Archives – October, 2011
We’re counting down to the next ruling in the Prop 8 case. A Republican-backed bill in New Hampshire would replace marriage with civil unions for everyone — including siblings. Get ready for a showdown on the Defense of Marriage Act, and things are heating up in Ohio.
December 5th and 10am. That’s the deadline for the California Supreme Court to rule in the Prop 8 case. And the good news is that any way they rule is a victory for marriage equality. They could either end the case right here, with Prop 8 being found unconstitutional. Or they could allow the appeal to move forward on the merits, in which case we would prove — for a second time — that Prop 8 is unconstitutional.
The ruling could come at any time, but the latest possible date is December 5th. We’ll be counting down throughout this episode and during future episodes until we have that decision.
In New Hampshire, the Republican-controlled House Judiciary Committee approved a bill that would end marriage equality, replacing it with severely limited legal protections for LGBT families. Governor John Lynch opposes the measure, and so do most residents. A survey earlier this month shows just 27% support repeal, compared with 50% who are opposed. And 44% say that they’re more likely to vote against an anti-gay candidate, compared to just 14% who were more likely to vote for an anti-gay politician.
One weird quirk of the proposed bill is that it wouldn’t just apply to LGBTs. It would also allow siblings to form a civil union. The bill is sponsored by Representative David Bates, who so far has avoided explaining his eagerness to facilitate consanguinity.
Meanwhile a growing bi-partisan coalition opposes the measure. Visit StandingUpForNHFamilies.org to learn more about the organization, which includes a former New Hampshire Chief Justice, Vice-Chair of the New Hampshire Republican State Committee, a former New Hampshire Attorney General, local business leaders, politicians, and a wide array of other public figures.
Ohio’s stepping up pressure on legislators with a rally planned for this Saturday, November 5th. Equality Ohio is joining forces with a Catholic organization, GetEQUAL, and an equality org from neighboring Kentucky for a rally from 11am to 6pm in Fountain Square in Cincinnati. The action comes on the heels of a recent survey from October showing 62% of voters support some form of legal recognition for same sex couples, with only 34% opposed.
In national news, the Senate Judiciary Committee will hold debate on repealing the Defense of Marriage Act on Thursday of this week. The committee is dominated by co-sponsors of the bill, so it’s likely to have an easy passage. From there, it moves to the full Senate, where its survival is far less certain.
But the assault on DOMA continues to ramp up on multiple fronts, with the Servicemembers Legal Defense Network filing a lawsuit this week on behalf of soldiers and veterans. Even with the repeal of Don’t Ask Don’t Tell, gay and lesbian servicemembers are still prohibited from accessing the same spousal benefits that are available to straight colleagues.
And in Brazil this week, the country’s Supreme Court ruled in favor of a lesbian couple seeking to have their civil union recognized as a marriage. The long-term effects of this ruling are unclear, since it isn’t binding in state courts and may apply exclusively to this one couple, so we’ll need to pay close attention to see what the next steps are from Brazilian activists.
That’s the news for this week, join us online at AFER.org for the latest on the federal challenge to Proposition 8, and visit MarriageNewsWatch.com for more breaking news headlines. We’ll see you next week.
By Adam Bink
As first noted by Alan E in Quick Hits, University of Michigan professors and staff are considering leaving if legislation passes and is signed by Gov. Snyder that would eliminate domestic partner benefits.
I was listening to NPR this morning, where Diane Rehm did a long segment on the “personhood” initiative set to go to a vote the first Tuesday in November in Mississippi. The initiative would grant all the legal rights to a fertilized egg that the law does to you and me, with no except for rape or the life of the mother. I won’t get into all the details, but the spokesperson for the initiative appeared on the program and admitted, yes, it would make all contraception from commonly used birth control to the morning after pill, yes, a woman could be prosecuted if she tripped down stairs and had a miscarriage, yes, a doctor could be prosecuted for saving the life of the mother instead of letting her hemmorhage to death but saving the fetus.
This isn’t about abortion, but rather about personal choices, like in Michigan. A female student attending the University of Mississippi, originally from Missouri, called in and said if she knew this was going on the ballot, she would have never attended. It spoke volumes about what makes someone finally give up on living or working somewhere because of civil rights.
In the Michigan case, it got me thinking about other organized efforts to leave, or choose not to live or work in, places where one is discriminated against. Arizona and efforts to leave or boycott the state over recent immigration legislation is one example. No doubt, there are plenty of others.
Sometimes, one of the most powerful tools is voting with our feet. A potential economic “brain drain” from the University of Michigan hopefully will force legislators and Gov. Snyder to reconsider their action, though it looks doubtful.
By Adam Bink
As originally posted by Sagesse in Quick Hits, attorney Robert Pfister, who was part of the legal team that successfully challenged DOMA in California, gives an eloquent argument for why DOMA fails to pass constitutional muster at any level of scrutiny:
On October 14, 2011, the Republican members of the US House of Representatives Bipartisan Legal Advisory Group filed a brief in Golinski v. US Office of Personnel Management defending the constitutionality of the federal Defense of Marriage Act (DOMA). The Golinski case is one of several pending actions by federal employees challenging the government’s refusal to recognize same-sex marriages that are valid under the laws of the states in which the employees reside. In its brief, the group argued that (1) discrimination on the basis of sexual orientation is subject to the lowest level of constitutional scrutiny, or rational basis review; and (2) under rational basis review, DOMA passes muster. The group’s defense of DOMA fails on both counts.
Courts should be presumptively suspicious of discrimination on the basis of sexual orientation, which in legal terms means that “heightened scrutiny,” rather than rational basis review, should apply. Laws often draw distinctions between people, and the vast majority of the time those distinctions are fitting and proper. Drivers who exceed the speed limit, for example, are subject to traffic tickets and possible fines, whereas drivers who travel at or below the speed limit are not. In general, a court evaluating the constitutionality of a law considers only whether the law has some rational relationship to a legitimate governmental interest — which, as a shorthand, is termed rational basis review. Virtually all laws pass rational basis review. In the speeding ticket example, the purpose of the law is to decrease traffic accidents, and ticketing speeders is a rational way to accomplish that legitimate end. The fact that many or most speeding drivers may not cause traffic accidents is not enough to make the law invalid.
Some types of distinctions, however, trigger heightened scrutiny. Laws or policies that categorize people on the basis of race or gender, for example, must be closely examined to determine whether there is a real and compelling need for the distinction, or whether there are other, less discriminatory ways to accomplish the legislative purpose. Thus, a warden’s decision to separate inmates on the basis of race would not be constitutional if the aim was simply to reduce the potential for conflict generally, but might be permitted in the hours immediately following a race-based riot at the prison.
Broadly speaking, the question of whether to apply heightened scrutiny to discrimination on the basis of sexual orientation depends on how likely such a distinction may be a proper basis for laws or policies. In an era when the last remaining legal differences between gay and straight Americans are fast disappearing (e.g., the repeal of “Don’t Ask, Don’t Tell” and the invalidation of the last remaining legal proscriptions on homosexual conduct), there is little reason to think that sexual orientation will be a proper basis on which to draw legal distinctions. For example, laws that limited foster care placement to prospective parents without convictions for child abuse would easily pass rational basis review, but should laws that prevent gays and lesbians from adopting children be subject to the same lax standard? Or should we closely examine such laws with the same level of suspicion that would attach to laws that denied interracial couples the right to adopt? The plaintiff in Golinski has the far better argument on this point.
Notably, the group essentially concedes that if heightened scrutiny applies DOMA is unconstitutional. That is the same conclusion reached by the Obama administration. Thus, the group’s entire argument in favor of DOMA’s constitutionality rests on the premise that the government may discriminate against gay and lesbian Americans just as easily as the government could prohibit young people from moving into a seniors-only retirement community. In other words, if the group is wrong on its rational basis argument then there is no question that DOMA is unconstitutional.
The group’s brief is devoted to arguing that DOMA has at least some rational basis to a legitimate governmental interest. Despite the ease with which most laws pass rational basis review, courts have increasingly held that DOMA cannot satisfy even this lowest level of scrutiny because ignoring the otherwise valid marriages of gay and lesbian couples has no rational relationship to any legitimate governmental interest. Ignoring one marriage does not strengthen any other marriages, nor is it a proper way to limit the expenditure of governmental resources, any more than arbitrarily denying recognition of marriages celebrated on a Tuesday.
Beyond the proper standard of review, the heart of the Golinski case is whether the federal government may recognize some valid marriages (those of opposite-sex couples) but ignore other, just as valid marriages (those of same-sex couples). In our federalist system, the law of marriage, divorce, parentage and other domestic relations matters is generally left to each particular state, with the federal government recognizing a marriage as valid if it is valid under the law of the state in which the couple resides. DOMA, however, creates an unprecedented exception to that long-settled rule: marriages between individuals of opposite genders will be recognized as under state law, but marriages between same-sex couples will be disregarded for purposes of federal law. DOMA therefore draws a distinction on the basis of sexual orientation.
Under our constitutional system, the government cannot treat persons who are alike in all relevant respects differently. Legally married same-sex couples are constitutionally indistinguishable from legally married opposite-sex couples. DOMA’s irrational insistence to the contrary is not within our constitutional tradition, as it violates the principle laid out in Romer v. Evans that “government and each of its parts remain open on impartial terms to all who seek its assistance.”