Abercrombie: Hawaii law on marriage denies constitutional rights to same-sex couples
www.therepublic.com --Audrey McAvoy Associated Press



"HONOLULU — Gov. Neil Abercrombie told a federal court Tuesday that Hawaii's existing marriage law denies federal constitutional rights to same-sex couples who want to marry.

His stance on the issue came as his health director, Loretta Fuddy, told the same court that she would fight to uphold Hawaii's existing law because her department is charged with implementing laws passed by the Legislature.

Both issued their opinions in responses to a lawsuit filed last year by two women who want to marry and not simply join in a civil union. Abercrombie signed Hawaii's civil union legislation into law last year. It allows same-sex and opposite-sex couples to enter into a civil union with the same state rights and responsibilities as traditional marriage.

But the governor said state law as it stands is unequal.

"Under current law, a heterosexual couple can choose to enter into a marriage or a civil union. A same-sex couple, however, may only elect a civil union. My obligation as governor is to support equality under law. This is inequality, and I will not defend it," he said in a statement.

His filing to U.S. District Court in Honolulu said "there is no legitimate reason to deny otherwise qualified couples the ability to marry simply because they are of the same sex."

HONOLULU — Gov. Neil Abercrombie is telling a federal court Hawaii 's existing marriage law denies federal constitutional rights to same-sex couples who want to marry.
Fuddy said she decided to defend the lawsuit after consulting with the governor.

"The Department of Health is charged with implementing the law as passed by the Legislature. Absent any ruling to the contrary by competent judicial authority regarding constitutionality, the law will be enforced. Because I am being sued for administering the law, I will also defend it," she said.

Natasha Jackson and Janin Kleid of Kapolei sued the state in December, saying they are being denied their constitutional right to marry. They argue they need to be married in order to get certain federal benefits.

Jackson was unable to get insurance coverage for Kleid under the federal Consolidated Omnibus Budget Reconciliation Act, or COBRA, because they weren't married. Their lawsuit alleged that the couple has remained true to one another and steadfast during their four-year relationship even as they have suffered serious health problems and lost jobs.

John D'Amato, the attorney for Jackson and Kleid, said the governor's position was courageous.

"I think it represents a sea change in Hawaii politics to have a leader of his stature to come out so directly and say this is just wrong. It's just wrong to continue to deny same-sex couples the right to marry," D'Amato said.

The governor's filing won't have a practical significance because the health department will continue to uphold the law, D'Amato said. As for the lawsuit, D'Amato said it wouldn't hurt but it also wouldn't help as U.S. District Court Judge Alan Kay will be ruling on the issue and he's not constrained by the governor's remarks."

The voice of each person who speaks out against injustice deserves to be heard. Kudos to the Governor!!!
Smooches,
Keri

NC TAKES CENTER STAGE IN GAY MARRIAGE BATTLE
 

http://www.charlotteobserver.com/201...-marriage.html

N.C. takes center stage in gay marriage battle
BY LYNN BONNER
lbonner@newsobserver.com
BY LYNN BONNER The News and Observer
Posted: Wednesday, Feb. 22, 2012
Modified: Wednesday, Feb. 22, 2012 Tracy Hollister with Unitarian Universalist Fellowship of Raleigh speaks against the gay-marriage amendment at Monday's Wake County Board of Commissioners' meeting. The meeting drew a big crowd as the anti-gay marriage amendment and the Tea Party-backed opposition to the county's sustainability were on the agenda.
More Information
Get the latest political news at our Under the Dome blog

These terms apply to both heterosexual and same-sex couples who live together but aren't married. Such status gives certain rights to couples - both opposite-sex and same-sex - in regard to health care, child custody and power of attorney if they live in communities that legally recognize such unions. Neither status confers any of the federal benefits of marriage because the Defense of Marriage Act stipulates that marriage is a union between one man and one woman.
In states or cities and counties that do not recognize domestic partnerships or civil unions couples may draw up legal documents that cover the same ground but those agreements may be ignored by hospitals and courts.


States across the country in the last three weeks started moving toward allowing same-sex couples to marry, while North Carolina is looking to catch a wave that crested eight years ago by asking voters to approve a constitutional amendment banning same-sex marriage and civil unions.
Six states and Washington, D.C., now allow same-sex marriage. The Washington state legislature passed a law earlier this month making it the seventh state. The Maryland legislature is expected to send a bill allowing same-sex marriage to the governor by the end of this week. In both states, opponents have said they will push for a voter referendum.
Now the focus is on North Carolina with supporters looking for another victory for a constitutional ban. Opponents are hoping that North Carolina will be the first Southern state to say no to a ban.
"The movement toward securing rights for same-sex couples has been flying ahead at breakneck speed," said Roger Hartley, an associate professor of political science at Western Carolina University. But that change is also facing strong resistance, he said.
Earlier this month, the Pew Research Center released a national poll taken in October that showed the public was almost evenly divided on the issue: 46 percent of those surveyed favored allowing gays and lesbians to marry and 45 percent were opposed. Other national polls taken last year by Gallup and CNN showed a slim majority - 51 percent - in favor of same-sex marriage for the first time.
In North Carolina, opinion polls show a majority of residents support some type of legal recognition for same-sex couples, whether it be civil unions or marriage. Amendment opponents see this as evidence that the proposed constitutional ban - which would also prohibit civil unions and domestic partnership - runs counter to changing attitudes.
In the people's hands
Amendment supporters say the legalization of same-sex marriage in other states is added proof that North Carolina needs voters to define marriage in the constitution.
"By pushing this decision to the people, it gets it out of the minds and hands of the legislature and one activist judge who can do anything about it at any time," said Rep. Dale Folwell, a Winston-Salem Republican who is running for lieutenant governor.
Thirty states have already approved constitutional amendments defining marriage as a union between a man and a woman. North Carolina is the only state in the Southeast without one. Proposed amendments will appear on ballots here and in Minnesota in the May 8 primary
A handful of states passed such amendments before 2002. But the big push peaked after the 2003 Massachusetts court ruling that said its constitution guaranteed equal marriage rights for same-sex couples. Twenty-three of the 30 states that have amendments passed them between 2004 and 2006.
Amendments have passed in every state that's put them on the ballot.
North Carolina would have had its amendment up for a vote back when most other states were doing it, Folwell said, except that the Democratic-controlled legislature buried the bills. Republicans now control both chambers in North Carolina.
About a dozen states that passed constitutional amendments or laws barring same-sex marriage still recognize civil unions or domestic partnerships.
Nevada, Oregon and Wisconsin passed constitutional same-sex marriage bans, but legislatures in those states later voted to allow civil unions or to confer legal rights to domestic partners.
No civil unionsThe North Carolina amendment would close off recognition of domestic partnerships or civil unions for gay or heterosexual couples. The only way to legalize civil unions or domestic partnerships if the amendment passes would be for voters to approve another constitutional amendment.
Tami Fitzgerald, founding member of the pro-referendum committee, said the amendment is meant to "settle the issue once and for all" and prevent courts or advocates of same-sex marriage from one day using civil unions or domestic partnerships to push for full marriage rights.
"It's what I'd call a camel's nose under the tent," she said. "Civil unions and domestic partnerships are marriage substitutes. It gives all the rights of marriage. They just don't go all the way."
A U.S. Census Bureau survey estimates that there are more than 198,000 households in North Carolina where partners are unmarried.
More than 91 percent of those households are heterosexual couples living together.
"That's one of the reasons why this amendment is so bad, it takes away any sort of legal recognition of unmarried couples - that's straight or gay unmarried couples," said Stuart Campbell, executive director of Equality North Carolina, a gay-rights advocacy group.
Losing benefitsAmendment foes argue that children being raised by unmarried parents will lose health insurance coverage offered by municipalities that provide domestic partner benefits. The amendment will jeopardize other laws that recognize legal relationships between unmarried couples, they say.
Amendment proponents call those objections scare tactics. "The amendment does not change the existing policy of the state of North Carolina at all that's been there for the last 340 years," said House Majority Leader Paul Stam, an Apex Republican.
Changes in attitudes make it less likely that voters will want to keep the state tied to 300-year-old policies, said Brent Childers, executive director of Faith in America, a North Carolina-based organization that fights what it calls "religious-based bigotry" against gays.
Childers said public opinion of homosexuality is changing, just as opinions changed on segregation and women's rights.
"The polling shows that we have reached a tipping point where a majority of Americans no longer consider homosexuality immoral conduct," he said. "I honestly believe there's an awakening happening in the American public."
Fitzgerald said all the patchwork of state laws points to the need for a federal marriage amendment that would codify the definition of marriage in the U.S. Constitution that would resolve "a clear clash of values."
North Carolina voters will have their say on a state amendment on May 8.
Copyright 2012 The News and Observer. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Bonner: 919-829-4821

Read more here: http://www.charlotteobserver.com/201...#storylink=cpy

Prop 8 Blog
 

Breaking: California district court rules DOMA unconstitutional
By Jacob Combs

Today marked another major milestone in the path to getting rid of the Defense of Marriage Act, as Judge Jeffrey White of the Northern District of California struck down DOMA in the case Golinski v. OPM.

Judge White, a Bush appointee, determined that DOMA should be considered under the more critical heightened scrutiny measure (as the Justice Department recommended last year), but also noted that several courts have found that the provision would not even pass the more deferential rational basis test. In his decision, Judge White wrote:

The Court finds that neither Congress’ claimed legislative justifications nor any of the proposed reasons proffered by BLAG constitute bases rationally related to any of the alleged governmental interests. Further, after concluding that neither the law nor the record can sustain any of the interests suggested, the Court, having tried on its own, cannot conceive of any additional interests that DOMA might further.

Today’s decision is significant because it joins Judge Joseph Tauro’s joint decisions in the 2010 cases Massachusetts v. HHS and Gill v. OPM striking down DOMA in Massachusetts district court. That case is now on appeal in the First Circuit, and it is likely that today’s decision will be appealed in the Ninth Circuit.

These DOMA challenges can only mean good news for the Prop 8 case, especially now that that case may be delayed if considered for rehearing in the Ninth Circuit. If Judge Tauro’s decision is upheld on appeal, it would essentially cause a circuit split, making it more likely (especially on top of the fact that Judge White’s decision may also be making its way through the appeals process) that the Supreme Court would take the case. In striking down DOMA, the Supreme Court would not have to make any deliberation on an inherent constitutional right to marriage equality, and could rely on a states’ rights argument that might appeal to the court’s more conservative wing. A Supreme Court opinion striking down DOMA would almost certainly be referenced in a defense of Judge Walker’s Prop 8 decision, not to mention the fact that it would make a win in the Prop 8 case even more consequential, since gay and lesbian couples in California would be able to enjoy full federal marriage rights.

In an email to P8TT, Jon Davidson, Legal Director of Lambda Legal, had this to say about today’s decision:

I would say that between the Ninth Circuit’s ruling that Prop 8 is unconstitutional, the ruling we obtained yesterday reinstating our New Jersey marriage case, the passage of marriage equality in Washington, the passage of a marriage equality bill through the legislature in New Jersey, and the passage of a marriage equality bill through the Maryland House, this latest victory over DOMA shows that we have passed the tipping point. February 2012 will go down in history as the month marriage equality became unstoppable

Prop 8 Blog WOW!!! Go Maryland!
 

Breaking: Maryland Senate passes marriage equality
By Jacob Combs

Tonight, the Maryland Senate debated and passed a bill to bring marriage equality to the state by a vote of 25-22. The measure passed the House of Delegates earlier this week by a vote of 72-67. Last year, the bill passed the state Senate by a margin of 25-21, but was withdrawn from the floor of the House of Delegates as support evaporated at the last minute.

The bill will now head to the desk of Gov. Martin O’Malley’s, who supports it. Opponents of marriage equality in the state have promised to collect signatures to put the issue up for a voter referendum in November. Maryland would be the fifth state to have a ballot question on marriage equality this year, provided opponents of Washington state’s recently passed marriage vote succeed in their signature collection effort.

Prop 8 Blog...good luck Maine!
 

Marriage equality ballot initiative approved in Maine
By Jacob Combs

It’s official: marriage is going to be on the ballot this November in Maine. Bloomberg reports:

Secretary of State Charles E. Summers Jr. verified more than 85,000 of the 105,000 signatures submitted last month, said Barbara Redmond, his deputy secretary. About 57,000 names were required, according to EqualityMaine, the Portland-based gay- rights group leading the coalition that collected them.

“Same-sex couples want to marry for the same reasons other couples want to marry: because they love each other and want to spend their lives together,” Betsy Smith, EqualityMaine’s executive director, said in a statement. “There’s no question that momentum is growing for same-sex marriage in Maine.”

It will be the second time Mainers confront the issue at the ballot box. In 2009, voters rejected by 53 percent to 47 percent a law permitting gay marriage that was championed by Democratic lawmakers and signed by then-Governor John Baldacci, also a Democrat. In 2010, Republicans won control of both legislative chambers and the governor’s seat for the first time since 1966.

If the measure passed, Maine would become the first state (or one of the first, depending on what happens on election day in other states) to approve marriage equality in a popular vote. Advocates will spend the next nine months educating Maine voters and building momentum on the road to election day

Received this email today:

Thank you for contacting me regarding President Barack Obama’s decision to order the Department of Justice (DOJ) to discontinue defending the Defense of Marriage Act (P.L. 104—199). I appreciate having the benefit of your comments on this important matter.

I strongly oppose President Obama's decision to instruct the DOJ to stop defending the constitutionality of the Defense of Marriage Act. The President has elected to make this ill-informed decision based on political motivation, rather than defending a statute that was passed by Congress, signed into law by previous Administrations, and broadly supported by the American people. I firmly believe that both President Obama and his Administration have an obligation to defend and uphold federal law, regardless of personal ideology, and you may be certain that I will continue to monitor this matter closely.

As you may know, in 1996 Congress overwhelmingly passed—and former President Bill Clinton signed into law—the Defense of Marriage Act. This federal law defines marriage as "only a legal union between one man and one woman as husband and wife"—I firmly support this position.

Under the laws, traditions, and customs of all fifty states, marriage has historically been defined as the union of a man and a woman. However, judicial rulings—and outright lawlessness by local officials in some states—have threatened traditional marriage and moved this debate onto the national stage. The U.S. Supreme Court decision in Lawrence v. Texas provides lower courts with the leverage needed to invalidate traditional marriage laws. And the first major assault on traditional marriage came in Goodridge v. Mass. Dept. of Health, when the Massachusetts Supreme Judicial Court—citing the Lawrence decision—overturned that state's traditional marriage law. Since this time, other activist state courts have followed Massachusetts' lead. In light of these judicial trends, constitutional scholars on both sides of the aisle agree that the Defense of Marriage Act and similar state laws are now in peril. I believe that judges should strictly interpret the law and avoid the temptation to legislate from the bench or color their rulings with personal ideology.

I appreciate the opportunity to represent Texans in the United States Senate. Thank you for taking the time to contact me.

Sincerely,
JOHN CORNYN
United States Senator

Wow, just wow.

LGBT: Mech should stand against amendment
 

joemygod OHIO
 

OHIO: Gay Activists Work To Place Repeal Of Marriage Ban On November Ballot

Activists in Ohio have launched a drive to place a repeal of the same-sex marriage ban on the November ballot.

The Freedom to Marry Coalition expects to file more than 1,700 signatures of registered Ohio voters; 1,000 valid signatures are required in the first step of placing a constitutional issue before Ohio voters this fall or possibly next year. The proposal would change the Ohio Constitution — amended in 2004 to block same-sex marriage — to say that the state and political jurisdictions define marriage as “a union of two consenting adults, regardless of gender.” It also would stipulate that “no religious institution shall be required to perform or recognize a marriage.”
The proposed amendment will be submitted to Ohio Attorney General Mike DeWine today.

From the AP
 

ANNAPOLIS, Maryland — Maryland's governor signed a measure legalizing gay marriage Thursday, joining seven other states.

..Gov. Martin O'Malley, a Democrat, signed the bill a week after its final passage in the Legislature. The law is scheduled to take effect in January 2013.

However, opponents — backed by many churches — are expected to petition the law to a referendum on the November ballot.

"Religious freedom was the very reason for our state's founding and at the heart of religious freedom is the freedom of individual conscience," O'Malley said just before adding his signature to the legislation, referring to the state's origins as a British colony that was a haven for Catholics.

Referendum organizers need to collect almost 56,000 signatures to put the measure before voters and are expected to rely heavily on churchgoers who oppose same-sex marriage as a matter of faith, to reach that goal. Even gay marriage advocates expect the referendum to end up on the ballot.

Six states and the Washington capital district already recognize gay marriages. The state of Washington has also legalized gay marriage, and its law takes effect in June. Voters there are expected to petition the measure to referendum this November.

Maine legalized the unions for same-sex couples in 2009, but later that year became the only state overturn a such a law passed by a legislature

Prop 8 Blog- Ohio News
 

Efforts underway to reverse Ohio ban on same-sex marriage?
By Adam Bink

This went unnoticed, but a Thursday piece in the Columbus Dispatch reports signature-gathering for a ballot question in November or soon after (an effort which apparently came about inspired by the 9th Circuit ruling in the Prop 8 trial case):

A proposed constitutional amendment to undo Ohio’s 2004 same-sex marriage ban will be submitted today to Attorney General Mike DeWine.

The Freedom to Marry Coalition expects to file more than 1,700 signatures of registered Ohio voters; 1,000 valid signatures are required in the first step of placing a constitutional issue before Ohio voters this fall or possibly next year.

The proposal would change the Ohio Constitution — amended in 2004 to block same-sex marriage — to say that the state and political jurisdictions define marriage as “a union of two consenting adults, regardless of gender.” It also would stipulate that “no religious institution shall be required to perform or recognize a marriage.”

Tim Hagan, former Cuyahoga County commissioner, Democratic candidate for governor in 2002 and co-chairman of the campaign, called it “the most-significant civil-rights act since 1964. I don’t know how one human being can look at another human being and say, ‘You don’t have the same rights.’

“I have a sister who’s gay. I have close friends who are gay,” Hagan said. “But this is not just a gay issue. This is an issue for all of us who believe strongly in human rights.”

Phil Burress, of the Cincinnati-based group Citizens for Community Values, said that if same-sex marriage supporters put the issue on the ballot this fall “they can kiss (President Barack) Obama goodbye.” Burress’ group was instrumental in passing the 2004 amendment defining marriage as between a man and woman, an issue credited by some with helping President George W. Bush to win a second term.

“I guess they’re feeling their oats because seven states have same-sex marriage,” Burress said. “ They’re going to have their hands full. We’re prepared to meet them on the field of battle.”

If DeWine approves the ballot language of the proposed amendment, it will be sent to the Ohio Ballot Board, which would determine whether the proposal can be placed on the ballot as one or multiple issues.

At that point, the Freedom to Marry Coalition can begin the task of collecting the 385,253 valid signatures required to put the issue on the statewide ballot. That could happen in November or next year, campaign officials indicated.

Hagan acknowledged that overturning the ban will be a “challenge,” but he said he thinks there has been a “fundamental shift” in public opinion since 62 percent of Ohio voters supported the 2004 amendment.

[...]The Freedom to Marry Coalition sprang up this year after a federal appeals court ruled that a same-sex marriage ban in California was unconstitutional.

Dozens of elected officials and candidates, most of them Democrats, signed on in support of the coalition, including Columbus Mayor Michael B. Coleman, Columbus City Council President Andrew J. Ginther, Franklin County Commissioner John O’Grady and Michael F. Curtin, former editor of The Dispatch and now a Democratic candidate for the 17th District in the Ohio House.

frm the Prop 8 Blog
 

What’s in a word: the ‘redefinition’ of marriage
By Jacob Combs

As the Seattle Times reports, Judge Thomas McPhee of Thurston County heard arguments yesterday at a 9 a.m. hearing regarding the proposed language of Washington’s Referendum 74, the ballot initiative to repeal the state’s marriage equality bill that was signed into law last month.

In Washington state, it falls to the Solicitor General’s office (part of the Attorney General’s office) to keep ballot language understandable, brief and impartial. When the proposed lagnaguge to Referendum 74 was released in Febraury, parties on both sides of the issue filed briefs in opposition with the court. The most significant language battle, however, has come down to one word: “redefine.”

In the Solicitor General’s February proposal, the ballot language read:

This bill would REDEFINE MARRIAGE to allow same-sex couples to marry, modify existing domestic-partnership laws, allow clergy to refuse to solemnize or recognize marriages and religious organizations to refuse to accommodate marriage celebrations.

In opposing this language, marriage equality advocates in Washington have argued that the phrase “redefine marriage” does not even appear in the marriage bill that passed the legislature last month, and is in fact a politically charged buzzword used by anti-marriage equality forces to obfuscate the issue. (Try googling ‘redefine marriage’ and seeing what kind of sites show up.)

Although the Attorney General’s office has sided with the opponents of marriage equality on this point, there’s reason to be hopeful that Judge McPhee will not approve the proposed language. Washington law states that a ballot initiative should ”not — to the extent reasonably possible — create prejudice either for or against the measure.” Because of this, it is likely that he could rule the ballot’s wording must be more neutral. Judge McPhee’s ruling, when released, will be final.

As always, it’s important to note how much of an impact one word can have when it comes to marriage equality. The reason opponents of marriage equality like to use the word “redefine” is that it makes marriages between gays and lesbians seem distinct from those between heterosexual couples. It walls off marriage behind a semantic barrier, making equal rights sound like extra rights. Although it has been said before, it begs repeating that allowing gay and lesbian couples to marry is no more a “redefinition” of marriage than extending the vote to women was a “redefinition” of the right to vote. Words matter, and the language of Referendum 74 will no doubt have a big impact come November.

GET OUT AND VOTE MAY 8th NC folks
 

http://www.charlotteobserver.com/201...d-not-ban.html

A majority of North Carolinians are opposed to the constitutional amendment banning same-sex marriages that will be on the May 8 ballot, even as they remain skeptical about gay marriages, according to a new Elon University/Charlotte Observer poll.
Although the rest of the South, often referred to as the Bible Belt, has adopted such a ban, the survey found 54 percent of Tar Heel residents interviewed opposed the constitutional amendment. It found that 38 percent supported it.

This poll suprised me, though it was not a poll of registered voters. ALL NC registered voters need to get out and vote May 8th.

Prop 8 blog...the time they are a changing
 

Wall Street Journal poll shows shift in marriage equality attitudes among unexpected groups
By Jacob Combs

A Sunday article in the Wall Street Journal titled “Democrats Pressure Obama on Gay Marriage” highlights the possibly impending showdown between President Obama and Democratic party leaders like Nancy Pelosi and Antonio Villaraigosa regarding the formal inclusion of marriage equality in the party’s platform. But what is perhaps most surprising and encouraging in the Journal‘s piece is a poll showing that not only is support for marriage at an all time high, it has also increased dramatically among some unexpected and significant groups:

The most-recent Wall Street Journal/NBC News poll suggests that views on gay marriage are shifting faster than for any other hot-button social issue in recent memory, pollsters say.

Forty-nine percent of Americans now say they approve of gay marriage, up from 40% shortly after Mr. Obama took office in 2009. Mr. Obama’s stated stance makes him part of the 8% of respondents who are unsure how they feel about gay marriage, according to the poll released last week.

The poll showed the biggest jump among blue-collar voters and African Americans, two key Democratic constituencies. Support among blue-collar voters jumped 20 percentage points to 49%. African-American support for gay marriage rose from 32% to 50%. More than half of Hispanics and voters aged 18 to 34 also voiced support. Mr. Obama’s advisers have closely watched the changing views among African-Americans and Hispanics.

If these trends hold up, this could be big news for the marriage movement, not just in terms of the President’s position but also the greater political landscape itself. African-American, Hispanic and blue-collar voters are important to the President’s reelection strategy, but if support for marriage among those groups is growing, a choice by the President to fully endorse marriage equality becomes much less risky.

More importantly, it means that the political majority that favors marriage is not only growing, but becoming more diverse. It is both rare and thrilling to be living in a time when attitudes on this issue are changing so quickly in the direction of equal rights and justice. President Obama isn’t the only one losing ground for his justification about staying out of the marriage debate. As attitudes continue to change, politicians across the political spectrum will lose that justification as well

joemygod
 

PA Marriage Ban Bill Pulled

Pennsylvania's proposed ban on the recognition of all same-sex relationships was abruptly withdrawn this morning shortly prior to its scheduled hearing before a state House committee.
News broke a few minutes ago that the House State Government Committee will delay its vote on HB 1434, known as the “Marriage Protection” amendment, proposed by State Rep. Daryl Metcalfe (R-Butler). The legislation, which drew intense criticism from gay rights advocates, would establish an amendment to the Pennsylvania Constitution that would redefine marriage as “the legal union of only one man and one woman.” Metcalfe currently serves as the State Government Committee chair.
The bill will likely resurface in a marriage-specific form.

New from Maine...Prop 8 Blog
 

Maine ballot measure on marriage equality clears hurdle, polls show voters likely to approve it
By Jacob Combs

The Kennebec Journal reports that the Maine House of Representatives today voted unanimously to indefinitely postpone a citizen initiative that would bring marriage equality to the state, freeing the measure to go directly to the ballot in November. The bill now heads to the state Senate, which is expected to take the same action.

In addition to that good news, a PPP poll from last week shows strong support for the measure going into the election, with 54 percent of respondents saying they support marriage equality and only 41 percent saying they oppose it. When presented with the exact ballot language (regarding “marriage licenses for same-sex couples that protects religious freedom by ensuring that no religion or clergy be required to perform such a marriage in violation of their religious beliefs”), respondents supported the measure by a margin of 47 percent to 32 percent.

Moreover, the PPP vote found that while Democrats and Republicans in the state had not experienced any significant changes in opinion since 2009 (when voters repealed Maine’s marriage equality law), there has been a marked shift in opinion among independent voters. In 2009, independents opposed marriage equality by a 52/46 margin; in this year’s poll, they support it by a 57/36 margin. That’s a remarkable and dramatic development in only three years, and one that could likely make the difference come election day.

As always, these numbers should be viewed cautiously: the election is several months away, and things will change as the campaign heats up. Nevertheless, PPP’s poll didn’t find the even split that many past polls have found in states considering ballot measures on marriage; rather, Maine’s numbers seem to support a clear momentum in favor of marriage. When looked at in the context of the the state’s diocese’s decision not to campaign against marriage, Maine is beginning to look like a possible game changer in November.

Prop 8 Blog...Good news out of Washington State
 

Washington judge releases final ballot language for marriage equality initiative
By Jacob Combs

Yesterday, Thurston County Superior Court Judge Thomas McPhee released his decision on the final wording for Referendum 74, the proposed ballot measure to either uphold or overturn Washington’s recently passed marriage equality law. Judge McPhee’s decision, which is final and cannot be appealed, is a victory for marriage advocates because it removes language about the law’s intent to “redefine marriage” and instead opts for more neutral wording. Supporters of the initiative will now have to collect 120,577 signatures by June 6 to qualify it for the November election.

Here is the finalized ballot language for Referendum 74:

Ballot Title:
The legislature passed Engrossed Substitute Senate Bill 6239 concerning marriage for same-sex couples, modified domestic-partnership law, and religious freedom [and voters have filed a sufficient referendum petition on this bill].

This bill would allow same-sex couples to marry, preserve domestic partnerships only for seniors, and preserve the right of clergy or religious organizations to refuse to perform, recognize, or accommodate any marriage ceremony.

Should this bill be

___ Approved

___ Rejected

Ballot Measure Summary:
This bill allows same-sex couples to marry, applies marriage laws without regard to gender, and specifies that laws using gender-specific terms like husband and wife include same-sex spouses. After 2014, existing domestic partnerships are converted to marriages, except for seniors. It preserves the right of clergy or religious organizations to refuse to perform or recognize any marriage or accommodate wedding ceremonies. The bill does not affect licensing of religious organizations providing adoption, foster-care, or child-placement

Wow! That seems to me to be a very clearly stated referendum. I don't think it should be on the ballot at all - rights being inalienable and all that, but at least people voting on the referendum will be able to clearly understand what they are voting for/against. Two things will work toward samesex marriage being passed.

1 people are more likely to vote for the first choice.
2 people are more likely to vote FOR a referendum than against it.

Have all available body parts crossed hoping that it passes.
Smooches,
Keri

Prop 8 Blog--Denmark news
 

Denmark set to legalize marriage equality by summer
By Jacob Combs

Helle Thorning-Schmidt, the center-left prime minister of Denmark, announced this week that his government plans to introduce draft legislation that will bring marriage equality to the country on June 15. From BNO News:

Denmark was the first country in the world to legalize same-sex unions in 1989 but, despite a generally tolerant society towards homosexuality, politicians repeatedly rejected bills to legalize same-sex marriage. The previous Danish government also rejected a same-sex marriage bill last year.

But Thorning said the Danish government will submit a draft legislation on Wednesday which will allow same-sex couples to get married at both City Hall and the Church of Denmark if they find a priest who is willing to perform the wedding. Although some church leaders have spoken out against same-sex marriage, previous surveys have suggested that as many as 70 percent of priests are willing to marry same-sex couples.

Thorning-Schmidt called the bill “a big step forward” and a “natural” progresion for her country. After the introduction of the civil union bill in 1989, gay couples in Denmark enjoyed the same rights as straght couples, but were not allowed to be married in a religious ceremony. In 1997, the Church of Denmark allowed religious leaders to bless gay unions and in 2009, gay couples won the right to adopt children.

The legislation is expected to pass, making Denmark the 11th country with marriage equality. The other 10 are Argentina, Belgium, Canada, Iceland, the Netherlands, Norway, Portugal, South Africa, Spain and Sweden

Italy---from joemygod
 

ITALY: Supreme Court Rules That Gay Couples Are Entitled To "Family Life"

The Italian Supreme Court today issued a ruling that gay activists say may help clear the road for same-sex marriage.
In its first case regarding a gay couple who wed abroad, the Supreme Court rejected their appeal to be recognized legally in Italy yet said the two men still had the "right to a family life". "Today's Supreme Court judgement is important," said Fabrizio Marrazzo, spokesman for activist group Gay Center. "The ruling says that gay couples must also enjoy the same legal rights as any heterosexual couple. The words are clear and sharp. Parliament and the government must give an answer".

Prop 8 Blog...The President makes a stand
 

President Obama opposes anti-gay Amendment 1 in North Carolina
By Scottie Thomaston

This is news:


“While the president does not weigh in on every single ballot measure in every state, the record is clear that the President has long opposed divisive and discriminatory efforts to deny rights and benefits to same sex couples,” said Cameron French, his North Carolina campaign spokesman.

“That’s what the North Carolina ballot initiative would do – it would single out and discriminate against committed gay and lesbian couples – and that’s why the President does not support it.”

Equality activists in North Carolina have been pressing the President and the First Lady to publicly oppose the amendment, and the number of people in opposition is growing. Recently, Wooledge noted that the fight in NC is winnable. This move by the president is very welcome and could help steer the conversation in a more positive direction for the equality side.

Hopefully this is also a sign of more changes to come. North Carolina is a battleground state, and the Democratic National Convention will be held there this year

Maybe someone up the campaign food chain finally figured out there’s no harm in pointing out that discrimination placed in a state constitution is simply wrong. It’s not like we’re asking for an endorsement of marriage equality. He’s got that problem as well — related to the platform — with many of his fellow Dems calling for marriage equality language to be added to it, but that’s not the same issue for North Carolina.

If people are that uptight about that frank and earnest statement of opposition to Amendment One stated above, the President shouldn’t have expected to win over those votes anyway.

What a great video. Made me smile. Despite the slow progress, there has still been LOTS of progress in my lifetime. Thanks for the reminder.
Smooches,
Keri

Prop 8 Blog...Way to go New Hampshire!
 

Repeal of marriage equality in New Hampshire fails
By Scottie Thomaston

Marriage equality was retained in New Hampshire today:


Today, the Republican-controlled House in New Hampshire failed to pass one of seven bill attempts that would have killed same-sex civil marriage equality. The vote failed 133-202. Democratic Governor John Lynch, who signed the 2009 bill legalizing same-sex marriage into law, would have vetoed HB 437, sponsored by Republican David Bates, an attempt to disenfranchise thousands of same-sex couples along with gay, lesbian, and bisexual citizens who in the future might wish to marry. It was unclear if the GOP would have been able to assemble enough votes to override the Governor’s veto.

Good As You has a bit more.

And Wooledge at Daily Kos:


The vote failed, 202 to 133 according to Gay and Lesbian Advocates and Defenders (GLAD) legal group, tweeting from the state house.

A 74% Republican house
It failed to even pass, let alone reach a veto-sustaining majority it would have needed to get around Gov. John Lynch’s desk. The failure to even sustain a majority of House members votes can only be seen as a crushing defeat to religious right’s grip on the agenda of the Republican party, which controls 74% of the seats in the NH house. The party should have been easily been able to reach 50% +1.

NOM and other groups had been pushing to repeal marriage rights for gay couples, and they were delivered a huge upset. And fairness and moral correctness wins again

Prop 8 Blog...about time!!
 

Obama administration considering a marriage equality endorsement before November’s election
By Jacob Combs

It looks as if President Obama’s storied “evolution” on marriage equality may finally be entering an end stage, reports Chris Johnson of the Washington Blade, citing an inside source in a piece published today about the administration’s movement towards a full endorsement of equality. From the Blade:

The chances that Obama will make such an announcement before the election are looking better than in previous months as the issue receives growing media attention and voters in a handful of states face ballot initiatives this year.

An informed source, who agreed to speak on condition of anonymity, said “active conversations” are taking place between the White House and the campaign about whether Obama should complete his evolution on marriage and that the chances of him making an announcement are about 50-50.

According to the source, the administration would like to unveil another major pro-LGBT initiative before the November election, and an endorsement of marriage equality could fit the bill. But concerns persist on how an endorsement of same-sex marriage would play in four or five battleground states.

As always, this battleground state/swing voter argument is what marriage advocates run up against when it comes to the President’s evolution. The Obama campaign worries that a marriage announcement could alienate socially conservative Democrats as well as the independents who will no doubt be so important to his reelection. These are valid concerns in the abstract, but the real question is: do they really line up with reality?

Elections are fuzzy creatures at best, so guessing how different factors would affect them is an inexact science. Still, I think a persuasive argument can be made that an endorsement of marriage equality would likely have little negative effect on Obama’s reelection, and would in fact have a significant positive effect.

First, as polling continues to demonstrate that support for marriage equality is strong and growing, some of the most significant gains on the issue have been among independents. A PPP poll from earlier this month showed that independent voters had shifted in just two years since 2009 from opposing marriage equality by a 52/46 margin to supporting it by a 57/36 margin. A Field poll in California in early March also showed inroads amongst indepdents, with a full 56 percent supporting the freedom to marry. Even more significantly, a recent Wall Street Journal poll conducted nationally showed that support for marriage had increased dramatically in several unexpected demographic groups, most significantly blue-collar voters, which experienced a 20 percent jump in the last two years, and African-Americans, which experienced an 18 percent increase. A majority of Hispanics aged 18 to 34 also voiced support.

These opinion shifts show that marriage equality is quickly becoming a winning issue for pro-equality candidates even among constituencies that have been historically hesitant about the issue. Most of the voters who would oppose Obama for a pro-marriage position would oppose him anyways on other issues. As these various polls demonstrate, a marriage announcement would likely do little harm to the President’s standing amongst independents and important Democratic voters.

In truth, though, what the Blade article truly demonstrates is the fact that many of us in the marriage equality community have known and been frustrated by for years. That the administration is considering when and how a marriage announcement should be made shows that Obama already supports marriage equality, at least privately. What this means is that LGBT advocates end up frustrated with him for his glacial pace at adopting a position that they know will come eventually, and anti-marriage forces no doubt acknowledge the same facts and oppose Obama for what they know will be his future position. In that way, the evolution stance is a lose-lose situation, and it has the added damage of allowing GOP candidates and pundits to make the specious claim that they share the same views as the President when it comes to marriage equality.

If Obama were to make his marriage announcement before the election, it would no doubt give him a big boost of support going into the fall. It would energize the young Democratic base, who look at this issue as a fundamental rights question of paramount importance. It would excite and motivate LGBT voters (and, even more importantly, donors), who have been frustrated with the President but would no doubt respond to a huge position shift on one of their central issues. And it would draw a better distinction with the eventual GOP nominee, who will be one of several men who have espoused far-right anti-LGBT views throughout the primary campaign that are out of touch with the majority of Americans.

The one hitch: an ENDA executive order. On Tuesday, the Labor and Justice departments cleared an executive order prohibiting federal contractors from discrimination on the basis of sexual orientation. The order is named after the Employment Non-Discrimination Act (ENDA), a bill that would prohibit such discrimination amongst private employers but which failed to pass Congress. With this ENDA order close to being ready for signature, the Obama administration could make ENDA its pre-November LGBT action as opposed to marriage equality. “My feeling is you’ll get one, you won’t get both before Election Day,” said the source quoted by the Washington Blade.

An ENDA victory would have a big impact, and would provide long-overdue rights to LGBT individuals who work for the government and for federal contractors. It would not, however, have the same electoral value as a marriage announcement. Supporting marriage equality before the election would put Obama in a much stronger position to make it a reality in his second term as president

DOMA news from Prop 8 Blog...worth a read
 

DOMA trials: updates from the First and Ninth Circuits
By Jacob Combs

Yesterday, the Justice Department filed two briefs with the Ninth Circuit regarding the appeal of Golinski v. OPM. In its first filing, the government petitioned the Ninth Circuit for an “initial hearing en banc,” and requested that the en banc petition as well as the overall appeal be expedited. As you may remember from the Prop 8 trial, an appeal in the Ninth Circuit goes first to a 3-judge panel, and can then proceed to a larger 11-judge en banc panel. In its filing, the Justice Department called DOMA “a constitutional question of exceptional importance and urgency,” and specifically cited the need for a determination on whether classifications based on sexual orientation should be examined under heightened scrutiny or rational basis scrutiny.

I wrote recently about how the district court’s decision in Golinski v. OPM, looking specifically at the significance of Judge Jeffrey White’s determination to strike down DOMA on heightened scrutiny grounds. The Ninth Circuit’s 1990 decision in a case called High Tech Gays ruled that gays and lesbians were not a suspect class (and therefore not deserving of heightened scrutiny). As Judge White noted in his ruling, however, High Tech Gays was based on the Supreme Court’s decision in Bowers v. Hardwick, which was specifically overturned by the 2003 ruling in Lawrence v. Texas. High Tech Gays, then, is based on outdated law, and Judge White noted that the Ninth Circuit can and should make a new determintion on the scrunity question. In its brief, the government argues that a Ninth Circuit panel would have to determine whether High Tech Gays still binds panels in the appellate court, while an en banc court could look at the question of heightened scrutiny anew.

The Justice Department’s position is a big deal, because it recognizes just how important the scrutiny issue is to the determination of DOMA’s constitutionality, and essentially argues for skipping the panel step and going straight to the en banc review that would almost certainly be required for such an important precedential consideration. In addition, the government also filed a separate motion to consolidate and expedite both BLAG and the Justice Department’s appeals, writing that “ongoing litigation creates uncertainty for Ms. Golinski and countless others who are harmed by DOMA, given its extraordinary scope.”

Also yesterday, the First Circuit announced the names of the three judges who will make up the appeals panel for in the companion cases of Gill v. OPM and Massachusetts v. HHS. The three judges are Chief Judge Sandra L. Lynch, Judge Juan R. Torruella and Judge Michael Boudin, who are Clinton, Reagan and George H.W. Bush appointees, respectively, and the most senior active justices in the First Circuit. In terms of pertinent decisions in the judges’ past, Judge Boudin last year upheld the right of transgender prisoners to receive hormone therapy. P8TT will continue to look into the judges’ background for any information as to how they might rule in the Massachusetts cases. The First Circuit will hear arguments in the two DOMA cases in Boston on April 4 beginning at 10 a.m. BLAG and the Justice Department will each receive 20 minutes to speak, while attorneys for Gill and Massachusetts will each receive 10.

One interesting aspect of the First Circuit hearings is the attorneys who will be making the government’s arguments on both sides. In some ways, the face-off will be a meeting of the greats: Paul Clement, a former U.S. Solicitor General who left his previous law firm after it withdrew from defending DOMA, will be representing BLAG in Boston, while the Justice Department will be represented by Stuart Delery, Acting Assistant Attorney General for the Civil Decision. Delery was recently assigned to the case to replace another government attorney, and his appointment is significant because he is both a high-ranking member of the Justice Department and because he is openly gay.

With these developments in the First and Ninth Circuits, we have a lot to look forward to as DOMA continues to be examined and, hopefully, struck down by more appellate courts on its way to its eventual consideration by the U.S. Supreme Court

Prop 8 Blog-OHIO
 

Marriage equality supporters in Ohio resubmit petition to repeal constitutional amendment
By Jacob Combs

Early this month, a group called the Freedom to Marry Coalition collected and filed over 1700 signatures with the Ohio Attorney General’s Office to place a measure on the November ballot that would repeal the state’s 2004 constitutional ban on marriage equality. A week later, Attorney General Mike DeWine, an opponent of marriage equality, rejected the group’s petition, writing that he was “unable to certify the summary as a fair and truthful statement of the proposed constitutional amendment for three reasons.”

Yesterday, the Freedom to Marry Coalition resubmitted their petition, this time with almost 2400 signatures. In an email to The Gay People’s Chronicle, Ian James of the Freedom to Marry coalition wrote, “We expected the AG rejection and drafted a revised summary petition. The issue of brevity, Title 31 and the individual recognition have been addressed.”

Should DeWine accept the revised proposal, the group would have to collect around 385,000 signatures to put the measure on the ballot. Equality Ohio, the state’s largest LGBT advocacy organization, has not yet come out in support of the effort, and any path to repealing the constitutional amendment rmains uncertain.

Proposed N.C. marriage amendment could reach far
 

http://www.charlotteobserver.com/201...amendment.html

Long article

Poll shows confusion over scope of N.C. marriage amendment
 

http://www.charlotteobserver.com/201...-proposed.html

This much is clear: There’s a lot of confusion over the so-called “marriage amendment” on the May 8 primary ballot.
Everything from what it’s called to what it would do has been disputed. Poll results released Thursday show solid support for the referendum – until the pollsters explained to the potential voters what it proposes.
For instance, 7 percent of those surveyed thought it would legalize gay marriage, instead of the opposite.
For something as serious as amending the state constitution, that seems like a problem.
The survey by Public Policy Polling shows the amendment passing with 58 percent in favor and 38 percent opposed.
In January, the polling firm reported 56 percent in favor and 34 percent opposed; so the gap is narrowing ever so slightly.
But the poll found only about one-third of the respondents actually know what the amendment would do.
The proposal has often been referred to by the shorthand “marriage amendment,” but it goes beyond marriage.
If approved, it would secure in the state’s constitution a prohibition against legally recognizing gay marriage – as well as civil unions between same-sex couples and domestic partnerships between couples of the opposite sex.
According to census figures, there were 223,000 couples in domestic partnerships in North Carolina in 2010. Only 12 percent of those were same-sex couples.
The PPP poll showed 28 percent of voters think the amendment only bans gay marriage. But when told that it also prohibits civil unions, support drops to 41 percent in favor and 42 percent opposed.
Thirty-four percent acknowledged that they really don’t know what it means.
Alex Miller, co-chairman of the anti-amendment group Protect All N.C. Families, said the poll shows that people will vote against the amendment if they understand it. He said proof that the proposal is vague is in the official explanation of the amendment, which notes that the potential ramifications of the law would have to be settled in court.
“What I’m afraid of is the supporters of this amendment will be able to essentially sneak it in past the people of North Carolina and put it into our constitution, and once the majority understands its effects it will be too late,” Miller said.
But Rep. Paul “Skip” Stam, the Republican majority leader in the state House and one of the authors of the amendment, says it’s not as complicated as opponents say.
“Their objection is that they know it will not do the things they are alleging,” Stam wrote in an email Thursday. “The confusion comes from their own unwillingness to address the marriage amendment on its own terms.”
John Robinson of the Elon University Poll found similar uncertainties in a poll conducted earlier this month in partnership with The News & Observer and ABC11.
“It’s very clear they, in varying degrees, support some kind of legal recognition for same-sex couples, but there’s confusion over how they would vote on the amendment,” Robinson said.
Robinson also points out that there is a kind of confusing double-negative about the issue: If you oppose gay marriage you’re for the amendment, and if you support it you’re against it.
Even what to call the amendment is controversial.
People have come to refer to it as “Amendment One,” although that’s not what it will be titled on the ballot. There, it really doesn’t have an official name at all, other than “constitutional amendment.”
The PPP survey of 1,191 likely primary voters was an automated phone poll taken between March 23 and Sunday. It has a margin of error of 2.8 percent.

Prop 8 Blog....DOMA
 

In new lawsuit, DOMA is challenged as it applies to immigration rights
By Scottie Thomaston

Immigration Equality has filed a new lawsuit challenging the Defense of Marriage Act as it applies to the immigration rights of gay and lesbian bi-national couples. The complaint, notes the reasons that the Defense of Marriage Act treats same sex couples dealing with immigration issues particularly harshly:


The discriminatory impact of DOMA is particularly acute in the immigration context. For immigration purposes, whether the federal government recognizes a couple’s marriage can determine whether a family may remain in the United States and live together, or may be torn apart.

The group’s press release says:


Five lesbian and gay couples filed suit today in the Eastern District of New York, challenging Section 3 of the federal Defense of Marriage Act (DOMA), which prevents lesbian and gay American citizens from sponsoring their spouses for green cards. The lawsuit, filed on the couples’ behalf by Immigration Equality and the law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP, alleges that DOMA violates the couples’ constitutional right to equal protection.

“Solely because of DOMA and its unconstitutional discrimination against same-sex couples,” the lawsuit states, “these Plaintiffs are being denied the immigration rights afforded to other similarly situated binational couples.” Were the Plaintiffs opposite-sex couples, the suit says, “the federal government would recognize the foreign spouse as an ‘immediate relative’ of a United States citizen, thereby allowing the American spouse to petition for an immigrant visa for the foreign spouse, and place [them] on the path to lawful permanent residence and citizenship.”

The complaint asserts that keeping families together is not only the highest priority for the plaintiffs who are in long term same sex relationships, but it’s also considered the highest government priority and commitment to family values is repeatedly affirmed in our laws. Because of DOMA, these and other families could be ripped apart:


Each of the Plaintiff couples were legally married, and there is no question that each couple’s marriage is recognized in the jurisdiction in which the American spouse resides. For example, Frances Herbert and Takako Ueda were lawfully married in 2011 in Vermont. Thus, if Takako were a man instead of a woman, she would have already been recognized as an “immediate relative,” allowing her to attain lawful permanent residence and to remain in the United States.

Immigration Equality notes on their website the administration’s rather arbitrary enforcement of DOMA as it pertains to immigration – they’ve stopped some deportations but allowed others – and explains their case:


Over the course of the past year, the Obama Administration has refused to approve – or even hold — green card applications filed by our families. As a result, couples are facing separation and exile … and we will not sit idly by as the federal government keeps tearing families apart.

There is no question that DOMA is unconstitutional. We know it; the Obama Administration knows it; and the families who feel its impact know it most of all. It is time to end this law, and Immigration Equality and our families will do just that.

On April 2nd, we filed suit on behalf of five lesbian and gay couples, challenging Section 3 of DOMA, which prevents lesbian and gay American citizens from sponsoring their spouses for green cards. The lawsuit, filed on the couples’ behalf by Immigration Equality and the law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP, alleges that DOMA violates the couples’ constitutional right to equal protection.

This is not the first lawsuit that has alleged DOMA is unconstitutional as applied to immigration rights. In California, Lui v. Holder was thrown out because the judge said Adams v. Howerton is controlling precedent. In Illinois, Revelis v. Napolitano is awaiting further action.

The lawsuit is called Blesch v. Holder

I have my fingers crossed. It might be pie in the sky right now, but I would love someday for my wife and I to be able to choose where we want to live.

Prop 8 Trial Tracker---DOMA News
 

DOMA trial: What to expect from tomorrow’s hearing in the First Circuit Court of Appeals
By Jacob Combs

Tomorrow morning, starting at 9:30 a.m. EDT, the First Circuit Court of Appeals in Boston will hear oral arguments in the companion cases of Gill v. Office of Personnel Management and Massachusetts v. Health and Human Services. It has been almost two years since District Court Judge Joseph Tauro ruled that Section 3 of the Defense of Marriage Act is unconstitutional under both the Fifth and Tenth Amendments of the U.S. Constitution. Judge Tauro, a Nixon appointee, was the first district court judge in the country to strike down DOMA. A little over a month ago, another Republican-appointed judge, Jeffrey White of the Northern District of California, also declared DOMA unconstitutional.

It’s been a while since the original district court trial that Judge Tauro presided over, so we here at Prop8TrialTracker.com wanted to provide a brief review of the issues presented in the two cases and the legal analysis behind the judge’s decision. In Gill, filed by Gay & Lesbian Advocates & Defenders (GLAD), the plaintiffs argued that DOMA violates the equal protection provisions of the Fifth Amendment by discriminating against gay and lesbian couples who are married under the laws of the state they live in but denied federal marriage benefits by the government. In the companion case of Massachusetts, Massachusetts Attorney General Martha Coakley claimed that Congress overstepped its authority and ran afoul of the Tenth Amendment in passing DOMA because the law undermined states’ abilities to recognize marriage equality.

Judge Tauro awarded summary judgment to the plaintiffs in both cases, striking down DOMA under the Fifth and Tenth Amendments. In his decision in Gill, Tauro rejected the arguments that DOMA encouraged responsible procreation or realized a governmental desire to ensure children were raised by their two biological parents and concluded instead that Congress passed DOMA because of moral disapproval of same-sex relationships and prejudice against gay people. In Massachusetts, Tauro affirmed that marriage has always been a province of state law in the United States, and ruled that DOMA constituted an unprecedented intrusion upon states’ rights by imposing a national definition of marriage. In his decisions, Judge Tauro declined to decide whether or not DOMA should be considered under heightened scrutiny, ruling that the statute failed even the more deferential rational basis scrutiny.

Because it is so significant, the issue of which level of scrutiny should apply to cases like the DOMA and Prop 8 trials deserves some explanation here. Essentially, when a court considers an equal protection challenge of a law that applies certain rules to specific groups of people, that court must decide whether the group bringing the suit is subject to heightened or rational basis scrutiny. As Judge White wrote in his February ruling explaining the two levels of scrutiny: “Courts apply the most searching constitutional scrutiny to those laws that burden a fundamental right or target a suspect class, such as those based on race, national origin, sex or religion.” In cases like these, the government must show that a classification is “substantially related to an important government objective.” If a law doesn’t involve a protected class or a fundamental right, they are subject to rational basis scrutiny, and must be shown to be “rationally related to the furtherance of a legitimate governmental interest.”

As we wrote about here at Prop8TrialTracker.com, in February of 2011, the Department of Justice announced its determination that sexual orientation was a classification meriting heightened scrutiny review. In addition, it announced that is would cease to defend DOMA in court, and the House of Representatives’s Bipartisan Legal Advisory Group (BLAG) took up the defense in its stead. Briefings were submitted in the fall. As it did recently in another DOMA case in the Ninth Circuit, the Department of Justice (along with the plaintiffs) filed a request for en banc review in the First Circuit as opposed to the slower route of proceeding to a 3-judge panel before en banc consideration. The reasoning behind this decision has to do with the scrutiny question. Because the 3-judge panels that first hear cases when they appealed are bound by a court’s earlier decisions, the panel appointed to hear Gill and Massachusetts would have to consider the First Circuit’s 2008 decision in Cook v. Gates, which determined that no Supreme Court ruling held that sexual orientation is a classification meriting heightened scrutiny. An en banc panel would not be bound by that determination, and could consider the question anew. Nevertheless, the petition for initial en banc hearing was denied.

In tomorrow’s hearing, you can expect to hear about the issue of scrutiny, and specifically Cook v. Gates, since the appeals panel will no doubt want to address the whether rational basis or heightened scrutiny applies. As mentioned above, Cook is a controlling precedent on this 3-judge panel, making it extremely unlikely the panel would opt for heightened scrutiny in considering Judge Tauro’s rulings. Because the Cook case concerned Don’t Ask, Don’t Tell, a law that affected the military, it is somewhat different from these DOMA cases, which affect civilians (and, it might be added, service members as well). Nonetheless, it seems almost certain that the First Circuit panel will follow Judge Tauro (and Cook) and use rational basis scrutiny in its determination of DOMA’s constitutionality.

The most unique portion of Judge Tauro’s 2010 ruling was his use of the Tenth Amendment, a darling of conservatives seeking to limit the scope of federal power. Tauro’s ruling in Massachusetts persuasively makes the case for striking down DOMA on Tenth Amendment grounds alone, even though the Fifth Amendment equal protection arguments of Gill are perhaps more traditional in cases like these. It will be intriguing to watch what questions the panel asks in terms of Judge Tauro’s two parallel tracks of analysis, and whether it finds one more convincing than the other.

Tomorrow’s meeting is also significant because of the lawyers who will be arguing for the various different parties. As we wrote before here at P8TT, the Justice Department will be represented by Stuart Delery, Acting Assistant Attorney General for the Civil Decision and one of the highest-ranking officials in the department. BLAG, on the other hand, will be represented by conservative legal wunderkind Paul Clement, former U.S. Solicitor General, who enjoyed the national spotlight this week because of his well-reviewed performance arguing against the constitutionality of the Affordable Care Act before the U.S. Supreme Court. In addition, Mary Bonauto, a prominent civil rights attorney whom the New York Times Magazine compared to former Supreme Court Justice Thurgood Marshall, will be arguing for GLAD. Bonauto is well-known for her successful arguments in Goodridge v. Department of Public Health, the 2003 Massachusetts Supreme Court decision that brought marriage equality to the Bay State. Maura Healy, the head of the Massachusetts Attorney General’s civil rights division, will represent the state of Massachusetts.

In terms of the panel itself, there appears to be little to be read from the proverbial tea leaves. The three judges making up the panel are Chief Judge Sandra L. Lynch, Judge Juan R. Torruella and Judge Michael Boudin, who are Clinton, Reagan and George H.W. Bush appointees, respectively, and the most senior active justices in the First Circuit. In terms of pertinent decisions in the judges’ past, Judge Boudin last year upheld the right of transgender prisoners to receive hormone therapy. In an email to P8TT, Shannon Minter, Legal Director at the National Center for Lesbian Rights, wrote that none of the three judges can be easily classified as liberal or conservative.

Unfortunately, due to the ban on electronic devices of any kind in the courtroom tomorrow, P8TT will not be able to live blog the First Circuit hearing. If you live in Boston, you can try to attend the hearing in person when the courtroom opens at 9:00 a.m. (the courthouse itself will open at 7:30 a.m.). Feel free to send reactions and dispatches to prop8trial AT couragecampaign DOT org. Immediately after the hearing, audio of the oral arguments will be posted on the court’s website.

As always, Prop8TrialTracker.com will provide full coverage of tomorrow’s hearing. Check back throughout the day for updated news and analysis

Prop 8 Blog--follow up on post 949
 

Ohio’s Attorney General certifies ballot language to replace anti-gay marriage amendment
By Scottie Thomaston

Ohio’s Attorney General Mike DeWine has finally certified the ballot language for an amendment to the state constitution to repeal and replace their anti-gay amendment that currently bans gay and lesbian couples from being able to get married. The new language will state that marriage is “a union of two consenting adults.” The proposed language also clarifies that no religious institution will be required to perform or recognize marriages.

The certification comes after DeWine’s refusal last month to authorize the proposed ballot language. He suggested a few reasons for denying certification at the time:


After reviewing the submission, I conclude that I am unable to certify the summary as a fair and truthful statement of the proposed constitutional amendment for three reasons. First, the summary is longer than the text of the amendment… Second, the summary states that the amendment retains the rights contained in “Section 11 of Article XV for political subdivisions to not recognize a legal status for relationships of unmarried individuals.” However, the text of the amendment does not indicate that political subdivisions would retain these rights. Third, the summary states that the amendment retains “the portions of Title 31 that codifies this Amendment.” However, the text of the amendment does not contain any reference to Title 31.

In today’s statement, DeWine calls the new language fair and truthful:


The group re-submitted its paperwork on March 26 and DeWine today certified the proposal and a “fair and truthful” summary of the proposed amendment, he said in a news release.

“Without passing on the advisability of the approval or rejection of the measure to be referred, I hereby certify that the summary is a fair and truthful statement of the proposed constitutional amendment,” he said in a letter to the petitioners.

Yesterday, it was reported that Cleveland’s NAACP President George Forbes has joined the Freedom to Marry campaign – the group pushing the marriage initiative in Ohio. Forbes noted that he worked to clarify the religious language exempting churches from having to perform services, and said:


“The time is now to grant two loving people the Freedom to Marry,” he said in a written statement.

“Not since the Civil Rights Act of 1964 has there been a more important step to achieving equality for all Americans.”

As for the next steps in the amendment process:


DeWine said in a news release that once the summary language and initial signatures are certified the Ohio Ballot Board must determine if the amendment contains a single or multiple issues. The petitioners must then collect signatures in 44 of Ohio’s 88 counties, equal to 5 percent of the total vote cast in the county for the office of governor at the last gubernatorial election.

Total signatures collected statewide must also equal 10 percent of the vote cast for the office of governor in the last gubernatorial election.

If successful it will add to the growing list of pro-marriage initiatives on statewide ballots in the upcoming election.

DOMA...Ist Court of Appeals
 

There are some really interesting articles over at the Prop 8 Trial Tracker Blog this morning that are way too lengthy to repost and I am link challenged.

One of the arguments to repeal DOMA is focusing not on the 14th amendment, but on the 10th which has to do with the individual States ability to decide what is right for the people of the State; and then the Government saying no, they can't have those rights.

Like I said, it's an interesting read.

Prop 8 Blog...
 

California federal judge rules denial of same sex spousal benefits is discriminatory
By Scottie Thomaston

Chief Judge James Ware of the Northern District of California has issued a ruling in a case involving denial of insurance benefit to a law clerk with a same-sex spouse, deciding that the denial of benefits is discriminatory. The court has a policy that guarantees a “discrimination-free workplace.” Because he can’t force the national office to cover spouses,:he ordered the chief clerk of the San Francisco federal court to reimburse Nathan for the past and future costs of buying insurance for his husband.

But the Defense of Marriage Act complicates the issue. Courts have to comply with DOMA, and the administration itself is still enforcing it, until it’s ruled unconstitutional definitively by the Supreme Court. It puts a spotlight on the fact that courts have policies on anti-discrimination in the workplace but then are required by law to discriminate. If there is to be any change in procedure, that decision, Wieking [the clerk ordered by Ware to reimburse funds] said, “will have to be made by the Administrative Office of the U.S. Courts.”

Prop 8 blog...President Obama speaks up again
 

In Minnesota, President Obama’s campaign opposes anti-gay amendment that denies “rights and benefits to same sex couples”
By Scottie Thomaston

The president’s campaign for re-election is coming out in opposition to an attempt to put an anti-gay marriage amendment in Minnesota’s constitution, in what looks to be the administration’s new approach to discussing anti-gay ballot initiatives. Using language much like the statement released by the Obama campaign in opposition to Amendment 1 in North Carolina – and much stronger than previous statements referencing “divisive and discriminatory” laws but not addressing gays and lesbians – the campaign says:


“While the President does not weigh in on every single ballot measure in every state, the record is clear that the President has long opposed divisive and discriminatory efforts to deny rights and benefits to same sex couples,” said Kristen Sosanie, spokeswoman for the Obama for America – Minnesota campaign. “That’s what the Minnesota ballot initiative would do – it would single out and discriminate against committed gay and lesbian couples – and that’s why the President does not support it.”

As in North Carolina, state law in Minnesota already makes it illegal for gay and lesbian couples who are in love to be able to marry each other. The amendment is another in a long line of superfluous, animus-based attacks on gay and lesbian families meant to reclassify them as less valid than heterosexual relationships.

It’s good to see the administration address the problem with these amendments head on. The problem was never that laws or amendments of this sort are “divisive” or vaguely discriminate – they’re targeted at viciously attacking gay and lesbian families by placing in state constitutions the idea that one form of relationship and one sexual orientation is the only valid kind, and anyone else is inferior.

And the fact that the campaign has to keep noting that they can’t weigh in on every one of these initiatives says a lot in itself. This year the gay and lesbian community is fighting back against efforts to ban legal recognition of our relationships in some states and fighting to affirm them in other states. Even after releasing statements on North Carolina and Minnesota, there are still efforts in Maine and Maryland and Washington and New Jersey underway. When one law passes to affirm gay and lesbian relationships it always follows with immediate efforts to undermine the new law. It’s a concerted, long-term effort to deny gays and lesbians legal and societal acceptance and recognition.

Prop 8 Blog...news from Nevada
 

Lambda Legal files marriage equality lawsuit in Nevada
By Jacob Combs

MetroWeekly’s Chris Geidner broke the news this morning that Lambda Legal is filing a new marriage equality lawsuit in Nevada on behalf of eight couples living in the state. Sevcik v. Sandoval marks the first time that Lambda Legal has sought equal marriage rights for gays and lesbians in federal court. Same-sex couples in Nevada can enter into domestic partnerships that provide many of the benefits of marriage without the title, thanks to a law passed by the legislature in 2009 over the veto of then-Governor Jim Gibbons, a Republican.

Lamdba Legal’s suit is no doubt in part inspired by the success of the American Foundation for Equal Rights in the Prop 8 case, Perry v. Brown, which led to historic rulings in favor of marriage equality in California both at the district and appellate court levels. Nevada, like California, falls under the jurisdiction of the Ninth Circuit Court of Appeals, so lawyers in the Sevcik case could cite the Prop 8 ruling in the Ninth Circuit as precedent. Additionally, any appeal of the eventual Sevcik ruling would end up at the Ninth Circuit just like Perry did.

Despite these similarities, the legal arguments that Lamdba Legal are pursuing in Sevcik are not quite the same as AFER’s arguments in Perry. The central complaint in the new Nevada case is an equal protection claim that domestic parternships violate the civil rights of gay and lesbian couples. In the Prop 8 case, AFER made the same equal protection claim but also argued for a fundamental right to marriage under the U.S. Constitution. Tara Borelli, a staff attorney with Lamdba, explained to MetroWeekly that the group “certainly believe[s] that the fundamental right to marry includes same-sex couples, but this court doesn’t need to answer that question to rule for the plaintiffs here. We’re convinced that our equal protection claim is so clearly correct that we want to keep the focus on that claim.”

Lambda Legal’s strategy makes the Sevcik case a more conservative one than the Prop 8 case in Perry, and would appear to be a response at least in part to the Ninth Circuit’s ruling in the Prop 8 case, which declined to address the fundamental right question and instead focused more specifically on the circumstances unique to California’s situation.

In explaining Lambda’s complaint, Borelli said, “One of the reasons that we’re suing in the state of Nevada is that this is a particular equal protection problem that this case examines. It’s the kind of problem created where a state excludes same-sex couples from marriage deems them fit for all of the rights and responsibilities of marriage through a lesser, second-class status — in this case, domestic partnership. That shows just how irrational that state’s decision is to shut same-sex couples out of marriage.”

As we wait to hear whether or not the Prop 8 trial will be heard by an 11-member en banc panel of the Ninth Circuit (a process which, unfortunately, may take several more months), it will be exciting to watch another marriage equality case start up at the district court level. Like the several lawsuits against the Defense of Marriage Act, which build upon each other and make a convincing case for that law’s inherent unfairness, the Sevcik suit is a great step forward in winning marriage equality across the country

Let's hope that they win, and quickly.