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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

LGBT legal activists agreed.

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

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

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

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

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

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

Opposition brief due today on Utah request for stay of marriage decision

U.S. Supreme Court Justice Sonia Sotomayor gave attorneys representing same-sex couples in Utah until noon today to file a brief in opposition to Utah’s request for a stay of a federal district court decision that struck down the state’s ban on same-sex marriage.

U.S. Supreme Court Justice Sonia Sotomayor is pondering whether to grant a stay of a federal district court’s order that the state of Utah stop enforcing its ban on marriage for same-sex couples.

The state’s new attorney general filed a petition Tuesday to the court to grant the emergency stay, after being denied a stay by both the federal district court and the Tenth Circuit U.S. Court of Appeals. Sotomayor is the justice designated to handle such requests from the Tenth Circuit. She has given attorneys representing same-sex couples until noon today to file their brief. She can either make a decision about the stay or ask the full court to weigh in. And if she refuses to grant the stay, Utah has the option of asking the full court to consider its request.

Earlier this week, in another Tenth Circuit case, Sotomayor granted a temporary stay of a provision in the Affordable Care Act that requires employers providing health insurance, including certain religious-oriented employers, to cover birth control.

In the same-sex marriage ban case, Utah Governor Gary Herbert and Attorney General Sean Reyes rely on the Supreme Court’s two marriage decisions last June. The brief says the U.S. v. Windsor decision striking the Defense of Marriage Act’s key provision made clear that the federal government “cannot constitutionally disregard State laws allowing same-sex marriage.”

But the federal district court decision in Kitchen v. Herbert, says the state, “found no animus behind Utah’s marriage laws” and yet exercised “an outright abrogation” of the state’s definition of marriage.

The brief calls each same-sex marriage in Utah “an affront” to the state and its citizens’ ability to define marriage “through ordinary democratic channels.” It argues that a stay is necessary to “minimize the enormous disruption” that might be caused by “potentially having to ‘unwind’ thousands more same-sex marriages….”

Utah voters adopted the ban on same-sex marriage and any other form of same-sex relationship in 2004 through a ballot measure known as Amendment 3 to the state constitution. Two other statutes enforce that ban. On December 20, in a lawsuit brought by private attorneys, U.S. District Court Judge Robert Shelby declared the ban unconstitutional.

In making its case for a stay, Utah’s brief said the question presented by Kitchen is “the same question” presented by last session’s Proposition 8 case. But unlike Hollingsworth v. Perry, said the Utah brief, the Kitchen case presents no questions concerning legal standing. Last June, the Supreme Court declined to rule on the constitutionality of California’s voter-approved ban on same-sex marriage because the party appealing the case lacked legal standing to do so.

Meanwhile, the Utah legislature is preparing to take up yet another constitutional amendment –one to specify that churches cannot be made to host same-sex marriage ceremonies in violation of their religious views. There seems to be less controversy surrounding this new ban. Openly gay State Senator Jim Debakis told the Salt Lake City Tribune that he doesn’t know of anybody who wants to force churches to perform ceremonies against their beliefs. The legislature convenes January 27.

Local papers have reported that between 700 and 900 marriage licenses have been issued to same-sex couples since the December 20 order barring further enforcement of Amendment 3.

Not all post-DOMA changes lead to more benefits

There was a flurry of activity among federal agencies this month to issue regulations concerning how they are complying with the U.S. Supreme Court decision striking down the key provision of the Defense of Marriage Act (DOMA). All of them were aimed at making sure same-sex marriage couples were treated equally, but not all of them resulted in a positive gain.

Arne Duncan
Arne Duncan

There was a flurry of activity among federal agencies this month to issue regulations concerning how they are complying with the U.S. Supreme Court decision striking down the key provision of the Defense of Marriage Act (DOMA). All of them were aimed at making sure same-sex marriage couples were treated equally, but not all of them resulted in a positive gain.

On Monday, the U.S. Treasury and the Internal Revenue Service issued a notice that governs how employees with same-sex spouses may sign up their spouses for health coverage and avoid paying taxes on the benefit, as straight married couples have been able to do. Previously, under DOMA, employers could not allow employees with same-sex spouses to elect coverage for that spouse on a “pre-tax basis.”

Also on Monday, the U.S. Social Security Administration announced it is now processing and paying claims for benefits of “some” surviving spouses’ of same-sex marriages.

“In addition,” said SSA Acting Commissioner Carolyn Colvin, “we are able to pay some one-time lump sum death benefit claims to surviving same-sex spouses.”

According to SSA spokesman William Jarrett, a widow or widower may receive reduced survivors’ benefits as early as age 60, and full survivors’ benefits once they reach the “full retirement age.” Full retirement age for people born between 1945 and 1956 is currently 66. Over time, however, that will increase. The full retirement age for people born in 1962 or later will be 67.

“If you’re surviving spouse is disabled, benefits can begin as early as age 50,” said Jarrett. “Your widow or widower can receive benefits at any age if she or he takes care of your child who is receiving Social Security benefits and younger than age 16 or disabled.”

Interestingly, a SSA press release quoted Commissioner Colvin as urging, “If you believe you may be eligible for Social Security, I encourage you to apply now to protect against the loss of any potential benefits.”

Asked what might cause a “loss of any potential benefits,” Jarrett said, “We don’t want an individual to delay filing an application because he or she is uncertain of the rules. A person is typically protected back to the date the application is originally filed.” SSA’s press release said it is developging “additional policy and processing instructions” in the coming weeks.

“If you are in a same-sex marriage or other legal same-sex relationship, even if you live in a state that prohibits same-sex marriage,” says the SSA website, “we encourage you to apply right away.”

But not all compliance changes in the post-DOMA aftermath improve circumstances for same-sex couples. For instance, the U.S. Department of Education on Friday announced a new policy related to eligibility for federal student loans. Under DOMA, the Department of Education could not seek information about a student’s same-sex spouse and what income that person might contribute to the student’s financial picture. Nor could they look at the contribution of a non-biological parent either married to or living with the student’s biological parent. In many cases, that probably helped a student seeking federal needs-based student aid.

A December 13 press release from the DOE says it will now consider a student loan applicant married if he or she “was legally married in any jurisdiction that recognizes the marriage, regardless of whether the marriage is between a couple of the same sex or opposite sex, and regardless of where the student or couple lives or the student is attending school.”

Students who need financial aid for their college education can apply through the Free Applications for Federal Student Assistance, or FAFSA, under the Department of Education. The program gives out over $150 billion each year in grants, loans, and work-study funds to help pay for college education for more than 15 million students. In fact, it is the largest provider of student financial aid in the country. About 22 million students apply each year.

Information provided on the FAFSA form is used to determine how much a student and his or her family can be expected to contribute to school costs and how much he or she might be eligible to receive from the federal needs-based student aid.

Where, under DOMA, the FAFSA would not collect data on same-sex spouses or parents in same-sex marriages, now it will. And this is the part of the post-DOMA change DOE’s press release focused on.

“We must continue to ensure that every single American is treated equally in the eyes of the law, and this important guidance for students is another step forward in that effort,” said U.S. Secretary of Education Arne Duncan in the press release. “As students fill out their FAFSA this coming year, I’m thrilled they’ll be able to do so in a way that is more fair and just.”

The new FAFSA forms will be gay friendlier. They refer to parents not as “Mother” and “Father,” but as “Parent 1” and “Parent 2.” They provide an option for applicants to describe their parents’ relationship status as “unmarried and both parents living together.”

Russia to create ‘protest zone’ for Olympics

The International Olympic Committee announced Tuesday that Russian authorities “plan to set up a protest zone in the city of Sochi.”

russia_flagThe International Olympic Committee announced Tuesday that Russian authorities “plan to set up a protest zone in the city of Sochi.”

Concern about protests at the Olympic Winter Games in Sochi, Russia, in February have been building for months since the Russian government and President Vladimir Putin enacted laws to prohibit virtually any form of positive expression about “non-traditional” sexual orientations. Activists have pushed athletes, corporate sponsors, and others to express their opposition to the anti-gay laws. The Russian government has promised to both abide by the Olympic Principle 6, which prohibits discrimination of any kind, and to enforce its anti-gay laws. In August, Putin even issued a special decree banning political protests during the Olympics in Sochi.

In a press release Tuesday, IOC President Thomas Bach said he welcomes the plan for the protest zone “and the fact that people will now have an opportunity to express their views and freely demonstrate their opinions in Sochi.”

“There is something terribly wrong if the head of the International Olympic Committee must request a guarantee that athletes, spectators, and Russian citizens will not be punished for speaking their mind,” said Andrew Miller, a member of Queer Nation, an activist group that has been protesting against Russia’s anti-LGBT laws.

“IOC president Thomas Bach continues to collaborate with the Russian government while Russian LGBT citizens are arrested, jailed, beaten, raped, tortured, and murdered,” said Miller. “Instead of negotiating a protest zone, he should be demanding the repeal of Russia’s anti-LGBT laws and insisting that the Russian government respect the human rights of all its citizens.”

The news of a “protest zone” came just one day after the IOC announced that it would, during Tuesday’s IOC executive board meeting in Lausanne, approve a letter to athletes reminding them that Rule 50 of the IOC Charter states that “No kind of demonstration or political, religious or racial propaganda is permitted in any Olympic sites, venues or other areas.” Tuesday’s press release indicated that the executive board did discuss Rule 50, as well as Rule 40, related to drug testing.

Bach told reporters that the idea had been “under discussion with the IOC for quite some time,” though no mention of the possibility had been mentioned previously.

Historic Senate vote: ENDA passes, 64 to 32

The U.S. Senate today approved the flagship piece of legislation that the LGBT community has fought for over the past 19 years and more. The vote of 64 to 32 marked the first time the Senate has approved the Employment Non-Discrimination Act (ENDA).

Jeff Merkley

The U.S. Senate today approved the flagship piece of legislation that the LGBT community has fought for over the past 19 years and more.

The vote of 64 to 32 marked the first time the Senate has approved the Employment Non-Discrimination Act (ENDA). The only other Senate vote, in 1996, failed on a vote of 49 to 50.

ENDA seeks to add language to the federal Civil Rights Act to prohibit employers from taking adverse employment actions against employees or job applicants based on “sexual orientation” and “gender identity.” It applies to employers with more than 15 employees but exempts some employers based on the degree to which they are involved in religious activities.

While the bill is not as comprehensive as the original legislation introduced by the late Rep. Bella Abzug (D-NY) in 1974 and championed by the late Senator Ted Kennedy (D-Mass.) beginning in 1996, it is considered to be both a critical step toward securing equal rights for LGBT people and a powerful symbolic asset.

The major hurdle now is the Republican-controlled House of Representatives. House Speaker John Boehner has repeatedly said he would not bring ENDA to the floor for a vote in the House, saying he does not believe the legislation is necessary and that it would lead to frivolous lawsuits.

That looming hurdle did not dampen the enthusiasm of senators praising the senate for its passage of the bill.

Senator Jeff Merkley (D-Ore.), who took the lead on ENDA in the Senate after the death of Kennedy, praised Kennedy’s leadership and that of others in both political parties.

“From the Declaration of Independence to the Constitution to our battles over slavery, our battles over gender discrimination, race discrimination, we have fought to capture that vision of equality and liberty and opportunity and fairness embedded in our founding documents and our founding vision,” said Merkley, at a press conference after the first two votes were secured. “We’ve taken a huge stride today in that direction.”

Senator Tom Harkin (D-Iowa), who championed the bill in his senate committee, said, “Today is an historic day.” He noted that the Congress passed the Civil Rights Act in 1964 and the Americans with Disabilities Act in 1994.

“Now, we have sort of finished the trilogy,” said Harkin, who also praised Merkley’s leadership on ENDA.

“We wouldn’t be here without Jeff Merkley,” said Harkin. “He spearheaded this whole effort.” And Harkin called Senator Tammy Baldwin’s involvement “instrumental.”

The passage of ENDA today came after the Senate first rejected an amendment to dramatically expand the number of employers who could claim a religious exemption to ENDA. The amendment, introduced by Senator Pat Toomey (R-Penn.), needed 60 votes to pass.

Section 6 of the original bill stated, “This Act shall not apply to a corporation, association, educational institution or institution of learning, or society that is exempt from the religious discrimination provisions of title VII of the Civil Rights Act of 1964.” On Wednesday, the Senate approved, by voice vote, an amendment from six Republican senators led by Senator Rob Portman (R-Ohio) to ban state and local governments from “retaliating against religious groups that take action only permissible because of the religious exemption clause” in ENDA. It was approved by voice vote Wednesday morning. While LGBT groups were not enthusiastic about the Portman amendment, they didn’t oppose it.

But nearly every LGBT group and supporter opposed the Toomey Amendment. It sought to expand the exemption to include entities “managed by a church or religious organization, officially affiliated with a particular religion, or [that] teach a curriculum directed toward propagating a particular religion.” It would also apply to organizations with “both religious and secular functions.”

Speaking on behalf of his amendment Thursday morning, Toomey said ENDA “makes a strong stand” for equality. But he said religious freedom is also an important value. He said he thinks his amendment “strikes an appropriate balance.” He said he was concerned the courts have not been consistent in recognizing which religious institutions should enjoy the religious exemptions that currently exist in the Civil Rights Act. ENDA amends the Civil Rights Act to include “sexual orientation” and “gender identity.”

Senator Tom Harkin (D-Iowa) spoke in opposition to Toomey’s amendment, saying that changing the existing language of the Civil Rights Act will call into question language that employers are already familiar with and know how to comply with. He said the Toomey amendment “officially affiliated with a particular religion” to discriminate.

“This is a new term that is undefined in the text of the amendment and could lead to thousands of pro-profit businesses being allowed to discriminate,” said Harkin. He said an employer might be considered “affiliated” simply by receiving a newsletter from a religious group. “It threatens to gut the fundamental purpose of ENDA,” said Harkin.

Baldwin, the senate’s only openly gay member, said the current religious exemption in ENDA is a “very carefully negotiated bipartisan” religious exemption. She urged the Senate to reject Toomey’s amendment.

The Senate did so, by a vote of 43 to 55.

The Senate then voted 64 to 34 to approve a procedural motion to close debate on ENDA.

ENDA supporters were clearly hoping for a robust vote in support of the underlying bill and were heartened that not one senator, over the course of four days of allotted debate time, spoke in opposition to ENDA.

Senator Jeff Flake (R-Ariz.) did express concern about the addition of language to protect people on the basis of gender identity. Flake indicated he had prepared an amendment that did not make it to the floor, but suggested that his concerns were addressed.

“When I voted for ENDA in the House in 2007, it did not contain the provisions with regard to gender identity,” said Flake. “Those added provisions have concerned me in terms of potential costs of litigation or compliance. I still have concerns, and I hope that as we work through the process and this bill moves onto the House that we can find ways to make sure that employers can implement these provisions in a way that is reasonable and proper.”

Thanking Baldwin for working with his office on “these issues,” Flake said, “I have a better appreciation for what needs to be done and what we can do with this legislation as it moves through the process.”

Baldwin, speaking at the press conference after the first two votes were taken, said “For folks, like myself, in the LGBT community, the opportunity to be judged in the workplace by your skills and qualities, your loyalty, your work ethic, is an important pronouncement for this nation.”

She talked also about the “symbolic impact” of the vote.

“When we something is wrong and it shouldn’t be done,” said Baldwin, “that sends a powerful message to prevent discrimination in the first place.”

“This is a really tremendous milestone,” said Baldwin, “ –a day I will never forget in my service in the senate.”

© 2013 Keen News Service. All rights reserved.



New Jersey becomes Number 14!

In a surprise development, the New Jersey Supreme Court on Friday denied the state’s request to delay a lower court order that allows same-sex couples to begin obtaining marriage licenses there starting Monday, October 21. The news makes New Jersey the 14th state, plus the District of Columbia to provide for marriage equality.

NJ Chief Justice Stuart Rabner

In a surprise development, the New Jersey Supreme Court on Friday denied the state’s request to delay a lower court order that allows same-sex couples to begin obtaining marriage licenses there starting Monday, October 21.  The news makes New Jersey the 14th state, plus the District of Columbia to provide for marriage equality.

It was a unanimous decision from the seven-member court, which just days earlier agreed to review the merits of that lower court decision in an oral argument scheduled for January.

Typically, when a higher court agrees to review the merits of a lower court decision, it postpones implementation of the lower court decision.

Chief Justice Stuart Rabner (an appointee of former Democratic Governor Jon Corzine) wrote the 20-page opinion on the issue of the stay. At the top of that decision, he noted that the state supreme court was also unanimous in 2006 when it ruled that the New Jersey constitution “guarantees same-sex couples in committed relationships the same rights and benefits as married couples of the opposite sex.” He said that, while an existing lawsuit challenges the legislature’s decision to give same-sex couples civil union licenses instead, the U.S. Supreme Court decision striking down the federal Defense of Marriage Act “changed the contour” of that pending lawsuit.

Windsor “changed the landscape,” said the court.

New Jersey Superior Court Judge Mary Jacobson ruled September 27 that the decision in the DOMA case, U.S. v. Windsor, requires New Jersey to allow same-sex couples to marry in order to have access to the same federal benefits as straight married couples. She said the state should begin issuing licenses to same-sex couples on October 21 and denied the state’s request to stay that ruling until the state supreme court could rule.

In its opinion, the state supreme court agreed with Jacobson’s reasons for denying the stay, saying that the harm being done to same-sex couples in New Jersey by not being able to marry is “real” and that the state “has not shown a reasonable probability” of succeeding on its challenge on the merits of Jacobson’s decision.

“This is a huge victory for New Jersey’s same-sex couples and their families,” said Hayley Gorenberg, deputy legal director for Lambda Legal, which led the challenge to New Jersey’s law. “Beginning October 21st, New Jersey’s same-sex couples will be able to marry and have the critically important rights, benefits, and protections they need for their families. Take out the champagne glasses – wedding bells will soon be ringing in New Jersey!”

Even before the state supreme court made its announcement, Newark Mayor Cory Booker announced he would preside over marriages of same-sex couples in Newark on Monday.

Lambda, ACLU lawsuits get boost in New Jersey and Illinois courts

In Illinois and New Jersey courts, the marriage equality movement won two more victories, including a major development that puts New Jersey on track to become the 14th state to allow same-sex couples to obtain marriage licenses.

In Illinois and New Jersey courts, the marriage equality movement won two more victories Friday (September 27), including a major development that puts New Jersey on track to become the 14th state to allow same-sex couples to obtain marriage licenses. And it also thrusts the issue back into the political arena in both states and possibly the next presidential election.

In Garden State Equality v. Paula Dow, Superior Court Judge Mary Jacobson ruled that, in the wake of the U.S. Supreme Court decision striking the Defense of Marriage Act (DOMA), the New Jersey scheme of providing only civil union licenses to same-sex couples violates the couples’ state constitutional rights to equal protection.

The decision set October 21 as the deadline for the state to begin to issue marriage licenses to couples in New Jersey, but Republican Governor Chris Christie said, through a spokesperson, that he would appeal to the state supreme court. That supreme court ruled in 2006 that same-sex couples should have the same rights as straight couples but allowed the legislature to decide whether those rights could be granted through marriage or some other scheme. The legislature chose civil unions.

“If they move for an appeal or stay, we will fight that every step of the way,” said Haley Gorenberg, an attorney with Lambda Legal Defense, which pressed the case on behalf of six same-sex couples and the state LGBT political group, Garden State Equality.

Just hours before that decision was released, a judge in the Illinois circuit court for Cook County denied a motion from a group of clerks from five other counties to dismiss the two lawsuits seeking the right to marry for same-sex couples in Illinois. The ruling by Judge Sophia Hall enables Lambda Legal and the ACLU to press forward with their two lawsuits, Darby v. Orr and Lazaro v. Orr. The lawsuits, which have been consolidated, ask the court to invalidate the Illinois statute banning marriage licenses for same-sex couples.

The judge has set October 8 to set a schedule for briefs to be filed in preparation for the judge make a ruling on the law.

In both Illinois and New Jersey, the court cases come at politically sensitive times.

In Illinois, State Rep. Greg Harris has vowed to press again for passage of a marriage equality bill that was reportedly close to passage there in May. But Harris withdrew the bill in the final minutes of the session, saying some colleagues asked for more time to discuss the issue with their constituents. The bill had already passed the state senate. Marriage equality supporters are planning a March on Springfield event for October 22, when the legislature comes back into session.

But the political implications are even hotter in New Jersey, where voters will go to the poll in November to either re-elect Republican incumbent Christie or replace him with Democratic challenger Barbara Buono. Buono’s daughter, Tessa Bitterman of San Francisco, is openly gay, and Buono has sponsored a bill seeking to override Christie’s veto of a marriage equality bill last year. And Buono is hammering Christie’s over the latest effort to block marriage equality.

Meanwhile, Christie, who has a wide lead over Buono in current polls, is probably trying to say as little as possible about the marriage issue because whatever he says could come back and haunt him if he makes a bid for the White House in 2016. Standing against marriage equality could help secure his nomination by an increasingly conservative Republican party, but it could hurt his chances with the more moderate general electorate –one that is increasingly supportive of allowing same-sex couples to marry.

The Garden State Equality ruling came in response to a motion Lambda Legal filed shortly after the U.S. Supreme Court, in U.S. v. Windsor, declared unconstitutional the key provision of DOMA –banning federal recognition of marriage licenses obtained by same-sex couples.

New Jersey Attorney General Paula Dow attempted to argue at a hearing on the motion in August that any harm done to same-sex couples with civil unions in New Jersey was harm done by the federal government, not by state action. She said the state did provide equal benefits to married and civil union couples. But Lambda argued that, by limiting same-sex couples to civil unions, New Jersey was causing harm to the couples by blocking their ability to access federal benefits.

In Illinois, opponents of same-sex marriage noted that Judge Hall allowed the lawsuits to proceed on only two of the five grounds that Lambda and the ACLU had pressed. The two grounds on which the lawsuits can proceed challenge the state ban as a denial of equal protection to citizens based on sexual orientation and as a violation of their due process rights. Judge Hall rejected Lambda and the ACLU’s arguments that the ban also denies equal protection based on sex. She said discrimination based on sex is “distinct from” discrimination based on sexual orientation. She said the state’s right to privacy laws have not been interpreted to cover the right to personal decisions. And she said the state’s law against legislation targeted at specific groups was written to prevent laws favoring specific groups.

Fallout over Supreme Court decision: New Jersey, other states court fights intensify

After the fireworks surrounding its landmark rulings on two cases involving same-sex marriage, the U.S. Supreme Court quietly dispensed with nine other DOMA-related petitions last week, denying their requests for review.

Jan Brewer

After the fireworks surrounding its landmark rulings on two cases involving same-sex marriage, the U.S. Supreme Court quietly dispensed with nine other DOMA-related petitions last week, denying their requests for review.

In most of those cases, the DOMA decision in U.S. Windsor took care of the questions presented. But some legal activists took special note of the fact that the Supreme Court also refused to hear an appeal from Arizona Governor Jan Brewer.

The Brewer case, Brewer v. Diaz, challenged a DOMA-like amendment passed by voters in Arizona in November 2008. The amendment to the state constitution prohibited state recognition of same-sex relationships and officially redefined “spouses” in state law to exclude state employees with same-sex partners. Lambda Legal filed suit, representing a group of gay Arizona state employees because the new state law barred them from signing up their domestic partners and children for family health insurance coverage. A federal judge ruled the state law violated the U.S. Constitution’s guarantee of equal protection, and, in a preliminary ruling, the Ninth Circuit ordered the state not to enforce the new law, pending its review. The Supreme Court’s action last week denied Brewer’s petition for Supreme Court review of that preliminary action.

The Supreme Court also refused to take up a case out of Nevada concerning statewide bans on same-sex marriage. That case, Coalition for the Protection of Marriage v. Sevcik, was brought to the high court by the Coalition, a group opposed to same-sex marriage. The Coalition, which lost a challenge to the state ban in the district court (brought by Lambda Legal), tried to leapfrog over the Ninth Circuit for a ruling from the Supreme Court. The Supreme Court rarely takes such appeals, so not much can be read into the court’s reluctance to take the Nevada case.

In other court action, Supreme Court Justice Anthony Kennedy denied a request from Yes on 8 supporters that the Supreme Court stop the implementation of its Windsor ruling before the Supreme Court had officially delivered the decision to the Ninth Circuit. Under normal procedures, a Supreme Court decision, such as in the Proposition 8 case, is formally conveyed to the appeals court below in about 25 days. But California Attorney General Kamala Harris said her reading of the law is that the Ninth Circuit did not have to wait to receive that official decision before lifting a stay it put on the district court decision, pending appeals. Harris asked the Ninth Circuit to lift its stay immediately and, on Friday, June 28, at 3:22 p.m. PDT, the federal appeals court did so. Same-sex couples immediately began getting married again in California.

The Yes on 8 coalition filed an application Saturday asking Kennedy, who oversees Ninth Circuit affairs for the Supreme court, to vacate the Ninth Circuit’s order lifting the stay. But on Sunday, Kennedy denied the request.

Also last week, an immigration judge in New York ruled that a Manhattan gay man’s Columbian husband could stay in the country indefinitely. The ruling came just hours after the Supreme Court decision in DOMA.

The Columbian, Steven Infante, had expected the judge to order him to leave the country at Wednesday morning’s hearing. According to a New York Times report, Infante married American Sean Brooks in New York in 2011, shortly after the legislature passed a bill to ensure marriage equality in the state. But Infante’s visa had expired and DOMA had prevented him from seeking a routine marital green card to stay in this country with his spouse.

And in New Jersey, which has a civil unions law, Lambda Legal announced Friday that it would file a motion this week asking the state superior court judge to rule that, in light of the Supreme Court decision on DOMA, New Jersey’s civil union option for same-sex couples clearly denies them equal protection of the law.

Haley Gorenberg, a Lambda attorney working on an 11-year-old lawsuit seeking marriage equality in that state, said the DOMA ruling was a “game changer” in New Jersey. The fact that DOMA now guarantees married same-sex couples federal benefits, she said, means the state supreme court now has evidence of tangible harms done to same-sex couples who can obtain only civil unions in New Jersey.

Because the case has already been to the state supreme court once, and because the plaintiffs include Garden State Equality, with thousands of members, Gorenberg said a ruling by the superior court judge “essentially decides for the state.”

Gorenberg said the judge has set an expedited briefing schedule for a ruling. Oral argument is tentatively scheduled for August 15.

SUPREME VICTORY: Stunning victories: DOMA, Prop 8 struck

In a stunning double victory, the U.S. Supreme Court today issued decisions that strike down both Proposition 8 and the key provision of the Defense of Marriage Act.

From the U.S. Supreme Court Collection

In a stunning double victory, the U.S. Supreme Court today issued decisions that strike down both Proposition 8 and the key provision of the Defense of Marriage Act.

The DOMA decision, a 5 to 4 split, was written by Justice Anthony Kennedy and joined by the four liberal justices of the court. It strikes as unconstitutional Section 3 of DOMA which prohibits federal recognition of valid marriage licenses issued to same-sex couples. The majority said the law  violates the guarantees of equal protection and due process.

The DOMA dissent, based largely on matters of standing, was led by Chief Justice John Roberts and joined by the court’s three other conservatives.

The Proposition 8 opinion, a 5 to 4 vote led by the Chief Justice, vacates a Ninth Circuit U.S. Court of Appeals ruling. It says Yes on 8 defenders of the law lacked standing, under federal rules of law, to make the appeal. The decision appears to leave intact the district court decision, a much broader ruling.

The dissent was a surprise: Justice Kennedy led two conservative justices plus liberal Justice Sonia Sotomayor. They said the court should accept the California Supreme Court’s determination that Yes on 8 had standing.

Reaction was understandably euphoric from LGBT legal activists and the thousands of supporters of same-sex marriage gathered outside the Supreme Court building and town hall in San Francisco.

“It’s nearly perfect. I’m thrilled,” said Mary Bonauto, civil rights project director for Gay & Lesbian Advocates & Defenders, the group which launched the first successful lawsuit challenging DOMA and secured the first right to marry from a state supreme court.

The DOMA decision, said Bonauto, “not only strikes DOMA but makes clear what we’ve been saying all along –that DOMA is discriminatory and that it is an effort by the federal government to deprive same-sex couples of their rights and to demean them.”

“We have won the freedom to marry in California,” said Evan Wolfson, head of the national Freedom to Marriage group, on MSNBC right after the decision was released in the Proposition 8 case. Wolfson noted that, with the addition of California, at least a third of the nation’s population now lives in a state with marriage equality. Prior to today, it was at about 18 percent.

Jon Davidson, legal director for Lambda Legal, called both decisions a “huge victory for married same-sex couples and their families because it will affect almost every facet of life from health care to retirement to taxes.”

The two plaintiff couples emerged from the Supreme Court building on the front steps at 10:45 a.m., with Chad Griffin, who organized the Proposition 8 lawsuit, and David Boies, one of the two lead attorneys who pressed the challenge. As they did, a chorus sang the national anthem.

On the plaza in front of the court, Boies spoke about both decisions and noted that June 26 is the tenth anniversary of the Lawrence v. Texas decision, striking down sodomy laws.

In striking DOMA, said Boies, the court ruled “there was no purpose” in denying same-sex couples the right to marry.

In the Proposition 8 case, said Boies, the court ruled that the Yes on 8 defenders of the law did not have standing to press the appeal. But he said the court’s opinion makes clear that “when” a case involving a similar ban comes before the court on merits, it is clear the majority will find it unconstitutional.

Plaintiff Kristin Perry emphasized the importance of the Prop 8 decision to the children of same-sex parents, children who can now know that their parents are equal to other parents. Her spouse-to-be, Sandra Stier, said the struggle must now continue to secure the right to marry for same-sex couples in states that deny them marriage licenses.

President Obama, aboard Air Force One on his way to Africa, called the plaintiffs while they were at the impromptu press conference in front of the Supreme Court building. He said he was “proud” and “so glad for California” and thanked them for their leadership.

The White House also posted a Twitter message quoting the president as calling the DOMA ruling an “historic step forward for marriage equality.”

The court issued its decision in the two high-profile marriage cases at 10 a.m. EDT on June 26, the last day of its 2012-13 session.

The opinions in Hollingsworth v. Perry (concerning Proposition 8) and U.S. v. Windsor (concerning DOMA) can be read in their entirety at http://www.supremecourt.gov/opinions/slipopinions.aspx.


DOMA details and reaction

In the majority opinion on the DOMA case, U.S. v. Windsor, Justice Kennedy was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. The majority affirmed a Second Circuit U.S. Court of Appeals decision that found DOMA to violate the guarantees to equal protection and due process. The majority said DOMA went “far” beyond an attempt at providing uniformity in federal policy affecting married persons and was “directed to a class of persons that the laws of New York, and of 11 other States, have sought to protect.” Regulation of marriage licensing, said the majority, “has long been regarded as a virtually exclusive province of the States.”

“The Federal Government uses this state-defined class for the opposite purpose—to impose restrictions and disabilities,” wrote Kennedy. And by doing so, he said, “DOMA seeks to injure the very class New York seeks to protect” and “violates basic due process and equal protection principles applicable to the Federal Government.”

“The Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group,” wrote Kennedy, quoting a 1973 decision in USDA v. Moreno, a decision in which the court said the government couldn’t deny food stamps to “hippies” living in communes.

Bonauto, who was reached before she had a chance to finish reading the 26-page majority decision, said it’s not clear yet whether or to what extent married same-sex couples living in states that ban recognition of marriage licenses for same-sex couples would be able to obtain federal benefits.

“Clearly, if they live in a marriage equality state, they’re protected,” said Bonauto. She said many would also be able to obtain benefits related to immigration and the military to the extent those areas recognize marriage licenses regardless of what state they were issued in. She said there may be some additional legal work necessary to secure federal benefits for all married same-sex couples but that the federal government “has the flexibility,” such as with tax returns, “to recognize marriage licenses as soon as they are formed.”

“I think we’ll have a patchwork at first but it will become a tighter quilt as time goes on,” said Bonauto.

U.S. Attorney General Eric Holder issued a statement calling the DOMA ruling an “enormous triumph for equal protection under the law for all Americans.”

“At the President’s direction,” said Holder, “the Department of Justice will work expeditiously with other Executive Branch agencies to implement the Court’s decision.  Despite this momentous victory, our nation’s journey – towards equality, opportunity, and justice for everyone in this country – is far from over.  Important, life-changing work remains before us.  And, as we move forward in a manner consistent with the Court’s ruling, the Department of Justice is committed to continuing this work, and using every tool and legal authority available to us to combat discrimination and to safeguard the rights of all Americans.”

Edith Windsor’s attorney Roberta Kaplan told reporters, “It is now clear that discrimination against gay people solely because they are gay violates the United States constitution.”

CNN legal analyst Jeff Toobin called the DOMA decision “an immense victory for same-sex marriage supporters” and one that “will change the lives of thousands of marriages in 12 states where it is legal.”


Prop 8 details and reaction

Toobin said that, in the Proposition 8 case, Hollingsworth v. Perry, the court could have said same-sex marriages must be allowed in all 50 states “and it did not say that.”

“But it did seem to open the door to same-sex marriages in California and it …certainly does look like court is moving in the direction of everybody has the right to marry,” said Toobin.

Chief Justice Roberts wrote the majority decision in the Proposition 8 case, joined by Justices Antonin Scalia, Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan.

The majority decision vacated the Ninth Circuit U.S. Court of Appeals decision with instructions to dismiss the appeal pressed by the Yes on 8 coalition that won passage of Proposition 8. It said Yes on 8’s “only interest in having the District Court order reversed [at the Ninth Circuit] was to vindicate the constitutional validity of a generally applicable California law.” Such a “generalized grievance,” said the majority, is “insufficient to confer standing.”

“A litigant ‘raising only a generally available grievance about government—claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large—does not state an Article III case or controversy.’”

Once Proposition 8 was approved by the voters, said the majority, “the measure became ‘a duly enacted constitutional amendment or statute. Petitioners have no role—special or otherwise—in the enforcement of Proposition 8…. They therefore have no ‘personal stake’ in defending its enforcement that is distinguishable from the general interest of every citizen of California.”

“We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here,” wrote Roberts.

“Because petitioners have not satisfied their burden to demonstrate standing to appeal the judgment of the District Court, the Ninth Circuit was without jurisdiction to consider the appeal,” wrote Roberts. “The judgment of the Ninth Circuit is vacated, and the case is remanded with instructions to dismiss the appeal for lack of jurisdiction.”

Once the Ninth Circuit dismisses Yes on 8’s appeal, the district court ruling by former Chief Judge Vaughn Walker will remaining the law concerning Proposition 8. Walker, who came out as gay after retirement, ruled that Proposition 8 violated the federal equal protection clause because there was no rational basis for limiting the designation of marriage to straight couples. He also said it violated the federal due process clause because there was no compelling reason for the state to deny same-sex couples the fundamental right to marry.

Plaintiff attorney Ted Boutrous said they expect it will be about 25 days before the official judgment in the Proposition 8 case takes effect, though it may happen sooner. That is the estimate San Francisco City Attorney Dennis Herrera’s website gave earlier this month.

In dissent, Justice Kennedy, joined by Justices Clarence Thomas, Samuel Alito, and Sonia Sotomayor, said they would have recognized Yes on 8 as having standing because the state supreme court had ruled Yes on 8 did have standing.

CNN interviewed a Baptist minister who said the rulings would “radically transform the institution of marriage” and be “very, very devastating” for the country.

Family Research Council leader Tony Perkins told CNN the Prop 8 decision was a “punt” on the question of same-sex marriage bans. He predicted the two decisions would lead to teachers teaching homosexuality in school and religious groups losing their tax-exempt status.

But supporters of marriage equality see a much different scenario.

Chad Griffin, the founder of the American Foundation for Equal Rights which organized the Proposition 8 lawsuit and who now heads the Human Rights Campaign, said in a telephone press conference with reporters Wednesday afternoon that he had already been in touch with Attorney General Eric Holder about implementation of the ruling.

Currently, 13 states (counting California) and the District of Columbia will issue marriage licenses to same-sex couples the same as to male-female couples.

Griffin said the LGBT civil rights movement must now adopt an “urgent new commitment” to bring marriage equality to all 50 states “within five years.”

Leahy submits language to help bi-national same-sex couples

As expected, U.S. Senator Patrick Leahy introduced amendments Tuesday (May 7) to enable gay citizens to sponsor their “permanent” same-sex partners for immigration, under the proposed comprehensive immigration reform legislation.

Patrick Leahy

As expected, U.S. Senator Patrick Leahy introduced amendments Tuesday (May 7) to enable gay citizens to sponsor their “permanent” same-sex partners for immigration, under the proposed comprehensive immigration reform legislation.

The Senate Judiciary Committee will begin considering amendments to the immigration bill (S. 744) starting Thursday (May 9) and the committee’s work on the bill is expected to spread out over several days throughout the month.

A total of 53 amendments were submitted by the May 7 deadline, including 29 from the committee’s Democrats and 24 from Republican member Senator Orrin Hatch of Utah. Senators Dianne Feinstein (D-Calif.) and Dick Durbin (D-Ill.) did not introduce amendments.

Only Leahy’s amendments address same-sex couples. One seeks to insert the language of the Uniting American Families Act (UAFA) into the bill to allow a U.S. citizen to gain citizenship for his or her “permanent partner.” The second amendment would treat as a “spouse” a person who has entered a marriage with a citizen that is “valid in the State in which the marriage was entered into.”

The latter amendment, said Steve Ralls, a spokesman for Immigration Equality, seeks to “recognize married LGBT couples for immigration purposes.”

“This second amendment – which is specifically in line with what Senator Feinstein has said she will support in Committee – provides the same benefits LGBT bi-national couples would receive if the Supreme Court strikes down the Defense of Marriage Act,” said Ralls.  “It is important to note that this second amendment, when passed, would permit couples in non-marriage states to travel to a marriage equality state and still receive a green card. It would also allow couples in exile to marry abroad and have their marriage recognized for U.S. immigration purposes.”

“The demise of DOMA would lead to gay and lesbian couples having the same access to immigration benefits” as male-female married couples, said Lavi Soloway, head of The DOMA Project, which is working to help same-sex bi-national couples.

Immigration Equality supports both amendments.

Ralls said his group expects Republican opposition to the same-sex couple language will “get louder” during the committee mark-up on the amendments.

“But we are confident that Senator Leahy will secure the 10 votes our families need, and that immigration reform will be inclusive when it arrives in the full senate,” said Ralls.

If the Leahy language goes into the bill in Committee, where Democrats have a majority, any effort to strip out that language on the Senate floor would likely require 60 votes to gain cloture before proceeding to the vote to strip the language. But even if the UAFA language passes the Senate, the Republican-led House version of immigration reform will almost certainly not include it. That will put it in the hands of a Senate-House conference committee, where trade-offs and compromises often take place in order to hammer out one version of the legislation to take back to both chambers.

Senator Marco Rubio (R-Fla.) told politico.com last month that adding language to allow same-sex partners to immigrate would “virtually guarantee” the overall bill won’t pass and predicted it would undo the cooperative spirit of the “Gang of Eight” senators who put the reform bill together.

Congress is expected to vote on the overall bill in June.

Delaware votes for marriage equality; becomes 11th state to make it the law

Just minutes before the Delaware Senate was set to vote on its marriage equality bill, a Democrat senator who had been quiet about how she would vote announced on her Facebook page that she would vote yes.

Jack Markell

Just minutes before the Delaware Senate was set to vote on its marriage equality bill, a Democrat senator who had been quiet about how she would vote announced on her Facebook page that she would vote yes. The announcement by Senator Bethany Hall-Long, who represents Dover, the state capital, came just minutes after the city’s other Democratic senator, Karen Peterson, came out as gay on the floor during debate.

The final roll call vote, after three hours of debate, was 12 to 9, with the gallery erupting into loud and prolonged applause. The twelve supporters included one Republican; the nine opponents included two Democrats.

Just minutes later, Democratic Governor Jack Markell signed the bill, making Delaware the eleventh state plus the District of Columbia to provide for equal protection under its marriage laws. Meanwhile, a Minnesota House Ways and Means Committee gave the marriage equality bill there a green light Monday, and the House floor is scheduled to vote on the measure Thursday (May 9). Democratic Governor Mark Dayton is lobbying actively for the measure.

And Illinois is also poised to take a final vote on its marriage equality bill this week. The state senate passed the bill in February; the House bill needs 60 votes to pass.

Tuesday’s debate in Delaware sounded at times as if marriage for same-sex couples was a completely novel idea with numerous unforeseen “consequences.” One senator asked if the marriage equality law would still allow businesses to discriminate against gay couples. (The state of Delaware already has a law prohibiting discrimination based on sexual orientation.) Another said gays were attempting to secure marriage in an effort to feel normal, made a reference to the “Queen James Bible,” and lamented that it would lead to a bill to address the concerns of “transgenders.” One speaker suggested the bill was taking control of children from parents and giving it to the government. Another said it would lead to polygamy.

Senator Robert Marshall, one of four Democrats whose vote was not known before Tuesday, noted that it took hundreds of years to assure that blacks and women had equal rights.

“No one in this chamber would support laws that prohibited a black person from marrying a white person, yet many states did so,” said Marshall. “Is the right to choose a life partner any different.” He said he supported civil unions two years ago, but that he considered it an incremental step toward allowing marriage.

“I have concluded that it is the fundamental civil right to choose our life partner,” said Marshall, adding that he would vote for the bill. That signaled the bill needed just one more vote to pass.

Next up, was another Democrat whose vote was not known prior to Tuesday, Senator Robert Venables. Venables said he, too, thought civil unions was a step toward eventual recognition of marriage but unlike Marshall, he voted against civil unions two years ago.

“What really they want is to feel comfortable in their lifestyle and I don’t see anything wrong with that,” said Venables, but he said allowing same-sex marriage jeopardizes the sanctity of marriage.

Noting that President Obama had indicated his support for marriage for same-sex couples, but that, “I’ve not so far evolved. I wonder what’s wrong with me?” asked Venables. “I don’t wish anybody ill will but I don’t see why civil unions couldn’t be enough.”

In Delaware, legislators are allowed to invite guests to the floor to make certain points. Opponents of the bill invited a spokesman from an anti-gay group, the Alliance Defense Fund, to say the bill was a tool of LGBT activists to label people who support “traditional” marriage as bigots, force adoption agencies to place children with same-sex couples, and deny parents the right to opt their children out of curricula that recognizes same-sex marriage.

Teachers, said ADF’s Jordan Lorence, would be “forced” to teach things they don’t believe in.

Senator Harris McDowell expressed dismay at Lorence’s getting far afield of the measure on the floor. Nevertheless, an opponent’s witness later during the discussion claimed to have a recording of a Russian journalist speaking to a group of cheering gay activists and saying the purpose of marriage equality was the “dissolution of the institution of marriage.”

Bill supporter Senator David Sokola invited Mark Purpura to the floor to explain the purpose of the bill. Purpura said the bill was would allow the issuance of marriage licenses to same-sex couples and convert current civil unions into marriage licenses. The bill, he explained, repealed a ban on same-sex marriage passed in 1996 but would not require any clergy or religious official to solemnize a marriage for a same-sex couple.

Sokola also called to the floor the head of Equality Delaware’s leader Lisa Goodman, who attempted to explain why she told the legislature two years ago that a civil unions bill was not a step along the way to a marriage equality bill.

“We would be here today, regardless of whether civil unions had happened,” said Goodman. She said the “rapid shift” of public opinion has inspired marriage equality supporters to come back and seek equal rights in marriage.

Senator Karen Peterson, a Democrat representing the capital city of Dover and who reportedly had not come out as gay publicly before the debate, talked about exchanging vows with her female partner and added, “if my happiness somehow demeans or diminishes your marriage, then you need to work on your marriage.”

Senator Bryan Townsend, a Democrat, noted that Delaware was once one of 16 states that prohibited interracial marriage, including his own.

The Delaware bill passed the House on April 23 by a vote of 23 to 18. And Equality Delaware organized its supporters to attend Tuesday’s vote and to wear red for visibility.

The Delaware bill calls for the bill to go into effect on July 1, a month before a bill signed by the Rhode Island governor last week goes into effect.

Rhode Island marriage law signed; Two more states could vote next week

Rhode Island Governor Lincoln Chafee signed a marriage equality bill into law this evening, just an hour after the state House gave the measure its final procedural approval. Two more states could approve marriage for same-sex couples next week.

Gordon Fox

Rhode Island Governor Lincoln Chafee signed a marriage equality bill into law this evening (May 2), just an hour after the state House gave the measure its final procedural approval. Two more states could approve marriage for same-sex couples next week.

In Rhode Island, Chafee’s signature seals the state’s position as the tenth state to provide same-sex couples with the same right to marriage licenses as male-female couples. Rhode Island is also the fourth state to do so in the past six months.

Next up is a similar bill in Delaware, due to get its final vote Tuesday (May 7). The bill passed the Senate’s Executive Committee May 1 and is expected to get its final vote Tuesday on the Senate floor, where Democrats have a two-to-one majority. The bill has already cleared the House, on April 23 by a vote of 23 to 18. And Democratic Governor Jack Markell says he supports the measure and hopes it will pass this year.

And Illinois is also poised to take a final vote on its marriage equality bill, perhaps as soon as next Tuesday. The state House is expected to take up a marriage equality bill that passed in the Senate, as soon as supporters feel confident they have the 60 votes needed to pass.

If Delaware and Illinois both pass their bills, then marriage equality state count will stand at 12 plus the District of Columbia with half of that number having approved the measures in just the past six months.

In Rhode Island, the House originally passed a marriage equality bill in January on a vote of 51 to 19. But when the Senate passed its version of the bill, it made some changes that required the measure to go back to the House for final legislative approval.

To sustained applause from the House, Rep. Jeremiah O’Grady congratulated House Speaker Gordon Fox for his leadership in getting the bill moved through the legislature. Fox, who is openly gay, took considerable heat two years ago when he killed a marriage equality bill and moved a civil unions bill instead.

Thursday’s “debate” was marked by numerous emotional statements of support for marriage equality and for equality in general.

While passage of the bill will mean no change to straight couples, said Rep. Deborah Ruggiero, “Tomorrow, gay and lesbian couples in Rhode Island are going to wake up to a different world.”

Rep. Peter Martin, a Democrat from Newport, announced that his daughter was texting him to support the bill while watching the vote from San Francisco on a live web stream.

Rep. Karen MacBeth remembered being a kid when Aaron Frick, a high school student in Providence in 1980 who had to sue for the right to take a male peer to the prom, creating such a stir in the heavily Catholic state that the publicity went national.

Even representatives who voted against the bill expressed gratitude for how Speaker Fox’s led the debate and expressed support for gays and lesbians having equal rights.

Rep. Frank Ferri, who introduced “my husband Tony,” choked back emotion as he noted that the bill goes into effect on his and Tony’s 32nd anniversary, August 1. They married in Canada but will now marry in Rhode Island.

The final vote was 56 to 15 and was greeted with a prolonged standing ovation and numerous loud cheers from the floor and a packed gallery, which then broke into a spontaneous chorus of “My Country Tis of Thee.”

Independent Governor Chafee, a long-time supporter of equal rights for LGBT people, scheduled a ceremony for 5:45 EDT on the South Steps of the State House to sign the bill into law in a public ceremony. The ceremony opened with a song from the Providence Gay Men’s Chorus in front of a large crowd.

The governor’s chief of staff, Stephen Hourahan, an openly gay man, welcomed the crowd and thanked the governor and state leaders for making the vote possible. He noted that Chafee was one of only two U.S. senators who, in 2004, supported allowing gay couples to marry.

“We are living up to the ideals of our founders,” said Chafee. He thanked the many openly gay and straight legislators who “worked for decades” to bring marriage equality to Rhode Island, including Speaker Fox, State Senator Donna Nesselbush, U.S. Rep. David Cicilline, and Ray Sullivan, head of Rhode Islanders United for Marriage.

“I know that you have been waiting for this day to come. I know that you have loved ones who dreamed of this” but who have passed on, such as Julie Pell, the late daughter of former U.S. Senator Claiborne Pell, said Chafee. “At long last, you are free to marry the person you love.”

Fox thanked Chafee as a “true friend and ally” in the struggle to obtain marriage equality in Rhode Island. He thanked Rep. Art Handy, a straight representative, for introducing the bill 11 years ago. And he thanked colleagues in the House, many of whom were originally opposed to the measure, as well as Senate President Teresa Weed, who allowed the vote in the Senate despite her personal opposition.

Fox also defended his own controversial decision two years ago to substitute a civil unions bill for a marriage equality one. He said he was always determined to make the bill happen and that the unhappiness of many with that move two years ago helped build the passion and advocacy to succeed on marriage equality this year.

Second-term Senator Donna Nesselbush, who is also openly gay and sponsored the bill in the Senate, said, “We would not be here today if you were not our proud, openly gay speaker of the House.”

“We changed hearts and minds on this issue one at a time,” said Nesselbush.

Meanwhile, a civil unions law — often a precursor to marriage equality bills — went into effect May 1 in Colorado.

Other states on the verge of considering marriage equality bills this year include:

  • Minnesota – a House committee passed a bill in March filed by long-time openly lesbian state Rep. Karen Clark, just one day after a Senate committee did the same. Minnesotans United press spokesman Jake Loesch said a floor vote in either house could come as early as next week and must clear before May 20. Democratic Governor Mark Dayton is lobbying actively for the measure.
  • New Jersey – supporters of marriage equality are trying to override Republican Governor Chris Christie’s veto last year of a marriage equality bill. Garden State Equality says it is close to securing the 27 votes in the Senate and 54 votes in the Assembly to do so. It has until the end of the session, January 2014, to do so. Garden State Equality spokesman TJ Helmstetter said he thinks the U.S. Supreme Court’s ruling on the Defense of Marriage Act (DOMA) in June could help the effort.

Rhode Island marriage bill clears final hurdle with all Republicans

After a moving speech by a senator who described herself as a lifelong, devout Catholic and said she would support marriage equality, the Rhode Island Senate Wednesday afternoon voted to approve a bill allowing same-sex couples to marry in the state.

Donna Nesselbush

After a moving speech by a senator who described herself as a devout Catholic and said she would support marriage equality, the Rhode Island Senate Wednesday afternoon (April 24) voted 26 to 12 to approve a bill allowing same-sex couples to marry in the state. The Senate bill must now  go to the House, which passed a different version of a marriage equality bill in January on a strong 51 to 19 vote. The bill is expected to clear that hurdle easily next week and the governor has already indicated he will sign it. When that happens, Rhode Island will become the tenth state in the nation, plus the District of Columbia, to begin treating same-sex couples the same as male-female couples in marriage licensing and recognition.

The Rhode Island Senate vote followed by one day a vote in the Delaware House to pass a marriage equality bill, 23 to 18. And it followed exactly one week after the New Zealand legislature passed marriage equality legislation on April 17.

Uruguay’s legislature passed a marriage equality law April 10. And the French National Assembly, following the lead of its Senate, approved similar legislation April 23, meaning the measure there needs to clear only one pre-enactment judicial review before French President François Hollande can sign it into law.

In Rhode Island, openly gay House Speaker Gordon Fox told the Providence Journal he believes the Senate version of the bill, sponsored by openly lesbian Senator Donna Nusselbush, would pass the House and be on the governor’s desk next week.

Before passing the marriage law, the Senate also rejected an attempt to put the issue before voters, by a 28 to 10 vote.

In contrast to the votes in many state legislative bodies, the vote in Rhode Island had most Republicans in support of the measure. Republican Senator Dawson Hodgson said the Republican caucus was “unanimous” in its support of the bill. In fact, all five of the Senate’s Republicans voted for the bill; and a third of the Democrats voted no, including Senate President Teresa Weed. Weed won considerable praise from supporters of the bill, however, for allowing the measure to proceed to the floor for consideration.

Of the Senate’s 31 Democrats, 21 voted for the bill, 10 against. One of the no votes was from Senator Howard Metts (D-Providence) who read numerous Biblical passages, promising that approval of marriage bill would result in “sin and death.”

The one independent senator voted no.


Meanwhile, the Illinois House is expected any day now to take up a marriage equality bill passed in the Senate.

In Nevada this week, state senators were reportedly surprised when one of their own –state Senator Kelvin Atkinson (D-North Las Vegas)—came out to them on the floor of the Senate as the chamber was debating a bill to repeal the state’s current ban on marriage licenses for same-sex couples.

The 21-member Nevada senate voted 12 to 9 Monday night (April 22) to approve a measure to amend the state constitution to remove language that currently bans recognition of marriages for same-sex couples. Because it is a state constitutional amendment, the measure must still pass the Assembly and then pass both the Senate and Assembly in 2015 and be approved by voters in 2016.

According to the Las Vegas Sun, the vote came after about an hour of debate during which time Atkinson spoke of his father’s interracial marriage and then told colleagues, “I’m black. I’m gay.”

The Sun said the senate rejected an effort to add language that would have not only removed the ban but required recognition of same-sex unions.

The legislative actions in the U.S. followed news of a critical vote in France, approving marriage equality this week, and a final approval for marriage equality by the New Zealand legislature April 17.

The New Zealand law does not require that same-sex couples reside in the country before obtaining a marriage license and, thus, is expected to attract many same-sex couples from Australia. Uruguay’s legislature passed a marriage equality law April 10.

The approval of marriage equality in France elicited loud and raucous protests from opponents of allowing same-sex couples to marry. Some news reports, including the New York Times, estimated protesters as numbering “hundreds of thousands.” But despite those protests, 53 percent of the French Senate passed the marriage equality legislation April 12, and its National Assembly did so on April 23 with the support of almost 60 percent of the Assembly’s members.

The number of countries providing marriage equality for same-sex couples now stands at 13, with eight of those moving to marriage equality in the last five years. The 13 are: the Netherlands (in 2001), Belgium (2003), Spain and Canada (2005), South Africa (2006), Norway and Sweden (2009), Argentina, Iceland, and Portugal (2010), Denmark (2012), and New Zealand  and Uruguay (2013).

In addition to France, Australia may soon be taking up marriage equality, thanks in large part to its passage in neighboring New Zealand. The law in New Zealand does not require that same-sex couples reside in the country before obtaining a marriage license and, thus, many expect that a large number of same-sex couples from Australia with make the three-hour flight to secure legal recognition of their relationships. The national group Australian Marriage Equality says it plans to make same-sex marriage “a central issue” in the country’s elections this year. Prime Minister Julia Gillard told an ABC radio interviewer April 24 that she is opposed to same-sex marriage but is “not seeking to impose my views on anybody.”

Illinois, Rhode Island poised for marriage votes this month

The race to become the tenth state to provide for marriage equality just got more interesting, as both Illinois and Rhode Island legislatures are on track to take final votes this month.

Teresa Paiva Weed

The race to become the tenth state to provide for marriage equality just got more interesting, as both Illinois and Rhode Island legislatures are on track to take final votes this month.

In a surprise development, Rhode Island Senate President Teresa Weed acknowledged to a Providence Journal reporter Sunday that she would allow a floor vote on the marriage equality bill by the end of the month. Weed, who is opposed to the bill, had previously promised only to allow a Senate committee vote if the bill passed the House. The marriage equality bill passed the Rhode Island House in January on a 51 to 19 vote.

Weed press spokesman Greg Pare confirmed Tuesday that Weed plans to bring the bill to a vote in the Senate Judiciary Committee soon after the legislature returns from its spring break next week. He said Weed also committed to allow a floor vote a “couple of days after that,” before the end of this month.

Meanwhile, the Illinois House is also looking at the real possibility of taking its historic vote on marriage equality this month. The Senate passed the legislation in February on a 34 to 21 vote.

As of Tuesday (April 9), Equality Illinois leader Bernard Cherkasov said he didn’t have a timeline for when the House vote might happen, but added, “I do feel confident that the marriage bill will pass with strong, bipartisan support.”

The Illinois House has 118 members, 71 Democrat and 47 Republican. The bill needs 60 votes to pass. Associated Press said Democratic Governor Pat Quinn told reporters Monday (April 8) that supporters of the legislation are “very close” to getting the votes they need.

Both Quinn and Rhode Island’s independent Governor Lincoln Chafee have said they will sign the marriage equality legislation. While either state would represent another success for LGBT civil rights supporters, passage in Illinois would put the nation’s fifth most populous state in the victory column. That would make Illinois the second most populous of the marriage equality states, behind New York. It would also mean that 15 percent of the U.S. population would be living in states where same-sex couples are allowed to marry. If Rhode Island and California come onboard this year –as they could (California through a U.S. Supreme Court decision) —that figure would jump to nearly one-third of the population.

The Illinois legislature has been in recess for the past several weeks and reconvened Monday (April 8), but both supporters and opponents of marriage equality have been busy during recess.

Several local websites have reported escalating use of robo-calls by opponents of allowing gays to marry. One Chicago neighborhood website, dnainfo.com/Chicago, said constituents of at least one House legislator were receiving robo-calls saying that same-sex marriage “denies children the right to know who their real parent it.” The website said the recording was produced by Family-PAC. An earlier robo-call message said “homosexual activists” were demanding marriage regardless of its consequences, adding, “Children are not playthings or social experiments.” It was recorded by a local conservative talk show host, Sandy Rios.

But there have been high-profile supporters, too. National civil rights leader Julian Bond issued a statement in support of Illinois marriage equality last week. Chicago Mayor Rahm Emanuel, Chicago Urban League CEO Andrea Zopp, Hyatt Hotels Corporation President Mark Hoplamazian, Latino Policy Forum Executive Director Maria Pesqueira, and the two local daily newspapers are also supporting marriage equality.

And Windy City Times reported that four well-known local sports stars sent a letter to House members urging their support for marriage equality. They included Chicago Cubs’ Baseball Hall of Fame shortstop Ernie Banks and three former players with the Chicago Bears football team. One of them, Brendon Ayanbandelo, now plays for the Super Bowl Championship team the Baltimore Ravens. He spoke out in support of marriage equality in Maryland, too.

Even the head of the Illinois Republican Party, Pat Brady, announced support for the bill. That move, in January, put him at odds with many in his party –so much so, the state party held a caucus March 8 to consider ousting him from his position as chairman of the state party. But The Chicago Tribune reported that the meeting was later cancelled when opponents failed to identify enough votes (60 percent of the membership) to replace Brady. The Tribune said the National Organization for Marriage organized a form-letter campaign directed at party members against Brady. The Chicago Sun Times reported that U.S. Senator Mark Kirk (R-Ill.) were among the Republican leaders in the state who lobbied for Brady’s retention.

Brady’s support has been joined recently by two Republican members of the House –one Republican leader, Rep. Ed Sullivan of Mundelein, and Rep. Ron Sandack of a Chicago suburb.

Mundelein told Associated Press that his mother-in-law is gay and that has given him a “more familiar and fair understanding of people who are in same-sex relationships.”

Meanwhile, the Santa Fe Mayor David Coss submitted a resolution to the City Council March 27, seeking declaration that same-sex couples have a right to obtain marriage licenses in New Mexico. The Council is expected to vote April 24. Oregon Secretary of State Kate Brown announced April 5 that petitioners have until July 3, 2014 to gather the more 116,000 signatures needed.

Political jousting over DOMA standing, but legal activists encouraged

Today’s argument in the U.S. Supreme Court over the Defense of Marriage Act sounded at times as if President Obama was on trial for enforcing the law even though he considers it unconstitutional. At other times, it sounded like Congress was on trial.

Chief Justice John Roberts (Photo credit: Steve Petteway, Collection of the Supreme Court of the United States)

Today’s argument in the U.S. Supreme Court over the Defense of Marriage Act sounded at times as if President Obama was on trial for enforcing the law even though he considers it unconstitutional. At other times, it sounded like Congress was on trial, for attempting to cloak its moral disapproval of gay people under the guise of seeking “uniformity.” And at the end of two hours, LGBT legal activists seemed cautious but optimistic that there are five votes to find DOMA unconstitutional.

It was the second and final day of two historic sessions at the nation’s highest court to hear oral arguments in cases challenging the federal law denying recognition of marriage licenses granted to same-sex couples and challenging a state law banning same-sex couples from obtaining marriage licenses.

Wednesday’s case, U.S. v. Windsor, posed the question of whether Section 3 of DOMA violates the equal protection clause of the Fourteenth Amendment. New York lesbian Edith Windsor filed the lawsuit with the help of the ACLU when the federal government demanded she pay more than $360,000 in estate taxes after her same-sex spouse died. Surviving spouses in male-female marriages do not have to pay estate taxes.

The first 50 minutes of the two-hour argument was given to a discussion of whether the case was properly before the court, given procedural questions. On the issue of whether DOMA’s constitutionality, former George W. Bush Solicitor General Paul Clement, an attorney hired by the Republican-led Bipartisan Legal Advisory Group (BLAG), said the Congress, in passing the law in 1996, did not discriminate against gays but simply decided to define the term “marriage” “solely for federal law” in order to ensure “uniformity” in the deliverance of benefits.

“It’s rational for Congress to say its treating same-sex couples in New York the same as same-sex couples in Nebraska,” said Clement.

That assertion did not go unchallenged.

Justices Sonia Sotomayor, Elena Kagan, Stephen Breyer, Anthony Kennedy, and Ruth Bader Ginsburg all questioned Clement on it.

“What gives the federal government the right to be concerned at all about the definition of marriage?” asked Sotomayor, noting that marriage has always been considered an area of state law. She suggested members of Congress appeared to create a law to disfavor a “class they don’t like.”

When Clement suggested Congress was helping the states by putting the issue on “pause” and letting the states work through the democratic process in deciding the law in each state, Kennedy noted that DOMA seemed instead to be “helping states if they do what [members of Congress] want them to do.”

Justice Ginsburg said DOMA appears to affect same-sex couples by turning their marriages into a sort of “skim milk,” in comparison to whole milk version enjoyed by male-female couples.

Justice Kagan perhaps hit the hardest note when she said the record of House proceedings around DOMA in 1996 seemed to indicate Congress “had something else in mind than uniformity….something that’s never been done before.” She quoted a passage of the House report that said that DOMA was intended to express “moral disapproval” of marriage for same-sex couples.

“That’s a pretty good red flag,” said Kagan.

Clement seemed to be caught off guard by the excerpt. “Does the House Report say that?”

The challengers of DOMA appeared off guard at times, too.

Chief Justice John Roberts asked both Solicitor General Donald Verilli and plaintiff’s attorney Roberta Kaplan whether it would be permissible for Congress to adopt a definition for federal purposes that included gay couples, rather than excluded them.

Verilli said the House Report excerpt “makes glaringly clear” that DOMA was intended to exclude lawfully married same-sex couples.

“Are you saying that 84 senators were motivated by animus?” asked Chief Justice Roberts in follow-up to both Verilli and Kaplan.

Both Verilli and Kaplan clearly avoided saying that think DOMA was motivated by animus.

“It could have been a lack of reflection or an instinctive response,” said Verilli. But, he added emphatically, “Section 3 discriminates and it’s time for this court to recognize that discrimination cannot be reconciled with our fundamental commitment to equal protection of the law.”

But it was during questioning about the procedural matters that Roberts and other conservative justices hammered on what came across as much as a political jousting as it was a legal matter.

Roberts wondered why President Obama didn’t have “the courage of his convictions” that DOMA was unconstitutional and “instead, wait until the Supreme Court” rules it so.

Justice Samuel Alito said he thought it odd that President Obama would continue to enforce DOMA “until the court tells him to stop.”

Justice Breyer commented that the president has an “obligation” to faithfully execute the laws, whether he likes them or not.

Jon Davidson, legal director for Lambda Legal, said he was “very encouraged” by the argument.

“When it comes to the merits, I think there are at least five justices who are prepared to strike down Section 3 of DOMA,” he said. “One of the things that Justice Ginsburg said at the end, about the beginning of the sex discrimination cases, the court did strike down laws that discriminated based on sex based on rational basis, and saw it as discrimination.”

Mary Bonauto, head of civil rights for Gay & Lesbian Advocates & Defenders, said she thought the questioning was “vigorous” on the procedural issue of standing. On the issue of DOMA’s constitutionality, she said she thought Justice Kagan “called out” the discriminatory statement in the House report.

“Overall, they were asking the right questions and the right themes were in play,” said Bonauto.

Jenny Pizer, a Lambda Legal attorney who followed the case at the three-week trial in San Francisco, said she thought it was clear that the argument of “uniformity” made “no sense at all.”

“It was surprising to me the suggestion from some of the conservative justices that the administration should not enforce laws when they have questions about constitutionality or have a view of constitutionality different from previous administrations have said. That seems immensely impractical,” said Pizer.

“One thing that did seem clear yesterday and today,” said Pizer, “is that we’re witnessing a moment of recognition of anti-gay discrimination and the government trying to come to terms with how it should change. Perhaps we shouldn’t be that surprised that some justices are resistant to addressing the merits of question, but the justices are particularly well situated to address them.”

Yesterday’s argument was over the constitutionality of Proposition 8, California’s voter-approved ban on marriage licenses for same-sex couples. The court heard 80 minutes of argument in Hollingsworth v. Perry over whether it should find California’s ban on same-sex marriage unconstitutional.

In both cases, both sides see Justice Anthony Kennedy as the most likely justice to provide a fifth vote for the winning side. But Tuesday’s argument in the Proposition 8 case left many speculating that the court may decide that opponents of marriage quality did not have proper legal standing to appeal the case.

Legal standing was an issue in the Windsor case, too, because the Obama administration appealed the Second Circuit U.S. Court of Appeals ruling that DOMA violates the equal protection clause of the constitution. A party bringing an appeal must show it is injured by the lower court holding.

Prop 8 arguments roller coaster on standing and merits of marriage ban

The U.S. Supreme Court took the marriage equality issue on a roller coaster ride Tuesday as it heard almost 90 minutes of argument in the case testing the constitutionality of California’s ban on same-sex marriage.

Anthony Kennedy

The U.S. Supreme Court took the marriage equality issue on a roller coaster ride Tuesday as it heard almost 90 minutes of argument in the case testing the constitutionality of California’s ban on same-sex marriage.

For supporters, the highs included Justice Sonia Sotomayor asking whether there was any other context other than marriage where there would be a rational basis reason for using sexual orientation as a factor in denying rights to gay people rights, to which Yes on 8 attorney Charles Cooper conceded “I do not have anything to offer.” And they included Justice Anthony Kennedy commenting on the importance of considering the “immediate legal injury” that 40,000 children in California suffer because their same-sex parents are not allowed to marry.

The lows included the considerable time justices spent wrangling over whether the Yes on 8 supporters of Proposition 8, California’s ban on same-sex marriage, have proper legal standing to appeal the case. It included Chief Justice John Roberts saying the debate was “just about the label” marriage. And it included Justice Antonin Scalia repeatedly interrupting marriage equality attorney Ted Olson demanding that he identify “when did it become unconstitutional to exclude homosexuals” from marriage. But none of the three attorneys had an easy day.

Chief Justice Roberts tackled Solicitor General Donald Verrilli over his brief to the court, saying it was “inconsistent.” Roberts noted that Verrilli was arguing that the children of same-sex couples do as well as the children of male-female couples, while also arguing that Proposition 8 harms the children of same-sex couples.

“Which is it?” asked Roberts.

Cooper stumbled, too, when Justices Stephen Breyer and Elena Kagan challenged his argument that marriage is all about regulating procreation. If so, asked Breyer, why does California allow sterile male-female couples to marry? If so, asked Kagan, why allow people over 55 to get married. (Cooper, to much laughter in the courtroom, offered that it was “very rare that both parties in such marriages are infertile.”)

Olson, lead attorney with David Boies of the American Foundation for Equal Rights team representing two same-sex couples, got into the most prolonged and exchange of the session when Justice Scalia demanded to know “when” it became unconstitutional to exclude gays from marriage. Scalia repeatedly insisted Olson identify a “specific date in time.” Olson tried several times to answer the question and eventually shot back, “you’ve never required that before.”

Gay legal activists seemed impressed with the overall discussion and most enthusiastic about Justice Sotomayor’s pointed question to Cooper, concerning other areas where gays could be excluded from rights.

“It was basically asking him whether it’s permissible to treat gay people differently from everyone else in anything else other than marriage,” said Bonauto. “And [Cooper] said, ‘I can’t think of anything, no.’

“I thought that was extremely important in terms of acknowledging equal treatment,” said Bonauto. “I thought that was critical.”

Jon Davidson, legal director for Lambda Legal Defense, said a high point for him was Kennedy’s remark about the “legal impact” on children of same-sex couples.

“I was really encouraged that he was thinking about the children of same-sex marriage. That is a very good sign.”

Kate Kendell, executive director of the National Center for Lesbian Rights, said she was a little surprised by the “rather heated exchange” between Scalia and Olson, over when it became unconstitutional to exclude gays from the right to marry.

“What Ted Olson should have said is, ‘It’s always been a violation of the constitution but, like in many of the other cases [involving rights withheld from other groups], it took a while for us to recognize that this right always existed for these people that we treated differently in the past.”

“I doubt that if any other lawyer had been up there it would have been as heated,” said Kendell, who said the exchange was like “two old friends” having a debate.

But each of the legal activists cautioned that it’s important not to read too much into what the justices said or asked.

“We all know you can’t tell from argument how it’s going to go,” said Evan Wolfson, head of the national Freedom to Marry group. “The argument showed they’re wrestling with a lot of these big questions. I think standing is very much on their mind—very much a live part of the case.  But they also were really grappling with the merits.”

Though none mentioned it, it must have been somewhat worrisome for marriage equality supporters to hear Justice Kennedy say, “the problem with this case” is that it is asking the court to “go into uncharted waters.” That mantra was repeated by several other justices during the argument in the case, Hollingsworth v. Perry. Justice Samuel Alito echoed it when he told Solicitor General Donald Verrilli that marriage for same-sex couples is a “very new” phenomenon, newer than cell phones.

“You want us to step into” this debate, he said, when “we don’t have the ability to see into the future. Why not leave it to the people?”

But hearing it from Kennedy was even more worrisome because he is considered the most likely fifth vote to provide a majority on one side or the other. Kennedy wrote the opinion in the 1996 Romer v. Evans decision striking an anti-gay initiative in Colorado and in the 2003 Lawrence v. Texas decision striking down sodomy laws. Both sides of the Proposition 8 case consider him the key vote to sway in order to consolidate a five-vote majority.

But Kennedy has been listing toward the conservative wing of the court recently, leading its dissent against President Obama’s Affordable Care Act and leading its majority ruling to allow corporations to contribute without limits to political campaign activities. And in a speech in Sacramento March 6, he worried many marriage equality supporters when he told reporters he thinks it is a “serious problem” that the Supreme Court is being asked to settle controversial issues facing a democracy.

The Hollingsworth v. Perry case is testing the constitutionality of California’s voter-approved ban on same-sex marriage. Voters approved Proposition 8 in November 2008, just six months after a California Supreme Court ruling found that the state constitution required that same-sex couples be able to obtain marriage licenses the same as male-female couples do.

The American Foundation for Equal Rights organized the original lawsuit in federal district court in San Francisco in January 2010, initially over the objections of LGBT legal activists and groups. But the groups came onboard quickly and U.S. District Court Chief Judge Vaughn Walker (who came out as gay after retirement in 2011) issued a decision in August 2010, saying Proposition 8 violated the federal equal protection and due process clauses, that there was no rational basis for limiting the designation of marriage to straight couples, and that there was no compelling reason for the state to deny same-sex couples the fundamental right to marry.

Then California Governor Arnold Schwarzenegger and Attorney General Jerry Brown declined to appeal Walker’s ruling, but Yes on 8 was granted permission to do so. A Ninth Circuit U.S. Court of Appeals panel upheld Walker’s decision but on much more narrow grounds. It said the U.S. Supreme Court’s 1996 ruling in Romer precluded voters from withdrawing the right to marry from same-sex couples in California. But the Supreme Court asked for arguments on the broader question of whether Proposition 8 violates the constitutional right to equal protection. It also asked whether Yes on 8 has proper legal standing to appeal the case after California elected officials decided not to.

As expected, there was considerable attention on the cases from the mainstream news organizations leading up to the arguments and very heavy media coverage of the argument Tuesday. Many nationally televised political talk shows spent time with commentators speculating whether the justices might be influenced by the latest polls showing growing popular support for marriage equality.

A number of news and commentary sites reported that Chief Justice John Roberts’ openly gay cousin –48-year-old Jean Podrasky of San Francisco— and her partner Grace Fasano would be in the courtroom as the Chief Justice’s guest. The Los Angeles Times quoted her as saying that, “He is a good man. I believe he sees where the tide is going. I do trust him. I absolutely trust that he will go in a good direction.” She acknowledged that, while Roberts knows she’s gay, she does not have any personal knowledge his views on the marriage issue.

People began standing in line for public seats on Thursday afternoon, five days before the Proposition 8 argument and in weather that was in the low thirties with rain and snow. On Monday afternoon, most were huddled under large blue tarps to fend off a wet snowfall. None of the dozen or so whom this reporter talked to acknowledged being professional “line-sitters,” though one small group did say they were holding places in line for friends from California. Surprisingly few said they were gay.

Three young men relatively near the front of the line were with the Family Research Council, which opposes same-sex marriage.

Abigail Cromwell, a former criminal prosecutor from Cambridge, flew in Monday morning to see if she could get a seat. She supports marriage equality.

But the reasons each gave for trying to get into Tuesday’s argument was similar: history.

“This is the most important case of our generation,” said Cromwell.

“This is the civil rights issue of our time,” said a man in his fifties or sixties at the very front of the line. Rick declined to give his last name.

On the other end of the National Mall from the Supreme Court on Tuesday, the National Organization for Marriage held a rally of opponents of allowing same-sex couples to marry. The rally was broadcast live by C-SPAN.

The Proposition 8 case was the first of two historic oral arguments before the Supreme Court this week. On Wednesday, the court is set to hear arguments in U.S. v. Windsor, testing the constitutionality of the Defense of Marriage Act (DOMA).

Six million in U.S. have LGBT parent

As many as six million adults and children in the United States have an LGBT parent, and an estimated three million LGBT Americans have had a child at some point in their lives, according to an analysis released February 27 by the Williams Institute of UCLA.

Gary Gates

As many as six million adults and children in the United States have an LGBT parent, and an estimated three million LGBT Americans have had a child at some point in their lives, according to an analysis released February 27 by the Williams Institute of UCLA.

Including single and married or partnered LGBT people, the study found that nearly half of LGBT women and a fifth of LGBT men under age 50 are currently raising a child.

This new report also reinforces an emerging picture of LGBT families as racially and ethnically diverse, and living in places and in economic conditions that contradict popular impressions.

The study, “LGBT Parenting in the United States,” by Gary Gates, Distinguished Scholar at the Williams Institute, also comes at a time when issues of parenting have been implicated in the historic marriage equality cases before the U.S. Supreme Court.

Gates used multiple data sources, including Census 2010, the Census Bureau’s 2011 American Community Survey (ACS), the 2008/2010 General Social Survey (the most frequently analyzed data source in the social sciences after the Census), and the Gallup Daily Tracking Survey.

The study found that more than 125,000 same-sex couple households in the U.S. are raising nearly 220,000 children. These include more than 111,000 same-sex couple households raising an estimated 170,000 biological, step, or adopted children, as well as households that include minors who are grandchildren, siblings of an adult, foster children, or others.

And despite the prevailing image of same-sex parents on television as white and upper middle-class (e.g., on ABC’s Modern Family and NBC’s The New Normal), same-sex parents are more likely to be people of color (39 percent), compared to different-sex parents (36 percent).

LGBT parents are also more likely to be struggling economically than non-LGBT ones. Single LGBT adults raising children are three times as likely to report household incomes near the poverty threshold; married or partnered LGBT individuals raising children are twice as likely as likely to be near the poverty threshold.

Gates explains the economic difference by noting that LGBT parents are more likely to have characteristics associated with a greater chance of being in poverty, such as being female, younger, and a racial/ethnic minority.

LGBT couples raising children live in every state—but the states with the highest percentage of same-sex couples raising children are not the more liberal coastal states like California, New York, and Massachusetts. Mississippi and Wyoming lead the way, with over one quarter of the LGBT couples there raising children, followed by Alaska, Idaho, Montana, Kansas, North Dakota, Arkansas, South Dakota, and Oklahoma, each with over 20 percent.

The Williams study also found that same-sex couples raising children are four times as likely as different-sex couples to be raising an adopted child, and six times as likely to be raising a foster child. An estimated 16,000 same-sex couples are raising more than 22,000 adopted children, and 2,600 same-sex couples are raising 3,400 foster children.

LGBT parents can petition for joint adoption statewide in only 18 states plus the District of Columbia, and are restricted from doing so in five states.

Adam Pertman, executive director of the Evan B. Donaldson Adoption Institute, said in an e-mail interview that, “We know from research and experience that [LGBT] families function well and that the outcomes for their children are good—and now we know just how significant the numbers have become. All that says to me that it’s time—past time—to bring policy and practice into alignment with reality on the ground.”

The Williams report also found a connection between relationship status and children. Same-sex couples who consider themselves to be spouses are more than twice as likely to be raising biological, step, or adopted children compared to those who say that they are unmarried partners (31 percent versus 14 percent).

This analysis comes just weeks before the U.S. Supreme Court is set to take up a pair of cases about marriage equality. Opponents of marriage equality have filed briefs claiming that it is different-sex couples’ unique ability to procreate that warrants giving them sole access to marriage rights, in order to encourage and regulate stable environments for raising children. They also say that children do best when raised by both a mother and a father.

Gates said in an e-mail interview that he included information from his study in amicus briefs he submitted to the court in both cases.

In the interview, he addressed the procreation issue by pointing out that that roughly two out of three kids being raised by same-sex couples have a biological connection to at least one of the parents.

Even more importantly, he said, “Many same-sex couples with children look, at least demographically, very similar to different-sex couples raising kids, yet are treated differently under the law.”

House passes inclusive bill for victims of domestic abuse

In a major victory for Democrats, the U.S. House voted Thursday to reauthorize the Violence Against Women Act.

Gwen Moore

In a major victory for Democrats, the U.S. House voted Thursday (February 28) to reauthorize the Violence Against Women Act with a bill that includes language to ensure that victims of domestic violence can receive assistance from federally funded programs regardless of their sexual orientation. The vote was 286 to 138.

The legislation originally passed the Senate February 12 on a 78 to 22 vote, but House Republicans initially introduced their own version of the bill–one that excluded the language to include gay victims and to provide greater protections for Native American and immigrant women. White House and Democratic leaders in the House expressed their disappointment about the exclusion of LGBT provisions and others.

“The Administration is disappointed that the House bill does not … explicitly protect LGBT victims of crime from discrimination when they seek services or protections funded by VAWA,” said a White House statement February 26.

Following Thursday’s vote, President Obama issued a statement saying he was “pleased to see the House of Representatives come together and vote to reauthorize and strengthen the Violence Against Women Act.”

“Today’s vote will go even further by continuing to reduce domestic violence, improving how we treat victims of rape, and extending protections to Native American women and members of the LGBT community.”

An unidentified aide to an unidentified House Republican leader told a Washington Post blog early in the week that a House version of the bill, which excluded language protecting LGBT people, did not discriminate against LGBT people. The aide criticized the Senate version of the bill for “enumerating actual categories of people that are covered” in a way that “requires constant updating.”

“We’re giving the states the resources they need, and we’re also making sure no one is discriminated against,” said the aide. He did not explain how the House version ensures no one is discriminated against.

On the floor of the House Thursday, many Republicans echoed the point, saying there was no language in the bill to exclude anyone.

“I would just ask my colleagues on other side of the aisle to please point to anywhere in the House bill that coverage for anyone is denied,” said Rep. Cathy McMorris Rodgers (R-Wash.). “The House bill covers all victims. It does not exclude anyone for any characteristic. In fact,” she said, “it directs the Attorney General to make a rule regarding anti-discrimination efforts as he sees fit.” And she said the grants associated with the VAWA are “authorized to permit funding to go toward men as well as women.”

To some extent, debate over the inclusion or exclusion of LGBT victims of domestic abuse was conducted through discussion of protecting “all women” or “all victims,” rather than LGBT people –including gay men—specifically.

Eric Cantor (R-Va.), the House Republicans’ majority leader, repeatedly emphasized on the floor Thursday his desire to help “all women” through reauthorization of the VAWA program, but he limited his support to the House Republican version of the bill which does not prohibit discrimination based on sexual orientation. Twice, Cantor seemed to correct himself –changing “all individuals” and “all people” to “all women.”

Openly gay Rep. David Cicilline (D-R.Is.), while mentioning members of the LGBT community, also emphasized the importance of protecting “all women.” House Democratic Minority Whip Steny Hoyer (D-Md.) emphasized the importance of passing the “fully inclusive” version of the bill protecting “all” victims, as did numerous other Democrats.

But some Democrats were more direct.

“I don’t believe that my Republican colleagues, if they saw a lesbian woman being beaten by their neighbor, that they would not want to have that violence stopped,” said Rep. Joe Crowley (D-New York).

Rep. Gwen Moore (D-Wisc.) noted that all members of the House seemed to be against violence against women, “but the question is which women.”

“The Senate bill protects LGBT victims but the House bill strikes LGBT women as underserved communities and strikes the language that would have them as a protected group,” said Moore.

Rep. Mike Quigley (D-Ill.) spoke forcefully in support of protecting LGBT people, asking, “Do they not feel the same pain?”

Many Republicans, including Rep. Charles Dent (R-Pa.), did speak in favor of the inclusive Senate bill, as did the national Log Cabin Republicans group.

“Today, many Republicans are taking a stand for a more modern and inclusive GOP. Our leaders in Congress should be weary of leaving the LGBT community out of legislation that is intended to protect all Americans from domestic violence,” said Gregory Angelo, executive director of Log Cabin Republicans.

“Including LGBT provisions merely codifies equal protection and clarifies an area in which there was confusion regarding the application of prior versions of VAWA to LGBT individuals,” said Angelo. “The Republican Party must continue to be the party of equal rights for all Americans.”

Prior to passage of the Senate version of the bill, the House defeated the Republican version of the bill on a 166 to 257 vote.

“It’s tremendous that both Republican and Democratic leaders came together to ensure that all domestic violence victims, including those who are LGBT, will not face discrimination when they seek services,” said Human Rights Campaign President Chad Griffin.

D’Arcy Kemnitz, executive director of the National LGBT Bar Association, issued a statement noting that 61 percent of LGBT victims of domestic abuse had been turned away from shelters and 85% of service providers working with LGBT victims had observed discrimination based on sexual orientation and/or gender identity.

“We are grateful,” said Kemnitz, “that the Violence Against Women Act will now be a powerful tool to protect our community and ensure justice is served.”

Unknowns loom as marriage arguments draw near at Supreme Court

One month away from the most historic and, perhaps, influential U.S. Supreme Court cases in LGBT history, a surprising number of facts are still unknown.

One month away from the most historic and, perhaps, influential U.S. Supreme Court cases in LGBT history, a surprising number of facts are still unknown.

For instance, while New York attorney Roberta Kaplan will argue the merits of lesbian plaintiff Edith Windsor’s position that the Defense of Marriage Act (DOMA) is unconstitutional and lesbian law professor Pamela Karlan will argue Windsor’s position on the legal standing issues, it has not yet been decided exactly who will argue the merits and the legal standing issue for the couples opposing Proposition 8. Ted Olson, who along with David Boies is leading the legal team challenging Proposition 8, says his team will decide who will argue the merits and who will argue the standing issue after seeing what the Solicitor General decides to file—or not file—in their case.

There have been no signals from the Supreme Court that it will make the audio recordings of the two cases available to the public on the same day as the arguments, as it did with the landmark health reform cases. (Normally, such audio is not available until the end of the week, though a written transcript is often available on the same day as the argument.)

It has still not been announced by the Solicitor General’s office what argument—narrow or broad—the Obama administration will take in opposing DOMA. And there has been no indication of whether the Obama administration will even take a position in the Proposition 8 case.

But a lot of these unknowns are about to be resolved. Critical briefs –particularly from the Solicitor General’s office—are due to be submitted to the Supreme Court this week.

Friday, February 22, is the Solicitor General’s deadline for laying out the Obama administration’s view of how the court should resolve the DOMA dispute. And February 28 is its deadline to file a brief in the Proposition 8 case, if it chooses to do so.

This much is known: The Obama administration considers DOMA unconstitutional and President Obama has publicly made very clear that he believes same-sex couples should have the right to marry.

The question, according to two articles this month in The New Yorker magazine, is whether the Obama administration will take positions that promote a “bold” striking down of all anti-gay marriage laws, beyond DOMA, or a more “cautious” dismantling of them, state by state.

In the Proposition 8 case, notes legal analyst Jeff Toobin, “Obama could take the position, as the plaintiffs have, that the Constitution compels every state in the union to allow same-sex marriage.”

“If adopted,” he said, “this argument would turn the Hollingsworth case into the gay-rights equivalent of Loving v. Virginia, the 1967 landmark decision that said states could no longer ban interracial marriage.”

In the DOMA case, notes gay Democratic activist and attorney Richard Socarides, where the government is already on record, the bigger issue is “whether the federal government should just abide by state laws legalizing same-sex marriage, by overturning the Defense of Marriage Act, or, more powerfully, by saying that every American has that right.”

To reach that latter—bold—result, the Supreme Court would have to agree with the Second Circuit U.S. Court of Appeals decision in U.S. v. Windsor that courts should given a heightened level of scrutiny to laws treating people differently because of sexual orientation.

“If the Supreme Court adopted that reasoning to strike down DOMA (in Windsor) and Proposition 8 (in Perry),” wrote gay legal scholar William Eskridge, in a December 9 post at scotusblog.com, “every state marriage law excluding lesbian and gay couples would be in immediate jeopardy, because no state could muster a compelling or substantial public interest that would satisfy the Second Circuit’s approach.”

That’s how big the decisions in Windsor and Perry could get.

Windsor and Perry are likely to be two of the most important constitutional decisions in our lifetimes,” wrote law professors Neal Devins and Tara Leigh Groves at scotusblog December 8.  “If (as we suspect), the Court reaches the merits of each case, we believe it will advance the cause of same-sex marriage by invalidating both DOMA and Proposition 8.  But, in our view, the Court’s jurisdictional rulings—on the power of a single chamber of Congress and private sponsors of ballot initiatives to defend federal and state measures—will also have important implications, informing the scope of the constitutional separation of powers at both the federal and state level.”

But “if the court reaches the merits of each case” is one of the looming uncertainties in both cases. The court may not rule on the merits of each case. It could make a ruling on standing that would preclude it reaching the merits of the disputes.

“If the Court does not rule on the marriage rights issue itself in either of the granted cases, and that is all that is concludes on the issue this Term,” wrote veteran Supreme Court reporter Lyle Denniston, in his December 7 post at scotusblog, “the question would arise whether it might take on some of the other pending cases, so as to reach the more fundamental constitutional dispute.  That, however, might come too late for a decision this Term, with a likely recess in late June.”

Briefs from parties on both sides of both cases are due to the court on the issue of legal standing, as well as the Olson-Boies’ brief about the merits of the Proposition 8 argument, are due this week.