Gay marriage up for debate in Pennsylvania

06/13/09 The Sentinel Online (source: ADF Alliance Alert)

State Sen. Daylin Leach, D-17, last week introduced Senate Bill 935 that would offer “full and equal marriage rights” to same-sex couples in the state and legally recognize those marriages performed in other states.

On June 19th, Senator Leach will debate Senator John H. Eichelberger on the legislation. Section 3 of SB 935 has a provision on religious liberty that the First Amendment makes redundant. Eichelberger, an opponent of same-sex marriage, will find the provision easy to attack, and with good reason. A stronger remedy - of the kind that New Hampshire's recent law provides - would undercut political opposition, without compromising support from advocates of same-sex marriage. (For example, Mary Bonauto, civil rights project director for Gay and Lesbian Advocates and Defenders, told the NY Times that the stronger religious-liberty exemptions were "no big deal.")

Advocate interview of OPM Director John Berry

06/14/09 Adocate.com (source: Gay Opinion Blog):

The Advocate interviewed John Berry, Director of the Office of Personnel Management, before he

took the stage at Capital Pride ... [He] seemed to be prompted by growing discontent in the [LGBT] community following the Justice Department’s decision to defend the Defense of Marriage Act. Berry also denied reports that any sort of “deal” had been cut by White House officials regarding LGBT legislation and when it would be accomplished.

About the DOJ's defense of DOMA, Berry told The Advocate:

This president took a solemn oath to uphold the Constitution of the United States and he does not get to decide and choose which laws he enforces. He has to enforce the laws that have been enacted appropriately and that he has inherited. It would be wrong for me or any of our community to advise him to lie or to shirk his responsibility. He’s doing his job. He has made clear that he stands for the repeal of DOMA. It will be part of this administration’s agenda to accomplish that act. We ought not waste energy and angst attacking him when we should be focusing the energy and effort on getting 218 votes in the house and 60 votes in the Senate, and that’s where we ought to target the energy and the strength of this community and this president is with us, this is our agenda and it’s his agenda.

The Same-Sex Future: Review of Recent Books By Law Professor David Cole

07/02/09 NY Review of Books, written 06/04/09, by Georgetown University law professor David Cole:

Cole reviews several books on same-sex marriage whose authors are law professors and constitutional scholars. He describes recent court decisions and laws, and the historical context for them; examines three arguments against same-sex marriage and the authors' responses to them; assesses the strategy underlying Perry et al. v. Schwarzenegger, while favoring the benefits of incrementalism and state court victories; considers proposals to separate the civil and religious aspects of marriage; and concludes that same-sex marriage fulfills "the constitutional principle of equality."

Although Cole reviews Same-Sex Marriage and Religious Liberty: Emerging Conflicts, he says nothing about a topic of keen interest - the debate on the grounds for, and scope, of religious-liberty exemptions in same-sex marriage laws.

Commentary and advocacy statements on DOJ's brief defending federal DOMA in Smelt case

On June 11th, the Department of Justice filed a brief on why Smelt v. United States should be dismissed with respect to its challenge to the federal DOMA. Here is a roundup of commentary on the DOJ's arguments. Supporters of same-sex marriage express a consensus opinion:

(1) even if the Obama Admistration finds it politically necessary to defend the federal DOMA, its DOJ has by far exceeded the procedural grounds needed for dismissal;

(2) the DOJ's substantive arguments about due process, equal protection, and federalism are meritless;

(3) the "neutrality-in-federalism" argument is so transparently flawed that it reveals discriminatory intent, and may, without exagerration, be condemned as "absurd" or "insulting";

(4) Obama has fallen short of his stated commitment to repeal the federal DOMA, and has instead resorted to the same legal arguments of the Bush Administration.

Legal Commentary - 08/17/09 update

08/17/09 Proposition 8 and the Right to Marry:

The Department of Justice has filed a reply brief supporting its motion to dismiss.

06/30/09 Dissenting Jutice, law professor Darren Hutchinson:

In the second of his posts on the DOJ brief, Professor Hutchinson offers part of his legal analysis, and he expects to complete his analysis in another post.

06/25/09 LawDork, by attorney Chris Geidner:

Geidner refutes mischaracterization of the DOJ's defense of the federal DOMA, faulting John Aravosis of AmericaBlog for his claim that the Obama Administration has compared gay marriage to incest and pedophilia. "That John continues to write about 'incest' is, as I have stated since the brief was filed, overstating facts in order to enrage."

06/23/09 WordinEdgewise, by law professor John Culane:

[W]e weaken our credibility with spurious accusations, and I’ve been surprised by how little challenged has been the canard that the brief compares same-sex marriages to incest and pedophilia.

06/22/09 Dissenting Justice, by law professor Darren Hutchinson:

In the first of two posts, Professor Hutchinson discusses the politics of the DOJ brief:

Obama is engaging the exact same song and dance regarding DOMA. Although he maintains that he supports the repeal of this "hurtful" law, his administration has defended it as legally rational legislation. This position is patently absurd.

He expects to provide a legal analysis of the brief.

06/20/09 WordinEdgewise, by law professor John Culane:

On June 24th, Culhane will join Stacey Sobel in a debate on how the Obama Administration has addressed, or failed to address, LGBT issues. NPR’s Radio Times with Marty Moss-Coane will host the discussion, and whyy.org will post the mp3 file.

06/18/09 Balkinization Blog:

Linda McClain, an unidentified blogger at this constitutional blog, focuses on three points:

(1) the contrast between the brief’s support of DOMA and President Obama’s call for its repeal;
(2) the brief’s curious view of DOMA as representing a cautious and appropriate “neutrality” with respect to society’s still-evolving understandings of marriage; and
(3) the brief’s selection of the most narrow and conservative formulations of the relevant constitutional tests for defining fundamental rights and liberties.

06/17/09 Windy City Times:

Constitutional scholar Laurence Tribe acknowledged that he found much of the DOJ brief “quite baffling—gratuitously reaching for substantive arguments lacking in plausibility, simplistic to the point of being insulting, and insensitive to the force of the strongest arguments against DOMA's constitutionality as well as to the sensibilities of both gays and straights who find DOMA as abhorrent as I know President Obama does.”

06/13/09 LeonardLink, by New York University law professor Arthur Leonard:

The one that bothers me the most is the argument that there is no anti-gay motivation behind DOMA, merely a desire by Congress to pursue a policy of "neutrality" with respect to the issue of same-sex marriage in a situation where some states might allow such marriages while others would oppose them. This is absurd.

06/13/09 and 6/12/09 WordinEdgewise, by law professor John Culhane:

John Culhane faults the DOJ's defense of the federal DOMA for doing much more than was procedurally necessary to achieve dismissal, so much so that it appears to show an intention to "to set the course of judicial progress on gay rights back many years."

06/12/09 The Volokh Conspiracy, by law professor Dale Carpenter:

[T]he DOJ brief goes further than it needs to go at this point in the case by addressing the merits of the constitutional issues in the case, which attacks both DOMA Section 2 (interstate recognition) and DOMA Section 3 (federal recognition). There's a hodge-podge of claims in the case. Everything from the Full Faith & Credit Clause to freedom of speech is hurled at DOMA by the claimants.

06/12/09 hunter for justice, by law professor Nan Hunter:

Given the standing argument, there's a good chance that the court's ruling in Smelt may not even reach the merits of the constitutionality of DoMA. But you can bet that a similar version of this brief from DoJ, based on the same arguments, will be filed in two weeks in federal court in Boston.

Other Commentary:

See the links that Widener University law professor John Culhane provides in his 06/12/09 post.

06/16/09 NY Times editorial:

If the administration does feel compelled to defend the act, it should do so in a less hurtful way. It could have crafted its legal arguments in general terms, as a simple description of where it believes the law now stands. There was no need to resort to specious arguments and inflammatory language to impugn same-sex marriage as an institution.

Advocacy Organizations - 06/16/09 update

06/16/09 National Organization for Women (source: ADF Alliance Alert):

The National Organization for Women calls on President Barack Obama and Attorney General Eric Holder to withdraw the U.S. Department of Justice brief filed in support of the Federal Defense of Marriage Act (DOMA) and to publicly renounce this discriminatory law. The brief was reportedly written by Bush administration holdovers, and if that is the case, this administration must immediately make it clear that President Obama does not support this position.

06/15/09 Human Rights Campaign:

As a matter of constitutional law, some of this brief does not even make sense:

DOMA does not discriminate against homosexuals in the provision of federal benefits…. Section 3 of DOMA does not distinguish among persons of different sexual orientations, but rather it limits federal benefits to those who have entered into the traditional form of marriage.

In other words, DOMA does not discriminate against gay people, but rather only provides federal benefits to heterosexuals.

06/16/09 Wall Street Journal (source: Gay Marriage Watch):

A prominent gay-rights organization, long supportive of President Barack Obama, sent him a scathing letter Monday to protest the administration's recent legal backing of the Defense of Marriage Act.

06/12/09 Christian Post (source: ADF Alliance Alert):

Alliance Defense Fund attorney Brian Raum plans to join in the motion. "We're confident that the arguments the U.S. government is making are correct," Raum told The Christian Post. "Hopefully, the court will dismiss [the case]."

06/12/09 Joint Statement By LGBT and Legal Advocacy Groups:

We are also extremely disturbed by a new and nonsensical argument the administration has advanced suggesting that the federal government needs to be “neutral” with regard to its treatment of married same-sex couples in order to ensure that federal tax money collected from across the country not be used to assist same-sex couples duly married by their home states.

06/12/09 Equality California:

This is a statement by Equality California (EQCA) Executive Director Geoff Kors. Kors does not explain why EQCA objects to the legal arguments, except to note that the DOJ has tried in its brief to justify "discrimination in government benefits against same-sex couples."

Attorney General Jerry Brown Files Answer in Support of Federal Lawsuit To Overturn Prop 8

06/12/09 San Francisco Chronicle:

(06-12) 21:01 PDT SAN FRANCISCO -- Attorney General Jerry Brown, who tried to persuade the state Supreme Court to overturn California's ban on same-sex marriage, took the same position in federal court Friday [Perry et al v. Schwarzenegger et al., (N.D.Cal. 3:09-cv-02292, filed May 22, 2009)], saying Proposition 8 violates the U.S. Constitution's guarantee of equality ... Brown's refusal to support Prop. 8 means that the conservative Christian groups who sponsored Prop. 8 will defend it in federal court, as they did in the state Supreme Court.

Here is the California Attorney General's answer to the Perry complaint. In his answer, Brown states:


The Attorney General of California is sworn to uphold the Constitution of the United States in addition to the Constitution of the State of California. Cal. Const., art. XX, § 3. The United States Constitution is the “supreme law of the land.” U.S. Const., art. VI, § 2; Cal. Const., art. III, § 1. Taking from same-sex couples the right to civil marriage that they had previously possessed under California’s Constitution cannot be squared with guarantees of the Fourteenth Amendment. Accordingly, the Attorney General answers the Complaint consistent with his duty to uphold the United States Constitution, as Attorney General Thomas C. Lynch did when he argued that Proposition 14, passed by the California voters in 1964, was incompatible with the Federal Constitution. Reitman v. Mulkey, 387 U.S. 369 (1967).

And here is Brown's "Opposition to Plaintiffs' Motion for Preliminary Injunction":

Staying operation of Proposition 8, without the certainty of a final judgment as to its constitutionality, would leave same-sex couples, as well as their families, friends, and the wider community, in legal limbo.

06/13/09 LA Times:

Brown's willingness to fight a state law that has been upheld by the state's highest court contrasted sharply with President Obama's decision this week to oppose a federal challenge to the U.S. Defense of Marriage Act brought in Orange County.

06/12/09 San Jose Mercury News (Source: Gay Marriage Watch):

Gov. Arnold Schwarzenegger and Attorney General Jerry Brown on Thursday urged a federal judge to keep Proposition 8 in force for now, arguing that it would create too much uncertainty across the state to put the voter-approved ban on gay marriage on hold while the latest legal challenge unfolds in the federal courts ... Brown and Schwarzenegger argued separately that it would create too much havoc to put the law on hold until the constitutional issues are resolved, perhaps eventually by the U.S. Supreme Court. If Proposition 8 is blocked while the case is litigated, same-sex couples could resume marrying in California.

DOJ moves to dismiss what SF Chronicle mistakenly calls "first federal gay marriage case." A preview of how DOJ will respond to Gill et al v. OPM?

06/12/09 SF Chronicle:

This article concerns the U.S. Department of Justice's motion to dismiss Smelt v. United States with respect to its claims for relief from Sections 2 and 3 of the federal DOMA. Under Section 2 (28 U.S.C. § 1738C,), the Act allows a states to recognize only the out-of-state marriages of heterosexual couples. Under Section 3 (1 U.S.C. § 7), it restricts federal marrital benefits to heterosexual couples. The report has several significant mistakes and omissions.

First, this is not "the first gay marriage case filed in federal court." Other pending federal lawsuits either challenge state constitutional bans on same-sex marriage, or (like Smelt) challenge such bans and the federal DOMA, even if the DOMA challenge has not survived summary judgment. Based on news reports only, I have tried to identify pending federal lawsuits to challenge state constitutional restriction of marriage to heterosexual couples. [The U.S. Supreme Court dismissed the earliest federal challenge to a statutory restriction in Baker v. Nelson, 409 U.S. 810 (1972) (statutory restriction raises no substantial federal question about respect to right marry, whether that question involves due process or equal protection).] Until June 6th, Bishop et al v. State of Oklahoma et al (N.D.Okl. 4:2004-cv-00848) represented the earliest pending federal challenge to a "marriage protection amendment" (and a federal DOMA, although the DOMA challenge did not survive summary judgment.) On June 6th, the 10th Circuit ruled that the plaintiffs do not have standing to sue. (I have compiled a list of pending federal lawsuits challenging state constitutional bans on same-sex marriage.)

Second, DOJ bases its motion to dismiss upon lack of standing to sue under the federal DOMA, and claims that plaintiffs have not shown why the federal DOMA does not merit a presumption of constitutionality. According to the Chronicle, the Smelt compalint does not also allege that Prop. 8 violates the U.S. constitution.

In fact, the Smelt complaint also purports to challenge the federal constitutionality of Prop. 8. (See Compl., ¶ 29.) The Chronicle reporter even notes that

the California attorney general moved Thursday to dismiss the state lawsuit by the same couple, saying Hammer and Smelt lack standing to sue because their marriage was unaffected in any way by the passage of Proposition 8, the voter-approved gay marriage ban.

In its motion to dismiss, the California Attorney General acknowledges that the complaint alleges federal constitutional violations by Prop. 8, even as the Attorney General asks the Court to dismiss the complaint for lack of standing:

Plaintiffs have not suffered an “injury in fact” [required for standing to sue] because Proposition 8, as interpreted by the California Supreme Court [in Strauss v. Horton], has no effect on their marriage [Their marriage was licensed before Prop.8's adoption, and the Strauss Court upheld such marriages.] ... The fact that unmarried same-sex couples might [and, in fact, do!] have sufficient standing to challenge the constitutionality of Proposition 8 does nothing to confer standing on Plaintiffs.

Finally, the Chronicle fails to identify the much more credible challenge to Section 3 of the federal DOMA, Gill et al. v. Office of Personnel Management et al. (D. Mass. filed Mar. 3, 2009). DOJ's motion may afford insight on how it will respond to Gill's formidable equal protection challenge.

06/12/09 AP:

LOS ANGELES (AP) -- Gay rights groups expressed dismay with the Obama administration Friday over its championing of the Defense of Marriage Act, a law the president pledged to try to repeal while on the campaign trail.

Will a ballot to repeal Prop. 8 have a (substantive) religious-liberty exemption?

06/11/09 The Bay Area Reporter:

The California Marriage Equality Act has the following religious-liberty exemption:

This measure is not intended to, and shall not be interpreted to, mandate clergy or religious institution to perform a service or duty that goes against their faith.

Given what she says in her 05/02/09 LA Times opinion article, law professor Robin Wilson would consider this language to be the equivalent of paying "lip-service to religious freedom while enacting meaningless protections," as the First Amendment already protects clergy in the way the intiative would provide.

Yes on Equality filed the proposed initiative on April 30th. Yes on Equality activist Chaz Lowe says that it serves as a "placeholder," and that it was drafted with the help of unnamed attorneys. "I'd be very surprised if what we filed wound up being what is used," Lowe said.

Responding to an issue that the Prop. 8 campaign raised, Yes on Equality also includes a provision disclaiming any intention to change school curricula. The balance of the Reporter article concerns disagreement among marriage-equality supporters over how to address the school curriculum issue.

But do initiative proponents understand or even anticipate concern over the alleged inadequacy of language like that of the initiative's religious-liberty exemption? Are they taking into account stronger religious-liberty exemptions that allowed for successful passage of New Hampshire's same-sex marriage law? Apparently not. Equality California Executive Director Geoff Kors told the Reporter last week that Equality California

used similar language when it sponsored then-Assemblyman Mark Leno's Religious Freedom and Civil Marriage Protection Act bills in 2005 and 2007. (Both were vetoed by Governor Arnold Schwarzenegger.) "Clearly no clergy shall have to perform services against their will and repealing Prop 8 doesn't require anything to be taught in schools."

If Lowe is right that the draft language will change, perhaps the change will accommodate a less politically self-defeating exemption for religious liberty. On the politics of religious-liberty protection and same-sex marriage, consider this comment by Douglas Laycock, a scholar on religious liberty and the law, and a supporter of same-sex marriage:

[E]ach side has tended to make the Puritan mistake, seeking liberty for themselves and regulation for their opponents. The conservative religious community has been the most obvious about this, criminalizing same-sex relationships when they had the political strength to do so, and now resisting same-sex marriage where they still have the political strength to do that. The gay rights side has responded not only by opposing conservative religious movements politically, but often by opposing their claims to religious liberty as well.