Virginia attorney general won’t defend marriage ban in court

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

Mark Herring
Mark Herring

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

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

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

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

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

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

Supporters of marriage equality were elated.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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.”

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).

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.

Court adds twist to announcement on Prop 8, DOMA cases

In a surprise development, the U.S. Supreme Court announced today that it will review both the Proposition 8 case concerning a statewide ban on same-sex marriage and a DOMA case concerning a ban on federal recognition of same-sex marriages.

Ted Olson
Ted Olson

In a surprise development, the U.S. Supreme Court announced today (Friday, December 7) that it will review both the Proposition 8 case concerning a statewide ban on same-sex marriage and a Defense of Marriage Act (DOMA) case concerning a ban on federal recognition of same-sex marriages.

Many observers had predicted the court would hear a case involving DOMA, but many more expected the court to pass on reviewing a lower court decision concerning Proposition 8, the California ban on same-sex marriage. Ted Olson and David Boies, the high-profile attorneys who had successfully challenged Proposition 8 in the courts below had urged the Supreme Court to deny review of the Ninth Circuit ruling. That ruling, they noted, did “not conflict with any decision of [the Supreme] Court or any other court of appeals.”

But refusing to hear the Yes on 8 attorneys’ appeal of the lower court decision would have meant same-sex couples could start obtaining marriage licenses within days, dramatically increasing the population of states allowing same-sex marriage.

And while many expected the court to take one or more cases concerning DOMA, the big question was which case or cases it would review.

The court has chosen to review a Second Circuit case, Windsor v. U.S., in which the surviving spouse is challenging the federal government’s refusal to recognize her marriage when it comes to estate taxes on her deceased spouse’s estate.

In both cases, the Supreme Court has presented attorneys on both sides with a question on a procedural issue of standing in addition to the original question on merits.

In the Proposition 8 case, Hollingsworth v. Perry, the court asks that attorneys argue whether the Yes on 8 supporters of the initiative have legal standing to appeal the lower court’s decisions given that the state of California chose not to press an appeal. That means it may be possible the court will let the lower court decision stand by simply ruling that Yes on 8 did not have legal standing to file its appeal. The result would be the same-sex couples would be able to marry—but the resolution would be delayed until June and be politically less consequential.

The Olson-Boies legal team raised the standing issue after Yes on 8 filed its first appeal to a Ninth Circuit panel. Asked whether the court might use the standing issue as a way out of ruling on the merits, Olson said he thinks the court will “probably get to the merits” of the case but said that, if it doesn’t, then the 134-page U.S. district court decision declaring Proposition 8 a violation of equal protection would be the prevailing decision in California.

“Everyone is anxious to get to the merits,” said Boies, but he acknowledged his legal team has argued that Yes on 8 does not having standing to make their appeal. But ruling that Yes on 8 does not have standing would still allow the citizens of California to enjoy marriage equality, said Boies.

In the DOMA case, the Supreme Court asks attorneys on both sides to argue the Obama administration’s agreement with courts below that DOMA is unconstitutional “deprives” the Supreme Court of jurisdiction to decide the case. It also asks whether the Bipartisan Legal Advisory Group (BLAG) has standing to appeal the lower court decisions to the Supreme Court.

Ted Olson told reporters on a telephone conference call Friday afternoon that he is “very confident” that the outcome of the case before the U.S. Supreme Court “will be to support the rights of our gay and lesbian brothers and sisters.”

“We could not be more gratified that this is the case” on which the Supreme Court may decide “the most important civil rights issue of our time,” said Olson.

David Boies was more guarded, saying he was “encouraged and excited about the prospect that we will finally get a decision on the merits.”

Asked whether the Obama administration might weigh in on the Proposition 8 case at the high court, Olson said “we would certainly hope they would participate…and would support our position….”

The Obama administration has weighed in on the DOMA cases, arguing in court that it believes the core section of the law to be unconstitutional.

Arguments in both cases are likely to be scheduled for the second half of March.

The high court did not indicate Friday whether it would hear an appeal from Arizona, seeking to preserve a state law that bars gay state employees from receiving health benefits for their domestic partners the same as straight state employees are able to obtain for their spouses. Some indication of that, as well as denying review on several other DOMA cases, could be issued on Monday’s routine orders list.

One of the Proposition 8 plaintiffs, Kris Perry, said “we have learned how to be patient” and that, while she would like to be getting married next week, she is hopeful that, by hearing the Proposition 8 case, the court might rule in a way that will make same-sex marriage possible for many others.

Surprises embedded in Second Circuit ruling; may improve prospects at Supreme Court

The ruling by a Second Circuit U.S. Court of Appeals panel was not a big surprise. But the panel’s related ruling—that laws should be held to a heightened standard of review when they treat people differently because of their sexual orientation—was news.

There have been enough federal court rulings declaring the Defense of Marriage Act unconstitutional that the Thursday (October 18) ruling by a Second Circuit U.S. Court of Appeals panel was not a big surprise, in and of itself. But the panel’s related ruling—that laws should be held to a heightened standard of review when they treat people differently because of their sexual orientation—was news.

In Windsor v. U.S., a three-judge panel vote 2 to 1 that Section 3 of DOMA —which prohibits federal recognition of marriage licenses issued to same-sex couples—is unconstitutional. In doing so, it said that “homosexuals as a group have historically endured persecution and discrimination,” that “homosexuality has no relation to aptitude or ability to contribute to society,” that “homosexuals are a discernible group,” and that gay people, as a class, “remains a politically weakened minority.”

For those reasons, said the court, laws treating people differently because they are gay should be given a heightened level of scrutiny by the courts.

“This is the first federal appellate court ruling that heightened scrutiny—a presumption of unconstitutionality—applies in reviewing sexual orientation discrimination; that’s definitely a big deal,” said Evan Wolfson, head of the national Freedom to Marry group and a long-time legal activist for marriage equality.

“This is huge,” agreed Jon Davidson, legal director for Lambda Legal. “When any form of heightened scrutiny applies, it means that courts no longer presume that the law or government conduct that is challenged is constitutional. Instead, they look with suspicion at the government’s differential treatment of the minority group.

The decision, and the heightened review ruling, apply only to Second Circuit states for now, but Wolfson said it was an especially impressive find led by Chief Judge Dennis Jacobs, an appointee of President George H.W. Bush. Joining Jacobs in the decision was the appeals court’s newest member, Obama appointee Christopher Droney.

Dissenting from the majority was 75-year-old Clinton appointee Chester Straub.

Wolfson noted that the Windsor decision marks the tenth federal ruling that DOMA is unconstitutional.

“No matter how slice it, it’s time for the Supreme Court to swiftly strike down this discriminatory law and get the federal government back to treating married couples, gay or non-gay, as what they are: married,” said Wolfson.

James Esseks, director of the ACLU’s LGBT Project, represented Edith Windsor in the lawsuit. Windsor married her spouse, Thea Spyer, in Canada in 2007. Spyer died in 2009, following a long illness. But because Section 3 of DOMA prohibits the federal government from recognizing the marriages of same-sex couples, Windsor was not allowed to take the routine marital estate tax deduction. Instead, she paid more than $360,000 in taxes on the estate she shared with her spouse.

A legal team hired by the Republican-controlled Bipartisan Legal Advisory Group (BLAG) in the U.S. House argued that, at the time of Spyer’s death (in 2009), the state’s highest court had ruled (in Hernandez v. Robles, 2006) that the state constitution “does not compel recognition of marriages between members of the same sex.”

The Solicitor General appealed the case to the U.S. Supreme Court even before the Second Circuit issued its decision. And constitutional scholar Nan Hunter indicated in her blog hunterforjustice.com that the high court may be inclined to hear Windsor because all nine justices would be able to sit in on the case. Hunter speculated that Justice Elena Kagan would “likely” recuse herself from the Massachusetts cases because she “acknowledged at least limited involvement in discussions of the Gill litigation” while she was Solicitor General.

In its ruling in Windsor, the Second Circuit noted that, “For the purpose of federal estate taxes, the law of the state of domicile ordinarily determines whether two persons were married at the time of death.

In upholding the district court decision that DOMA violates the equal protection clause of the constitution, the majority opinion rejected an argument by BLAG that the U.S. Supreme Court’s summary dismissal of an appeal of a 1971 case from Minnesota of a gay couple whose request for a marriage license had been rejected.

“When Baker was decided in 1971, “intermediate scrutiny” was not yet in the Court’s vernacular,” wrote Jacobs. Citing the Supreme Court’s 1996 ruling in Romer v. Evans, he noted, “The Court had not yet ruled that “a classification of [homosexuals] undertaken for its own sake” actually lacked a rational basis.” And, referring to the Supreme Court’s 2003 ruling striking laws prohibiting same-sex sexual relations, he noted, “And, in 1971, the government could lawfully “demean [homosexuals’] existence or control their destiny by making their private sexual conduct a crime.”

The majority said DOMA could not survive an intermediate level of scrutiny. BLAG’s claim that DOMA preserves some uniformity in the definition of marriage, it said, failed because “DOMA is an unprecedented breach of longstanding deference to federalism that singles out same-sex marriage as the only inconsistency (among many) in state law that requires a federal rule to achieve uniformity….” And because DOMA affects more than 1,000 federal benefits, it said, BLAG could not persuasively argue that it is substantially related to fiscal matters. The government also failed to prove that DOMA was a means of preserving a traditional understanding of marriage and “responsible childrearing.”

The Supreme Court has not yet indicated when it will announce whether it will hear any of the DOMA cases pending before it. Many court observers have speculated the justices are holding off on their decision until after the November 6 election.

Court puts off deciding whether to hear Prop 8 case

On its first official day of the 2012-13 session, the U.S. Supreme Court on Monday did not include the Proposition 8 case on the list of cases it would or would not review.

Therese Stewart

On its first official day of the 2012-13 session, the U.S. Supreme Court on Monday did not include the Proposition 8 case on the list of cases it would or would not review.

Monday’s was the third list of cases released thus far by the Supreme Court for this session. The justices originally scheduled the case, Hollingsworth v. Perry, for discussion in their September 24 meeting, prompting many to speculate that the court would announce on either September 25 or October 1 whether it would take up the appeal from those seeking to preserve the ban on same-sex marriages in California.

But on Wednesday afternoon, September 26, a notice was posted in the press room at the Supreme Court, indicating the case was being “rescheduled” for a later conference meeting. As of deadline this week, the docket did not indicate a new conference date for the highly watched case.

Ted Olson, a lead attorney on the American Foundation for Equal Rights legal team that has won court victories striking down Proposition 8, said he assumes the court wants to discuss the Prop 8 case in the same conference with the Defense of Marriage Act cases.

Therese Stewart, Chief Deputy City Attorney for San Francisco, said the rescheduling of Hollingsworth may signal the high court is considering “whether it will take Perry and the DOMA cases together.” Or they may want to ensure their handling of the marriage cases don’t have “any impact on the election.”

“But I think the former is the more likely reason it was put over,” said Stewart.

The Supreme Court calendar indicates only three conference meeting dates for the justices in October –all Fridays—October 5, 12, 26. Typically, if a case is discussed in conference, its disposition is announced the following Monday (or if Monday is a holiday, then Tuesday).

Regardless of what the court decides to do, the news will be significant.

If the court takes review, then both sides will brace themselves for a decision that could make statewide same-sex marriage bans more difficult or easier to defend.

If the court decides not to take the appeal, then same-sex couples in California will soon be able to obtain marriage licenses again. Such a development on its own would boost momentum for a growing acceptance of marriage equality around the country, and make California the eighth state, plus the District of Columbia to provide for equal protection in marriage.

By not hearing the appeal of Prop 8 supporters, the court would be leaving as precedent, the Ninth Circuit’s decision that taking away the right to marry from an unpopular group, without a rational reason for doing so, violates the equal protection guarantee of the Constitution.

“The immediate effect of [not taking review] would be to allow marriage in California,” said Stewart, adding that, “once the Ninth Circuit issues its mandate, [that] should happen quickly.”

Leaving the Ninth Circuit decision as precedent would apply only to the Ninth Circuit states — California, Arizona, Nevada, Oregon, Idaho, Washington, Montana, Alaska, and Hawaii.

“The effect on other states would not be immediate,” said Stewart, “but the reasoning of the Ninth Circuit might be used in other cases.  The circumstances in California are somewhat unique, so whether another court or even another panel of the Ninth Circuit would apply all or some of the reasoning of the Perry panel to a different case probably depends on how similar or different the case is and who is on the panel deciding the case.”

Having Perry preserved in the Ninth Circuit may have some “persuasive effect” should Washington State voters reject a new marriage equality law there in November, prompting litigation, said Stewart, “especially because the situation would be closer to California’s than most.”

The Supreme Court announcements usually fall into one of two categories –“Cert granted” and “Cert denied.”

“Cert” is shorthand for “Petition for Writ of Certiorari,” a request that usually comes from a party who has lost litigation in a federal appeals court, asking the high court to review the lower court decision and change it. If the court “grants cert,” then at least four justices have voted to review the lower court decision and the case will be heard by the full bench. If the court “denies cert,” then the Supreme Court will not hear the case and the lower appeals court decision stands as precedent for the states in that Circuit. While these are the most frequent options, the high court can take other actions as well.

Stewart said that, if the Supreme Court decides not to review the Prop 8 decision, the Ninth Circuit would then issue its mandate requiring equal treatment of same-sex couples. Stewart said that typically takes about a week.

But here I think the court would get the mandate out very quickly, within a day,” said Stewart. “I am told that the state department of public health is all over this, i.e., ready to act promptly once the mandate issues.”

Roberts leads decision to uphold health reform law

In a dramatic move with significant political and economic implications, a majority of the U.S. Supreme Court on Thursday (June 28) voted to uphold President Obama’s landmark health care reform law.

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

In a dramatic move with significant political and economic implications, a majority of the U.S. Supreme Court on Thursday (June 28) voted to uphold President Obama’s landmark health care reform law. The vote, at least in regard to the key conflict, was 5 to 4, with Chief Justice John Roberts writing the opinion and joining the four justices on the liberal wing.

The decision is a big relief to people with costly illnesses, including people with HIV or breast cancer. It is an enormous political victory for the Obama administration, because health care reform was Obama’s signature achievement thus far in his first term. And it creates an awkward issue for Republican presidential nominee Mitt Romney to negotiate. Romney worked for a similar plan for Massachusetts, when he was governor, but has since joined the majority of Republicans in arguing vigorously against requiring citizens to buy coverage or pay a “tax” for not doing so.

The Affordable Care Act (ACA) “individual mandate” requires every citizen, by 2014, to either buy health coverage or pay a penalty that helps mitigate the burden on the health care system when they seek medical care without insurance.

All three of the nation’s major LGBT legal groups had signed onto a brief in support of the ACA, noting that 30 percent of people with HIV are not able to obtain health insurance.

Among other things, the ACA prohibits insurance companies from limiting or refusing coverage for a person with HIV, breast cancer, or any other disease. It also prohibits insurance companies from dropping a person’s coverage after the person became ill.

Justice Anthony Kennedy, writing for the dissent, said he believes the entire law is unconstitutional. He was joined by the court’s conservative wing, including Justices Antonin Scalia, Clarence Thomas, and Sam Alito.

Lambda Legal, Gay & Lesbian Advocates & Defenders, the National Center for Lesbian Rights, the National Center for Transgender Equality and others submitted a joint brief in support of the ACA. They argued the law ensures health coverage for people with HIV and, in doing so, stems the spread of the virus to others. That, they said, also helps contain the enormous burden that HIV infection puts on the health care system.

The 30-page brief was one of more than 130 briefs filed in HHS v. Florida and several other lawsuits seeking to strike down the ACA, signed into law two years ago by President Obama.

The gay groups’ brief, like most media reports, focused on the ACA individual mandate that everyone purchase health coverage. Under ACA, with some exceptions (including religious-based objections and poverty), everyone would have to obtain health coverage starting in 2014. Those who failed to do so would have to pay one percent of their income annually as a penalty. Over the years, the penalty rises, but there are limits to how high it can go.

With the individual mandates, argued the gay groups’ brief, “thousands of lives—and billions of dollars—could be saved each year, and the HIV/AIDS epidemic could be dramatically curbed.”

Carl Schmid, Deputy Executive Director of The AIDS Institute, said his group was “extremely pleased” with the upholding of the ACA.

The court upheld other points of contention in the law, including whether states can be required to cover the expanded number of people qualifying for Medicaid under the ACA. Some states opposed that expansion, saying it unfairly increases the state’s obligation to share the Medicaid costs. The majority opinion said the federal government could not withdraw existing Medicaid funding from states that were unable to fund the expanded pool.

In other Supreme Court news this week, the high court voted 5 to 3 (with Justice Elena Kagan recusing herself) to strike down three provisions and at least temporarily sustain one provision of Arizona’s controversial immigration law. Lambda Legal said the one provision retained—allowing law enforcement officers to stop any person they suspect is in the United States without the federal government’s permission—is especially harmful to LGBT people.

“LGBT immigrants and LGBT people of color remain particularly vulnerable because this provision… requires police to stop and question people based on their appearance,” said Lambda, in a statement released about the decision. “The LGBT community knows all too well how easily people who are perceived to ‘look different’ or ‘act different’ can be singled out for harassment and persecution.”

Lambda said it would join other groups in staging a constitutional challenge to the provision. The Supreme Court did not declare the provision to be constitutional but said it could be enforced until such time as a court does rule it to be unconstitutional.

The majority struck down three other controversial provisions of the Arizona law as overstepping state authority and encroaching on the purview of federal authority.

Justice Anthony Kennedy wrote the majority opinion, which was joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor.

Ninth Circuit refuses full court review; Prop 8 headed to Supreme Court

A glimmer of politics showed through Tuesday (June 5) when the full 9th Circuit U.S. Court of Appeals declined a request from supporters of California’s ban on same-sex marriage to review a circuit panel’s decision that Proposition 8 is unconstitutional.

Ted Olson
Ted Olson

A glimmer of politics showed through Tuesday (June 5) when the full Ninth Circuit U.S. Court of Appeals declined a request from supporters of California’s ban on same-sex marriage to review a circuit panel’s decision that Proposition 8 is unconstitutional.

In a dissent from the order refusing to have the full Ninth Circuit hear the landmark Perry v. Brown case, three judges signed onto a dissent, noting that just a few weeks ago, President Obama had “ignited a media firestorm by announcing that he supports same-sex marriage as a policy matter.” The three said the refusal to review the circuit panel’s decision “silenced” President Obama’s suggestion that the nation continue its “conversation” about same-sex marriage “in a respectful way.”

All three dissenters were appointees of Republican presidents.

But politics or not, the refusal to give Perry v. Brown full circuit court review is a major victory for supporters of marriage equality and means almost certainly that the “final chapter” in the historic litigation can now begin, says Chad Griffin, co-founder of the American Foundation for Equal Rights which organized and funded the lawsuit.

Attorneys for Proposition 8 supporters said they will now file a petition to the U.S. Supreme Court to review the Ninth Circuit decisions. Ted Olson, a lead attorney for the gay couples in Perry, said that, even if the Supreme Court refuses to hear that appeal, the litigation would be a “complete victory” for the plaintiff couples.

One looming question for the Perry case is whether the Supreme Court, if it accepts the case, would review the Ninth Circuit panel’s very narrow reasoning to strike down Proposition 8 or the federal district court’s more sweeping reasoning concerning equal protection, due process, and the fundamental right to marry. While Olson said upholding a narrow reasoning might still affect same-sex marriage in some states beyond California, upholding the broader reasoning could affect every state.

With last week’s First Circuit decision striking a core section of the Defense of Marriage Act (DOMA) also heading to the nation’s highest court, it is now likely the Supreme Court will have two major same-sex marriage cases on its docket in October.

The Ninth Circuit case, if accepted, could ask whether states can take away the right to marry from same-sex couples or whether same-sex couples have a fundamental right to marriage and to be treated equally under marriage laws. The First Circuit case, if accepted, would ask whether the federal government can refuse to recognize marriages licensed by states to same-sex couples.

David Boies, the other lead attorney for the Perry couples, said that, while the questions in each case are very “distinct,” the issues are closely related and could—if both are accepted—be heard very close together.

The three-paragraph order June 5 stated that the request for a full court review “failed to receive a majority of the votes” of active judges. It also noted that the order would be stayed for 90 days to enable proponents of Proposition 8 to file an appeal to the U.S. Supreme Court.

The dissenting judges did not mince words in their three-paragraph dissent. They said the circuit panel’s 2 to 1 decision striking Proposition 8 was a “gross misapplication” of the U.S. Supreme Court’s decision in Romer v. Evans. In that 1996 case, the Supreme Court said states could not pass laws that excluded gays from protection based on animus against the group.

The dissenters said refusing to give full Ninth Circuit review to Perry v. Brown means the Ninth Circuit judges “have now declared that animus must have been the only conceivable motivation for a sovereign state to have remained committed to a definition of marriage that has existed for millennia.”

Proponents of Proposition 8, known as Yes on 8, filed the Ninth Circuit full court appeal, asking it to overturn a decision by the panel last February. That panel decision found that California’s ban on same-sex marriage violates the federal constitution by stripping from same-sex couples a right they had (to marry) prior to passage of Proposition 8. In order for a limited full court review to have been granted, at least 14 of the circuit’s 26 active judges would have had to say another review is warranted.

The Perry v. Brown lawsuit is led by famed conservative attorney Ted Olson and preeminent liberal attorney David Boies and organized and funded by the American Foundation for Equal Rights.

In the case, two same-sex couples sued the state after being denied marriage licenses after the voter-approved constitutional ban on same-sex marriage went into effect in November 2008.

U.S. District Court Judge Vaughn Walker ruled, in August 2010, that banning same-sex couples from obtaining marriage licenses violates the federal constitution’s guarantees of equal protection and due process. He agreed to delay enforcement of the decision, pending an appeal by Yes on 8 attorneys to the Ninth Circuit.

In February 2012, a three-judge panel of the Ninth Circuit, in a 2 to 1 vote, upheld Walker’s decision but on much more narrow grounds. The panel majority—Judges Stephen Reinhardt and Michael Hawkins—said Proposition 8 improperly removed from a group of citizens (gays) a right they already enjoyed (marriage) without sufficient justification.

Reinhardt and Hawkins submitted a paragraph with the June 5 refusal order, saying they were “puzzled” by their dissenting colleagues’ “unusual reliance on the President’s views regarding the Constitution, especially as the President did not discuss the narrow issue that we decided in our opinion.”

“We,” said Reinhardt and Hawkins, “held only that under the particular circumstances relating to California’s Proposition 8, that measure was invalid. In line with the rules governing judicial resolution of constitutional issues, we did not resolve the fundamental question that both sides asked us to: whether the Constitution prohibits the states from banning same-sex marriage. That question,” they said, “may be decided in the near future, but if so, it should be in some other case, at some other time.”

The “particular circumstances” they referred to were that the California Supreme Court had ruled, in May 2008, that the state constitution required that same-sex couples be able to obtain marriage licenses the same as straight couples. Thousands of couples did begin obtaining marriage licenses, but, in November of that year, voters approved Proposition 8, amending the state constitution to explicitly ban the recognition of same-sex marriage.

While attorneys and activists uniformly called the February 7 panel decision a major victory, they acknowledged that the decision did stop short of saying that same-sex partners, like straight partners, have a “fundamental right to marry.” Instead, it said Proposition 8 deprived same-sex partners only of the “right to use the designation of ‘marriage.’” If it had ruled same-sex couples had a fundamental right to marry, said Lambda Legal Defense’s legal director Jon Davidson, “the marriage laws of 44 states would have been cast into doubt….” And by rendering such a relatively narrow ruling, said Davidson and others, the panel reduced the likelihood the U.S. Supreme Court would take the case.

“The fundamental right to marry, as protected by the US Constitution,” said Williams Institute legal scholar Jenny Pizer, “has to have the same contours throughout the country. So a decision concluding that same-sex couples have the same fundamental right as different-sex couples would call into question all the marriage restrictions states currently impose.”

First Circuit: DOMA unconstitutional; next stop: Supreme Court

A unanimous three-judge panel of the First Circuit U.S. Court of Appeals ruled today (Thursday, May 31) that the core part of the Defense of Marriage Act, barring federal recognition of marriages of same-sex couples, is unconstitutional.

Mary Bonauto

A unanimous three-judge panel of the First Circuit U.S. Court of Appeals ruled today (Thursday, May 31) that the core part of the Defense of Marriage Act, barring federal recognition of marriages of same-sex couples, is unconstitutional. An appeal of that decision is expected to be filed fairly quickly with the U.S. Supreme Court and is likely be before the high court this fall.

The First Circuit panel said that, under simple rational review of the law, the same-sex couples seeking to overturn DOMA “cannot prevail.” But, importantly, the panel also said that, because DOMA implicates both equal protection and federalism, the law requires “a closer than usual review based in part on discrepant impact among married couples and in part on the importance of state interests in regulating marriage.”

In its 33-page decision, the judges affirmed the U.S. District Court ruling that DOMA violates the equal protection rights guaranteed by the U.S. Constitution. It did not agree that DOMA also violates the spending clause or Tenth Amendment rights of states. While DOMA does “intrude” into a realm of law “primarily confided to state regulations,” said the panel, “Nevertheless, Congress surely has an interest in who counts as married.”

“That Congress has traditionally looked to state law to determine the answer [to what defines marriage] does not mean that the Tenth Amendment or Spending Clause require it to do so.”

“However,” said the panel, “the denial of federal benefits to same-sex couples lawfully married does burden the choice of states like Massachusetts to regulate the rules and incidents of marriage….These consequences do not violate the Tenth Amendment or Spending Clause, but Congress’ effort to put a thumb on the scales and influence a state’s decision as to how to shape its own marriage laws does bear on how the justifications are assessed.”

It then proceeded to reject—using an “intensified scrutiny”—each of the arguments put forth by the Bipartisan Legal Advisory Group (BLAG), a Republican-dominated Congressional committee that authorized an outside attorney to defend DOMA in federal lawsuits around the country. Those arguments included such things as “preserving scarce government resources,” “support child rearing,” and to preserve the traditional definition of marriage.

“For 150 years, this desire to maintain tradition would alone have been justification enough for almost any statute,” said the panel. “… But Supreme Court decisions in the last fifty years call for closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern.”

“To conclude, many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today,” said the panel. “One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage. Under current Supreme Court authority, Congress’ denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.”

“We think that this is a fantastic decision that is crisp and solid and well-reasoned,” said GLAD’s Bonauto. “And it’s really rooted in the last 50 years of equal protection jurisprudence and federalism jurisprudence.”

U.S. Rep. Barney Frank (D-Mass.) said the ruling “vindicates the decision by the Obama administration not to defend the “Defense of Marriage Act,” which denies rights to millions of Americans. It is also a tribute to the thoughtful, principled legal strategy by Mary Bonauto and her associates at Gay & Lesbian Advocates & Defenders.”

“I am confident that the U.S. Supreme Court will add its support for this decision which is so firmly grounded in long-standing American constitutional principles,” said Frank.

The universal reaction among LGBT civil rights groups was similar.

“Whether it is California’s Proposition 8 or the so-called Defense of Marriage Act, court after court has affirmed that marriage discrimination against gay and lesbian Americans is unfair, unjust, and unconstitutional,” said Adam Umhoefer, executive director of the American Foundation for Equal Rights which has been pressing the challenge to California’s same-sex marriage ban. That challenge has succeeded at the U.S. district court and Ninth Circuit panel levels. It is now awaiting word on whether the full Ninth Circuit will hear an appeal of those lower court decisions.

In coming to its decision, the panel decided that an earlier First Circuit decision on a case challenging “Don’t Ask, Don’t Tell”  “has already declined” to grant “suspect classification” to laws based on “sexual preference.” And the panel said it was neither empowered nor willing to “create such a new suspect classification for same-sex relationships.”

It also ruled that, while a 1972 U.S. Supreme Court dismissal of Baker v. Nelson is “precedent binding on us,” subsequent U.S. Supreme Court decisions, in such cases as Romer v. Evans and Lawrence v. Texas, make its usefulness in the current cases limited. In Baker, a gay couple in Minnesota appealed a ruling of their state’s supreme court that held the state could deny them a marriage license. The U.S. Supreme Court, in 1972, dismissed the couple’s appeal. BLAG attorney Paul Clement had argued the First Circuit was bound to do the same with the DOMA challenge.

The panel stayed its decision, meaning the federal government is not obliged to immediately begin recognizing same-sex marriages. But Mary Bonauto, lead attorney for same-sex couples on the case, said she expects the decision will be appealed in short order.

The decision was written by Judge Michael Boudin and joined by Chief Judge Sandra Lynch and Judge Juan Torruella. The panel heard oral arguments in the two cases —Gill v. Office of Personnel Management and Massachusetts v. Health and Human Services—on April 4.

The “case” before the panel was a consolidation of three cases, brought by Gay & Lesbian Advocates & Defenders (GLAD) and by the Commonwealth of Massachusetts. They are generally referred to as Gill v. Office of Personnel Management.

In Gill, GLAD argued that DOMA’s ban on federal recognition of same-sex marriages violates the equal protection of same-sex couples. In Massachusetts v. HHS, the state argued that it interfered with the state’s authority to regulate marriage. In Hara v. OPM, GLAD argued a very narrow case involving the benefits due to one plaintiff, Dean Hara, the widow of the late U.S. Rep. Gerry Studds.

 U.S. District Court Judge Joseph Tauro ruled in July 2010 that Section 3 of DOMA violates the U.S. Constitution’s guarantee of equal protection, its Spending Clause, and the Tenth Amendment right of states to sovereignty.

Section 3 of the federal law, passed in 1996, states that, for federal government purposes, “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” None of the First Circuit lawsuits challenged the section of DOMA that enables any state to ignore valid marriage licenses issued to a same-sex couple in other states.

First circuit drills down on DOMA

BOSTON — A three-judge panel in Boston heard oral arguments Wednesday (April 4) in the first challenge to the Defense of Marriage Act (DOMA) to reach a federal appeals court.

Paul Clement
Paul Clement

BOSTON — A three-judge panel in Boston heard oral arguments Wednesday (April 4) in the first challenge to the Defense of Marriage Act (DOMA) to reach a federal appeals court. And the challenges to counsel representing the Republican leadership of the U.S. House, which is defending the statute, came fast and furious, particularly from the panel’s one ethnic minority member.

Isn’t DOMA “forcing states to change their [marriage] laws to comply?” asked Judge Juan Torruella of Paul Clement, the counsel hired by the Bipartisan Legal Advisory Group (BLAG), headed by House Speaker John Boehner. Torruella, who came to the First Circuit from the District Court for Puerto Rico. And if states don’t comply, asked Torruella, don’t they lose all sorts of benefits downstream? What if DOMA said the federal government would not recognize marriages between different races, said Torruella. And could Clement really argue that a First Circuit ruling in a case concerning the “Don’t Ask, Don’t Tell” law—that it could be justified on a simple rational basis alone—be considered binding in this case, given the “different standards” for courts reviewing military matters?

Judge Michael Boudin pressed Clement to explain Congress’s reasons for passing DOMA. When Clement responded that Congress sought to “preserve” prior legislative understandings of what marriage means, Boudin pushed back, asking him, “What, beyond the status quo?”

Chief Judge Sandra Lynch asked Clement to “expand” on his argument that Congress passed DOMA to provide for a “waiting period” to see how the same-sex marriage issue would play out in the states.

They were not extraordinary questions and they cannot be seen as providing any real reading of how the judges might rule. But the judges had few questions for the Commonwealth of Massachusetts’s representative in court,  Maura Healey, and even fewer for Gay & Lesbian Advocates & Defenders’ attorney Mary Bonauto.

The focus was squarely on Clement, fresh off his challenge to the Obama administration’s Affordable Care Act last week in the U.S. Supreme Court, and the Obama administration’s representative, Department of Justice’s recently promoted Acting Assistant Attorney General for the Civil Division, Stuart Delery.

The case before the panel was a consolidation of three cases, generally known as Gill v. Office of Personnel Management. U.S. District Court Judge Joseph Tauro ruled in July 2010 that Section 3 of DOMA violates the U.S. Constitution’s guarantee of equal protection, its Spending Clause, and the Tenth Amendment right of states to sovereignty. Section 3 of the federal law, passed in 1996, states that, for federal government purposes, “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” None of the First Circuit lawsuits challenged the section of DOMA that enables any state to ignore valid marriage licenses issued to a same-sex couple in other states.

The DOJ filed the initial appeal to the First Circuit U.S. Court of Appeals and filed a brief laying out various rational basis arguments to justify DOMA. But one month later, in February 2011, the U.S. Attorney General announced that the Obama administration considers DOMA unconstitutional and would not defend it in most cases.

In court Wednesday, Clement tried to bolster his own rational basis arguments by pointing out that DOJ’s initial brief had proffered reasons it considered legitimate for DOMA.

“DOJ can change its position,” said Clement, “but the prior submission doesn’t go away.”

DOJ’s Delery told the panel the president and the DOJ now believe the court should hold DOMA to a “heightened” standard of scrutiny, much more difficult to satisfy than identifying a mere “rational” reason for the law putting same-sex couples at a disadvantage.

“Rational basis,” said Delery, “would permit the court to disregard what actually motivated” Congress to pass DOMA: animus toward same-sex couples. But, he added, “I’m not here to defend it on any standard.”

However, Delery did defend DOMA against the Commonwealth of Massachusetts’ argument that DOMA violates the Tenth Amendment to the Constitution.

The Tenth Amendment provides that “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people’.”

Maura T. Healey, chief of the Massachusetts Attorney General Office’s Bureau of Public Protection and Advocacy, told the panel that DOMA amounted to a “revolutionary” act by Congress to take from the states their long-standing power to define marriage within their own borders.

“Congress doesn’t like that gay people are getting married” and has taken the “extraordinary” step of encroaching on a “matter of core state sovereignty,” said Healey. Healey said DOMA interferes with Massachusetts’ authority to have a uniform marriage code that requires the state to treat same-sex couples differently. She challenged Clement’s claim that DOMA sought uniformity for the purpose of federal regulations, noting that Congress had not taken any steps to create uniformity in the acceptable age for marriage—a requirement that differs from state to state.

DOMA, she said, is “really a rule of exclusion” aimed at gays.

In the current case, the DOJ and the Commonwealth of Massachusetts have argued that DOMA is a violation of the Spending Clause. The Spending Clause says Congress has the power to collect taxes and pay debts to promote the “general welfare” of the country. Massachusetts says DOMA violates the Spending Clause by conditioning federal funding on invidious State discrimination against its own citizens.

Healey and GLAD’s Bonauto had only 10 minutes each to state their positions, even though GLAD and Massachusetts brought the lawsuits that led to the district court ruling that struck DOMA Section 3. But both were emphatic in their denouncement of DOMA as targeting gays for no purpose other than animus.

Bonauto, whose voice seemed a little hoarse, reiterated GLAD’s claim that DOMA violates the Constitution’s guarantee of equal protection for same-sex couples. The law deserves heightened scrutiny, she said, “but it fails even the rational test.” When Judge Lynch asked her to respond to Clement’s claim that Congress was merely trying, with DOMA, to respond to a changing legal landscape brought on when Hawaii first considered a same-sex marriage lawsuit, Bonauto replied that marriage laws have frequently changed throughout history. But what changed with DOMA, she said, was Congress’s deference to the states. Even during the time that some states banned interracial marriage, said Bonauto, Congress deferred to each state’s definition of marriage.

“There’s no problem that’s being solved by DOMA,” said Bonauto. Section 3 of DOMA, she added, puts up a sign that says, “No married gays need apply” and it “is inflicting a broad range of harms.”

There was considerable time given to Clement’s argument that the First Circuit can apply only a rational basis test to DOMA, and not the more difficult heightened scrutiny review. That argument emerges out of a First Circuit decision in 2008 in Cook v. Gates. The First Circuit upheld the military’s “Don’t Ask, Don’t Tell” and, in doing so, said that its review required only a rational justification for DADT.

GLAD and the Department of Justice sought to skip the three-judge panel review and go straight to the full First Circuit to hear the appeal, in hopes of addressing the Cook question, but the First Circuit denied that request.

Clement argued that, because the First Circuit used only rational basis review in the Cook case, it was bound to use only rational review in this case. He offered a number of “rational” reasons for DOMA, in court and in his written briefs, the desire for “uniformity,” the potential for unknown consequences of recognizing same-sex marriages, and “fiscal prudence.” In his written brief, Clement even argued that “scientific opinion” should not be permitted to “invade the policy realm” reserved to Congress and that Congress doesn’t really even need a reason, just a “belief” to justify the law. He did not express these latter two points in court Wednesday.

Clement also argued in court, and in written briefs, that the U.S. Supreme Court has already ruled on same-sex marriage. He cited the now infamous petition Baker v. Nelson, in which a gay couple in Minnesota appealed a ruling of their state’s supreme court that held the state could deny them a marriage license. The U.S. Supreme Court, in 1972, dismissed the couple’s appeal.

Dismissing an appeal has more significance than simply refusing to hear to hear an appeal. But, in dismissing Baker, the high court explained it was doing so because there was no “substantial federal question” presented by the case.

The three-judge panel had no questions for Clement concerning this argument. But GLAD, DOJ, and Massachusetts spent considerable time in their written briefs refuting that notion.

GLAD, for instance, noted that the U.S. Supreme Court’s dismissal of Baker—in 1972—“is no longer good law,” given the Supreme Court’s 2003 ruling in Lawrence v. Texas. In that decision, the Supreme Court ruled that states could not ban private consensual sexual activities of same-sex adults.

The three consolidated cases are Gill v. Office of Personnel Management, Hara v. OPM, and Commonwealth of Massachusetts v. U.S. Department of Health and Human Services. The first two cases were brought by Gay & Lesbian Advocates & Defenders; the latter by the state.

The plaintiffs in the three consolidated lawsuits include the Commonwealth of Massachusetts, seven same-sex married couples, and three widowers who had same-sex spouses. The lead plaintiff named in one case is Nancy Gill, a U.S. Postal Service worker. The sole plaintiff in the second, more narrow, case is Dean Hara, the widow of the late U.S. Rep. Gerry Studds.

There are at least four other lawsuits currently underway challenging DOMA, but, with one exception, the others are in district court.

Two of the four cases are in the Second Circuit states. GLAD has filed a similar challenge to DOMA, Pedersen v. OPM, in the U.S. District Court of Connecticut. Briefing in that case is completed and GLAD’s website indicates the group is now awaiting a decision. The ACLU’s National LGBT Project filed a DOMA challenge, Windsor v. U.S. in the U.S. District Court for the Southern District of New York. Decisions in both of these cases would likely be appealed to the Second Circuit U.S. Court of Appeals.

The other two DOMA cases are in California, a Ninth Circuit state. In Golinski v. OPM, a district court judge ruled in February that DOMA violates the equal protection rights of same-sex couples. That decision has now been appealed to the Ninth Circuit. And Dragovich v. U.S., a case brought the Legal Aid Society, in the U.S. District Court in Oakland. Legal Aid and the House both filed motions March 22 seeking a summary judgment in the case.

The audio of the one-hour argument is available on the First Circuit’s website; however, due to a technical issue, the first ten minutes or so of the proceeding were not captured.

Lawyers arguing DOMA appeal Wednesday

When a panel of three judges on a federal appeals court hears arguments against the federal Defense of Marriage Act, three openly gay lawyers will argue the law is unconstitutional. Opposing them, one straight attorney.

Mary Bonauto

When a panel of three judges on a federal appeals court hears arguments against the federal Defense of Marriage Act, three openly gay lawyers will argue the law is unconstitutional. Opposing them, one straight attorney.

Legal gay icon Mary Bonauto will once again make a case for equal marriage, arguing on behalf of seven gay couples and three widowers, all married in Massachusetts after the 2003 Goodridge v. Department of Public Health decision.

While the state affords them all the rights, benefits, protections, and responsibilities of legal wedlock, the federal government, under DOMA, denies them more than 1,000 federal programs, benefits and legal protections afforded to opposite-sex couples.

Perhaps best known for winning the 2003 Massachusetts Supreme Judicial Court ruling in Goodridge, Bonauto is Gay & Lesbian Advocates & Defenders’ civil rights project director.

Goodridge was the first state Supreme Court victory for advocates of the freedom to marry for gay and lesbian couples.

Before Goodridge, Bonauto and two other attorneys won an important 1999 decision in Baker v. State of Vermont, a ruling that prompted lawmakers there to adopt what was then the ground-breaking option of civil unions. Civil unions afforded same-sex couples all the rights, benefits, and responsibilities of marriage, but not the word marriage.  In 2009, Vermont lawmakers made same-sex marriage legal.

A May 2004 New York Times Magazine profile on Bonauto likened her to the late U.S. Supreme Court Justice Thurgood Marshall, who, before becoming a judge, argued before the high court in the historic case of Brown v. Board of Education, which ended racial segregation in public education.

A native of Newburgh, N.Y., Bonauto is a graduate of Hamilton College in Clinton, N.Y., and holds a law degree from Northeastern University, located in Boston.

Bonauto and her wife Jennifer Wriggins reside in Portland, Maine, where they are raising twin daughters.

Just as GLAD won a favorable same-sex marriage ruling in the federal district court in Boston in July 2010, so did and the Commonwealth of Massachusetts.

In a suit brought by the state’s attorney general, Maura T. Healey, chief of the Massachusetts Attorney General Office’s Bureau of Public Protection and Advocacy, argued that DOMA infringed on Massachusetts sovereignty, trespassing on the state’s ability to determine eligibility for issuing marriage licenses.

During oral arguments, attorney Healey led a full-court press. In strong words, she told the U.S. District Court judge that DOMA “forces Massachusetts to engage in a kind of invidious discrimination.”

How? By denying same-sex married couples of the same benefits received by opposite-sex couples—or risk losing federal aid.

Even worse, DOMA is “animus-based national marriage law,” said Healey. She contended that the law infringes on Massachusetts sovereign authority and “forces the state to discriminate against its own citizens.”

Like Bonauto, Healey is no stranger to high profile gay litigation. Prior to joining the Attorney General’s Office, Healey was an attorney at the Boston office of WilmerHale, a prestigious law firm. There, she provided counsel to the Servicemembers Legal Defense Network (SLDN) in a 2006 case, Cook v. Rumsfeld, that challenged the constitutionality of the armed forces’ ban on openly gay service, a federal law and military policy known as “Don’t Ask, Don’t Tell.”

Before law school, Healey, a New Hampshire native, played women’s basketball for Harvard College. There, as point guard, she captained the school to an Ivy League championship. Afterwards, Healey went on to play professional ball in Europe. She is a 2006 inductee into the New England Basketball Hall of Fame.  She holds a law degree from Northeastern.

For the April 4 arguments, GLAD’s and the attorney general’s lawsuits have been consolidated. They are referred to as Gill v. Office of Personnel Management.

When the cases were first heard in U.S. District Court, the Obama Department of Justice was still defending DOMA. But last year, DOJ said it would no longer argue the law is unconstitutional.

This time, the Department of Justice will be arguing against DOMA. And it will do so in the person of openly gay attorney Stuart Delery, promoted recently to serve as DOJ’s Acting Assistant Attorney General for the Civil Division.

Like Bonauto and Healey, Delery has experience with high profile gay litigation. While a partner at WilmerHale in Washington, D.C., he was pro bono counsel of record for the Servicemembers Legal Defense Network’s unsuccessful lawsuit in the First Circuit that challenged the military’s “Don’t Ask, Don’t Tell.”

A graduate of the University of Virginia, Delery earned a law degree at Yale. He clerked for Supreme Court Justices Sandra Day O’Connor and Byron R. White.

Delery and his longtime partner, Richard Gervase, are fathers of two sons, according to the gay newspaper Metro Weekly of Washington, D.C.. Both parents are active in Rainbow Families DC, a non-profit organization for LGBT parents and prospective parents in the Washington, D.C. metropolitan area.

DOJ is no longer defending DOMA, but the Bipartisan Legal Advisory Group (BLAG) of the U.S. House hired attorney Paul Clement, former Solicitor General for President George W. Bush, to do so.

At that time, Clement was a partner at the law firm of King & Spaulding. When the law firm withdrew from the DOMA case, Clement resigned and joined another smaller firm, saying, “Representation should not be abandoned because the client’s legal positioning is extremely unpopular in certain quarters.”

“Defending unpopular positions is what lawyers do,” said Clement, to Washington Post columnist Jonathan Capehart. “The adversary system of justice depends on it, especially in cases where passions run high. Efforts to delegitimize any representation for one side of a legal controversy are a profound threat to the rule of law.”

A Wisconsin native, Clement, a graduate of Georgetown University, holds a law degree from Harvard. He clerked for Associate Justice Antonin Scalia of the U.S. Supreme Court.

When Clement arrives in Boston to defend DOMA, he will be fresh off an appearance this past week before the U.S. Supreme Court in landmark litigation seeking to overturn the Affordable Care Act. Clement will also be defending DOMA in other cases.

Foremost DOMA case in appeals court Wednesday

One of the biggest lawsuits against the federal Defense of Marriage Act (DOMA) is back in court next week, and for the first time for any DOMA challenge, it is at the federal appeals level.

Paul Clement

One of the biggest lawsuits against the federal Defense of Marriage Act (DOMA) is back in court next week, and for the first time for any DOMA challenge, it is at the federal appeals level. It is also going before a three-judge panel comprised of two Republican and one Democratic appointee, though partisan affiliation has not been a good predictor of outcome in many gay-related cases in recent years.

The April 4 argument is a consolidation of three cases but is generally referred to as Gill v. Office of Personnel Management. The litigation challenged DOMA’s Section 3 restriction: that, for federal government purposes, “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”

Gay & Lesbian Advocates & Defenders (GLAD) and the Commonwealth of Massachusetts won a ruling in the federal district court in Boston on the litigation in July 2010. At that time, they were opposed by the Obama Department of Justice. But in February 2011, the DOJ announced it would no longer argue that DOMA is constitutional and U.S. House Speaker John Boehner hired a private attorney, Republican former Solicitor General Paul Clement, to defend the law.

The Department of Justice will be in court April 4 in Boston. It will be represented by openly gay attorney Stuart Delery, who was promoted February 27 to serve as DOJ’s Acting Assistant Attorney General for the Civil Division.  While Delery’s name has not been on the DOJ’s briefs to the First Circuit U.S. Court of Appeals in the Gill case, he’s no stranger to gay litigation. He argued a class action lawsuit in the First Circuit that challenged the military’s “Don’t Ask, Don’t Tell” law in 2008. And, according to a 2007 article in the Washington, D.C., gay newspaper Metro Weekly, Delery is raising two children with his partner of nearly 20 years.

The DOJ brief filed in December argues that DOMA Section 3 violates equal protection principles and is unconstitutional. DOJ does not agree with the Commonwealth of Massachusetts, however, that Section 3 also violates the Tenth Amendment.

In his ruling, U.S. District Court Judge Joseph Tauro ruled that DOMA violates the Tenth Amendment to the U.S. Constitution by taking from the states powers that the Constitution gave to them. And he ruled that it violates the equal protection principles embodied in the due process clause of the Fifth Amendment in an effort to “disadvantage a group of which it disapproves.”

As always, there will be a debate over what level of scrutiny the court should apply when evaluating the constitutionality of DOMA. Judge Tauro used rational basis, a relatively easy standard for a law to pass. That is the standard of review urged by attorneys hired the Bipartisan Legal Advisory Group (BLAG) of the U.S. House to defend DOMA. DOJ and GLAD has urged heightened scrutiny.

BLAG’s attorney, Paul Clement, will be in court April 4, even though he will have just appeared before the U.S. Supreme Court this week in the landmark litigation seeking to overturn the Affordable Care Act. It will be the former Solicitor General’s first court appearance in the various DOMA cases he and his legal team are defending.

The lead attorneys opposite Clement will, of course, be GLAD’s Civil Rights Project Director Mary Bonauto and Massachusetts Chief of Civil Rights Division Maura Healey.

They will be appearing before a three-judge panel comprised of First Circuit Chief Judge Sandra Lynch, a Clinton nominee; Judge Juan Torruella, a Reagan nominee; and Judge Michael Boudin, a George H.W. Bush nominee.