11/05/09 The Recorder (subscription required):
On August 19th, Judge Vaughn Walker denied a motion to intervene in Perry v. Schwarzenneger by the Campaign for California Families (CCF). Represented by Liberty Counsel founder Matthew Staver, CCF opposes not only same-sex marriages, but any legal status for same-sex couples. CCF has a history of contratemps with Yes on 8 - the official Prop. 8 proponents - who are defendant-intervenors in the Perry case. CCF previously sought to intervene in Strauss v. Horton, 46 Cal.4th 364 (2009), but Yes on 8 publicly opposed its intervention. And Yes on 8 opposed CCF's intervention in the Perry case. Their divisions surfaced before the November 2008 election, when CCF opposed Prop. 8 for failing to ban domestic partnerships.
CCF appealed Judge Walker's order on their intervention motion. The Recorder reports on oral arguments in the appeal before a 9th Circuit panel. On The Recorder's account, the panel's judges appeared unsympathetic to Staver's attempt to identify CCF's particular interest as a proposed Perry party. Staver contended "that the official Prop 8 forces weren't adequately litigating the case and had stipulated away far too many facts" about gays and lesbians. As an alleged result, if Prop. 8 were upheld on narrow grounds, Staver claimed that it may easier to show that gays and lesbians are a "suspect class" - that they are a minority deserving heightened constitutional scrutiny when they seek constitutional protections.
The Recorder quotes Howard Nielson Jr. of Cooper & Kirk, co-counsel for the official Prop. 8 proponents in the Perry case. Nielson tried to hedge about what facts proponents had agreed not to contest, including whether sexual orientation is immutable.
Thursday, November 5, 2009
Wednesday, November 4, 2009
Legal commentary on election returns in Maine and Washington
11/04/09 WordinEdgewise by law professor John Culhane:
Kate Kendell, executive director of the National Center for Lebsian Rights, also expressed anger over elections in which a majority can strip a minority of fundamental rights:
Lambda Legal Marriage Project Director Jennifer C. Pizer said,
The NY Times reports that supporters of same-sex marriage have already begun to question the "state-by-state strategy" of enacting marriage-equality laws in states that do not have any bans on same-sex marriage:
11/04/09 press release by the American Equal Rights Foundation (AERF):
AERF finances plaintiffs in Perry v. Schwarzenneger. Its executive director, Chad Griffin, said:
[T]wo things seem worth saying. First, we should acknowledge that there is indeed something wrong with putting minority rights up to a vote by the majority ... Second, we’re pushing closer and closer to that 50% threshold. It seems right now that we’re in the 47-48% range in more socially progressive states, so we’ve not far to go. And when the (in this sense) toxic word “marriage” is taken out of the equation, we’ve now cleared that majority hurdle: It looks as though the Washington full domestic partnership ordinance will stand.11/06/09 Huffington Post, by law professor Carlos Ball:
As difficult as losses such as the one in Maine is for supporters of the legal recognition of same-sex relationships, it is important to keep in mind just how far we have come on this issue in a very short period of time ... It is also important to keep in mind that opponents of equality prevailed in Maine -- as they did in California a year ago -- by a slim margin ... Opponents of gay marriage are increasingly having a difficult time articulating why it is, exactly, that the legal recognition of such marriages would harm society.11/05/09 Huffington Post, by law professor Geoffrey Stone:
It was only when gays and lesbians courageously stepped out of the closet that real change began. That change came about not only because they could become active politically, but also because people came to realize, sometimes to their shock and dismay, that their children, their neighbors, their friends, their co-workers were gays and lesbians ... What is most missing now in the movement to achieve equality in America is courage among our political leaders. Even the leading contenders for the 2008 Democratic presidential nomination were unwilling to say that they supported same-sex marriage. This is shameful. And it is especially shameful that our President remains silent.11/07/09 Leonard Link, by law professor Arthur Leonard:
There are a few things to remember about this vote. Unfortunate as it was, it was NOT the enactment of a constitutional amendment or a statute banning same-sex marriage. It has no substantive effect going forward. All it does is to repeal the marriage law passed earlier this year. It does not preclude the legislature from revisiting the issue, either with an interim civil union measure or another attempt at marriage.11/05/09 Kennebec Journal:
A panel of legal experts, including a former Maine attorney general, predicts that it will be only a matter of time before Maine legalizes same-sex marriage. Though Tuesday's vote repealed the same-sex marriage law that was approved by the Legislature and signed by the governor in May, the Columbia Law School panelists said Maine is on the path toward adoption.11/04/09 Out For Justice:
Kate Kendell, executive director of the National Center for Lebsian Rights, also expressed anger over elections in which a majority can strip a minority of fundamental rights:
It is a travesty of every principle that made this nation great that the rights of a minority group can be put up to a popular vote.11/04/09 press release by Lambda Legal:
Lambda Legal Marriage Project Director Jennifer C. Pizer said,
Forcing any minority to endure a barrage of lies and insults, ending with a vote that denies them full citizenship, is cruel – it's not the government our founders envisioned. Ballot measures driven by prejudice are poison; honesty and equality are the essential cure.11/04/09 NY Times:
The NY Times reports that supporters of same-sex marriage have already begun to question the "state-by-state strategy" of enacting marriage-equality laws in states that do not have any bans on same-sex marriage:
Richard Socarides, who advised President Bill Clinton on gay issues, said such federal litigation [Perry v. Schwarzenneger]— along with a repeal of the Defense of Marriage Act — was the best hope for advancing same-sex marriage at this point.Activists may still try to qualify a referendum on Oregon's constitutional ban of same-sex marriage. Nevertheless, Jennifer C. Pizer, marriage project director for Lambda Legal, told the Times that such ballot measures
tend to marginalize the group that is being targeted and inflame people’s passions in a way that is at best divisive and at worst terribly cruel.She acknowledged, however, that targeting legislative reform, in states like Washington, may still work:
The effort there [in Washington, where voters appear to have approved Referendum 71] has been a steady building of support in the legislature. It’s unclear when they will ascertain there’s enough public support to change the marriage law, but it’s been a gradual process that will continue.The National Organization for Marriage now plans to target states without constitutional bans as it pursues its own "state-by-state" elections strategy to increase the number of states that have them.
11/04/09 press release by the American Equal Rights Foundation (AERF):
AERF finances plaintiffs in Perry v. Schwarzenneger. Its executive director, Chad Griffin, said:
Our founding fathers did not intend for people's Constitutional rights to be determined by political campaigns. The results in Maine underscore exactly why we are challenging California's same sex marriage ban in federal court. When the Supreme Court ruled in Loving v. Virginia, more than 70 percent of Americans disapproved of interracial marriage. The U.S. Constitution guarantees equal rights to every American, and when those rights are violated, it is the role of our courts to protect us, regardless of what the polls say.Thanks to California attorney Rick Xiao for helping me prepare this post.
Tuesday, November 3, 2009
Election night commentary by law professor John Culhane, and news about same-sex marriages in Iowa
As election returns decide the outcome of Washington's Referendum 71 and Maine's Question 1, I include the following links of interest:
11/03/09 WordinEdgewise, by law professor John Culhane:
10/27/09 Sioux City Journal:
This article concerns the benefits married same-sex couples now enjoy in Iowa:"It was a real victory for us when we adopted these children.... We were treated equally, as if we were a heterosexual married couple," Jason Swaggerty-Morgan said. "Now that we got married, I have health care. That's a big deal. It could financially ruin our family if I were to have gotten sick and not have health care."
11/02/09 press release by One Iowa:
11/03/09 WordinEdgewise, by law professor John Culhane:
Some thoughts are flying around up here, and I want to get them down and disseminated quickly ... I won’t go on about why the whole idea of marriage-in-all-but-name is unacceptable. It suffices to say that once one’s willing to grant all of the benefits but withhold the name, what is left is pure discrimination. If you have trouble seeing this, here’s a quick thought experiment: Imagine that the proposal were to call same-sex unions “marriages” but to rename opposite-sex unions “civil unions.” Acceptable? Q.E.D.However, the unique circumstances of states other than Washington - like Wisconsin - support a different way of understanding even comparatively minimal versions of domestic partnerships.
10/27/09 Sioux City Journal:
This article concerns the benefits married same-sex couples now enjoy in Iowa:"It was a real victory for us when we adopted these children.... We were treated equally, as if we were a heterosexual married couple," Jason Swaggerty-Morgan said. "Now that we got married, I have health care. That's a big deal. It could financially ruin our family if I were to have gotten sick and not have health care."
11/02/09 press release by One Iowa:
On April 3, 2009 the Iowa Supreme Court granted the freedom to marry to gay and lesbian couples in the state of Iowa. In the months since the ruling, hundreds of same-sex couples have married in the state. One Iowa, the statewide advocacy organization tasked with protecting this historic ruling, is hosting a series of public forums across the state designed to build public support for equality and share perspectives on the freedom to marry.
Department of Justice files brief defending federal DOMA in Commonwealth of Massachusetts v. U.S. Dept. Health and Human Services
10/30/09 AP:
The Justice Department (DoJ) has filed a brief defending its motion to dismiss in Commonwealth of Massachusetts v. U.S. Dept. Health and Human Services, Case No. 1:09-cv-11156-JLT (U.S.Dist.Ct., D. Mass.). This lawsuit challenges section 3 of the federal Defense of Marriage Act. Section 3 bars recognition of same-sex marriages for the purposes of federal law. As a result, married same-sex couples lose over 1100 statutory rights, benefits, and protections that they would have qualified for, but for the DOMA. Among other arguments, DoJ argues that same-sex couples do not have a federal right to marry; that they are not a minority warranting heightened constitutional protectition; and that for Section 3 to pass constitutional muster, Congress needs only a rational basis for it - a standard that the law satisfies.
The Justice Department (DoJ) has filed a brief defending its motion to dismiss in Commonwealth of Massachusetts v. U.S. Dept. Health and Human Services, Case No. 1:09-cv-11156-JLT (U.S.Dist.Ct., D. Mass.). This lawsuit challenges section 3 of the federal Defense of Marriage Act. Section 3 bars recognition of same-sex marriages for the purposes of federal law. As a result, married same-sex couples lose over 1100 statutory rights, benefits, and protections that they would have qualified for, but for the DOMA. Among other arguments, DoJ argues that same-sex couples do not have a federal right to marry; that they are not a minority warranting heightened constitutional protectition; and that for Section 3 to pass constitutional muster, Congress needs only a rational basis for it - a standard that the law satisfies.
Law professor Robert John Araujo faults Catholics who support same-sex marriage
11/02/09 Mirror of Justice:
Mirror of Justice is a blog devoted to Catholic legal theory. Law professor Robert John Araujo faults a group of
Mirror of Justice is a blog devoted to Catholic legal theory. Law professor Robert John Araujo faults a group of
“faithful Catholics” who believe that marriage ought to be between a man and a man or a woman and a woman in addition to the union of one man and one woman ... The so-called Catholics who advocate for same-sex marriage are the ones who are in error. I have argued why this is so enough times in the past. [Download Equality and Same Sex Marriage]
Monday, November 2, 2009
Same-Sex Marriage Advocates Go Before DC Council – Talk Radio News Service Features Baptist Minister Jill McCrory
Same-Sex Marriage Advocates Go Before DC Council – Talk Radio News Service
On a second day of hearings, "[p]roponents of the Religious Freedom and Civil Marriage Equality Amendment Act of 2009 testify before the Washington, D.C. city council in support of the bill, which would extend full marriage rights to same-sex couples in D.C.." (See my post on the first day of hearings here.) One of the advocates interviewed is Baptist minister Jill McCrory, of the Association of Welcoming & Affirming Baptists, which supports same-sex marriage.
On a second day of hearings, "[p]roponents of the Religious Freedom and Civil Marriage Equality Amendment Act of 2009 testify before the Washington, D.C. city council in support of the bill, which would extend full marriage rights to same-sex couples in D.C.." (See my post on the first day of hearings here.) One of the advocates interviewed is Baptist minister Jill McCrory, of the Association of Welcoming & Affirming Baptists, which supports same-sex marriage.
Op eds on gay marriage in Philadelphia Inquirer by attorney David Boies and Focus on the Family's Glenn Stanton
11-01-09 Philadelphia Inquirer, by Glen Stanton
11-01-09 Philadelphia Inquirer, by David Boies
Attorneys David Boies and Theodore Olson represent plaintiffs in Perry v. Schwarzenneger, the lawsuit challenging Prop. 8 under the due-process and equal-protection clauses of the 14th Amendment. Boies argues that the right to marry extends to same-sex couples. Glenn Stanton argues that it doesn't. Stanton is director of family formation studies at Focus on the Family and the author of Marriage on Trial: The Case Against Same-Sex Marriage and Parenting.
11-01-09 Philadelphia Inquirer, by David Boies
Attorneys David Boies and Theodore Olson represent plaintiffs in Perry v. Schwarzenneger, the lawsuit challenging Prop. 8 under the due-process and equal-protection clauses of the 14th Amendment. Boies argues that the right to marry extends to same-sex couples. Glenn Stanton argues that it doesn't. Stanton is director of family formation studies at Focus on the Family and the author of Marriage on Trial: The Case Against Same-Sex Marriage and Parenting.
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