DOMA §3 struck down in U.S. v. Windsor

I was trying not to keep putting up same sex marriage news here, but I cannot keep my mouth shut over the news that the Supreme Court has ruled DOMA unconstitutional in U.S. v. Windsor. (see SCOTUSblog for all documents, they just don't have the decision linked yet; also see GLAD.org/doma, which will provide documents as well).  (sorry, California friends -- I am glad for you, too!)

But what really influenced me was a heartfelt essay from one of my great colleagues at Suffolk, Sarah Boonin, who wrote about her personal reaction to the decision, at the Huffington Post.  Read Sarah's moving essay to understand better what the decision will mean to the affected parties.  Perhaps readers will understand, too, why it's a ludicrous thing to say that being gay or lesbian, bi- trans or anything along the LGBQT spectrum is a lifestyle choice, or that it is so attractive that children and young people are seduced into it. It's hideously difficult to live this life. It is not a choice. It's being authentic to who you were born.

You will see why I believe that same sex marriage is the civil rights issue of our time.  I am so proud of the justices who wrote this decision the way they did. It took some courage for Justice Kennedy to write this, and it will be a very important decision.

Amicus Briefs in Supreme Court Challenge to Federal DOMA

Oh, my how times have changed!  I was just gob-smacked to read, first the story of the Republican congressmen who signed on the amicus brief opposing the federal Defense of Marriage Act in Windsor v. U.S.. Then, a day later, there was another story about multiple major corporations signing a similar amicus brief in the same case, arguing that the DOMA forced them to treat employees unfairly. 

Very conveniently, the GLAD website pulls all these briefs and many other documents together in one handly place. Their website is a model for legal researchers, regardless of what side of an issue you may be one.  Thank you, GLAD!

Windsor v. United States overturns DOMA in 2nd Circuit

The Second Circuit Court of Appeals on Oct. 18, 2012 upheld a District Court opinion finding the federal Defense of Marriage Act (DOMA) unconstitutional. The decision in Windsor v. United States, follows an earlier decision striking down DOMA in the First Circuit, Massachusetts v. Health and Human Services Department. There are also two District Court decisions in the First Circuit, Gill v. Office of Personnel Management and Pedersen et al. v. Office of Personnel Management et al. which also challenge DOMA.(See GLAD.org's page of documents on these cases). The ACLU helps represent the plaintiff in Windsor, and provides a very complete page of documents for that case here.

The thing that is building excitement about the growing number of challenges to DOMA is the certainty that the Supreme Court will pick up one or another of these cases on appeal. The increasing number of jurisdictions that now have different rules for treatment of citizens because of these decisions puts pressure on the Court to resolve the differences.

Here is a NY Times article that includes a nice factual summary of the Windsor case. Because the federal government does not recognize same sex marriages, Ms. Windsor's inheritance from her deceased spouse was taxed at a much higher rate than it would have been had she been in a hetero-sexual marriage. But Ms. Windsor's statements make it clear that, for her, the law suit is much more personal than the money involved. She says she finds it

so offensive that this woman that I lived with and adored, and had loved me, that they treated her as if she was a stranger in my life.

The article, of course analyzes the possible outcomes of a Supreme Court review of same sex marriage and challenges to the Defense of Marriage Act. The Windsor decision is interesting because it raises the standard of review to heightened scrutiny, and finds that the DOMA fails to pass this review. The standard of review, of course is set according to the history of discrimination of the class, which the Windsor court described as "quasi-suspect." The panel found the Defense of Marriage Act unconstitutional for violating equal protection.

Same Sex Marriage News

Viet Nam Government Considering Legalizing Same Sex Marriage

Viet Nam's first gay pride parade will be held in Hanoi on August 5. And even long time gay rights activists in the region were stunned when the Vietnamese government announced it was considering legalizing same sex marriage. Whether the law will ultimately pass remains to be seen.

The Justice Ministry will consider opinions from the public along with government agencies before submitting its draft proposal to the National Assembly next May on whether to recommend same-sex marriage or some other type of legal recognition with rights. Then, it must be approved by a majority of parliament.

(from the NPR story linked in the title for Viet Nam section)

But just the consideration of such a law in Viet Nam is historic in the Asian region, where there is little support for gays and lesbians. The NPR story at the link above gives a thumbnail sketch of the status in various Asian nations, with generally low support, especially in the Muslim nations of the region. But even Thailand, which, to casual visitors may seem to have a vibrant gay/lesbian/transgender life in the cities, actually provides very little beyond the tourism areas where these activities thrive. Viet Nam’s Communist government is distinctive in repressing religious expression that might otherwise press back against the measure.

Maine

Maine will have a ballot question in November, 2012, asking voters
"Do you want to allow the State of Maine to issue marriage licenses to same-sex couples?"

And of course, money is pouring into the state from supporters and opponents.

Washington (state) Referendum 74

But not as much, I think as is pouring into Washington state. In February, the legislature there passed a law legalizing same sex marriage. But opponents collected enough signatures to put the decision to a referendum ballot vote, Referendum 74. The largest single public gift so far has come from Amazon’s Jeff Bezos who gave $2.5 million to help support same sex marriage after receiving an e-mail request from one of Amazon’s earliest employees (no longer working there)!

Democrats Include Same Sex Marriage in Party Platform
And the Democratic National Party seems poised to include a plank for the party platform in support of same sex marriage!

Obama first sitting U.S. President to speak in favor of same sex marriage

When President Obama spoke to Good Morning America on Wednesday, May 9, 2012 about his evolving feelings about same sex marriage, he became the first sitting American President to support same sex marriage. The Boston Globe ran a very nice article about the interview, which ran in two parts. There was a "breaking news" interruption of soap operas on Wednesday morning, and a longer airing of the full taped interview on Thursday.

Obama said his position on same-sex marriage evolved over several years as he spoke with friends, family, and neighbors about it. He cited the influence of members of his staff “who are in incredibly committed monogamous relationships, same-sex relationships, who are raising kids together,’’ and the gay soldiers, airmen, Marines, and sailors “who are out there fighting on my behalf’’ but not allowed to marry. (snip) Obama said he has “stood on the side of broader equality’’ for the lesbian, gay, bisexual, and transgender community, “and I’d hesitated on gay marriage in part because I thought civil unions would be sufficient . . . and I was sensitive to the fact that for a lot of people, the word ‘marriage’ is something that evokes powerful tradition and religious beliefs.’’

The article quoted some activists who were angry and disappointed at the timing of the President's announcement, coming right after the North Carolina vote to amend their state constitution to ban same sex marriage on Tuesday, May 8. The President, in fact, expressed his disappointment in the voting outcome.

Obama's opponent in the Presidential race, Mitt Romney, when governor of Massachusetts, unsuccessfully sought several times to find a legislative way to overcome the judicial opinion that legalized same sex marriage in our state. He has stated that he opposes same sex unions and would support a federal Constitution ban on gay marriage. He would also support the current Defense of Marriage Act (DOMA). So there is a clear split between the candidates on this issue. Obama does say that he supports individual states' right to decide for themselves how to treat the issue, so he does not contemplate a federal law that would override state laws on the matter.

I was listening to the radio on Thursday, and they were interviewing people about their reaction to the announcement. One gay journalist said that he really had not expected that the announcement would have much affect on him, but when he actually heard his President speaking words that reaffirmed his humanity, he was so moved that he burst into tears.

This is a civil rights issue. It is about treating people with dignity and equality. Bless President Obama for taking a huge step and doing the right thing in this area. I hope it does not hurt his campaign, but only helps.

Just in time for Valentine's Day: Status of Same Sex Marriage

Washington State just passed legislation and the governor signed it on February 13. (Story from the L.A. Times). The article from the L.A. Times also includes a nice time-interactive map of the US showing how different states have changed over time to increase or decrease the rights allowed for gay couples.

The National Conference of State Legislatures has a nice, comprehensive statement of the status of same-sex marriage across the country here.

So, have a fabulous Valentine's Day, and remember, that IT GETS BETTER!

Proposition 8 Ruling in California

slate gives a very shrewd reading of the narrow decision in the Circuit Court appeal of the Prop 8 case in California that just came out. Dahlia Lithwick does a nice job of reading the crystal ball of politics and gamesmanship that apparently went into writing the decision in Perry v. Schwarzenegger. In a 2-1 decision, the 3 judge panel upheld District Judge Vaughn Walker's lower court decision, but on much narrower grounds. Where Walker, in a widely-praised, broadly written decision struck down Proposition 8 with 80 findings of fact to ground his decision on the unconstitutionality of Prop 8, on both equal protection and due process grounds

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

The Court of Appeals, by contrast, chose to write a very narrow opinion upholding Judge Walker's decision, and making it very clear that the decision applies only to Proposition 8 in California. The opinion also prevents same-sex marriages from going forward until Proposition 8 backers have opportunities to either appeal to the full 9th Circuit or to the Supreme Court. We are all watching to see what will happen next.

Gay Man's Memorial for Dead Veteran Husband at Naval Academy as "As Don't Ask Don't Tell" Ends

The Chicago Sun-Times had a short article about the gay widower of a decorated navy veteran who approached the Naval Academy about setting his husband's ashes in the columbarium there. One of his husband's wishes had been to be cremated and have his ashes interred at his old school, where he had wonderful memories. So Mark Ketterson contacted the U.S. Naval Academy to inquire about the possibility, and the memorial coordinator asked his relationship to the deceased.

“They were always polite, but there was this moment of hesitation,” Ketterson recalled. “They said they’re going to need something in writing from a blood relative. They asked, ‘Are you listed on the death certificate?’ ‘Do you have a marriage license?’ ”

(The article is quoting Ketterson.) Fortunately, Ketterson was listed on the death certificate, and the couple had been married in Iowa when same-sex marriage became legal in that state. When the memorial coordinator received the death certificate and the marriage license, Ketterson said, "I was respected. From that moment on, I was next of kin. They were amazing.”

Ketterson's husband, John Fliszar, received the same standard memorial service and interment that all alumni of the academy receive. Ketterson was able to compose a memorial and publish it in the alumni magazine as well, which is also a standard option for families. The article says the notice created a bit of a stir, since it was clear that the couple was a same-sex union. But Ketterson has heard from a number of officers, including the organization USNA-Out, the organization for gay graduates of the naval academy. Again, the article quotes Ketterson:

“It’s been some months. I’m still doing mourning. As a gay man who grew up in a military family, getting communications from USNA, having heard from alumni who say, ‘You will always be one of us’ — that’s powerful, and healing.

“One of the e-mails said that I was a ‘trailblazer,’ I didn’t blaze any trail. I buried my husband.”

The article makes it clear, however, that the key to the way the Academy was able to deal with Mr. Ketterson was the marriage license. The author, Neil Steinberg, could not find a spokesperson to speak for the entire Navy on the topic. But one of the points he makes in the article is that without that marriage license to send to the memorial coordinator, this pleasant story does not seem to have been on the books. According to Mr. Ketterson's telling, it was a turning point when he was able to produce both the death certificate with his name listed and, especially, the marriage license. The article notes that "such practical concerns" were not on their minds when Ketterson and Fliszar married after dating for six years. Ketterson says he married "because I loved him and he asked me." But that act made so much difference later!

And the fact that they had the ability to marry made all the difference!

Maryland and Gay Marriage

Maryland failed to pass a gay marriage bill last spring, but a new bill is being filed now and may pass. Governor Martin O'Malley is supporting a bill that balances authorization of equal marriage rights with language exempting religious organizations who object from performing ceremonies for gay couples. I suppose the language, if drafted correctly, could exempt a religious organization that objected to heterosexual marriage from performing those ceremonies as well -- it would only be fair.

Here is a link to a Washington Times story about O'Malley. And here is a link to Marylanders for Marriage Equality. A tip of the OOTJ hat, actually, to Mark Weikel of www.gaydatingsites.net, which is sponsoring an online petition and fundraising drive in support of this initiative. Good luck to Maryland voters!

Here is the current status of Same Sex Marriage in the US:

Issues marriage licenses to same-sex couples: Massachusetts, Connecticut, California*, Iowa, Vermont, New Hampshire, New York and the District of Columbia Recognizes same-sex marriages from other states: New York, Maryland Allows civil unions, providing state-level spousal rights to same-sex couples: Delaware, Hawaii, Illinois, New Jersey, Rhode Island (Note: In Connecticut, Vermont and New Hampshire, same-sex marriage has replaced civil unions.) Grants nearly all state-level spousal rights to unmarried couples (domestic partnerships): California, Oregon, Nevada, Washington Provides some state-level spousal rights to unmarried couples (domestic partnerships): Hawaii, Maine, Wisconsin and the District of Columbia * The California Supreme Court ruled on May 15, 2008, that same-sex couples have the right to marry in California. Proposition 8, which amended the California Constitution to define marriage as between one man and one woman, was passed on Nov. 4, 2008. On Aug. 4, 2010, a federal district judge ruled that the same-sex marriage ban in Proposition 8 violated the equal protection provisions of the U.S. Constitution. Enforcement of that decision has been stayed pending appeal. California does not currently allow same-sex marriages to be performed. Same-sex marriages performed before Proposition 8 was passed remain valid.

(from an excellent and quite current report on the wonderful website at the National Council of State Legislatures.) It's a terrific resource for all sorts of data!

Gay Marriage Legislation in NY!

New York has passed a bill legalizing same sex marriage, and governor Cuomo is expected to sign it. Here is a nice, in-depth story from the NY Times on the behind the scenes stories that went into making the bill a reality. The bill passed in a state where Republicans actually control the legislature by a slim margin. But the Times article makes it plain that the decisions turned on personal relationships that influenced the various legislators -- gay children, relatives, friends, friends of friends who influenced the decisions of the voters. Governor Cuomo had made same-sex marriage a priority, though he had been distracted by several battles over budget issues. But his strong support has undoubtedly been key to the passage of this law in the largest state recognizing marriage equality for same-sex couples. See NY Times article here on passage late Friday, in Senate 33 - 29, with 4 Republicans joining the Democrats in passing the bill.

Gay Marriage and Civil Rights

Do we get it yet?! This past week saw the ruling in the Proposition 8 case in California, where now-retired federal judge Vaughn Walker has been challenged in his ruling on the case because he didn't recuse himself as an openly gay person in a long-term relationship. Many commentators in the news stories noted that we are just where we were 30 years ago with respect to African-American and female judges being challenged for not recusing themselves on civil rights and sex discrimination cases. Judges should not be challenge-able on the basis of their membership in a minority group, whether it is based on ethnicity, language, religion, gender, or sexuality or gender identification.

There is a separate little issue running alongside: cameras in the courtroom. How many people have been beaten to death for opposing gay marriage, compared to the number of people beaten to death for being or even appearing to be gay or lesbian or transexual? I would challenge the people concerned about witness protection to come up with anybody who has been seriously injured from the straight side.

Here is a link where you can conveniently find both of Judge Ware's orders, about the recusal and the separate order about the videotapes, and cameras in the courtroom. The site is an organization that is trying to raise money to fund ads around the courthouse in support of the gay marriage side. I am a little bemused that they think this would be affecting the judge's decision. I certainly hope it doesn't work that way! But the site does have convenient images that appear to be true copies of the actual decision in the case.

Obama Administration Will No Longer Defend DOMA

The Boston Globe reported this morning that President Obama announced that his administration would no longer defend the Defense of Marriage Act (DOMA) against suits challenging its constitutionality. The administration will continue to enforce the law, but Attorney General Eric Holder, Jr. has informed Congress of his opinion that DOMA is unconstitutional, and that he will exert his discretion to no longer defend the law. If the Justice Department does not challenge such decisions as Pedersen et al. v. Office of Personnel Management et al. (Dist. of Conn.)which addresses the rights of federal employees in Connecticut, Vermont, and New Hampshire, and follows on the heels of the Massachusetts Federal District Court ruling last summer in Gill v. O.P.M. finding DOMA Section 3 unconstitutional, it is not clear what the effect will be on such cases. (see here for a complete list of the legal documents in Gill and Pederson at GLAD's website.) Here is the GLAD statement on the likely effect of this decision:

The Department of Justice announced today that it will not defend the constitutionality of Section 3 of the Defense of Marriage Act (DOMA) in two challenges pending in the District Courts within the jurisdiction of the Second Circuit Court of Appeals, including GLAD’s case Pedersen v. O.P.M. in District Court in Connecticut.

It is extraordinarily significant that the Dept. of Justice recognizes what we have been saying for years in our litigation. Laws that distinguish between people based on sexual orientation are more likely to reflect prejudice against gay people than good public policy. Discrimination based on sexual orientation needs to be justified by the government with exceptionally good reasons rather than being assumed to be permissible. The Attorney General concedes that DOMA fails this test.

This is a welcome acknowledgment but is not the end of GLAD’s DOMA litigation. Ultimately, the courts will decide the standard of review. Moreover, the Attorney General notified Congress that it will not defend the Second Circuit cases and either chamber may step in and appoint counsel to defend DOMA. We are prepared to address head on whatever arguments Congress may make, and bring to an end the harms DOMA imposes on our plaintiff couples and surviving spouses in the litigation and others like them. More information on the litigation and plaintiffs is available at http://www.glad.org/doma

At this time, it is unclear what effect these developments will have in the government’s pending appeal in the First Circuit in Boston of rulings striking down DOMA in cases brought by GLAD and the Massachusetts Attorney General.

The administration will continue to enforce DOMA, and it will remain in effect until the law is either repealed by Congress or finally declared unconstitutional in court.

Read the Attorney General’s letter to Congress

Read the Attorney General’s Statement

Whatever else you may feel about the timing and the morality of the decision, the politics is entertaining. President Obama has dumped a very hot potato into the Republican Congress' lap right as they have their hands full with job creation and whaling on the Democrats about budget cutting. This set of quotes and bit of analysis from the end of the Globe article finish things up very nicely:

Boehner’s office yesterday did not say if Republicans plan to defend the law. But his spokesman, Michael Steel, accused Obama of poor timing.

“While Americans want Washington to focus on creating jobs and cutting spending, the president will have to explain why he thinks now is the appropriate time to stir up a controversial issue that sharply divides the nation,’’ Steel said.

But the nature of Obama’s move places the burden on opponents of same-sex marriage in Congress to take action if they want to keep fighting in courts. And that could be a risky distraction for the GOP which has pledged deficit-fighting and budget issues as its top priorities.

“For the Republican leadership, that is the last thing they want to deal with right now,’’ said Julian Zelizer, a professor of history and public affairs at Princeton University. “I think a lot of Republicans feel that President Obama is quite vulnerable, and they see a real opportunity to do well in 2012, so the last thing you want is to inject an issue that creates dissention and creates divisions. They want to be focused on the deficit, a lot of Republicans — not on this.’’

For Obama, political analysts said, the nod to his liberal base is important, because he has been moving toward the political center following the Republicans’ winning control of the House last November.

“It’s almost, he takes a step to the center,’’ said Jennifer Duffy, senior analyst at the nonpartisan Cook Political Report, “then he yells over his shoulder, ‘I’m still here; we’re going to move when we have to move but on issues you care about I’ll make a difference when I can.’ ’’

Federal Judge Overturns California Prop 8 Banning Gay Marriage

The Washington Post today carries the most in-depth article on Judge Vaughn R. Walker's decision on California's Proposition 8. In the Northern District of California Federal Court, the case of Perry, et al., v. Schwarzenegger, et al. (C 09-2292) has been decided for the plaintiffs, ruling that equal protection and due process under the federal Constitution require Judge Walker to find Proposition 8 unconstitutional. The Post provides the full text of the decision, (136 pages) which interestingly includes a discussion of Judge Walker's probing questions at oral argument. The reader can sense the judge's frustration with the proponent counsel's (those supporting Proposition 8) arguments, which is interesting. While the attorneys for the plaintiffs built a rich record with eight lay witnesses and nine expert witnesses, and using complex arguments based on civil rights cases of the past, such as Brown v. Board of Education and Loving v. Virginia. Proponents presented only two expert witnesses, though they carefully cross-examined all plaintiff witnesses. The difference in presentation seemed to frustrate the judge, who was nominated by President Reagan and confirmed under the first President Bush. The judge ruled that Proposition 8, which in 2008 passed to amend the state constitution by 52% of the popular vote,

"fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license."

"Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples," (snip) Walker said opponents have until Friday to convince him that the decision should be stayed during the appeals process, or the marriages will resume. (snip) Walker said the decisions of voters must be respected. But because the right to marriage is fundamental, he wrote, "voters' determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons."

The Post article is enriched with lots of links to sidebar articles, polls, and extras. I encourage you to go there. The article is extracted in lots of papers around the country but it's worth going right to the Post itself.

Selected Filings in Perry v. Schwarzenegger (thanks Michael Ginsborg & Scribd!) I think this includes all or nearly all of the briefs as well as innumerable motions and orders issued along the way.

Here is the ACLU amicus brief

This will now be appealed to the Ninth Circuit Court of Appeals, and eventually, we can be sure, to the Supreme Court. Probably it will meet the Massachusetts Eastern District Court decision, Gill v. Office of Personnel Management, focused on the federal Defense of Marriage Act (DOMA), which allowed the OPM to deny federal employees spousal benefits even if they were in same sex marriages in states which recognized such marriages. Gill was a much narrower decision than the Perry case.

Gay Marriage in California - Law Suit Challenging Prop. 8

Two gay couples in California filed suit May, 2009 in federal court in the Northern District of California challenging Proposition 8, the voter-approved ban on gay marriage in that state. Originally, the California court had allowed the proceedings to be viewed over YouTube. But the U.S. Supreme Court has blocked that ruling, at the request of supporters of Proposition 8, who intervened in the law suit. You can get the full text of the documents of the case, including hearing transcripts at the site of www.EqualRightsFoundation.org, which seems to have been formed as a 501(c)(3) corporation specially to challenge Prop 8. The website includes not only plaintiffs' and defendant's legal filings, but also links to news and media.

There have been several statements by gay rights activists concerned that this is a dangerous time to file such a suit, which will almost certainly go to the U.S. Supreme Court eventually. The case is styled Perry v. Schwarzenegger. S.F. Gate.com offers one such article

Co-sponsored by nine gay and civil liberties organizations - including the American Civil Liberties Union, the Human Rights Campaign, the National Center for Lesbian Rights and Lambda Legal - the memo said "even the strongest gay-rights decision the court has issued - the Lawrence v. Texas case striking down laws against intimacy for gay couples - explicitly commented that it was not saying anything about formal recognition of same-sex relationships."

"There is much we can and should do together to strengthen our hand before we put a federal marriage case before the justices," the memo said.

The National Center for Lesbian Rights has links with PDF documents for the amicus briefs they have filed in the case and nice summaries of the issues and history of the case, and other helpful links to articles and such. Lambda Legal offers a link with the amicus brief they authored with ACLU and NCLR.

Family Research Council offers its amicus brief here. Scribd (Michael Ginsborg (hi!)) thoughtfully posts "selected" documents from the Perry case here, which today include a number of commentaries. I am not certain I have located all the amici in this sweep, but I have tried. There seems to be very divided opinion on the wisdom of this law suit and its timing. My heart goes out to the folks in California who have had same sex marriage handed to them in San Francisco and then torn away through Proposition 8. I only hope that this law suit does not do lasting damage to the cause of gay marriage in California and elsewhere!