Latest advocacy by legal scholars for religious-liberty exemptions in marriage-equality legislation

12/05/09 Mirror of Justice - entry by law professor Rick Garnett:

Since the publication of Same-Sex Marriage and Religious Liberty: Emerging Conflicts in 2008, co-editor Robin Fretwell Wilson and several other legal scholars have advocated for religious-liberty exemptions in marriage-equality legislation. They typically time their advocacy letters to coincide with an impending vote by a state legislative committee. (See my compilation of the letters here, and a recent critical review of the book.) As the New Jersey Senate Judiciary Committee prepares to vote on marriage-equality legislation, these scholars have sent their exemption recommendations to the Committee's Chair.

The two letters Garnett references in his post have password protections, but you can find them linked in this related post by law professor Michael J. Perry.

An Update For Employers on Domestic Partnership and Same-Sex Marriage Laws

Littler Mendelson ASAP, by Littler shareholder Nancy L. Ober:

Despite a November voter referendum in Maine that overturned the state's same-sex marriage law and a very recent rejection of same-sex marriage by the New York State Senate, the year 2009 saw progress for the legal recognition of same-sex marriage and domestic partnerships. The following is a summary of recent developments in this fast-evolving area of the law.

Estate Tax Bill Passed in House Doesn't Spell "Relief" for Same-Sex Couples

12/04/09 Huffington Post, by Michael Steinberger and Naomi Goldberg:

Currently, when one member of a same-sex couple dies, regardless of their legal marital status, there is no possibility for a spousal exemption from federal tax, a benefit that all different-sex married couples enjoy. A surviving same-sex spouse is required to pay taxes (currently 45%) on any amount over the current exemption rate (currently $3.5 million) ... A recent study conducted by the Williams Institute at UCLA Law School found that same-sex couples who are affected by the estate tax are assessed an average of $3.3 million more in taxes upon the death of a spouse than comparable different-sex married couples.

Prop. 8 proponents likely to prevail in their appeal to withhold internal campaign communications from Perry plaintiffs

Perry v. Hollingsworth, No. 09-17241, 12/03/09 order by 9th Circuit panel (Kim M. Wardlaw, Raymond C. Fisher and Marsha S. Berzon) to uphold stay of discovery orders in Perry v. Schwarzenneger

On December 1st, a 9th Circuit panel held oral argument on issues arising from its emergency stay of discovery orders in Perry v. Schwarzenneger. Charles Cooper, representing Prop. 8 proponents, argued that a First Amendment privilege protects them from orders to produce internal campaign communication to the Perry plaintiffs. Although Judge Walker had ordered redaction of names of "rank-and-file" volunteers in the documents, Cooper claimed that this protection would not cure harm to proponents for their political speech, and that it would have a serious "chilling effect" on political speech by organizers of future ballot-measure campaigns.

Today the 9th Circuit panel ruled in favor of the Prop. 8 proponents. The panel upheld the stay:

Appellants’ motion for leave to file an oversized reply is granted. Appellants’ November 23, 2009 reply has been filed. We conclude that appellants have made a strong showing that they are likely to succeed on the merits and that they will be irreparably injured absent a stay. See Nken v. Holder, 129 S. Ct. 1749, 1761 (2009) (citing Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). Moreover, the issuance of a stay will not substantially injure appellees and the public interest weighs in favor of a stay. See id. Therefore, the stay issued on November 20, 2009 shall continue in effect. The briefing schedule established on November 16, 2009 is vacated. We expect to decide the appeals promptly without further briefing. IT IS SO ORDERED.

Thanks to a blogger, identified only as Cicero, for identifying this latest development in the Perry case. I depend on my readers for their timely comments.

12/07/09 update

12/07/09 The Recorder:

Looks like Northern District of California Chief Judge Vaughn Walker is going to suffer his first reversal in the federal challenge to Proposition 8.

The 9th U.S. Circuit Court of Appeals continued a stay of Walker's order forcing the Yes on 8 campaign to turn over internal documents and e-mails to challengers of the measure. In its order, the court said the campaign had made a "strong showing" that it would succeed on the merits of the discovery issue.

Ninth Circuit Judges Kim Wardlaw, Raymond Fisher and Marsha Berzon -- all Clinton appointees -- also indicated that they would make a formal ruling "promptly."

12/04/09 Wall Street Journal Law Blog:

In October, Walker ruled that Boies, Olson et. al were entitled to see see the internal memos and e-mails between Yes on 8 strategists to look for evidence that the campaign had sought to exploit anti-gay bias. Such evidence would strengthen the plaintiffs’ claim that the ballot measure was discriminatory and thus unconstitutional. But the Ninth Circuit put a swift kibosh on that ruling on Thursday. A panel comprised of Clinton appointees Kim Wardlaw, Raymond Fisher and Marsha Berzo ruled that the Proposition 8 sponsors “have made a strong showing that they are likely to succeed in their arguments” that the discussions were constitutionally protected and that an order like Walker’s would discourage candid communications in political campaigns.

12/03/09 SF Chronicle:

(12-03) 17:48 PST SAN FRANCISCO -- A federal judge probably violated the Constitution when he ordered backers of Proposition 8, the initiative that banned same-sex marriage in California, to give their campaign strategy documents to opponents trying to overturn the measure, an appeals court said Thursday.

One Iowa Holds Forum on Gay Marriage in Sioux City

12/02/09 Sioux City Journal:

SIOUX CITY -- Advocates for same-sex marriage urged local supporters to share their stories about the issue to counter political attempts to ban such marriages in Iowa. The encouragement came during a forum that statewide gay, lesbian, bisexual and transgender advocacy group One Iowa held Tuesday in downtown Sioux City. Ryan Crane, One Iowa regional organizer, said it's important supporters let their community and legislative representatives know the movement to maintain marriage equality in Iowa has more support than they might think ... It's possible that the next push for a constitutional amendment to ban same-sex marriage could come as soon as the start of the next legislative session in January, Crane said ... The forum Tuesday was one of 17 that One Iowa is hosting across the state.

ACLU's amicus brief letter supporting First Amendment privilege of Prop. 8 proponents to withhold internal campaign documents from Perry plaintiffs

12/01/09 SF Chronicle:

The American Civil Liberties Union, which supports marital rights for gays and lesbians, is siding with opponents of same-sex marriage who are challenging a judge's order to turn over campaign documents from last year's effort to pass Proposition 8 ... The ACLU's Northern California chapter, which supports [plaintiffs in Perry v. Schwarzenneger], nevertheless filed arguments with the Ninth U.S. Circuit Court of Appeals saying the court-ordered disclosure could endanger people's freedom to speak freely while planning political campaigns.

ACLU's amicus letter brief for review and filed motion to become amicus curiae, filed 11/27/09 in Perry v. Hollingsworth, No. 09-17241 (9th Cir.)

What Plaintiffs want are Proponents’ internal strategy documents—private e-mails from those who were central to the campaign, strategy plans, and “brainstorming” sessions with campaign consultants and pollsters about arguments that should and should not be advanced ...But that is all core First Amendment information ... The people charged with running those campaigns cannot do so effectively while fearing that every proposal they float, every crazy idea they shoot down, every campaign plan that ultimately is not implemented will become fodder for discovery by their campaign opponents in the event of subsequent litigation, not to mention a blueprint for those opponents to use in future electoral battles. A rule that would open internal campaign communications to compelled disclosure upon a simple showing of ordinary litigation relevance would not breathe fresh air into the electoral process so much as flatten it like a house of straw.

New York Senate Votes Against Marriage Equality Bill

12/02/09 Unite the Fight:

Blogger Phillip Minton provides the latest, most comprehensive information on the NY Senate's defeat of the proposed New York Marriage Equality Act.