Archive for the ‘same-sex marriage’ Category

Supreme Court rulings on DOMA, Prop. 8 unlikely to end matters

Tuesday, June 18, 2013 by:Carolyn Lochhead
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Uberlawyer David Bois said Tuesday a loss on Prop 8 in the Supreme Court this month won’t be the end of the fight he and Ted Olson are waging for marriage equality.

“We will bring lawsuits in other states” to force the 38 that ban same-sex marriage to recognize them under the full faith and credit clause of the Constitution.

And Sen. Kirstin Gillibrand, D-NY, said Congress still needs to repeal the Defense of Marriage Act even if the Supreme Court overturns the law this month. That’s because the court will rule only on Section 3, which bans federal recognition of same-sex marriages, but not Section 2, which allows a state to refuse to recognize a same-sex marriage from another state.

Gillibrand said that means a same-sex couple married in New York who retires to Florida or any other state that does not not allow same-sex marriages would not have their marriage recognized. “We will repeal DOMA regardless” of how the court rules, Gillibrand said. Sen. Dianne Feinstein, D-Calif., is the lead sponsor of the repeal bill, the Respect for Marriage Act.

Gillibrand and Bois, a lead lawyer with former Solicitor General Olson in the case that challenges California’s Proposition 8, banning same-sex marriage, spoke at an event sponsored by the center-left group Third Way. The group has a useful graphic explaining the complex permutations of possible rulings in the two cases.

Legal analysts widely expect the court to strike down DOMA in United States v. Windsor, in which lesbian widow Edith Windsor of New York was forced to pay the government $360,000 in estate taxes she would not have owed had her marriage been recognized.

Analysts expect the court to reject the argument by Bois and Olson in Hollingsworth v. Perry that California’s Prop. 8 violates the equal protection clause of the Constitution, thus extending the right to same-sex marriage across all 50 states. The Court is expected instead to deny the Prop. 8 appeal, allowing lower court decisions that overturn the initiative to stand and in effect making same-sex marriage legal only in California.

Jane Schacter, a Stanford University professor of constitutional law, said even repealing DOMA would not solve the question of state recognition.

“Even if DOMA were repealed tomorrow, states traditionally have relied on their own principles and public policies to decide to recognize another state’s marriage,” Schacter said. “It’s not as if DOMA for the first time empowered them to do that.”

For decades, states differed on marriage rules, such as whether to allow first cousins to marry. Schacter said the Supreme Court has never applied the full faith and credit clause of the Constitution to compel states to recognize out-of-state marriages that are illegal in their own state.

Differences in state laws on same-sex marriage are “going to complicate things, no question about that,” Schacter said. “Just getting rid of DOMA doesn’t get rid of that complication.”

Supreme Court leery of finding broad right to marriage in Prop. 8 case

Tuesday, March 26, 2013 by:Carolyn Lochhead
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The Justices of the Supreme Court appeared skeptical Tuesday about finding a constitutional right to same-sex marriage in a landmark case challenging California’s Proposition 8, the initiative banning such unions that voters approved in 2008.

Justice Anthony Kennedy, considered the pivotal vote on the court, said extending same-sex marriage rights to all 50 states, as the star legal team of Ted Olson and David Boies and San Francisco city attorney Dennis Herrera asked, could invite the court into “uncharted waters.”

Still, Kennedy expressed concern about the tens of thousands of California children living in homes headed by gay and lesbian couples whose unions are seen by the state as inferior to marriage.

Several justices explored the implications of a narrower ruling, including one that would let stand lower court decisions finding Prop. 8 to be unconstitutional. That would make same-sex marriage legal in California but not require it in other states that now ban it.

Chief Justice John Roberts wondered whether the fight over marriage was “just about the label” because California grants to gay and lesbian couples all marital rights short of the term marriage.

Roberts drew an analogy to efforts to expand the term marriage to a child deciding whom to call a friend. “I suppose you can force the child to say, this is my friend, but it changes the definition of what it means to be a friend,” Roberts argued.

Olson shot back that “certain labels” have a great deal of meaning in the law and culture, such as the word “citizen.”

“It’s like you were to say you can vote, you can travel, but you may not be a citizen,” Olson said.

Olson told reporters after the arguments not to read too much into the justices’ questions and that the case itself had educated the public and changed attitudes about same-sex marriage.
“I’m not sure what the United States Supreme Court is going to do,” Olson said, “but we’re very glad they listened.”

Olson, top Republican lawyer, emphasized that his teaming with Boies, a Democrat and his former opponent in Bush v. Gore, was intended to demonstrate that same-sex marriage is about liberty and equal protection, not partisanship or ideology.

Two of the plaintiffs, Kris Perry and Sandy Stier of Berkeley, stood with two of their four children, teenage twins Spencer and Elliot. Spencer said he and his brother are “very, very proud sons,” and they “look forward to the day when we are treated equally.”

Perry would not speculate on the outcome of the case but said she was relieved it was reaching its climax and looked forward to the decision, expected at the end of June.

See a transcript of the lively arguments here. Audio available here.

Among the high (or low) points was an odd repartee from Justice Antonin Scalia to Justice Elena Kagan. Kagain was challenging the Prop. 8 proponents argument that the sole state interest in marriage is to promote “responsible procreation” among heterosexuals who otherwise might have babies willy nilly.

Kagan said if that were the case, why not ban marriage for those older than 55. Scalia, in an odd moment, joked that the late Sen. Strom Thurmond, R-NC, a former segregationist and notorious Lothario who fathered a mixed-race child as a young man, along with several children at an advanced age — and died at 100 — was not heading the Judiciary Committee when Kagan was confirmed, as he was when Scalia was confirmed. He seemed to suggest that Kagan would think differently of elderly male fertility had she had Thurmond’s example before her.

Scalia also repeatedly referred to California Attorney General Kamala Harris as “he.”

Some states with marriage bans not defending DOMA

Wednesday, March 20, 2013 by:Carolyn Lochhead
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Indiana is taking the lead among 17 states signing a brief in support of the 1996 Defense of Marriage Act, to be argued before the Supreme Court March 27. But 38 states ban same-sex marriage. That means a majority of states with bans are not even trying to defend DOMA, which defines marriage for federal purposes as the union of one man and one woman.

Among the states with bans, 17 signed the brief supporting DOMA and 21 did not.

Two of those states, California and Minnesota, are obvious omissions. California officials are also refusing to defend Prop. 8, the voter passed initiative that bans same-sex marriage in the state and was ruled unconstitutional in a district court and the Ninth Circuit. The high court will hear the Prop. 8 case March 26, when Ted Olson and David Boies, antagonists in Bush v. Gore, unite to try to shoot down all state marriage bans as an unconstitutional. Find their brief here.

Minnesota voters last November defeated a state constitutional amendment to define marriage as a union of one man and one woman, the first state ever to do so.

The Indiana amicus is signed by the attorneys general of Alabama, Alaska, Arizona, Georgia, Idaho, Indiana, Kansas Michigan, Montana, North Dakota, Oklahoma, South Carolina, Texas, Utah, Virginia, West Virgina and Wisconsin.

States banning same-sex marriage through either legislation or the state constitution that did NOT sign the brief are: Arkansas, California, Colorado, Delaware, Florida, Hawaii, Illinois, Kentucky, Louisiana, Minnesota, Mississippi, Missouri, Nebraska, Nevada, North Carolina (the latest to ban marriage through a constitutional amendment approved overwhelmingly by voters last year) , Ohio, Oregon, Pennsylvania, South Dakota, Tennessee and Wyoming.

Dale Carpenter, a professor of civil rights law at the University of Minnesota and author of Flagrant Conduct, a reportorial masterwork on the Lawrence v. Texas decision, said Wednesday on a call arranged by the conservative Federalist Society that he assumes that in the non-participating states, “there are executive law enforcement officers who do not support their state ban…There are public officials across the country who have evolved on this over time. Either that, or they don’t care enough about the issue to take the trouble to make this part of their legacy.”

To be sure, only DOMA’s section 3 is at issue, which defines marriage for federal purposes as the union of one man and one woman. Section 2, which says that no state is required to accept gay or lesbian marriages from other states, is not before the court.

A new Reuters/Ipsos poll shows a 55 percent majority nationwide supporting same-sex marriage, following a Washington Post poll earlier this week showing support jumping to 58 percent, an all-time high. The Post reported that the results have flipped since 2006: “As recently as 2010, opponents of same-sex marriage outnumbered supporters. As recently as 2006, they outnumbered them by a double-digit margin, 58 percent to 36 percent.”

GLAD has all the briefs here, including the one by states opposing DOMA.

Leon Panetta extends military benefits to same-sex couples

Monday, February 11, 2013 by:Carolyn Lochhead
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As one of his last acts in office, Defense Secretary Leon Panetta extended additional military benefits to gay and lesbian couples Monday, saying discrimination based on sexual orientation “has no place in the Department of Defense.”

These encompass 20 benefits such as education, hospital visitation, casualty notification, travel, transportation, identification cards, family counseling, relocation assistance, access to Morale, Welfare and Recreation programs and other benefits that will be available to gay and lesbian couples who sign a declaration attesting to their committed relationship. Find the memo and all benefits available here.

However, Panetta said some benefits such as health care and housing will remain limited to married heterosexual spouses under the restrictions imposed by the 1996 Defense of Marriage Act, also signed by former President Bill Clinton. DOMA forbids same-sex spouses from receiving the same federal benefits that heterosexual spouses are entitled to, such as Social Security benefits and immigration privileges. The Supreme Court will rules on DOMA’s constitutionality this year.

Congress repealed the Clinton-era “Don’t Ask, Don’t Tell” policy in December 2011. At the time of repeal, Panetta, a former Democratic House member from Monterey, promised to review the benefits available to couples.

“It is a matter of fundamental equity that we provide similar benefits to all of those men and women in uniform who serve their country,” Panetta said. “Taking care of our service members and honoring the sacrifices of all military families are two core values of this nation. Extending these benefits is an appropriate next step under current law to ensure that all service members receive equal support for what they do to protect this nation.”

But because DOMA remains in force, “There are certain benefits that can only be provided to spouses as defined by that law, which is now being reviewed by the United States Supreme Court,” Panetta said. “While it will not change during my tenure as secretary of defense, I foresee a time when the law will allow the department to grant full benefits to service members and their dependents, irrespective of sexual orientation. Until then, the department will continue to comply with current law while doing all we can to take care of all soldiers, sailors, airmen, marines, and their families.”

He said the implementation of added benefits for same-sex couples “will require substantial policy revisions and training” but will be available “as expeditiously as possible.” Panetta called the repeal of Don’t Ask, Don’t tell “one of the great successes” at Pentagon, saying implementation “has been highly professional and has strengthened our military community.”

Panetta also served as chief of staff to Clinton, a Democrat under whom major restrictions on same-sex couples were imposed. Nearly two decades later, the broadening acceptance of gays and lesbians has put Republicans increasingly on the defensive on the issue. President Obama gave Panetta a warm farewell at a military base near Washington Friday.

GOP continues DOMA defense among first acts of new Congress

Thursday, January 3, 2013 by:Carolyn Lochhead
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The new 113th Congress begins today with the election of Republican John Boehner of Ohio as Speaker and Nancy Pelosi, D-San Francisco, as minority leader. (Boehner is in no apparent danger of being ousted, despite Eric Cantor’s lusting after the job, Boehner’s humiliation on the fiscal cliff negotiation, not to mention the disastrous refusal and quick backtrack on Sandy relief that drew the wrath of New Jersey Gov. Chris Christie. See earlier posts.)

One of the first acts of the Republican leadership is to continue their $1.7 million defense of the 1996 Defense of Marriage Act, despite the defeat of one of its champions, former Rep. Dan Lungren, R-Sacramento.

DOMA is under Supreme Court review, and as we know, the Obama administration abandoned its DOMA defense nearly a year ago, after which it was taken up by House Republicans.

Amid signs of Republican softening on immigration and even gay rights in the wake of election losses, Republicans buried the DOMA provision in their rules package, making no mention of it publicly. That left the field wide open to Democrats to hammer away.

Pelosi spokesman Drew Hammill said the GOP “fiscal responsibility mantra does not extend to their efforts to stand firmly on the wrong side of the future. Republicans will take the extraordinary measure of including an authorization of their efforts to defend DOMA in the Rules of the House of Representatives and by doing so, continue to spend taxpayer funds, already adding up to $1.7 million, in their attempts to defend this shameful law in federal courts and the Supreme Court.”

Rep. Mike Honda, D-San Jose, lambasted Republicans for not allowing an up-or-down majority vote on a stand-alone DOMA defense, instead of hiding it in the rules package.

“On this defining issue of our time, House Republicans are continuing to fight for discrimination and using the Rules package to make it seem as if all Members of the House feel that way,” Honda said in a statement.

Poll shows majority of Americans support immigration reform

Wednesday, November 14, 2012 by:kyle.campbell@chron.com (Kyle Campbell)
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A majority of Americans support a path to citizenship for illegal immigrants as well as a more lenient view on same-sex marriage and marijuana laws, results from a nationwide post election poll show.

According to the ABC News/Washington Post poll of 1,023 adults, 57 percent of Americans adults support a path to freedom for illegal immigrants currently working in the U.S. and 39 percent oppose it, well outside the 3.5 percent margin of error.

A majority of support came from the western and southern parts of the country with 64 and 56 percent support, respectively. A majority of self-described liberals and moderates expressed support for immigration reform as did 47 percent of self-described conservatives.

Latinos polled in the survey expressed the most favorability toward a path to citizenship with 82 percent supporting and 17 percent opposing. Hispanic voter turnout reached an all-time high of 10 percent this past election, with President Barack Obama winning more than 70 percent of the Latino vote.

In the wake of the large racial gap between Democrats and Republicans in the election, some GOP politicians and conservative pundits have called for more Latino outreach and reconsideration of immigration reform.

The poll also showed a majority of Americans support same-sex marriage, but by a significantly smaller margin than immigration reform. Fifty-one percent of respondents said they support same-sex marriage compared to 47 percent who oppose, putting it squarely within the margin of error.

This past election three states — Maine, Maryland and Oregon — legalized same-sex marriage through ballot measures and joined six other states and the District of Columbia as the only bodies recognizing marriages between two men or two women.

Minnesota voted down a ballot measure making same-sex marriage unconstitutional last week, however, a majority of states have such bans.

The poll showed 59 percent of respondents in the Northeast supported same-sex marriage, compared to 37 percent opposing. In the West 54 percent supported, with 43 percent in opposition.

According to the poll the Midwest supported same-sex marriage by the slimmest of margins — 50 percent to 49 percent. The South showed solid opposition, with 52 percent against and 45 percent for same-sex marriage.

Though support was down 2 percent since the last ABC News/Washington Post sponsored poll on May 20, overall, support for same-sex marriage has been on the rise since 2003 when it polled at 37 percent support.

Another major ballot movement, the legalization of marijuana, also was examined in the poll, revealing 48 percent support the measure and 50 percent oppose legalizing “small amounts of marijuana for personal use.”

Colorado and Washington both passed measures to legalize the drug for personal use. A similar measure in Oregon was voted down.

Legalized marijuana received more support from men than women, 52 percent against 45 percent, and more support from adults 18-29 compared to those 65 and older, 55 percent against 30 percent.

Like same-sex marriage, legalization of marijuana also has been on the rise, starting out at 39 percent in 2002.

Three states poised to legalize same-sex marriage

Wednesday, November 7, 2012 by:kyle.campbell@chron.com (Kyle Campbell)
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Three states are poised to make history by legalizing same-sex marriage outright via a ballot measure.

Maryland was the first state to legalize gay marriage with a ballot initiative when its Question 6 passed by a margin of about 4 percent.

The question of same-sex marriage also looks likely to pass in Maine and Washington state, with 54 percent and 52 percent of the vote in their respective states.

Minnesota, which previously approved civil unions for homosexuals, boasts an initiative to ban same-sex marriage and define marriage as being between a man and a woman.

As it stands, there are 10,000 more no votes, but at an estimated 48 percent to 48 percent draw, it’s a little too close to call. However, if this slim lead holds up, same-sex marriage will be allowed in Minnesota and the “one man, one woman” definition no longer will apply.

Six states and the District of Columbia previously passed laws allowing same-sex marriage but each was through state legislature or judicial rulings.

Voters in Maine legalize same-sex marriage

Wednesday, November 7, 2012 by:jgarofoli@sfchronicle.com (Joe Garofoli)
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After losing 32 times at the ballot box, same- sex marriage advocates scored a victory Tuesday when Maine voters legalized gay and lesbian marriages.

“Now, the commitment gay and lesbian couples have made in life will be respected equally under the law, celebrated before their loved ones, and called what it is: marriage,” said Marc Solomon, national campaign director of the pro-same-sex marriage group Freedom to Marry.

“It’s hard to overstate the national significance of this vote,” said Solomon, a former organizer in California. “For years, our opponents have argued that we could not win a majority vote at the ballot. Today, Maine voters proved them wrong, standing up for the golden rule and for freedom for all Mainers.”

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