Recent news and commentary

Perry v. Schwarzenneger

Just before midnight on February 26th, attorneys on opposing sides have submitted briefs about the pre-trial evidence and trial testimony, to help Judge Walker better prepare for closing arguments that he is expected to schedule soon. (SF Chronicle / San Jose Mercury News / AFER press release / LGBT POV) Attorneys for the plaintiffs filed Proposed Findings of Fact and Law (at just under 300 pages!); attorneys for the Prop. 8 proponents filed a Trial Brief and Proposed Findings of Fact.

Michelle Quinn of the New York Times asked law professor David Levine to identify different types of rulings Judge Walker might make.

Bill Moyers featured a discussion of the case with Theodore Olson and David Boies. Olson and Boies answered familiar objections to marriage equality. They responded to claims that the constitution provides no right of same-sex couples to marry; that judges should refrain from "judicial activism"; that voters and legislators, rather than courts, should decide the question; that traditional marriage protects child welfare and sustains procreation; and that allowing same-sex marriage violates tenets of some religious faiths. The attorneys relied on the constitution, history and the trial to explain how the right to marry is a fundamental, constitutional right; how equal protection of the laws applies to all citizens; how banning same-sex marriage harms same-sex couples who would otherwise marry; and how allowing it would not harm married, opposite-sex couples. They also tried to justify bringing the federal lawsuit now, rather than deferring to a state-by-state strategy of legal advocacy groups that lately succeeded in Iowa. Michael Winship of the Bill Moyers Journal comments on the program.

Gazettes Town-News of Long Beach, California, interviews litigator Christopher Fowler, who married his husband in May 2008. He talks about the Perry case and describes his reaction to adoption of Prop. 8. “As a new father, I want my son to be able to describe his parents and family with confidence,” Fowler said. “When I heard that Prop. 8 had passed, I felt that something was taken away from me. When I used to read about things that happened to gay people that didn’t have rights, it inspired me to become a lawyer. To see that people who were my neighbors voted to tell me that I was not able to have the same family they do was a tremendous disappointment.”

Marriage equality - D.C.

"It's all over now, baby blue." Whether or not the Dylan lyrics apply, the Alliance Defense Fund and allied attorneys have failed in their last-ditch effort to keep D.C.'s marriage-equality law from taking effect later this week. D.C. Superior Court denied their motion for a preliminary injunction in the last of three lawsuits related to recognition of same-sex marriages. Jackson v. D.C. Board of Elections and Ethics, No. 740-10 (D.C. Super. Ct., Feb. 4, 2009). Plaintiffs appealed. On February 26th, the D.C. Court of Appeals rejected their motion for emergency appeal and injunctive relief . Thanks to an astute reader for alerting me to the news (DCAgenda.com / Washington Times / HRC Back Story) and to the appellate court's order.

Out-of-state recognition - Maryland

The Carroll County Times profiles a Maryland couple with plans to marry in Connecticut. The reporter acknowledges "a debate on whether their marriage will be recognized by the state in which they live," without also referencing the state Attorney General's recent opinion allowing recognition of same-sex marriages. In its editorial, the Washington Post supports the opinion, and Maryland Equality is circulating a petition to show public support. The Washington Post also reports on local reaction by same-sex couples.

"Maryland Comptroller Peter Franchot and his staff are trying to work same-sex couples into the state's tax equation without violating federal law ... 'You are going to find people that are married out of state -- that can file here jointly -- come and take advantage of our taxes,' said Stanley H. Block, a Baltimore tax lawyer." (Washington Examiner)

Developments abroad

On February 25th, "the European Court of Human Rights, has its first hearing on a case regarding same-sex marriage. The Court’s hearing was on the admissibility and merits in the case of Schalk and Kopf v. Austria (application no. 30141/04)." (International Lesbian, Gay, Bisexual, Trans and Intersex Association)

Closing arguments in the Perry case: a public broadcast revisited

Will we be able to watch a telecast of closing arguments in the Perry case? The outcome depends on a pending change in Civil Local Rule 77-3 (permanent link) of the U.S. District Court for the Northern District. (SF Chronicle) Rule 77-3 bans public broadcast of courtroom proceedings, unless the judge authorizes the broadcast "within the confines of the courthouse." The rule change, if adopted, would allow judges to request permission to participate in the 9th Circuit's new "public access program" for "dissemination of video recordings in civil non-jury matters only."(9th Circuit Judicial Council press release, issued 12/17/09; permanent link) The Court will almost certainly adopt the rule change, because the Court adopted the same rule change on January 12th (permanent link), withdrawing it only after the U.S. Supreme Court questioned the validity of the District Court's rule-making procedure. [Hollingsworth v. Perry, 558 U. S. ____ (2010) (09A648)] Once the District Court adopts the rule, Judge Walker can be expected to seek authority, under the public access program, for broadcast of the closing arguments. Alex Kozinski, Chief Judge of the 9th Circuit, would almost certainly authorize this broadcast. Before the U.S. Supreme Court intervened, he permitted Walker to proceed with real-time transmission of the trial in three courthouses, while he reviewed Walker's plan for posting delayed, YouTube files on the Court's website. (In the Matter of Pilot District Court Public Access Program Approved December 16, 2009, No. 2010-2, 9th Cir. Judicial Council, Jan. 8, 2010) (permanent link)

[02/27/10 update: Journalist Karen Ocamb concludes that the Court's press release last night should end speculation about a public broadcast of closing arguments. (LGBT POV) I disagree.]

Why has the District Court renewed its effort to amend Rule 77-3 when the Supreme Court objected to its initial method of adopting the amendment? The Court still seeks to conform the rule to new 9th Circuit policy on selective public access to courtroom proceedings. Closing arguments in the Perry case have such public importance that it is an obvious candidate for application of the policy. The Court now has the opportunity to remedy procedural defects that a 5-4 Supreme Court majority ruled as a likely violation of federal law. Moreover, if Prop. 8 proponents try to challenge adoption of the rule change, they won't be able to allege "irreparable harm" to trial witnesses from its application to public broadcast of the closing arguments.

Recent news and commentary

Recognition of out-of-state marriages - Maryland

I posted yesterday on the advisory opinion (94 Op. Att'y. Gen. 3, Feb. 23, 2010) by Maryland Attorney General Douglas Gansler. Law professor Nancy Polikoff observed yesterday that the law is not "self-executing." (The Daily Record). But she probably commented before a press conference by Gansler, at which he said that "[s]tate agencies in Maryland will recognize out-of-state gay marriages as of right now." (Washington Post) Governor Martin O'Malley has announced that he expects all state agencies to follow Gansler's interpretation of the law. "Unlike some attorney general opinions that last for years and decades, I would anticipate that this particular opinion will be addressed by litigants," Gansler said. "This will be resolved in the courts." (Baltimore Sun) See The Daily Record for comments by ACLU of Maryland staff attorney David Rocah and University of Baltimore law professor Barbara A. Babb.

Marriage equality law - D.C.

Marriage equality in D.C. has been the subject of three lawsuits. The latest one concerns a referendum on the District's marriage equality law that Rev. Harry Jackson and others sought to qualify for an election. (Catholic News Agency) The D.C. Election Board decided to disqualify the referendum because it violates the Human Rights Act. [In re Referendum on the Religious Freedom and Civil Marriage Equality Amendment Act of 2009, (DCBOEE, Feb. 4, 2010)] (Religion Clause) Representing Jackson and his supporters, the Alliance Defense Fund (ADF) - joined by attorneys for Stand4MarriageDC. -appealed the decision to D.C. Superior Court. [Jackson v. D.C. Board of Elections and Ethics, No. 740-10 (D.C. Super. Ct., filed Feb. 4, 2009)] They filed a motion for a preliminary injunction to keep the marriage equality law from taking effect on March 3rd, pending a final Court ruling. The Court tentatively denied the motion last week, and, on February 20th, issued a written order denying the motion. ADF and allied attorneys have appealed this order to the D.C. Court of Appeals. (ADF press release) Absent a stay by this court or unlikely action by Congress, the law will take effect. "While couples will be able to apply next Wednesday, the three-day waiting period in the District means that couples will not be able to formally marry until the following Tuesday, March 9." (Washington Post)

Marriage equality legislation - Maryland

On March 3rd and March 4th, two legislative committees in Maryland have scheduled hearings to consider marriage equality legislation. (SB 582 / HB 808). (Equality Maryland) HB 808 would require support from State House Speaker Michael Busch, who favors civil unions instead. (Baltimore Sun)

Super-DOMA amendments - Maryland, West Virginia and Indiana

Maryland's state House Judiciary Committee has scheduled a March 4th hearing on a proposed super-DOMA amendment (SB 1079). (Equality Maryland)

State Republican legislators in West Virginia have failed to advance a proposed super-DOMA amendment (HJR 5) out of committee. (HRC Back Story / Charleston Gazette) The Family Policy Council of West Virginia (FPCWV) will hold a rally today at the state capitol to support continued efforts to bring to HJR 5 a floor vote. "The event will feature Maggie Gallagher, president of the National Organization for Marriage; Randy Wilson, national field director for Family Research Council, and Jeremy Dys, president and general counsel of the Family Policy Council of West Virginia." (NewsandSentinel.com; for more on the rally, read the Herald Dispatch.) FPCWV has been circulating a petition whose signers threaten to vote against state legislators for opposing a "marriage protection" amendment. (FOCWV)

Although the Indiana state Senate approved a proposed super-DOMA amendment (SJR 13), it has died in the state House. (Indiana Equality)

Custody - Vermont

"A family court judge in Vermont Tuesday issued a warrant for the arrest of former lesbian Lisa Miller who disappeared with the child she once shared with her former civil union partner, Janet Jenkins ... Just last week, Judge Louis Harrison, a family court judge in Bedford, Virginia, said he could not issue an arrest warrant for Miller because he could not be sure Miller was aware of the Vermont judge’s order. Miller’s attorney, Mathew Staver, founder and chairman of the right-wing Liberty Counsel litigation group, has told reporters he does not know where Miller is." (Keen News Service)

Developments abroad - Australia and Argentina

The Australian Senate has voted against the Marriage Equality Amendment Bill of 2009, introduced in September by Senator Sarah Hanson-Young. (PinkNews.co.uk)

"A judge on Tuesday authorized two men to marry in Buenos Aires in what would be the country's second same-sex marriage." (AFP)

Other news

"The Future of Same-Sex Marriage" is the topic of tomorrow's University of San Francisco Law Review's Spring Symposium. (ADF Alliance Alert)

Maryland Attorney General issues advisory opinion on legal status of out-of-state, same-sex marriages

Maryland Attorney General Douglas F. Gansler has issued an advisory opinion on the legal status of same-sex couples married in other states. He has determined that the state may recognize these out-of-state marriages in any of three ways - through legislation, court rulings, or administrative action. (Gay Couples Law Blog) "This opinion addresses the second way in which out-of-state marriages may be recognized in Maryland. It describes the legal landscape against which the Court of Appeals would assess the question of recognition of an out-of-state same-sex marriage and our view of how it would likely resolve this issue." Gansler concludes that the "Court is likely to respect the law of other states and recognize a same-sex marriage contracted validly in another jurisdiction." He also concludes that the Governor lacks constitutional authority to establish out-of-state recognition by executive order.

Law professor Arthur Leonard favors his readers with a careful analysis of the opinion, and for comparison considers the origins and scope of out-of-state recognition in New York.

The National Center for Lesbian Rights praises Gansler, and has provided legal analysis about Maryland law and policy" to his office. While Lambda Legal welcomes the opinion, it underscores two concerns. First, same-sex couples who reside in Maryland will still have to travel where they can marry. Second, they will face discrimination under the federal DOMA, and in states that don't recognize their marriages. Michael Cole raises similar concerns at HRC Back Story. (Click here and here for press releases by other advocacy organizations.) At least gay and lesbian Marylanders won't have far to travel for a marriage license, if - as expected - D.C.'s marriage-equality law takes effect on March 3rd. (According to the Washington Post, the Alliance Defense Fund is still waging a last-ditch, legal battle to block the law. Click here for more details.)

How will same-sex couples in Maryland gain recognition of their out-of-state marriages? Until Gansler held a press conference later today, his opinion created "uncertainty" about the legal and "policy implications" the moment he issued it. (Washington Post) If same-sex couples had waited on the state legislature to act, they would have waited indefinitely, given recent controversy over failed legislation against out-of-state recognition. A state agency with jurisdiction could independently recognize such marriages in matters within its jurisdiction. For example, the Maryland Comptroller, which collects income taxes, could have allowed married same-sex couples to claim whatever exemptions, deductions, or credits married, heterosexual couples now qualify for as joint, income tax filers. (Or rather it could have made this change, unless state tax law follows the requirements of the federal DOMA. I haven't checked.) But married same-sex couples would have hardly accepted ongoing administrative uncertainty about whether they can claim marital rights and benefits. And, at any rate, each agency action on their behalf would face legal challenge. So it looked as if state court court was the most likely venue for removing uncertainty about out-of-state recognition.

At his press conference, Gansler announced that, under the opinion, his office was exercising its authority to establish the validity of same-sex marriages. The news, of course, all but guarantees a court intervention:

"Maryland Attorney General Douglas F. Gansler (D) said Wednesday that effective immediately, and until challenged in court [highlight added], the state recognizes same-sex marriages performed elsewhere and that Maryland agencies should begin affording out-of-state gay couples all the rights they have been awarded in other places. 'State agencies in Maryland will recognize out-of-state gay marriages as of right now,' Gansler said at a news conference explaining the effect of a long-awaited opinion he released Wednesday morning ... [E]ven advocates said that they expected lengthy court battles [highlight added] and discussions with [Governor Martin] O'Malley's administration would be needed to further refine what Maryland may offer same-sex couples from elsewhere. (Washington Post)

Recent news and commentary

Marriage equality legislation - Minnesota

Yesterday in Minnesota, the the House Civil Justice Committee held an informational hearing on the Marriage and Family Protection Act (HF1644), which would reverse the state's DOMA. (The Committee also considered HF0999, on civil unions, and HF1740, on out-of-state recognition.) Blogger Joe Sudbay discusses reported testimony by opponents, including Congressional candidate Barb Davis White, and University of St. Thomas law professor Teresa Stanton Collett. (AMERICAblog Gay)

White, who is African American, thinks that marriage equality supporters have "hijacked" the 1960s civil rights movement. She then hijacks it herself, with incitement to bigotry: "Rosa Parks didn’t move to the front of the bus to support sodomy."

Collett foresees terrible harms against religious liberty, even if it's unclear whether she could identify any examples in marriage-equality states:

"'Churches and religiously affiliated institutions will lose their tax-exempt status,' she said. She claimed that Christian colleges would be forced to house same-sex couples in dorms, social work students would be kicked out of school if they refused to counsel gays and lesbians, politicians would revoke funds from religious organizations, and parents would be arrested for speaking out against homosexuality. (Minnesotan Independent)

(At this site, law professor John Culhane has offered his ideas on the appropriate scope of exemptions for religious organizations.)

Law professor Dale Carpenter also testified:

He argued that marriage is a powerful legal institution that encourages healthy, monogamous relationships — whether gay or straight. "There have been no negative effects on heterosexual families or on children raised in those families," Carpenter testified of the increasing prevalence of gay marriage. "No slippery slope to polygamy or anything else." (Politics in Minnesota)

The bills at issue will not receive a vote in the state House. (WCCO.com)

Commonwealth of Massachusetts v. U.S. Dept. Health & Human Services

Marcia Coyle reports for The National Law Journal on the Massachusetts Attorney General's motion for summary judgment in Commonwealth of Massachusetts v. U.S. Dept. of Health and Human Services (D. Mass. Case No. 1:2009-cv-11156, Jul. 8, 2009).

Super-DOMA amendments - West Virginia

In West Virginia, state House Republicans plan to use procedural maneuvers to force a floor vote on HJR 5, a super-DOMA amendment. "[T]he GOP strategy started unsuccessfully Monday." (Charleston Gazette / cross-posted by ADF Alliance Alert) The Family Council of West Virginia will hold a rally on Thusday to urge state legislators to adopt a "marriage protection" amendment.

Termination of marriages involving domestic partners

"Equality California is sponsoring a new bill [AB 2700] introduced last Friday by Assemblymember Fiona Ma (D-San Francisco) that would create a consolidated form and procedure to dissolve both a civil marriage and domestic partnership." (Equality California press release / cross-posted by Gay Marriage News Watch)

Varnum v. Brien

Last week in the Iowa state Senate, a tax-policy subcommittee rejected provisions of Senate Study Bill 3200 that would have conformed the state's tax code to the requirements of Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009). The issue elicited a response from Danny Carroll, chairman of the the Iowa Family Policy Center Action. Referring to the Varnum Court, Carroll said, "lawmakers should not “bow down to an out-of-control court” by “attempting to sneak through key language changes that would effectively redefine marriage in Iowa." (Gazette Online)

Adoption - Louisiana

Louisiana Attorney General Buddy Caldwell is expected to appeal the ruling in Adar v. Smith, No. 09-30036 (5th Cir., Feb. 18, 2010), which requires the state to recognize out-of-state adoption decrees. (The Times-Picayune / cross-posted by ADF Alliance Alert)

Recent news and commentary

Taxes

Tara Siegel Bernard of the NY Times has "tax tips for same-sex couples." Her tips highlight the tax burdens of the federal DOMA and the unique benefits available to married, heterosexual couples who file joint income taxes. "[P]lenty of same-sex couples end up paying higher tax bills than their heterosexual married counterparts."

Constitutional amendment - West Virginia

In West Virginia, state legislators supporting a super-DOMA amendment (HJR 5 / HJR 24 / HJR 111 /SJR 3 / SJR 5 / SJR 14*) have so far failed to bring their resolutions to a floor vote in the 2010 legislative session. But the resolution sponsors will receive help this week from a dependable ally - the Family Policy Council of West Virginia (FPCWV), which wants to give voters opportunity to vote on an amendment in the November election. On February 25th, FPCWV will hold a "let us vote" rally at the state capitol to demand action by the state legislature. (FPCWV press release)

(*According to the press release, SJR 14 is not a super-DOMA amendment.)

Recently recognized domestic partnerships in Texas and North Carolina

In August, the El Paso City Council approved health care benefits for domestic partners of city employees, even though Texas has a super-DOMA amendment. (Texas Constitution Art. 1, §32) A group calling itself "El Pasoans for Traditional Family Values" has now begun circulating a petition for a referendum on the Council's decision. The El Paso Times interviews Barney Field, who has been leading the referendum campaign. He runs the "citywide ministry El Paso for Jesus." He objects to the City's limited recognition of domestic partnerships on the grounds that it "puts nonmarried couples and same-sex couples and makes them equal to marriage."

That kind of objection has resonance in other super-DOMA states, such as Ohio, where the Alliance Defense Fund filed a legal challenge to Cleveland's domestic registry, claiming that it violates Ohio's super-DOMA amendment ( Ohio Const. Art. XV, sec. 11). [The Ohio case is now on appeal - Cleveland Taxpayers v. City of Cleveland, No. 94327, (Oh. 8th App. Dist.)] Nevertheless, even in Texas, limited recognition of domestic partnerships appears to be gaining public support, with Austin and Dallas having also adopted similar health care coverage for domestic partners of city employees. Yesterday, "[t]he University of Texas hosted the second annual Texas Equity Conference. At issue is the ability of Texas public universities to be competitive in hiring top staff, given restrictive same-sex partner benefit policies." (News 8 Austin)

North Carolina has a DOMA, but doesn't have a "marriage protection" amendment. There, too, an increasing number of cities and counties have embraced the same rationale for granting health care benefits to domestic partners of their employees. The Ashville City Council last week "voted 4-2 to have city staff report March 9 on how workers' same-sex domestic partners could get the same benefits as heterosexual employees' spouses, including health insurance, bereavement leave and prescription drug coverage. A majority of council members said they expect to vote for a final measure after the report." (Citizen-Times.com / cross-posted by ADF Alliance Alert and Straight Talk on Marriage) Two lesbian police officers testified at the Council meeting before the vote. One of them said that "[i]t really does make me feel of less value that I can't provide that same protection to my family that other people that I work with can." But Rev. Keith Ogden objected to the domestic partnership proposal. Like Barney Field of El Paso, he finds that it represents "a way of endorsing gay marriage, something that God forbids."