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.

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:

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.

(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.

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.

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.

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 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:

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.”

Oral argument on appeal by Campaign for California Families to intervene in Perry v. Schwarzenneger

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.

Legal commentary on election returns in Maine and Washington

11/04/09 WordinEdgewise by law professor John Culhane:

[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.

Read more at: http://www.huffingtonpost.com/carlos-a-ball/keeping-the-same-sex-marr_b_345142.html&cp

Read more at: http://www.huffingtonpost.com/carlos-a-ball/keeping-the-same-sex-marr_b_345142.html&cp

Read more at: http://www.huffingtonpost.com/carlos-a-ball/keeping-the-same-sex-marr_b_345142.html&cp ...

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.

Read more at: http://www.huffingtonpost.com/geoffrey-r-stone/the-lessons-of-maine_b_345862.html&cp

Read more at: http://www.huffingtonpost.com/geoffrey-r-stone/the-lessons-of-maine_b_345862.html&c

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.