Virginia attorney general won’t defend marriage ban in court

The attorney general of Virginia announced this morning that his office will no longer defend the constitutionality of the state’s ban on same-sex marriage.

Mark Herring
Mark Herring

The attorney general of Virginia announced this morning that his office will no longer defend the constitutionality of the state’s ban on same-sex marriage.

At a press conference, Attorney General Mark Herring told reporters his legal analysis of the state’s constitutional ban has determined the law violates the U.S. Constitution’s guarantee of equal protection and due process and that it discriminates against gay people on the basis of sexual orientation.

Addressing critics who say he should defend all state laws, regardless of whether he believes they are unconstitutional. Herring said that would be violating his oath and noted that his predecessors, including Republican Ken Cuccinelli, refused to defend other state laws they believed to be unconstitutional.

“Having determined after thorough and rigorous analysis that this unconstitutional law infringes on Virginia families,” said Herring, “I have a duty and authority to protect them and their rights. It does not mean the case will end or that the ban will go undefended or unenforced. Until the courts can rule on the matter, [the] state registrar Janet Rainey will continue to enforce the current ban, but neither she nor I will defend its constitutionality.”

The announcement comes fewer than three weeks after Herring was sworn in and just one week before a federal judge in Norfolk is set to hear arguments in the first of two lawsuits challenging the ban in federal court in Virginia.

A spokeswoman for Herring told the Richmond Times Dispatch, “We will file a brief that will change the commonwealth’s legal position and we will argue along with the plaintiffs.” The state’s solicitor general is expected to present Herring’s position when the court hears oral arguments.

Supporters of marriage equality were elated.

“It is a critical and important development when the attorney general—the keeper of the federal and state constitution in the commonwealth– joins us in arguing that barring same-sex couples from marriage is clearly unconstitutional,” said Greg Nevins, counsel in Lambda Legal’s Southern Regional Office based in Atlanta. Lambda and the ACLU are representing same-sex couples in one of two lawsuits currently challenging the Virginia ban in federal district courts.

“This is a great day for the Commonwealth of Virginia,” said Ted Olson, who is leading the other Virginia lawsuit. “Attorney General Herring’s actions today have brought Virginia that much closer to the quintessential American ideals of equality under the law and the freedom to pursue happiness. We are grateful for his leadership and look forward to working with him to strike down Virginia’s odious marriage ban.”

In another dramatic development, plaintiffs’ attorneys on Wednesday submitted Tuesday’s Ninth Circuit Court of Appeals decision in SmithKline v. Abbott that found heightened scrutiny is required for cases involving disparate treatment based on sexual orientation. They ask the judge to apply that reasoning in the summary judgment hearing “or, in the alternative,” grant a preliminary injunction against enforcement of Virginia’s ban against the two plaintiff couples in this case.

Attorney General Herring’s announcement today represents a climax in an intense political drama over same-sex marriage in Virginia in recent months. Democrat Herring, who voted for the ban when he served as state senator in 2006, won election last November against Republican Mark Obershain, who opposes same-sex marriage, by fewer than 200 votes. In fact, Herring only last August shifted his position on allowing same-sex couples to marry, telling the Dispatch, “I would not want the state to tell my son or my daughter who they can and cannot marry.”

Just one day before Herring took office, then Republican Attorney General Ken Cuccinelli issued an official advisory opinion that the governor “may not direct or require any agency of state government to allow same-sex couples to receive joint marital status for Virginia income tax returns.”

Herring’s spokeswoman, Ellen Qualls, told the Dispatch, “The attorney general has a strong interest in the courts adjudicating this matter, which will ultimately be decided by the United States Supreme Court.”

            Next Thursday morning, Judge Arenda Wright Allen of the U.S. District Court for Eastern Virginia, is scheduled to hear arguments at a summary judgment hearing in Bostic v. Virginia. Famed attorneys Ted Olson and David Boies, who led the American Foundation for Equal Rights’ successful challenge against California’s Proposition 8, are heading the Norfolk legal team. It is not yet known whether today’s announcement might require postponement of that January 30 hearing.

The initial named defendants in Bostic are now State Registrar of Vital Records Janet Rainey and Norfolk Circuit Court Clerk George Schaefer.

The amended brief submitted by Herring under Rainey’s signature today states that “marriage is a fundamental right protected by the federal constitution” and that current Virginia law “improperly denies same-sex couples access to” that fundamental right, “without legal justification, and therefore violates the federal constitution guarantees of due process of law and the equal protection of the laws.”

The court also granted intervenor status to Prince William County Circuit Court Clerk Michele McQuigg on January 17, noting that plaintiffs did not object.

A second lawsuit, Harris v. Virginia, led by Lambda Legal and the ACLU, is pending before a U.S. District Court for the Western District.

“The Commonwealth of Virginia has too often argued on the wrong side,” said Herring, referring to historic cases on desegregation in 1954, on interracial marriage in 1967, and on women entering the Virginia Military Institute in 1996.

The same legal principles that applied in those cases apply in this case today,” said Herring.

Referring to his 2006 vote in favor of the ban on same-sex marriage, Herring was blunt.

“I was wrong to stop short of marriage equality,” said Herring, but he added his decision today “is not based on my policy preferences” but “based on my thorough analysis of applicable law and the constitutional questions raised by this case.”

“Virginia is, in many ways, the cradle of democracy,” said Herring, noting that many of the nation’s early presidents and authors of key government documents, including the constitution, were written by Virginians.

“Too many times in our history our citizens have had to lead the way on civil rights while our leaders have stood against them,” said Herring. “It is time for the Commonwealth to be on the right side of history and the right side of law.”

Speed Read: Lesbian Assembly Speaker

San Diego’s Democratic Assemblymember Toni Atkins won election Wednesday as California’s new Speaker of the Assembly. Openly gay Republican Richard Tisei announces today his second bid for a U.S. House seat from Massachusetts. The Indiana constitutional ban on same-sex marriage advanced out of committee Wednesday. And more…

LESBIAN WINS TOP CALIF. ASSEMLY SPOT: San Diego’s Democratic Assemblymember Toni Atkins won election Wednesday as California’s new Speaker of the Assembly. The Los Angeles Times reported that Atkins, who has been serving as majority leaders, won the top spot with a unanimous vote of the Democrats. She takes over from the Assembly’s first openly gay Speaker, John Perez of Los Angeles.

TISEI ANNOUNCING RE-MATCH: Openly gay Republican Richard Tisei will announce today his second attempt to unseat Democratic incumbent U.S. Rep. John Tierney of Massachusetts.  Tisei spent six years in the Massachusetts House and 10 years in the state senate before making his first bid for Congress in 2012. He lost that bid by one percentage point.

INDIANA BAN ADVANCES: A Family Research Council representative told an Indiana House committee Wednesday that same-sex marriage would lead to polygamy. According to the Fort Wayne News-Sentinel, the remark drew laughter from the audience at the hearing on the state’s proposed constitutional ban on same-sex marriage. The committee voted 9 to 3 in favor of the measure Wednesday evening. House Joint Resolution 3, which bans same-sex marriage or any “substantially similar” relationship for same-sex couples, heads to the full House next. If it passes there and the senate, it will go to voters in November.

PERSONAL BECOMES POLITICAL: Two right-wing Republicans in Texas voiced criticism this week of Annise Parker, Houston’s openly lesbian mayor, for marrying her partner of 23 years, Kathy Hubbard. A press release from the mayor’s office announced the January 16 ceremony in Palm Springs, California, adding that Hubbard would not apply for benefits under the new policy Parker initiated –to provide equal benefits to gay city employees. That policy is currently under challenge in court. The news release said Hubbard has “other insurance options available to her.” But a Republican candidate for lieutenant governor and the Harris County GOP official who is suing Parker over the policy said her marriage is part of a scheme to turn Texas into California. In an interview posted by KHOU-TV Tuesday, Parker dismissed the criticisms as politics-as-usual, adding, “They can get over it.”

SECOND-SURGE SUIT IN UTAH: First, there was the private lawsuit (Kitchen v. Herbert) to challenge Utah’s ban on allowing same-sex couples to marry. Now, there’s an ACLU lawsuit to challenge Utah’s refusal to provide state benefits to couples who legally married following a federal district court’s December 20 decision that the ban was unconstitutional. The state has that district court decision on expedited appeal, but John Mejia, legal director of ACLU-Utah says, “Regardless of what ultimately happens in the federal challenge to Utah’s marriage ban, the marriages that already occurred are valid and must be recognized now.” The new lawsuit, Evans v. Utah, filed Tuesday, represents four same-sex couples who obtained marriage licenses in Utah before the U.S. Supreme Court issued a stay of the federal district court decision.

MOB SCENE IN NIGERIA: Various media reported a “mob,” numbering hundreds or thousands, threw stones at seven to 11 men in a courtroom in Bauchi, in northern Nigeria, as the men were being arraigned for having participated in a gay organization. The reports indicated that police had to fight off the mob using tear gas and evacuate the men from the court. One Nigerian news website, Punch, described the scene as “pandemonium” and said the judge ended the proceedings abruptly and rescheduled them for January 27. Associated Press said “thousands” threw stones and called for execution of the men for allegedly violating Nigeria’s newly enacted law, calling for long prison sentences for merely belonging to a gay organization.

Speed Read: Hell freezes over

President Obama and Russian President Putin talked Tuesday about the Olympic Games but apparently nothing about concerns for LGBT civil rights supporters visiting the country. Indiana’s House Speaker took the highly unusual tact of moving an ant-gay bill to another committee in hopes of getting it passed. And hell freezes over in Mississippi…

TWO PRESIDENTS TALK, NO LGBT MENTION: President Obama and Russian President Vladimir Putin talked by phone Tuesday about a number of issues, including security matters at the upcoming Olympic Games in Sochi, where terrorists have threatened just about everybody. But according to a read-out from the White House press office, they did not talk about how visitors to Russia in support of LGBT civil rights would be treated by the Russian government during the Games. Putin’s remarks in recent days have continued to escalate concerns for LGBT people traveling to Russia. Full story.

INDIANA SWITCH AND BAIT: Indiana House Speaker Brian Bosma Tuesday pulled a proposed constitutional amendment from the House Judiciary Committee and put it in the Elections and Apportionment Committee, which will hold a hearing on the measure this afternoon at 3:30. The Fort Wayne News-Sentinel said what many suspected –that the bill to ban same-sex marriage (HJR 3) lacked enough votes to pass the Judiciary Committee. Asked by the Indianapolis Star about the “highly unusual move,” Bosma said, “I responded to the overwhelming majority of the Republican caucus who have extensively lobbied me to bring this to the floor in one fashion or another.” Megan Robertson, campaign manager for Freedom Indiana, said her group is “disappointed” Bosma “broke his commitment to Hoosiers to uphold the traditional legislative process.”

LAMBDA HAILS NINTH CIRCUIT RULING: A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit (San Francisco), using heightened scrutiny, ruled Tuesday that striking a potential jury member because of his sexual orientation violates his right to equal protection. The case, SmithKline v. Abbott, pitted one HIV-drug manufacturer against another over various claims involving the pricing of HIV medications. During jury selection for the trial, lawyers for Abbott used one of their opportunities to strike a potential juror to eliminate a juror who had acknowledged having a male partner. SmithKline challenged that strike, saying it was impermissible to strike a potential juror’s because of his sexual orientation. The district court judge disagreed, the appeals panel said the U.S. Supreme Court’s ruling in U.S. v. Windsor, which struck the Defense of Marriage Act (DOMA), “requires that heightened scrutiny be applied to equal protection claims involving sexual orientation.” The panel remanded the case for a new trial. Lambda Legal praised the decision and said it is likely to affect other pending cases in the Ninth Circuit.

FLORIDA GETS LAWSUIT: The National Center for Lesbian Rights filed a lawsuit Tuesday in a state court in Miami on behalf of six same-sex couples and Equality Florida. The lawsuit challenges the state’s ban on marriage licenses for gay couples.

HELL FREEZES OVER: For the first time in the state of Mississippi, a municipality’s governing council has approved a “Resolution supporting Equality,” declaring it public policy that “every person,” regardless of sexual orientation of gender identity, has “inherent worth” and that discrimination against a person based on any characteristic is “anathema to the public policy of the City.” That city is Starkville, Mississippi; population 24,000, near the center of one of the nation’s most conservative states.

APPOINTEE NAMED: President Obama today named Sharon J. Lettman-Hicks, head of the LGBT National Black Justice Coalition, as one of 15 people to serve on his Advisory Commission on Educational Excellence for African Americans. Lettman-Hicks serves on numerous LGBT boards, including the National Business Inclusion Consortium for the National Gay and Lesbian Chamber of Commerce. She also served on an advisory committee to Gay, Lesbian & Straight Education Network’s (GLESN) LGBT Safe Schools Initiative.

Putin’s remarks continue to fan controversy over anti-LGBT law

President Obama and Russian President Vladimir Putin spoke by phone Tuesday on a number of issues facing both nations, including the threats being made on the upcoming Olympic Games in Sochi. But they didn’t talk about –at least not according to a White House read-out of the conversation– was Putin’s recent caustic remarks concerning gay people coming to Russia for the Olympics. On Friday, it was widely reported that Putin said gays visiting Russia for the Olympics can feel at ease as long as they “leave children in peace, please.”

Vladimir Putin. Photo courtesy www.kremlin.ru
Vladimir Putin. Photo courtesy www.kremlin.ru

President Obama and Russian President Vladimir Putin spoke by phone Tuesday on a number of issues facing both nations, including the threats being made on the upcoming Olympic Games in Sochi. But they didn’t talk about — at least not according to a White House read-out of the conversation — was Putin’s recent caustic remarks concerning gay people coming to Russia for the Olympics. On Friday, it was widely reported that Putin said  gays visiting Russia for the Olympics can feel at ease as long as they “leave children in peace, please.”

The remark, and its underlying insinuation that gay people harm children, was not included in Putin’s published remarks on his official website but was reported by media attending his speech to the volunteers in Sochi for the Olympic Games.

Just one day before and one day after those remarks, Putin promised there would be no discrimination against athletes or visitors.

“The Games will be held in complete compliance with the Olympic Charter, without any discrimination on the basis of any characteristic,” said Putin in an address welcoming foreign ambassadors to Moscow on January 16.

And in a group interview with reporters, Putin assured ABC news anchor George Stephanopoulos “none of our guests will have any problems,” and reminded him about Olympic protests in 1968 by black Americans.

The latter comment came in response to Stephanopoulos pressing Putin on how he would respond “if gay or lesbian athletes engage in some sort of protest, wear a rainbow pin or some other kind of protest, will they be free from prosecution under the propaganda laws?”

According to ABC’s transcript of the interview, Putin said, “Acts of protest and acts of propaganda are somewhat different things.”

“So if they wear a rainbow pin or kiss their partner…” asked Stephanopoulos.

“They are close, but if we were to look at them from the legal perspective,” said Putin, “then protesting a law does not amount to propaganda of homosexuality or sexual abuse of children. That’s one. Two is that I’d like to ask our colleagues, my colleagues and friends that, as they try to criticize us they would do well to set their own house in order first. I did say, after all, and this is public knowledge that in some of the states in the U.S. homosexuality remains a crime.”

Stephanopoulos corrected him, noting that the Supreme Court struck down “those laws.”

But Putin replied that the U.S. was not “in a position to criticize us” given that “there are a lot of folks in the U.S. who share the view that the legislation in their state or in their nation is appropriate, well-grounded and is in sync with the sentiment of the vast majority of the population.”

“This needs to be discussed together at some, some more acceptable forum. Shared approaches need to be devised. We hear you,” said Putin. “My response to you is none of our guests will have any problems. We remember certain dark-skinned citizens of the U.S., during Olympics, major international competitions, protest against segregation. I saw it with my own eyes on TV screens. Well, this is a practice that people use to make a statement about their rights.”

Putin said he had no reaction to President Obama’s including three openly gay members in the U.S. delegation to the Sochi Games’ opening and closing ceremonies.

He also downplayed any worry last week about reports that 30 percent of tickets are still unsold to the Games, just three weeks out from the February 7 opening ceremony. The Russian channel R-Sport, a division of Russia’s leading news agency, reported Friday that Putin he would fill the empty seats with volunteers, if necessary.

At the 2010 Winter Olympics in Vancouver, only three percent of tickets went unsold by the end of the Games, according to the Vancouver Olympic Committee’s Marketing Report.

In addition to the prominent controversy around Russia’s new laws hostile to LGBT people, Russia has been hit with three terrorist attacks in the past month and new threats this week. The website of a Chechen group posted a videotaped threat against the Games on Sunday, promising “revenge” for “all the Muslim blood that is shed every day around the world, be it in Afghanistan, Somalia, Syria, all around the world.”

Speed Read: Continents of difference

Ugandan president ponders what to do with “abnormal” people. Russian president implores gays to “leave children” alone. U.S. president promises no collection of intelligence targets based on sexual orientation. And more…

UGANDA: ‘DO WE KILL THEM?’ Ugandan President Yoweri Museveni wrote an eight-page letter to the Speaker of the Ugandan Parliament, calling into question the passage of a bill that calls for life imprisonment for anyone convicted of homosexuality. While Museveni’s letter makes clear why he did not sign the bill, he is far from supportive of civil rights for gay people. Describing gays as “abnormal,” he declares, “The question at the core of the debate of homosexuality is; what do we do with an abnormal person? Do we kill him/her? Do we imprison him/her? Or we do contain him/her?” wrote Museveni. The December 28 letter came to light in an article January 17 by the Ugandan newspaper, the Daily Monitor.

PUTIN FANS CONTROVERSY: Russian President Vladimir Putin poured fuel on the anti-gay controversy Friday, saying gays visiting Russia for the Olympics can feel at ease as long as they “leave children in peace, please.” In addition to that remark, and its underlying insinuation that gay people harm children, he said the U.S. was in “no position to criticize us,” given “there are a lot of folks in the U.S.” who share the hostile view about gay people and given the history of “certain dark-skinned citizens of the U.S.” engaging in protests at the 1968 Olympics.

A DIFFERENT CONTINENT: In a speech Friday to clarify his administration’s policy on electronic surveillance for national security purposes, President Obama made clear what the U.S. won’t do. “I’ve also made it clear that the United States does not collect intelligence to suppress criticism or dissent,” said the president, “nor do we collect intelligence to disadvantage people on the basis of their ethnicity, or race, or gender, or sexual orientation, or religious beliefs.”

TRANS VICTORY FIRST CIRCUIT: The First Circuit U.S. Court of Appeals Friday issued a decision saying that the state of Massachusetts prison system could not deny sex reassignment surgery to a prisoner with severe gender identity disorder. Michelle Kosilek had already been receiving hormone therapy, psychological counseling, hair removal, and female clothing and makeup from the prison, where she is serving a life sentence for murdering her former wife. In a 2 to 1 decision, in Kosilek v. Spencer, the appeals panel said courts “must not shrink from their obligation to ‘enforce the constitutional rights of all ‘persons,’ including prisoners.’ And receiving medically necessary treatment is one of those rights, even if that treatment strikes some as odd or unorthodox.”

SEATTLE MAYOR THREATENED:  Seattle police arrested a man last Thursday for threatening openly gay Mayor Ed Murray as well as a city council member. Mitchell Taylor, 32, is being held on $600,000 bail for posting more than 20 threatening posts on his Facebook page, saying such things as, “Mayor, meet Harvey Milk.” Several media said the man’s attorney told a judge that Taylor as a form of autism and had stopped taking his medication.

SEATTLE BAR RELEASES VIDEO: The owners of the gay bar in Seattle that was attacked by an arsonist on New Year’s Eve released a surveillance camera video that shows a man carrying a bag through the crowd that evening. Police later released still photos from the video identifying the man as a person of interest in the arson attack. A detective told one television station that police did not release the video themselves to “respect people’s privacy.”

NH VOTERS AMBIVALENT: A new survey of New Hampshire voters has found that 66 percent say the legalization of same-sex marriage in that state has had “no impact” on their lives, and 60 percent say such marriages “should be allowed.” The poll was conducted by Public Policy Polling January 9-12 with 1,354 voters, with a margin of error of plus or minus 2.7 percent. Same-sex couples could marry in the Granite State beginning 2010.

 

Prisoner with GID has right to accepted medical treatment, says fed appeals court

A federal appeals court Friday affirmed a district judge’s order that a state prison violated the constitutional rights of a prisoner with severe gender disorder when it refused to provide sex reassignment surgery.

The lawsuit, Kosilek v. Spencer, was supported by Gay & Lesbian Advocates & Defenders (GLAD), the ACLU, the Human Rights Campaign, the National Gay and Lesbian Task Force, the National Center for Transgender Equality, and other LGBT organizations.

A federal appeals court Friday affirmed a district judge’s order that a state prison violated the constitutional rights of a prisoner with severe gender disorder when it refused to provide sex reassignment surgery.

The lawsuit, Kosilek v. Spencer, was supported by Gay & Lesbian Advocates & Defenders (GLAD), the ACLU, the Human Rights Campaign, the National Gay and Lesbian Task Force, the National Center for Transgender Equality, and other LGBT organizations.

“If she needed treatment for cancer or heart disease, this case would never have wound up in court,” said GLAD attorney Jennifer Levy. “If we are to call ourselves a civilized society, there is a baseline of care that has to be provided to all prisoners, including prisoners who are transgender. We hope that Michelle will now get the treatment that she desperately needs.”

Massachusetts prison inmate Michelle Kosilek, born with male genitals and named Robert Kosilek, was convicted in 1992 of murdering her spouse and sentenced to life without parole. In 2000, she sued for hormone treatment for her gender disorder and obtained it. In 2006, she sought sex reassignment surgery but was refused.

The state had argued that the level of treatment already being provided to Kosilek –hormones, permanent hair removal, female clothing and makeup, and psychotherapy— was adequate.

A group of doctors certified that the treatment was medically necessary and, in 2012, a federal district court judge ruled that withholding treatment violated the U.S. Constitution’s the Eighth Amendment guarantee against cruel and unusual punishment. The judge ordered the commissioner of the Massachusetts Department of Corrections, Luis Spencer, to provide her with sex reassignment surgery.

In a 2 to 1 decision January 17, a First Circuit U.S. Court of Appeals panel upheld that decision.

The majority decision, written by Judge O. Rogeriee Thompson and joined by Judge William Kayatta (both Obama appointees), said to reach an Eighth Amendment violation, the prisoner must have a “serious medical need” and the prison’s treatment must fail to achieve a level “reasonably commensurate with modern medical science and of a quality acceptable within prudent professional standards.” All inadequate care does not constitute a violation of the Eighth Amendment, said the majority, so there must also be proof that the government was “deliberately indifferent” to the prisoner’s treatment and the security considerations surrounding that treatment.

“We are assuredly mindful of the difficult tasks faced by prison officials every day,” wrote the majority. “But as the Supreme Court has cautioned, while sensitivity and deference to these tasks is warranted, “[c]ourts nevertheless must not shrink from their obligation to ‘enforce the constitutional rights of all ‘persons,’ including prisoners.'” And receiving medically necessary treatment is one of those rights, even if that treatment strikes some as odd or unorthodox.”

The district court’s findings “that Kosilek has a serious medical need for the surgery, and that the [Massachusetts Department of Corrections] refuses to meet that need for pretextual reasons unsupported by legitimate penological considerations — mean that the DOC has violated Kosilek’s Eighth Amendment rights.”

Dissenting Judge Juan Torruella (Reagan appointee) said, “That appropriate medical care must be provided does not, however, mean that inmates may seek and receive the care of their choosing….Prison officials commit no violation so long as the medical care provided is minimally adequate.”

Mara Keisling, executive director of the National Center for Transgender Equality, said, “Decisions about treating serious healthcare decisions like sex reassignment surgery need to be made by doctors and patients, not prison authorities.”

The majority took the time in its 90-page decision to discuss gender identity disorder, explaining it as “a psychological condition involving a strong identification with the other gender,” recognized by the American Psychiatric Association. It also noted that sex reassignment surgery has been accepted treatment for the disorder “since at least the 1950s.”

 

Speed Read: Nightmare in Nigeria

Authorities in Nigeria are using aggressive tactics to identify and punish gays, and the Human Rights Campaign has urged the State Department to use every tool it can to intervene. President Obama named an African American lesbian to a federal district court seat in Illinois and another lesbian candidate’s nomination advanced out of committee.

NIGERIAN NIGHTMARE: The Human Rights Campaign says LGBT and HIV activists in Nigeria are reporting that police there are illegally tapping the cell phones of people they believe to be gay and sending text messages to others to bait them into revealing that they are gay. The Nigerian president signed an anti-gay bill into law there January 7, calling for prison terms of 10 years for belonging to a gay organization or 14 years for being in a gay relationship. HRC President Chad Griffin called on Secretary of State John Kerry to “use every available tool to demonstrate that any nation which targets its own LGBT citizens and violates their civil rights gravely risks its standing in the international community.” Associated Press reported that, on Thursday, Nigerian authorities whipped a young man 20 times in public court following his pleading guilty to having engaged in sex with a man seven years ago.

NEW DISTRICT COURT APPOINTEE: For the first time, President Obama on Thursday named an African American lesbian to a federal court seat. Obama nominated Staci Michelle Yandle to a seat on the U.S. District Court for the Southern District of Illinois. A solo practitioner in southern Illinois and the St. Louis area, Yandle was awarded the Marie Lambert Award of the Women Trial Lawyers Caucus in 2012 for her exemplary leadership. She has served as an adjunct professor at St. Louis University School of Law and as a legal advisor to the NAACP of East St. Louis. She also served four years on the Illinois Advisory Committee to the United States Commission on Civil Rights. Yandle is President Obama’s ninth openly gay nominee to a federal district court seat; six out of the previous eight have been confirmed. The only nominee not confirmed was William Thomas, the first openly gay African American man to be nominated. Thomas’ nomination was blocked by one of his home state U.S. senators, Marco Rubio.

ANOTHER NOMINEE ADVANCES: The Senate Judiciary Committee Thursday advanced the nomination of Judith Levy, a former law clerk for Lambda Legal. President Obama nominated Levy to serve on the U.S. District Court for the Eastern District of Michigan. Her questionnaire to the committee noted that she is a board member of DOJ Pride, a member of the Human Rights Campaign, and won a scholarship from Parents and Friends of Lesbian, Gay and Bisexual Students. The LGBT Bar Association urged its members to call their senators to urge their support for Levy’s confirmation. “Earlier this year, one Senator was allowed to obstruct the nomination of another qualified nominee – William Thomas – to a U.S. District Court in Florida,” wrote D’Arcy Kemnitz, the LGBT Bar’s executive director. “This time, it is imperative we let Senators know: We expect LGBT nominees to receive a fair, up-or-down vote based on their qualifications, not their sexual orientation.”

UTAH BENDS ON TAX RETURNS: The Utah State Tax Commission on Wednesday that “Same-sex couples who are eligible to file a joint federal income tax return and who elect to file jointly, may also file a joint 2013 Utah Individual Income Tax return if they were married as of the close of the tax year.” The notice emphasized that its purpose was simply to provide guidance for tax year 2013, pending eventual court resolution of the challenge to Utah’s ban on same-sex couples marrying. “This notice should not be construed as a waiver of any legal defenses or arguments the State may make in the ongoing federal litigation or any pending or future judicial action.

Speed Read: ‘One stroke of his pen’

When President Obama promised to start using his authority to sign executive orders to get things done in Washington, NGLTF Executive Director Rea Carey reminded him that the LGBT community has been pleading for an executive order to ban discrimination by federal contractors. A top gay Republican activist quit the party this week. And more…

“I’VE GOT A PEN”: Speaking to reporters before a meeting with his Cabinet on Wednesday, President Obama made clear that he intends to get some important things done despite the partisan fighting in Congress. He said “we are not just going to be waiting for legislation” to get things done. “I’ve got a pen …and I can use that pen to sign executive orders … that move the ball forward….” He was talking about education, business, and creating jobs. But Rea Carey, executive director of the National Gay and Lesbian Task Force, was thinking of workplace discrimination. “We need to let him know that an executive order banning discrimination against LGBT people working for federal contractors should be his top priority,” said Carey, in a press release Wednesday. “With one stroke of his pen, he can immediately improve the lives of LGBT people across the country.”

“LET’S HAVE A DEBATE”: Indiana’s Republican Governor Mike Pence gave state legislators a gentle nudge Tuesday to take their second and final vote on a proposal to amend the state constitution to ban same-sex couples from marrying. In his state of the state address January 14, Pence said, “I believe in traditional marriage, and I have long held the view that the people, rather than unelected judges, should decide matters of such great consequence to the society. Reasonable people can differ, and there are good people on both sides of this debate. No one, on either side, deserves to be disparaged or maligned because of who they are or what they believe. So let’s have a debate worthy of our people with civility and respect.”

“IT’S PRETTY CLOSE”: The Speaker of Indiana’s House told reporters Wednesday that the tally in the House Judiciary Committee on the proposed state constitutional ban on same-sex marriage and civil unions is “pretty close.” The 13-member committee’s four Democrats are expected to oppose the bill and there are three Republicans on the fence who could go either way. If all opposed the bill, it would go down in defeat. The Indianapolis Star noted that a recent Republican poll found 53 percent of voters favored the ban until they were told it would also bar civil unions. Then, only 46 percent favored it.

GOP: “TOLERANCE OF BIGOTRY”: Openly gay conservative Jimmy LaSalvia, who helped found the national gay Republican group GOProud, announced on his blog Monday that he has “joined the ranks of unaffiliated voters.” LaSalvia said, “I just can’t bring myself to carry the Republican label any longer.” In part, his decision was that he doesn’t “agree with the big-government ‘conservatives’ who run the party now.” But the other reason, he said, “is the tolerance of bigotry in the GOP. The current leadership lacks the courage to stand up to it – I’m not sure they ever will.” LaSalvia says he now considers himself an “independent conservative.”

$150,000 FOR SLURS AT WORK: A straight oil rig worker harassed with anti-gay slurs at work will be able to keep $150,000 in damages awarded by California jury. On Monday, a California appeals court upheld the damages award as well as a $680,000 award to pay his attorneys. The oil worker sued his former employer, Nabors Drilling, under the California Fair Employment and Housing Act for enabling a hostile work environment. Nabors appealed, claiming there was insufficient evidence that worker was harassed because of his perceived sexual orientation. The appeals court noted that the evidence indicated that several times a day, supervisors called the employee a “queer,” “faggot,” and “homo,” and taunted him with humiliating sexual threats in front of other employees.

Speed Read: Another one bites the dust

Another ban bites the dust: a federal judge in Oklahoma says the state’s ban on same-sex marriage is unconstitutional. But he delays implementation of his decision until the Tenth Circuit can address appeals. A Virginia senate committee tables an attempt to repeal that state’s ban. And more…

OKLAHOMA VICTORY: In yet another stunning victory for marriage equality, a federal judge in Oklahoma ruled Tuesday that the state’s ban on same-sex couples obtaining marriage licenses is unconstitutional. “Equal protection is at the very heart of our legal system and central to our consent to be governed. It is not a scarce commodity to be meted out begrudgingly or in short portions,” wrote U.S. District Court Judge Terence Kern. “Therefore, the majority view in Oklahoma must give way to individual constitutional rights.” Unlike the federal judge in Utah, however, Judge Kern, a Clinton appointee, stayed the effect of his ruling, pending appeal to the Tenth Circuit. The Utah case is also pending appeal before the Tenth Circuit. And unlike many of the current marriage equality lawsuits around the country, the one in Oklahoma, Baldwin v. Oklahoma, has been pending since 2004. The lead couple in the case, Sharon Baldwin and Mary Bishop, are editors at the Tulsa World daily newspaper. Full story.

VIRGINIA BAN SURVIVES: A Virginia senate committee Tuesday voted to table a bill seeking to repeal the state’s ban on marriage for same-sex couples. Like in many other states, changes to the state constitution must pass the state legislature twice before going to voters. Senator Mark Obenshain, the Republican chair of the committee and a failed candidate for attorney general last November, noted to the Washington Post that several other bills were tabled as well, all based on a procedural consideration. The bills will come again next year.

NUMBERS NUMBNESS: The House is scheduled to vote today on the $1 trillion agreement to avoid sequestration cuts that were set to take place today. That agreement includes dollars for AIDS-related research and treatment that went both up and down last night, when Congress released the details of its Fiscal Year 2014 budget agreement. The 1,500-page document restored almost $2 billion in AIDS-related cuts that were set to take place under sequestration, had Congress not approved the budget agreement last month. But the tallies are short, compared to FY 13, says Carl Schmid, deputy executive director of The AIDS Insitute. Research funds are down $714 million compared to FY 13, Centers for Disease Control and Prevention are down $24 million, and housing is down $2 million. AIDS drug assistance is up $14 million but, says Schmid, is “far short of President Obama’s budget request of $943 million, which was supported by the US Senate.”

CHRISTIE’S BULLY PRANKS: As various news investigations uncover information suggesting that New Jersey’s Republican Governor Chris Christie may have used the power of his office to punish people who failed to support him, one gay-related incident has arise. The New York Times reported Sunday that Christie dinged Jersey City Mayor Steven Fulop after Fulop declined to endorse Christie’s re-election last year. Suddenly, a string of Republican state officials canceled their scheduled meetings with Fulop and then failed to respond when he called for help with Hurricane Sandy relief. Fulop, a Democrat, told the Times he felt he could not endorse Christie because his city has a large population of gays and lesbians and  the governor was opposing same-sex marriage.

NIGERIA CRACKS DOWN SWIFTLY: An activist in Nigeria reported to Associated Press Tuesday that Nigerian officials have arrested 38 men for violating the country’s newly enacted anti-gay law and have the names of 168 more. Aken’Ova, head of Nigeria’s International Center for Reproductive Health and Sexual Rights, said the men were identified by four gay men detained by police in December before the law went into effect. She said the four were tortured until they identified other members of a gay organization.

Oklahoma ban ‘insulting’ to same-sex couples, says federal judge

In yet another stunning victory for marriage equality, a federal judge in Oklahoma ruled Tuesday that the state’s ban on same-sex couples obtaining marriage licenses is unconstitutional.

oklahoma_flagIn yet another stunning victory for marriage equality, a federal judge in Oklahoma ruled Tuesday that the state’s ban on same-sex couples obtaining marriage licenses is unconstitutional.

“Equal protection is at the very heart of our legal system and central to our consent to be governed. It is not a scarce commodity to be meted out begrudgingly or in short portions,” wrote U.S. District Court Judge Terence Kern, a Clinton appointee. “Therefore, the majority view in Oklahoma must give way to individual constitutional rights.”

Kern ruled Oklahoma’s ban on same-sex marriage violated both the equal protection and due process rights guaranteed by the U.S. Constitution and he added that it is “insulting to same-sex couples, who are human beings capable of forming loving, committed, enduring relationships.”

“This is a tremendous day for loving and committed same-sex couples and their families in Oklahoma,” said Evan Wolfson, head of the national Freedom to Marry organization.  Wolfson said the Oklahoma decision builds on the momentum from eight other states ending their restrictions on marriage for same-sex couples in 2013.

“The federal district judge has done the right thing by affirming that marriage is a fundamental freedom for all people, gay and non-gay – for all of us who believe in liberty and fairness.”

However, unlike the federal judge in Utah, Kern stayed the effect of his ruling, pending appeal to the Tenth Circuit. The Utah case, Kitchen v. Herbert, is also pending appeal before the Tenth Circuit. The effect of that ruling was stayed by the U.S. Supreme Court after more than 1,300 same-sex couples had married.

Unlike many of the current marriage equality lawsuits around the country, the one in Oklahoma, Baldwin v. Oklahoma, has been pending since 2004. Two lesbian couples, represented by private attorneys, challenged both the state constitutional amendment barring the issuance of marriage licenses to same-sex couples and the federal Defense of Marriage Act (DOMA). That amendment was passed in 2004.

“Exclusion of the defined class was not a hidden or ulterior motive; it was consistently communicated to Oklahoma citizens as a justification for [ban],” wrote Kern. This is simply not a case where exclusion of same-sex couples was a mere ‘unintended consequence’ of the law. Instead, this is a classic, class-based equal protection case in which a line was purposefully drawn between two groups of Oklahoma citizens – same-sex couples desiring an Oklahoma marriage license and opposite-sex couples desiring an Oklahoma marriage license.”

“…Instead of gender-based discrimination, the intentional discrimination occurring against same-sex couples as a result of [the ban] is best described as sexual-orientation discrimination,” wrote Kern. “The conduct targeted by [the ban] – same-sex marriage – is so closely correlated with being homosexual that sexual orientation provides the best descriptor for the class-based distinction being drawn.”

“Classifications against homosexuals and/or classifications based on a person’s sexual orientation are not subject to any form of heightened review in the Tenth Circuit. Therefore, [the ban] is not subject to any form of heightened scrutiny based upon the Bishop couple’s membership in a suspect class.

“…The Court recognizes that moral disapproval often stems from deeply held religious convictions,” wrote Kern. “However, moral disapproval of homosexuals as a class, or same-sex marriage as a practice, is not a permissible justification for a law.

“…civil marriage in Oklahoma is not an institution with ‘moral’ requirements for any other group of citizens,” noted Kern. He noted that the Tulsa clerk “does not ask a [heterosexual] couple if they intend to be faithful to one another, if they intend to procreate, or if they would someday consider divorce, thereby potentially leaving their child to be raised in a single-parent home. With respect to marriage licenses, the State has already opened the courthouse doors to opposite-sex couples without any moral, procreative, parenting, or fidelity requirements. Exclusion of just one class of citizens from receiving a marriage license based upon the perceived ‘threat’ they pose to the marital institution is, at bottom, an arbitrary exclusion based upon the majority’s disapproval of the defined class. It is also insulting to same-sex couples, who are human beings capable of forming loving, committed, enduring relationships.”

The lawsuit also challenged both sections of the federal Defense of Marriage Act (DOMA). Judge Kern noted that U.S. v. Windsor has already settled the question of Section 3, defining spouse and marriage for federal benefit purposes. The Supreme Court ruled it unconstitutional. And he noted that, because the Supreme Court did not rule on the merits of the California Proposition 8 case, the constitutionality of state bans on same-sex marriage are still active.

The lead plaintiff couple, Sharon Baldwin and Mary Bishop, are both editors at the daily Tulsa World newspaper and have been together for 15 years. They had a commitment ceremony in Florida, but when they applied for a marriage license from the Tulsa city clerk, they were refused.

The other plaintiff couple, Susan Barton and Gay Phillips, has been a couple for 30 years, own a joint business helping homeless teens. They obtained a civil union license in Vermont in 2001, a marriage license in Canada in 2005, and a marriage license in California just days before voters there approved Proposition 8 in 2008.

Speed Read: Sochi worries escalate

Worries escalate for LGBT people heading to Sochi. Obama administration will recognize same-sex marriages from Utah. Virginia’s new governor keeps his promise on Day One. And more….

WORRIES ESCALATE FOR SOCHI: The U.S. State Department issued a travel advisory Saturday for citizens traveling to Russia for the Winter Olympics next month, including a specific warning that “vague guidance” from Russia about its new laws making “it a crime to promote LGBT equality in public” could be used to fine, deport, or jail foreign visitors. The LGBT warning was part of a longer advisory alerting Americans traveling to Sochi, Russia, for the Olympics that such highly publicized global events are an “attractive target” for terrorists and that several acts of terrorism have already been perpetrated in Russia in the past few weeks. But LGBT-related tensions seemed poised to escalate again over the weekend, when the head of the Russian Orthodox Church suggested the Russian people vote on whether to re-criminalize homosexuality. See full story.

U.S. WILL RECOGNIZE UTAH MARRIAGES: LGBT legal activists applauded an announcement by U.S. Attorney General Eric Holder Friday that the federal government will recognize marriage licenses issued to same-sex couples in Utah despite the fact that the U.S. Supreme Court put a stay on enforcement of the district court decision that allowed those couples to marry. In his January 10 press release, Holder noted that an “administrative step” by the Supreme Court “cast doubt” on the marriage licenses issued to same-sex couples in Utah, and that Utah officials have announced “the state will not recognize these marriages pending additional court action.” “I am confirming today that, for purposes of federal law,” said Holder, “these marriages will be recognized as lawful and considered eligible for all relevant federal benefits on the same terms as other same-sex marriages.”

ACLU WEIGHS IN ON UTAH: In a letter to Utah Attorney General Sean Reyes, Utah ACLU legal director John Mejia took issue with the state’s claim that the marriages of same-sex couples in that state are in “legal limbo” while on appeal to the Tenth Circuit U.S. Court of Appeals. “…there is no uncertainty here,” wrote Mejia. “In short, these marriages are valid and have vested the married couples with rights that the state and federal governments must recognize. Utah and the federal government should thus accord same-sex spouses who married in Utah all of the same protections and obligations that married couples of the opposite sex receive.”

INDIANA BEGINS CONSIDERATION: The Indiana House Judiciary Committee will take up consideration at 10 a.m. today of a bill seeking to amend the state constitution to ban marriage and any relationship “substantially similar” for same-sex couples. If the legislature passes the bill, House Joint Resolution 3, unchanged from its 2011 form, the proposed ban will go to voters this November. The Indianapolis Star predicted yesterday that there’s almost no chance of the bill being defeated in the 13-member committee that includes only four Democrats. A full House vote could come as early as Thursday.

McAULIFFE KEEPS PROMISE: Virginia’s new Democratic Governor Terry McAuliffe kept his promise to sign an executive order prohibiting discrimination against state employees based on sexual orientation and other categories. McAuliffe signed Executive Order No. 1 on Saturday, shortly after his inauguration.

GAY CAUCUS SPLIT: The seven-member openly LGBT members of the U.S. House split their votes on the January 10 vote on a Republican-sponsored bill to required the Department of Health and Human Services to notify an individual within two business days if the security of their personal information is breached under the Affordable Care Act health insurance exchanges. The Obama administration opposed the bill as unnecessary. But voting for the measure were Reps. David Cicilline, Sean Maloney, Mike Michaud, and Kyrsten Sinema.

 

 

 

DOJ says U.S. will recognize Utah marriages

LGBT legal activists applauded an announcement by U.S. Attorney General Eric Holder Friday that the federal government will recognize marriage licenses issued to same-sex couples in Utah despite the fact that the U.S. Supreme Court put a stay on enforcement of the district court decision that allowed those couples to marry.

Eric Holder
Eric Holder

LGBT legal activists applauded an announcement by U.S. Attorney General Eric Holder Friday that the federal government will recognize marriage licenses issued to same-sex couples in Utah despite the fact that the U.S. Supreme Court put a stay on enforcement of the district court decision that allowed those couples to marry.

“It was the right call,” said Mary Bonauto, Civil Rights Project Director of Gay & Lesbian Advocates & Defenders. “The U.S. is obliged to follow its laws and rules about treating married people alike and these marriages occurred in conformity with law.”

Shannon Minter, legal director for the National Center for Lesbian Rights, said the Holder decision was “extremely important for these couples and their families, and means they will have the full protection of all federal benefits.”

“The federal government has already stated that it will recognize legally married same-sex couples, regardless of whether their state of residence does so,” said Minter. Minter was referring to the announcements following the Supreme Court ruling in June in U.S. v. Windsor, that most federal agencies would recognize marriage licenses obtained by same-sex couples even if the licenses were obtained outside the couples’ states of residence.

In his January 10 press release, Attorney General Holder noted that an “administrative step” by the Supreme Court “cast doubt” on the marriage licenses issued to same-sex couples in Utah, adding that Utah Governor Gary Herbert has  announced “the state will not recognize these marriages pending additional court action.”

“I am confirming today that, for purposes of federal law, these marriages will be recognized as lawful and considered eligible for all relevant federal benefits on the same terms as other same-sex marriages,” said Holder. “These families should not be asked to endure uncertainty regarding their status as the litigation unfolds.”

“In the days ahead,” added Holder, “we will continue to coordinate across the federal government to ensure the timely provision of every federal benefit to which Utah couples and couples throughout the country are entitled – regardless of whether they are in same-sex or opposite-sex marriages.  And we will continue to provide additional information as soon as it becomes available.”

Camilla Taylor, head of Lambda Legal’s Marriage Project, said the Supreme Court’s order “merely stayed the further issuance of marriage licenses” and “did not in any way affect the validity of marriage licenses that previously were issued – these licenses were validly issued, and remain valid.”

“In fact, even the Utah Attorney General’s office itself admits that these marriages may well be valid,” said Taylor. “Consequently, DOJ reached the only conclusion it could, given Windsor – that it must respect these marriages for purposes of federal benefits, protections, rights, and responsibilities.”

Utah Attorney General Sean Reyes issued a statement January 8 saying that he was “unable to reach a legal conclusion as to the ultimate validity of marriage between persons of the same sex who completed their marriage ceremony in Utah between December 20, 2013, and January 6, 2014.” For more.

Sochi: Tensions and warnings escalate

The U.S. State Department issued a travel advisory Saturday for citizens traveling to Russia for the Winter Olympics next month, including a specific warning that “vague guidance” from Russia about its new laws making “it a crime to promote LGBT equality in public” could be used to fine, deport, or jail foreign visitors.

russia_flagThe U.S. State Department issued a travel advisory Saturday for citizens traveling to Russia for the Winter Olympics next month, including a specific warning that “vague guidance” from Russia about its new laws making “it a crime to promote LGBT equality in public” could be used to fine, deport, or jail foreign visitors.

The LGBT warning was part of a longer advisory alerting Americans traveling to Sochi, Russia, for the Olympics that such highly publicized global events are seen as an “attractive target” for terrorists and that several acts of terrorism have already been perpetrated in Russia in the past few weeks.

            The advisory, issued January 10, urges American citizens to “avoid large crowds in areas that lack enhanced security measures” and to use caution “in any areas where protests, demonstrations, or other public disturbances are taking place.”

“Demonstrations intended to be peaceful can develop quickly and unpredictably, sometimes turning violent,” notes the advisory.

The possibility of LGBT-related protests in Russia has been a concern since last June, when the Russian government approved its anti-gay laws. Although the Russian government says the laws are just focused on protecting children from “non-traditional sexual relations,” the legislation goes much further. Signed by President Vladimir Putin in June and July, they also prohibit any public displays of affection by same-sex couples and any public events related to LGBT people.

Early talk by activists of staging protests or wearing rainbow pins or waving rainbow flags at the Olympics was met with promises by the Russian government of tough enforcement of its laws. Putin and Russian officials have softened their tone in recent weeks, and earlier this month and said they would provide a designated area in a nearby village for protests. Then earlier this month, Putin signed an executive order that will require protesters to secure approval in advance.

But tensions seemed to be ready to escalate again over the weekend, when the head of the Russian Orthodox Church suggested the Russian people vote on whether to re-criminalize homosexuality.

The State Department advisory notes that foreign citizens could be fined as much as $3,100, jailed for 14 days, and deported for violating the laws.

“The law makes it a crime to promote LGBT equality in public, but lacks concrete legal definitions for key terms,” notes the advisory. “Russian authorities have indicated a broad interpretation of what constitutes ‘LGBT propaganda,’ and provided vague guidance as to which actions will be interpreted by authorities as ‘LGBT propaganda.’ For more.

Speed Read: Gay court nominee dropped

President Obama decided not to re-nominate an openly gay black man to a federal district court seat in Miami, indicating that Senator Marco Rubio had effectively blocked the nomination. Senator Mark Warner of Virginia lobbied President Obama to push the Department of Veterans Affairs to allow married same-sex couples benefits regardless of what state they live in. And more…

BENCH NOMINEE PULLED: President Obama did not re-nominate openly gay Judge William Thomas for a U.S. district court seat in Miami. He re-nominated 52 other candidates for federal district and circuit court seats on January 6, but he left off Thomas and two others whose nominations had stalled. On background, a White House official said simply that Senator Marco Rubio (R-Fla.) “made clear” his objection to Thomas’ nomination, “so the President chose not to renominate him.” The head of Miami’s largest association for black lawyers told the New York Times in September she thought Rubio’s block was based on Thomas being “an openly gay black male.” Thomas, whom a majority of the American Bar Association’s judicial assessment committee considered “well qualified,” was poised to become the first openly gay black man to serve on the federal bench.

TEXAS LAWSUITS ADVANCE: A federal judge in Texas rejected an effort Thursday by the state’s attorney general to consolidate three separate lawsuits challenging the state’s ban on allowing same-sex couples to marry, according to Lone Star Q, a Dallas-based LGBT news site. All three cases –two in Austin and one in San Antonio– are being pressed by couples represented by private attorneys. The San Antonio case will have a hearing February 12 on a motion for a preliminary injunction to stop the state from enforcing the ban.

WARNER PUSHES V.A. ON HOME LOAN REGS: One of Virginia’s U.S. senators, Democrat Mark Warner, sent a letter to President Obama January 3, noting that the Department of Veterans Affairs still has not updated its regulations concerning the eligibility of veterans for home loans to reflect the striking of the Defense of Marriage Act last June. The result, said Warner, is that a Navy veteran in Virginia who married his same-sex spouse in Maryland was denied the VA’s assistance in securing a home loan. Warner urged the president to direct the VA to stop enforcing a pre-DOMA regulation that requires a couple’s marriage license be valid in their state of residence. The White House declined comment on the letter and directed a reporter’s query to the VA.

VA DEFENDS POSITION: The Department of Veterans Affairs issued a statement January 8, saying that the VA “is working closely with the Department of Justice to develop guidance to process cases involving same-sex spousal benefits, and to implement necessary changes swiftly and smoothly in order to deliver the best services to all our nation’s Veterans.” The statement added that the department has “ceased enforcement of the definitions of “spouse” and “surviving spouse” in Title 38 to the extent that they limit Veterans’ benefits to couples of the opposite sex,” since September 4, “pursuant to the President’s direction.” But it also stated that Title 38, as it stands now, still requires that the department prove a marriage is valid “according to the law of the place where the parties resided at the time of the marriage or the law of the place where the parties resided when the right to benefits accrued.”

BOOKNOTE: Sean Strub’s memoir, due for formal release January 14, is a fascinating read. The focus is on AIDS and how the community and the government responded, but Body Counts: A Memoir of Politics, Sex, AIDS and Survival, is a riveting tale of a young man’s journey from Iowa City into the political morass of the U.S. Congress, coming out and diving into the gay community. It’s not a unique trajectory, but Strub is a uniquely dedicated activists and his recollections are intensely interesting and detailed, delivering the sort of behind-the-scenes glimpses and insights that other books over-promise.

Speed Read: Utah reiterates ban in force

The Utah attorney general and governor made clear today that the state has resumed enforcing its ban on same-sex marriage and called into question whether the 1,300 same-sex couples who have already married there since December 20 can be recognized by the state now. A ballot referendum to overturn a new California law to protect trans students has cleared one more hurdle on its way to the ballot. And more…

UTAH AG SAYS EXISTING SS MARRIAGES MAY NOT COUNT: The Utah Attorney General Sean Reyes issued a statement Wednesday afternoon saying that he was “unable to reach a legal conclusion as to the ultimate validity of marriage between persons of the same sex who completed their marriage ceremony in Utah between December 20, 2013, and January 6, 2014.” “That question remains unanswered and the answer will depend on the result of the appeal process,” continued Reyes. He said any same-sex couple applying for some state marriage benefit or recognition would be evaluated on a “case-by-case basis” by a “review team” established just for that purpose. Jon Davidson, legal director for Lambda Legal, said he believes the marriages are valid but that the U.S. Supreme Court’s stay means “there is no court order preventing what the AG is suggesting be done.” Full story.

NCLR JOINS THE UTAH FRAY: By coincidence, the National Center for Lesbian Rights filed papers Wednesday to join as co-counsel on appeal for the same-sex couples challenging Utah’s ban on same-sex couples marrying. NCLR has a number of marriage equality challenges under its belt. It will be working with the private law firm of Magleby & Greenwood in defending a U.S. District Court judge’s ruling December 20 that the Utah ban is unconstitutional. The first round of briefs in the appeal to the Tenth Circuit U.S. Court of Appeals is due January 27.

407 MAYORS BACK MARRIAGE EQUALITY: Not just anybody can join; only mayors. But the “Mayors for the Freedom to Marry” group now has 407 mayors from around the country, publicly support equal rights for same-sex couples in marriage. Houston Mayor Annise Parker is one of the six co-chairs. The states with the largest number of mayors is not surprising: California (54), New York (46), Florida (32), New Jersey (30), and Pennsylvania (23). The U.S. Conference of Mayors estimates there are 1,398 mayors of cities with populations greater than 30,000.

PARKER HINTS AT FUTURE: Speaking of Houston Mayor Annise Parker, the openly gay mayor of the nation’s fourth most populous city, said in a Houston Chronicle interview January 3 that, once her third and final term is up, she’ll probably start looking at a run for a “statewide executive position.” The Chronicle notes that the next gubernatorial race after Parker leaves the mayoral office is 2018.

POLL FINDS MOST ARE ‘INDEPENDENT’: A Gallup Poll released Wednesday found that most Americans (42 percent) consider themselves “political independents,” rather than part of one of the two major political parties. It is an historic high for independents, said Gallup, which has tracked political affiliation for 25 years. The other 56 percent are split 31 percent Democrats and 25 percent Republicans. Identification with both political parties has declined, but Gallup noted that the Republican percentage is at an all-time low, beginning its steady dive around 2004, when GOP operatives were waging an aggressive drive to ban same-sex marriage bans in states around the country. Gallup’s numbers were derived from a survey of 18,871 adults over the course of 13 surveys in 2013. Margin of error is plus or minus one percent.

ANTI-TRANS INITIATIVE NEARS CLEARANCE: The California Secretary of State Wednesday said a proposed ballot measure seeking to repeal a non-discrimination law enacted last August to ensure transgender students can use school facilities based on their gender identity has passed an initial threshold. The Secretary’s website states that a random signature validation indicates that proponents of the measure have likely turned in enough voter signatures to put the referendum on the ballot. Now, the Secretary’s office conducts a full check of every signature. That process is expected to be completed by February 24.

Utah AG says state may not recognize 1,300 marriages of same-sex couples

The Utah Attorney General Sean Reyes issued a statement Wednesday afternoon saying that he was “unable to reach a legal conclusion as to the ultimate validity of marriage between persons of the same sex who completed their marriage ceremony in Utah between December 20, 2013, and January 6, 2014.”

“That question remains unanswered and the answer will depend on the result of the appeal process,” continued Reyes. He said any same-sex couple applying for some state marriage benefit or recognition would be evaluated on a “case-by-case basis” by a “review team” established just for that purpose.

utah_flagThe Utah Attorney General Sean Reyes issued a statement Wednesday afternoon saying that he was “unable to reach a legal conclusion as to the ultimate validity of marriage between persons of the same sex who completed their marriage ceremony in Utah between December 20, 2013, and January 6, 2014.”

“That question remains unanswered and the answer will depend on the result of the appeal process,” continued Reyes. He said any same-sex couple applying for some state marriage benefit or recognition would be evaluated on a “case-by-case basis” by a “review team” established just for that purpose.

Reyes stated that the U.S. Supreme Court’s grant of a stay against the federal district court decision that struck down Utah’s ban on marriage for same-sex couples “means that Utah’s laws defining marriage…are again in effect….”

The attorney general’s statement acknowledges that 1,300 same-sex couples have married in the two-and-a-half weeks since U.S. District Court Judge Robert Shelby issued his decision and immediately enjoined the state from enforcing its ban. The U.S. Supreme Court on Monday granted Utah’s stay against Shelby’s order.

“There is no reason for the state to destabilize these families,” said Shannon Minter, legal director for the National Center for Lesbian Rights, which just Wednesday sought designation from the Tenth Circuit U.S. Court of Appeals to serve as co-counsel for same-sex couples on the state’s appeal of Shelby’s decision in Kitchen v. Herbert. “These couples are legally married, the state has been providing them with marital rights and protections, and it should continue to do so. There is no need for this kind of case-by-case review, and putting married couples and their families through this process is humiliating and will subject them to needless uncertainty and legal vulnerability.”

Jon Davidson, legal director for Lambda Legal which has a number of marriage equality lawsuits in the works, including one in the Ninth Circuit, said he believes “couples who married prior to the stay remain married.”

“They validly married pursuant to the law at the time they married, given that a court order allowed them to marry then,” said Davidson. But, he added, with the injunction against enforcement of the ban now stayed by the U.S. Supreme Court, “there is no court order preventing what the AG is suggesting be done.”

“Any couple whose marriage is denied recognition by the state would have a claim that refusing to honor their marriage violates their constitutional rights, however, and I believe it would be a strong claim, given the vested property rights and reliance interest that couples who lawfully marry in a state have that their marriage will be respected,” said Davidson. “Accordingly, if the state does refuse to honor their marriage, it may be facing additional litigation.”

Human Rights Campaign President Chad Griffin said Attorney General Reyes’ action “harms hundreds of Utah families and denies them the respect and basic protections that they deserve as legally married couples.”

A private law firm, Magleby & Greenwood, is representing same-sex couples who initiated the Kitchen v. Herbert lawsuit in Utah.

Speed Read: Robert Gates disses Obama

New Mexico’s Republican governor won’t support a push to approve a state constitutional ban on same-sex marriage. Former Defense Secretary Robert Gates disses President Obama over Don’t Ask Don’t Tell repeal. And more…

NEW MEXICO GOV SAYS NO TO BAN: New Mexico’s Republican Governor Susana Martinez told reporters Tuesday that she will not support an effort to pass a state constitutional amendment to ban same-sex couples from marrying. Martinez made her remarks during a press conference around the release of her budget for the coming year. New Mexico Supreme Court ruled unanimously in December that interpreting existing state laws to exclude same-sex couples from marriage violates the state’s constitution. Soon thereafter, State Senator Bill Sharer introduced a bill to put a measure on the ballot seeking a constitutional amendment to ban same-sex couples from marrying. Martinez said Tuesday that the state supreme court decision is “the law of the land.”

GATES BOOK FAULTS OBAMA ON DADT: Former Defense Secretary Bob Gates reportedly criticizes President Obama for his handling of the repeal of “Don’t Ask, Don’t Tell.” Washington Post political reporter Bob Woodward, in reviewing Gates’ new memoir, Duty: Memoirs of a Secretary of War, says Gates felt “blindsided” by Obama’s timing. Woodward quotes Gates as saying, “I felt that agreements with the Obama White House were good for only as long as they were politically convenient.” Los Angeles Times reviewer David Cloud quotes Gates as saying Obama lacked passion, except on DADT. “The only military matter, apart from leaks, about which I ever sensed deep passion on his part was ‘Don’t Ask, Don’t Tell,’ ” Cloud quoted Gates as writing.

NC RACE ACCELERATING: North Carolina Governor Pat McCrory announced Monday that the special election to fill a U.S. House seat vacated Monday by incumbent Democrat Mel Watt will follow the existing schedule. Marcus Brandon, an openly gay candidate for that seat representing Charlotte and the I-85 corridor, is one of six Democrats running in the May primary. Brandon’s bid got a boost this month from a national magazine for state and local officials. Governing magazine listed Brandon as one of “State Legislators to Watch in 2014.” The Raleigh News and Observer says Brandon leads in fundraising, thus far, a lead they attribute to the endorsement of the Gay & Lesbian Victory Fund.

CAMPAIGN COFFERS: How much has Marcus Brandon, running for a U.S. House seat from North Carolina, raised? Federal Election Commission records through September 30 (the latest available) show $143,560. By contrast, two other first-time openly gay candidates for Congress –running in New York and California—have raised much more. Sean Eldridge, running for a U.S. House seat from New York, has raised more than $1.2 million for his campaign, according to Federal Election Commission records. Carl DeMaio, running for a U.S. House seat representing San Diego, has raised $816,357.

HRC BACKS VA AG SUCCESSOR: The Human Rights Campaign announced its endorsement January 6 of a Democratic candidate running to fill the Virginia State Senate seat vacated by newly inaugurated Virginia Attorney General Mark Herring. HRC endorsed Jennifer Wexton in the January 21 special election, saying she has shown “dedication to the LGBT community and commitment to fairness for all Virginia families.” Wexton supports marriage equality and non-discrimination in the workplace. Her Republican opponent, John Whitbeck, does not.

PRO-GAY ROMNEY ADVISER RUNNING: A former advisor to then Massachusetts Governor Mitt Romney announced this month that he is running for the U.S. House seat from Massachusetts currently held by Democrat Rep. William Keating. Unlike Romney, candidate John Chapman says he supports marriage equality.

ORANGE COUNTY INCLUDES: The Vietnamese American Federation of Southern California voted January 4 to allow an LGBT contingent to participate in this year’s annual parade celebrating the lunar new year. The organizers barred an LGBT contingent in the past.

Speed Read: New lawsuit filed in Arizona

While the U.S. Supreme Court put a halt to same-sex marriages in Utah for a few months, another lawsuit has been filed to attack the ban on same-sex marriages in Arizona. Openly gay Maine gubernatorial candidate Mike Michaud picked up two big new endorsements. Pittsburgh has something to celebrate. And more….

UTAH BAN BACK IN FORCE: At leave five U.S. Supreme Court justices agreed yesterday to stay a federal district court’s December 20 order that Utah stop enforcing its ban on marriage for same-sex couples. Although the marriage licenses obtained by more than 900 same-sex couples between December 20 and yesterday remain intact, no further licenses will be issued until after a final appeal is resolved. Utah is due to file its first brief in its appeal to the Tenth Circuit U.S. Court of Appeals January 27, and the argument date is likely to be scheduled sometime between March 17 and 21. Whatever the result, the decision will likely be appealed by the losing side, first to the full Tenth Circuit and then to the U.S. Supreme Court. Herbert v. Kitchen is one of many lawsuits winding their way through the federal court system to the U.S. Supreme Court seeking a ruling on whether state bans of same-sex marriage are constitutional. Read full story.
ANOTHER ARIZONA SUIT: Four same-sex couples in Arizona filed a class action lawsuit in federal court Monday, seeking to declare that state’s ban on same-sex marriage unconstitutional. There is already a class action suit pending in federal court in Phoenix, seeking equal benefits for gay state employees and their spouses. The new marriage lawsuit is now one of 33 lawsuits in 23 states seeking to strike down bans on marriage for same-sex couples.
MICHAUD PICKS UP MORE SUPPORT: Maine Democratic gubernatorial candidate Mike Michaud picked up two more important endorsements yesterday. The Gay & Lesbian Victory Fun announced it was endorsing openly gay U.S. Rep. Michaud because he is “uniquely qualified” to be governor and is a “strong supporter of LGBT issues.” Long-time openly gay Maine elected official Dale McCormick sent out a fundraising solicitation, saying Michaud has been “been in the trenches fighting for issues that matter to LGBT people and progressive communities for years.” McCormick served in the Maine State Senate with Michaud.
PITTSBURGH PROMOTION: Pittsburgh City Council voted 7 to 2 Monday to make its first openly gay elected official its first openly gay City Council president. Bruce Kraus, 59, who has been on the nine-member Council since 2008, sponsored a bill last year to require city contractors to provide benefits to the domestic partners of their gay employees.
CHENEY DROPPING OUT: Vice President Dick Cheney’s daughter Liz announced Monday she was dropping out of the race for the Republican nomination for the U.S. Senate seat from Wyoming, currently held by Republican Mike Enzi. Liz Cheney issued a statement, saying, “Serious health issues have recently arisen in our family, and under the circumstances, I have decided to discontinue my campaign.” NBC News reported the health issues concern her children. The Casper Star Tribune reported that one of her five children has diabetes. Cheney, an opponent of same-sex marriage, is the sister of openly gay Republican activist Mary Cheney, who is married to a woman.
DEMOCRATIC VETERAN DIES: Former executive director of the National Association of Gay and Lesbian Democratic Clubs –precursor to the now defunct national Stonewall Democrats– Tom Chorlton died Sunday, January 5, following a long struggle with leukemia. According to a statement released by friends, Chorlton, 67, was living in Charleston, SC, where he was professor of American History and LGBT Studies at the College of Charleston.

Utah ban back in force for at least three months or more on appeal

The U.S. Supreme Court order granting a stay of the December 20 district court order that prohibited Utah from enforcing its ban on same-sex marriage allows Utah to resume enforcing the ban “pending final disposition” of the appeal of that decision to the Tenth Circuit. Given the Tenth Circuit’s briefing schedule for the appeal, that means the ban will be back in force for at least three months and likely longer, given anticipated appeals of whatever the Tenth Circuit decides.

The full U.S. Supreme Court has granted Utah a stay on a district court decision that has allowed same-sex couples to marry there since December 20.

The court issued its stay this morning, apparently after Justice Sonia Sotomayor referred the matter to the full court.  Sotomayor is the justice designated to administer requests for emergency stays for the Tenth Circuit U.S. Court of Appeals, but had the option to ask the full court to weigh in on the request.

It takes at least five justices to grant such a stay. The order issued today does not indicate that any justice was in dissent. It states simply that the stay is granted and that the December 20 order by U.S. District Court that prohibited Utah from enforcing its ban is “stayed pending final disposition” of the appeal of that decision to the Tenth Circuit. Given the Tenth Circuit’s briefing schedule for the appeal, that means the ban will be in force for at least three months and likely longer, given anticipated appeals of whatever the Tenth Circuit decides.

Tomsic and James Magleby, with the private law firm of Magleby & Greenwood which is representing same-sex couples in the case, issued a statement following the Supreme Court’s announcement, noting that it is “not unusual” for the court to stay a decision declaring a state law unconstitutional pending appeal and has “no bearing on who will win on appeal.”

LGBT legal activists agreed.

“No one should draw any negative inferences about where the Court is leaning. This is an unprecedented situation,” said Shannon Minter, legal director for the National Center for Lesbian Rights, which has several marriage equality lawsuits pending now, too. “Never before has a federal court struck down a state marriage law and then declined to stay it, and never before has a Court of Appeals also declined to issue a stay.  For those reasons, the chances that the Supreme Court would issue a stay until the appeal is resolved were always quite high, so the real news here is that so many marriages were able to take place. And it is significant that the Court did not rush to act. There is nothing unusual about the issuance of a stay when a federal court strikes down a state law on federal grounds.”

Bottom line,” said Minter, “[is] the prospects for this case still look very bright.  And there will never be any going back in Utah.”

The challenge to Utah’s ban (the state constitutional Amendment 3 and related statutes), Kitchen v. Herbert, now proceeds as Herbert v. Kitchen on an expedited schedule before the Tenth Circuit U.S. Court of Appeals. The next briefing date, according to attorney Peggy Tomsic who is part of the team representing same-sex couples, is January 27. The last brief due before oral argument is February 25. The court date has not yet been announced but the next argument session after that deadline is March 17-21.

“One important thing for people to understand is that the marriages that same-sex couples have entered in Utah are unaffected by the stay order,” said Jon Davidson, legal director for Lambda Legal, which also has marriage equality cases pending. “Those marriages remain valid unless courts in the future rule otherwise, and there are good reasons to believe that marriages entered in good faith pursuant to a court order remain valid even if that court order is subsequently reverse.”

The Deseret News reports that more than 900 same-sex couples married since December 20, when District Judge Robert Shelby, an Obama appointee, issued a 53-page opinion, striking down Utah’s ban violates the U.S. Constitutional guarantees of equal protection and due process. Shelby immediately enjoined the state from enforcing its ban, then denied the state’s request for a stay of his decision pending appeal. The state took its request for an emergency stay to the Tenth Circuit, where it also filed an appeal of Shelby’s decision. Two judges of the Tenth Circuit –one an appointee of President George W. Bush, the other an appointee of President Obama– denied the request for a stay on December 24 but put the appeal on an expedited schedule.

“This stay is obviously disappointing for the families in Utah who need the protection of marriage and now have to wait to get married until the appeal is over,” said plaintiffs’ attorney Magleby. “Every day that goes by, same-sex couples and their children are being harmed by not being able to marry and be treated equally.”

Full U.S. Supreme Court grants Utah stay

The Supreme Court this morning granted Utah a stay of a decision that has allowed same-sex couples to marry there since December 20.

The full U.S. Supreme Court has granted Utah a stay on a district court decision that has allowed same-sex couples to marry there since December 20.

The court issued its stay this morning.

The challenge to Utah’s ban on same-sex marriage now proceeds on an expedited schedule before the Tenth Circuit U.S. Court of Appeals.