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By Matt Baume
Anti-gay comments overshadow the Superbowl, but they can’t stop progress in Arizona, Hawaii, and Rhode Island. We have new legislation and strong polling to carry marriage forward from coast to coast. Plus, amicus briefs in the Prop 8 case.
Last week a member of the San Francisco 49ers drew fire for openly rejecting the possibility of having gay teammates. Team management distanced themselves form his remarks. But others players followed that up by claiming that they hadn’t made an It Gets Better video that they actually had. Meanwhile, a player on the rival Baltimore Ravens has been an outspoken supporter of the freedom to marry. Brendon Ayanbadejo said he’ll reach out to the 49ers and to the public on the issue of marriage.
Meanwhile in Arizona, State Senator Steve Gallardo has introduced two marriage equality bills. One would repeal the existing constitutional ban on marriage, and the other would repeal the state’s statutory ban. This may seem like a long shot, but the polling is actually pretty encouraging. A Public Policy Polling survey from a year ago showed a near-tie, with 44% supporting marriage equality and 45% against.
A political action committee in Michigan is collecting signatures to put marriage equality on the ballot. Marriage Michigan PAC wants to gather 300,000 signatures and raise $10 million for a 2014 vote. But Equality Michigan is skeptical about the effort. They’ve been laying the groundwork for a ballot measure in 2016. Polling in Michigan has steadily improved, but it’s still close.A November survey showing 56% support.
We also have new polling data from Hawaii, with support now at 55% to 37% opposed. Legislators may vote on marriage equality bills in the coming months. There’s also a lawsuit in progress over the state’s marriage ban.
Numbers are even stronger in Rhode Island, where 57% support marriage to 36% opposed. A marriage bill passed the House last month but it’s slowed down in the Senate.
And there’s new data from Pennsylvania, where we have a plurality of support. Forty-seven percent favor marriage, with 43% opposed. That’s a slow but steady improvement over the last decade in the state. The Pennsylvania Democratic Party added marriage equality to the official party platform last year, and several pro-equality legislators won their elections in November. Pennsylvania may become a state to watch in the next year for renewed efforts to pass a marriage bill.
There’s been progress in Wyoming, where a domestic partnership bill advanced further than any such measure ever has before. Although the bill ultimately failed in a House vote, it was the first time that any pro-LGBT legislation made it that far in the state legislature.
And finally this week, various groups have filed amicus briefs in support of Prop 8 with the US Supreme Court. The next milestone will be briefs from the plaintiffs on February 21st, briefs in support of the plaintiffs a week after that, and then oral argument on March 26th.
We’ll have more news on the Prop 8 case, as well as developments from the states, in the coming weeks. Subscribe on YouTube, @AFER on Twitter, and at Facebook.com/AmericanEqualRights for the latest. You can also pledge your support at AFER.org and sign up for breaking email alerts.
By Scottie Thomaston
- Virginia legislature confirms its first gay judge, after first rejecting him.
- Former Rep. Barney Frank on the LGBT contractors executive order.
- European court rules that religion can’t justify anti-gay discrimination.
- Ari Ezra Waldman has posted the last post in his series on the Prop 8 and DOMA cases.
- Fort Bragg does not allow same-sex spouses in their spouses’ club. The Pentagon has backed them up on their decision.
- Immigration Equality organized a visit to Senator Chuck Schumer’s office with 12 same-sex binational couples to urge him to make immigration reform LGBT-inclusive.
- Defense Secretary nominee Chuck Hagel committed to extend benefits for gays and lesbians in the military.
By Scottie Thomaston
- Ari Ezra Waldman discusses the ‘standing’ issues that the Supreme Court will decide in the Prop 8 and DOMA cases.
- Jon Davidson, legal director at Lambda Legal, writes at Professor Jack Balkin’s blog ‘Balkinization’ about marriage equality and the Supreme Court.
- Asked last week about the administration’s position on the Prop 8 case, the White House still won’t comment.
- A gay judge in Virginia will be back before the General Assembly for consideration of a full 6-year appointment.
The New Republic profiles Charles Cooper – attorney for the proponents of Prop 8.
By Scottie Thomaston
With Prop 8 and DOMA headed to the Supreme Court, the Obama administration will be in Court making arguments against Section 3 of DOMA and for a heightened level of judicial scrutiny for laws that impact gays and lesbians. At the same time, Ted Olson and David Boies will be making many of the same arguments to the Court in Perry, the Prop 8 challenge. President Obama has endorsed marriage equality personally but he has yet to comment on the Prop 8 challenge or the possibility of having marriage equality affirmed by the Supreme Court.
In the two cases, the opponents of marriage equality defend their position using the same justifications: responsible procreation, child-rearing, proceeding with caution, upholding traditional values. The Justice Department has made good arguments as to why those are not enough to uphold Section 3 of DOMA. The Obama administration could speak out on the Prop 8 case in court by filing an amicus curiae (“friend of the court”) brief in support of the plaintiffs and perhaps noting its position that laws impacting gays and lesbians warrant heightened scrutiny.
Courage Campaign has launched a petition asking President Obama to do just that.
President Obama has said same-sex marriage is fine by him, but the Supreme Court will consider a more fundamental issue than that: whether a state ban on same-sex marriage violates the guarantee of Equal Protection under the U.S. Constitution. And so it’s time for President Obama and his Department of Justice to weigh in. This is important for a few simple reasons, Adam:
#1: Ted Olson says it is(1). In comments on Friday’s decision, Olson said:
“I would hate to predict what the United States government is doing, but given the stand the president of the United States and the attorney general of the United States made with respect to marriage equality, we would certainly hope that they would participate…I think that, given the position that the government has taken in the DOMA cases and the reasoning that they have used in filing their brief would apply with great effect in our case, the Perry case, as well.”
#2: The Supreme Court listens to what the Administration says. The Supreme Court frequently asks the Administration to give its views in many different cases. Taking action could help influence the Supreme Court to “go broad” and strike down same-sex marriage bans nationwide.
#3: Doing so would help increase the level of public support for same-sex marriage. Many legal scholars say the Supreme Court never wants to get out ahead of the states. Our job as advocates is to show the Supreme Court that the public is with us. Right now, a bare majority of Americans support same-sex marriage. If the Department of Justice tells the Supreme Court it believes banning same-sex marriage is unconstitutional, it will make headlines nationwide and keep the numbers moving in the right direction.
On Friday, the White House and the Department of Justice refused to comment on the Administration’s views concerning Proposition 8(2). Not good enough. We need our “fierce advocate” in the White House to do right by the LGBT community, and take this simple, but hugely important, action.
Click here to add your name to our petition urging President Obama and the Department of Justice: make your voice heard on same-sex marriage as the Supreme Court prepares to consider the case of the century. We can’t afford a loss.
Thanks for all you’re doing,
Chair and Founder, Courage Campaign
By Scottie Thomaston, Adam Bink, and Jacob Combs
By Scottie Thomaston
David Boies is predicting that the Supreme Court will likely take up the Prop 8 case and strike it down.
Boies said it is difficult to anticipate what the court will do, but said, “If I have to make a prediction, I would predict the court will hear our case.”
And, he said, “If they take it, I think we will win.”
Boies suggests that there would be “more than five” votes to strike it down:
“I believe we will get more than five votes,” said Boies, speaking of a possible future decision by the nine-member court on the state’s same-sex marriage ban.
“This is a civil rights case of the same importance as Brown v. Board of Education and Loving v. Virginia,” Boies said. The two cases were the court’s unanimous decisions outlawing school segregation in 1954 and striking down a ban on interracial marriage in 1967.
“I think the justices have a history of coming together and rising above their personal views to enforce the Constitution’s guarantees of equality,” he said.
In his reading of the Court’s precedents, Boies suggests that since marriage is considered a fundamental right, and since there is the Romer and Lawrence line of cases suggesting that animus and tradition are not a rational basis alone for a law, it’s hard to see how the Court would uphold Prop 8.
Boies didn’t elaborate on where the other votes might come from, and it seems difficult to come up with anyone specifically. Assuming Justice Kennedy votes with the four moderates, it’s likely that Justices Scalia and Thomas would uphold Prop 8. So that leaves Chief Justice Roberts and Justice Alito. We have not yet had a LGBT rights case since the four newer Justices joined the Court, so it’s always possible one of them could vote for gay rights.