is no constitutional protection at all for [private] communications between individuals working for different groups as part of a common and coordinated effort to achieve a particular political result is, we suggest, both wholly indefensible and vast in its implications for the conduct of future elections."

In their opening brief, Prop. 8 proponents seek clarification of a footnote in the panel's ruling on the scope of First Amendment protection from compelled disclosure of political speech and association. Footnote 12 states, in relevant part, that the panel's "holding [on the First Amendment privilege] is ... limited to communications among the core group of persons engaged in the formulation of campaign strategy and messages." Id. at 1165 n.12. Does this holding apply to individuals who formulated campaign strategy and messages, regardless of their status or importance to the campaign, and thus regardless of their membership in a "core" group? Proponents claim that it must under First Amendment jurisprudence:

"The First Amendment creates no castes. Its protection is not doled out based on some perceived rank within a political campaign or organization. Instead, the First Amendment protects the rank-and-file campaign volunteer no less than the campaign manager, the reticent or fleeting speaker no less than the campaign press secretary, the individual on a soapbox no less than the campaign executive committee."

Proponents have also filed a petition in the Supreme Court to test their interpretation of the holding in footnote 12. In their Supreme Court petition, they contend that footnote 12's "'core group' limitation runs afoul of the First Amendment." (at 12) The Supreme Court case is Hollingsworth v. Perry, No. 09-1210) Proponents asked the Supreme Court to hold the petition pending the outcome of the case brought by Equality California, ACLU, and other No on 8 groups.

If the 9th Circuit holding extends First Amendment protection to any individual who formulated campaign strategy and messages, then it bars the very "types of [private] documents and information that the district court has ordered both Proponents and Petitioners to disclose - confidential political speech shared among associates in a campaign" - whether or not they belong to a "core" group. Otherwise, Judge Walker has not clearly erred with respect to discovery orders in the case, and appellants must defer their appeal until Walker cites them for violating the latest discovery order.

Not surprisingly, the Perry plaintiffs do not want this appeal to succeed. They argue that Judges Walker and Spero have carefully followed the panel Court's instruction on First Amendment privilege when Spero crafted the latest discovery order. The Perry plaintiffs contend that the panel does not have jurisdiction to review the First Amendment claims of California Equality and the ACLU.

Recent news and commentary

2010-04-08T12:42:00.000-07:00

Perry v. Schwarzenneger

Theodore Olson addressed a group of law students and answered their questions about the case. He said that the Supreme Court didn't tip its hand when it decided to disallow a televised broadcast of the trial. He appears to take it for granted that the case will ultimately reach the Supreme Court. The legal team will not target specific Supreme Court judges (like Anthony Kennedy!) for their arguments. He repeated his reasons for bringing the case last year rather than wait on an incremental strategy. He faulted the Prop. 8 proponents for failing to demonstrate any harm from marriage equality to the institution of marriage. And he told a reporter that the case "will affect the rest of the world." (The Blog of Legal Times)

Gill v. OPM

"On Thursday, May 6, 2010, the Federal District Court in Boston will hear oral arguments on the constitutionality of the federal Defense of Marriage Act (DOMA), in the case of Gill v. Office of Personnel Management, brought by GLAD in March 2009." (GLAD press release)

Adoption - Cole v. Arkansas

"The American Civil Liberties Union and the ACLU of Arkansas will ask a Pulaski County circut court to rule in its favor in its challege to Act One, a 2008 law that bans any unmarried person who lives with a partner from serving as an adopting foster parent in Arkansas." (KTHV, Little Rock, cross-posted by ADF Alliance Alert) The ACLU makes its selected filings available here, and the Alliance Defense Fund links its briefs to this press release. Lamda Legal also has a press release.

Divorce

"So why are we talking about a same-sex couple married in Massachusetts and now divorced in Texas? It's a new area of law and divorce attorneys in Chicago and all across the country likely are taking cues from this case and ones in other states." (Steven Tanner for the Chicago Family Law Blog)

Civil Unions

"Bill in NH" writes a powerful, eloquent reply to an article on civil unions legislation, which a state Pennslvania Representative recently introduced. Bill uses his experience to defend the legislation and marriage equality laws, like the one in Massachusetts that allowed him to marry his husband before he passed away. He describes how his marriage spared him the risks of many legal conflicts at a vulnerable time. He also describes the emotional and legal problems survivors still encounter even if they enjoy the protections of their status as spouses or civil-union partners.

Recent news and commentary

2010-04-07T12:22:00.000-07:00

Perry v. Schwarzenneger

Chad Griffin is President of the American Foundation For Equal Rights, the organization that funds representation of the Perry plaintiffs. On the cover of its May issue, The Adovocate features Griffin as a standout among "Forty Under 40." (LBGT POV)

Lewis v. Harris II

Do Lewis plaintiffs have compelling evidence that marriage inequality in New Jersey gravely harms same-sex couples and their children? A columnist for NewJersey.com dismisses the evidence: "What evidence? Emotional, unverified testimony by gay and lesbian couples that they had been denied rights to which they were entitled. Plus a report by the Legislature’s own Civil Union Review Commission ... Plainly put, the commission was stacked." (NewJersey.com)

Varnum v. Brien

"On Tuesday, April 13 at 7:30 p.m., Cornell will host Brad Clark, Campaign Director for One Iowa, and Kate and Trish Varnum, plaintiffs in this historic Supreme Court case." (Cornell College Press Release)

Domestic partnerships

“Western Kentucky University officials announced Friday that the school will begin offering health insurance to qualifying dependents — including domestic partners — of its employees, starting next year.” (Courier Journal, cross-posted by ADF Alliance Alert) Kentucky has a super-DOMA amendment. I cannot assess the odds of a legal challenge by the Alliance Defense Fund or a sister organization in the state, or the odds of a lawsuit's success.

Related News

A recent poll shows that a slim majority of Californians now support marriage equality (Los Angeles Times) "Registered voters younger than 30" support it by a margin of 3 to 1. Law professor John Culhane believes that support from younger Americans will ultimately transform public perception of same-sex marriage. (WordinEdgewise) Given strong opposition by Americans older than 64, Darrin Hurwitz, HRC Assistant General Counsel, agrees that it is "not difficult to see where public opinion is headed." (HRC Back Story)

California state legislators have advanced legislation to repeal an unenforced, 1950 law that classifies gays and lesbians as 'sexual deviants' and requires the state Department of Mental Health to conduct research on "deviations conducive to sex crimes against children." (ABC News) Hurwitz said that "[t]he existence of such a law, unnoticed by many, is a sharp reminder of where attitudes towards LGBT rights used to be and, notably, of the progress that has been made since then." He predicts that "[w]hile challenges certainly remain, eventually both the 1950 sex crimes law and the 2008 anti-marriage initiative will likely be ones for the history books in California. (HRC Back Story)

Later this month, Marriage Equality New York will honor Shannon Minter among other advocates of marriage equality. (Marriage Equality New York / The Daily Gotham)

Latest appeal of discovery order in Perry v. Schwarzenneger: parties to file briefing by April 9th

2010-04-05T12:51:00.000-07:00

Perry v. Schwarzenneger, order on briefing schedule, No. 10-15649 (9th Cir. Mar. 31, 2010)

On March 22nd, Judge Walker granted an interim stay of his decision in Perry v. Schwarzenneger to uphold a discovery order by Magistrate Judge Joseph Spero . The discovery order requires Equality California and the ACLU - two of the "No on 8" groups - to produce documents that concern "arguments for or against Prop. 8," even though they are not parties to the case. Prop. 8 proponents argued that the documents may clarify the intent of those who voted for Prop. 8, and may reveal the extent of political power of gays and lesbians. Equality California and the ACLU claimed that the documents are not relevant; that a First Amendment privilege applies under Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010); and that document production would impose an undue burden on them. Judge Spero ruled that the First Amendment privilege does not apply to communications between Equality California and the ACLU, on the one hand, and certain other No on 8 organizations, on the other. He also found that the documents may contribute to a "mix of information" available to pro-8 voters. And he identified steps to ensure that document production would not impose an undue burden.

On March 25th, Equality California and the ACLU filed an emergency motion for a stay of Judge Walker's decision to sustain Spero's order, together with a motion for expedited appeal. The appeal has been assigned to the same panel that decided Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010). By April 9th, "parties shall file simultaneous briefs addressing solely the issues of whether this court has jurisdiction over this appeal and whether mandamus is appropriate."

Recent news and commentary

2010-04-03T10:01:00.000-07:00

Golinsky v. OPM

The San Francisco Daily Journal featured an article yesterday about Golinsky v. OPM, No. 10-0257 (N.D.Cal.) (John Roemer, Lawyer Hits Wall in Trying To Get Benefits For Gay Spouse; Obama Administration Staff Sympathizes With Cause But Say Their Hands Are Tied, San Francisco Daily J., Apr. 2, 2010, at 1.) The lawsuit names OPM Director John Berry, who is gay. The agency's general counsel, Elaine Kaplan, is a lesbian. Kaplan told the Daily Journal, "I get that people think it's ironic [for OPM to defend against Karen Golinksy's claim for enrollment of her wife in the federal employee medical insurance plan], but neither Director Berry nor I has the freedom to disregard the law, even though we may disagree with it." Another "irony": the Obama administration continues to block access to medical insurance for Golinksy's wife, even as President Obama just signed into law the largest expansion of medical insurance coverage for Americans since Medicare. Golinsky remains worried that her wife lacks medical insurance: "You hold your breath and pray that nothing goes awry. One bad illness or accident can leave a family devastated."

Lamda Legal Marriage Project Director Jennifer Pizer acknowledged progress by the Obama administration on policies that do not require an act of Congress. But she said that Obama's "lawyers here argue that the public interest is best served by reflexively asserting DOMA to block insurance for Golinsky's family, and to uphold a repugnant tradition of anti-gay discrimination." She also called OPM's position "a strange collection of misreadings and misapplications of federal law adding up to a disconnect."

IN ACCORDANCE WITH TITLE 17 U.S.C. SECTION 107, THIS MATERIAL IS DISTRIBUTED WITHOUT PROFIT TO THOSE WHO HAVE EXPRESSED A PRIOR INTEREST IN RECEIVING THE INCLUDED INFORMATION FOR RESEARCH AND EDUCATIONAL PURPOSES. PROP8LEGALCOMMENTARY HAS NO AFFILIATION WHATSOEVER WITH THE ORIGINATOR OF THIS ARTICLE NOR IS PROP8LEGALCOMMENTARY ENDORSED OR SPONSORED BY THE ORIGINATOR.

Varnum v. Brien - first anniversary

Kate and Trish Varnum were lead plaintiffs in Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009). They describe the lived experience of their marriage, their commitment to advocacy and their insecurity over out-of-state travel. (Iowa Independent) "It’s validation,” Trish [Varnum], 45, says grinning. “I finally have a word (marriage) to describe what our relationship is all about. I’m now equal to my brothers and sisters." (gazetteonline.com, Cedar Rapids) While Carolyn Jenison, executive director for One Iowa, said that Varnum was monumental, "I remember getting up Saturday, April 4, and walking down the street and nothing was different. People have continued to do what they've always done." The Daily Nonpareil reports on a gay couple who encountered neo-Nazis at a Council Bluffs courthouse as they sought their marriage license. "Shouting anti-gay slurs on bullhorns and holding signs with sentiments of the same ilk," the neo-Nazis subjected the couple to the Nazi salute and "Heil Hitler."

Iowa has become a wedding destination for same-sex couples in the Midwest. (AP) However, the Omaha World-Herald claims that same-sex couples have not married in Iowa in numbers predicted by The Williams Institute at UCLA. The claim remains open to question, because "Iowa does not require marriage license applicants to designate their sex on the forms that are filed with the state." Sen. Mike Gronstal, D-Council Bluffs, observed that a relatively low number of same-sex marriages in Iowa would mean that "a vast majority" of the married couples are Iowans who have benefited from the ruling. They are "people who live down the street,” Gronstal said. “They are our friends, neighbors and people who live in our communities, who pay taxes just like everybody else.” (Daily Nonpareil, Council Bluffs, Iowa)

Let Us Vote Iowa plans to target three of the Varnum Court judges who face a retention vote in the November election. The organization will also endorse state House and Senate candidates who oppose marriage equality. (The Hawk Eye) Gubernatorial candidate Rod Roberts has said that if elected he would do everything within his power to see that voters have opportunity to approve a constitutional amendment reversing Varnum. (Omaha World-Herald). Not to be outdone, another gubernatorial candidate, Bob Vander Plaats, would "will sign an executive order his first day in office halting the practice" of same-sex marriage. (Quad-City Times) Justin Uebelhor of One Iowa said that "(t)his is going to be a fight for the long haul, that the opposition here in Iowa is relentless. We're going to have a presence here for the next few years, making sure that our stories get told."(The Hawk Eye)

Civil unions legislation - Pennsylvania

Pennsylvania state Rep. Mark Cohen became the first state legislator to introduce a bill to establish civil unions. (As far as I can tell - without contacting Cohen's office - the bill has not been posted to the legislature's website.) His state has a DOMA (23 Pa.C.S.A. § 1704), but its constitution does not ban same-sex marriage, and another attempt to add a constitutional ban recently failed. State Senator Daylin Leach has championed marriage equality in the state legislature, having introduced SB 935 that would establish it. So why does Cohen prefer civil unions? "Civil unions are more attainable in a reasonable period of time than gay marriage is," Cohen said. "Civil unions don’t give gays the status of marriage, they’re not as good as marriage, but I think right now it’s a much more attainable goal." To increase support from legislators and the public, Cohen says that he will, if necessary, continue to re-introduce his legislation. Leach supports Cohen's undertaking, as it represents "incremental progress." But Leach believes - with overwhelming evidence - that civil unions institutionalize "second class citizenship," and that they can not embody "the final resolution of the issue." (Philadelphia Gay News, cross-posted by Gay Marriage Watch)

Is incremental progress better than no progress? I have suggested that it is, but my tentative suggestion requires qualification. Incremental progress should not come at the cost of stalling progress toward marriage equality, and it should reflect only a temporary concession to the need for changing recalcitrant public opinion. These qualifications, of course, may beg the question. Given that same-sex couples and their children suffer grave harms from marriage inequality, demanding marriage equality as the only remedy may have more long-term impact on public opinion than advocating civil unions as an allegedly necessary expedient. At any rate, I am ambivalent about the idea of starting with an unacceptably flawed substitute, and using it to advance the ultimate goal of marriage equality.

Recent news and commentary

2010-04-01T12:29:00.000-07:00

Varnum v. Brien

On the eve of the first anniversary of Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009), Iowa Gov. Chet Culver praised the state legislature for not adopting a proposed amendment intended to reverse the ruling (HJR 2001). Although he personally opposes same-sex marriage, he said that "[w]e stood firm for the civil rights of every Iowan by saying loudly and clearly that any and all efforts to add discriminatory amendments to our state constitution have no place in our state constitution." (Sioux City Journal / Des Moines Register) Culver faces a "tough re-election fight" against three Republican candidates who favor an amendment. One of the candidates, Rod Roberts, supports a recall of three judges on the Varnum court when voters decide on their retention next year.

Tomorrow the University of Iowa will host a panel to "to commemorate the one-year anniversary of Varnum v. Brien." (Iowa One) Panelists include Camilla Taylor, "a Senior Staff Attorney in Lambda's Midwest Regional Office and ... architect of the couples' case." On April 10th, Drake University will mark the anniversary with a symposium, "The Same-Sex Marriage Divide." (Legal Scholarship Blog / Examiner.com)

Evan Wolfson observes that "the milestone marks yet another moment in the marriage movement when critics said we couldn't - but we did." (Huffington Post)

Lewis v. Harris II

Alliance Defense Fund attorneys have filed a motion to intervene in Lewis v. Harris on behalf of three state legislators who oppose marriage equality. (NewJerseyRoom.com, cross posted by ADF Alliance Alert) The legislators claim that the plaintiffs are trying "to usurp legislative authority and compel legislative action" as a remedy.

Divorce

"A judge in Travis County declined Wednesday to consider Texas Attorney General Greg Abbott's request to intervene in the county's first same-sex divorce case, letting stand the judge's February decision to grant a divorce to two women who had been married in another state." (Houston Chronicle / FindLaw.com)

Out-of-state recognition

Last month, Maryland Delegate Don H. Dwyer, Jr., R-Anne Arundel County, introduced articles of impeachment against state Attorney General Douglas Gansler (Delgate Dwyer's Dispatches) Dwyer believes that Gansler abused his constitutional authority when he issued an advisory opinion upholding recognition of same-sex marriages licensed outside of Maryland. The impeachment has failed. (Baltimore Sun, cross-posted by Straight Talk on Marriage / AP / Washington Post)

Alliance Defense Fund files motion to intervene in Lewis v. Harris on behalf of New Jersey state legislators

2010-03-30T20:11:00.001-07:00

ADF has filed a motion to intervene in Lewis v. Harris on behalf of New Jersey Senator Gerald Cardinale, Senator Anthony R. Bucco, and Assemblyman Michael Patrick Carrol. (ADF press release)

Lecture by law professor Michael Dorf on "Same-Sex Marriage, Labels, and Social Meaning"

2010-03-30T12:33:00.000-07:00

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?

Equality Maryland plans long-term strategy to avoid testing marriage equality in an election

2010-03-29T12:31:00.000-07:00

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.)

A Pennsylvania legislator advocates marriage equality in debate with Maggie Gallagher: mishegas and the heckler's veto

2010-03-27T20:23:00.001-07:00

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.

Minority leader of Maryland state House seeks a moratorium on recognizing out-of-state, same-sex marriages

2010-03-27T09:13:00.000-07:00

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."

Recent news and commentary

2010-03-25T19:16:00.000-07:00

Lewis v. Harris II

Evan Wolfson is executive director of Freedom To Marry, and Hayley Gorenberg is deputy legal director of Lambda Legal. At Huffington Post, they examine why plaintiff couples in New Jersey have renewed their state Supreme Court case to gain marriage equality.

Perry v. Schwarzenneger

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)

Divorce

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."

Divorce case in Pennsylvania reaches constiutional question of scope of right to marry

2010-03-24T19:14:00.000-07:00

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)

Judge Vaugn Walker grants stay of discovery order pending appeal in Perry v. Schwarzenneger

2010-03-24T12:24:00.000-07:00

"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."

Recent news and commentary

2010-03-23T12:32:00.000-07:00

Divorce

"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)

Developments abroad

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)

Today Italy's Constitutional Court is supposed to "decide whether several provisions under Italy's civil code that currently restrict marriage to just "one man, one woman" are unconstitutional." (Gay Rights Blog, cross-posted by Gay Marriage Watch)

Related News

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)

Recent news and commentary

2010-03-22T19:15:00.000-07:00

Perry v. Schwarzenneger

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)

In Golinksy v. OPM, plaintiff Karen Golinsky files reply brief supporting motion for preliminary injunction

2010-03-19T21:55:00.001-07:00

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.

Recent news and commentary

2010-03-19T12:35:00.000-07:00

Perry v. Schwarzenneger

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.

Divorce

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.)

Lewis v. Harris II: Lambda Legal files motion in New Jersey Supreme Court to uphold marriage equality under state constitution

2010-03-18T12:38:00.000-07:00

Brief In Support of Plaintiffs Motion In Aid of Litigants Rights, Lewis v. Harris [II], No. 58389 (N.J. Sup. Ct., Mar. 18, 2010)

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.

For news about the renewed litigation, see AP, The Star-Ledger, NBCNewYork.com, and NorthJersey.com. Freedom to Marry has posted a video of press statements. Of course, neither the news articles nor the video can convey the singular power of this brief.

Recent news and commentary

2010-03-16T12:26:00.000-07:00

Perry v. Schwarzenneger

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.

Constitutional amendments - Pennsylvania

John Eichelberger is a Pennsylvania state Senator whose district includes Blair County, about 100 miles east of Pittsburgh. In February, he introduced a resolution (SB 707) to amend the state constitution so that it limits marriage to opposite-sex couples. The Senate Judiciary Committee has tabled his resolution. (press release, ACLU of Pennsylvania /PenLive.com / Philly.com / The [Penn State] Daily Collegian / Lebanon Daily News / Philadelphia Gay News) "Make no mistake, they voted to kill the bill, whatever other excuse they may give," said Eichelberger. (Philly.com) Senator Daylin Leach, who serves a district near Philadelphia, proposed the motion to table the resolution. (Lebanon Daily News) "I believe," he said, "that Senate Bill 707 is the antithesis of what Pennsylvanians need and want, and I am happy that the majority of my colleagues agree with me."Last year, he became the first state legislator to introduce marriage-equality legislation (SB 935).

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)

Divorce - Maryland and D.C.

Two family law practitioners - Amy Strent and Jennifer Fairfax - discuss the right to divorce for same-sex spouses in Maryland and D.C.. (WJLA.com, cross-posted by Alliance Defense Fund Alert)

Designated beneficiary agreements in Colorado

2010-03-15T12:41:00.000-07:00

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."

Procedural history of Jackson v. Bd. Elections & Ethics (re the D.C. Marriage Initiative of 2009)

2010-03-14T20:58:00.000-07:00

I've completed the first version of my procedural history. I expect to update it.

OPM files opposition to motion for preliminary injunction in Golinsky v. OPM

2010-03-12T15:46:00.000-08:00

Defendant's opposition to plaintiff's motion for a preliminary motion, filed 03/12/10 in Golinski v. U.S. Office of Personnel Management, No. 10-0257 (N.D.Cal.)

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.

Recent news and commentary

2010-03-12T12:31:00.000-08:00

Constitutional amendments - New Hampshire

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)

Shannon Minter on marriage equality and democracy

Shannon Minter is Legal Director of the National Center for Lesbian Rights. He was lead counsel for same-sex couples in In re Marriage Cases, 43 Cal.4th 757 (Cal. 2008), and argued against the state constitutionality of Prop. 8 in Strauss v. Horton, 49 Cal. 4th 364 (2009). He was a keynote speaker at a March 3rd symposium of the Southern California Review of Law and Social Justice on “Proposition 8 and Marriage Equality."

"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.

Domestic partnerships - Florida

Florida has a super-DOMA amendment (Const. Art. I), and bans adoption by gay and lesbian parents [Fla. Stat. §63.042(3)]. Cases challenging the adoption ban have lately received national media attention. But Florida shows other signs of change over the legal status of same-sex couples. In Kissimmee, a small town north of Orlando, City Commissioner Cheryl Grieb led an effort to join 12 other cities and counties that offer some form of domestic partner benefits to employees. (Item 8.A, Discussion of Domestic Partner Benefits, Kissimmee City Commission Agenda on 03-09-10; for examples, click here.) The Commission has voted to adopt the benefits proposal. "More than 300 business owners in Kissimmee also signed a petition to back the decision." (cfnews13.com; see also Equality Florida and Pam's House Blend)

Religious liberty exemption - UK

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. In Ladele v. London Borough of Islington, [2009] 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)

Recent news and commentary

2010-03-11T12:35:00.000-08:00

Perry v. Schwarzenneger

Adam Liptak of the NY Times interviewed attorneys David Boies and Theodore Olson, who represent the Perry plaintiffs. (Pam's House Blend / Gay City News / LGBT POV ) Journalist Karen Ocamb lexamines the scope of a discovery order with respect to "core groups" that campaigned against Prop. 8. (LGBT POV)

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.

Out-of-state recognition

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)

Divorce

"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)

Adoption

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)

Recent news and commentary

2010-03-10T12:25:00.000-08:00

Out-of-state recognition - Maryland

Lambda Legal and allied advocacy groups provide guidance on frequently asked questions about Maryland's recognition of out-of-state, same-sex marriages. (Cross-posted by Straight Talk on Marriage; the ACLU issued a press release here.) At The Maryland Daily Record, legal blogger Caryn Tamber makes a perceptive comment about litigation guidance by the advocates. They advise caution on seeking a legal remedy.

Super-DOMA amendment - Minnesota

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)

Recent news and commentary

2010-03-09T19:40:00.000-08:00

Jackson v. District of Columbia Bd. of Elections

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.)]

Recent news and commentary

2010-03-08T12:30:00.000-08:00

Religious liberty exemption - Ireland

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 Post reports 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 Culhane thought 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.

Custody

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.

Recent news and commentary

2010-03-07T10:11:00.000-08:00

As same-sex couples in D.C. realized their dreams by marrying, the District's marriage-equality law still has an uncertain future. The U.S. Supreme Court may have opportunity to give proponents of "traditional" marriage what they want - a decision allowing D.C. citizens to vote on the D.C. Marriage Initiative of 2009. The opportunity raised by Chief Justice Robert's decision did not escape notice by LifeSiteNews.com, a news service for evangelical Christians. It also been the subject of comment at SCOTUS Blog and Leonard Link. Given the stakes, I have been preparing a procedural history of the litigation over the initiative.

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 Culhane calls 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?

(*For example, Catholic schools in Baltimore remained segregated until 1962.)

Domestic partnerships - D.C.

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."

Divorce

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)

Custody

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)

Adoption

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).

Developments abroad

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)

The first gay wedding has taken place in Buenos Aire (Buenos Aires Herald, cross-posted by Gay Marriage Watch), and gay couples have received their first marriage licenses in Mexico City. (Wall Street Journal,CNN, and BBC, cross-posted by Gay Marriage Watch)

Hiatus as I compile a procedural history of Jackson v. D.C. Bd. of Elections that I will link to this site

2010-03-04T21:36:00.000-08:00

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

Introduction

On March 2nd, Chief Justice Roberts denied an 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.

Efforts to prevent D.C.'s marriage-equality law from taking effect tomorrow

2010-03-02T12:41:00.000-08:00

"It ain't over till it's over." Embracing its own version of Yogi Berra's insight, the Alliance Defense Fund has petitioned the U.S. Supreme Court to stay D.C.'s marriage-equality law, which takes effect tomorrow absent Congressional intervention. (Metro Weekly; Washington Post) This appeal arises from the latest of three attempts to reverse D.C.'s recognition of marriage equality. HRC Back Story has also posted the D.C. Attorney General's response brief opposing a stay by the Supreme Court. See my post for details on the prior course of the litigation.

[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.)

Recent news and commentary

2010-02-28T11:52:00.000-08:00

Perry v. Schwarzenneger

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)

Developments abroad

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)

Closing arguments in the Perry case: a public broadcast revisited

2010-02-26T12:26:00.000-08:00

Will we be able to watch a telecast of closing arguments in the Perry case? The outcome depends on a pending change in Civil Local Rule 77-3 (permanent link) of the U.S. District Court for the Northern District. (SF Chronicle) Rule 77-3 bans public broadcast of courtroom proceedings, unless the judge authorizes the broadcast "within the confines of the courthouse." The rule change, if adopted, would allow judges to request permission to participate in the 9th Circuit's new "public access program" for "dissemination of video recordings in civil non-jury matters only."(9th Circuit Judicial Council press release, issued 12/17/09; permanent link) The Court will almost certainly adopt the rule change, because the Court adopted the same rule change on January 12th (permanent link), withdrawing it only after the U.S. Supreme Court questioned the validity of the District Court's rule-making procedure. [Hollingsworth v. Perry, 558 U. S. ____ (2010) (09A648)] Once the District Court adopts the rule, Judge Walker can be expected to seek authority, under the public access program, for broadcast of the closing arguments. Alex Kozinski, Chief Judge of the 9th Circuit, would almost certainly authorize this broadcast. Before the U.S. Supreme Court intervened, he permitted Walker to proceed with real-time transmission of the trial in three courthouses, while he reviewed Walker's plan for posting delayed, YouTube files on the Court's website. (In the Matter of Pilot District Court Public Access Program Approved December 16, 2009, No. 2010-2, 9th Cir. Judicial Council, Jan. 8, 2010) (permanent link)

[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.

Recent news and commentary

2010-02-25T12:30:00.000-08:00

Recognition of out-of-state marriages - Maryland

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)

Other news

"The Future of Same-Sex Marriage" is the topic of tomorrow's University of San Francisco Law Review's Spring Symposium. (ADF Alliance Alert)

Maryland Attorney General issues advisory opinion on legal status of out-of-state, same-sex marriages

2010-02-24T12:30:00.000-08:00

Maryland Attorney General Douglas F. Gansler has issued an advisory opinion on the legal status of same-sex couples married in other states. He has determined that the state may recognize these out-of-state marriages in any of three ways - through legislation, court rulings, or administrative action. (Gay Couples Law Blog) "This opinion addresses the second way in which out-of-state marriages may be recognized in Maryland. It describes the legal landscape against which the Court of Appeals would assess the question of recognition of an out-of-state same-sex marriage and our view of how it would likely resolve this issue." Gansler concludes that the "Court is likely to respect the law of other states and recognize a same-sex marriage contracted validly in another jurisdiction." He also concludes that the Governor lacks constitutional authority to establish out-of-state recognition by executive order.

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)

Recent news and commentary

2010-02-23T12:18:00.000-08:00

Marriage equality legislation - Minnesota

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)

Recent news and commentary

2010-02-22T12:35:00.000-08:00

Taxes

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.)

Recently recognized domestic partnerships in Texas and North Carolina

2010-02-21T11:47:00.000-08:00

In August, the El Paso City Council approved health care benefits for domestic partners of city employees, even though Texas has a super-DOMA amendment. (Texas Constitution Art. 1, §32) A group calling itself "El Pasoans for Traditional Family Values" has now begun circulating a petition for a referendum on the Council's decision. The El Paso Times interviews Barney Field, who has been leading the referendum campaign. He runs the "citywide ministry El Paso for Jesus." He objects to the City's limited recognition of domestic partnerships on the grounds that it "puts nonmarried couples and same-sex couples and makes them equal to marriage."

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."

Recent news and commentary

2010-02-20T08:15:00.000-08:00

Commonwealth of Massachusetts v. U.S. Department of Health Services et al.

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.

Other news

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.

Recent news and commentary

2010-02-19T12:10:00.000-08:00

Marriage equality legislation - Minnesota

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)

Massachusetts Attorney General files motion for summary judgment in Commonwealth of Massachusetts v. U.S. Dept. of Health and Human Services

2010-02-18T21:13:00.000-08:00

Motion for summary judgment, filed 02/18/10 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)

Thanks to California attorney and site collaborator Rick Xiao for alerting me to the motion. I expect to link to commentary tomorrow.

Recent news and commentary

2010-02-18T12:29:00.000-08:00

Custody

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)

Adoption

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)

Developments abroad

"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)

President Obama

Bob Egelk of the SF Chronicle reports that 14 years before becoming President, Obama "endorsed the right of gays and lesbians to marry."

Recent news and commentary

2010-02-17T12:19:00.000-08:00

Gill v. OPM

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.

Civil unions

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.

Recent news and commentary

2010-02-16T12:11:00.000-08:00

Divorce - Texas

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)

Out-of-state recognition

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)

Related news

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."