Archives – July, 2012
By Scottie Thomaston
There are currently three petitions for certiorari to the Supreme Court in challenges to Section 3 of the Defense of Marriage Act: Gill v. OPM/Massachusetts v. HHS, Golinski v. OPM, and Windsor v. USA. One of those petitions (Gill) was filed by the Bipartisan Legal Advisory Group (BLAG) who stepped in to defend DOMA; the rest were filed by the Justice Department. Responses to the petitions were due on Thursday of this week, but BLAG asked the Supreme Court for an extension of time to file their responses.
According to Chris Geidner:
Lawyers for the House Republican leaders, who are going to court to defend the law that bars the federal government from recognizing same-sex marriages, asked for a delay to file their responses up “to and including Aug. 31, 2012.” Acting through their majority on the House Bipartisan Legal Advisory Group, they sought the additional time to respond to the requests made by the Obama administration and the American Civil Liberties Union for the court to hear other challenges to DOMA.
The deadline extension, which lawyers familiar with the cases say could cause up to a one-week delay in when in the fall the Supreme Court justices would consider when to take the cases, won’t likely have any long-term effect on how and when the cases might be considered by the justices.
Assuming that the extension is granted, however, the new deadline would mean that House Speaker John Boehner’s lawyers would get a chance to take aim at the Obama administration, which stopped defending DOMA in early 2011, following the conclusion of the Republican National Convention on Aug. 30 and before the start of the Democratic National Convention the next week.
Parties to cases before the Supreme Court routinely ask for more time to file briefs. The Supreme Court often grants these extensions. The request and tee decision to grant the delay are not necessarily controversial and do not necessarily foretell anything about the case. And as Geidner notes, the only real effect it may have is to push things back a week or so.
6 CommentsJuly 31, 2012
By Jacob Combs and Scottie Thomaston
Today, Judge Vanessa Bryant, a George W. Bush appointee to the District Court of Connecticut, struck down Section 3 of the Defense of Marriage Act as unconstitutional today in Pedersen v. Office of Personnel Management, a case brought by Gay and Lesbian Advocates and Defenders (GLAD) in November 2010. In her ruling, Judge Bryant granted the plaintiffs’ requests for summary judgment and denied a request by the House of Representatives’s Bipartisan Legal Advisory Group (BLAG) to dismiss the suit, writing in her conclusion:
“Having considered the purported rational bases proffered by both BLAG and Congress and concluded that such objectives bear no rational relationship to Section 3 of DOMA as a legislative scheme, the Court finds that no conceivable rational basis exists for the provision [DOMA]. The provision therefore violates the equal protection principles incorporated in the Fifth Amendment to the United States Constitution.”
The Pedersen case, which was filed in 2010, had been fully briefed and awaiting a decision since October of last year. In late June, the Bipartisan Legal Advisory Group (BLAG), who is defending the law on behalf of House Republicans, asked the court for a stay of all proceedings while another DOMA case, Windsor v. USA, was pending appeal in the Second Circuit. Judge Bryant rejected the stay, concluding that stay issued so many months after the case was fully briefed and ready for a decision on the merits would likely harm the plaintiffs.
Judge Bryant’s decision today is an incredibly detailed, powerfully argued take-down of BLAG’s arguments in favor of upholding DOMA as constitutional. She begins by noting the simple fact that the “impact of DOMA’s definition of marriage is vast” (4) and briefly touching upon the significant facts of the Pedersen case, whose lead plaintiff, Joanne Pedersen, worked for the Department of the Navy in a civilian position for 30 years. Her wife, Ann, has chronic severe medical conditions that Pedersen is unable to cover, simply because she is married to a woman and denied spousal benefits:
“Joanne worries about Ann’s chronic medical conditions—hypersensitivity pneumonitis and asthmatic bronchitis—which cause her breathing difficulties and severe fatigue. In 2008, a flare-up caused Ann, 60, to miss four months of work with recurrent bouts of pneumonia; she was out for about three weeks in the first half of 2009. After she recovered, she worked from home for two months.”
Follow the link for full analysis of today’s opinion. (more…)
24 CommentsJuly 31, 2012
By Scottie Thomaston
The proponents of Proposition 8 in California have petitioned the Supreme Court for certiorari to review the case, in a long-awaited and expected move.
According to Chris Geidner:
Specifically, they ask the court in a filing today to decide “Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.”
This is a developing story and we will have more information including the petition for certiorari soon.
Here is the petition:Perry Cert Petition
The question presented in the case is: “Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.” The proponents tell the Court that they should answer the “profoundly important question whether the ancient and vital institution of marriage should be fundamentally redefined to include same-sex couples.” They write that leaving the Ninth Circuit’s decision intact would have “widespread and immediate negative consequences” and would leave the impression that any “experiment” with marriage would be “irrevocable”.
The proponents list five reasons for granting review of the Ninth Circuit’s decision: (1) the question presented is exceedingly important (2) the decision below conflicts with Crawford v Board of Education (3) the decision below “misapplies” Romer v. Evans and conflicts with other courts (4) the decision below conflicts with Baker v. Nelson (5) the Ninth Circuit’s holding that Prop 8 serves no legitimate purpose conflicts with other courts.
For point one, the petitioners argue that the Ninth Circuit’s decision calls into question the laws of Hawaii, Nevada, and Oregon, based on its reasoning. Those states grant all the incidents of marriage but disallow same-sex couples the word ‘marriage’. The second point is regarding a Ninth Circuit holding that suggests if a state does more than what is required by the Fourteenth Amendment, it is incorrect to say it may “never” recede. Petitioners suggest that states are free to take away previously-afforded rights.
They write, “In short, the fundamental lesson of Crawford is that a State is no less free to withdraw state constitutional rights that exceed federal constitutional requirements than it was to extend them (or not) in the first place. This Court should grant review to resolve the conflict between the decision below and Crawford.”
The third point involves the Ninth Circuit’s application of Romer v. Evans, a 1996 case that struck down Colorado’s anti-gay Amendment 2 as a violation of the Equal Protection Clause. The petition rejects the Ninth Circuit’s contention that Romer was based on the granting of rights and then taking those rights away, suggesting, “At the root of the Ninth Circuit’s error is its assertion that Romer turned on the timing of Colorado’s Amendment 2 rather than its substance. See App.64a. But nothing in Romer suggests that Amendment 2 would have been valid had it only been enacted before Aspen, Boulder, and Denver passed ordinances banning discrimination on the basis of sexual orientation. Nor did Romer suggest that a constitutional amendment identical to Amendment 2 would be valid in a State that had no preexisting local laws protecting gays and lesbians from discrimination. Indeed, this Court struck down Amendment 2 on its face, not merely as applied in the handful of local jurisdictions that had previously enacted antidiscrimination ordinances protecting gays and lesbians.”
The fourth point is the rejected contention that Baker v. Nelson forecloses a decision to strike down Prop 8. Baker was a 1972 case in which a gay couple applied for a marriage license in Minnesota but was rejected. The Supreme Court summarily dismissed the case “for want of a substantial federal question.”
And lastly, petitioners argue that Proposition 8 furthers society’s interest in child-rearing and procreation and proceeding cautiously when redefining marriage. The petitioners claim that the purpose of Proposition 8 is not to “dishonor” gays and lesbians. They suggest, “This charge makes sense only if marriage is itself nothing more than, as the panel majority would have it, see App. 91a, an honorific bestowed by society on relationships it approves and withheld from relationships it disapproves. But support for the traditional definition of marriage is rooted precisely in resisting this reductive view of marriage in favor of one that maintains the inherent link between the institution and its traditional procreative purposes. And this traditional view of marriage has nothing to do with disapproval of gays and lesbians.” They suggest that since there are reasons to support traditional marriage beyond animus, Proposition 8 is not based on hatred of gays and lesbians.
The Supreme Court will decide whether to hear the case in early October.
UPDATE: We have the Pedersen decision Section 3 of DOMA was struck down again today. Jacob and I will have coverage and analysis up soon.
UPDATE 2: From a press release, the Olson/Boies team will oppose Supreme Court review:
“This case is about the equal rights guaranteed to all Americans by our Constitution,” said Plaintiffs’ counsel Theodore J. Boutrous, Jr. “Because two federal courts have already concluded that Proposition 8 is unconstitutional, gay and lesbian Californians should not have to wait any longer to marry the person they love. We therefore will oppose the petition for a writ of certiorari. However, we recognize that this case presents constitutional issues of national significance, and are ready to defend our victories before the Supreme Court.”
86 CommentsJuly 31, 2012
By Scottie Thomaston
Jonathan Capehart at the Washington Post has a run-down of some upcoming events regarding marriage and DOMA. His post comes with a chart from centrist group Third Way listing “Six imminent marriage moments” that include some of the cases that are upcoming. The report suggests that the Supreme Court will decide in early October if it will take one or more of the DOMA cases as well as Perry, the Prop 8 case. Then in February 2013, the Supreme Court would hear oral arguments, according to the report, with a decision in June 2013.
So where are we with the marriage equality and DOMA cases that have recently seen some movement? Here’s a quick look:
The Supreme Court
Gill v. OPM: The Bipartisan Legal Advisory Group (BLAG) who is defending the law on behalf of House Republicans, petitioned the Court to review the case. It had been decided by an appeals court – the First Circuit – and is ready for review by the Court. The Justice Department also petitioned the Court to review the case.
Massachusetts v. HHS: This is the companion case to Gill. The state of Massachusetts has asked the Supreme Court to review the case on its own along with the Justice Department’s petition of the consolidated cases. Since it was decided along with Gill at the First Circuit it is also ready to be heard.
Golinski v. OPM: The Justice Department petitioned the Supreme Court to review the case before judgment at the Ninth Circuit. Cert before judgment is rare, but it is granted, and some, like Professor Nan Hunter, have speculated that granting this case would provide a way for Justice Kagan to vote on a DOMA case, since she would likely be recused from Gil due to her past work on that case. Without all nine Justices participating, there is a risk of a 4-4 split among the Justices, which would leave the lower court’s opinion intact and only binding on its circuit (in this case the First Circuit.) Having a federal law inoperable in only a single circuit would be an untenable situation. Karen Golinski, the plaintiff in the case, wrote a brief agreeing that the Court should review her case. The Ninth Circuit was scheduled to go ahead with its own review of the case before the Supreme Court decides whether to hear it, but last week they canceled oral arguments and decided to stay the case pending the outcome at the Supreme Court.
Windsor v. USA: The Justice Department asked the Supreme Court to review the case before judgment at the Second Circuit. Then the Bipartisan Legal Advisory Group (BLAG) moved to dismiss the DOJ’s appeal at the Second Circuit (as they have done in other DOMA cases, since they consider the DOJ appeal superfluous after they filed their own.) Currently the case is on appeal to the Second Circuit and awaiting a decision on whether the Supreme Court will hear the case.
Perry v. Brown, the Prop 8 case: After the decision by the Ninth Circuit, the proponents of Prop 8 said they would petition the Supreme Court to review the case. We are still waiting for that petition.
The District Courts
Pedersen v. OPM: The case is fully briefed and awaiting a decision by the District Court. It has been ready for a decision for many months now, so it could come down any time. Then it would be appealed to the Second Circuit by the losing party.
Blesch v. Holder: Immigration Equality’s DOMA challenge has been put on hold pending Second Circuit (or possibly Supreme Court) resolution of Windsor v. USA.
The Appeals Courts
Dragovich v. US Dept of Treasury: It is on appeal to the Ninth Circuit. Both BLAG and the federal defendants in the case have appealed.
Windsor v. USA: The case is on appeal to the Second Circuit and also awaiting a decision on whether or not the Supreme Court will hear it. At this point the Second Circuit appeal has not been stayed, so until it is, it will continue on a normal track until the Supreme Court votes on whether to hear it.
Golinski v. OPM: The case is stayed pending Supreme Court action.
We’ll keep everyone up to date with the latest developments.
7 CommentsJuly 31, 2012
By Jacob Combs
Yesterday, the Washington Post‘s Becky Garrison took a look at the Episcopal Church’s efforts to make inroads in the transgender community and foster openness and inclusivity with the wider LGBT community. As Garrison points out, the church made history when it approved two gender nondiscrimination resolutions at its 77th General Convention that will protect transgender individuals who serve in the church’s laity and those who are undergoing its ordination process.
Beyond approving the rules, the Episcopal Church went to great lengths to educate its leaders on transgender issues before the vote, giving them copies of a documentary called “Out of the Box” that tells the story of both transgender clergy and laity in the church. The General Convention also included a gender neutral bathroom to allow for further engagement with issues of gender expression and protection.
Digging in deeper to the story, though, Garrison argues that the issue goes more deeply than simple support or opposition to nondiscrimination measures:
Lost in this discussion are the developments in theology, science, psychology and other disciplines around this topic that inform the work of academics like asthe Rev. Dr. Cameron Partridge, a transman who is the Episcopal chaplain for Boston University and a lecturer at Harvard Divinity School. He notes how those with bodies perceived as “different” can make us feel uncomfortable about our own bodies. But transgender clergy bring embodiment into the conversation in an exploration of “what does it mean to be human?”
For now, this appears a question that those commenting about the changes transpiring in the church don’t appear willing to address. After a slight flurry of articles about these trans friendly resolutions in outlets such as the Chicago Tribune and Anglican newspaper Church Times, once a trial rite for same-sex blessings passed, the media coverage shifted to focus solely on this particular LGBT related resolution.
Commentators such as John Meacham focus rightly on the significance of the church’s changing attitudes on marriage equality noting that “Given that sexual orientation is innate and that we are all, in theological terms, children of God, to deny access to some sacraments based on sexuality is as wrong as denying access to some sacraments based on race or gender.” However, his reflections fail to note the significance that the vote to include transgender clergy and lay people will have on the future of the church.
As Garrison’s reporting demonstrates, the last letter in LGBT is often the most overlooked one. But denominations and churches like the Episcopal Church, which are on the forefront of advancing equality for all individuals, are shifting the narrative. Marriage equality may be the LGBT that makes headlines these days, but transgender rights are just as important to our community, and something that we should be working with communities of faith to advance.
2 CommentsJuly 31, 2012
By Scottie Thomaston
– There is a toolkit to help gain more support to pass the Respect for Marriage Act to repeal DOMA.
– Some Eagle Scouts are returning their medals because of the Boy Scouts’ anti-gay policy.
– Vietnam may allow gay couples to marry.
– Here is a profile of Colorado Springs and its gay population.
– Pennsylvania’s Department of Transportation has denied a license name change for legally married gay couples.
– Over the weekend, the drafting committee for the Democratic Party platform held meetings on the possible inclusion of marriage equality. The Washington Blade reports that a marriage equality plank was included in the draft.
– An internal review of Mark Regnerus’ flawed study found even more flaws.
7 CommentsJuly 30, 2012