11/06/09 Star-Telegram:
Texas Constitution Art. 1, §32 is a super-DOMA amendment. It bans not only same-sex marriage, but also legal status for relationships similar to marriage. Nevertheless, El Passo recently joined Dallas and Austin among city employers extending medical insurance to domestic partners of employees.
Cleveland has been sued for violating Ohio's super-DOMA amendment when the city council adopted a domestic partnership registry database. And the Wisconsin Supreme Court last week denied a petition for an original action challenging that state's domestic partnership law.
Narrow domestic partnership laws arguably represent a new front in challenges to super-DOMA amendments. The Star-Telegram reports that Ft. Worth city officials "have said more study is needed before the council can vote on adding domestic-partner benefits or changing the health insurance plan." Kelly Shackelford, an attorney for the Liberty Legal Institute, claims that the proposal would violate the state's super-DOMA amendment.
Sunday, November 8, 2009
Michigan legislator introduces resolution to amend state constitution to repeal gay marriage bans; efforts to repeal bans or overturn marriage equaity
11/22/09 update: See also this Huffington Post on marriage-equality legislation in states whose constitutions ban same-sex marriage
11/04/09 The Detroit News and 11/05/09 East Lansing TheStateNews.com:
Michigan has constitutional and statutory bans on same-sex marriage. Its constitution has a "super-DOMA" amendment (Art. 1, § 25) that also bans recognition of unions similar to marriage "for any purpose." In National Pride at Work, Inc. v. Governor of Michigan, 748 N.W.2d 524 (Mich. 2008), the state Supreme Court ruled that the city of Kalamazoo could not extend benefits to the qualified domestic partners of city employees.
Kalamazoo voters have just adopted a law that bars discrimination in employment, housing and public accommodation on the basis of sexual orientation. The Detroit News reports that Pam Byrnes, Speaker Pro Tem of the Michigan House, has also introduced a resolution to amend the state constitution to allow same-sex marriage:
Despite voter rejection of Maine's marriage-equality law, activists in states other than California may now launch ballot measures to repeal constitutional bans on same-sex marriage. (Incidentally, a recent Los Angeles Times poll shows that 60% of Californians do not want to vote on a measure to repeal Prop.8 in 2010.) The NY Times reports that a group in Oregon may try to qualify a ballot measure to repeal that state's constitutional ban, perhaps as early as 2012. (See this report on Basic Rights Oregon.)
But the Huffington Post reports that "in New Hampshire, conservatives have filed legislation to repeal the state's new gay-marriage law and amend the constitution to ban such unions." (The New Hampshire bill is not yet available online.) According to this article, another "movement is under way that aims to undo the marriage licenses given to same-sex couples since the Iowa Supreme Court legalized gay and lesbian marriages in April."
Although Washington voters have approved the state's "all-but-marriage" law for same-sex couples, advocates of same-sex marriage are reported not to be aiming at an initiative in 2010. Finally, despite the D.C. Council's recent hearings (here and here) on marriage-equality legislation, proponents of the Marriage Initiative of 2009 hope to qualify it for the ballot. The Washington Blade reports here on the D.C. Elections hearing of the qualification question, and has an editorial on the hearing here by attorney Mark Levine.
11/04/09 The Detroit News and 11/05/09 East Lansing TheStateNews.com:
Michigan has constitutional and statutory bans on same-sex marriage. Its constitution has a "super-DOMA" amendment (Art. 1, § 25) that also bans recognition of unions similar to marriage "for any purpose." In National Pride at Work, Inc. v. Governor of Michigan, 748 N.W.2d 524 (Mich. 2008), the state Supreme Court ruled that the city of Kalamazoo could not extend benefits to the qualified domestic partners of city employees.
Kalamazoo voters have just adopted a law that bars discrimination in employment, housing and public accommodation on the basis of sexual orientation. The Detroit News reports that Pam Byrnes, Speaker Pro Tem of the Michigan House, has also introduced a resolution to amend the state constitution to allow same-sex marriage:
Both chambers would have to pass the resolution to place the question on the ballot, a scenario unlikely to happen in the Republican-controlled Senate. If the resolution doesn't pass, proponents would have to collect more than 380,000 signatures to bring the question to a vote in the Nov. 2, 2010, general election. 11/04/09 The Detroit NewsThe resolution is not yet available online.
Despite voter rejection of Maine's marriage-equality law, activists in states other than California may now launch ballot measures to repeal constitutional bans on same-sex marriage. (Incidentally, a recent Los Angeles Times poll shows that 60% of Californians do not want to vote on a measure to repeal Prop.8 in 2010.) The NY Times reports that a group in Oregon may try to qualify a ballot measure to repeal that state's constitutional ban, perhaps as early as 2012. (See this report on Basic Rights Oregon.)
But the Huffington Post reports that "in New Hampshire, conservatives have filed legislation to repeal the state's new gay-marriage law and amend the constitution to ban such unions." (The New Hampshire bill is not yet available online.) According to this article, another "movement is under way that aims to undo the marriage licenses given to same-sex couples since the Iowa Supreme Court legalized gay and lesbian marriages in April."
Although Washington voters have approved the state's "all-but-marriage" law for same-sex couples, advocates of same-sex marriage are reported not to be aiming at an initiative in 2010. Finally, despite the D.C. Council's recent hearings (here and here) on marriage-equality legislation, proponents of the Marriage Initiative of 2009 hope to qualify it for the ballot. The Washington Blade reports here on the D.C. Elections hearing of the qualification question, and has an editorial on the hearing here by attorney Mark Levine.
Saturday, November 7, 2009
David Boies, Ken Boykin, Maggie Gallagher and Glen Stanton Discuss "A Right to Marry? Same-Sex Marriage and the Constitution"
10/20/09 National Constitution Center program:
With a potentially precedent-setting legal challenge to California's Proposition 8 working its way through the federal court system, the National Constitution Center presents a timely program on the issue of same-sex marriage. Last November California voters approved the Proposition 8 ballot measure, amending their state Constitution to ban marriages between same-sex couples. A lawsuit filed on behalf of two gay couples wishing to marry has attracted national attention. David Boies, one of the leading lawyers in the case, is joined in a conversation by Keith Boykin, Maggie Gallagher and Glenn Stanton. Margot Adler moderates.Adler cuts to the chase with an opening question that involves Prop. 8:
"When looking at something like same-sex marriage, should the constitution reflect the will of the people or protect minorities against majority will?"You can listen to the program here.
Friday, November 6, 2009
Law professor Geoffrey Stone: Same-Sex Marriage and the Meaning of Words
11/05/09 Huffington Post, by law professor Geoffrey Stone:
In reading through the comments on my recent post about the electoral result in Maine (The Lessons of Maine), I could not help but notice that many defenders of the ban on same-sex marriage argue that marriage has always been defined as a relationship between a man and a woman, that there's no reason to change that traditional definition, and that gays and lesbians should be satisfied with having all the rights married people have, without insisting on re-writing the dictionary.
Washington Archdiocese has "deep concerns" over D.C.'s marriage-equality legislation, but are they misplaced?
11/1/09 Catholic News Agency / ADF Alliance Alert:
On October 26th and November 2nd, the D.C. Council's Public Safety and the Judiciary Committee heard testimony on the Religious Freedom and Civil Marriage Equality Amendment Act of 2009. The Washington Blade reports on the October 26th hearing here.
At the October 26th hearing, the CEO and general counsel of the Washington Archdiocese’s Catholic Charities said that the organization may sue D.C. over the legislation if the Committee fails to expand religious-liberty protections. Yet it's unclear why the Catholic Charities representatives would threaten a lawsuit in this instance, when it would have no less cause to challenge D.C.'s public accommodations law, which appears to bar the organization from discriminating against gays and lesbians.
The Catholic News Agency reports that in written testimony, the "archdiocese voiced 'deep concerns' that the bill would restrict religious freedom if it is passed as drafted" and would jeopardize Catholic Charities' service to the poor. As the archdiocese understands the bill, Catholic Charities may be unable to deny gay and lesbian couples access to adoption placement, "shelter, food, counseling, medical and legal assistance" - services that the organization otherwise provides the general public. I add underscoring to the following legislative language to clarify the nature of the problem:
But why does the Archdiocese limit its "deep concerns" to whether its religious freedom entitles it to discriminate against married, same-sex couples in provision of public services? Even without the proposed marriage-equality law, the Archdiocese should now have the very same concerns about the scope of the HRA, which prohibits discrimination based on sexual orientation. Despite its exceptions, the HRA appears to already bar Catholic Charities, and other licensed service providers, from discriminating against gays and lesbians (and therefore against same-sex couples). So the HRA should also be within the Archdiocese's sights for a First Amendment challenge.
In March 2006, Catholic Charities in the Archdiocese of Boston announced that it was withdrawing adoption services from Massachusetts, because the state's anti-discrimination law would prevent it, and other adoption licensees, from denying these services to gay couples - whether married or not. In fact, the state's public accommodations law (M.G.L. 272, Section 98) has no exemption for religious organizations. In that instance, Catholic Charities decided not to bring a First Amendment lawsuit.
On October 26th and November 2nd, the D.C. Council's Public Safety and the Judiciary Committee heard testimony on the Religious Freedom and Civil Marriage Equality Amendment Act of 2009. The Washington Blade reports on the October 26th hearing here.
At the October 26th hearing, the CEO and general counsel of the Washington Archdiocese’s Catholic Charities said that the organization may sue D.C. over the legislation if the Committee fails to expand religious-liberty protections. Yet it's unclear why the Catholic Charities representatives would threaten a lawsuit in this instance, when it would have no less cause to challenge D.C.'s public accommodations law, which appears to bar the organization from discriminating against gays and lesbians.
The Catholic News Agency reports that in written testimony, the "archdiocese voiced 'deep concerns' that the bill would restrict religious freedom if it is passed as drafted" and would jeopardize Catholic Charities' service to the poor. As the archdiocese understands the bill, Catholic Charities may be unable to deny gay and lesbian couples access to adoption placement, "shelter, food, counseling, medical and legal assistance" - services that the organization otherwise provides the general public. I add underscoring to the following legislative language to clarify the nature of the problem:
Notwithstanding any other provision of law, a religious organization, association or society, or a nonprofit organization which is operated, supervised, or controlled by or in conjunction with a religious organization, association, or society, shall not be required to provide services, accommodations, facilities or goods for a purpose related to the solemnization or celebration of a marriage, or the promotion of marriage, that is in violation of the entity’s religious beliefs, unless the entity makes such services, accommodations, or goods available for purchase, rental, or use to members of the general public.D.C.'s Human Rights Act (HRA) protects gays and lesbians against discrimination based on sexual orientation( and marital status), but it has an exemption for religious organizations like Catholic Charities:
§ 1-2503. Exceptions.This is the only exception that might apply to Catholic Charities, and it's a stretch to extend the exception to Catholic Charities' specific services. But suppose that the exception did somehow apply. Even then, it might not survive a test of the "notwithstanding any other provision" clause of the quoted marriage-equality bill, if enacted. A court would have to decide whether a law drafted as the bill now reads would prevail over HRA's "exceptions," even if a court broadly interpreted them to apply to Catholic Charities. Regardless of this issue, the bill, as drafted, would bar Catholic Charities from denying public services to married, same-sex couples. It would likely take a First Amendment lawsuit to test whether the organization can discriminate on the basis of marital status.
(b) Nothing contained in the provisions of this chapter shall be construed to bar any religious or political organization, or any organization operated for charitable or educational purposes, which is operated, supervised or controlled by or in connection with a religious or political organization, from limiting employment, or sales, or rental of housing accommodations, or admission to or giving preference to persons of the same religion or political persuasion as is calculated by such organization to promote the religious or political principles for which it is established or maintained.
But why does the Archdiocese limit its "deep concerns" to whether its religious freedom entitles it to discriminate against married, same-sex couples in provision of public services? Even without the proposed marriage-equality law, the Archdiocese should now have the very same concerns about the scope of the HRA, which prohibits discrimination based on sexual orientation. Despite its exceptions, the HRA appears to already bar Catholic Charities, and other licensed service providers, from discriminating against gays and lesbians (and therefore against same-sex couples). So the HRA should also be within the Archdiocese's sights for a First Amendment challenge.
In March 2006, Catholic Charities in the Archdiocese of Boston announced that it was withdrawing adoption services from Massachusetts, because the state's anti-discrimination law would prevent it, and other adoption licensees, from denying these services to gay couples - whether married or not. In fact, the state's public accommodations law (M.G.L. 272, Section 98) has no exemption for religious organizations. In that instance, Catholic Charities decided not to bring a First Amendment lawsuit.
Thursday, November 5, 2009
Wisconsin Supreme Court hears oral arguments in challenge to Wisconsin's "super-DOMA" amendment
11/03/09 Wisconsin Radio Network:
In McConkey v. Van Hollen, No. 2008AP001868 (Wis. Sup. Ct.), plaintiff William McConkey alleges that when voters adopted a state constitutional amendment, Art. XIII, § 13, the amendment banning same-sex marriages and "substantially similar" civil unions should not have qualified for the ballot, because it violates the single-subject rule for constitutional amendments under Art. XII, § 1. Madison attorney Lester Pines presented arguments for McConkey, while assistant attorney general Lewis Beilin defended the validity of the amendment. The Wisconsin Radio Network provides mp3 files of their respective arguments.
[Wisconsin Attorney General J.B. Van Hollen decided he could not represent the state in Appling v. Doyle, 2009AP001860-OA (Wis. Sup. Ct.); Governor Jim Doyle hired Pines to do so. The Wisconsin Supreme Court just denied review of the Appling petition.]
11/03/09 Wisconsin State Bar News:
In McConkey v. Van Hollen, No. 2008AP001868 (Wis. Sup. Ct.), plaintiff William McConkey alleges that when voters adopted a state constitutional amendment, Art. XIII, § 13, the amendment banning same-sex marriages and "substantially similar" civil unions should not have qualified for the ballot, because it violates the single-subject rule for constitutional amendments under Art. XII, § 1. Madison attorney Lester Pines presented arguments for McConkey, while assistant attorney general Lewis Beilin defended the validity of the amendment. The Wisconsin Radio Network provides mp3 files of their respective arguments.
[Wisconsin Attorney General J.B. Van Hollen decided he could not represent the state in Appling v. Doyle, 2009AP001860-OA (Wis. Sup. Ct.); Governor Jim Doyle hired Pines to do so. The Wisconsin Supreme Court just denied review of the Appling petition.]
11/03/09 Wisconsin State Bar News:
In the case McConkey v. Van Hollen, 2008AP1868, William McConkey alleges that the amendment ballot measure improperly asked voters to consider two unrelated questions in violation of the state constitution’s “separate amendment” rule. Specifically, McConkey argues that the amendment posed the question of whether marriage is properly defined as the union of one man and one woman, but also that it sought to restrain the power of the Legislature to grant privileges to any unmarried couple – whether homosexual or not.11/03/09 Milwaukee-Wisconsin Journal Sentinel:
The case centers on the technical process of amending the constitution and does not hinge on the merits of whether gay couples should be allowed to marry or enter into civil unions. If the court eliminates the constitutional ban, gay marriage would still be illegal because of a state law.
Wisconsin Supreme Court denies petition for original action against state's new domestic registry law
11/03/09 order by Wisconsin Supreme Court (Read the docket entry here.)
In Appling v. Doyle, 2009AP001860-OA (Wis. Sup. Ct.), board members of Wisconsin Family Action petitioned the state Supreme Court to take jurisdiction in an original action against the state's new domestic registry law. Petitioners alleged that it violates the "super DOMA" amendment of the state constitution (Art. XIII, Sec. 13). The amendment, adopted in the 2006 election, bans not only same-sex marriage, but also legal status for relationships that are "substantially similar" to marriage. In the run-up to the 2006 election, proponents of the super-DOMA amendment told the press that the proposed amendment allowed for limited domestic partnerships - including those the new law establishes. That fact did not deter petitioners. Now that the Court has denied their petition, their recourse involves filing a lawsuit in Dane County Circuit Court, where they will risk a trial of facts that will form a record for appeal.
11/04/09 Lamda Legal press release:
In Appling v. Doyle, 2009AP001860-OA (Wis. Sup. Ct.), board members of Wisconsin Family Action petitioned the state Supreme Court to take jurisdiction in an original action against the state's new domestic registry law. Petitioners alleged that it violates the "super DOMA" amendment of the state constitution (Art. XIII, Sec. 13). The amendment, adopted in the 2006 election, bans not only same-sex marriage, but also legal status for relationships that are "substantially similar" to marriage. In the run-up to the 2006 election, proponents of the super-DOMA amendment told the press that the proposed amendment allowed for limited domestic partnerships - including those the new law establishes. That fact did not deter petitioners. Now that the Court has denied their petition, their recourse involves filing a lawsuit in Dane County Circuit Court, where they will risk a trial of facts that will form a record for appeal.
11/04/09 Lamda Legal press release:
Because of today's ruling, Wisconsin's same-sex couples and their families who depend on domestic partnership protections can take care of each other in times of illness and crisis. Even with the discriminatory amendment excluding same-sex couples from marriage, the Wisconsin Constitution does not prevent enactment of laws that offer basic decency and security for couples.11/04/09 ACLU of Wisconsin press release:
“The Wisconsin Supreme Court did the right thing rejecting this premature and ill-defined challenge. If the petitioners want to deprive thousands of families of some very basic protections, they should not be allowed to short-circuit the legal process of proving their case to a trial judge,” said Larry Dupuis, Legal Director of the ACLU of Wisconsin. “We’re certain that if we end up having to deal with these arguments in a trial, we’ll be able to show how the limited protections offered by the domestic partnership registry in no way violate the marriage ban.”
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