– An appeals court in New York has rejected a claim of defamation based on someone who was called “gay”. Lambda Legal issued a statement saying, in part, “Saying that someone is gay is not an insult. Being identified as gay is neither bad nor shameful – not in our society, and not under the law.”
What you may have missed over the past week at Prop8TrialTracker.com…
On Monday, May 21, Jacob began the week’s coverage with a piece on the Amendment One vote in North Carolina. I wrote about the sentencing of Dharun Ravi on charges of bias intimidation and invasion of privacy, in the death of Tyler Clementi; Ravi was sentenced to 30 days in jail. Then, I wrote that Theodore Boutrous, a lawyer fighting Proposition 8 in court, has stated his belief that the Obama administration could very well weigh in against Proposition 8 in court.
On Tuesday, May 22, Jacob started the day’s coverage noting that the ATF, following up on the EEOC ruling that claims of anti-transgender employment discrimination can be filed as claims of sex discrimination, will open an investigation into the plaintiff’s (in the original EEOC decision) discrimination claims. I wrote about a speech HHS Secretary Kathleen Sebelius gave at the World Health Assembly saying that people, and especially LGBT people, should have wider access to health care worldwide. Adam wrote about a new lawsuit challenging the Senate’s filibuster, and what the lawsuit could mean for LGBT equality. Then, I noted an update in Sevcik v. Sandoval, the marriage equality case filed in Nevada: the rest of the defendants responded to the initial complaint.
On the same day, in the DOMA challenge Golinski v. OPM in the Ninth Circuit, I wrote about the denial of the request for an initial en banc hearing, and noted that oral arguments in the case will be heard in September. I wrote a news round-up, especially calling attention to the fact that May 22 is Harvey Milk Day.
On Wednesday, Jacob wrote about a new ABC News/Washington Post poll that noted a new milestone in LGBT rights: for the first time more people strongly supported marriage equality than strongly opposed it. I wrote about a new bill proposed by a Democratic congressman, the Juror Non-Discrimination Act, that would prevent people from being kicked off a jury based simply on sexual orientation or gender identity. Then, I posted a news round-up highlighting that Exxon-Mobil was considering banning anti-LGBT discrimination.
On ThursdayJacob wrote that the Obama campaign launched a massive outreach effort aimed at the LGBT community. I wrote about a new poll from Public Policy Polling that showed a majority of Marylanders would vote to uphold marriage equality in the state, and that the shift in support was led primarily by strong majority support from black Marylanders. Also on Thursday, I wrote a piece noting factual errors made in an article written by Jeffrey Rosen for The New Republic, on marriage equality. Then, I wrote that anti-gay groups in Maryland had set a goal to get 200,000 signatures by May 6 (despite the fact that they didn’t need that many to qualify for the ballot) and that while they would likely reach the number of signatures needed to have marriage equality placed on the ballot, they missed their stated goal by tens of thousands of signatures. I posted a news round-up with analysis of the new Maryland polling numbers.
As always, remember that Quick Hits can always be found to the right of the main blog posts (and if someone’s interested in rounding up Quick Hits for the week like this, drop us a line!). And don’t forget to follow Equality on Trial on Facebook and on Twitter for more coverage and updates! All P8TT posts are published on Twitter immediately after they go up, so you can get word that way too. We’re tweaking the e-mail subscriptions tool, so that’ll be in better shape soon as well. And of course, if you like the coverage we do here and the work we’re doing to bring you all this news, it ain’t free. Please consider tossing a few bucks in the hat to help us do it — or better yet, become a small monthly donor. We’re working hard to cover these issues and we appreciate your support so we can keep doing so.
Last week, a new PPP poll showed majority support for marriage equality in Maryland, with 57 percent of voters saying they would uphold a law granting marriages to gay and lesbian couples and only 37 percent saying they would vote against it. Now, a new poll out from Washington shows similar support for marriage in that state, with 54 percent of respondents saying that they will vote to uphold that state’s marriage equality bill, and only 33 percent planning to vote against it.
Most importantly, the poll showed significant support for the measure among independents by a 52-36 percent margin. Despite these positive numbers, though, anti-marriage equality forces in the state are expected to turn in more than enough signatures to put the question on the ballot for voters to decide in November.
Even though Referendum 74 appears likely to make the ballot, it hasn’t been all smooth sailing for the opponents of marriage equality in Washington. As Pam’s House Blend reported Thursday, NOM set a goal of turning in 200,000 signatures in support of the measure (more than the 120,577 required by the state) by May 6, one month before the final deadline. Past ballot initiatives in Washington have turned in many more than 120,000 signatures, with one tax repeal measure receiving 408,000 signatures in 2010.
May 6 has passed, and NOM has been remarkably silent. Not only did the group miss its own self-proclaimed deadline, it looks like the NOM-backed Protect Marriage Washington may not even have 200,000 signatures to file by the final June 6 deadline.
Anti-marriage advocates will no doubt be out in force this summer and fall, engaging in the same kind of fear-based campaigning that we’ve seen too often in the past. But their difficulty in gathering signatures and today’s new poll shows that the groundwork for marriage equality in Washington is strong. Our opponents are having trouble riling up their base, and the state clearly supports marriage equality in principle. Votes too often don’t match poll responses, so there is much work ahead of us, but Washington seems poised to be a very good battleground state for a win this November.
The law was passed in 1996 at a time when it appeared Hawaii would legalize gay marriage. Since then, many states have instituted their own bans on gay marriage, while eight states have approved it, led by Massachusetts in 2004.
The appeals court agreed with a lower court judge who ruled in 2010 that the law is unconstitutional because it interferes with the right of a state to define marriage and denies married gay couples federal benefits given to heterosexual married couples, including the ability to file joint tax returns.
The decision will be stayed given the probability that the losing party will ask for a grant of certiorari at the Supreme Court.
From the decision:
Although our decision discusses equal protection and federalism concerns separately, it concludes that governing precedents under both heads combine–not to create some new category of “heightened scrutiny” for DOMA under a prescribed algorithm, but rather to require a closer than usual review based in part on discrepant impact among married couples and in part on the importance of state interests in regulating marriage. Our decision then tests the rationales offered for DOMA, taking account of Supreme Court precedent limiting which rationales can be counted and of the force of certain rationales.
It appears that they found they couldn’t apply heightened scrutiny to gays and lesbians, ruling that it wasn’t open to them (Cook v. Gates is binding precedent), and the Supreme Court “conspicuously failed to [apply heightened scrutiny] in Romer–a case that could readily have been disposed by such a demarche.”
Cook v. Gates is a binding First Circuit decision that ultimately decided not to rule that gays and lesbians are a “suspect classification” instead leaving it up to the Supreme Court to decide. The judges said that Cook ties their hands in deciding the issue of heightened scrutiny and whether gays and lesbians are a suspect classification.
The court also held that another case, Baker v. Nelson which summarily dismissed an equal protection claim that gay people have the right to marry under the Constitution applies in this case, but only to the extent that it limits the arguments to ones that don’t “presume a constitutional right to same-sex marriage.”
The court said that the line of cases from Moreno to Romer (holding that animus is not a rational basis for a law) applies to this case:
All three of the cited cases–Moreno, City of Cleburne and Romer–stressed the historic patterns of disadvantage suffered by the group adversely affected by the statute. As with the women, the poor and the mentally impaired, gays and lesbians have long been the subject of discrimination. Lawrence, 539 U.S. at 571.
Those cases used a stronger form of rational basis to strike down those laws. Lawrence did as well, and it’s cited in the opinion.
In these cases, the appeal of which were heard together on April 4, the lawyer for Gay & Lesbian Advocates & Defenders, Mary Bonauto, was joined in opposing the law by two government lawyers: Massachusetts Attorney General’s Office Civil Rights section chief Maura Healey and Department of Justice Civil Division Chief Stuart Delery.
Delery is gay and argued successfully against the odious Defense of Marriage Act.
Attorney Adam Bonin, writing at Daily Kos, notes that the judges say that DOMA does have a rational basis, but that under the Romer/Moreno stronger rational basis review, it is unconstitutional.
UPDATE: The panel was comprised of two Republican-appointed judges and one Democrat-appointed judge, and was unanimous, so two more Republican-appointed judges have now joined in opposition to DOMA. The opinion was written by Judge Michael Boudin, a judge appointed by President George H.W. Bush.
UPDATE 2: It’s important to note that ultimately it was the Federal Government’s position that prevailed: the court rejected Massachusetts’ Tenth Amendment claims but still invalidated DOMA.
UPDATE 3: On a press call with GLAD and the Gill plaintiffs, and they note that the First Circuit is a six-member court, and three of the judges just ruled unanimously to overturn DOMA. This would suggest that en banc review is unlikely.
UPDATE 4: GLAD suggests the Supreme Court would likely grant certiorari. Chris Geidner asks them to explain why the Supreme Court should hear the case. Bounato says “same-sex couples are singled out for sweeping disrespect by the federal government.” “We think this is a good case for Supreme Court review… it’s like Romer (v. Evans.)” She says “this law is a real outlier.”
UPDATE 5: Asked about the time frame for possible Supreme Court review, she says, “They have 90 days to file cert petition.” August cert filing, October conference would be likely.
UPDATE 6: The GLAD conference call is over, and they’ve issued a press release:
Today, the U.S. Court of Appeals for the First Circuit ruled unanimously that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional with respect to claims brought by seven married same-sex couples and three widowers from Massachusetts. The ruling has been stayed pending a likely appeal to the U.S. Supreme Court.
“If we are right in thinking that disparate impact on minority interests and federalism concerns both require somewhat more in this case than almost automatic deference to Congress’ will, this statute fails that test,” the court stated in its opinion.
“This is a strong opinion that affirms that DOMA is an outlier for two reasons. First, because it targets a historically disadvantaged and unpopular group. Second, DOMA intrudes broadly into domestic relations, an area of traditional state regulation,” said Mary Bonauto, GLAD’s Civil Rights Project Director, who argued the case. “Congress does not get to put its ‘thumb on the scales,’ as the court put it, simply because it does not agree with Massachusetts’ decision to allow loving and committed same-sex couples to marry.”
Represented by Gay & Lesbian Advocates & Defenders (GLAD), the plaintiffs in Gill et al. v. Office of Personnel Management have each been harmed because the federal government, under DOMA, has refused to recognize their marriages for all purposes, including Social Security protections, access to family health insurance policies, and joint income tax filings. On July 8, 2010, U.S. District Court Judge Joseph L. Tauro ruled that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional. The U.S. Department of Justice appealed the ruling, which resulted in today’s decision.
The next step most likely in the case is for the federal defendants and BLAG to decide whether they will seek review in the Supreme Court. That request should come within the next 90 days.
We are thrilled that another court—this time, the Court of Appeals for the First Circuit—has ruled that it is unconstitutional to deny respect to the marriages of lesbian and gay couples.
The so-called Defense of Marriage Act is being challenged in multiple cases, and it won’t be long before that bad law is gone for good.
We congratulate our colleagues at Gay and Lesbian Advocates and Defenders (GLAD) and the State of Massachusetts for achieving this wonderful victory.
UPDATE 8: The Wall Street Journal‘s Law Blog has several excerpts from the opinion, emphasizing the judges’ decision to invalidate DOMA based on precedent related to a stronger rational basis review, instead of the Tenth Amendment federalism claims raised by Massachusetts:
In our view, neither the Tenth Amendment nor the Spending Clause invalidates DOMA; but Supreme Court precedent relating to federalism-based challenges to federal laws reinforce the need for closer than usual scrutiny of DOMA’s justifications and diminish somewhat the deference ordinarily accorded.
It is true that DOMA intrudes extensively into a realm that has from the start of the nation been primarily confided to state regulation–domestic relations and the definition and incidents of lawful marriage–which is a leading instance of the states’ exercise of their broad police-power authority over morality and culture.
UPDATE 9: Washington Blade‘s Chris Johnson says House Speaker John Boehner (tasked with defending DOMA) will have a statement soon on the next steps BLAG will take:
Boehner’s office tells me counsel will put out statement on #DOMA ruling this afternoon. Will Clement announce appeal to Supreme Court?
UPDATE 10: Geidner at Metro Weekly notes (in a post linked above) that the White House is weighing in on the decision:
White House press secretary Jay Carney said today of the decision, “There’s no question that this is in concert with the president’s views.” He went on to note that the Department of Justice participated in the oral arguments defending its view that Section 3 is unconstitutional.
– Dharun Ravi, sentenced to 30 days in jail for bias intimidation and invasion of privacy in the death of Tyler Clementi, had been criticized by the judge for showing no remorse in Clementi’s suicide. He has now apologized.
In Cooper-Harris v. USA a veteran of the United States military who got multiple sclerosis as a result of her service is suing for benefits she is currently being denied under the Defense of Marriage Act. The Republican-led House, through BLAG, had filed a motion to intervene in the case to defend DOMA, and then several responses and counter-responses have been filed.
Since all of those filings occurred, another case, Golinski v. OPM has been working its way through the courts. Golinski is a Ninth Circuit challenge to the Defense of Marriage Act. Recently, the plaintiffs attempted to get an initial en banc hearing that would have sped up the challenge, but it was denied. Since a previous request to hear the case on an expedited schedule was granted, oral arguments will be heard by a three-judge panel at the Ninth Circuit in early September.
Since the Golinski case is fast-tracked, BLAG is asking the court in Cooper-Harris to hold off on those proceedings, pending a decision in Golinski. The motion notes that the plaintiffs oppose the motion to stay the proceedings, and the Department of Justice does not oppose it.
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