Fed judge says Prop 8 videos should be released

On the same day a Broadway play is to premiere to highlight the transcripts from the landmark Proposition 8 trial, a federal judge has ordered release of videotapes of the trial.

James Ware

On the same day a Broadway play is to premiere to highlight the transcripts from the landmark Proposition 8 trial, a federal judge has ordered release of videotapes of the trial.

The September 19 order from U.S. District Court Chief Judge James Ware enables public release of the videotapes beginning September 30, unless there is stay of the order from a higher court.

But proponents of Proposition 8 have appealed every other conflict they have lost and are likely to appeal this one, too, meaning the videotapes may not necessarily be available to the public on September 30.

Attorneys for two same-sex couples challenging California’s same-sex marriage ban filed a motion seeking release of the videotapes publicly, even though they were originally created for use by then District Court Chief Judge Vaughn Walker. Walker used the videotapes in preparing his decision, in August 2010, declaring Proposition 8 in violation of the U.S. Constitution. But the U.S. Supreme Court had prohibited any public broadcast of the trial proceedings outside the San Francisco federal courthouse.

Judge Ware, in acting on the plaintiff couples’ request to release the videotapes, asked attorneys during an August 29 court hearing whether the videotapes could be released now that the trial is over. And, importantly, he asked whether the videotapes should be considered part of the judicial record of the trial.

In his ruling September 19, Ware said the videotapes are part of the official record of the trial and that, “once an item is placed in the record of judicial proceedings, there must be compelling reasons for keeping that item secret.” He said “no compelling reasons exist” to continue barring public release of the videotapes.

Ware said the Supreme Court’s order in January 2010, barring broadcast of the trial proceeding, was limited to a narrow procedural question implicating new rules for the 9th Circuit’s pilot program of allowing some trials to be broadcast. The Supreme Court’s order barring broadcast then, said Ware, “does not provide ‘compelling reasons’ to overcome the strong presumption in favor of public access” to the videorecording “now that the trial is over and the digital recording has entered the court record.”

Ware completely rejected Yes on 8 attorneys’ arguments that public availability of the videotapes would have a chilling effect on the free speech of potential witnesses opposed to same-sex marriage.

“[T]he Court finds that this contention is mere ‘unsupported hypothesis or conjecture,’ which may not be used by the Court as a basis for overcoming the strong presumption in favor of access to court records.”

North Carolina latest state to put marriage on ballot

The North Carolina legislature approved a ballot question this week that seeks to amend the state constitution to ban marriage of same-sex couples.

The North Carolina legislature approved a ballot question this week that seeks to amend the state constitution to ban marriage of same-sex couples. The language of the proposed amendment—which could also ban civil unions and domestic partnerships—would make the measure “among the most restrictive in the country,” according to prominent LGBT advocacy groups.

North Carolina already bans marriage of same-sex couples by statute, but supporters of the ballot measure say a constitutional amendment is needed so that the courts cannot overturn the ban.

The House passed the bill 75-42 on Monday, September 12, with ten House Democrats joining 65 Republicans to give the measure three more than the 72 needed for passage.

The party-line Senate vote came a day later, with 30 Republicans giving it the minimum needed for passage, versus 16 Democrats.

The proposed amendment will now appear on the May 2012 primary ballot, not on the November 2012 ballot as sought in an earlier version of the bill.

House Speaker Thom Tillis (R-Mecklenburg) told a press conference that the date change was made to “remove politics” from the issue. Some Democrats had accused Republicans of using the bill to draw conservative voters to the polls in November.

North Carolina is expected to be a key state for President Barack Obama in next year’s presidential elections. He won it by fewer than 14,000 votes in 2008. North Carolina is hosting the Democratic National Convention in September 2012.

But the major contested primaries in May will be the Republican ones for president and governor, meaning the spring turnout will likely be largely Republican.

Marc Solomon, National Campaign Director of Freedom to Marry, said in a statement that supporters of the bill were “politically scheming” to put the measure “on a low-turnout Republican presidential primary ballot.” He called the move “a sham designed to circumvent the majority of North Carolina voters.”

A poll released September 7 by Public Policy Polling found 55 percent of state voters polled would vote against the amendment, versus 30 percent for it. Among Democrats, the ratio was 63 to 23 percent against it, among independents, 52 to 35 percent, and among Republicans, 47 to 37 percent.

LGBT advocates fear the proposed amendment could also ban domestic partnerships and civil unions. The language states that “marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this state.”

While 29 states have constitutional bans on marriage for same-sex couples, only 18 also ban other forms of relationship recognition.

But Sarah Warbelow, state legislative director for the Human Rights Campaign, said that, while the language of the North Carolina bill will likely be interpreted to prohibit civil unions and domestic partnerships, courts in the other 18 states “have been all over the map” in how they’ve interpreted the similar language of their bans.

In Michigan, for example, the language has been interpreted so broadly as to prohibit public universities from offering health benefits to the same-sex partners of employees.

But in Ohio, cities may still have domestic partner registries.

In North Carolina, several jurisdictions, including the cities of Asheville, Carrboro, Chapel Hill, and Durham, and the counties of Durham, Orange, and Mecklenburg (the state’s largest), currently offer benefits to the same-sex partners of employees.

Warbelow said the proposed amendment “definitely puts those benefits at risk.”

The North Carolina amendment also states that it “does not prohibit a private party from entering into contracts with another private party” and will not prohibit courts from adjudicating such contracts.

Warbelow said the language was likely included to “assuage the fears” of businesses that they wouldn’t be able to offer benefits to employee’s domestic partners if the amendment passes.

But she said that, even without the contract language, private parties would still be able to enter into contracts under the law, and private businesses would be able to offer domestic partner benefits.

She said that, even in the 18 states with the most restrictive amendments, no private business has been prevented from offering such benefits.

Including the contract language, she said, may also help proponents “confuse the public about what potentially is available to same-sex couples.” Many conservatives, she said, like to suggest that same-sex couples can contract for everything they need, and do not need further relationship recognition—even though that is not true.

Several other states are also currently considering ballot measures related to marriage for same-sex couples.

In Minnesota, the legislature has also approved a ballot question for November 2012 that seeks to ban marriage of same-sex couples under the state constitution.

And in Indiana, a proposed constitutional ban on marriage or other relationship recognition for same-sex couples passed the legislature earlier this year. If it passes again in 2013 or 2014, it will be on the ballot in 2014.

Both states already have statutory bans on marriage for same-sex couples.

In Maine, however, LGBT advocates are taking steps to place a citizen’s initiative on the November 2012 ballot, asking voters to approve a law giving same-sex couples the right to marry. LGBT advocates in California and Oregon are also considering similar measures.

But a similar effort in Colorado was dropped this week by the college student who had launched it. He told Out Front Colorado that he was unable to get sufficient financial support for the initiative. The leading LGBT rights group in the state, One Colorado, had never supported the measure, saying that while they applauded the intention, they were focused on legislative solutions.

GOP abandons ‘transparency’ vow; blocks videotape of DOMA proceeding

Remember last year’s Pledge to America from the Republican Party? It promised three times to make government “more transparent.”

Well, apparently, that pledge had a hidden expiration date.

John Boehner

Remember last year’s Pledge to America from the Republican Party? It promised three times to make government “more transparent.”

Well, apparently, that pledge had a hidden expiration date. Attorneys for Republican House Speaker John Boehner’s Bipartisan Legal Advisory Group (BLAG) informed a federal judge September 9 that BLAG “prefers not to participate” and “declines to consent” to videotaping of courtroom proceedings of its attorneys defending the Defense of Marriage Act (DOMA) in court.

The case in question is Golinski v. OPM, in which Karen Golinski, an employee of the 9th Circuit federal appeals court, is suing to obtain health coverage for her spouse. The federal court provides such benefits to the spouses of straight employees and was prepared to provide them to Golinski. But the U.S. Office of Personnel Management, headed by openly gay appointee John Berry, instructed the court’s insurance company, Blue Cross/Blue Shield, to deny Golinski’s claim. OPM reasoned, at the time, that DOMA prevented it from providing the benefits to Golinski’s same-sex spouse.

Since then, of course, the Obama administration announced that it believes the federal law banning any recognition of legitimate marriages between same-sex partners is unconstitutional. That prompted Speaker Boehner to exercise the House’s option to defend the law itself. He hired an outside attorney—former Solicitor General Paul Clement—to do so and BLAG became an “intervenor-defendant” in the case. That means that, while OPM is technically the primary defendant, the court is allowing the BLAG attorney to argue in defense of the law.

But it was House General Counsel Kerry Kircher who submitted the two-sentence response to the court request to videotape the proceedings and make the available on the court’s website. Kircher offered no explanation for his response. And even though other parties to the litigation agreed to the videotaping—including the U.S. Department of Justice—U.S. District Court Judge Jeffrey White said the recording would not be made.

Tara Borelli, an attorney for Lambda Legal Defense that is representing an employee challenging DOMA, called the BLAG response “outrageous.”

“It is outrageous that the leadership of the U.S. House of Representatives wants to shroud in secrecy their use of tax dollars to try to defend discrimination,” Borelli said. “…”We believe the harm DOMA causes daily deserves an open and public hearing, as do the arguments put forth by those using taxpayer dollars to try to perpetuate this discrimination. It is telling that the proponents of discrimination are unwilling to subject their arguments to a full and public airing.”

There are two issues in the case when it is taken up in a federal district courtroom in San Francisco October 21. First, there is BLAG’s motion to have Golinski’s lawsuit dismissed. Second, there’s the motion by Lambda to have the judge declare, on summary judgment, that Golinski should be able to receive the benefits.

OPM, represented by the U.S. Department of Justice, has argued that the court should not dismiss Golinski’s lawsuit and that it believes DOMA is unconstitutional.

DOMA, enacted in 1996, prohibits any federal entity from recognizing a marriage license granted to a same-sex couple.

Golinski v. OPM is one of about a dozen federal lawsuits challenging DOMA in whole or in part.

Kircher’s refusal to consent to videotaping of the court proceedings contradicts one of many pledges the Republican Party included in its Pledge to America, released in September 2010. The pledge expressed the party’s commitment to “fight to ensure transparency and accountability in Congress and throughout government.”

“We pledge to make government more transparent in its actions, careful in its stewardship, and honest in its dealings,” stated the Pledge, in another section. And, on a third occasion, the Pledge promised “make Congress more open and transparent.”

New guidelines for same-sex parenting and custody

Many contentious lawsuits involving the rights of LGBT people have occurred when a biological parent uses anti-LGBT laws to try and deny a child’s non-biological parent custody or visitation. Several LGBT organizations have published a revised set of standards aimed at stopping such behavior.

Mary Bonauto

Some of the most contentious lawsuits involving the rights of LGBT people have occurred when the biological parent of a child uses anti-LGBT laws to try and deny the child’s non-biological parent custody or visitation. But several LGBT legal organizations have published a revised set of standards aimed at stopping such behavior, and they’re hoping parents and attorneys will take a pledge to abide by them.

The publication is “Protecting Families: Standards for LGBT Families,” produced by Gay and Lesbian Advocates and Defenders (GLAD), the National Center for Lesbian Rights (NCLR), and NCLR’s National Family Law Advisory Council. It encourages lawyers to support and respect LGBT parents even when legal rights do not, and advises parents and lawyers to honor children’s relationships with both parents, seek custody resolutions that minimize conflict, and use litigation only as a last resort.

Mary Bonauto, the director of GLAD’s Civil Rights Project, authored the original version of the standards in 1999. She said the intent of the document is to urge same-sex parents to use whatever parental protections are available in their states, “for the sake of your children.”

These protections may assist with issues such as medical decision-making, but may also help maintain both parents’ relationships with the children when the couple breaks up.

The revised document is updated to reflect new laws in several states recognizing the relationships of same-sex couples, whether through marriage, civil unions, or domestic partnerships. But it cautions that same-sex parents should not rely on such laws to protect their parental relationships with their children.

“[W]e still have a huge architecture of discrimination” against same-sex relationships,” said Bonauto. Many states do not recognize them at all or may not treat them in the same way as opposite-sex relationships. This may jeopardize the relationships of non-biological, non-adoptive parents to their children.

Even in Massachusetts, the first state to allow same-sex couples to marry, courts may not look favorably upon a non-biological parent who has not also done a “second-parent adoption” of a spouse’s biological child, she said.

“There are still very parent-specific protections you should try to avail yourself of,” said Bonauto. Some protections may be available even in states that have constitutional bans against marriage for same-sex couples.

If parents do break up, she said, going to court is damaging financially and emotionally. And it can destroy the couple’s ability to work together as parents.

There have been a number of recent cases across the country in which a biological or adoptive parent tries to claim the other parent has no parental rights. Best known among them is the case of Janet Jenkins and Lisa Miller, which has grabbed national headlines. Miller, the biological mother, asked courts in both Virginia and Vermont to deny Jenkins visitation and custody, and has taken issues to the U.S. Supreme Court five times, without success each time.

Miller was eventually ruled in contempt of court for defying a Vermont court order that she allow Jenkins visitation. The court then granted legal custody to Jenkins. But Miller went hiding with the girl at the end of 2009, and a man accused of helping her leave the U.S. was arraigned in a federal court in April.

Many similar cases exist, and the outcomes have been mixed.

The Delaware Supreme Court issued a ruling in March upholding the right of a woman to be identified as a de facto parent of a child she had been raising with her former same-sex partner—a child the partner adopted but that the woman herself did not.

The Nebraska Supreme Court in August ruled that a non-biological mom has a right, under the doctrine of in loco parentis—which recognizes a person who acts as a parent—to a custody and visitation hearing regarding the child she and her former partner were raising together.

But the North Carolina Supreme Court in December 2010 voided a lesbian mother’s second-parent adoption. The majority on the court said state statutes permit adoptions only if the existing parent gives up all parental rights or is married to the person seeking to adopt, as in the case of a stepparent.

Other cases with biological mothers trying to deny parental rights to non-biological mothers have reached the appellate or state supreme court levels in the past few years in states including Arizona, Arkansas, California, Florida, Indiana, Kentucky, Louisiana, Minnesota, Missouri, Montana, New Mexico, New York, Ohio, Oregon, Texas, Utah, and Wisconsin—again with mixed results.

In several of these cases, notably Miller v. Jenkins, attorneys from conservative legal organizations such as Liberty Counsel and the Alliance Defense Fund have represented the biological mothers.

“They are making an industry of it,” Bonauto noted of the groups. But many individual, private attorneys, including ones in the LGBT community, are also representing biological mothers against non-biological mothers in such cases.

GLAD will soon be launching an online pledge where attorneys can promise not to take these cases and to endorse the revised standards. Parents, too, can pledge to uphold them.

New Jersey attorney William Singer, a member of the Family Law Advisory Council, said he hopes attorneys will discuss the standards with parents, not just at the time of breakups, but also at the time of family creation, “to try and impress upon both parents why it’s so important to maintain continuity of relationships for their children.”

The standards are available via GLAD’s Web site.

California court seems torn over Prop 8 standing issue

Proponents of Proposition 8 argued Tuesday that Yes on 8 must be granted standing to defend the California same-sex marriage ban in federal court; opponents argued Yes on 8 must be denied standing.

Tani Cantil-Sakauye

Proponents of Proposition 8 argued Tuesday that Yes on 8 must be granted standing to defend the California same-sex marriage ban in federal court to protect the power of the people to amend their constitution; opponents argued Yes on 8 must be denied standing in order to protect the power of the people to elected state officers, in accordance with the state constitution.

The seven-member California Supreme Court seemed troubled, in much the same way a federal appeals panel was troubled last January, to decide which power should prevail. And some LGBT activists were troubled by that.

The three-judge panel of the 9th Circuit U.S. Court of Appeals sent the difficult question about legal standing to the California Supreme Court. Until they receive the state court’s opinion on the matter, the federal appeals panel has postponed ruling on the legal authority of Yes on 8 to appeal a federal district court decision that struck down Proposition 8. And unless both courts agree that Yes on 8 does have standing, the federal appeals panel cannot rule on whether that federal district court ruling will stand.

The complicated question, in simple form, is this: If state legal officers, elected by the people, decide not to appeal a federal district court decision, can some other entity represent the people in defending a law approved by a majority of voters?

Ted Olson, the famed attorney representing the interests of same-sex couples in the case, Perry v. Brown (formerly Perry v. Schwarzenegger), argued no, “there is nothing” in the California constitution or laws that permit Yes on 8 to appeal when the government decides not to.

Justice Joyce Kennard told Olson she thinks that agreeing with his position would require the court to “nullify” the people’s power to pass initiatives, leaving the people “unrepresented.”

But Olson said that to grant Yes on 8 standing to appeal a decision that the state elected officers decided not to appeal amounts to the court amending the state constitution.

“Is your position that when the governor and the state attorney general don’t defend an initiative, then no one can defend it?” asked Justice Ming Chin.

Olson said yes; the constitution does not give anyone else authority to defend state law, including initiatives, in federal court.

“The proponents,” said Olson, “have taken no oath to represent the people.”

“Haven’t [Yes on 8 proponents] put in a substantial amount more time and effort?” asked Justice Goodwin Liu, who was just recently sworn into the court. “They are the ones most clearly invested” in the initiative.

But Olson said that “spending a lot of money” on an initiative should not grant proponents of an initiative the legal right to defend it.

But, like Kennard, many members of the California Supreme Court seemed worried about cutting into the right of the majority to defend an initiative. The 9th Circuit panel, in hearing arguments on the issue last December, suggested it amounted to giving the governor and/or attorney general a “veto” power over initiatives –a veto power that is not provided by the state constitution.

The 9th Circuit panel specifically asked the California high court to determine whether Yes on 8 proponents “possess either a particularized interest [specific to Yes on 8] in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity…when the public officials charged with that duty refuse to do so.”

Charles Cooper, attorney for Yes on 8, said the proponents have a “direct interest” in the case—in other words “both.” The “particularized” interest, he said, was to put initiatives on the ballot.

“There has never been a single case [in California],” said Cooper, “…in which the official proponents [of an initiative] have not been allowed to intervene or there’s been any objection to their being named as real parties in interest.”

Asked to identify some “injury” that would result if Yes on 8 was not allowed to appeal the decision striking down Proposition 8, Cooper said the injury would occur if the lower court had erred in declaring the initiative unconstitutional and no party was allowed to defend the initiative.

Chief Justice Tani Gorre Cantil-Sakauye suggested that the court would have to let Yes on 8 intervene if the coalition had taken the same position as the state. But the question here, she said, is whether the court must let Yes on 8 appeal when it takes a position different from the people’s elected state officials.

Then California Governor Arnold Schwarzenegger and Attorney General Jerry Brown declined to appeal an August 2010 decision from U.S. District Court Chief Judge Vaughn Walker. Walker ruled that Proposition 8 violated the U.S. Constitution’s guarantee of equal protection.

Cooper said the court should recognize Yes on 8’s legal standing to defend the initiative because to do so would “protect and defend their fundamental right” to propose and approve initiatives. He also argued that the state attorney general doesn’t have authority to refuse to represent state’s interest in validity of initiative.

Shannon Minter, legal director for the National Center for Lesbian Rights, said he was disappointed that “too many of the court’s questions” failed to address specific legal questions “but rather seemed to glorify the initiative process in the abstract and to abdicate a searching examination of the California Constitution in favor of emotional appeals to ‘the people’.”

“The initiative process is already frequently misused to target vulnerable groups, due in part to the Court’s past reluctance to enforce any meaningful limits on the process, even when those limits are mandated by the California Constitution,” said Minter. “I sincerely hope the Court does not compound that mistake by now giving initiative proponents an unprecedented new power to step outside of their proper legislative role and usurp the power that our Constitution gives only to elected state officials in the executive branch.”

Jenny Pizer, legal scholar at the Williams Institute, said she believes the court seems inclined to “give a couple members of the Ninth Circuit panel sufficient substance to find that the proponents have standing, and that the panel can reach the merits.”

Jon Davidson, legal director for Lambda Legal Defense, said his group hopes the court “will ultimately decide that small groups of unelected individuals who are answerable to no one should not be able to act on behalf of the state.”

The same-sex marriage controversy has been before the state supreme court four times now, most notably in May 2008. That’s when a 4 to 3 majority ruled that the state constitution prohibited the state from establishing a “statutory scheme” in which both opposite sex and same-sex couples are legally recognized relationships, but only opposite sex couples are designated as married. Three of the seven justices at the time—Justices Marvin Baxter, Ming Chin, and Carol Corrigan—dissented. Baxter’s dissent, which Chin joined, said such a “profound change” needed to be made by either the people or their elected representatives, not the courts.

Hearing Monday on release of Prop 8 videotapes

Even before the August 29 hearing takes place on whether to release to the public videotapes of the landmark trial challenging California’s same-sex marriage ban–Proposition 8–there has already been decision to prohibit the recording of the hearing on whether to release the trial videotapes.

Ted Olson
Ted Olson
First, there was a federal court trial. Then, there was a hearing on whether to sequester videotapes of the trial; Monday, there will be a hearing on whether to release the videotapes of the trial.

But even before the August 29 hearing takes place on whether to release to the public videotapes of the landmark trial challenging California’s same-sex marriage ban—Proposition 8—there has already been decision to prohibit the recording of the hearing on whether to release the trial videotapes.

Such has been the Proposition 8 trial—Perry v. Brown (formerly known as Perry v. Schwarzenegger). It is a court battle so contentious it has already involved 34 judges and the filing of over a thousand documents, said Chad Griffin. Griffin is head of the American Foundation for Equal Rights, an organization formed specifically to finance the legal challenge to Proposition 8.

That legal challenge has included not only a three-week long trial, in January 2010, that led to a U.S. District Court ruling that Proposition is unconstitutional. It has included an unsuccessful motion from Yes on 8 attorneys seeking to forever sequester the videotapes of that trial from public view.  And, in the next few weeks, it will include a hearing in the California Supreme Court to determine whether Yes on 8 has authority under any state law to press an appeal of the District Court decision in a federal appeals court, and it will include the hearing Monday in the U.S. District Court in San Francisco on AFER attorneys’ motion to have videotapes of the 2010 trial made publically available

On Thursday, August 25, U.S. District Court Chief Judge James Ware—who succeed the previous Chief Judge Vaughn Walker in February—granted a request by Yes on 8 attorneys to bar recording of the upcoming August 29 hearing to make the trial videotapes public.

Ted Boutrous, one of the lead attorneys for plaintiffs challenging Proposition 8, said in a phone conference call with reporters Thursday that he finds an irony in Yes on 8’s request to bar recording of the upcoming hearing.

“They want to hide the fact that they want to hide what happened in the trial,” said Boutrous.

Ted Olson, lead attorney on the AFER legal team, said he believes Yes on 8 attorneys are reluctant to let members of the public “see with their own eyes and hear with their own ears” how Yes on 8’s two witnesses gave testimony that undermined Yes on 8’s position.

Olson said support for the release of the videotapes is “grounded in the First Amendment” and in the traditions of the nation’s courts to provide open proceedings.

Judge Walker, who presided over the 2010 trial, initially sought to have the proceedings broadcast live in various federal courthouses around the country. But Yes on 8 attorneys quickly appealed that ruling and eventually won a ruling from the U.S. Supreme Court. The high court prohibited Walker from making a videotape or broadcast of the proceedings available beyond the San Francisco federal courthouse itself.

But Walker did videotape the trial himself, saying he wanted to use the videotapes for his own use in preparing the decision in the case. Walker also allowed AFER’s legal team to use clips from the videotape in preparing their closing arguments.

When Walker aired a clip from the videotapes himself before a live audience to which he was lecturing about the broadcast of public trials, Yes on 8 filed its motion seeking to sequester all tapes. Judge Ware, in June, denied that motion and Yes on 8 has appealed his decision to the 9th Circuit.

The 9th Circuit will rule on the matter of Yes on 8’s standing, after it receives an advisory opinion from the California Supreme Court. If both courts agree that Yes on 8 has legal standing to appeal even though the governor and state attorney general have chosen not to appeal, the 9th Circuit will also have to rule on the constitutionality of Proposition 8.

Boutrous will be representing the AFER legal team on Monday in the videotape release hearing. Olson will be representing the team on September 6 in the California Supreme Court hearing concerning Yes on 8’s legal standing.

Charles Cooper, the lead attorney for Yes on 8, said attorney David Thompson would present their team’s argument in favor of barring release of the videotapes.

AFER’s Griffin noted that a new play based on the written transcript of the Proposition 8 trial will premiere on Broadway next month and serve as a fundraiser for the continued legal challenge against Proposition 8.

New York marriage equality spurs on other states

Just as the Stonewall Riots in New York City in 1969 gave a lift to the nascent movement for equal rights for gays across the country, marriage equality in the Empire State appears to be giving a boost to marriage equality efforts outside its borders.

Andrew Cuomo

Hundreds of same-sex couples married in New York on Sunday (July 24), the first day they could legally do so. And just as the Stonewall Riots in New York City in 1969 gave a lift to the nascent movement for equal rights for gays across the country, marriage equality in the Empire State appears to be giving a boost to marriage equality efforts outside its borders.

Activists in at least two states (Maine and Colorado) are pushing for 2012 ballot measures to seek marriage equality there, a lawsuit has been launched in New Jersey for full marriage rights, and in Maryland, a Democratic governor is prepared to follow the example of New York Governor Andrew Cuomo (D) in leading the state legislature to marriage equality.

With the addition of New York, the percentage of same-sex couples living in states that allow them to marry has now more than doubled—from 6.9 percent to 14.3 percent, according to an analysis of the U.S. Census Bureau’s 2009 American Community Survey by the Williams Institute of UCLA.

And the percentage of the U.S. population living in a state that allows same-sex couples to marry has more than doubled, from 5.1 to 11.4 percent, according to Census 2010 and the Williams Institute.

“Having New York end marriage discrimination is a turning point for the country,” said Evan Wolfson, executive director of the national Freedom to Marry group, in an essay on the group’s Web site June 27, three days after New York Governor Cuomo signed a marriage equality bill into law. “The world watches New York, and, as New Yorkers say, if we can make it here, we’ll make it anywhere.”

Wolfson noted that passage of the bill in New York was the first time a legislative chamber with a Republican majority—the state Senate—had “voted to advance a bill to end marriage discrimination, and Republican senators provided the winning margin.” He called the bipartisan vote “a major shift in the national political calculus for both parties” that “points the way to more victories.”

The New York legislature was also the first to pass a marriage bill without first passing civil unions or domestic partnerships, Wolfson said.

In New Jersey, which allows same-sex couples to enter civil unions, but not marriages, Steven Goldstein, the chair of the LGBT advocacy organization Garden State Equality, said in a statement June 24 that “the victory in New York, and its choice of marriage equality over civil union inequality, set the stage for our continuing fight for marriage for same-sex couples in New York’s sister state just a mile away.”

Four days after the New York bill became law, Garden State Equality and Lambda Legal, a national LGBT legal group, filed a lawsuit in a New Jersey Superior Court in Trenton on behalf of seven same-sex couples. They argue that the state’s existing civil union laws do not provide the couples with full equality—an equality the state Supreme Court said, in October 2006, is guaranteed by the state constitution.

Garden State Equality also held a rally on July 24, the first day of the New York marriages, at a New Jersey park closest to New York, with a view of the Manhattan skyline across the Hudson River.

In Maryland, where a marriage equality bill passed the state House but failed to pass the Senate in March, Governor Martin O’Malley (D) seems now to be following the example of New York Governor Cuomo, saying he will take a more active role in pushing for marriage equality next session.

Cuomo, whom Freedom to Marry’s Wolfson called the “indispensable champion” of the New York bill, had worked closely with marriage equality advocates and sent the initial version of the marriage bill to the legislature. He then met with legislative leaders to work out a final version of the bill that addressed some lawmakers’ concerns about additional protections for religious groups and the charities and educational institutions they operate.

Maryland’s O’Malley announced July 22 that he would sponsor marriage equality legislation in the 2012 legislative session. He tasked his director of legislative affairs, Joseph Bryce, with coordinating efforts among a broad coalition of LGBT, civil rights, and faith-based groups, as well as people across the state.

O’Malley said at a press conference that the law provides equal protection and the free exercise of religion to all, adding “Other states have found a way to protect both of these fundamental beliefs.”

And in Maine, the executive director of Equality Maine, Betsy Smith, said in a statement June 28 that the “victory in New York generates wind in the sails of the national movement to win marriage, and more specifically, of our efforts here in Maine.”

EqualityMaine and Gay and Lesbian Advocates and Defenders (GLAD) announced June 30 that they are taking steps to place a citizen’s initiative on the November 2012 ballot, asking Maine voters to approve a law giving same-sex couples the right to marry. The move comes after a referendum in November 2009 overturned a marriage equality law passed by the legislature and signed by Governor John Baldacci (D) in May 2009.

Colorado may also see a question on its 2012 ballot to approve marriage equality. The state Title Board on July 20 approved language for such a question. Supporters of marriage equality must now collect 86,105 signatures in order to place it on the ballot.

Similar measures could also appear in California and Oregon.

An exception to the trend comes in Minnesota, where the legislature has approved a ballot question that seeks to ban marriage of same-sex couples under the state constitution. It is already banned under state law. The same could happen in North Carolina, where the legislature is considering bills for such a ballot measure.

Cuomo, in a press conference after he signed the marriage equality bill, called New York “a beacon for social justice,” noting that the movements for equally for women, for protection of workers, for preservation of the environment, and for equality of gays each have roots in New York.

“New York,” he said, “made a powerful statement, not just for the people of New York, but the people all across this nation.”

Hearing on repeal of DOMA: It’s not just the economy

U.S. Rep. John Lewis (D-Ga.), a legendary civil rights activist, led off Wednesday’s historic hearing to discuss repealing the Defense of Marriage Act, likening it to laws decades ago that requires separate water fountains and restrooms for “whites” and “coloreds.”

John Lewis

U.S. Rep. John Lewis (D-Ga.), a legendary civil rights activist, led off Wednesday’s historic hearing to discuss repealing the Defense of Marriage Act, likening it to laws decades ago that requires separate water fountains and restrooms for “whites” and “coloreds.”

“I find it unbelievable in the year 2011,” said Lewis, “that there is still a need to hold hearings and debates about whether a human being should be able to marry the person they love.”

But there was a hearing, and there was debate. There was strong emotion.

Republican Senator Charles Grassley of Iowa and the ranking minority member on the Senate Judiciary Committee came well prepared to do battle, bringing in a full complement of his allowed witness, minus one whom he said was afraid to testify against repeal of the Defense of Marriage Act (DOMA) for fear of being harassed.

But no other Republican senator showed up to ask questions and Democratic senators in support of the Respect of Marriage Act (SB 598) were also well-prepared to do battle.

Senator Al Franken (D-Minn.) called DOMA an “immoral and discriminatory” law and he challenged Grassley’s chief witness, an official with the mammoth Focus on Family group. The witness, Thomas Minnery, had claimed a federal study found that children raised by a male-female married couple are happier and healthier than children raised by other families.

“I checked the study out,” said Franken, referring to a 2010 study published by the U.S. Department of Health and Human Services. “It doesn’t say what you said it does,” said Franken. The hearing room erupted in laughter. “It says ‘nuclear family,’ not opposite sex married families, are associated with those outcomes.”

Minnery said he understood “nuclear family” to mean heterosexual.

“It doesn’t,” said Franken, bluntly. “It says ‘two parents who are married to one another and are the adopted or biological’ parents of their children. I don’t know how we can trust the rest of your testimony if you are reading studies these ways.”

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) opened the hearing by saying he called the hearing to “assess the impact” of the law on American families. He said the 1996 law “goes well beyond the harm to a family’s dignity,” harming it economically, health-wise, and in other ways.

Several of Leahy’s seven witnesses provided personal, often dramatic, stories to illustrate those harms. Ron Wallen, a 77-year-old man from Indio, California, said his life was thrown into “financial chaos” after his life partner for 58 years succumbed after a long illness. Because he was not eligible to receive his same-sex spouse’s Social Security benefits and pension, said Wallen, his household income dropped from $3,050 per month to $900 per month.

Susan Murray, an attorney who help usher in Vermont’s landmark civil union law and who represents numerous same-sex couples, said many people simply did not understand what a civil union was. And she said she has found that many corporations believe DOMA prevents them from providing equal benefits to their employees.

“Companies think the law allows them to discriminate,” said Murray.

Andrew Sorbo, a history teacher in Catholic schools in Connecticut, talked about “always having to use the pronoun ‘I’” in his classroom.

“I could not say ‘we are going on vacation because the next question would be ‘Who is the other person’,” noted Sorbo, “and would lead to lots of other problems.”

“DOMA,” he said, is an insult to our dignity and our sense of equality.” He said he was “appalled and baffled” by those in Congress who oppose same-sex marriages “can’t understand how they are the philosophical descendants of those who defended slavery, who defended the laws against mixed race couples, and who defended the laws that allowed the separate but equal statutes that Rep. Lewis spoke of.”

The mainstream media gave some attention this week to a statement by White House Press Secretary Jay Carney, during a routine briefing on Tuesday, that President Obama supports the Respect for Marriage Act.

Carney, in response to a question, said Obama “has long called for a legislative repeal” of DOMA.

“He is proud to support the Respect for Marriage Act… which would take DOMA off the books once and for all,” said Carney.

Numerous LGBT groups issued statements, applauding the statement from Carney that the president supports the Respect of Marriage Act. They consider Obama’s support for the repeal measure specifically to be a significant step forward in his position.

During the 2008 presidential campaign, a spokesman for Obama said he had supported the repeal of DOMA—both sections—since 2004. But after he became president, his Department of Justice initially mounted a vigorous defense of the law in courts, arguing, among other things, “DOMA does not discriminate against homosexuals in the provision of federal benefits.”

After considerable outrage from the LGBT community, the DOJ softened its arguments in court briefs. And then, in a dramatic announcement in February of this year, Attorney General Eric Holder said that he and President Obama believe DOMA is unconstitutional and that laws disfavoring LGBT people should have to pass the strictest form of judicial scrutiny.

Rep. Lewis seemed to have been referring to President Obama when, in his remarks, he chastised those who are “comfortable sitting on the sidelines” and called on “elected officials…to lead, to be the headlights, not taillights.”

Ranking minority member Grassley was the only Republican senator to comment and ask questions during the hearing, saying –at times with the vigor of a preacher—that DOMA is “not an expression of dislike for gay and lesbian people.” He and other opponents of the bill pointed out that many of the Democrats on the Committee—including Chairman Leahy and Senators Dick Durbin of Illinois and Charles Schumer of New York—voted for DOMA in 1996. The fact that they voted for DOMA, said Ed Whelan of the Ethics and Public Policy Center, “refutes the empty revisionist claim that DOMA embodies an irrational bigotry against same-sex couples.”

Whelan said it is “a profound confusion to believe that the values of federalism somehow require the federal government to defer to or incorporate the marriage laws of the various states in determining what marriage means in the provision of federal benefits.”

Whelan also said that repealing DOMA would “have the federal government validate” same-sex marriage and “require taxpayers to subsidize the provisions of benefits. And, he said, repealing DOMA would “pave the way” for polygamists and other polyamorous unions to be recognized under federal law.

Bill sponsor Senator Dianne Feinstein (D-Calif.), who chaired the committee for a portion of the hearing, said DOMA denies rights and benefits to legally married same-sex couples. And she vowed that, “However long it takes” to repeal DOMA, “we will achieve it.”

The hearing was covered live by C-SPAN and will be rebroadcast from time to time.

DOJ comes out swinging against DOMA

The Department of Justice on July 1 recommended a federal appeals court in California dismiss a motion promoted by the House of Representatives to dismiss a challenge to the Defense of Marriage Act (DOMA).

The Department of Justice on July 1 recommended a federal appeals court in California dismiss a motion promoted by the House of Representatives to dismiss a challenge to the Defense of Marriage Act (DOMA).

The argument came Golinski v. Office of Personnel Management, a case filed by Lambda Legal Defense in which the DOJ initially tried to dismiss the case itself.

Williams Institute Legal Director Jenny Pizer, a former Lambda attorney, noted that, “while this step is fully consistent with the position taken back in February, it was not at all assumed that the Administration would participate actively in the pending DOMA cases.”

Attorney General Eric Holder, on February 23, sent a letter to House Speaker John Boehner, alerting him that the administration considers Section 3 of DOMA to be unconstitutional. Section 3 states that the federal government will not, for any federal purposes, recognize any same-sex marriage. Holder’s letter said the administration would not defend it beyond the First Circuit U.S. Court of Appeals. (The First Circuit, noted Holder, has said that laws treating people differently on the basis of sexual orientation should be examined using the lowest level of judicial scrutiny—rational basis—under which almost any reason can pass muster.)

Holder’s letter said the administration believes laws disfavoring persons based on sexual orientation should have to pass the most stringent judicial review—heightened scrutiny. And it said the administration would argue so in two cases challenging DOMA in the 2nd Circuit.

The Golinski case is in the 9th Circuit. And though the DOJ acknowledges that the 9th Circuit, like the First, has previously held that rational basis review is appropriate for sexual orientation, “we respectfully submit that this decision no longer withstands scrutiny.”

To justify its argument, the DOJ notes that, in 2003 with Lawrence v. Texas, the U.S. Supreme Court struck down laws prohibiting private consensual sex between same-sex partners. And it says “gay and lesbian individuals” fit the bill as a long-oppressed minority—or suspect class. It has been frequently targeted by discrimination, it is a class with limited political power, and it is a class defined by an immutable trait that bears no relationship to the individuals’ ability to contribute to and participate in society.

The brief argues that there is no justification for DOMA’s treating same-sex couples differently and that the record surrounding the law “evidences the kind of animus and stereotype-based type thinking that the Equal Protection Clause is designed to guard against.”

“The Obama Administration is putting very welcome additional flesh on the important bones of Attorney General Holder’s February letter to John Boehner explaining why the Administration won’t defend DOMA any longer,” said Pizer.

Signing the July 1 DOJ brief were Michael Hertz, a deputy assistant attorney general; Melinda Haag, a U.S. attorney; and Arthur Goldberg, assistant branch director.

Pizer said the Hertz brief “gives a detailed and immensely persuasive examination of why antigay laws should be subjected to rigorous constitutional review, including with a very substantial documenting of the systematic mistreatment of gay people by government, the religious and other legally improper reasons for that mistreatment, and further reinforcement of the point that the needs of children are served by equal treatment of all married parents, rather than federal discrimination against some of them.”

Human Rights Campaign President Joe Solmonese said the brief “represents real leadership from the Obama administration and further hastens the day in which we will leave this odious law in the dustbin of history.”

The brief, which typically takes weeks, if not months, to complete, was filed as President Obama was coming under increasing pressure from the LGBT community and the media to speak out in favor of same-sex marriages and marriage equality laws.

In Golinski v. OPM, an employee of the 9th Circuit federal appeals court, is suing to obtain health coverage for her spouse. The federal court provides such benefits to the spouses of straight employees and was prepared to offer them to Golinski. But the Office of Personnel Management, headed by openly gay appointee John Berry, instructed the court’s insurance company, Blue Cross/Blue Shield, to deny the claim, citing DOMA.

DOMA, enacted in 1996, prohibits any federal entity from recognizing a marriage license granted to a same-sex couple.

In March, a federal district court judge granted the DOJ’s initial request that Golinski’s lawsuit be dismissed, agreeing that OPM had a duty to enforce DOMA that trumped the 9th Circuit’s agreement to provide benefits to Golinski.

Lambda has filed an amended complaint and the DOJ brief was submitted to that pending litigation in the U.S. District Court for Northern California. The House’s Bipartisan Legal Advisory Group (BLAG) has filed a motion to intervene in the Golinski case to defend DOMA.

 

Governor signs Rhode Island civil union law, but pleases no one

Rhode Island Governor Lincoln Chafee (I) signed a civil union bill into law on Saturday, July 2–but LGBT civil rights advocates are not happy with his decision to do so. And Chafee himself said the bill “fails to fully achieve” the goal of providing same-sex couples with equal rights.

Rhode Island Governor Lincoln Chafee (I) signed a civil union bill into law on Saturday, July 2—but LGBT civil rights advocates are not happy with his decision to do so. And Chafee himself said the bill “fails to fully achieve” the goal of providing same-sex couples with equal rights.

The bill, passed by the state Senate June 29 and the House in May, states that it gives same-sex couples the same rights, benefits, and responsibilities as married opposite-sex couples. But LGBT groups say an amendment providing extensive exemptions on religious grounds “legalizes discrimination against the very status and protections it creates.”

Marriage Equality Rhode Island and several leading LGBT advocacy organizations sent a letter to Chafee June 28, asking him to veto the civil union legislation if it included the amendment. They said the amendment would allow religiously-affiliated “hospitals, day care centers, schools or cemeteries to openly and intentionally discriminate against civil union spouses.” Hospitals, they say, “could refuse to allow a spouse to visit their dying partner or make medical decisions in an emergency situation.”

Fourteen state representatives sent a similar letter to Chafee the day before.

Chafee, in a signing statement, called the bill “a step forward,” but added that it “fails to extend full marriage equality to all Rhode Islanders, a civil right that I strongly support and urged the general assembly to enact.” He added that he believes one of the bill’s religious exemptions is too broad.

The civil union bill has been a disappointment to many LGBT advocates from the start because a bill for full marriage equality was on the legislature’s agenda. It was dropped in April after it failed to gain enough support, even though Democrats hold large majorities in both chambers and Chafee, a long-time supporter of LGBT equality, said he would back it.

But one of the marriage equality bill’s sponsors, openly gay House Speaker Gordon Fox (D), announced in April that “there is no realistic chance for passage of the bill in the Senate,” where Senate President M. Teresa Paiva Weed (D-Newport) opposed it. Fox said he would not move forward with a vote in the House.

The Providence Journal newspaper also reported that Fox said he did not have the votes to pass the bill even in the House, where Democrats hold 65 seats to Republicans’ 10.

Fox instead sponsored the bill for civil unions, a decision that did not go over well with LGBT groups, even before the religious exemption amendment. Marriage Equality Rhode Island (MERI) held a rally at the State House to protest Fox’s decision to drop the marriage equality bill. Gay & Lesbian Advocates & Defenders and other groups issued statements criticizing Fox’s decision and calling it “completely unacceptable.”

But the civil union bill went to the House floor on May 19, where Rep. Arthur Corvese (D-North Providence) introduced the amendment regarding religious exemptions.

The amendment exempts religious organizations, religiously affiliated charitable or educational organizations, and their employees, from solemnizing civil unions and from providing related services, facilities, or accommodations.

Religious exemptions were included in New York’s recently passed marriage equality bill, but the Rhode Island amendment goes further and exempts the organizations and individuals from treating civil unions as valid in any way, if to do so goes against their “sincerely held religious beliefs.”

Chafee called that language “a religious exemption of unparalleled and alarming scope” that “eviscerates the important rights that enacting a civil union law was meant to guarantee for same sex couples in the first place.”

At the same time, he said, the bill “brings tangible rights and benefits to thousands of Rhode Islanders” and “provides a foundation from which we will continue to fight for full marriage equality.”

Martha Holt, board chair of Marriage Equality Rhode Island, said in a statement that her organization is “remarkably disappointed” that the governor signed the bill, and hopes that he “will soon return” to his commitment to push for marriage equality.

Interestingly, even opponents of marriage equality oppose the civil union bill, albeit for different reasons. Chris Plante, executive director of the National Organization for Marriage chapter in Rhode Island, issued a statement, saying that civil unions were “a clear threat to the definition of marriage” and to religious liberties.

On June 29, the same day that the civil union bill passed the final legislative hurdle in Rhode Island, Lambda Legal and Garden State Equality, New Jersey’s leading LGBT political group, filed a lawsuit in New Jersey Superior Court on behalf of seven same-sex couples, claiming that the state’s existing civil union laws do not provide them with full equality.

Two other states—Connecticut and Vermont—also won marriage equality after their highest courts ruled that civil unions were insufficient in providing equal rights and benefits.

Maine seeks to regain marriage equality

For the first time in history, LGBT activists are initiating a ballot measure to win marriage equality. EqualityMaine and Gay and Lesbian Advocates and Defenders (GLAD) announced that they are taking steps to place a citizen’s initiative on the November 2012 ballot.

For the first time in history, LGBT activists are initiating a ballot measure to win marriage equality.

EqualityMaine and Gay and Lesbian Advocates and Defenders (GLAD) announced Thursday, June 30, that they are taking steps to place a citizen’s initiative on the November 2012 ballot. The measure will ask Maine voters to approve a law giving same-sex couples the right to marry.

The move comes a year and a half after a referendum in November 2009 overturned a law passed by the legislature and signed by Governor John Baldacci (D) in May 2009. Because repeal activists immediately began petitioning for a “People’s Veto” against the law, the law was put on hold and ballot Question 1 asked voters if they would like to repeal that law.

Fifty-three percent of voters cast ballots in favor of repeal, with forty-seven percent against.

But LGBT advocates say they have been working since that time—canvassing, phone banking, and more—to change people’s attitudes. Betsy Smith, executive director of EqualityMaine, said, “We have been going door to door talking to them and hearing their journey towards support.”

They seem to be succeeding. Two recent polls show 53 percent of likely 2012 voters now say they support marriage equality.

To begin the initiative process, GLAD and EqualityMaine submitted an application to the Maine Secretary of State, Charles Summers Jr., on June 30. Once he approves the wording of the initiative, EqualityMaine will begin collecting the more than 57,000 signatures currently required to put it on the November 2012 ballot.

The proposed language of the ballot question reads, “Do you favor a law allowing marriage licenses for same-sex couples that protects religious freedom by ensuring no religion or clergy be required to perform such a marriage in violation of their religious beliefs?”

EqualityMaine and GLAD will also be ramping up their public education efforts in the coming months, tailored by findings of research they have been conducting to test various persuasive messages.

This summer, they will continue going door to door throughout the state to have one-on-one conversations with voters. Amy Mello, field director of EqualityMaine, said at a press briefing that they believe “this is the most effective and strategic way to change minds.”

They have also launched a new Web site, whymarriagemattersmaine.com, that includes created videos of Mainers—LGBT and straight—telling their personal stories of what marriage equality means to them.

“In the coming months, we’re going to continue to help same-sex couples, their family members, and their friends share their stories and talk about why marriage matters to them,” said Matt McTighe, Maine director of public education for GLAD, in a statement. “We know that, as more people come to understand the love and commitment that gay and lesbian couples share, we will continue to change hearts and minds.”

A leading face of the campaign will be United Methodist Pastor Michael Gray of Old Orchard Beach, Maine. Gray said he used to hold “a very traditional view of what marriage meant,” but after meeting same-sex couples in his parish and beyond, he said, “I now realize that the love and commitment in their relationships is as strong as the love and commitment my wife and I share, and I support their right to marry if they are lucky enough to find someone they love.”

McTighe said at a press briefing that the purpose of the new pro-equality campaigns was not only to build support, but to “inoculate against” opponents’ attacks and be prepared to respond to them.

In the earlier campaign to rescind marriage equality for same-sex couples, opponents launched a heavy barrage of television and radio ads warning that approval of same-sex marriage would lead to public schools teaching children about gay marriage.

Equality Maine field director Mello said the door-to-door campaigners are taking on some of the “hard subjects,” such as what children will learn in school, and why marriages are better than civil unions. They will be discussing these topics even with supporters, “to ensure they really are with us and that we can count on their support.”

Demographics may also play a role in the outcome of the initiative. Presidential election years garner a larger portion of voters under age 40 than in off-year elections such as 2009, according to Goodwin Simon Strategic Research, one of the firms that conducted a poll for EqualityMaine. And younger voters are much more likely to support marriage equality than the oldest voting cohort.

Rhode Island civil union bill passes, but pleases no one

The Rhode Island Senate passed a civil union bill 21 to 16 on Wednesday, June 29, which the governor has said he will sign but which LGBT civil rights advocates are not happy with and are urging he veto.

The Rhode Island Senate passed a civil union bill 21 to 16 on Wednesday, June 29, which the governor has said he will sign but which LGBT civil rights advocates are not happy with and are urging he veto.

The bill, passed by the House in May, states that it would give same-sex couples the same rights, benefits, and responsibilities as married opposite-sex couples. But LGBT groups say an amendment providing for extensive religious exemptions from the law “legalizes discrimination against the very status and protections it creates.”

Marriage Equality Rhode Island and several leading LGBT advocacy organizations sent a letter to Governor Lincoln Chafee (I) June 28, asking him to veto the civil union legislation if it includes the amendment. They said the amendment would allow religiously-affiliated “hospitals, day care centers, schools or cemeteries to openly and intentionally discriminate against civil union spouses.” Hospitals, they say, “could refuse to allow a spouse to visit their dying partner or make medical decisions in an emergency situation.”

Fourteen state representatives sent a similar letter to Chafee the day before.

The civil union bill has been a disappointment to many LGBT advocates from the start because a bill for full marriage equality was dropped in April after it failed to gain enough support, even though Democrats hold large majorities in both chambers and Chafee, a long-time supporter of LGBT equality, said he would back it.

But one of the marriage equality bill’s sponsors, openly gay House Speaker Gordon Fox (D), said in a statement in April that “there is no realistic chance for passage of the bill in the Senate,” where Senate President M. Teresa Paiva Weed (D-Newport) opposed it. Fox said he would not move forward with a vote in the House.

The Providence Journal newspaper also reported that Fox said he did not have the votes to pass the bill even in the House, where Democrats hold 65 seats to Republicans’ 10.

Fox instead sponsored the bill for civil unions, a decision that did not go over well with LGBT groups, even before the religious exemption amendment. Marriage Equality Rhode Island (MERI) held a rally at the State House to protest Fox’s decision to drop the marriage equality bill. Gay & Lesbian Advocates & Defenders and other groups issued statements criticizing Fox’s decision and calling it “completely unacceptable.”

But the civil union bill went to the House floor on May 19, where Rep. Arthur Corvese (D-North Providence) introduced the amendment regarding religious exemptions.

The amendment exempts religious organizations, religiously affiliated charitable or educational organizations, and their employees, from solemnizing civil unions and from providing related services, facilities, or accommodations.

Religious exemptions were included in New York’s recently passed marriage equality bill, but the Rhode Island amendment goes further and exempts the organizations and individuals from treating civil unions as valid in any way, if to do so goes against their “sincerely held religious beliefs.”

There was little debate before the House voted 63-6 to include it in the final bill, which they then passed 62-11.

Chafee, although he supports full marriage equality, has said he will sign the civil union bill.

Interestingly, even opponents of marriage equality oppose the civil union bill. Chris Plante, executive director of the National Organization for Marriage chapter in Rhode Island, issued a statement, saying that civil unions were “a clear threat to the definition of marriage” and to religious liberties.

On June 29, the same day that the civil union bill passed the final legislative hurdle in Rhode Island, Lambda Legal and Garden State Equality, New Jersey’s leading LGBT political group, filed a lawsuit in New Jersey Superior Court on behalf of seven same-sex couples, claiming that the state’s existing civil union laws do not provide them with full equality.

Two other states—Connecticut and Vermont—also won marriage equality after their highest courts ruled that civil unions were insufficient in providing equal rights and benefits.

Lawsuit seeks marriage equality in New Jersey

Five days after the New York State legislature legalized marriage for same-sex couples, LGBT civil rights supporters in New Jersey are asking the state courts to rule that the state constitution there guarantees same-sex couples marriage equality.

Five days after the New York State legislature legalized marriage for same-sex couples, LGBT civil rights supporters in New Jersey are asking the state courts to rule that the state constitution there guarantees same-sex couples marriage equality.

On June 29, Lambda Legal, a national LGBT legal group, and Garden State Equality, New Jersey’s leading LGBT political group, filed a lawsuit in a New Jersey Superior Court in Trenton on behalf of seven same-sex couples. The lawsuit argues that the state’s existing civil union laws do not provide them with full equality —an equality the state Supreme Court said, in October 2006, is guaranteed by the state constitution.

The plaintiffs say the civil union law violates the equal protection clauses of both the New Jersey Constitution and the 14th Amendment of the U.S. Constitution. The lawsuit is Garden State Equality, et al. v. Paula Dow, et al., with Paula Dow being the state’s attorney general.

The couples say they have each had difficulties getting their civil unions recognized, and several plaintiffs were prohibited from making medical decisions for their partners when hospital personnel did not know what rights a “civil union” conveyed. Two of the female plaintiffs, after the death of one of their children, had a funeral home question what a civil union meant. All but one of the couples are parents.

Their claim rests in part on a 2006 New Jersey Supreme Court ruling, Lewis v. Harris, in which the court said the state constitution’s promise of equal protection requires that same-sex couples be able to enjoy the same benefits of marriage as opposite-sex couples.

But the majority also said it was up to the legislature to determine whether those benefits are delivered through marriage licenses or a “parallel” structure called by another name. The legislature responded by enacting civil unions, which became legal in February 2007.

In December 2008, however, the legislature-appointed Civil Union Review Commission, after an extensive evaluation and series of public hearings, found that “the separate categorization established by the Civil Union Act invites and encourages unequal treatment of same-sex couples and their children.”

“In a number of cases,” the Commission wrote in its final report, “the negative effect of the Civil Union Act on the physical and mental health of same-sex couples and their children is striking, largely because a number of employers and hospitals do not recognize the rights and benefits of marriage for civil union couples.”

A marriage equality bill failed to pass the state Senate in January 2010, and supporters and opponents attributed the failure in large part to the defeat of Democratic Governor Jon Corzine the previous November, as well as the opposition of then-incoming Republican Governor Chris Christie.

Lambda Legal, in March 2010, filed a motion to reactivate the case in the state Supreme Court, asserting that civil unions did not provide the same benefits as marriage, as evidenced by the report of the Civil Union Commission, and thus did not meet the requirements of the court’s 2006 ruling.

The court in June 2010 refused to hear the case, in a 3-3 decision that was one short of the four needed to grant a hearing. The court said the case must first go through the trial court process in order to develop “an appropriate trial-like record”—which Lambda Legal hopes to do with its current lawsuit.

“Garden State Equality has received reports from multitudes of civil union couples who have told us their employers refuse to provide the equal rights and benefits the civil union law mandates,” said Steven Goldstein, chairman of Garden State Equality. “It’s time for the courts to fix this mess and give full marriage equality to New Jersey’s same-sex couples and their children.”

In a related development, New Jersey Assemblyman Reed Gusciora (D-Mercer), the state’s only openly gay legislator, introduced a new marriage equality bill June 13. And New Jersey Senate President Steve Sweeney on June 20 apologized on the floor of the Senate for not voting in favor of marriage equality in January 2010, when the measure gained only 14 of the 21 votes it needed to pass. He called his abstention “the biggest mistake of my legislative career” and “a decision based purely on political calculations.”

Sweeney’s apology prompted Goldstein to issue a statement noting that the votes are now there to pass marriage equality in both houses of the legislature, but not enough votes to override an expected veto from Governor Christie. That means, “New Jersey will have to win marriage equality through other means,” said Goldstein.

It could take a while. The 2006 state Supreme Court ruling came only after the case, first filed in 2002, wound its way through the lower courts.

Two other states—Connecticut and Vermont—also won marriage equality after their highest courts ruled that civil unions were insufficient in providing equal rights and benefits.

NY vote pressures GOP to weigh in

The news that New York State passed a marriage equality law last Friday night was big news and, not surprisingly, drew comments from various presidential candidates over the weekend.

Michele Bachmann

The news that New York State passed a marriage equality law last Friday night was big news and, not surprisingly, drew comments from various presidential candidates over the weekend.

President Obama, who made news the night before the New York vote by saying almost nothing in support of the marriage equality bill, said nothing following the bill’s passage either. But, Shin Inouye, a spokesman to the LGBT media for the White House, said, “The President has long believed that gay and lesbian couples deserve the same rights and legal protections as straight couples. That’s why he has called for repeal of the so-called ‘Defense of Marriage Act’ and determined that his Administration would no longer defend the constitutionality of DOMA in the courts. The states should determine for themselves how best to uphold the rights of their own citizens. The process in New York worked just as it should.”

Former House Speaker Newt Gingrich, trying hard to dodge questions about the viability of his campaign, seemed happy to offer extended remarks about the New York vote. During a bus tour in Iowa on Saturday, he sounded like a modern day Robert Bork.  Bork, in a book following his failed nomination to the U.S. Supreme Court, warned that a rising liberalism was causing America to be “slouching towards Gomorrah.” Gingrich, reacting to New York, said it shows the country is “drifting toward a terrible muddle.” He called for the defense of DOMA and said he “would like to find ways to defend that view as legitimately and effectively as possible.”

But Gingrich is struggling to defend his prospects in the Republican presidential race. In the most recent poll –of 400 Republicans likely to participate in next year’s Iowa caucuses, surveyed June 19-21—Gingrich tied for fourth with Rep. Ron Paul, with only 7 percent of the vote each. Former Massachusetts Governor Mitt Romney came in first, with 23 percent of the vote. He hasn’t yet said anything specifically about the New York marriage vote, but he has stated repeatedly in the past that he is against legalizing same-sex marriages and he took actions to oppose them while governor of Massachusetts.

Rep. Michele Bachmann landed a surprising second place finish in the Des Moines Register poll, with 22 percent—a virtual tie, given the poll’s plus-or-minus four points margin of error. Godfather Pizza founder Herman Cain came in third with 10 percent; former Minnesota Governor Tim Pawlenty had six percent; former U.S. Senator Rick Santorum had four percent; and former Utah Governor Jon Huntsman had two percent.

Bachmann’s strong showing in the poll and the fact that she was on weekend talk shows to promote her formal campaign entrance on Monday, June 27, ensured her views on the New York marriage vote got the most attention.

Bachman said two different things. She said the 10th Amendment protects New York’s right to pass a marriage equality law, and she said that, if elected president, she would push for an amendment to the federal constitution to define marriage as being between a man and a woman only. At a June 13 debate in New Hampshire, Bachmann had also said she would not, as president, attempt to overturn laws in states, like New Hampshire, that allow same-sex couples to marry.

But news anchor Chris Wallace, during Fox News Sunday, asked her the obvious question: “If you support states’ rights, why do you also support a constitutional amendment which would prevent any state from recognizing same-sex marriage?”

“That’s entirely consistent,” said Bachmann. “The states, under the 10th amendment, have the right to pass any law they like.” And federal legislators, she said, have the right to submit amendments to the federal constitution. She droned on a bit about how she’d prefer the issue be decided through ballot measures but how it will almost certainly end up being decided by the U.S. Supreme Court and she’s against “activist” judges. She also echoed a little of Republican rival Rick Santorum’s “consistency” position on same-sex marriage, (Santorum says all state marriage laws should be consistent and ban same-sex marriage).

“Ultimately, with states having various laws,” said Bachmann, “the federal government would most likely weigh in.”

“So, just briefly,” said Wallace, after a minute or two, “you would support a constitutional amendment that would overturn the New York State law?”

Bachmann glanced away and then responded, “Yes, I would. I would. That is not inconsistent.”

The Republican field is generally consistent on the issue of same-sex marriage: Most are against. The exceptions are newly announced candidate Jon Huntsman, a former governor of Utah; and Rep. Ron Paul of Texas. Huntsman has indicated he supports civil unions. Paul supports DOMA but says he would not support a federal constitutional ban on same-sex marriage. Openly gay candidate Fred Karger is the lone supporter of same-sex marriage; but his name is repeatedly left off most polls and he has been shut out of the first two Republican debates.

New York passes marriage equality

New York State on Friday night, June 24, became the sixth and most populous state to legalize marriage for same-sex couples, after a tense several days past the scheduled end of the legislative session, in which it was unclear if Republican leaders in the state Senate would even allow a marriage bill to come up for a vote.

Stephen Saland

New York State on Friday night, June 24, became the sixth and most populous state to legalize marriage for same-sex couples. After a tense several days past the scheduled end of the legislative session, in which it was unclear if Republican leaders in the state Senate would even allow a marriage bill to come up for a vote, the Senate voted 33 to 29 in favor of the bill. The vote was taken at approximately 10:30 p.m. EDT.

The Assembly, which passed its version of the bill on June 15, voted again on Friday to approve several amendments agreed to by Senate Majority Leader Dean Skelos (R-Nassau), Assembly Speaker Sheldon Silver (D-Manhattan), and Governor Andrew Cuomo (D) after they met earlier in the week. The amendments passed the Assembly 82 to 47.

Governor Cuomo, who worked closely with marriage equality advocates and sent an early version of the marriage bill to both houses of the legislature on June 14, signed the bill shortly after the vote on June 24. The law will now go into effect in 30 days.

The delay in the Senate vote, which had both marriage equality advocates and opponents on pins and needles all week, was in part because of the desire of some senators to insert additional religious exemptions—but several other contentious issues also occupied legislators in the last days of the session, including rent control and property taxes.

Skelos and Silver met Tuesday with Cuomo and reached tentative agreement on the rent and tax issues, but it was not until Friday that they reached agreement on religious exemptions to the marriage bill.

The original bill sent by Governor Cuomo to the legislature—and passed by the Assembly—said that “religious corporations” and “benevolent organizations” “shall not be required to provide accommodations, advantages, facilities or privileges related to the solemnization or celebration of a marriage.”

The amendments agreed upon Friday added the same exemptions for not-for-profit corporations that are “operated, supervised, or controlled by a religious corporation,” as well as employees who are “managed, directed, or supervised by” any of the above types of organizations.

As private organizations, however, religious groups, including charitable or educational organizations that they operate, supervise, or control, are already free from state human rights laws that require only public “accommodations, advantages, facilities or privileges” to be open to all.

The final bill contained one other new component: an “inseverability clause” stating that if any part of the marriage bill is found to be invalid by a court of law, the entire bill will be deemed invalid.

Stephen Saland (R-Poughkeepsie), speaking on the floor of the Senate before the vote, explained that the purpose of that amendment was to make sure that religious organizations would not be liable under anti-discrimination laws, and that any conflicts would be resolved in favor of the religious exemptions.

Saland’s declaration that he would vote yes was the first public confirmation that the bill had enough votes for passage. He told the Senate, “I have to define doing the right thing as treating all persons with equality. And that equality includes within the definition of marriage. . . . My vote is a vote of conscience.”

In the end, Saland was one of four Republicans voting yes. Republican senators James Alesi (R-Monroe) and Roy J. McDonald (R-Saratoga) also voted in favor of the bill, as promised the week before.

One surprise Republican vote was that of Mark Grisanti (R-Buffalo), who said that although he is a practicing Catholic, “I cannot legally come up with an argument against same-sex marriage.”

Three Democratic state senators who had voted “no” on a marriage bill in 2009—Joseph Addabbo Jr. (D-Queens), Shirley Huntley (D-Queens), and Carl Kruger (D-Brooklyn)—also voted “yes.”

Senator Tom Duane (D-Manhattan), who is openly gay, spoke to the Senate about his partner, Louis Webre, saying, “Marriage says that we are a family.” The bill, he said, is “going to strengthen my family and all New York families.”

One Democratic senator, Rubén Díaz (D-Bronx) voted against the bill.

New York is now the most populous state with marriage equality. It joins five other states—Connecticut, Iowa, Massachusetts, New Hampshire, and Vermont—and the District of Columbia, in allowing same-sex couples to marry.

It is the third state (and the fourth jurisdiction including the District of Columbia) to enact marriage equality purely through the legislature, with no state Supreme Court ruling requiring the legislature to enact such a law.

With Wednesday’s vote, the percentage of same-sex couples living in states that allow them to marry has thus more than doubled, from 6.9 percent to 14.3 percent, according to an analysis of the U.S. Census Bureau’s 2009 American Community Survey by the Williams Institute of UCLA.

And the percentage of the U.S. population living in a state that allows same-sex couples to marry has more than doubled, from 5.1 to 11.4 percent, according to Census 2010 and the Williams Institute.

All eyes now turn to neighboring New Jersey, where Assemblyman Reed Gusciora (D-Mercer), the state’s only openly gay legislator, introduced a marriage equality bill June 13.

The New Jersey Senate President Steve Sweeney on June 20 apologized on the floor of the Senate for not voting in favor of marriage equality in January 2010, when it was defeated. Sweeney’s apology prompted Steven Goldstein, chair of New Jersey’s leading LGBT political group, Garden State Equality, to issue a statement noting that the votes are there to pass marriage equality in both houses of the legislature—but not to override the expected veto from Governor Chris Christie (R). That means, Goldstein said, that “New Jersey will have to win marriage equality through other means.”

When it became clear Friday night that New York would pass marriage equality, Garden State Equality and Lambda Legal issued a statement saying, “Soon there will be a major announcement” regarding marriage equality in New Jersey.

The New Jersey Supreme Court in June 2010 refused to hear a case that claimed the state’s civil union law did not provide full equality. It said the case must first go through the trial court process—making such a process the likely next step for advocates of marriage equality.

Marriage bill in New York going down to the wire

With only a few days remaining in the legislative session, marriage equality took a step closer to reality in New York State this week.

Andrew Cuomo (Photo credit: Pat Arnow)

With only a few days remaining in the legislative session, marriage equality took a step closer to reality in New York State this week, as Governor Andrew Cuomo (D) sent a marriage bill to the State Legislature June 14, and the number of senators expressing their support edged to within one vote of that required for passage.

Governor Cuomo had previously said he would not introduce a bill if he did not believe it had the votes for passage. He said at a press conference June 13, “I believe the votes are there” to pass the bill.

Three Democratic state senators who had voted “no” on a marriage bill in 2009—Joseph Addabbo Jr. (D-Queens), Shirley Huntley (D-Queens), and Carl Kruger (D-Brooklyn)—said June 13 they would vote “yes.” All but one Democratic senator—Rubén Díaz (D-Bronx)—now support it.

The first two Republican senators also expressed their support this week: Senator James Alesi (R-Monroe) and Roy J. McDonald (R-Saratoga). Their votes give the measure a total of 31 of the 32 votes needed for passage.

Alesi had said at a press conference Monday that his support was contingent upon the bill “[taking] into consideration the concerns of religious groups and churches that they will not be forced to perform weddings that they feel they cannot do.” He said the provisions in the 2009 bill that addressed this would be adequate—provisions that said religious organizations would not be required to solemnize marriages of same-sex couples.

The religious exemptions in the bill from Governor Cuomo, however, go beyond those of the 2009 bill. The new bill says that religious groups “shall not be required to provide accommodations, advantages, facilities or privileges related to the solemnization or celebration of a marriage.”

As private organizations, however, religious groups are already free from state human rights laws that require only public “accommodations, advantages, facilities or privileges” to be open to all.

Senator Greg Ball (R-Putnam) had been one of those pushing for the additional provisions related to religious organizations—although he had also wanted protections for individuals and businesses that had religious objections.

Whether the language of the governor’s bill is enough for Ball remains an open question.

Ball is one of several Republican senators whom the New York Post on June 13 said were considering support of the bill. The Post cited “a highly knowledgeable Senate insider” who said “far more of the [GOP] members are in play than anyone realizes.” The others senators named as possible supporters were: Kemp Hannon (R-Nassau), Charles Fuscillo (R-Suffolk), Betty Little (R-Glens Falls), and Andrew Lanza (R-Staten Island), as well as Alesi and McDonald, who did declare their support.

Because passage in the Democrat-controlled Assembly seems more certain. A marriage equality bill has passed the Assembly three times in the past four years. Assembly Member Daniel O’Donnell (D-Manhattan) introduced a new marriage bill in that chamber in May, which has gained 68 sponsors, a record for a marriage equality bill.

O’Donnell’s bill exempted religious organizations only from solemnizing marriages but said nothing about facilities or accommodations. O’Donnell said in an interview that he would now be withdrawing his original bill and introducing the governor’s, which the Assembly Judiciary and Rules committees would likely consider on Wednesday, June 15.

Although Senate Majority Leader Dean Skelos (R-Nassau) opposes marriage equality, he has previously said he would let a marriage equality bill go to the floor. A spokesperson for Skelos’ office, however, said that the decision ultimately rests with the Senate Majority Conference, which could also meet on June 15.

Both chambers will need to act fast if there is any desire to pass a bill this legislative session, which ends June 20.

Judge rejects call to vacate decision in Proposition 8 case

As expected, a federal judge in San Francisco on Tuesday refused to vacate last year’s landmark ruling that Proposition 8 is unconstitutional.

James Ware

As expected, a federal judge in San Francisco on Tuesday refused to vacate last year’s landmark ruling that Proposition 8 is unconstitutional.

U.S. District Court Chief Judge James Ware of the Northern District of California issued a 19-page decision saying, “The sole fact that a federal judge shares the same circumstances or personal characteristics with other members of the general public, and that the judge could be affected by the outcome of a proceeding in the same way that other members of the general public would be affected, is not a basis for either recusal or disqualification” under federal laws governing the Judiciary. “Further,” said Ware, under the U.S. Code, “it is not reasonable to presume that a judge is incapable of making an impartial decision about the constitutionality of a law, solely because, as a citizen, the judge could be affected by the proceedings.”

The June 14 decision is yet another blow to the efforts of opponents to marriage equality to defend a constitutional amendment they convinced voters to pass in November 2008. In August 2010, Judge Vaughn Walker, then U.S. District Court Chief Judge, ruled that Proposition 8 violates the federal constitution’s guarantees of equal protection and due process. Though Yes on 8 proponents won a stay of Walker’s decision pending their appeal to the 9th Circuit U.S. Court of Appeals, they immediately stumbled on the question of standing.

The state’s governor and attorney general decided not to appeal Walker’s decision, and the legal team challenging Proposition 8 argued that Yes on 8 proponents have no right to appeal the decision on their own.

A 9th Circuit panel heard arguments on the standing issue and asked the California Supreme Court to indicate whether it thinks there is anything in California law that gives Yes on 8 authority to appeal Walker’s decision.

Opponents of Proposition 8 said they believed Yes on 8’s motion to vacate Walker’s ruling was an attempt to salvage some victory from their anticipated defeat on the question of standing.

But in court before Judge Ware Monday, Yes on 8 attorney Charles Cooper said his team genuinely believes that Walker should have disclosed to all parties to the Proposition 8 trial that he has been in a relationship with a man for the past 10 years. Cooper said Walker’s relationship put him in “precisely” the same shoes as the two plaintiff couples challenging Proposition 8. And, as such, he said, a “reasonable person” could believe the judge had a potential to benefit from his ruling striking down Proposition 8.

But Judge Ware seemed highly skeptical of the argument Monday and repeatedly asked for “evidence” that Walker had any interest in marrying. Cooper had none.

“It’s common sense, and a reasonable person would conclude that Judge Walker had an interest in marrying,” said Cooper.

“So, there are not facts to suggest Judge Walker wanted to change his relationship to marriage,” said Ware.

Ware rejected an argument from the team challenging Proposition 8—represented in court Monday by Ted Boutrous. Boutrous argued that Yes on 8 attorneys knew of Walker’s relationship long before he spoke of it to reporters in April this year.  Ware said he did not find articles in 2010 to provide “a basis for imputing to [Yes on 8 attorneys] knowledge of Judge Walker’s same-sex relationship.”

Ware said it is “inconsistent with the general principles of constitutional adjudication to presume that a member of a minority group reaps a greater benefit from application of the substantive protections of our Constitution than would a member of the majority…. [W]e all have an equal stake in a case that challenges the constitutionality of a restriction on a fundamental right.”

Ware did not buy Cooper’s argument that Walker’s failure to disclose his relationship to attorneys before the trial suggested he was hiding a potential conflict of interest.

“Absence of disclosure could equally connote ambivalence or uncertainty in the face of such a weighty question as whether one intends to marry now or in the future, especially when such an intent involves the willingness and participation of a partner for whom the judge cannot answer,” wrote Ware.

Boutrous told reporters Tuesday that Yes on 8 may try to appeal Ware’s decision, but that they could run into issues of standing once again.

Motion to vacate Proposition 8 ruling seems unlikely

SAN FRANCISCO – It now seems unlikely that a federal judge will vacate a landmark decision in which a gay judge ruled that Proposition 8 is unconstitutional.

Vaughn Walker

SAN FRANCISCO – It now seems unlikely that a federal judge will vacate a landmark decision in which a gay judge ruled that Proposition 8 is unconstitutional. The evidence? U.S. District Court Chief Judge James Ware said, following a three-hour hearing Monday, that he plans to issue his ruling concerning a motion to vacate within 24 hours.

Judges typically take months to write decisions of consequence, and a decision to vacate the August 2010 ruling from former Judge Vaughn Walker declaring Proposition 8 unconstitutional would be of enormous consequence. To expect that Judge Ware would write in 24 hours a decision that would undo two years of litigation—including issues pending now before the 9th Circuit U.S. Court of Appeals and the California Supreme Court—seems unlikely.

And, there was little in Judge Ware’s questioning of Yes on 8 attorney Charles Cooper during the June 13 hearing in federal court in San Francisco to give proponents of Proposition 8 much to hang their hopes upon.

Ware noted that it is an unusual event when a judge is put in the position of deciding whether a colleague should have recused himself. Judge Vaughn Walker, in August 2010, ruled that the state ban on marriage licenses for same-sex couples violates the federal constitutional guarantees to equal protection and due process. Eight months after that ruling and two months after retiring from the bench, Walker acknowledged to reporters that he himself is gay and that he has been in a relationship for the past 10 years with a man.

The courtroom erupted in laughter Monday morning when Yes on 8 attorney Cooper said that Walker should have disclosed to attorneys before the January 2010 trial on Proposition 8 not only that he had been in a relationship with a man but that he had no interest in marrying that man. Cooper argued that Walker’s longtime relationship was circumstantial proof that Walker would benefit from a ruling that enabled same-sex couples to marry.

Ware challenged Cooper to explain how a longtime relationship constitutes proof that Walker would benefit from such a ruling, noting, “you can be in a longtime relationship without being in it for purposes of marriage.”

But a “reasonable person,” said Cooper, could believe the judge had a potential to benefit from a ruling striking Proposition 8. And Walker’s relationship put him a position “precisely” the same as the two plaintiff couples in the case.

The U.S. Code dealing with “Judiciary and Judicial Procedure” states that “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” It also states that a judge “shall also disqualify himself” if “He knows that he … has a financial interest in the subject matter in controversy … or any other interest that could be substantially affected by the outcome of the proceeding….”

“What fact would you have court rely on to know that Judge Walker wanted to change his relationship [and marry, as the two plaintiff couples sought to do]?” asked Ware.

“It’s common sense,” said Cooper, “and a reasonable person would conclude that Judge Walker had an interest in marrying.”

“So, there are no facts to suggest Judge Walker wanted to change his relationship to marriage,” stated Ware.

Cooper then sought to persuade the judge that the very fact that Walker did not disclose his relationship to attorneys and did not disclose whether he had any interest in marrying the man reasonably called Walker’s impartiality into question.

“But how does failure to disclose serve as evidence that he wanted to change the relationship?” pressed Ware.

Ted Boutrous, an attorney on the legal team headed by high-profile political attorneys Ted Olson and David Boies, said Cooper had no evidence and that Walker was under no obligation to disclose either his sexual orientation or his relationship.

“Where would the disclosure requirements stop?” he asked.

Boutrous also refuted Cooper’s contention that it would be reasonable to presume Walker was “similarly situated” with plaintiffs and wanted to marry his longtime partner.

“Just because people are gay doesn’t mean they’re all alike,” said Boutrous. “Some do want to marry, some don’t…. There is no evidence that Judge Walker intended to get married.”

Judge Walker was not in the courtroom Monday. Judge Ware had excused him from appearing on a second motion before the court—one to require that all copies of the videotape of last year’s trial be turned over to the court. Walker turned over the videotapes and requested to be excused from appearing.

Interestingly, Ware started off discussion of the motion concerning the videotapes by disclosing that, as the court’s new chief judge, he had presented Walker, the retiring Chief Justice, with a personal copy of the trial’s videotape during Walker’s retirement ceremony. Ware started off discussion of the motion to vacate by informing Cooper that he had presided over the marriage of a same-sex couple. Cooper made no response to the same-sex marriage ceremony, but said he would not consider the presentation of the videotapes during the retirement ceremony to be grounds for Ware to recuse himself from this matter.

After hearing brief arguments, Ware ruled from the bench and rejected Yes on 8’s request to have all copies of the videotape turned over to the court. He indicated he would, at a later date, hear arguments on a motion from plaintiffs seeking to allow public release of the videotapes. Ware said he hoped to have a written decision concerning the motion to vacate on the court’s website within 24 hours.

Judicial neutrality on trial, with a Supreme backdrop

Openly gay Judge Vaughn Walker won’t be in the courtroom next Monday (June 13)—at least not physically. But he’ll certainly be there in name–and so may be U.S. Supreme Court Justice Samuel Alito.

Vaughn Walker

Openly gay Judge Vaughn Walker won’t be in the courtroom next Monday (June 13)—at least not physically. But he’ll certainly be there in name—and so may be U.S. Supreme Court Justice Samuel Alito.

Alito, in response to inquiries from reporters, acknowledged last week that he should have recused himself from a 2009 case he helped decide. The reason? His two children each held about $2,000 in stock in the Disney company, the parent corporation to the ABC network that was a party to the case Alito participated in. Alito, who had recused himself that same year from another case involving Disney, said that, in this case, his staff, which reportedly checks such matters for him, had simply not realized that ABC was affiliated with Disney.

There has been no hue and cry over the revelation and, though this has all come out very recently, there’s been no indication the party against whom Alito voted, in a five-justice majority, plans to file a motion to vacate the ruling. That’s probably because Alito voted against ABC. But Alito’s reaction is an indication of how high he thinks the bar should be set for matters of potential judicial conflict. And that indication comes at an interesting time—just days before a federal judge in San Francisco must consider whether a former colleague, Vaughn Walker, had a conflict of interest when he ruled California’s ban on same-sex marriage to be unconstitutional.

The timing is almost certainly coincidental; Alito was prompted to acknowledge his conflict after probing reporters discovered it.

Alito’s agreement with those reporters—that what appears to be a relatively small and indirect financial interest in the parent company to one of four major networks involved in the case constitutes a conflict of interest—puts the bar for recusal at a difficult height to clear.

Former Chief Justice William Rehnquist did not recuse himself from hearing cases involving Microsoft, although his son was an attorney for Microsoft on a matter not before the court. John Roberts did not recuse himself from participating in a case, Citizens United v. Federal Election Commission, even though a beneficiary of his decision—the U.S. Chamber of Commerce—lobbied for his confirmation as Chief Justice.

9th Circuit U.S. Court of Appeals Judge Stephen Reinhardt rejected a motion that he recuse himself from hearing an appeal from Yes on 8 last December. Reinhardt is married to the executive director of the Southern California ACLU.  The motion filed by Yes on 8 attorney Charles Cooper asserted that, because the ACLU has been involved in challenging Proposition 8, Reinhardt should disqualify himself from hearing the appeal. Reinhardt and his 9th Circuit panel colleagues have yet to rule on Yes on 8’s appeal.

Now, it is up to U.S. District Court Chief Judge James Ware to decide where the recusal bar should have been set when Vaughn Walker heard the case challenging Proposition 8. At the time of the trial, Walker had given no public statement indicating that he was gay and in a relationship for 10 years with another man. And it is common for judges to look to the Supreme Court and other courts for guidance, in making their own rulings.

So, it won’t be a surprise next Monday if attorneys for the proponents of Proposition 8 trot out Justice Alito’s recent recusal statement in support of their argument that Walker should have recused himself from deciding the landmark case involving Proposition 8.

Walker, in August 2010, ruled that the constitutional amendment passed by voters to ban legal recognition of marriages between same-sex partners in California violates the federal constitutional guarantees to equal protection and due process. Eight months after that decision, in response to inquiries from reporters, Walker acknowledged being gay and in a 10-year relationship with a man. Also in response to a question from a reporter, Walker said that he did not believe his sexual orientation required him to recuse himself from the case.

Proposition 8 attorney Cooper and his team agree with that—that Walker needn’t have recused himself because he is gay. But they argue that Walker’s relationship with a man was grounds for recusal.

Why?

“Given that Chief Judge Walker was in a committed, long-term, same-sex relationship throughout this case (and for many years before the case commenced),” argued Cooper in his brief, “it is clear that his ‘impartiality might reasonably [have been] questioned’ from the outset.”

But Ted Olson, David Boies, and the team of lawyers who have challenged Proposition 8 through Perry v. Brown (formerly Perry v. Schwarzenegger) say Cooper’s argument is just another way of saying Walker should have recused himself because he is gay.

“If Judge Walker were not gay,” said the Olson-Boies brief, Yes on 8 “Proponents would have no objection to his presiding over this case. Similarly, if Judge Walker were gay and not in a long-term relationship, Proponents could nevertheless speculate that he might benefit from the right to marry in the future. Proponents cannot escape the fact that their motion is, at its core, about Judge Walker’s sexual orientation.”

Here’s what the U.S. Code says regarding the “Judiciary and Judicial Procedure”: a judge should recuse himself or herself “in any proceeding in which his [or her] impartiality might reasonably be questioned” or in any case where the judge “knows that he [or she]… has a financial interest in the subject matter in controversy … or any other interest that could be substantially affected by the outcome of the proceeding….”

For Justice Alito, his children’s $4,000 worth of stock in the parent company of a corporation with a case before him was, in his mind, a “financial interest” meriting recusal. Following the disclosure, he sold his children’s stock in Disney, according to various news reports. And that, according to many legal observers discussing the revelation, puts him in good position to rule on any future case concerning Disney or ABC.

“As a result of the stock sale,” said Legal Ethics reporter Debra Cassena Weiss of the American Bar Association’s ABA Journal, “Alito will be able to participate if the court accepts a new case involving a fine against ABC television stations that aired an NYPD Blue program showing a shot of a woman’s bare buttocks.” The case Alito participated in, FCC v. Fox Television, affected fines against television networks, including ABC, if they allow profanity—even fleeting outbursts—on the air.

Walker’s situation differs from Alito’s in several ways. The biggest difference is that the losing party in Walker’s case, the Yes on 8 proponents, have filed a challenge to Walker’s decision, charging that Walker had a conflict of interest and should have recused himself. They want Chief Judge Ware to vacate Walker’s decision.

The Olson-Boies team argue against the Yes on 8 motion to vacate, noting that Walker and his partner demonstrated no apparent interest in taking advantage of any benefits of marriage when they opted not to marry in California between June and November of 2008. Yes on 8 attorneys argue, in their brief requesting Walker’s decision be vacated, that Walker never told the parties to Perry that he was in a 10-year same-sex relationship and “he has yet to disclose whether he has any interest in marrying his partner” should same-sex marriage become a possibility again in California.

But the Olson-Boies brief argues that if—as Yes on 8 attorneys argued at trial—that allowing same-sex couples to marry would harm heterosexual marriages, then “it would follow from their argument that judges married to a person of the opposite sex would also possess an ‘interest’ warranting recusal.”

“Such a standard,” argued the Olson-Boies team, “is plainly unworkable and unconstitutional.”

It is up to Chief Judge Ware to decide who’s right, after he hears oral arguments on the matter Monday, June 13, in a federal district court in San Francisco. Ware will also hear arguments Monday on a motion by Yes on 8 attorneys to permanently bar the public release of videotapes of the January 2010 trial.

It was on this latter issue—the videotapes—that Ware initially ordered Walker to appear in court Monday. The U.S. Supreme Court had barred Walker from broadcasting the trial proceedings outside the San Francisco courthouse, but he was allowed to broadcast it within the courthouse and to videotape the proceedings for his own use in constructing his decision.

Walker kept the videotapes as part of his own “chamber papers” and, through his attorneys, has said he considers them his property. But he turned the videotapes over to Judge Ware, and Ware has excused Walker from appearing in court Monday.