04/04/09 Brattleboro Reformer:
"[T]he gay marriage bill [S.115] will advance to Gov. James Douglas' desk after the measure passed by 42 votes [in the state House], just a few voices shy of the two-thirds majority needed to override the governor's expected veto."
Saturday, April 4, 2009
Iowa Supreme Court unanimously rules that state's defense-of-marriage law violates equal protection clause of Iowa constitution
04/03/09 ruling in Varnum v. Brien
Here is my summary of the 69-page ruling.
In 2005, "six same-sex couples in this litigation asked the Polk County recorder to issue marriage licenses to them. The recorder, following the law, refused to issue the licenses, and the six couples have been unable to be married [in Iowa] ... In turning to the courts, the twelve plaintiffs filed this lawsuit in the Polk County District Court. They claimed the statutory same-sex marriage ban violates certain liberty and equality rights under the Iowa Constitution ... The district court concluded the statute was unconstitutional under the due process and equal protection clauses of the Iowa Constitution and granted summary judgment to the plaintiffs. It initially ordered the county recorder to begin processing marriage licenses for same-sex couples, but stayed the order during the pendency of an appeal."
"In this case," the Iowa Supreme Court ruled, "we must decide if our state statute limiting civil marriage to a union between a man and a woman violates the Iowa Constitution, as the district court ruled. On our review, we hold the Iowa marriage statute violates the equal protection clause of the Iowa Constitution. Therefore, we affirm the decision of the district court."
The Court also ruled that even if a law was enacted to confer all the rights and duties of marriage on same-sex civil unions, that law would not satisfy the state constitution's equal protection clause. In this respect, the Iowa Supreme Court has departed from state Supreme Court rulings in Vermont [Baker v. State, 744 A.2d 864, 887 (Vt. 1999)] and New Jersey [Lewis v. Harris, 908 A.2d 196, 221 (N.J. 2006)], which required the legislature to enact civil union laws as equal protection remedies.
The constitutional issue of equal protection comes to the Court "with the same importance as our landmark cases of the past" overturning slavery and segregation. The Court found that even though same-sex couples can not naturally procreate, same-sex and opposite-sex couples are similarly situated with respect to the purposes of the state's marriage law. The Court also found that the state's marriage law classifies eligibility for marriage according to sexual orientation, even if gays and lesbians may marry members of the opposite sex.
Furthermore, the Court decided that, like the Connecticut Supreme Court [Kerrigan v. Commissioner of Public Health, 957 A.2d 407, 432 (2008)] and the California Supreme Court [In re Marriage Cases, 183 P.3d 384, 442-43(2008)], it must apply heightened scrutiny to whether the state may treat same-sex couples unequally by excluding them from marriage. Distinguishing between stronger and weaker levels of scrutiny - "strict scrutiny" and "intermediate scrutiny," respectively - the Court found that even under the weaker standard of intermediate scrutiny, Iowa's marriage law violates the state consitution's guarantee of equal protection.
Intermediate scrutiny requires the Court to deterimine whether the state has an important purpose in limiting marriage to opposite-sex couples, and whether the law's marrital exclusion of same-sex couples is substantially related to that purpose. The Court considered the government's reasons for excluding same-sex couples from civil marriage. The reasons advanced include:
1. "Maintaining traditional marriage."
2. "Promotion of optimal environment to raise children."
3. "Promotion of procreation."
4. "Promoting stability in opposite-sex relationships."
5. "Conservation of resources."
The Court found that the state constitution's "equal protection clause requires more than has been offered to justify the continued existence of the same-sex marriage ban under the statute." The statutory ban on same-sex miarriage does not substantially further several of the law's stated goals, because the means of the statutory ban falls too short of its goals, or because it overreaches. The ban fars too short of meeting a goal by letting heterosexuals marry even when they lack a trait the goal requires, even as the ban applies to gays and lesbians who have that trait. And it overreaches by excluding same-sex couples whose exclusion the goal does not require.
The Court concluded that the first reason is, in fact, a fallacy of circular reasoning. It is akin to saying that the government must continue to exclude same-sex couples from marriage, based on their sexual orientation, in order to maintain a tradition of such exclusion.
The second reason is an important justification, but excluding same-sex couples from marriage does not substantially advance it. The marriage law does not reach far enough with respect to its child-raising goal, because it allows heterosexual parents to marry who are unsuited to good parenting, even as it also overreaches by denying marriage to same-sex couples who do not wish to raise children. In addition, it does not protect the best interests of children of same-sex couples, and does not benefit the children of opposite-sex couples.
While the third reason also represents an important justification, "the link between exclusion of gay and lesbian people from marriage and increased procreation is far too tenuous to withstand heightened scrutiny." The Court could find no connection between the fourth goal and the marrital exclusion of same-sex couples. And if the fifth goal of banning same-sex marriage is to conserve state resources, the marriage law does not reach far enough, and also overreaches. It does not reach far enough, because "[e]xcluding any group from civil marriage—African-Americans, illegitimates, aliens, even red-haired individuals—would conserve state resources in an equally 'rational' way." And it overreaches, because same-sex couples may not need state resources any more than opposite-sex couples, and yet same-sex couples are not allowed to marry.
Finally, the Court determined that "civil marriage must be judged under our constitutional standards of equal protection and not under religious doctrines or the religious views of individuals." The Court was careful to acknowledge the state constitution's guarantee of religious freedom to solemnize marriages according to religious values.
Here is my summary of the 69-page ruling.
In 2005, "six same-sex couples in this litigation asked the Polk County recorder to issue marriage licenses to them. The recorder, following the law, refused to issue the licenses, and the six couples have been unable to be married [in Iowa] ... In turning to the courts, the twelve plaintiffs filed this lawsuit in the Polk County District Court. They claimed the statutory same-sex marriage ban violates certain liberty and equality rights under the Iowa Constitution ... The district court concluded the statute was unconstitutional under the due process and equal protection clauses of the Iowa Constitution and granted summary judgment to the plaintiffs. It initially ordered the county recorder to begin processing marriage licenses for same-sex couples, but stayed the order during the pendency of an appeal."
"In this case," the Iowa Supreme Court ruled, "we must decide if our state statute limiting civil marriage to a union between a man and a woman violates the Iowa Constitution, as the district court ruled. On our review, we hold the Iowa marriage statute violates the equal protection clause of the Iowa Constitution. Therefore, we affirm the decision of the district court."
The Court also ruled that even if a law was enacted to confer all the rights and duties of marriage on same-sex civil unions, that law would not satisfy the state constitution's equal protection clause. In this respect, the Iowa Supreme Court has departed from state Supreme Court rulings in Vermont [Baker v. State, 744 A.2d 864, 887 (Vt. 1999)] and New Jersey [Lewis v. Harris, 908 A.2d 196, 221 (N.J. 2006)], which required the legislature to enact civil union laws as equal protection remedies.
The constitutional issue of equal protection comes to the Court "with the same importance as our landmark cases of the past" overturning slavery and segregation. The Court found that even though same-sex couples can not naturally procreate, same-sex and opposite-sex couples are similarly situated with respect to the purposes of the state's marriage law. The Court also found that the state's marriage law classifies eligibility for marriage according to sexual orientation, even if gays and lesbians may marry members of the opposite sex.
Furthermore, the Court decided that, like the Connecticut Supreme Court [Kerrigan v. Commissioner of Public Health, 957 A.2d 407, 432 (2008)] and the California Supreme Court [In re Marriage Cases, 183 P.3d 384, 442-43(2008)], it must apply heightened scrutiny to whether the state may treat same-sex couples unequally by excluding them from marriage. Distinguishing between stronger and weaker levels of scrutiny - "strict scrutiny" and "intermediate scrutiny," respectively - the Court found that even under the weaker standard of intermediate scrutiny, Iowa's marriage law violates the state consitution's guarantee of equal protection.
Intermediate scrutiny requires the Court to deterimine whether the state has an important purpose in limiting marriage to opposite-sex couples, and whether the law's marrital exclusion of same-sex couples is substantially related to that purpose. The Court considered the government's reasons for excluding same-sex couples from civil marriage. The reasons advanced include:
1. "Maintaining traditional marriage."
2. "Promotion of optimal environment to raise children."
3. "Promotion of procreation."
4. "Promoting stability in opposite-sex relationships."
5. "Conservation of resources."
The Court found that the state constitution's "equal protection clause requires more than has been offered to justify the continued existence of the same-sex marriage ban under the statute." The statutory ban on same-sex miarriage does not substantially further several of the law's stated goals, because the means of the statutory ban falls too short of its goals, or because it overreaches. The ban fars too short of meeting a goal by letting heterosexuals marry even when they lack a trait the goal requires, even as the ban applies to gays and lesbians who have that trait. And it overreaches by excluding same-sex couples whose exclusion the goal does not require.
The Court concluded that the first reason is, in fact, a fallacy of circular reasoning. It is akin to saying that the government must continue to exclude same-sex couples from marriage, based on their sexual orientation, in order to maintain a tradition of such exclusion.
The second reason is an important justification, but excluding same-sex couples from marriage does not substantially advance it. The marriage law does not reach far enough with respect to its child-raising goal, because it allows heterosexual parents to marry who are unsuited to good parenting, even as it also overreaches by denying marriage to same-sex couples who do not wish to raise children. In addition, it does not protect the best interests of children of same-sex couples, and does not benefit the children of opposite-sex couples.
While the third reason also represents an important justification, "the link between exclusion of gay and lesbian people from marriage and increased procreation is far too tenuous to withstand heightened scrutiny." The Court could find no connection between the fourth goal and the marrital exclusion of same-sex couples. And if the fifth goal of banning same-sex marriage is to conserve state resources, the marriage law does not reach far enough, and also overreaches. It does not reach far enough, because "[e]xcluding any group from civil marriage—African-Americans, illegitimates, aliens, even red-haired individuals—would conserve state resources in an equally 'rational' way." And it overreaches, because same-sex couples may not need state resources any more than opposite-sex couples, and yet same-sex couples are not allowed to marry.
Finally, the Court determined that "civil marriage must be judged under our constitutional standards of equal protection and not under religious doctrines or the religious views of individuals." The Court was careful to acknowledge the state constitution's guarantee of religious freedom to solemnize marriages according to religious values.
Thursday, April 2, 2009
Iowa Supreme Court to issue ruling in Varnum v. Brien on same-sex marriage
04/02/09 ADF Alliance Alert:
KCCI 8 reports: “The court said Thursday morning that the written ruling would be issued at 8:30 a.m. on Friday[, April 3rd,] on the Iowa Supreme Court’s Web site. The court has been reviewing a lower court’s ruling that overturned the state’s ban on same-sex marriages.”
KCCI 8 reports: “The court said Thursday morning that the written ruling would be issued at 8:30 a.m. on Friday[, April 3rd,] on the Iowa Supreme Court’s Web site. The court has been reviewing a lower court’s ruling that overturned the state’s ban on same-sex marriages.”
Sweden approves gay marriage
04/02/09 Australian Gay and Lesbian Law Blog:
"Sweden legislators have voted overwhelmingly to approve same sex marriage, the fifth European country to do so."
"Sweden legislators have voted overwhelmingly to approve same sex marriage, the fifth European country to do so."
New York's Highest Court to Rule on Recognition of Same-Sex Marriages Contracted Outside the State
04/01/09 Leonard Link:
New York Law School Professor Arthur Leonard writes:
"The New York Court of Appeals will finally weigh in on the question of legal recognition by New York of same-sex marriages contracted elsewhere. On March 31, 2009, the court granted leave to appeal in decisions from the Appellate Division, 2nd and 3rd Departments, that had rejected challenges backed by the Alliance Defense Fund to the actions of government officials recognizing such marriages. The cases will be argued in the fall."
See also this post on the role of ADF in the New York litigation, and this ADF press release.
New York Law School Professor Arthur Leonard writes:
"The New York Court of Appeals will finally weigh in on the question of legal recognition by New York of same-sex marriages contracted elsewhere. On March 31, 2009, the court granted leave to appeal in decisions from the Appellate Division, 2nd and 3rd Departments, that had rejected challenges backed by the Alliance Defense Fund to the actions of government officials recognizing such marriages. The cases will be argued in the fall."
See also this post on the role of ADF in the New York litigation, and this ADF press release.
Pending legislation in Washington would confer upon domestic partnerships all rights and duties of marriage
03/31/09 Yakima-Herald Republic
Washington is among nine states that have laws on civil unions and domestic partnerships. It may soon join five states whose laws also extend to civil unions the same rights and duties of marriage.
SB 5688 expands the rights and responsibilities of Washington state-registered domestic partnerships. According to the bill digest, it "declares that for all purposes under state law, state registered domestic partners shall be treated the same as married spouses." The state Senate has already passed the legislation. The House Committee on Ways and Means will hold a public hearing on the bill on April 6th. (A companion bill, HR 1727, appears to be on hold before the House Rules Committee.)
The Yakima-Herald Republic reports that the "sponsor of Senate Bill 5688, Sen. Ed Murray, D-Seattle, has not disguised the fact he sees it as a step toward legalized gay marriage in Washington state." Not surprisingly, his candidness has inflamed opposition from religious organizations. "Groups opposed to gay marriage, such as the Washington Values Alliance and the Bellevue-based Faith and Freedom Alliance, promise to file a referendum putting the matter before the state's voters."
Several legislators were interviewed, including two Republicans who have crossed party lines to support the legislation. Both have friends or sons who are gay. "Society itself has to wake up," Ken Lewis, president of the Yakima gay social group First Fridays. "But some of it [incremental acceptance of same-sex marriage] is going to come from person-to-person contact. In other words, it's harder to discriminate against someone you know."
The prospect of changing public opinion concerns the Washington Values Alliance, which believes that SB 5688 would give same-sex couples opportunity to raise an equal-protection challenge to the state's Defense of Marriage Act, just as happened in California. Among its other reasons to oppose the legislation, Alliance President Larry Stickney said that "[i]f same-sex marriage becomes the law in Washington, every public school will be forced to teach that same-sex 'marriage' and homosexuality are perfectly normal." Opponents of same-sex marriage share a fear of classroom instruction contrary to the religious values of parents. Nicole Theis, executive director of the Delaware Family Policy Council, recently expressed this fear in testimony for SB 27, Delaware's defeated constitutional amendment to ban same-sex marriages. And so have proponents of Prop. 8.
Washington is among nine states that have laws on civil unions and domestic partnerships. It may soon join five states whose laws also extend to civil unions the same rights and duties of marriage.
SB 5688 expands the rights and responsibilities of Washington state-registered domestic partnerships. According to the bill digest, it "declares that for all purposes under state law, state registered domestic partners shall be treated the same as married spouses." The state Senate has already passed the legislation. The House Committee on Ways and Means will hold a public hearing on the bill on April 6th. (A companion bill, HR 1727, appears to be on hold before the House Rules Committee.)
The Yakima-Herald Republic reports that the "sponsor of Senate Bill 5688, Sen. Ed Murray, D-Seattle, has not disguised the fact he sees it as a step toward legalized gay marriage in Washington state." Not surprisingly, his candidness has inflamed opposition from religious organizations. "Groups opposed to gay marriage, such as the Washington Values Alliance and the Bellevue-based Faith and Freedom Alliance, promise to file a referendum putting the matter before the state's voters."
Several legislators were interviewed, including two Republicans who have crossed party lines to support the legislation. Both have friends or sons who are gay. "Society itself has to wake up," Ken Lewis, president of the Yakima gay social group First Fridays. "But some of it [incremental acceptance of same-sex marriage] is going to come from person-to-person contact. In other words, it's harder to discriminate against someone you know."
The prospect of changing public opinion concerns the Washington Values Alliance, which believes that SB 5688 would give same-sex couples opportunity to raise an equal-protection challenge to the state's Defense of Marriage Act, just as happened in California. Among its other reasons to oppose the legislation, Alliance President Larry Stickney said that "[i]f same-sex marriage becomes the law in Washington, every public school will be forced to teach that same-sex 'marriage' and homosexuality are perfectly normal." Opponents of same-sex marriage share a fear of classroom instruction contrary to the religious values of parents. Nicole Theis, executive director of the Delaware Family Policy Council, recently expressed this fear in testimony for SB 27, Delaware's defeated constitutional amendment to ban same-sex marriages. And so have proponents of Prop. 8.
Wednesday, April 1, 2009
Predicting the Continued Validity of Last Summer's Marriages
o3/30/09 Waldlaw Blog:
Deborah Wald is Founder of the Wald Law Group, a "multi-disciplinary family law firm [in San Francisco] addressing the broad legal needs of all contemporary families." She is also Chair of the National Family Law Advisory Council of the National Center for Lesbian Rights, and Co-Chair of the Board of Directors of Our Family Coalition. In this post, she says that she "feels quite safe in guessing that the justices are not planning on invalidating anyone's marriage that was entered into in reliance on In re Marriage Cases [43 Cal.4th 757 (2008)]."
Deborah Wald is Founder of the Wald Law Group, a "multi-disciplinary family law firm [in San Francisco] addressing the broad legal needs of all contemporary families." She is also Chair of the National Family Law Advisory Council of the National Center for Lesbian Rights, and Co-Chair of the Board of Directors of Our Family Coalition. In this post, she says that she "feels quite safe in guessing that the justices are not planning on invalidating anyone's marriage that was entered into in reliance on In re Marriage Cases [43 Cal.4th 757 (2008)]."
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