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Archives – February, 2013

Support for marriage equality hits all-time high in CA as Prop 8 case deadline looms for Obama

By Jacob Combs

A new Field poll released today finds that California voters favor marriage equality by a 61 percent to 32 percent margin, with an increase in support among all age groups and ethnic groups and also in all areas of the state, the Sacramento Bee reports.

“The dynamic that has occurred in the last three years kind of spans all populations,” Mark DiCamillo, the poll’s director, told the Bee. “It’s almost as if it’s a societal change.”

The Field poll’s results found a dramatic increase in support for equal marriage rights since 2010, with a 10 percentage point increase in approval.  Democrats and nonpartisan voters favor marriage equality by an identical 71-25 percent split (an increase for nonpartisans of 19 percent over the last three years) and while Republicans remain opposed to equal marriage rights with 39 percent approving and 53 percent disapproving, their support has nevertheless increased 13 percentage points since 2010.

A remarkable 78 percent of respondents aged 18 to 39 support marriage equality, as do 56 percent of those aged 40 to 64.  While a majority of respondents older than 65 does not favor equal marriage rights, a plurality of 48 percent does, with 44 percent disapproving.

Women in California are more likely to support same-sex couples’ marriage rights, although a majority of men do as well.  A majority of the state’s Latinos support marriage equality, as do a majority of its Catholics.  Support is highest in the Bay Area, but is strong in Los Angeles County and in other regions around the state as well.

The propitious timing of the Field poll’s release on the same day that Supreme Court briefs in support of the legal challenge against Prop 8 are due demonstrates that California is ready for marriage equality.  Obviously, a Supreme Court decision restoring marriage rights to California’s same-sex couples would be the best and quickest route to equality in the state, but if the Court were to uphold Prop 8, a campaign to repeal the constitutional amendment would seem likely to start out with a significant advantage.

Writing in Metro Weekly, Justin Snow yesterday raised the question, “Where are Congressional Democrats on Prop 8?”  Snow noted that House and Senate Democrats have been clear in their opposition to the Defense of Marriage Act, but while party leaders have spoken out against Prop 8 in the past, they have yet to file a friend of the court brief arguing that such marriage bans violate the U.S. Constitution.

And, of course, the biggest question today is whether President Obama will weigh in on the constitutionality of Prop 8 and marriage equality bans in general.  It seems highly unlikely that Obama and his Justice Department will sit out the case entirely, especially after the news that over 100 high-profile Republicans plan to file their own brief arguing in favor of marriage equality.  Check back throughout the day for updates on the briefs that are filed in the case–it could end up being quite an interesting news day!

2 Comments February 28, 2013

All parties in DOMA case ask Supreme Court for 125 minutes to argue case

By Scottie Thomaston

The Solicitor General is asking the Supreme Court for a longer argument time in United States v. Windsor, the constitutional challenge to Section 3 of the Defense of Marriage Act. All parties to the case join the government in the request. The filing says that “[i]n light of the Court’s addition of the two threshold jurisdictional questions to the question presented in the petition and the Court’s appointment of an amica curiae to brief and argue those questions” and in light of the numerous filings in the case, the argument should be 125 minutes instead of the standard one-hour argument.

SCOTUSBlog has the proposed time schedule:

On the question of the Court’s authority to decide — that is, the jurisdiction over the government’s appeal and the right of the House GOP leaders to pursue an appeal — the motion suggested a total of 65 minutes, in this order: Court-appointed amici, 25 minutes; Solicitor General, for the U.S., 15 minutes; House GOP (Bipartisan Legal Advisory Group), 15 minutes, and challenger Edith Schlain Windsor, 10 minutes. (The Court-appointed amici is Harvard professor Vicki C. Jackson.)

On the constitutionality of DOMA’s Section 3 — the ban on federal marriage benefits for same-sex couples who are legally married under state law — the motion suggested a total of 60 minutes, in this order: House GOP (BLAG), defending the law, 30 minutes; SG, for the U.S., 15 minutes, and Ms Windsor, 15 minutes. (The motion noted that the Court-appointed amici, who is involved only on the jurisdictional issues, took no position on this separate proposal.)

The separated arguments would be back-to-back on Wednesday, March 27, starting at 10 a.m. No other case is scheduled for argument that day.

The Court hasn’t taken any action yet.

No request has yet been made to expand the time for argument in Hollingsworth v. Perry, the Prop 8 case.

h/t Kathleen

Windsor: Parties' Motion re Argument by EqualityCaseFiles

2 Comments February 27, 2013

Analysis: The Prop 8 plaintiffs debunk the ‘responsible procreation’ argument for good

Photo by Diane Walker
The plaintiffs in the Prop 8 challenge, from left to right: Paul Katami, Jeff Zerillo, Kristin Perry and Sandra Stier.

By Jacob Combs

Last week, the plaintiffs challenging the constitutionality of Proposition 8 filed a brief with the Supreme Court in response to the arguments that the law’s defenders had made in their filing with the Court last month.  At first blush, the most significant feature of the plaintiffs’ brief might seem to be their decision to opt for the legal equivalent of a two-point conversion over the extra point.  Provided the opportunity to argue a narrower, California-specific case for marriage equality akin to the one made by the Ninth Circuit when it struck down Prop 8, the plaintiffs have instead chosen to argue that gay and lesbian Americans have a fundamental right to marry, full stop.

This isn’t a new position for the Prop 8 plaintiffs; in fact, it’s a logical extension of the arguments they’ve been making since their initial legal complaint in 2009.  But it is still a big deal.  A fundamental right to marriage equality would by default be a national right, one that gay and lesbian citizens in Alabama would be entitled to as much as those in California.  A Supreme Court ruling recognizing such a fundamental right would affect the laws of the 41 states without marriage equality either immediately or perhaps after a few years and a couple more lawsuits.

But even though the plaintiffs’ brief does not adopt the Ninth Circuit’s more limited framing of constitutional questions at issue in Prop 8 case, it still contains a remarkable array of arguments besides the fundamental right framing from which the Supreme Court can choose.  As a procedural issue, the plaintiffs argue that the proponents of Prop 8 lack what is called ‘Article III standing,’ which would essentially mean that they should never have been allowed to appeal the district court decision invalidating the law in the first place.  The plaintiffs also make a persuasive case that laws which pertain to gays and lesbians should be considered under heightened scrutiny, a more searching form of legal review that courts have historically used when considering laws which classify based on race, sex and national origin.

Despite these extremely important arguments (which could dramatically affect the ultimate outcome of the case) and the invocation of a fundamental right to marry under the due process clause, the bulk of the plaintiffs’ brief focuses on Prop 8 as a violation of equal protection rights.  This is the course most legal observers expect the Supreme Court to take in its eventual decision on Prop 8, although the scope of any such decision could certainly be limited to California if the Court wished to do so.  And as it happens, the equal protection clause provides one of most persuasive arguments against laws that limit marriage rights for same-sex couples. (more…)

February 27, 2013

More Republicans sign on to Supreme Court pro-marriage equality brief

By Scottie Thomaston

EqualityOnTrial noted a report yesterday that a group of Republicans are filing an amicus curiae “friend of the court” brief in the Prop 8 case, Hollingsworth v. Perry, in support of a right to marry for same-sex couples. At the time of that writing, there was a list of 75 Republicans who had signed on including Ken Mehlman and some current members of Congress including Ileana Ros-Lehtinen and Richard Hanna.

The list is growing and now there are well over 100 Republicans who have signed on.

The New York Times report initially listed former Congresswoman and sponsor of the Federal Marriage Amendment Marilyn Musgrave as a signer but she has said that report is inaccurate:

But Musgrave, who sponsored a Constitutional amendment to ban gay marriage and famously said that there was no bigger threat to the country, tells FOX31 Denver that the report is flat-out wrong.

“I’m very befuddled by this story,” Musgrave told FOX31 Denver. “There’s absolutely no truth to that. I’m reading it thinking, ‘what in the world?’

“I wasn’t even aware of it. I have not changed my position. I’m trying to imagine where anyone would get that information and I can’t figure it out.”

The Times article now says the brief was signed by Musgrave’s “district director” and not Musgrave herself.

The Obama administration could still file a brief in the case: briefs in support of the same-sex couples are due tomorrow.

EqualityOnTrial will be monitoring new filings and reporting on them as they come in.

February 27, 2013

UPDATED: Corporate America speaks out against Prop 8, plus marriage equality updates from the Midwest

AllThingsD
A portion of a statement released by several tech companies in 2008 opposing Prop 8.

By Jacob Combs

Updated at 11:20 a.m. Eastern to include New York Times article on President Obama and Prop 8 and at 12:00 p.m. Eastern to include Minnesota announcement

On the heel’s of yesterday’s news that more than 80 prominent Republicans had signed a brief opposing Prop 8 to be filed with the Supreme Court, Bloomberg reports that several major corporations are planning to follow suit before tomorrow’s deadline regarding friend of the court briefs in the case.

“No matter how welcoming the corporate culture, it cannot overcome the societal stigma institutionalized by Proposition 8 and similar laws,” the corporations will argue in their brief, calling for nationwide marriage equality.  Among the companies that plan to join the filing are Apple, Facebook, Intel, Morgan Stanley, AIG, eBay, Nike, Xerox and Alcoa.

Several of the companies on the Prop 8 filing, including Apple and Facebook, opposed the law in 2008 when it was on the ballot in California.  Apple, for instance, contributed $100,000 to the No on 8 campaign and issued a statement that read, “Apple views this as a civil rights issue, rather than just a political issue, and is therefore speaking out publicly against Proposition 8.”

Another larger group of corporations plan to file a brief with the Supreme Court opposing the Defense of Marriage Act, which bars the federal government from recognizing same-sex couples’ valid state-based marriages.

News of the corporations’ brief in support of marriage equality on top of yesterday’s big story about Republican support puts added pressure on President Obama to speak out on the case before tomorrow’s deadline to file briefs in support of the plaintiffs argument that Prop 8 is unconstitutional.  At this point, if the president chooses not to weigh in on the law, it could open him up to the charge that he is falling behind on his advocacy for marriage equality, especially after the historic words of support included in his second inaugural address.

This morning, the New York Times cited reporting by the Wall Street Journal that the Obama administration is still considering how it will approach the Prop 8 case and is exploring a compromise position that would stop short of calling for a constitutional right to marriage equality.  “[A]dministration lawyers worry that taking such an expansive view in legal briefs could unnerve some justices in the Supreme Court’s conservative wing, the people familiar with the matter said,” the Journal reported, according to Business Insider.

In addition, the New York Times wrote in an editorial today titled ‘Beyond Selma-to-Stonewall’ that Obama “should have his solicitor general file a brief in the Proposition 8 case being argued before the Supreme Courtin March, saying that California’s voter-approved ban on same-sex marriage is unconstitutional.”  From the editorial:

For the administration to be missing in action in this showdown risks conveying a message to the justices that it lacks confidence in the constitutional claims for ending gay people’s exclusion from marriage or that it believes Americans are not ready for a high court ruling making marriage equality the law of the land — impressions strikingly contradicted by legal precedent, the lessons of history and by the president’s own very powerful words.

Mr. Obama’s Inaugural Address appeared to reflect a deepened understanding that the right to marry the person of one’s choice is a fundamental right “under the law.” He needs to make sure his solicitor general conveys that sound legal view loud and clear in the Proposition 8 case.

In other marriage equality news, Minnesotans United–the group behind the successful push to reject a marriage equality ban last year–announced today that legislation will be filed in the state legislature tomorrow to allow same-sex couples equal marriage rights.  The bill enjoys bipartisan support and was co-authored by Republican Senator Branden Petersen, although many lawmakers from the more rural areas of the state remain opposed.

In Iowa, a Republican state senator has initiated the process to put a constitutional marriage equality ban on the ballot for a statewide vote.  The legislation would need to be approved by two successive legislatures before going to voters.  The bill seems unlikely to gain much traction, not only because Democratic Senate Majority Leader Mike Gronstal has consistently blocked such efforts since the Iowa Supreme Court granted same-sex couples equal marriage rights in a unanimous 2009 decision, but also because many Republicans are wary of re-litigating an issue that is essentially settled policy in the state.

Finally, in a non-Midwestern bit of marriage equality news, a select committee of the New Zealand parliament has issued a recommendation that a proposed marriage bill should be passed into law.  The Government Administration Committee endorsed the bill and proposed an amendment to clarify that no religious organization that opposes marriage equality would be required to marry same-sex couples.

The bill passed its first parliamentary reading 80-40.  A second reading will be held on March 13.

February 27, 2013

UPDATED: IL House committee advances marriage equality bill to full floor vote

By Jacob Combs

Some late breaking news out of Illinois tonight, where the House Executive Committee voted 6-5 in favor of the Religious Freedom and Marriage Fairness act.  The bill will now continue to a full floor vote in the House, having already passed the state Senate on Valentine’s Day.

As the Windy City Times reported, the committee vote was greatly delayed due to a long debate over a concealed carry amendment.  The marriage bill hearing was originally scheduled for 3:00 p.m., but did not take place until much later, around 10 p.m. The vote to advance the bill happened about an hour and a half later.

All six representatives who voted yes on the bill were Democrats.  The committee’s four Republicans voted in lockstep against the bill, and were joined by one Democrat, Rep. Eddie Lee Jackson, Sr.  One of the Democrats who voted yes, Luis Arroyo, said that he would support moving the bill out of committee to allow it a floor vote, but will likely vote against it when the full House considers it.

Advocates are cautious about the bill’s chances before the full House.  If it is passed, it will go to marriage equality supporter Gov. Pat Quinn’s desk for his signature.  A floor vote could take place as soon as Friday, but is more likely to occur next week at the earliest.

UPDATE (11:00 a.m. 2/27): (h/t Bryce from DC and KS): The Windy City Times has a great piece that shows where each member of the Illinois House currently stands on marriage equality and how to contact those on the fence.  If you or your friends and family live in Illinois, now is the time to get in touch!

 

2 Comments February 26, 2013

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