Tuesday, March 30, 2010
Alliance Defense Fund files motion to intervene in Lewis v. Harris on behalf of New Jersey state legislators
ADF has filed a motion to intervene in Lewis v. Harris on behalf of New Jersey Senator Gerald Cardinale, Senator Anthony R. Bucco, and Assemblyman Michael Patrick Carrol. (ADF press release)
Lecture by law professor Michael Dorf on "Same-Sex Marriage, Labels, and Social Meaning"
Constitutional law scholar Michael Dorf recently gave a lecture at Drake University on "Same-Sex Marriage, Labels, and Social Meaning." In this blog entry, he links to an audio file of the lecture, and describes his aim. Where state courts have overturned "all-but-marriage" laws, their decisions interpret the right to marriage as a "a right not to be relegated to the status of second-class citizens." The difference between "marriage" and "civil union" conveys a social meaning - the stigma of second-class citizenship. Setting aside the "concrete consequences" of all-but-marriage laws, Dorf thinks that the allegedly contested idea of social meaning deserves further study. "The hardest problem here is that social meaning often differs with different audiences." Law professor Courtney Megan Cahill has also addressed the issue of social meaning, from a different perspective: (Still) not fit to be named: moving beyond race to explain why 'separate' nomenclature for gay and straight relationships will never be 'equal,' 97 Geo. L.J. 1155 (2009).
I haven't yet listened to Dorf's lecture. His post raises three questions that his lecture may answer: (1) Is there a problem for social meaning of the kind he describes, divorced from "concrete consequences"? (2) If there is, why does it matter, given the nature and extent of serious, irremedial harms to same-sex couples in "parallel" civil unions or domestic partnerships, and to their children? (3) Can we understand any problem for social meaning in Dorf's context without considering evidence on the nature and extent of harm from inequality?
I haven't yet listened to Dorf's lecture. His post raises three questions that his lecture may answer: (1) Is there a problem for social meaning of the kind he describes, divorced from "concrete consequences"? (2) If there is, why does it matter, given the nature and extent of serious, irremedial harms to same-sex couples in "parallel" civil unions or domestic partnerships, and to their children? (3) Can we understand any problem for social meaning in Dorf's context without considering evidence on the nature and extent of harm from inequality?
Monday, March 29, 2010
Equality Maryland plans long-term strategy to avoid testing marriage equality in an election
Maryland Attorney General Douglas Gansler interprets state law to allow recognition of out-of-state, same-sex marriages, and Governor Martin O'Malley has directed state agencies to comply with Gansler's advisory opinion. But advocates of marriage equality will not use the opinion as a means to try to enact a marriage equality law in the current legislative session, even though bills are pending in the state Senate and House (SB 582 / HB 808). Legislation has been introduced repeatedly over the last decade, and has received increasing support, but Equality Marriage has determined that the time is not yet ripe. Even if the legislation were enacted, a referendum would likely follow, and the voters may defeat marriage equality. (Baltimore Sun, cross-posted by Straight Talk on Marriage) "
Equality Maryland has hired Amy Martin, a Field Organizer For Marriage Equality, with twin goals of expanding support from legislators and the public. Executive Director Morgan Meneses-Sheets says that "in the wake of Proposition 8 in California and Question 1 in Maine, Equality Maryland is also looking at a wide-ranging strategy to ensure that we have the necessary public support to beat back a referendum aimed at rolling back our gains." (03/25/10 Equality Maryland press release)
Meneses-Sheets has expressed misgiving about a proposal to amend the state constitution in favor of marriage equality (HB 1176 / HB 1279). Delegate Frank M. Conaway Jr., D-Baltimore, believes that his legislation could help end the legislative stalemate by having voters decide the outcome. But Meneses-Sheets said that the proposed amendment would "not be the way to go for a number of reasons. To have the majority voting on the rights of a minority population is just never a good idea, and it's a pretty unacceptable way to try to make progress." (The Capital, cross-posted by ADF Alliance Alert. This is a fuller version of the Baltimore Sun article.)
Equality Maryland has hired Amy Martin, a Field Organizer For Marriage Equality, with twin goals of expanding support from legislators and the public. Executive Director Morgan Meneses-Sheets says that "in the wake of Proposition 8 in California and Question 1 in Maine, Equality Maryland is also looking at a wide-ranging strategy to ensure that we have the necessary public support to beat back a referendum aimed at rolling back our gains." (03/25/10 Equality Maryland press release)
Meneses-Sheets has expressed misgiving about a proposal to amend the state constitution in favor of marriage equality (HB 1176 / HB 1279). Delegate Frank M. Conaway Jr., D-Baltimore, believes that his legislation could help end the legislative stalemate by having voters decide the outcome. But Meneses-Sheets said that the proposed amendment would "not be the way to go for a number of reasons. To have the majority voting on the rights of a minority population is just never a good idea, and it's a pretty unacceptable way to try to make progress." (The Capital, cross-posted by ADF Alliance Alert. This is a fuller version of the Baltimore Sun article.)
Saturday, March 27, 2010
A Pennsylvania legislator advocates marriage equality in debate with Maggie Gallagher: mishegas and the heckler's veto
Daylin Leach, a Pennsylvania state Senator, advocated marriage equality in a March 24th debate with Maggie Gallagher, executive of the National Organization for Marriage. (Proposition 8 and the Right to Marry) Senator Leach is author of the first bill (SB 935) to overturn the state DOMA (23 Pa.C.S.A. § 1704), even though a state judge recently upheld the DOMA's constitutionality.
You can watch the debate here. At Daylinsights.com, Senator Leach summarizes Gallagher's arguments and how he answered them. Gallagher is a cogent debater, but she more than met her match. Senator Leach graces his intellect with rapier wit and disarming charm. These are rare gifts for an elected official.
Of course, my comments represent no substitute for watching the debate or reading Leach's post. I offer my own selective summary to highlight particular points of interest.
Leach identified grave harm to same-sex couples and their children from marriage inequality. Given the nature and extent of this harm, he said that government's continued unequal treatment of same-sex couples requires compelling justification. To justify current bans on same-sex marriage, Gallagher relied on the familiar arguments that are her hallmark. She predicted that if the state allows same-sex couples to marry, state protection of their right to marry would undermine what she understands as marriage's unique and fundamental purpose - to ensure that a child will have a mother and a father. As a result, fewer families will have mothers and fathers, and children will be harmed. Her prediction depends on speculation. She speculates that, in at least two ways, the government would "marginalize" marriage's alleged purpose. The state would require public schools to teach students that society has no reason to privilege different-sex marriages; and the state would penalize religious believers in traditional marriage.
Gallagher raised the canard of "public school indoctrination" that, in their respective campaigns, Prop. 8 and Yes on 1 proponents successfully deployed against marriage equality. If same-sex couples can marry, then public schools will be required to teach students that a child does not need a mother and a father, and that anyone who believes otherwise is a bigot. When these students reach adulthood, they will have less incentive to form two-parent families, leading to more "fragmented" families. Presumably because more children will grow up in single-parent households, Gallagher concludes that "down the road...a lot of kids will be hurt."
Gallagher also claimed that if Leach's legislation was enacted, the state would "impose" a "definition" of marriage on organizations and individuals that offends their religious principles. She invoked the case of a lesbian who sued a California evangelical physician for refusing to carry out artificial insemination, even though he identified alternative providers. However, in North Coast Woman's Medical Care Center, Inc., v. Superior Court, the California Supreme Court ruled that constitutional protection of their religious speech does not exempt physicians from the Unruh Civil Rights Act, which bans discrimination on the basis of sexual orientation. Same-sex marriage was never at issue in the case, although Gallagher implies that it was because it was decided at almost the same time as In re Marriage Cases. Moreover, Gallagher warned that religious charities could lose their tax-exempt status, and that Catholic Charities would do what it did in Massachusetts and D.C., by withdrawing its adoption and foster care services. But whether or not Massachusetts and D.C. had adopted marriage equality, each has laws barring Catholic Charities from discriminating on the basis of sexual orientation.
Leach observed that same-sex marriages will not stop opposite-sex couples from marrying and raising children, and will not somehow dispose heterosexuals to change their orientation to pursue same-sex marriage. Public schools already have a responsibility to instill respect for tolerance, but their curricula need not incorporate discussion of same-sex marriages. Just as the Texas Board of Education recently adapted public curriculum to conservative ideology, voters could elect education officials to prohibit any instruction involving the subject of same-sex marriage.
Leach characterized Gallagher's objections as mishegas - "crazy talk" about the terrible things that would happen from same-sex marriage. He reduced the objections to variations of the "heckler's veto." The fallacy here involves those who disapprove of civil rights for an unpopular minority. They demand that discrimination continue because otherwise their less rational allies may resort to deplorable forms of confrontation, including violence. Here the heckler's veto applies by analogy to Gallagher's warning about alleged dangers to public school students, and evangelical physicians and Catholic Charities. To prevent the horribile dictu, Gallagher insists that same-sex couples must be deprived of a fundamental right. Leach contends that she and her supporters are not entitled to a version of the heckler's veto.
You can watch the debate here. At Daylinsights.com, Senator Leach summarizes Gallagher's arguments and how he answered them. Gallagher is a cogent debater, but she more than met her match. Senator Leach graces his intellect with rapier wit and disarming charm. These are rare gifts for an elected official.
Of course, my comments represent no substitute for watching the debate or reading Leach's post. I offer my own selective summary to highlight particular points of interest.
Leach identified grave harm to same-sex couples and their children from marriage inequality. Given the nature and extent of this harm, he said that government's continued unequal treatment of same-sex couples requires compelling justification. To justify current bans on same-sex marriage, Gallagher relied on the familiar arguments that are her hallmark. She predicted that if the state allows same-sex couples to marry, state protection of their right to marry would undermine what she understands as marriage's unique and fundamental purpose - to ensure that a child will have a mother and a father. As a result, fewer families will have mothers and fathers, and children will be harmed. Her prediction depends on speculation. She speculates that, in at least two ways, the government would "marginalize" marriage's alleged purpose. The state would require public schools to teach students that society has no reason to privilege different-sex marriages; and the state would penalize religious believers in traditional marriage.
Gallagher raised the canard of "public school indoctrination" that, in their respective campaigns, Prop. 8 and Yes on 1 proponents successfully deployed against marriage equality. If same-sex couples can marry, then public schools will be required to teach students that a child does not need a mother and a father, and that anyone who believes otherwise is a bigot. When these students reach adulthood, they will have less incentive to form two-parent families, leading to more "fragmented" families. Presumably because more children will grow up in single-parent households, Gallagher concludes that "down the road...a lot of kids will be hurt."
Gallagher also claimed that if Leach's legislation was enacted, the state would "impose" a "definition" of marriage on organizations and individuals that offends their religious principles. She invoked the case of a lesbian who sued a California evangelical physician for refusing to carry out artificial insemination, even though he identified alternative providers. However, in North Coast Woman's Medical Care Center, Inc., v. Superior Court, the California Supreme Court ruled that constitutional protection of their religious speech does not exempt physicians from the Unruh Civil Rights Act, which bans discrimination on the basis of sexual orientation. Same-sex marriage was never at issue in the case, although Gallagher implies that it was because it was decided at almost the same time as In re Marriage Cases. Moreover, Gallagher warned that religious charities could lose their tax-exempt status, and that Catholic Charities would do what it did in Massachusetts and D.C., by withdrawing its adoption and foster care services. But whether or not Massachusetts and D.C. had adopted marriage equality, each has laws barring Catholic Charities from discriminating on the basis of sexual orientation.
Leach observed that same-sex marriages will not stop opposite-sex couples from marrying and raising children, and will not somehow dispose heterosexuals to change their orientation to pursue same-sex marriage. Public schools already have a responsibility to instill respect for tolerance, but their curricula need not incorporate discussion of same-sex marriages. Just as the Texas Board of Education recently adapted public curriculum to conservative ideology, voters could elect education officials to prohibit any instruction involving the subject of same-sex marriage.
Leach characterized Gallagher's objections as mishegas - "crazy talk" about the terrible things that would happen from same-sex marriage. He reduced the objections to variations of the "heckler's veto." The fallacy here involves those who disapprove of civil rights for an unpopular minority. They demand that discrimination continue because otherwise their less rational allies may resort to deplorable forms of confrontation, including violence. Here the heckler's veto applies by analogy to Gallagher's warning about alleged dangers to public school students, and evangelical physicians and Catholic Charities. To prevent the horribile dictu, Gallagher insists that same-sex couples must be deprived of a fundamental right. Leach contends that she and her supporters are not entitled to a version of the heckler's veto.
Minority leader of Maryland state House seeks a moratorium on recognizing out-of-state, same-sex marriages
In February, Maryland Attorney General Douglas Gansler issued an advisory opinion that the state may recognize out-of-state, same-sex marriages. Governor Martin O'Malley directed state agencies to comply with the decision. State Delegate Emmett Burns tried to preempt the expected opinion with legislation (HB 90), but the House Judiciary Committee reported unfavorably on the bill. (The Maryland Reporter) Following release of the opinion, state legislators introduced legislation (HB 1532 / SB 1120) for a moratorium on out-of-state recognition until the state Court of Appeals decides its legality or the legislature approves a law. House Minority Leader Anthony J. O'Donnell sponsors HB 1532, and on March 25th the House Judiciary Committee held a hearing on the bill. "The worst thing we can do as a legislature is give out false hope," O'Donnell said at the hearing. "It would be patently unfair, in my opinion, if people are given rights and then the legislature yanks the rug out from underneath them in a very, very cruel way." (Washington Examiner) Of course, his legislation would deliver the cruelty he protests, only sooner. Laure Ruth, legal director of the Women's Law Center of Maryland, testified that "O'Donnell's bill is a convoluted version of the ban on same-sex marriage - which failed earlier in the session."
Thursday, March 25, 2010
Recent news and commentary
Lewis v. Harris II
Evan Wolfson is executive director of Freedom To Marry, and Hayley Gorenberg is deputy legal director of Lambda Legal. At Huffington Post, they examine why plaintiff couples in New Jersey have renewed their state Supreme Court case to gain marriage equality.
Perry v. Schwarzenneger
Gloria Borger, a CNN Senior Political Analyst, interviewed Theodore Olson and David Boies, attorneys for the plaintiffs. ("The Odd Couple," 03/25/10 Campbell Brown Blog) Law professor Orin Kerr complains about the perceived absence of comparable profiles of Charles Cooper, attorney for the Prop. 8 proponents. (Volokh Conspiracy) I link to a Cooper profile here.
Marriage equality v. "marriage protection" - a debate in Pennsylvania
Daylin Leach is a Pennsylvania state Senator whose district lies near Philadelphia. He has distinguished himself as a marriage equality advocate by introducing legislation (SB 935) to repeal the state's DOMA and recognize same-sex marriages. (Pittsburgh Post-Gazette) In June, he debated state Senator John Eichelberger, who recently failed to advance his "marriage protection" amendment (SB 707) out of committee. Leach introduced the motion to table it, and the motion was approved. (Proposition 8 and the Right to Marry)
Last night in Harrisburg, he debated Maggie Gallagher, executive director of the National Organization for Marriage. (Freedom to Marry) Pennsylvania Public Radio reporter Scott Detrow moderated the debate, and features sound clips here. He expects PCN to carry a video "at some point." (03/26/10 update: You can watch the debate here.)
Marriage equality - D.C.
Sen. Bob Bennett (R-UT) tried to amend the reconciliation bill on medical insurance, with provision for a referendum on D.C.'s marriage-equality law, but his last-minute maneuver ended in predictable defeat. (Law Dork / Washington Post / AMERICAblog Gay / HRC Back Story) Freedom To Marry finds that the defeat makes marriage equality "safe." That reassurance warrants qualification. Bennett's gambit represented no credible threat, even if he scored political points among partisan supporters in advance of his 2010 primary. More importantly, a pending lawsuit on a marriage initiative will likely reach the Supreme Court, and may yet succeed there. (Proposition 8 and The Right To Marry)
Divorce
Matt Lloyd is a family law practitioner in Austin. At the Texas Family Law Blog, he describes the difficulties of same-sex couples who seek divorces in states that ban same-sex marriage. He discusses two divorce cases in his state, observing that "we may be approaching an interesting family law jurisprudence in Texas."
Evan Wolfson is executive director of Freedom To Marry, and Hayley Gorenberg is deputy legal director of Lambda Legal. At Huffington Post, they examine why plaintiff couples in New Jersey have renewed their state Supreme Court case to gain marriage equality.
Perry v. Schwarzenneger
Marriage equality v. "marriage protection" - a debate in Pennsylvania
Daylin Leach is a Pennsylvania state Senator whose district lies near Philadelphia. He has distinguished himself as a marriage equality advocate by introducing legislation (SB 935) to repeal the state's DOMA and recognize same-sex marriages. (Pittsburgh Post-Gazette) In June, he debated state Senator John Eichelberger, who recently failed to advance his "marriage protection" amendment (SB 707) out of committee. Leach introduced the motion to table it, and the motion was approved. (Proposition 8 and the Right to Marry)
Last night in Harrisburg, he debated Maggie Gallagher, executive director of the National Organization for Marriage. (Freedom to Marry) Pennsylvania Public Radio reporter Scott Detrow moderated the debate, and features sound clips here. He expects PCN to carry a video "at some point." (03/26/10 update: You can watch the debate here.)
Marriage equality - D.C.
Sen. Bob Bennett (R-UT) tried to amend the reconciliation bill on medical insurance, with provision for a referendum on D.C.'s marriage-equality law, but his last-minute maneuver ended in predictable defeat. (Law Dork / Washington Post / AMERICAblog Gay / HRC Back Story) Freedom To Marry finds that the defeat makes marriage equality "safe." That reassurance warrants qualification. Bennett's gambit represented no credible threat, even if he scored political points among partisan supporters in advance of his 2010 primary. More importantly, a pending lawsuit on a marriage initiative will likely reach the Supreme Court, and may yet succeed there. (Proposition 8 and The Right To Marry)
Divorce
Matt Lloyd is a family law practitioner in Austin. At the Texas Family Law Blog, he describes the difficulties of same-sex couples who seek divorces in states that ban same-sex marriage. He discusses two divorce cases in his state, observing that "we may be approaching an interesting family law jurisprudence in Texas."
Wednesday, March 24, 2010
Divorce case in Pennsylvania reaches constiutional question of scope of right to marry
04/06/10 update: Kern v. Taney, slip, op., No. 09-10738 (Pa. Berks County Ct. Com. Pl. Mar. 15, 2010) (summarized here)
A Pennsylvania judge has decided that he can not grant a divorce petition involving two women who married each other in Massachusetts. The state DOMA provides that same-sex marriages validly licensed elsewhere are void. (23 Pa.C.S.A. § 1704) Petitioner Carole Ann Kern claimed that this ban on recognition violated the state and federal constitutions. (Reading Eagle) Her attorney, Lisa D. Gentile, had argued that the right to marriage requires a government restriction to sustain the highest level of constitutional scrutiny, or strict scrutiny. Gentile had also argued that this right extends to same-sex couples, and that the state DOMA fails the test of strict scrutiny.
Berks County Common Pleas Court Judge Scott E. Lash ruled that same-sex couples have no federal or state constitutional right to marry. He found that the constitutional right to privacy does not guarantee a right to marriage for same-sex couples, and that the fundamental right to marry does not apply to same-sex couples. The voidance provision of the state DOMA "represents a reasonable protection and a proper and lawful exercise of the police power of the Commonwealth, which is available to preserve the public health, safety, welfare, and morals of its citizens." The case is Kern v. Taney, No. 09-10738-2, slip op. (Berks County C.P. Mar. 15, 2010) (Legal Intelligencer / AP / Leonard Link)
A Pennsylvania judge has decided that he can not grant a divorce petition involving two women who married each other in Massachusetts. The state DOMA provides that same-sex marriages validly licensed elsewhere are void. (23 Pa.C.S.A. § 1704) Petitioner Carole Ann Kern claimed that this ban on recognition violated the state and federal constitutions. (Reading Eagle) Her attorney, Lisa D. Gentile, had argued that the right to marriage requires a government restriction to sustain the highest level of constitutional scrutiny, or strict scrutiny. Gentile had also argued that this right extends to same-sex couples, and that the state DOMA fails the test of strict scrutiny.
Berks County Common Pleas Court Judge Scott E. Lash ruled that same-sex couples have no federal or state constitutional right to marry. He found that the constitutional right to privacy does not guarantee a right to marriage for same-sex couples, and that the fundamental right to marry does not apply to same-sex couples. The voidance provision of the state DOMA "represents a reasonable protection and a proper and lawful exercise of the police power of the Commonwealth, which is available to preserve the public health, safety, welfare, and morals of its citizens." The case is Kern v. Taney, No. 09-10738-2, slip op. (Berks County C.P. Mar. 15, 2010) (Legal Intelligencer / AP / Leonard Link)
Subscribe to:
Posts (Atom)
Posts
