Sunday, April 11, 2010
D.C. Court of Appeals schedules oral argument in lawsuit to restore D.C. Marriage Initiative to ballot
Appellants before the D.C. Court of Appeals seek to qualify the D.C. Marriage Initiative of 2009 for the ballot, after the D.C. Superior Court upheld a disqualification decision by the D.C. Elections and Ethics Board. The case is 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., Jan. 15, 2010, No. 10-CV-20 (D.C. Ct. App.) Chief Justice Roberts denied their emergency application to stay D.C.'s marriage equality law when, in a related lawsuit, they tried to overturn the Board's disqualification of a referendum on the law. Jackson v. District of Columbia Bd. of Elections, 559 U. S. ____ (2010) But Roberts said that plaintiffs will, "at the appropriate time," have the right to challenge any "adverse decision" in their "initiative" lawsuit. Oral argument has been scheduled for May 4th at 10 a.m. EST, and parties have been ordered to submit briefs. The Court hosts real-time recording of its oral arguments here.
Saturday, April 10, 2010
Opening briefs filed in 9th Circuit Court appeal of Perry discovery order
Perry v. Schwarzenneger, opening brief by appellants Equality California et al., No. 10-15649 (9th Cir. Apr. 9, 2010)
Perry v. Schwarzenneger, opening brief by appellees Prop. 8 proponents, No. 10-15649 (9th Cir. Apr. 9, 2010)
Perry v. Schwarzenneger, plaintiffs-appellees brief, No. 10-15649 (9th Cir. Apr. 9, 2010)
In March, Judge Vaughn Walker upheld a discovery order in the Perry case that requires California Equality, the ACLU, and other "No on 8" organizations to provide Prop. 8 proponents certain types of campaign communications, even though the organizations are not parties in the case. These groups appealed Walker's ruling to the 9th Circuit, alleging that it violates their First Amendment protection of political speech and participation. In Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010), a 9th Circuit panel overturned a discovery order that would have required Prop. 8 proponents to disclose internal campaign communications, other than those by "rank-and-file" members. The same panel has been assigned to this latest appeal, and ordered parties to file briefs by April 9th.
In their opening brief, appellants argue that the Court has "finality" jurisdiction to review their appeal now rather than wait for them to appeal it later, after Judge Walker effectively resolves the question of "finality" jurisdiction by citing them for violating the recent discovery order. Appellants also argue that, under Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010) and another precedent, the Court has mandamus jurisdiction because Judge Walker clearly erred when he sustained the discovery order: they allege that the required document production violates the First Amendment right of their members, and would chill political speech in future campaigns. "To cite but one obvious example, the district court’s holding that there is no constitutional protection at all for [private] communications between individuals working for different groups as part of a common and coordinated effort to achieve a particular political result is, we suggest, both wholly indefensible and vast in its implications for the conduct of future elections."
In their opening brief, Prop. 8 proponents seek clarification of a footnote in the panel's ruling on the scope of First Amendment protection from compelled disclosure of political speech and association. Footnote 12 states, in relevant part, that the panel's "holding [on the First Amendment privilege] is ... limited to communications among the core group of persons engaged in the formulation of campaign strategy and messages." Id. at 1165 n.12. Does this holding apply to individuals who formulated campaign strategy and messages, regardless of their status or importance to the campaign, and thus regardless of their membership in a "core" group? Proponents claim that it must under First Amendment jurisprudence:
If the 9th Circuit holding extends First Amendment protection to any individual who formulated campaign strategy and messages, then it bars the very "types of [private] documents and information that the district court has ordered both Proponents and Petitioners to disclose - confidential political speech shared among associates in a campaign" - whether or not they belong to a "core" group. Otherwise, Judge Walker has not clearly erred with respect to discovery orders in the case, and appellants must defer their appeal until Walker cites them for violating the latest discovery order.
Not surprisingly, the Perry plaintiffs do not want this appeal to succeed. They argue that Judges Walker and Spero have carefully followed the panel Court's instruction on First Amendment privilege when Spero crafted the latest discovery order. The Perry plaintiffs contend that the panel does not have jurisdiction to review the First Amendment claims of California Equality and the ACLU.
Perry v. Schwarzenneger, opening brief by appellees Prop. 8 proponents, No. 10-15649 (9th Cir. Apr. 9, 2010)
Perry v. Schwarzenneger, plaintiffs-appellees brief, No. 10-15649 (9th Cir. Apr. 9, 2010)
In March, Judge Vaughn Walker upheld a discovery order in the Perry case that requires California Equality, the ACLU, and other "No on 8" organizations to provide Prop. 8 proponents certain types of campaign communications, even though the organizations are not parties in the case. These groups appealed Walker's ruling to the 9th Circuit, alleging that it violates their First Amendment protection of political speech and participation. In Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010), a 9th Circuit panel overturned a discovery order that would have required Prop. 8 proponents to disclose internal campaign communications, other than those by "rank-and-file" members. The same panel has been assigned to this latest appeal, and ordered parties to file briefs by April 9th.
In their opening brief, appellants argue that the Court has "finality" jurisdiction to review their appeal now rather than wait for them to appeal it later, after Judge Walker effectively resolves the question of "finality" jurisdiction by citing them for violating the recent discovery order. Appellants also argue that, under Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010) and another precedent, the Court has mandamus jurisdiction because Judge Walker clearly erred when he sustained the discovery order: they allege that the required document production violates the First Amendment right of their members, and would chill political speech in future campaigns. "To cite but one obvious example, the district court’s holding that there is no constitutional protection at all for [private] communications between individuals working for different groups as part of a common and coordinated effort to achieve a particular political result is, we suggest, both wholly indefensible and vast in its implications for the conduct of future elections."
In their opening brief, Prop. 8 proponents seek clarification of a footnote in the panel's ruling on the scope of First Amendment protection from compelled disclosure of political speech and association. Footnote 12 states, in relevant part, that the panel's "holding [on the First Amendment privilege] is ... limited to communications among the core group of persons engaged in the formulation of campaign strategy and messages." Id. at 1165 n.12. Does this holding apply to individuals who formulated campaign strategy and messages, regardless of their status or importance to the campaign, and thus regardless of their membership in a "core" group? Proponents claim that it must under First Amendment jurisprudence:
"The First Amendment creates no castes. Its protection is not doled out based on some perceived rank within a political campaign or organization. Instead, the First Amendment protects the rank-and-file campaign volunteer no less than the campaign manager, the reticent or fleeting speaker no less than the campaign press secretary, the individual on a soapbox no less than the campaign executive committee."Proponents have also filed a petition in the Supreme Court to test their interpretation of the holding in footnote 12. In their Supreme Court petition, they contend that footnote 12's "'core group' limitation runs afoul of the First Amendment." (at 12) The Supreme Court case is Hollingsworth v. Perry, No. 09-1210) Proponents asked the Supreme Court to hold the petition pending the outcome of the case brought by Equality California, ACLU, and other No on 8 groups.
If the 9th Circuit holding extends First Amendment protection to any individual who formulated campaign strategy and messages, then it bars the very "types of [private] documents and information that the district court has ordered both Proponents and Petitioners to disclose - confidential political speech shared among associates in a campaign" - whether or not they belong to a "core" group. Otherwise, Judge Walker has not clearly erred with respect to discovery orders in the case, and appellants must defer their appeal until Walker cites them for violating the latest discovery order.
Not surprisingly, the Perry plaintiffs do not want this appeal to succeed. They argue that Judges Walker and Spero have carefully followed the panel Court's instruction on First Amendment privilege when Spero crafted the latest discovery order. The Perry plaintiffs contend that the panel does not have jurisdiction to review the First Amendment claims of California Equality and the ACLU.
Thursday, April 8, 2010
Recent news and commentary
Perry v. Schwarzenneger
Theodore Olson addressed a group of law students and answered their questions about the case. He said that the Supreme Court didn't tip its hand when it decided to disallow a televised broadcast of the trial. He appears to take it for granted that the case will ultimately reach the Supreme Court. The legal team will not target specific Supreme Court judges (like Anthony Kennedy!) for their arguments. He repeated his reasons for bringing the case last year rather than wait on an incremental strategy. He faulted the Prop. 8 proponents for failing to demonstrate any harm from marriage equality to the institution of marriage. And he told a reporter that the case "will affect the rest of the world." (The Blog of Legal Times)
Gill v. OPM
"On Thursday, May 6, 2010, the Federal District Court in Boston will hear oral arguments on the constitutionality of the federal Defense of Marriage Act (DOMA), in the case of Gill v. Office of Personnel Management, brought by GLAD in March 2009." (GLAD press release)
Adoption - Cole v. Arkansas
"The American Civil Liberties Union and the ACLU of Arkansas will ask a Pulaski County circut court to rule in its favor in its challege to Act One, a 2008 law that bans any unmarried person who lives with a partner from serving as an adopting foster parent in Arkansas." (KTHV, Little Rock, cross-posted by ADF Alliance Alert) The ACLU makes its selected filings available here, and the Alliance Defense Fund links its briefs to this press release. Lamda Legal also has a press release.
Divorce
"So why are we talking about a same-sex couple married in Massachusetts and now divorced in Texas? It's a new area of law and divorce attorneys in Chicago and all across the country likely are taking cues from this case and ones in other states." (Steven Tanner for the Chicago Family Law Blog)
Civil Unions
"Bill in NH" writes a powerful, eloquent reply to an article on civil unions legislation, which a state Pennslvania Representative recently introduced. Bill uses his experience to defend the legislation and marriage equality laws, like the one in Massachusetts that allowed him to marry his husband before he passed away. He describes how his marriage spared him the risks of many legal conflicts at a vulnerable time. He also describes the emotional and legal problems survivors still encounter even if they enjoy the protections of their status as spouses or civil-union partners.
Theodore Olson addressed a group of law students and answered their questions about the case. He said that the Supreme Court didn't tip its hand when it decided to disallow a televised broadcast of the trial. He appears to take it for granted that the case will ultimately reach the Supreme Court. The legal team will not target specific Supreme Court judges (like Anthony Kennedy!) for their arguments. He repeated his reasons for bringing the case last year rather than wait on an incremental strategy. He faulted the Prop. 8 proponents for failing to demonstrate any harm from marriage equality to the institution of marriage. And he told a reporter that the case "will affect the rest of the world." (The Blog of Legal Times)
Gill v. OPM
"On Thursday, May 6, 2010, the Federal District Court in Boston will hear oral arguments on the constitutionality of the federal Defense of Marriage Act (DOMA), in the case of Gill v. Office of Personnel Management, brought by GLAD in March 2009." (GLAD press release)
Adoption - Cole v. Arkansas
"The American Civil Liberties Union and the ACLU of Arkansas will ask a Pulaski County circut court to rule in its favor in its challege to Act One, a 2008 law that bans any unmarried person who lives with a partner from serving as an adopting foster parent in Arkansas." (KTHV, Little Rock, cross-posted by ADF Alliance Alert) The ACLU makes its selected filings available here, and the Alliance Defense Fund links its briefs to this press release. Lamda Legal also has a press release.
Divorce
"So why are we talking about a same-sex couple married in Massachusetts and now divorced in Texas? It's a new area of law and divorce attorneys in Chicago and all across the country likely are taking cues from this case and ones in other states." (Steven Tanner for the Chicago Family Law Blog)
Civil Unions
"Bill in NH" writes a powerful, eloquent reply to an article on civil unions legislation, which a state Pennslvania Representative recently introduced. Bill uses his experience to defend the legislation and marriage equality laws, like the one in Massachusetts that allowed him to marry his husband before he passed away. He describes how his marriage spared him the risks of many legal conflicts at a vulnerable time. He also describes the emotional and legal problems survivors still encounter even if they enjoy the protections of their status as spouses or civil-union partners.
Wednesday, April 7, 2010
Recent news and commentary
Perry v. Schwarzenneger
Chad Griffin is President of the American Foundation For Equal Rights, the organization that funds representation of the Perry plaintiffs. On the cover of its May issue, The Adovocate features Griffin as a standout among "Forty Under 40." (LBGT POV)
Lewis v. Harris II
Do Lewis plaintiffs have compelling evidence that marriage inequality in New Jersey gravely harms same-sex couples and their children? A columnist for NewJersey.com dismisses the evidence: "What evidence? Emotional, unverified testimony by gay and lesbian couples that they had been denied rights to which they were entitled. Plus a report by the Legislature’s own Civil Union Review Commission ... Plainly put, the commission was stacked." (NewJersey.com)
Varnum v. Brien
"On Tuesday, April 13 at 7:30 p.m., Cornell will host Brad Clark, Campaign Director for One Iowa, and Kate and Trish Varnum, plaintiffs in this historic Supreme Court case." (Cornell College Press Release)
Domestic partnerships
“Western Kentucky University officials announced Friday that the school will begin offering health insurance to qualifying dependents — including domestic partners — of its employees, starting next year.” (Courier Journal, cross-posted by ADF Alliance Alert) Kentucky has a super-DOMA amendment. I cannot assess the odds of a legal challenge by the Alliance Defense Fund or a sister organization in the state, or the odds of a lawsuit's success.
Related News
A recent poll shows that a slim majority of Californians now support marriage equality (Los Angeles Times) "Registered voters younger than 30" support it by a margin of 3 to 1. Law professor John Culhane believes that support from younger Americans will ultimately transform public perception of same-sex marriage. (WordinEdgewise) Given strong opposition by Americans older than 64, Darrin Hurwitz, HRC Assistant General Counsel, agrees that it is "not difficult to see where public opinion is headed." (HRC Back Story)
California state legislators have advanced legislation to repeal an unenforced, 1950 law that classifies gays and lesbians as 'sexual deviants' and requires the state Department of Mental Health to conduct research on "deviations conducive to sex crimes against children." (ABC News) Hurwitz said that "[t]he existence of such a law, unnoticed by many, is a sharp reminder of where attitudes towards LGBT rights used to be and, notably, of the progress that has been made since then." He predicts that "[w]hile challenges certainly remain, eventually both the 1950 sex crimes law and the 2008 anti-marriage initiative will likely be ones for the history books in California. (HRC Back Story)
Later this month, Marriage Equality New York will honor Shannon Minter among other advocates of marriage equality. (Marriage Equality New York / The Daily Gotham)
Chad Griffin is President of the American Foundation For Equal Rights, the organization that funds representation of the Perry plaintiffs. On the cover of its May issue, The Adovocate features Griffin as a standout among "Forty Under 40." (LBGT POV)
Lewis v. Harris II
Do Lewis plaintiffs have compelling evidence that marriage inequality in New Jersey gravely harms same-sex couples and their children? A columnist for NewJersey.com dismisses the evidence: "What evidence? Emotional, unverified testimony by gay and lesbian couples that they had been denied rights to which they were entitled. Plus a report by the Legislature’s own Civil Union Review Commission ... Plainly put, the commission was stacked." (NewJersey.com)
Varnum v. Brien
"On Tuesday, April 13 at 7:30 p.m., Cornell will host Brad Clark, Campaign Director for One Iowa, and Kate and Trish Varnum, plaintiffs in this historic Supreme Court case." (Cornell College Press Release)
Domestic partnerships
“Western Kentucky University officials announced Friday that the school will begin offering health insurance to qualifying dependents — including domestic partners — of its employees, starting next year.” (Courier Journal, cross-posted by ADF Alliance Alert) Kentucky has a super-DOMA amendment. I cannot assess the odds of a legal challenge by the Alliance Defense Fund or a sister organization in the state, or the odds of a lawsuit's success.
Related News
A recent poll shows that a slim majority of Californians now support marriage equality (Los Angeles Times) "Registered voters younger than 30" support it by a margin of 3 to 1. Law professor John Culhane believes that support from younger Americans will ultimately transform public perception of same-sex marriage. (WordinEdgewise) Given strong opposition by Americans older than 64, Darrin Hurwitz, HRC Assistant General Counsel, agrees that it is "not difficult to see where public opinion is headed." (HRC Back Story)
California state legislators have advanced legislation to repeal an unenforced, 1950 law that classifies gays and lesbians as 'sexual deviants' and requires the state Department of Mental Health to conduct research on "deviations conducive to sex crimes against children." (ABC News) Hurwitz said that "[t]he existence of such a law, unnoticed by many, is a sharp reminder of where attitudes towards LGBT rights used to be and, notably, of the progress that has been made since then." He predicts that "[w]hile challenges certainly remain, eventually both the 1950 sex crimes law and the 2008 anti-marriage initiative will likely be ones for the history books in California. (HRC Back Story)
Later this month, Marriage Equality New York will honor Shannon Minter among other advocates of marriage equality. (Marriage Equality New York / The Daily Gotham)
Monday, April 5, 2010
Latest appeal of discovery order in Perry v. Schwarzenneger: parties to file briefing by April 9th
Perry v. Schwarzenneger, order on briefing schedule, No. 10-15649 (9th Cir. Mar. 31, 2010)
On March 22nd, Judge Walker granted an interim stay of his decision in Perry v. Schwarzenneger to uphold a discovery order by Magistrate Judge Joseph Spero . The discovery order requires Equality California and the ACLU - two of the "No on 8" groups - to produce documents that concern "arguments for or against Prop. 8," even though they are not parties to the case. Prop. 8 proponents argued that the documents may clarify the intent of those who voted for Prop. 8, and may reveal the extent of political power of gays and lesbians. Equality California and the ACLU claimed that the documents are not relevant; that a First Amendment privilege applies under Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010); and that document production would impose an undue burden on them. Judge Spero ruled that the First Amendment privilege does not apply to communications between Equality California and the ACLU, on the one hand, and certain other No on 8 organizations, on the other. He also found that the documents may contribute to a "mix of information" available to pro-8 voters. And he identified steps to ensure that document production would not impose an undue burden.
On March 25th, Equality California and the ACLU filed an emergency motion for a stay of Judge Walker's decision to sustain Spero's order, together with a motion for expedited appeal. The appeal has been assigned to the same panel that decided Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010). By April 9th, "parties shall file simultaneous briefs addressing solely the issues of whether this court has jurisdiction over this appeal and whether mandamus is appropriate."
On March 22nd, Judge Walker granted an interim stay of his decision in Perry v. Schwarzenneger to uphold a discovery order by Magistrate Judge Joseph Spero . The discovery order requires Equality California and the ACLU - two of the "No on 8" groups - to produce documents that concern "arguments for or against Prop. 8," even though they are not parties to the case. Prop. 8 proponents argued that the documents may clarify the intent of those who voted for Prop. 8, and may reveal the extent of political power of gays and lesbians. Equality California and the ACLU claimed that the documents are not relevant; that a First Amendment privilege applies under Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010); and that document production would impose an undue burden on them. Judge Spero ruled that the First Amendment privilege does not apply to communications between Equality California and the ACLU, on the one hand, and certain other No on 8 organizations, on the other. He also found that the documents may contribute to a "mix of information" available to pro-8 voters. And he identified steps to ensure that document production would not impose an undue burden.
On March 25th, Equality California and the ACLU filed an emergency motion for a stay of Judge Walker's decision to sustain Spero's order, together with a motion for expedited appeal. The appeal has been assigned to the same panel that decided Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010). By April 9th, "parties shall file simultaneous briefs addressing solely the issues of whether this court has jurisdiction over this appeal and whether mandamus is appropriate."
Saturday, April 3, 2010
Recent news and commentary
Golinsky v. OPM
The San Francisco Daily Journal featured an article yesterday about Golinsky v. OPM, No. 10-0257 (N.D.Cal.) (John Roemer, Lawyer Hits Wall in Trying To Get Benefits For Gay Spouse; Obama Administration Staff Sympathizes With Cause But Say Their Hands Are Tied, San Francisco Daily J., Apr. 2, 2010, at 1.) The lawsuit names OPM Director John Berry, who is gay. The agency's general counsel, Elaine Kaplan, is a lesbian. Kaplan told the Daily Journal, "I get that people think it's ironic [for OPM to defend against Karen Golinksy's claim for enrollment of her wife in the federal employee medical insurance plan], but neither Director Berry nor I has the freedom to disregard the law, even though we may disagree with it." Another "irony": the Obama administration continues to block access to medical insurance for Golinksy's wife, even as President Obama just signed into law the largest expansion of medical insurance coverage for Americans since Medicare. Golinsky remains worried that her wife lacks medical insurance: "You hold your breath and pray that nothing goes awry. One bad illness or accident can leave a family devastated."
Lamda Legal Marriage Project Director Jennifer Pizer acknowledged progress by the Obama administration on policies that do not require an act of Congress. But she said that Obama's "lawyers here argue that the public interest is best served by reflexively asserting DOMA to block insurance for Golinsky's family, and to uphold a repugnant tradition of anti-gay discrimination." She also called OPM's position "a strange collection of misreadings and misapplications of federal law adding up to a disconnect."
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.
Varnum v. Brien - first anniversary
Kate and Trish Varnum were lead plaintiffs in Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009). They describe the lived experience of their marriage, their commitment to advocacy and their insecurity over out-of-state travel. (Iowa Independent) "It’s validation,” Trish [Varnum], 45, says grinning. “I finally have a word (marriage) to describe what our relationship is all about. I’m now equal to my brothers and sisters." (gazetteonline.com, Cedar Rapids) While Carolyn Jenison, executive director for One Iowa, said that Varnum was monumental, "I remember getting up Saturday, April 4, and walking down the street and nothing was different. People have continued to do what they've always done." The Daily Nonpareil reports on a gay couple who encountered neo-Nazis at a Council Bluffs courthouse as they sought their marriage license. "Shouting anti-gay slurs on bullhorns and holding signs with sentiments of the same ilk," the neo-Nazis subjected the couple to the Nazi salute and "Heil Hitler."
Iowa has become a wedding destination for same-sex couples in the Midwest. (AP) However, the Omaha World-Herald claims that same-sex couples have not married in Iowa in numbers predicted by The Williams Institute at UCLA. The claim remains open to question, because "Iowa does not require marriage license applicants to designate their sex on the forms that are filed with the state." Sen. Mike Gronstal, D-Council Bluffs, observed that a relatively low number of same-sex marriages in Iowa would mean that "a vast majority" of the married couples are Iowans who have benefited from the ruling. They are "people who live down the street,” Gronstal said. “They are our friends, neighbors and people who live in our communities, who pay taxes just like everybody else.” (Daily Nonpareil, Council Bluffs, Iowa)
Let Us Vote Iowa plans to target three of the Varnum Court judges who face a retention vote in the November election. The organization will also endorse state House and Senate candidates who oppose marriage equality. (The Hawk Eye) Gubernatorial candidate Rod Roberts has said that if elected he would do everything within his power to see that voters have opportunity to approve a constitutional amendment reversing Varnum. (Omaha World-Herald). Not to be outdone, another gubernatorial candidate, Bob Vander Plaats, would "will sign an executive order his first day in office halting the practice" of same-sex marriage. (Quad-City Times) Justin Uebelhor of One Iowa said that "(t)his is going to be a fight for the long haul, that the opposition here in Iowa is relentless. We're going to have a presence here for the next few years, making sure that our stories get told."(The Hawk Eye)
Civil unions legislation - Pennsylvania
Pennsylvania state Rep. Mark Cohen became the first state legislator to introduce a bill to establish civil unions. (As far as I can tell - without contacting Cohen's office - the bill has not been posted to the legislature's website.) His state has a DOMA (23 Pa.C.S.A. § 1704), but its constitution does not ban same-sex marriage, and another attempt to add a constitutional ban recently failed. State Senator Daylin Leach has championed marriage equality in the state legislature, having introduced SB 935 that would establish it. So why does Cohen prefer civil unions? "Civil unions are more attainable in a reasonable period of time than gay marriage is," Cohen said. "Civil unions don’t give gays the status of marriage, they’re not as good as marriage, but I think right now it’s a much more attainable goal." To increase support from legislators and the public, Cohen says that he will, if necessary, continue to re-introduce his legislation. Leach supports Cohen's undertaking, as it represents "incremental progress." But Leach believes - with overwhelming evidence - that civil unions institutionalize "second class citizenship," and that they can not embody "the final resolution of the issue." (Philadelphia Gay News, cross-posted by Gay Marriage Watch)
Is incremental progress better than no progress? I have suggested that it is, but my tentative suggestion requires qualification. Incremental progress should not come at the cost of stalling progress toward marriage equality, and it should reflect only a temporary concession to the need for changing recalcitrant public opinion. These qualifications, of course, may beg the question. Given that same-sex couples and their children suffer grave harms from marriage inequality, demanding marriage equality as the only remedy may have more long-term impact on public opinion than advocating civil unions as an allegedly necessary expedient. At any rate, I am ambivalent about the idea of starting with an unacceptably flawed substitute, and using it to advance the ultimate goal of marriage equality.
The San Francisco Daily Journal featured an article yesterday about Golinsky v. OPM, No. 10-0257 (N.D.Cal.) (John Roemer, Lawyer Hits Wall in Trying To Get Benefits For Gay Spouse; Obama Administration Staff Sympathizes With Cause But Say Their Hands Are Tied, San Francisco Daily J., Apr. 2, 2010, at 1.) The lawsuit names OPM Director John Berry, who is gay. The agency's general counsel, Elaine Kaplan, is a lesbian. Kaplan told the Daily Journal, "I get that people think it's ironic [for OPM to defend against Karen Golinksy's claim for enrollment of her wife in the federal employee medical insurance plan], but neither Director Berry nor I has the freedom to disregard the law, even though we may disagree with it." Another "irony": the Obama administration continues to block access to medical insurance for Golinksy's wife, even as President Obama just signed into law the largest expansion of medical insurance coverage for Americans since Medicare. Golinsky remains worried that her wife lacks medical insurance: "You hold your breath and pray that nothing goes awry. One bad illness or accident can leave a family devastated."
Lamda Legal Marriage Project Director Jennifer Pizer acknowledged progress by the Obama administration on policies that do not require an act of Congress. But she said that Obama's "lawyers here argue that the public interest is best served by reflexively asserting DOMA to block insurance for Golinsky's family, and to uphold a repugnant tradition of anti-gay discrimination." She also called OPM's position "a strange collection of misreadings and misapplications of federal law adding up to a disconnect."
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.
Varnum v. Brien - first anniversary
Kate and Trish Varnum were lead plaintiffs in Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009). They describe the lived experience of their marriage, their commitment to advocacy and their insecurity over out-of-state travel. (Iowa Independent) "It’s validation,” Trish [Varnum], 45, says grinning. “I finally have a word (marriage) to describe what our relationship is all about. I’m now equal to my brothers and sisters." (gazetteonline.com, Cedar Rapids) While Carolyn Jenison, executive director for One Iowa, said that Varnum was monumental, "I remember getting up Saturday, April 4, and walking down the street and nothing was different. People have continued to do what they've always done." The Daily Nonpareil reports on a gay couple who encountered neo-Nazis at a Council Bluffs courthouse as they sought their marriage license. "Shouting anti-gay slurs on bullhorns and holding signs with sentiments of the same ilk," the neo-Nazis subjected the couple to the Nazi salute and "Heil Hitler."
Iowa has become a wedding destination for same-sex couples in the Midwest. (AP) However, the Omaha World-Herald claims that same-sex couples have not married in Iowa in numbers predicted by The Williams Institute at UCLA. The claim remains open to question, because "Iowa does not require marriage license applicants to designate their sex on the forms that are filed with the state." Sen. Mike Gronstal, D-Council Bluffs, observed that a relatively low number of same-sex marriages in Iowa would mean that "a vast majority" of the married couples are Iowans who have benefited from the ruling. They are "people who live down the street,” Gronstal said. “They are our friends, neighbors and people who live in our communities, who pay taxes just like everybody else.” (Daily Nonpareil, Council Bluffs, Iowa)
Let Us Vote Iowa plans to target three of the Varnum Court judges who face a retention vote in the November election. The organization will also endorse state House and Senate candidates who oppose marriage equality. (The Hawk Eye) Gubernatorial candidate Rod Roberts has said that if elected he would do everything within his power to see that voters have opportunity to approve a constitutional amendment reversing Varnum. (Omaha World-Herald). Not to be outdone, another gubernatorial candidate, Bob Vander Plaats, would "will sign an executive order his first day in office halting the practice" of same-sex marriage. (Quad-City Times) Justin Uebelhor of One Iowa said that "(t)his is going to be a fight for the long haul, that the opposition here in Iowa is relentless. We're going to have a presence here for the next few years, making sure that our stories get told."(The Hawk Eye)
Civil unions legislation - Pennsylvania
Pennsylvania state Rep. Mark Cohen became the first state legislator to introduce a bill to establish civil unions. (As far as I can tell - without contacting Cohen's office - the bill has not been posted to the legislature's website.) His state has a DOMA (23 Pa.C.S.A. § 1704), but its constitution does not ban same-sex marriage, and another attempt to add a constitutional ban recently failed. State Senator Daylin Leach has championed marriage equality in the state legislature, having introduced SB 935 that would establish it. So why does Cohen prefer civil unions? "Civil unions are more attainable in a reasonable period of time than gay marriage is," Cohen said. "Civil unions don’t give gays the status of marriage, they’re not as good as marriage, but I think right now it’s a much more attainable goal." To increase support from legislators and the public, Cohen says that he will, if necessary, continue to re-introduce his legislation. Leach supports Cohen's undertaking, as it represents "incremental progress." But Leach believes - with overwhelming evidence - that civil unions institutionalize "second class citizenship," and that they can not embody "the final resolution of the issue." (Philadelphia Gay News, cross-posted by Gay Marriage Watch)
Is incremental progress better than no progress? I have suggested that it is, but my tentative suggestion requires qualification. Incremental progress should not come at the cost of stalling progress toward marriage equality, and it should reflect only a temporary concession to the need for changing recalcitrant public opinion. These qualifications, of course, may beg the question. Given that same-sex couples and their children suffer grave harms from marriage inequality, demanding marriage equality as the only remedy may have more long-term impact on public opinion than advocating civil unions as an allegedly necessary expedient. At any rate, I am ambivalent about the idea of starting with an unacceptably flawed substitute, and using it to advance the ultimate goal of marriage equality.
Thursday, April 1, 2010
Recent news and commentary
Varnum v. Brien
On the eve of the first anniversary of Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009), Iowa Gov. Chet Culver praised the state legislature for not adopting a proposed amendment intended to reverse the ruling (HJR 2001). Although he personally opposes same-sex marriage, he said that "[w]e stood firm for the civil rights of every Iowan by saying loudly and clearly that any and all efforts to add discriminatory amendments to our state constitution have no place in our state constitution." (Sioux City Journal / Des Moines Register) Culver faces a "tough re-election fight" against three Republican candidates who favor an amendment. One of the candidates, Rod Roberts, supports a recall of three judges on the Varnum court when voters decide on their retention next year.
Tomorrow the University of Iowa will host a panel to "to commemorate the one-year anniversary of Varnum v. Brien." (Iowa One) Panelists include Camilla Taylor, "a Senior Staff Attorney in Lambda's Midwest Regional Office and ... architect of the couples' case." On April 10th, Drake University will mark the anniversary with a symposium, "The Same-Sex Marriage Divide." (Legal Scholarship Blog / Examiner.com)
Evan Wolfson observes that "the milestone marks yet another moment in the marriage movement when critics said we couldn't - but we did." (Huffington Post)
Lewis v. Harris II
Alliance Defense Fund attorneys have filed a motion to intervene in Lewis v. Harris on behalf of three state legislators who oppose marriage equality. (NewJerseyRoom.com, cross posted by ADF Alliance Alert) The legislators claim that the plaintiffs are trying "to usurp legislative authority and compel legislative action" as a remedy.
Divorce
"A judge in Travis County declined Wednesday to consider Texas Attorney General Greg Abbott's request to intervene in the county's first same-sex divorce case, letting stand the judge's February decision to grant a divorce to two women who had been married in another state." (Houston Chronicle / FindLaw.com)
Out-of-state recognition
Last month, Maryland Delegate Don H. Dwyer, Jr., R-Anne Arundel County, introduced articles of impeachment against state Attorney General Douglas Gansler (Delgate Dwyer's Dispatches) Dwyer believes that Gansler abused his constitutional authority when he issued an advisory opinion upholding recognition of same-sex marriages licensed outside of Maryland. The impeachment has failed. (Baltimore Sun, cross-posted by Straight Talk on Marriage / AP / Washington Post)
On the eve of the first anniversary of Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009), Iowa Gov. Chet Culver praised the state legislature for not adopting a proposed amendment intended to reverse the ruling (HJR 2001). Although he personally opposes same-sex marriage, he said that "[w]e stood firm for the civil rights of every Iowan by saying loudly and clearly that any and all efforts to add discriminatory amendments to our state constitution have no place in our state constitution." (Sioux City Journal / Des Moines Register) Culver faces a "tough re-election fight" against three Republican candidates who favor an amendment. One of the candidates, Rod Roberts, supports a recall of three judges on the Varnum court when voters decide on their retention next year.
Tomorrow the University of Iowa will host a panel to "to commemorate the one-year anniversary of Varnum v. Brien." (Iowa One) Panelists include Camilla Taylor, "a Senior Staff Attorney in Lambda's Midwest Regional Office and ... architect of the couples' case." On April 10th, Drake University will mark the anniversary with a symposium, "The Same-Sex Marriage Divide." (Legal Scholarship Blog / Examiner.com)
Evan Wolfson observes that "the milestone marks yet another moment in the marriage movement when critics said we couldn't - but we did." (Huffington Post)
Lewis v. Harris II
Alliance Defense Fund attorneys have filed a motion to intervene in Lewis v. Harris on behalf of three state legislators who oppose marriage equality. (NewJerseyRoom.com, cross posted by ADF Alliance Alert) The legislators claim that the plaintiffs are trying "to usurp legislative authority and compel legislative action" as a remedy.
Divorce
"A judge in Travis County declined Wednesday to consider Texas Attorney General Greg Abbott's request to intervene in the county's first same-sex divorce case, letting stand the judge's February decision to grant a divorce to two women who had been married in another state." (Houston Chronicle / FindLaw.com)
Out-of-state recognition
Last month, Maryland Delegate Don H. Dwyer, Jr., R-Anne Arundel County, introduced articles of impeachment against state Attorney General Douglas Gansler (Delgate Dwyer's Dispatches) Dwyer believes that Gansler abused his constitutional authority when he issued an advisory opinion upholding recognition of same-sex marriages licensed outside of Maryland. The impeachment has failed. (Baltimore Sun, cross-posted by Straight Talk on Marriage / AP / Washington Post)
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