Recent news and commentary

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)

Recent news and commentary

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

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."