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.
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.
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.
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.”
Let’s start with the obvious. This week, there was one NOM story that vaulted above all other, going viral in ways that the more obscure NOM stories can’t always do. I’m of course talking about: That random post I did on NOM’s rhetorical use of the phrase “San Francisco values.” That one caught on like proverbial wildfire, didn’t it?
Just kidding. I’m actually referring to NOM’s unethical, arrogant, and, frankly, bizarre attempt to insert three-year-old shots from one of then-candidate Barack Obama’s legendary campaign rallies into collages of their own organizational efforts, in hopes that people who visit NOM’s so-called “New Hampshire for Marriage” site would think they, as an organization, have an ability to drive “Yes we can!”-sized crowds. After I uncovered those duplicitous photos in a series of posts on Monday and Tuesday, the Internet went wild with that unique combination of uproarious laughter and appalled jaw-drops that we who follow this sort of thing know so well.
But actually, it wasn’t only the internet. MSNBC’s Rachel Maddow, in her own series of reports, noted NOM’s “Did they really think they’d get away with this?!“-style overreach. Then on Thursday, the Human Rights Campaign (the parent organization of this NOM Exposed project) issued an open letter to NOM’s Brian Brown, in which HRC President Joe Solmonese called on the organization to “fess up” about “how far [NOM] will go to make people believe [NOM's] pursuit – the denial of equal treatment under the law — is supported by New Hampshire voters and Americans in general.” These transcendent notices (and others) surely brought NOM’s typically deceptive work to whole new audiences. Yay for that!
That this one incident was able to connect with eyeballs (and in the process, connect so many dots about NOM and the habits of which we NOM Watchers are so accustomed) is a great testament to this work that you and I do in the name of equality!
So how did NOM respond to the attention, you ask?
In true NOM fashion, there has, to this point, been no apology for wrongdoing or even public acknowledgement of the obviously unethical practice. Instead, NOM staffers quietly changed the two offending images without comment. Only thing? In doing so, NOM actually upped the laughable failure even further, by posting replacement images that also had nothing to do with New Hampshire, the state they are purporting to represent. One of the shots comes from the New York marriage rally they held on the very day same-sex couples began marrying in the state, with NOM’s new image showing the largely bussed-in crowds that marched against other’s joy on that day. The other replacement shot was of a rally NOM held in St. Paul, Minnesota, which, last time I checked, is actually not part of the Granite State. Weird, because right alongside the offending images is the text, “NH for Marriage is a coalition of Granite State citizens committed to defending traditional marriage in New Hampshire.” One would think with pictures being as 1,000-words-loaded as they are, an organization purporting to speak on behalf of a certain state would see a need to show actual residents from there.
Then again, one would also think a group of American citizens who lead with their supposedly heightened values would see a need to treat their tax-paying neighbors equally. But I digress.
Okay seriously, back to that “San Francisco values” thing…
While no, my post on the subject didn’t get the same sort of attention, I do think it’s important to note NOM’s latest campaign in support of the discriminatory Defense of Marriage Act and against pro-equality Senators’ efforts to repeal it. NOM has taken to using the phrase “San Francisco values” whenever referring to the DOMA repeal effort, an attempted knock at both chief proponent Sen. Diane Feinstein (D-CA) and the moral character of a famously accepting American city. (*image at left comes from NOM’s “Defend DOMA” site)
I called the use of the phrase “telling,” because I believe it’s one of those things that might say so little, but at the same time speak volumes about the organization who pushes it. Because just think about it: We all know that NOM is willing to say or do just about anything, against just about anyone, so long as the end justifies (in their eyes) the means. This trite “San Francisco values” thing exemplifies this willingness. Here we have a rich and vibrant city with so much charm, character, and contribution, and an out-of-state group like NOM, in the cockiest of nature, wants to isolate values that it sees as nasty (i.e. the acceptance of same-sex couples’ civil rights) and pit those should-be no-brainer qualities against “real America”? That should outrage not only the residents of San Francisco, but anyone who is tired of the divisive games so common to the far-right “culture war” (a “war” that is itself a divisive label crafted by the far-right for divisive purposes).
Golding for Cindy
This week, NOM also upped its expenditures in the Iowa special election for a state Senate Seat (District 18). NOM’s total in favor of Republican Cindy Golding is now approaching $30K — a sizable (and likely growing) sum for a single state race!
We’ll keep watching this race, as it is crucial to NOM’s plan of rolling back the benign, peaceful, wholly nontroversial marriages that have been bettering Iowa for over 2.5 years now. If Golding prevails, she has promised to put marriage before the whims of a public vote. Democrat Liz Mathis, on the other hand, is against such a popularity contest. Voters will have to decide between getting behind discrimination or getting beyond distraction
Back to New Hampshire for a sec…
NOM touted a “victory” this week in the Granite State. The NH House Judiciary Committee approved a measure that would take away the currently-legal right to marry in the state (a right that is just as benign, peaceful, and nontroversial as in Iowa) and regress it back to an even lesser form of civil unions than the state had before. The effort is, in a word: Cruel.
But don’t be fooled by even that step, as mean-spirited as it may be. All involved admit that even if they succeed with this, they will then move on to repealing rights in full, civil unions included, via a theoretical marriage amendment. The goal is zero recognition, in the ironically nicknamed “Live Free or Die State.”
These newest efforts — be they in New Hampshire, Iowa, New York, or any other equality state — are a whole new level of injustice. Yes, attempting to ban marriage in a state that doesn’t have equality is discriminatory and antithetical to American values. But attempting to take away marriage rights in a state where no one can verbalize any true harms at a time when so many true harms plague us, in every state and federally? It seriously keeps me awake at night knowing that kind of mindset still exists. Or worse yet: Knowing that groups like NOM actively cultivate it.
Kevin noted two things about what’s coming out now: “The campaign manager for their side in the 2009 Maine ballot fight admits a few key things. (1) All they have to do to win is create ‘doubt’ in people’s minds (i.e., it’s not really about persuading folks their position is the right one); and (2) The infamous NOM line about gay marriage leading to teaching the gay in schools is ‘not completely accurate.’ Kevin’s right to isolate and highlight the importance of stuff like this, because if we are going to win, we are going to have to become even better about knowing groups like NOM better than they know their own efforts. And I don’t mean just know them in an anecdotal, “Yeah, yeah, they talk about school books — now can we go have a cocktail?” sort of way: I mean we must truly KNOW what the organized marriage opposition movement is doing in this country to stop or chip away at our existing rights, as well as UNDERSTAND how and why they are doing it.
It’s not the only way we will win, because equality is inevitable. But if we want to win sooner, we will become total geeks at this stuff. Because trust men, I know one thing, without a shred of doubt: The other side is certainly doing their homework on us! We must be as even more committed, as we are the ones with tangibles to lose. To stop such losses, there is no better place for us to focus than NOM, the siphon through which the other side is now agreeably funneling any and all marriage efforts.
Gov. Perry filed for the New Hampshire primary yesterday with this:
Presidential candidate Rick Perry praised the legislators working to overturn New Hampshire’s same-sex marriage law last night in Manchester.
“As conservatives we believe in the sanctity of life. We believe in the sanctity of traditional marriage,” Perry said. “And I applaud those legislators in New Hampshire who are working to defend marriage as an institution between one man and one woman, realizing that children need to be raised in a loving home by a mother and a father.”
As he spoke at the annual banquet for Cornerstone Action, a conservative advocacy group, Perry sought to set himself apart from others in the field as a candidate with an unwavering pro-life background.
“For some candidates . . . the issue of life is a slogan for the campaign. It’s how to get some votes,” he said. “To me it’s about an enduring principal that innocent human life should be protected in all forms and at all stages of life.”
As he addressed the nearly 450 in attendance last night, Perry said that as governor of Texas he supported the requirement of parental consent for minors seeking abortions, helped ban third-trimester abortions and signed a budget that pulled funding from Texas Planned Parenthood.
“Unfortunately this current administration has since provided one million dollars in federal grant money to Planned Parenthood in direct conflict with this state’s policies. And the bottom-line is this: If you want to stop Washington’s many violations of the 10th Amendment . . . then we must make President Obama a one-term president,” Perry said, eliciting a standing ovation from the crowd.
Mr. John Eastman Chairman National Organization for Marriage 2029 K Street NW, Suite 300 Washington, DC20006
Re: Missing NOM Tax Returns
Dear Mr. Eastman:
I am writing to alert you that the 2010 federal tax returns (990’s) of the National Organization for Marriage are missing. They were due in May 2011, and an extension was granted until October 15, 2011. We stopped by your Washington, DC office this week and there were no 990’s available for viewing as required by law. They are not up on your web site nor are they on Guidestar.
No IRS returns available again this year at the tiny national NOM office in Washington DC.
As the newly hired Chairman of the National Organization for Marriage (NOM), a distinguished law professor and a former law school dean, I had hoped that you came aboard NOM to perhaps try and give it some much needed honesty. Who is NOM Trying to Protect?
I have been the most prominent watchdog of the National Organization for Marriage since June of 2008, soon after it was established. I watched NOM grow from nothing just over three years ago, to an operation working in over half the states on each and every anti-gay legal and political battle. NOM is also deeply involved in hundreds of state and federal candidate campaigns. Additionally, all your federal lobbying and other activities in Washington, DC rival that of the Family Research Council. NOM Under Active Investigation in Maine
As I am sure you are aware, NOM and its former officers are under investigation by the state of Maine for money laundering on a referendum NOM put on the ballot in November 2009. The active investigation of the National Organization for Marriage by the State Ethics Commission and the State Attorney General is in its third year. I filed the original complaint and testified three times in Maine to make sure that the truth comes out. Only then will we finally learn where all the millions and millions of dollars NOM brings in each year to its two organizations actually comes from.
So, as NOM’s new Chairman, I am writing you in the hope that finally there may be a modicum of integrity at the National Organization for Marriage. We hope that someone with your distinguished record will act in accordance with the law; unlike your predecessors Robby George and Maggie Gallagher.
We assume that you will promptly obey federal law and file and release both sets of tax returns.
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