Same-Sex Marriage Update

[MsTinkerbelly]

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

[MsTinkerbelly]

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".

[MsTinkerbelly]

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.

[Soon]

She’s a Sens fan, her girlfriend’s a Leafs fan and their marriage proposal during NHL game was adorable (VIDEO)l

[iamkeri1]

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

[MsTinkerbelly]

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

[MsTinkerbelly]

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

[MsTinkerbelly]

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

[MsTinkerbelly]

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.

[Blade]

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

Long article

[Blade]

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.

[MsTinkerbelly]

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

[Cin]

Originally Posted by MsTinkerbelly

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

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.

[MsTinkerbelly]

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

[MsTinkerbelly]

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.

[MsTinkerbelly]

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.

[MsTinkerbelly]

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.”

[MsTinkerbelly]

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.

[MsTinkerbelly]

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

[Nadeest]

Let's hope that they win, and quickly.