Filed under: Right-wing
In response to a request by former presidential candidate Fred Karger, the Iowa Ethics & Campaign Disclosure Board will investigate NOM for its involvement in the 2010 retention vote of three Supreme Court justices.
Continue August 9, 2013 Leave a Comment
Writing in Business Insider, Josh Barro points out that the conservative reaction to Republican Sen. Lisa Murkowski’s statement of support for marriage equality this Wednesday was, essentially, to not react. Barro did some web sleuthing to see how conservative outlets were covering the story, and his results were pretty surprising:
Nothing at National Review, the Weekly Standard, Human Events, the Washington Free Beacon, or the American Spectator. Breitbart.com ran two Associated Press stories. WorldNetDaily ran an NBC News story. The Daily Caller and RedState mentioned Murkowski in pieces about immigration reform, but nothing on gay marriage.
The only conservative outlet I found covering Murkowski was the Washington Examiner, which ran a straightforward news story about her announcement.
Even more intriguing, though, are Barro’s hypotheses for why the right-leaning media avoided the issue:
A substantial share of the staffers at these publications, especially the younger ones, are now supporters of gay marriage. National Review ran a feature piece arguing for gay marriage in 2011.
Those who oppose gay marriage are sick to death of talking about the issue. They know they are losing the fight over public opinion and that their complaints are not going to convince anybody. And making those complaints has become awkward, because opposing gay marriage has come to be seen as rude in polite society.
Timothy Kincaid has some particularly nuanced thoughts on the issue in a piece posted yesterday at Box Turtle Bulletin that is well worth reading in full. In essence, Kincaid’s argument is that the burden of proof has shifted from marriage equality opponents to marriage equality supporters in such a way that the framing of the entire issue has changed:
[I]t seems to me that we have entered a phase in which one can be “not ready” or “not convinced” or “not yet evolved” on the issue of marriage equality. That’s simply opinion. But to be actively opposed suggests a character flaw, something with a whiff of nastiness and maybe even vile. The public – right and left – seem to have decided that you can support gay marriage or you can not support gay marriage, but you can’t oppose gay marriage any longer.
That last sentence is particularly astute. I would argue that this is the real-world manifestation of the so-called ‘tipping point’ for marriage equality that I and others have written about before. It’s the result of a majority of Americans going from polling consistently against equal marriage rights to polling consistently for them, and a product of the remarkable success of marriage equality ballot measures in the 2012 election. Today, equal marriage advocates are confident and emboldened, while opponents appear cowed.
To me, the central point that Kincaid picks up on is that, for a majority of Americans today, support for marriage equality seems like an obvious position, and opposition seems like something that has to be justified. With that in mind, it might be wise for the conservative media to keep quiet about marriage equality–they really don’t have much to add to the conversation these days.
Appeals court in Tennessee hears arguments in case challenging state’s removal of LGBT and other non-discrimination protections
In Tennessee yesterday, a state court of appeals heard arguments in the challenge to HB600, nicknamed the Special Access to Discriminate (“SAD Act”) by equality organizations. The law stripped local governments in the state of their non-discrimination protections for LGBT Tennesseans. The challenge, argued by Shannon Minter of the National Center for Lesbian Rights and joined by equality organizations including the Tennessee Equality Project and the Tennessee Transgender Political Coalition, says the law violates the equal protection of the laws; it relies on both the state and United States constitutions.
In part the complaint is based on Romer v. Evans, the 1996 Supreme Court case, which held that Colorado couldn’t exclude gays and lesbians from all political protections. The state had passed a ballot initiative removing these protections from gays and lesbians alone. The amendment nullified existing non-discrimination provisions in two cities. The Court said this violated equal protection principles. As the complaint discussed, this amendment is broader than Colorado’s: it removes all protections for any groups not already covered under state law, which means it eliminates protections for people with disabilities as well. It also impairs anti-bullying measures, whether against LGBT people or those with disabilities.
The case is on appeal after it was dismissed by the trial court. The parties are arguing whether it should be reinstated. The Tennessean reported:
[...]Monday, attorney Shannon Minter with the San Francisco-based Center for Lesbian Rights told the three-judge appeals panel that there is “nothing like this in the country that specifically excludes one group of people.” She called the state law “a dangerous statute that warrants some judicious scrutiny.”
But Assistant Attorney General Adam Futrell said the state law, known as H.B. 600, merely clarified who could seek legal relief in workplace-related discrimination claims.
“The core issue,” Futrell said, “is none of the plaintiffs were hurt.” He called that point an “inescapable fact.”
Judge Holly Kirby questioned that line of reasoning.
“Let’s assume that the legislature defines ‘sex’ to only include the female gender,” Kirby asked. “Are you saying that male plaintiffs would not have standing to question the constitutionality of the law?”
Futrell responded that in such a case, plaintiffs would be legally protected, and that the law does not mean that gays and lesbians cannot seek legal relief in the event of discrimination. Instead, he said, the law standardizes workplace protections, preventing Tennessee from having an inconsistent patchwork of laws about workplace discrimination.
The appeals court will render a decision on whether the case will be retried in court on the merits. This case has the potential to be wide ranging eventually, the Tennessee law is so broad, wiping away all protections, that large numbers of minority groups are affected across the board. There’s a provision of the law that forbids Tennesseans from changing their sex on their birth certificate, meaning that whatever their doctor decides their sex is at birth is how they are forever identified for legal purposes, unless they move away to a state that allows the change.
TTPC, the transgender rights group involved in the case, issued a statement via Facebook:
Earlier today, attorney Shannon Minter of the National Center for Lesbian Rights presented the case for the plaintiffs in Howe v. Haslam. Most of the questions from the judges revolved around Section 2 of HB600 which, for the first time in the history of any state, defines “sex” based on a person’s original birth certificate. Minter argued that this clearly targets Tennessee’s transgender population for discrimination in the workplace since those born in Tennessee cannot change the gender on birth certificates. The three judge panel from the West Tennessee section appeared to be bothered by the targeting of a group by the state. We do not know when they will issue their ruling, but we were honored to be represented by such a talented team of attorneys today!
The decision could come at any time; there is no timeline. The case is called Howe v. Haslam.
By Scottie Thomaston
The state of Nevada is moving forward on pro-LGBT legislation. This week the state Assembly added gender identity and expression to its existing hate crimes legislation. The state’s Republican governor Brian Sandoval is expected to sign the bill:
Similar legislation passed in the state assembly during the last legislative session in 2011, only failing in the Senate. During that session, the legislature passed transgender inclusive non-discrimination legislation in housing, public accommodations and employment. Republican Governor Brian Sandoval signed all three pieces of legislation during the first year of his first term and is expected to sign this bill as well.
The bill passed overwhelmingly, with only one senator voting no last month, and a large number of House members voting for it this week:
The Assembly passed the measure on a 30-11 vote with only Republicans opposed. The bill already cleared the Senate and now heads to Republican Gov. Brian Sandoval.
“This does afford victims special rights,” said Assemblyman Andrew Martin, D-Las Vegas, who is openly gay. “This is a statement of what our society is, and that we will not tolerate the systematic targeting of individuals who are historically disadvantaged groups.”
Sandoval spokeswoman Mary-Sarah Kinner told The Associated Press Tuesday that the governor supports the legislation.
The bill, SB139, would add “gender identity or expression” to the list of motivations deemed to be hate crimes under state law. Supporters outlined in graphic detail several instances of the violent nature of crimes motivated by hate, saying the added protection would help deter more violent crimes.
As EqualityOnTrial recently reported, the state is also moving forward on marriage equality, albeit at a much slower pace. A constitutional amendment to replace the anti-gay marriage amendment would eventually be placed on the ballot in 2016, after it passes this legislative session and then gets through the Assembly again in 2015. With three weeks left in the session, the bill should pass quickly.
Activists in the state have been pursuing marriage equality there for years. The state’s domestic partnership law treats same-sex couples almost exactly the same as opposite-sex married couples, but same-sex couples are denied the title of marriage. That regime is seen as irrational, and it’s being challenged in federal court by Lambda Legal in Sevcik v. Sandoval, who believes the exclusion of same-sex couples from marriage denies them equal protection of the laws. That case is on hold, though, pending the Supreme Court decisions in Hollingsworth v. Perry and United States v. Windsor. The district court had ruled against the plaintiffs, same-sex couples, and the case is on appeal to the Ninth Circuit Court of Appeals. But the Coalition for the Protection of Marriage, the proponents of the ballot initiative that amended the state constitution to ban same-sex marriage, petitioned the Supreme Court to review the case before judgment at the appeals court. The plaintiffs oppose review at this stage. The Court hasn’t taken action on their petition and no other action is expected until the Court’s other rulings. The Sevcik case is expected to be heard on a parallel track with Hawaii’s marriage equality case, Jackson v. Abercrombie. The Ninth Circuit, which struck down Prop 8, seems like a more favorable court, so they may be inclined to strike down Nevada’s ban as well when it reaches them.
A recent poll showed majority support for the amendment to overturn the marriage equality far ahead of the 2016 election. Whether the courts strike the ban or voters invalidate it in 2016, things are progressing in Nevada.
Texas AG Greg Abbott issues opinion suggesting that the state constitution bars domestic partnership benefits
The state attorney general in Texas, Greg Abbott, has issued an opinion stating that local governments are violating Texas’ constitution by offering domestic partnership benefits to same-sex couples. Texas voters passed an initiative to ban same-sex marriage in 2005, adding an anti-gay marriage amendment to the state constitution. Both before and after passage of the constitutional amendment, several cities in the state have offered domestic partnership benefits to opposite-sex and same-sex couples. Travis County has offered these benefits for sixteen years. Austin, Fort Worth, El Paso, and a school district in the state have also extended these benefits to couples.
According to reports, a state senator asked for the attorney general’s opinion last year:
Tea party-backed state Sen. Dan Patrick sought the ruling in November. The Houston Republican argued that Texas amended its constitution in 2005 to define marriage as between one man and one woman, while prohibiting government entities from recognizing anything similar to marriage.
Patrick said in a statement that Monday’s opinion ensures local communities and school districts “cannot subvert the will of Texans.”
County attorneys for Travis County are researching the opinion and they’ve said they plan to address the issue with county commissioners; lawyers for the city of Austin are doing the same. And Travis County Judge Sam Briscoe has said that the attorney general’s opinion isn’t the final word: county attorneys don’t have to follow it if they disagree with the reasoning of the opinion, and state courts get the last word on these matters either way.
The Dallas Morning News, which has posted a copy of the attorney general’s opinion, says this narrow reading of the constitutional amendment would prevent even opposite-sex couples from being recognized in a domestic partnership, and from receiving these benefits, which apparently are only reserved for married opposite-sex couples. They also have a reaction from a state equality organization:
Equality Texas, a gay rights group, has a different interpretation of the ruling, based on two sentences in the ruling that provide a large loophole for governmental entities.
The attorney general wrote, “The political subdivisions you ask about have not simply provided health benefits to the partners of their employees. Instead, they have elected to create a domestic partnership status that is similar to marriage. “
Equality Texas argues that as long as cities, counties and school districts don’t have affidavits that create a “domestic partnership status,” then they can extend benefits to anyone in a household.
While many private businesses that offer domestic partner benefits have specific criteria and create a domestic partnership status, governmental entities should steer clear of that model, said Daniel Williams, legislative specialist for Equality Texas.
Lawyers for the city of Austin are concerned about the city’s ability to attract quality workers to the area if the state adopts this narrow interpretation of the amendment.
According to most reports, the opinion doesn’t force any action or require any cities or school districts to immediately comply with Attorney General Abbott’s view. But since the opinion is based on what the state government believes Texas courts will do when confronted with the issue, there is some force behind the memo. City and county attorneys will review the opinion in the coming weeks.
National Organization for Marriage’s challenge to New York election law reinstated by Second Circuit
By Scottie Thomaston
The National Organization for Marriage (NOM) will be allowed to challenge a New York campaign finance disclosure law after a ruling yesterday by the Second Circuit Court of Appeals. Under New York law, political advocacy groups that fall under the statutory definition of “political committee” are required to make certain disclosures including the names of their donors and certain financial information. NOM filed a challenge to the law in federal court in 2010, arguing that the law’s requirements for political committees would chill speech. The district court dismissed the lawsuit, pointing out that NOM never attempted to communicate with New York election officials to determine whether or not they are a “political committee” under state law. Without that determination, the district court said, the lawsuit is premature.
In a 2-1 decision yesterday, the Second Circuit overturned that decision and sent the case back to district court:
The ruling by the 2nd U.S. Circuit Court of Appeals in Manhattan will force a lower court to address whether a New York state election law that requires some political advocacy groups to disclose financial donors and other sensitive information curbs speech.
A three-judge panel of the appeals court, in a 2-1 decision, reinstated a lawsuit by the National Organization for Marriage (NOM) against officials from the New York State Board of Elections. The Washington-based nonprofit organization had sought a declaratory judgment in 2010 that a state election law defining “political committee” violated the First Amendment.
The appeals court said that NOM’s fear that they may be a political committee could indeed chill their political speech:
But Circuit Judge Peter Hall, writing for himself and U.S. District Judge Loretta Preska, said in Monday’s decision that the group “wanted expressly to connect its speech to particular candidates and elections.”
“We thus give credence to NOM’s assertion that it ‘fears it is a political committee under New York law,’ which ‘chills (NOM) from proceeding with its speech,’” Hall wrote.
A dissenting judge wrote that allowing the case to move forward could lead to a broad constitutional ruling on the issue of political speech, and that could easily be avoided if NOM were to ask the state Board of Elections if it is a political committee under the law.
NOM has filed several of these types of cases over the years, in order to prevent the disclosure of the names of their donors while allowing the organization to engage in extensive lobbying efforts in several states to defeat proposed same-sex marriage laws and support ballot initiatives banning marriage equality. They’ve been largely unsuccessful. And the Supreme Court has denied petitions for certiorari in some of their challenges, leaving some rulings upholding campaign transparency requirements intact.
Since the challenge is not premature, according to the Second Circuit, the district court will now have to decide if the New York law has a chilling effect on free speech, or if it is a permissible regulation of political campaigns. The Board of Elections in the state has still not been asked to determine whether NOM is a political committee or not, though the answer would resolve this challenge without involving the federal court system in the dispute.