04/09/09 NY Times:
"Advocates for same-sex marriage in New York and New Jersey said the action in Vermont was one more reminder that now, more than ever before, is the time for the states to grant full marital rights for gay and lesbian couples ... On Wednesday, as both sides moved to seize the momentum, Gov. David A. Paterson vowed to introduce a bill that would legalize gay marriage ... New York and New Jersey are both closer to legalizing same-sex marriage than they were a year ago, but it still could be some time before either state acts ... Gov. Jon S. Corzine of New Jersey has said he will sign a bill allowing gay couples to marry."
Source of reference to NY Times article: ADF Alliance Alert
04/09/09 Ben Smith's Politico Blog:
"The National Organization for Marriage, a prominent backer of the successful campaign against same-sex marriage in California, is launching a $1.5 million ad campaign this morning aimed at forestalling same-sex marriage support in other key states."
"UPDATE: The gay rights group Human Rights Campaign responds to the ad's assertions."
Source of reference to Politico Blog: ADF Alliance Alert
The NY Times reports on the ad:
"The first television commercial, with people describing same-sex marriage as a threat to their personal and religious freedoms against a backdrop of dark clouds and bolts of lightening, began appearing on Wednesday [April 8th]."
04/09/09 Leonard Link:
Summarizing the latest developments on the legal status of same-sex couples, New York Law School Professor Arthur Leonard considers evidence that it has reached a "tipping point" for the marriage-equality movement to spread to other states. He thinks that
"the Iowa decision is causing the more thoughtful conservatives to think anew about the marriage issue. After all, it was a unanimous, bipartisan ruling from the heartland of America, written in plain English, making cogent arguments, exploding popular right-wing myths, and ultimately leading to the most important question in this entire debate: 'Why not?'"
He also speculates on the timing of the recent challenge to the federal Defense of Marriage Act on behalf of eight Massachusetts same-sex couples and three same-sex widows. The Gay and Lesbian Advocates and Defenders, which co-filed the lawsuit,
"studiously avoided any head-on challenges to DOMA until there was some momentum towards same-sex marriages - until a tipping point seemed to be reached - so clearly filing the lawsuit was a sign that the point has arrived to seek FULL marriage rights, which requires federal recognition of the marriage status created under state law."
04/07/09 NY Times:
"MONTPELIER, Vt. — Gay-rights groups say that momentum from back-to-back victories on same-sex marriage in Vermont and Iowa could spill into other states, particularly since at least nine other legislatures are considering measures this year to allow marriage between gay couples ... New York, New Jersey, Maine and New Hampshire are among the states where such proposals have gained legislative support in recent months ... Several groups that oppose same-sex marriage suggested Tuesday that the successive victories for gay rights advocates would give the opposition movement new energy." (On expressions of opposition, see also this Christian Post article.)
Jennifer C. Pizer, the marriage project director for Lambda Legal, told the NY Times that in states whose constitutions ban same-sex marriage, "we will have a period that we really haven’t ever seen before in American history of people needing to undo state constitutional amendments — which is not an easy thing to do."
Source of reference to NY Times article: ADF Alliance Alert
04/04/09 NY Times:
"But for now, New England remains the nucleus of the same-sex marriage movement, with a campaign under way to extend marriage rights to gay men and lesbians in all six of the region’s states by 2012."
Source of reference to NY Times article: ADF Alliance Alert
04/08/09 Florida Baptist Witness:
Douglas Napier, an attorney with the conservative Alliance Defense Fund, called the ruling [in Varnum v. Brien]“astonishing.” A native Iowan, he has practiced law there for 16 years. “I don’t think it’s over in Iowa yet. If you look at the track record in the states, 30 out of 30 times when marriage has been put to the people, the people have upheld traditional marriage,” he told Baptist Press. “I expect Iowans to follow that. ... If a marriage amendment was put before the people of Iowa today, I think we would probably see some of the highest numbers in the country in all of the marriage amendment elections in favor of marriage. This decision does not represent Iowa.”
Source of reference to Baptist Witness article: ADF Alliance Alert
04/07/09 Church Executive:
Groups supporting traditional marriage say they expect the Iowa ruling to prompt other states to seek constitutional marriage amendments. ‘This (ruling) will catapult all of those states forward in the marriage amendment process,’ said Douglas Napier, senior legal counsel for the Alliance Defense Fund, a Christian legal group, according to the Associated Press. ‘I think they’re going to work hard to get it on their constitution before another renegade court goes out and creates new law,’ he told AP.”
Source of reference to Church Executive article: ADF Alliance Alert
04/06/09 Google News comment by ADF Senior Legal Counsel Douglas Napier, in response to Evan Wolfson, author of Why Marriage Matters; America, Equality, and Gay People’s Right to Marry:
Napier, in his comment, faults Iowa legislators for not pursuing a state constitutional amendment to reverse the Varnum ruling:
"The [Iowa] politicians who are keeping the marriage amendment bottled up in committee know that if the legislature voted on the amendment, it would pass, and it would pass again during the next qualified session of the legislature, and it would then be approved by the people of Iowa. They know that in 30 out of 30 states when the people have had the opportunity to decide the issue of marriage, marriage as defined as a union between one man and one woman has always won. They know that, when the people decide, their elusive rainbow fades away."
Source of reference to Napier's comment: ADF Alliance Alert
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Thursday, April 9, 2009
Wednesday, April 8, 2009
D.C. Council Votes To Recognize Gay Nuptials Elsewhere
04/08/09 Washington Post:
"The D.C. Council unanimously voted yesterday to recognize gay marriages performed elsewhere, joining a growing number of states to loosen restrictions on the unions ... Under Home Rule, the District's laws are subject to approval by Congress ... [D.C. Council Member David A.] Catania plans to introduce legislation 'very soon' to legalize gay marriage in the District."
Source of reference to Washington Post article: Stop8.org
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.
"The D.C. Council unanimously voted yesterday to recognize gay marriages performed elsewhere, joining a growing number of states to loosen restrictions on the unions ... Under Home Rule, the District's laws are subject to approval by Congress ... [D.C. Council Member David A.] Catania plans to introduce legislation 'very soon' to legalize gay marriage in the District."
Source of reference to Washington Post article: Stop8.org
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.
Tuesday, April 7, 2009
Vermont legalizes gay marriage and the role of courts in popular constitutionalism
04/07/09 Burlington Free Press:
"MONTPELIER — Vermont has become the fourth state to legalize gay marriage — and the first to do so with a legislature’s vote.
"The Legislature voted Tuesday to override Gov. Jim Douglas’ veto of a bill allowing gays and lesbians to marry. The vote was 23-5 to override in the state Senate and 100-49 to override in the House. Under Vermont law, two-thirds of each chamber had to vote for override."
Vermont is "now the fourth state to permit same-sex marriage. Massachusetts, Connecticut and Iowa are the others. Their approval of gay marriage came from the courts."
The hunter of justice blog provides this Burlington Free Press link to the veto override in the state House. Vermont Public Radio provides full coverage of the legislature's action on the marriage equality legislation.
04/07/09 Gender & Sexuality Law Blog:
Law professor Katherine M. Franke is Director of Columbia Law School's Gender & Sexuality Law Program. She favors legalization of same-sex marriage "through legislative action as compared with the [defense-of-marriage] law being invalidated from the top down by the courts." A Washington Post editorial also praises the legitimacy of "the right of the duly elected peoples' representatives [in Vermont] to take such action."
But court intervention can provide a critical catalyst to democratic reform of the kind Franke and the Washington Post favor. Former Chief Justice Jefff Amestoy wrote the majority opinion in Baker v. State of Vermont, 744 A.2d 865 (Vt. 1999). This ruling required Vermont to honor its constitutional guarantee of equal protection to same-sex couples, and ultimately led to today's historic fulfilment of that guarantee in enactment of the marriage equality law. Amestoy recently wrote of the Prop. 8 litigation that "a judicial decision may be the opening argument in a process that preserves the ultimate constitutional authority of the people."
Of course, state supreme courts have no opportunity to spark or advance democratic reform in states whose constitutional amendments limit such fundamental rights as the rights to marry. (29 states have constitutional amendments that ban same-sex marriage, and 43 states have amendments and/or statutes that ban it.) And yet even in these states, public opinion may gradually respond to rulings by other state supreme courts to remove restrictions on the exercise of fundamental rights. Rulings to uphold equal protection of the right to marry have the potential to help shift public opinion, especially as married same-sex couples can be expected to follow the example of married same-sex couples in New York, who have challenged that state's DOMA with respect to recognition of their out-of-state marriages.
On the other hand, at least one celebrated, state supreme court ruling on the right to marry did not help change public opinion. Over 30 states had constitutional provisions and/or statutes banning interracial marriage when, in Perez v. Sharp, 32 Cal.2d 71 (1948), the California Supreme Court took the unprecedented step of outlawing restrictions on interracial marriage. (See my 03/28/09 post.) Less than 20 years later, in Loving v. Virginia, 388 U.S. 1 (1967), the U.S. Supreme Court overturned constitutional and statutory bans on interracial marriage. In the interim, 14 states repealed such bans (Loving, at 6, n.5). Perez had no direct influence on the repeals, even as it at anticipated changing public opinion on interracial marriage.
Moreover, as Franke observes, court intervention can backfire in the handful of states that allow voters to directly amend the state constitution through a constitutional initiative. In California, the relative ease of state constitutional amendment may subvert state constitutional protection of fundamental rights when the California Supreme Court acts to uphold such rights. Or so Chief Justice Ronald George appeared to suggest in the Prop. 8 oral arguments.
But over the long-term, the California Supreme Court's ruling in In re Marriage Cases, 43 Cal.4th 757 (2008), may not backfire. If the Court upholds Prop. 8, that outcome is likely to renew democratic participation, in the form of another voter-initiative amendment to repeal Prop. 8. In fact, such an initiative amendment has already been proposed for California's 2010 election. (See pending intiative 1357, reinstating the "Right of Same-Sex Couples to Marry. Initiative Constitutional Amendment.") Reporting on how the Prop. 8 litigation has affected young voters in Colorado, the Denver Post identifies young sponsors of a proposed initiative amendment in that state to repeal its 2006 constitutional amendment banning same-sex marriage.
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.
"MONTPELIER — Vermont has become the fourth state to legalize gay marriage — and the first to do so with a legislature’s vote.
"The Legislature voted Tuesday to override Gov. Jim Douglas’ veto of a bill allowing gays and lesbians to marry. The vote was 23-5 to override in the state Senate and 100-49 to override in the House. Under Vermont law, two-thirds of each chamber had to vote for override."
Vermont is "now the fourth state to permit same-sex marriage. Massachusetts, Connecticut and Iowa are the others. Their approval of gay marriage came from the courts."
The hunter of justice blog provides this Burlington Free Press link to the veto override in the state House. Vermont Public Radio provides full coverage of the legislature's action on the marriage equality legislation.
04/07/09 Gender & Sexuality Law Blog:
Law professor Katherine M. Franke is Director of Columbia Law School's Gender & Sexuality Law Program. She favors legalization of same-sex marriage "through legislative action as compared with the [defense-of-marriage] law being invalidated from the top down by the courts." A Washington Post editorial also praises the legitimacy of "the right of the duly elected peoples' representatives [in Vermont] to take such action."
But court intervention can provide a critical catalyst to democratic reform of the kind Franke and the Washington Post favor. Former Chief Justice Jefff Amestoy wrote the majority opinion in Baker v. State of Vermont, 744 A.2d 865 (Vt. 1999). This ruling required Vermont to honor its constitutional guarantee of equal protection to same-sex couples, and ultimately led to today's historic fulfilment of that guarantee in enactment of the marriage equality law. Amestoy recently wrote of the Prop. 8 litigation that "a judicial decision may be the opening argument in a process that preserves the ultimate constitutional authority of the people."
Of course, state supreme courts have no opportunity to spark or advance democratic reform in states whose constitutional amendments limit such fundamental rights as the rights to marry. (29 states have constitutional amendments that ban same-sex marriage, and 43 states have amendments and/or statutes that ban it.) And yet even in these states, public opinion may gradually respond to rulings by other state supreme courts to remove restrictions on the exercise of fundamental rights. Rulings to uphold equal protection of the right to marry have the potential to help shift public opinion, especially as married same-sex couples can be expected to follow the example of married same-sex couples in New York, who have challenged that state's DOMA with respect to recognition of their out-of-state marriages.
On the other hand, at least one celebrated, state supreme court ruling on the right to marry did not help change public opinion. Over 30 states had constitutional provisions and/or statutes banning interracial marriage when, in Perez v. Sharp, 32 Cal.2d 71 (1948), the California Supreme Court took the unprecedented step of outlawing restrictions on interracial marriage. (See my 03/28/09 post.) Less than 20 years later, in Loving v. Virginia, 388 U.S. 1 (1967), the U.S. Supreme Court overturned constitutional and statutory bans on interracial marriage. In the interim, 14 states repealed such bans (Loving, at 6, n.5). Perez had no direct influence on the repeals, even as it at anticipated changing public opinion on interracial marriage.
Moreover, as Franke observes, court intervention can backfire in the handful of states that allow voters to directly amend the state constitution through a constitutional initiative. In California, the relative ease of state constitutional amendment may subvert state constitutional protection of fundamental rights when the California Supreme Court acts to uphold such rights. Or so Chief Justice Ronald George appeared to suggest in the Prop. 8 oral arguments.
But over the long-term, the California Supreme Court's ruling in In re Marriage Cases, 43 Cal.4th 757 (2008), may not backfire. If the Court upholds Prop. 8, that outcome is likely to renew democratic participation, in the form of another voter-initiative amendment to repeal Prop. 8. In fact, such an initiative amendment has already been proposed for California's 2010 election. (See pending intiative 1357, reinstating the "Right of Same-Sex Couples to Marry. Initiative Constitutional Amendment.") Reporting on how the Prop. 8 litigation has affected young voters in Colorado, the Denver Post identifies young sponsors of a proposed initiative amendment in that state to repeal its 2006 constitutional amendment banning same-sex marriage.
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.
Iowa Senate Majority leader says no move to overturn gay marriage decision
04/07/09 ABC News
On March 13th, two Iowa House Representatives introduced a proposed constitutional amendment to ban same-sex marriage if the state Supreme Court overturned Iowa's Defense of Marriage Act [Iowa Code section 595.2(1)]. Although the Court overturned the state DOMA on April 3rd, ABC News reports that Senate Majority Leader Michael Gronstal, D-Council Bluffs, does not intend to act on the proposed amendment.
"One option for gay marriage opponents seeking to amend the state's constitution is to push for a constitutional convention. Every 10 years voters are asked in the general election ballot if they want to hold a constituitonal convention.
"If voters decide in 2010 they want one, it could be held the following year."
(Source of ABC News report: ADF Alliance Alert)
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.
On March 13th, two Iowa House Representatives introduced a proposed constitutional amendment to ban same-sex marriage if the state Supreme Court overturned Iowa's Defense of Marriage Act [Iowa Code section 595.2(1)]. Although the Court overturned the state DOMA on April 3rd, ABC News reports that Senate Majority Leader Michael Gronstal, D-Council Bluffs, does not intend to act on the proposed amendment.
"One option for gay marriage opponents seeking to amend the state's constitution is to push for a constitutional convention. Every 10 years voters are asked in the general election ballot if they want to hold a constituitonal convention.
"If voters decide in 2010 they want one, it could be held the following year."
(Source of ABC News report: ADF Alliance Alert)
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.
Saturday, April 4, 2009
Legal commentary on the Iowa Supreme Court's decision to overturn the state's statutory ban on same-sex marriage
I summarize the ruling here , and Brisbane family law practitioner Stephen Page summarizes it here. New York Law School Professor Arthur Leonard provides his analysis here.
Press Comments: Impact in California and West Virginia
04/04/09 Washington Post:
"Justices look at opinions from other states," said Jennifer C. Pizer, the national marriage project director for Lambda Legal, which brought the Iowa case. "There's a significant likelihood that [the decision] will influence other states, like California."
04/03/09 NY Times:
Camilla Taylor, a senior staff lawyer for Lambda, said the Supreme Court ruling in a way was merely "vindicating quintessential Iowa values," namely, a commitment to families. That this battle was being waged in Iowa, Ms. Taylor said, would have a "transformative effect" not just on the Midwest, but elsewhere.
"The fact that it's here in some way highlights the inevitability of this all," she said.
04/04/09 Palm Springs Desert Sun:
Shannon Minter is legal director of the National Center for Lesbian Rights (NCLR), and participated in the Prop. 8 litigation oral arguments. NCLR filed an amicus brief in the Iowa case. This article produces a statement from NCLR's press release:
"The eyes of California and the world are now on the California Supreme Court, which must determine whether equal protection means equal, and whether Californians will continue to share that equality in the freedom to marry. We hope the California Supreme Court will uphold the principle of equality, just as the Iowa Supreme Court has done.”
04/03/09 Liberty Counsel press release:
Mathew Staver is founder of Liberty Counsel and Dean of Liberty University School of Law. He filed motions to intervene and amicus briefs in the Prop. 8 litigation and the Varnum case. In his press release, he said:
"The definition of marriage, which throughout history has been defined as a union of one man and one woman, is not discriminatory. Maintaining the definition of marriage does not deprive anyone of the fundamental right to marry. Laws may properly restrict marriage of same-sex couples just as the law may forbid incestuous or polygamous marriages."
He also told the Washington Post:
"The Iowa Supreme Court has become a proselytizing engine of radical social change. Untying the knot that holds together traditional marriage will unravel the family, destabilize the culture and harm children."
04/04/09 SF Chronicle:
UC Hastings School of Law Professor Calvin Massey said, ""I think you're likely to see more victories in judicial chambers for advocates of same-sex marriage. The judiciary in general is more liberal on this issue than the population as a whole."
04/04/09 LA Times:
University of Southern California law professor David Cruz told the LA Times that the ruling could influence the California Supreme Court's decision on Prop. 8 "if there are justices who are still wavering one way or another."
"It shows them that a Republican appointee writing for a unanimous court in a not decidedly liberal state takes the view that there are basic constitutional guarantees that are especially important for the judiciary to enforce," Cruz said.
"The opinion is very, very careful to lay out its understanding of the role of the judiciary at some length and to defend that role," Cruz said, adding that the ruling dealt heavily with "the importance of an independent judiciary enforcing constitutional rights even if they might be unpopular with a large majority."
04/03/09 West Virginia MetroNews:
Speaking about a proposed constitutional ban on same-sex marriage, [attorney] Steven Skinner, with Fairness West Virginia says what happens in Iowa will stay in Iowa. "This is an Iowa decision on Iowa law based on the Iowa Constitution," Skinner said on Friday's MetroNews Talkline. "It really has no effect in West Virginia and we need to make sure that we stay calm about what this means because it really doesn't mean anything in West Virginia."
Source of MetroNews reference: 04/03/09 ADF Alliance Alert
04/04/09 Christian Science Monitor:
"The strongest argument for traditional marriage has always been anchored in faith," says Douglas Kmiec, a law professor at California's Pepperdine University and an opponent of same-sex marriage. "The issue is one that affects every part of the country and it is a topic that requires the balancing of claims of equality and religious freedom," he adds.
He argues that legislatures need to carve out explicit religious exemptions. These would ensure that legal protections for gay equality do not eventually impact churches' tax benefits, hiring practices, and public activities. He and others have also mooted removing the state from marriage altogether.
Blog Posts
04/04/09 NY Times Room for Debate Blog:
"The Iowa Supreme Court struck down as unconstitutional the state’s 1998 law limiting marriage to a man and a woman. Iowa now becomes the third state in the country, along with Massachusetts and Connecticut, to allow gay marriage. The decision is considered groundbreaking because no Midwestern state has permitted same-sex marriage, and at least six in the region have adopted constitutional amendments banning gay marriage.
"We asked Kenji Yoshino and Robert F. Nagel, two constitutional law scholars who’ve written about this issue, to give us their thoughts on the decision and the language of the court."
04/04/09 Sexual Orientation and the Law Blog:
"Professor Pat Cain, who helped organize a law and history professors' amicus brief in Varnum, writes in today's Iowa City Press-Citizen that unlike the California constitution, Iowa's constitution wisely does not allow the people to amend the constitution directly. Iowa's constitution, as the Iowa Supreme Court emphasized today, protects our 'republican form of government.' Under this form of government, the legislative branch enacts legislation and the courts serve as a check on that legislative power to protect individual freedoms and ensure equal treatment."
04/09/09 Gender & Sexuality Law Blog:
Law professor Katherine M. Franke is Director of Columbia Law School's Gender & Sexuality Law Program. She writes:
The court also makes every effort to situate the marriage case within the context of local Iowan values. Whether it was a refusal to recognize the legitimacy of slavery in 1839, a recognition that racial segregation violated the Iowa Constitution in 1873 long before the U.S. Supreme Court did in 1954, or being the first state to grant women the right to practice law in 1869, Iowans have had their own strong sense of justice and fairness, and as the court noted, “in each of these instances, our state approached a fork in the road toward fulfillment of our constitution’s ideals and reaffirmed the ‘absolute equality of all’ persons before the law as ‘the very foundation principle of our government.’”
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.
Press Comments: Impact in California and West Virginia
04/04/09 Washington Post:
"Justices look at opinions from other states," said Jennifer C. Pizer, the national marriage project director for Lambda Legal, which brought the Iowa case. "There's a significant likelihood that [the decision] will influence other states, like California."
04/03/09 NY Times:
Camilla Taylor, a senior staff lawyer for Lambda, said the Supreme Court ruling in a way was merely "vindicating quintessential Iowa values," namely, a commitment to families. That this battle was being waged in Iowa, Ms. Taylor said, would have a "transformative effect" not just on the Midwest, but elsewhere.
"The fact that it's here in some way highlights the inevitability of this all," she said.
04/04/09 Palm Springs Desert Sun:
Shannon Minter is legal director of the National Center for Lesbian Rights (NCLR), and participated in the Prop. 8 litigation oral arguments. NCLR filed an amicus brief in the Iowa case. This article produces a statement from NCLR's press release:
"The eyes of California and the world are now on the California Supreme Court, which must determine whether equal protection means equal, and whether Californians will continue to share that equality in the freedom to marry. We hope the California Supreme Court will uphold the principle of equality, just as the Iowa Supreme Court has done.”
04/03/09 Liberty Counsel press release:
Mathew Staver is founder of Liberty Counsel and Dean of Liberty University School of Law. He filed motions to intervene and amicus briefs in the Prop. 8 litigation and the Varnum case. In his press release, he said:
"The definition of marriage, which throughout history has been defined as a union of one man and one woman, is not discriminatory. Maintaining the definition of marriage does not deprive anyone of the fundamental right to marry. Laws may properly restrict marriage of same-sex couples just as the law may forbid incestuous or polygamous marriages."
He also told the Washington Post:
"The Iowa Supreme Court has become a proselytizing engine of radical social change. Untying the knot that holds together traditional marriage will unravel the family, destabilize the culture and harm children."
04/04/09 SF Chronicle:
UC Hastings School of Law Professor Calvin Massey said, ""I think you're likely to see more victories in judicial chambers for advocates of same-sex marriage. The judiciary in general is more liberal on this issue than the population as a whole."
04/04/09 LA Times:
University of Southern California law professor David Cruz told the LA Times that the ruling could influence the California Supreme Court's decision on Prop. 8 "if there are justices who are still wavering one way or another."
"It shows them that a Republican appointee writing for a unanimous court in a not decidedly liberal state takes the view that there are basic constitutional guarantees that are especially important for the judiciary to enforce," Cruz said.
"The opinion is very, very careful to lay out its understanding of the role of the judiciary at some length and to defend that role," Cruz said, adding that the ruling dealt heavily with "the importance of an independent judiciary enforcing constitutional rights even if they might be unpopular with a large majority."
04/03/09 West Virginia MetroNews:
Speaking about a proposed constitutional ban on same-sex marriage, [attorney] Steven Skinner, with Fairness West Virginia says what happens in Iowa will stay in Iowa. "This is an Iowa decision on Iowa law based on the Iowa Constitution," Skinner said on Friday's MetroNews Talkline. "It really has no effect in West Virginia and we need to make sure that we stay calm about what this means because it really doesn't mean anything in West Virginia."
Source of MetroNews reference: 04/03/09 ADF Alliance Alert
04/04/09 Christian Science Monitor:
"The strongest argument for traditional marriage has always been anchored in faith," says Douglas Kmiec, a law professor at California's Pepperdine University and an opponent of same-sex marriage. "The issue is one that affects every part of the country and it is a topic that requires the balancing of claims of equality and religious freedom," he adds.
He argues that legislatures need to carve out explicit religious exemptions. These would ensure that legal protections for gay equality do not eventually impact churches' tax benefits, hiring practices, and public activities. He and others have also mooted removing the state from marriage altogether.
Blog Posts
04/04/09 NY Times Room for Debate Blog:
"The Iowa Supreme Court struck down as unconstitutional the state’s 1998 law limiting marriage to a man and a woman. Iowa now becomes the third state in the country, along with Massachusetts and Connecticut, to allow gay marriage. The decision is considered groundbreaking because no Midwestern state has permitted same-sex marriage, and at least six in the region have adopted constitutional amendments banning gay marriage.
"We asked Kenji Yoshino and Robert F. Nagel, two constitutional law scholars who’ve written about this issue, to give us their thoughts on the decision and the language of the court."
04/04/09 Sexual Orientation and the Law Blog:
"Professor Pat Cain, who helped organize a law and history professors' amicus brief in Varnum, writes in today's Iowa City Press-Citizen that unlike the California constitution, Iowa's constitution wisely does not allow the people to amend the constitution directly. Iowa's constitution, as the Iowa Supreme Court emphasized today, protects our 'republican form of government.' Under this form of government, the legislative branch enacts legislation and the courts serve as a check on that legislative power to protect individual freedoms and ensure equal treatment."
04/09/09 Gender & Sexuality Law Blog:
Law professor Katherine M. Franke is Director of Columbia Law School's Gender & Sexuality Law Program. She writes:
The court also makes every effort to situate the marriage case within the context of local Iowan values. Whether it was a refusal to recognize the legitimacy of slavery in 1839, a recognition that racial segregation violated the Iowa Constitution in 1873 long before the U.S. Supreme Court did in 1954, or being the first state to grant women the right to practice law in 1869, Iowans have had their own strong sense of justice and fairness, and as the court noted, “in each of these instances, our state approached a fork in the road toward fulfillment of our constitution’s ideals and reaffirmed the ‘absolute equality of all’ persons before the law as ‘the very foundation principle of our government.’”
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.
Will the Vermont legislature override Governor James Douglas' promised veto of marriage equality legislation?
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."
"[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."
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.
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