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Archives – June, 2012

House Republicans appeal Gill/Massachusetts DOMA case to Supreme Court

By Scottie Thomaston

Earlier this month, the Bipartisan Legal Advisory Group (BLAG) who is defending DOMA in court challenges, noted in a filing that they would be petitioning the Supreme Court for certiorari, or review, by the end of the month. Today BLAG filed its petition. A petition for certiorari is the first attempt to frame the issues the Supreme Court will decide. Petitions have a list of “Questions Presented” that the Supreme Court may or may not decide to hear. (The Supreme Court can also add its own question(s) and possibly ask for briefing on any additional issues.) The questions presented here are:

(1) Whether Section 3 of the Defense of Marriage Act violates the equal protection component of the Due Process Clause of the Fifth Amendment; and

(2) Whether the court below erred by inventing and applying to Section 3 of the Defense of Marriage Act a previously unknown standard of equal protection review

The “previously unknown” standard of review the petition cites refers to the First Circuit’s rational basis review that included both a more searching form of review that regarded laws which might be based on animus toward a particular group as suspicious, as well as a stronger focus on DOMA’s impact on federalism.

The petitioners ask the Court to take the case because:

As the First Circuit recognized, this case calls out for this Court’s review. The court of appeals has invalidated a duly-enacted Act of Congress and done so even though it acknowledged both that DOMA satisfies ordinary rational basis review and does not implicate heightened scrutiny. In the establishedworld of equal protection law that result should have been impossible.

The petition also suggests that the issue of separation of powers should lead the Court to grant cert:

Separation of powers considerations strongly counsel in favor of this Court’s review. The executive branch has not only abdicated its traditional role of defending the constitutionality of duly-enacted statutes, but has simultaneously announced that it will continue to enforce DOMA. App. 127a. As a result, the House has been forced into the position of defending numerous lawsuits challenging DOMA across the Nation. That is a role for which the Justice Department—not the House—is institutionally designed.

Only this Court can settle this matter definitively. Unless and until this Court decides thequestion, the executive branch will continue toattack DOMA in the courts, while continuing to enforce it, thus creating more potential litigation for the House to defend.

The petitioners once again invoke Baker v. Nelson, the 1972 case in which the Supreme Court summarily dismissed “for want of a substantial federal question” a challenge alleging that the Equal Protection Clause requires same-sex marriage. They claim that case conflicts with the First Circuit’s overturning of DOMA.

A response to the petition by the respondents (the plaintiffs at the First Circuit) is due within 30 days.

Thanks to Kathleen for this filing, via Scribd:

GLAD (the attorneys for the plaintiffs) has issued a press release:

Congressional Leadership Seeks Supreme Court Review of GLAD’s DOMA Case

Gill Case Could be Decided in 2012-2013 SCOTUS Term

Congressional leadership in the form of the Bipartisan Legal Advisory Group (BLAG) today filed a petition for certiorari in the case Gill v. Office of Personnel Management, a challenge to the federal Defense of Marriage Act (DOMA).

The petition is in response to a unanimous May 31st ruling by the U.S. Court of Appeals for the First Circuit that Section 3 of DOMA is unconstitutional with respect to claims brought by seven married same-sex couples and three widowers from Massachusetts. Gay & Lesbian Advocates & Defenders (GLAD) represents the plaintiffs.

Mary Bonauto, GLAD’s Civil Rights Project Director and lead attorney in the case, said, “We will look closely at the petition and will consider our options. We remain convinced that our clients deserve to be treated equally under the law and have their marriages respected by their government. Two federal courts have agreed with us so far.”

GLAD filed Gill v. Office of Personnel Management on March 3, 2009. Prior to the appellate court decision, U.S. District Court Judge Joseph L. Tauro found DOMA unconstitutional on July 8, 2010.

Gay & Lesbian Advocates & Defenders is New England’s leading legal organization dedicated to ending discrimination based on sexual orientation, HIV status, and gender identity and expression.

76 Comments June 29, 2012

Equality news round-up: Washington marriage equality videos, and more

By Scottie Thomaston

- France plans to make marriage equality legal next year.

- Washington United For Marriage has some videos on the importance of marriage equality.

- Here is a report on LGBT Chicagoans.

- Ari Ezra Waldman, writing at Towleroad, discusses yesterday’s Supreme Court decision upholding the health care law and what it could mean for the challenge to the Defense of Marriage Act that may reach the Court next year.

- Lambda Legal has a report on transgender youth.

5 Comments June 29, 2012

Rhode Island’s House Speaker will call for marriage equality vote next year

By Scottie Thomaston

Gordon Fox, the Speaker of the House in Rhode Island, says that the state will take up marriage equality in its next legislative session:

“I’m calling the vote,” Fox, D-Providence, said Friday morning during a taping of WPRI 12′s Newsmakers. He added: “It’s one of those issues that I need to come back, we need to address, and I intend if I’m elected speaker to address it early.”
[...]
“It’s one of the main reasons I’m coming back,” Fox, who is openly gay, said on the program. “There’s unfinished business.” Fox was first elected to the House in 1992 and succeeded William Murphy as speaker in February 2010.

Earlier this year, Rhode Island’s Governor Lincoln Chafee signed an executive order recognizing same-sex marriages performed out of state. The Senate may or may not move on marriage equality legislation after the House votes, but there are ongoing talks. Marriage Equality Rhode Island issued a statement:

“We appreciate Speaker Fox’s commitment to finally calling a vote on marriage equality and look forward to working with him to pass this important civil rights legislation early in the next session. Under Speaker Fox and Gov. Chafee’s leadership, all eyes will turn to the Senate, where there is a wide coalition working to ensure that a pro-equality majority is elected.

“Every day, we strive to make 2013 the year in which all loving, committed couples are finally recognized, respected and treated equally under the law.“

The Speaker says his intention is to call the vote early in the session.

8 Comments June 29, 2012

A Prop 8 Supreme Court decision: The possible outcomes

This post is part of the inaugural legal symposium we at Prop8TrialTracker.com are launching this week. We presented invited guests with the question: “Is it better for the LGBT rights and marriage equality movement if the Perry v. Brown case is or is not granted certiorari by the Supreme Court? Why?” Participants were asked to respond in 700 words or less.

Our first post was from Chris Stoll, senior staff attorney for the National Center for Lesbian Rights. Tuesday’s contribution was from Ari Ezra Waldman, who teaches at Brooklyn Law School and writes at Towleroad. Wednesday, LGBT activist Scott Wooledge provided his take. Thursday, our own Vienna Hagen aka AnonyGrl sent us her take.

If you’d like to submit a piece for our symposium, e-mail your piece with your name, title of your post, and a 1-2 sentence byline to: scottie AT couragecampaign DOT org. Enjoy the symposium!

By Bill Santagata

“Is it better for the LGBT rights and marriage equality movement if the Perry v. Brown case is or is not granted certiorari by the Supreme Court? Why?”

The answer is yes because the odds are on our side. Not only do we have Justice Kennedy’s pro-gay history as the swing vote on the court, but the number of possible avenues are weighted in our favor. Most discussion of Perry v. Brown hinges on whether or not the Supreme Court will affirm the 9th Circuit decision. In reality, there may be as many as four possible outcomes given the various weaknesses (summarized by Ari Ezra Waldman in his guest article) in the narrow appellate ruling based principally on Romer v. Evans. These possibilities are:

1. The Supreme Court affirms the 9th Circuit decision as-is, thus broadening the scope of Romer in a way that sets binding precedent throughout the entire country. This could positively affect cases against other anti-gay laws that might spring up (like “Don’t say gay” bills).

2. The Supreme Court reverses the 9th Circuit decision, finding Proposition 8 to be constitutional. This would be devastating and it might definitively establish that rational basis review is the proper standard of scrutiny for anti-gay laws.

3. The Supreme Court rejects the 9th Circuit decision as an over-reach of Romer, and remands to the appellate court to review the original finding of the District Court (that same-sex couples have a constitutional right to marry). It would be unusual for the Supreme Court to jump right in and answer this question itself before first getting an opinion from the Circuit Court, but this would be spectacular news as it would show the Supreme Court is willing to rule on this issue favorably. The conservative anti-gay justices would probably not vote for such an option, choosing scenario #2 instead, meaning that if the Supreme Court were to take this route, it would probably mean that they are ready to declare a right to marry for same-sex couples.

4. The Supreme Court affirms the judgement of the 9th Circuit but on different grounds. The Court holds that it is not the “taking away of an existing right” that is unconstitutional, but rather the separate-but-equal system it left in place. Thus it affirms most of the logic of the 9th Circuit, that a symbolic in-name-only distinction advances no rational basis, but broadens it to include all other states that have similar separate-but-equal systems. There is a legal basis for this. Romer v. Evans was not decided merely because it took away existing anti-discrimination protections, but rather the scope of the protections implicated. The Court wrote:

“Amendment 2 repeals these ordinances to the extent they prohibit discrimination on the basis of “homosexual, lesbian or bisexual orientation, conduct, practices or relationships.” Colo. Const., Art. II, §30b. Yet Amendment 2, in explicit terms, does more than repeal or rescind these provisions. It prohibits ****all legislative, executive or judicial action at any level of state or local government designed to protect the named class****, a class we shall refer to as homosexual persons or gays and lesbians.”

While the “taking away” is inherent in Proposition 8, the scope of the damage it does to the body of gay rights in California does not align with the finding in Romer. Proposition 8 does not rescind **all** state actions to protect the named class (gays and lesbians) as homosexuals still have all the state-level rights of marriage intact.

This result would have both positive and negative consequences: we will win more marriage equality states immediately but no state can make the stepping stone of civil unions, which while undignified, gives practical benefits to same-sex couples while being much less controversial.

If find this final reasoning to make the most sense, legally. The 9th Circuit decision is too narrow and too dependent on Romer to be effective, yet the responsibility of judicial restraint makes this case a poor opportunity to declare a universal right-to-marry. If the Supreme Court were to take this case, my bets would be on Scenarios 1 as the likely outcome with 4 a very real possibility. I do not see Justice Kennedy voting against one of these two narrower rulings. And in any event, it is worth remembering that there is no Supreme Court ruling that cannot be overturned.


Bill Santagata is an M.A. candidate in French literature at New York University in Paris with an interest in Equal Protection and Establishment Clause case law.

41 Comments June 29, 2012

Minnesota Secretary of State proposes title for anti-marriage equality amendment

By Jacob Combs

Any time marriage equality is up for a popular vote, ballot language is key: it influences the way voters think about the measure at hand and can either help or hinder advocates’ attempts to fully explain their positions.  In mid-June, the Maine Secretary of State released proposed ballot language that didn’t include an affirmation of religious exemptions, and marriage equality advocates in the state are planning to appeal his proposal.  Similarly, both pro- and anti-marriage forces argued their sides in Washington state before a judge who released the final language for that measure in mid-March.

Yesterday, Minnesota Secretary of State Mark Ritchie announced his choice for a title for the state’s proposed constitutional ban on marriage equality, and it is very simple: “Limiting the Status of Marriage to Opposite Sex Couples.”  Ritchie’s proposal went to Attorney General Lori Swanson on June 15, and there will most likely be an appeal process before the final language is decided upon.

Although it may not stand, Ritchie’s proposed language is clear and straightforward, and serves as a reminder to those of us who support marriage equality that our choice of language undoubtedly frames our success at least to some extent.  It’s the reason we use the term ‘marriage equality’ on this site instead of ‘gay marriage’: the issue at hand isn’t a right to a new kind of marriage, but rather about equal access to the same kind of marriage.

In truth, Ritchie’s title is in some ways a technical misnomer: the status of marriage in Minnesota is already limited to opposite sex couples.  But in emphasizing the fact that the amendment would maintain that limitation and keep marriage from loving same-sex couples, his proposed title shows anti-marriage efforts for what they really are.  With any luck, the amendment’s final language will do something similar.

17 Comments June 29, 2012

Equality news round-up: Our legal symposium continues, military spousal benefits introduced in Congress, and more

By Scottie Thomaston

- Prop 8 Trial Tracker’s first-ever legal symposium continues. Here are our posts:

Our first post was from Chris Stoll, senior staff attorney for the National Center for Lesbian Rights. Tuesday’s contribution was from Ari Ezra Waldman, who teaches at Brooklyn Law School and writes at Towleroad. Wednesday, LGBT activist Scott Wooledge provided his take. Today, Vienna Hagen, aka AnonyGrl has posted her piece.

- The PPACA (“Obamacare”) was upheld by the Supreme Court this morning, in a 5-4 vote with Chief Justice Roberts joining the four moderate justices. The decision is here. The four dissenters would strike down the entire law, including the Medicaid expansion. Here are statements from the Stonewall Democrats, the National Gay and Lesbian Task Force, Log Cabin Republicans, and the Human Rights Campaign.

- Charlotte, North Carolina voted to approve domestic partner benefits.

- A lesbian couple in Texas were shot, and one person was killed. The shooting is being investigated.

- Legislation is being introduced in Congress that would ensure gay military servicemembers who are married receive spousal benefits.

- On the rights of LGBT parents and the courts.

14 Comments June 28, 2012

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