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Archives – September, 2012

Cozen O’Connor v. Tobits, involving Section 3 of DOMA and ERISA, suspended by judge

By Scottie Thomaston

Cozen O’Connor v. Tobits, a case in district court in Pennsylvania that involves Section 3 of the Defense of Marriage Act and its impact on ERISA, has been suspended by the federal judge in the case.

Filed by the National Center for Lesbian Rights, the case has been fully briefed for months, and awaiting a decision on the merits by the district court. The order notes that, “this matter is placed on the SUSPENSE docket of the court pending the outcome of relevant cases and additional research on the pending Motions.”

The order says that the case will remain suspended pending further action by the court.

I spoke to Chris Stoll from NCLR, and he told me that “the order says the case is being suspended ‘pending the outcome of relevant cases and additional research on the pending Motions.’ I can only assume that is a reference to the various DOMA cases that the parties have brought to the Court’s attention both before and after the hearing in March. In our view, DOMA doesn’t affect whether Jennifer is entitled to benefits in this case, but since Cozen is relying on DOMA to deny benefits, it’s not too surprising that the Court would put the case on hold. A Supreme Court decision striking down DOMA would just make it that much easier for the judge to rule that Jennifer should receive the death benefit.”

h/t Kathleen for this filing

2:11-cv-00045 #137

2 Comments September 26, 2012

Hearing in Illinois marriage equality lawsuit tomorrow

By Scottie Thomaston

Tomorrow, a hearing will be held in the marriage equality lawsuit taking place in Illinois. The lawsuit, filed by Lambda Legal and the ACLU, is backed by the Illinois Attorney General and the Cook County Clerk; the ban is defended by two county clerks and an anti-gay group has moved to intervene. As Lambda Legal writes, “Soon after, the Alliance Defending Freedom, an Arizona-based antigay group, moved to intervene on behalf of the Illinois Family Institute (IFI), an organization dedicated to advancing the view that gay people are sinful. IFI has a long history of making derogatory and untruthful statements about lesbian and gay people. Lambda Legal and the ACLU of Illinois have opposed IFI’s efforts to intervene.”

The court, “will hear oral argument tomorrow regarding whether an antigay group has a right to intervene in two marriage cases.”

The Illinois lawsuit is a state-based case, not a federal one, so its only implications thus far would be to end the ban on marriage equality in Illinois, if it is successful. Lambda writes that, “[b]y excluding them from marriage and relegating them to civil unions, the government has marked them as different and less worthy than other Illinois families—and that is exactly how others treat them. Such a restriction is a violation of the Illinois Constitution’s guarantee of equal protection and due process. Same-sex couples and their children have suffered disrespect in schools, workplaces and hospitals, and in their everyday interactions with government for long enough.”

The case is called Darby v. Orr.

1 Comment September 26, 2012

Final results of New York Senate primaries: two marriage equality supporters prevail, one falls short

Jacob Combs

A few weeks ago, I wrote a post here about the primary election fates of the three New York senators who had voted for the state’s marriage equality law last summer.  At the time, one senator, Mark Grisanti, had clearly won his race, but the numbers in the other two primaries were close, with Stephen Saland running ahead of his challenger by 42 votes and Roy McDonald running behind his by 138 votes.

Yesterday, Stephen Saland won his primary race by just a 107-vote margin, Duchess County elections official Erik Haight announced, defeating his opponent, Neil DiCarlo.  DiCarlo could still run against Saland in November as a Conservative Party candidate.  “I knew it wasn’t going to be a walk in the park. I knew there were elements of my party who were, to say the least, disappointed,” Saland told The Associated Press. “I think it certainly will be behind me. I think the majority of voters, whether they are Republicans, independents, or Democrats are interested in economic issues, retaining jobs and growing jobs.”  During a conference call with reporters yesterday, Governor Andrew Cuomo said that he was “elated” at Saland’s victory, calling his vote for marriage equality “an act of political courage.”

With all absentee ballots counted, however, Roy McDonald appears to have lost to his challenger, Kathleen Marchione, by a 113-vote count, Saratoga County elections officer John Marcellus told the AP.  Only 50 of those votes could still be contested, although a judge’s order will be needed to make the election results official.  Nevertheless, McDonald’s razor-thin loss and both Saland and Grisanti’s wins show that despite their political posturing, opponents of marriage equality in New York and nationally were not successful in making the three senators’ races into referendums on their marriage votes.

3 Comments September 26, 2012

What’s Next for Prop 8 and the Supreme Court

By Matt Baume

We have big news coming from the United State Supreme Court on the Prop 8 case. Plus: major advances in some of the other challenges to state and federal bans on the freedom to marry. We’ve got the latest tally on surveys showing a majority of Americans favor marriage equality.

Major Prop 8 news today: the Supreme Court of the United States has released a list of some of the cases it will take in its upcoming term, and AFER’s case is not included.

This doesn’t mean that the court is passing on the case — at least not yet. It either means that they’re going to officially decline to hear it next week, or that they’re holding off on making a decision until later in their term.

If they decide to pass on the case, then our previous victories would stand and marriages could resume in California. And if they do eventually decide to take the case, AFER will defend our victories in court with briefs and oral argument by April 2013. In that case, we’ll expect a final decision by the end of June.

No matter what happens, AFER is ready.

And while the Supreme Court deliberates, our work for marriage equality continues to move forward. We now count sixteen national surveys that show a majority of Americans support the freedom to marry. This shift in public opinion over the last three years coincides with increased public awareness of the issues that gay and lesbian couples face.

In other national news, one of the lawsuits challenging the federal Defense of Marriage Act will advance on Thursday of this week. An appeals court in New York is scheduled to hear oral arguments in the case Windsor vs. United States.

And a federal case challenging Hawaii’s ban on marriage equality is on course to the Ninth Circuit Court of Appeals. Earlier this year, a Federal District Court ruled that the ban could be legally justified. Plaintiffs and Governor Neil Abercrombie have appealed that decision, which will now be heard by the same court that found Prop 8 to be unconstitutional.


32 Comments September 25, 2012

Governor Martin O’Malley’s prognosis on the future of Question 6: we’re making progress, we need more money

By Jacob Combs

Last night, I had the opportunity to participate in a press call with Josh Levin, campaign manager for Marylanders for Marriage Equality, and Governor Martin O’Malley, who has been a key figure in the ballot campaign to approve Question 6 and protect the marriage equality law passed by the state legislature earlier this year.  There were two big takeaways from the evening’s call: first, the campaign is doing well and Question 6 looks like it has a fair shot of being approved by the voters, and second, the campaign has a good deal more cash it has to raise before the election.

Governor O’Malley started the call by pointing to the factors that could lead to a success for marriage equality in Maryland, touching first on the ballot language, which includes thorough protections for freedom of religious conscience: in fact, the question’s language has four main clauses, three of which pertain to religious protections.  This clear language, O’Malley and campaign manager Josh Levin said, provides Question 6 some protection from two of the tactics marriage equality opponents often use during ballot campaigns: first, that equal marriage laws will force clergy members to violate their own beliefs, and secondly that the language of the ballot measure is being used to obfuscate the true intention of the law.

The other cause for optimism in Maryland is the polling: a poll from early August showed voters support the measure by a 54-40 margin, although neither side expects the final vote to show such a lop-sided margin.  Levin said last night that the campaign fully expects the numbers to tighten as ads start going up and the election nears, but added that current polling shows Question 6 within one point in the mid-40s when it comes to black voters, the best numbers any marriage equality campaign has seen.  (Black voters make up about a quarter of the state’s electorate.)  In addition, the measure polls at around 30 percent with Maryland Republicans, some two times the amount of support it has gained in other states.

But, as always, campaigns take money, and Governor O’Malley admitted that the Vote for Question 6 side still needs “another couple million dollars” before election day.  Julie Bolcer of The Advocate asked the campaign what the plan is to raise the extra $2 million, to which Governor O’Malley pointed out that Maryland isn’t California or New York (states with expensive media markets) and that the goal is feasible.  Josh Levin also chimed in that the majority of the campaign’s money is coming from inside the state.  When pressed by the Washington Blade‘s Michael Lavers, Levin declined to share how much the campaign had raised, to which O’Malley responded, “Oh really?”  The governor then added, “We’re beyond the 50-yard line and we continue to move forward, not back.”

The 2012 election is a high-risk, high-reward one for marriage equality.  We could see four states stand up for the marriage rights of gay and lesbian citizens, or we could see our opponents add four more states to their already impressive winning record.  But it’s important to take a step back and note the importance of what makes this year different.  Marriage equality advocates are defending equal marriage laws that have already passed two state legislatures.  Voters will be given the opportunity to vote yes on ballot measures that would provide equality, not no on ballot questions like Prop 8 that would take them away.  And a sitting governor is taking a strong leadership position in the campaign to bring marriage equality to his state.  There’s much work to do in the next month and a half, but 2012 already shows that this movement is making, and continues to make, great strides.

September 25, 2012

Supreme Court has not taken action on Prop 8 case

By Scottie Thomaston

The Supreme Court just issued its orders from yesterday’s “long conference”, the conference that takes place after the Court’s summer recess. There were a few cases granted, but neither Perry, the Prop 8 case, nor Windsor, a DOMA case, were granted today. And as of this writing, the Supreme Court docket for both cases still show that the case was distributed for this conference. Whether the Justices re-listed the case for another conference or are planning to deny a writ of certiorari to hear the case is uncertain at this point.

Another case affecting gay rights, Brewer v. Diaz was also ready for the conference yesterday, but the new order list does not show a grant of certiorari in that case either. There, Governor Brewer is challenging a preliminary injunction before a trial is heard on the constitutionality of a new law taking away benefits from same-sex domestic partners in Arizona.

There are several cases challenging Section 3 of DOMA, but the only one that was ready for yesterday’s conference was Windsor v. USA. The Court still has to act on the Gill/Massachusetts case, the Golinski case, and the Pedersen case. In all those cases, both the plaintiffs and the Justice Department filed petitions for a writ of certiorari (except Golinski, where only the Justice Department filed one), and in Windsor, Pedersen, and Golinski, they filed before judgment by the appeals court, telling the Supreme Court that the cases raise nationally important issues. Some of those cases won’t be ready until the conference on October 5 and some later than that.

Update (Jacob): Just wanted to respond to something I noticed in the comments that I think has been a cause for some confusion.  The actual text that appears on the Supreme Court’s docket is the following: “DISTRIBUTED for Conference of September 24, 2012.”  I don’t mean to nitpick too much (disclosure: I was an English major in college, so I’m prone to over-analysis) but all that means is that the materials were handed out so that it could be considered in the September 24 conference.  That doesn’t mean it definitely was, and a new docket listing would only show us that it had been re-distributed.  Those notes on the docket aren’t an assurance that the Court is considering it on that specific day.

Update 2 (Scottie): The Supreme Court’s Public Information Office tells me that on Monday, the rest of the orders will be released, and that is when we are likely to find out whether it was denied or re-listed.

Update 3 (Scottie): Lambda Legal’s Jon Davidson tells me:

The Supreme Court’s today issued a brief list of cases in which review has been granted, which did not include the Perry case, the Windsor challenge to Section 3 of DOMA, or our Diaz v. Brewer case involving domestic partner health insurance benefits for Arizona state employees. The court did not yet issue a list of cases in which review has been denied or in which it has decided to defer making a decision. That list is expected on Monday. There could also be additional cases in which the Supreme Court has decided to grant review at this time that will be announced on Monday.

But, I heard yesterday that the Supreme Court had actually decided not to discuss the Perry case at yesterday’s conference of the justices, so I do not expect anything substantive to be announced about Perry on Monday. I have not heard anything at this point about exactly when the Supreme Court will discuss among themselves whether or not to grant review in the Perry case, or whether or when it will let us know when it will be discussed. The Court does not provide its reasoning regarding when it is making its decisions about most of these matters, and its discussions are kept highly confidential.

At this point, it’s anyone’s guess about exactly when the Supreme Court will announce whether or not it will grant review in any of these cases. I have heard speculation that the Court might wait to decide whether or not to hear the Perry case until it decides whether or not to hear one or more of the challenges to Section 3 of DOMA.. I’ve also heard speculation that the Supreme Court may not decide which, if any, of the challenges to Section 3 of DOMA to hear until the briefing is final in all of those challenges (including the Department of Justice’s most recent requests that the Supreme Court hear the Pedersen case, if it doesn’t grant review in Gill/Massachusetts or Golinski and that the Court hear the Windsor case if it doesn’t grant review in an of the other cases). That briefing will not be done until the latter part of October and the Supreme Court therefore may not issue any announcement about what it will do in any of these cases until after the election. Again, this is speculation, as the Supreme Court keeps its deliberations about which cases to hear secret.

60 Comments September 25, 2012

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