Recent news and commentary

Perry v. Schwarzenneger

Adam Liptak of the NY Times interviewed attorneys David Boies and Theodore Olson, who represent the Perry plaintiffs. (Pam's House Blend / Gay City News / LGBT POV ) Journalist Karen Ocamb lexamines the scope of a discovery order with respect to "core groups" that campaigned against Prop. 8. (LGBT POV)

Matt Coles, director of the ACLU's LGBT Project, offers the first part in series at Huffington Post, "The San Francisco Marriage Case: Possible Outcomes." Law professor David Levine has recently expressed his opinion on how Judge Walker could rule.

Out-of-state recognition

Maryland's House Judiciary Committee recently defeated legislation (HB 90) to preempt the expected opinion of the state Attorney General validating out-of-state marriages by same-sex couples. (The Maryland Reporter) Nevertheless, state Sen. Nancy Jacobs (R-Harford) has just introduced legislation (SB 1120) to stay the opinion pending review by the Maryland Court of Appeals or legislative action. (NBCWashington.com, cross-posted by Gay Marriage Watch) Jacobs is also co-sponsor of HB 90's companion in the state Senate (SB 852), and of a bill (SB 1097) for a super-DOMA amendment banning any legal recognition of same-sex couples.

Constitutional amendments - New Hampshire

LetNHVote.com has led a campaign to reverse marriage equality in New Hampshire (Pam's House Blend), despite what supporters would consider a recent legislative setback. (The Union Leader) Its members have placed, or have tried to place, articles on New Hampshire town warrants for voters to approve this petition: "The citizens of New Hampshire should be allowed to vote on an amendment to the New Hampshire Constitution that defines ‘marriage.'" As Pam Spaulding explains, "warrant articles are sort of like town-level bills, and they may be submitted for consideration by the town meeting by simply gathering 25 or so signatures in support." (See also N.H. Rev. Stat. Ann. 669:2.) Many New Hampshire are holding their annual warrant elections this week. So far, 42 towns have approved the petition language, while 133 towns are expected to consider the issue. (The Union Leader, cross-posted by Gay Marriage Watch and Pam's House Blend)

Divorce

"James J. “Jody” Scheske, who represents J.B., a Dallas-area gay man seeking to divorce his spouse, says the 5th Court of Appeals notified him it will hear oral argument April 21 in In the Matter of the Marriage of J.B. and H.B." (Texas Lawyer Blog)

Adoption

Yesterday, Rep. Pete Stark, D-Calif., re-introduced the “Every Child Deserves a Family Act,” H.R. 4806 (previous bill, H.R. 3827). According to HRC Back Story, the legislation would use federal funding to encourage states to place foster and adoptive children with qualified LGBT parents, and to place LGBTQ youths in caring, supportive, foster or adoptive homes. "It comes at a time when the 30+ year ban on “gay adoption” in Florida is being seriously challenged and may be overturned in the Florida Supreme Court (see my post, for example), and when the leading experts in child welfare policy routinely advocate for inclusion of LGBT foster/adoptive families and adherence to 'best practices' when working with LGBTQ youth." (HRC Back Story)

Recent news and commentary

Out-of-state recognition - Maryland

Lambda Legal and allied advocacy groups provide guidance on frequently asked questions about Maryland's recognition of out-of-state, same-sex marriages. (Cross-posted by Straight Talk on Marriage; the ACLU issued a press release here.) At The Maryland Daily Record, legal blogger Caryn Tamber makes a perceptive comment about litigation guidance by the advocates. They advise caution on seeking a legal remedy.

Super-DOMA amendment - Minnesota

On February 22nd, a Minnesota House committee held an informational hearing on three bills that would establish civil partnerships, out-of-state recognition, and marriage equality. No other hearing has been scheduled (Politics in Minnesota), and it's uncertain that legislators will vote on any of the bills. (WCCO.com) OutFront Minnesota predicts that "it will take 3 to 5 years" to pass a bill on marriage equality. (Minnesota Independent) Nevertheless, the Minnesota Family Council (MFC) expressed concern at a press conference that state Senator John Marty may succeed in gaining legislative approval of his marriage equality bill, SF0120. MFC president president Tom Prichard said that his organization would lobby for the strictest form of a super-DOMA amendment - one that bans any recognition of same-sex relationships. Marty, a candidate for governor, responded that he stands by his "commitment to equality. We can pass marriage equality legislation and sign it into law next year." (Minnesota Independent / Pam's House Blend)

Recent news and commentary

Jackson v. District of Columbia Bd. of Elections

Same-sex couples exchanged wedding vows today (Washington Post / LGBT POV / HRC Back Story), and Evan Wolfson explains what this remarkable development means for the national "freedom to marry." But Brian Brown, executive director of the National Organization for Marriage, offered a different interpretation. Brown warned that "it's not over" for a pending legal challenge to D.C.'s marriage equality law. (Christian Science Monitor). The case is Jackson v. D.C. Board of Elections and Ethics, Civ. No. 2010 CA 000740, slip op., (D.C. Super. Ct., Feb. 20, 2010), aff'd, No. 10-CV-177 (D.C. App. Ct., Feb. 26, 2010), emergency application for stay denied, No. 09A807 (U.S. Mar. 3, 2010). I expect the Jackson plaintiffs to ultimately have the U.S. Supreme review their demand for ballot qualification of the D.C. Marriage Initiative of 2009. (I hope that I am wrong.) I am still plodding along with my compilation of a a procedural history of the case.

Adoption - Florida

NPR has again profiled one of three Florida cases in which same-sex couples have secured rulings a state law [Fla. Stat. §63.042(3)] banning their adoptions. (03/09/10 All Things Considered) The profiled case involves Martin Gill and his partner, who seek to adopt two foster-care brothers. ACLU attorney Rob Rosenwald represents Gill. (Click here for briefs.) NPR reports that in Rosenwald's view, the "case has succeeded so far because it focuses on one constitutional issue: a violation of equal protection rights of both children and gay adopting parents." He said that it violates the state constitutional right of "[t]he children, in that it permanently denies them the chance to have a permanent home with their gay caretaker. So they will forever be in a state of foster care. It violates the rights of the parents by treating them differently than their straight counterparts without any rational basis.'" [In re Matter of Adoption X.X.G and N.R.G., No. 3D08-3044 (Fl. Ct. App. 3d Dist.)]

Recent news and commentary

Religious liberty exemption - Ireland

The Civil Partnership Bill of 2009 has been referred to a committee of Ireland's Dáil, or House of Representatives. According to an "explanatory memorandum," the bill would "provide an extensive package of rights, obligations and protections for same-sex couples who register as civil partners." It would also establish "a redress scheme for cohabitants and recognition of cohabitant agreements." The Sunday Business Post reports on lobbying by religious officials for a religious liberty exemption. The desired exemption would cover public officials who, for religious reasons, refuse to conduct civil partnership ceremonies. Dermot Ahern, the Minister for Justice, opposes the exemption. He said that "there is no basis for providing a right to discriminate against a class of persons on the grounds of freedom of religion or conscience." He also warned of "unintended consequences" from the proposed exemption, identifying examples of many other services public employees may be entitled to withhold on religious grounds.

Religious liberty exemption - D.C.

Mirror of Justice is a blog devoted to Catholic legal theory. Discussion continues there about the recent decision by the D.C. Archdiocese to discontinue eligibility for spousal benefits among employees of Catholic Charities. Law professor Rob Vischer asks whether an alternative to a religious liberty exemption could satisfy an organization like Catholic Charities of D.C.. It's exactly the kind of alternative that law professor John Culhane thought was available.

DOMA - Gill v. OPM

Gay & Lesbian Advocates & Defenders (GLAD) represents same-sex couples who are challenging Section 3 of the federal DOMA, which limits recognition of marriage to opposite-sex couples. GLAD has started to post firsthand accounts of the harms to married, same-sex couples.

Custody

Renee Harmon and her former partner, Tammy Davis, ended their relationship of 19 years, after Davis gave birth to twins. "Harmon says Davis cut off Harmon's contact with the children, prompting Harmon to sue in Wayne County Circuit Court in a long-shot bid to win joint custody. It's a battle she is prepared to take to the Michigan Supreme Court in an effort to secure joint custody rights for nonbiological, unmarried partners, gay or straight ... The first hurdle for her lawyers will come March 22, when they try to persuade Judge Kathleen McCarthy that Harmon has legal standing to sue." (Citizen-Times, cross-posted by ADF Alliance Alert, and Detroit Free Press) Law professor Nancy Polikoff discusses the case here.


Lisa Miller remains the subject of an arrest warrant, having disappeared with the child she once shared with her former civil union partner, Janet Jenkins. A Vermont family court judge issued the arrest warrant after holding Miller in contempt for failure to comply with a court order to surrender the child to Jenkins, to whom the court transferred permanent custody. LifeSiteNews.com, a Christian news service, reports that "[t]he daughter of ex-lesbian Lisa Miller appeared to have suffered emotional trauma following forced visits with Miller's ex-partner, according to sworn testimony submitted to a Vermont court ... Clinical Therapist Sylvia Haydash, who had two clinical sessions with Isabella and observed her for an hour on another occasion, concluded that the visits were doing serious harm to the child, causing anxiety, renewed bed-wetting, and general psychological regression." To place this testimony in context, I would welcome comment from readers who are following the details of the case.

Recent news and commentary

As same-sex couples in D.C. realized their dreams by marrying, the District's marriage-equality law still has an uncertain future. The U.S. Supreme Court may have opportunity to give proponents of "traditional" marriage what they want - a decision allowing D.C. citizens to vote on the D.C. Marriage Initiative of 2009. The opportunity raised by Chief Justice Robert's decision did not escape notice by LifeSiteNews.com, a news service for evangelical Christians. It also been the subject of comment at SCOTUS Blog and Leonard Link. Given the stakes, I have been preparing a procedural history of the litigation over the initiative.

It will take me more time than I expected to complete the procedural history. As a result, I don't know if I can avoid delays in updating this site. My limitations have an arguably distinguished pedigree, though I would not otherwise compare myself with U.S. presidents. Lyndon Johnson said of Gerald Ford that "he couldn't chew gum and walk straight at the same time." While I am less prone to trip over stairs than Ford, I find myself unable to work on two demanding tasks - more or less at the same time - with equal levels of energy and concentration.

Here's the latest update:

Marriage equality v. religious liberty exemption - D.C.

Upon taking effect, D.C.'s marriage-equality law marks what law professor John Culhane calls a "another milestone on the superhighway to full equality." (Freedom to Marry links to the Washington Post's video coverage of the historic day.) But he also discusses a carefully timed decision by the Archidiocese of D.C. to ban spousal benefits for employees of Catholic Charities - a decision that its former chief operating officer opposes. (Washington Post) Before the law took effect, Catholic Charities had announced that it would end its foster care program in the District, allegedly to avoid the law's requirement that it provide foster care and adoption services equally to same-sex and opposite-sex couples. (Washington Post) Culhane faulted the latest retrenchment as a "publicity stunt," because Catholic Charities had alternatives to ending spousal benefits. For other examples of alternatives, see letters to D.C. Archbishop Donald Wuerl that I link to here.

Without considering the alternatives, law professor Robert J. Araujo tries to defend the Archdiocese's decision. He finds that, under Church doctrine, granting spousal benefits provides merely a means to an end - the defining goal of promoting "traditional" marriage. The Church would unacceptably risk compromising its identity if it continued offering the benefits - or, presumably, if it reached some other accommodation. To preserve its identity over "traditional" marriage, the Church must deny heath care coverage, and other important benefits, to heterosexual spouses of Catholic Charities employees. That 's an odd position, but, Araujo would claim, it's the inevitable result of the marriage equality law.

One blogger says that it's "hard to spin religious discrimination as a moral principle." The difficulty has not been a deterrent. Sister Anne Flanagan invites comparison between D.C. Catholic Charities with its Chicago counterpart in the era of segregation. (Chicago Tribune) Chicago Catholic Charities refused to follow the city's demand of racial segregation because, she says, doing so would have undermined the Church's identity. Do Catholics agree that the Church's admirable, if uneven,* history of opposing racial segregation provides just the support they need for supporting discrimination against same-sex couples?

(*For example, Catholic schools in Baltimore remained segregated until 1962.)

Domestic partnerships - D.C.

The Washington Post has a revealing article on the incremental strategy that marriage-equality advocates successfully pursued. The strategy involved more than timing introduction of legislation after Obama's election, but before the 2010 election. It also involved adding domestic partner benefits since 1992, when a domestic partnership law was first adopted, until the law became an "all-but-marriage" law. All-but-marriage laws are - by design - inherently unstable, subject to legislative action in favor of marriage equality, or to the epic legal battle over Prop. 8 in the Perry case.

Perry v. Schwarzenneger

U.S. Magistrate Joseph Spero has ordered "several gay rights groups that campaigned against California's 2008 same-sex marriage ban to furnish some internal memos and e-mails to lawyers for the measure's sponsors." (AP)

At an address to the Orange County Equality Coalition, constitutional scholar and law school dean Erin Chemerensky said that Perry plaintiffs have not brought their challenge prematurely - or so a blogger in the audience reports.

Marriage equality legislation / out-state recognition - Maryland

Last week, "Maryland Senate’s Judicial Proceedings Committee had hearings scheduled on one bill that would legalize gay marriage in Maryland and another that would invalidate a recent attorney general opinion and prohibit the state from recognizing same sex marriages authorized by other states." (AP, cross-posted by Gay Marriage Watch; see also Advocate.com and the Baltimore Sun)

Constitutional amendments - New Hampshire and Iowa

Legislators in New Hampshire and Iowa failed to gain legislative approval of constitutional amendments that would reverse marriage-equality if also adopted by voters. The proposed amendment in Iowa now appears to have died in the current legislative session, even if "proponents haven't given up on trying to force a debate." (Sioux City Journal) New Hampshire Public Radio reports that more than 100 towns will consider an article urging legislators to let citizens vote on an amendment. Proponents of the articles identify the towns here. Their campaign has led to organized opposition. One opponent of Sugar Hill, New Hampshire, claims that "three or four dozen people from area towns started meeting regularly to defeat the articles."

Divorce

TheStar.com reports that a same-sex couple in Indiana will not appeal a ruling that nullifies their marriage but bars a divorce. (cross-posted by Gay Marriage Watch)

Custody

A same-sex couple in Santa Cruz, California, has settled their legal dispute over custody. The mother who gave birth to twins tried to prevent her former partner from claiming parental rights. (NCLR Out for Justice / Santa Cruz Sentinel)

Adoption

The Louisiana Attorney General has requested reconsideration in a 5th Circuit ruling that requires the state to recognize a New York court decree of adoption by gay parents. (AP / Times-Picayune / Lambda Legal press release) The case is Adar v. Smith, No. 09-30036 (5th Cir., Feb. 18, 2010).

Developments abroad

The European Court of Human Rights has ruled that Poland's government may not discriminate against a man who sought to remain in the home of his deceased partner. (Financial Times, cross-posted by Gay Marriage Watch)

The first gay wedding has taken place in Buenos Aire (Buenos Aires Herald, cross-posted by Gay Marriage Watch), and gay couples have received their first marriage licenses in Mexico City. (Wall Street Journal,CNN, and BBC, cross-posted by Gay Marriage Watch)

Hiatus as I compile a procedural history of Jackson v. D.C. Bd. of Elections that I will link to this site

I expect to catch up with legal news and commentary in the next few days. In the meantime, I am working on this document:

Jackson v. District of Columbia Bd. of Elections, Civ. No. 2009 CA 008613 B, slip. op. (D. C. Super., Jan. 14, 2010), petition for cert. filed, No. 10-CV-20 (D.C. Ct. App. Jan. 15, 2010)
Procedural History Compiled By Michael Ginsborg, MLS
Prop. 8 and the Right to Marry
First Update: March ___, 2010


Introduction

On March 2nd, Chief Justice Roberts denied an application for an emergency stay of the D.C. Religious Freedom and Civil Marriage Equality Amendment Act of 2009. Plaintiffs sought the stay pending a forthcoming petition for review of a judgment by the D.C. Court of Appeals in Jackson v. D.C. Board of Elections and Ethics, Civ. No. 2010 CA 000740, slip op., (D.C. Super. Ct., Feb. 20, 2010), aff'd, No. 10-CV-177 (D.C. App. Ct., Feb. 26, 2010). The issue involved a proposed referendum on the marriage equality law before it took effect March 3rd. Plaintiffs - a group of ministers - challenged a ruling by the D.C. Elections and Ethics Board that disqualified the referendum. In re Referendum on the Religious Freedom and Civil Marriage Equality Amendment Act of 2009, (DCBOEE, Feb. 4, 2010). On February 5th, plaintiffs petitioned the D.C. Superior Court to review the Board's decision and issue a writ compelling the Board to accept the referendum. They also filed a motion for a preliminary injunction to keep the marriage equality law from taking effect. D.C. Superior Court Judge Brian Holeman denied the motion; plaintiffs appealed; but the D.C. Court of Appeals upheld Holeman's order. Plaintiffs exhausted their alleged remedy for injunctive relief when Chief Justice Roberts denied their emergency application. And this case ended with Robert's decision, because a court could decide the referendum question only if plaintiffs succeeded at staying the marriage equality law.

If the same plaintiffs in a related case succeed, a court order would require the D.C. Elections Board to accept The Marriage Initiative of 2009, limiting marriage to heterosexual couples. The case arises from a decision [insert link] by the Board to disqualify the initiative. It raises three questions: (1) Did the D.C. Council have authority under the Charter Amendments Act to prohibit initiatives that violate the Human Rights Act? (2) If passed, would the Marriage Initiative violate the Human Rights Act by discrimination on the basis of sexual orientation? (3) Is there an implied exclusion of initiatives that, if passed, would violate existing statutes?

I am compiling a procedural history of this "initiative" case - now before the D.C. Court of Appeals - for two reasons. First, voters will have opportunity to overturn D.C.'s marriage equality law if plaintiffs prevail. Plaintiffs have favorable odds of success if the case reaches the Supreme Court. Chief Justice Roberts found that arguments by petitioners in the "referendum" case "have a certain force," even if he declined to consider their merits. The "referendum" petitioners make the same arguments in the initiative case. Moreover, Roberts said that "petitioners will have the right to challenge any adverse decision [in the initiative case] through a petition for certiorari in this Court at the appropriate time." That prospect strikes me as likely.

Second, as a law librarian, I see the need to keep relevant filings in an accessible place, as websites that link to them today may not link to them tomorrow.

Efforts to prevent D.C.'s marriage-equality law from taking effect tomorrow

"It ain't over till it's over." Embracing its own version of Yogi Berra's insight, the Alliance Defense Fund has petitioned the U.S. Supreme Court to stay D.C.'s marriage-equality law, which takes effect tomorrow absent Congressional intervention. (Metro Weekly; Washington Post) This appeal arises from the latest of three attempts to reverse D.C.'s recognition of marriage equality. HRC Back Story has also posted the D.C. Attorney General's response brief opposing a stay by the Supreme Court. See my post for details on the prior course of the litigation.

[update: "The Chief Justice, in denying an emergency stay filed by opponents of gay marriage, issued a three-page opinion, found here, explaining his action ... Even while saying a delay was not now legally justified, Roberts noted that the challengers may still try to undo the new D.C. marriage provision by attempting to put it on the ballot asking local voters to repeal the law. That separate maneuver is now under review in the D.C. Court of Appeals, Washington’s highest local court." (SCOTUS Blog. See also Leonard Link) The "separate maneuver" involves the Marriage Initiative of 2009, which the D.C. Elections and Ethics Board disqualified as a violation of the D.C. Human Rights Act. The D.C. Superior Court upheld the Board's decision [Jackson v. District of Columbia Bd. of Elections, Civ. A. No. 2009 CA 008613 B (D. C. Super., Jan. 14, 2010)], and plaintiffs appealed to the D.C. Court of Appeals. Roberts states that with respect to this case, "petitioners will have the right to challenge any adverse decision through a petition for certiorari in this Court at the appropriate time."

AP reports on division among African-Americans over marriage equality in D.C., as Bishop Harry Jackson, a black pastor, has led the opposition. While he is the most outspoken of plaintiffs challenging the new law, plaintiffs include Rev. Walter Fauntroy, a 1960s civil rights leader. According to AP, local, marriage equality supporters have made "references to interracial marriage and Martin Luther King." Although AP overlooks Fauntroy, he told the Washington Post that "[e]very child needs to be bonded to a man and a woman" and that " the survival of the species is at stake."

In December, D.C. evangelical Joyce Little failed in her pro se attempt to prevent the D.C. Council from voting on the marriage equality legislation. (DCist.com) She also tried to propose an initiative to repeal the new law, but, on March 1st,the D.C. Elections and Ethics Board rejected it. (Thanks to a helpful reader for alerting me to the Board's decision.)