The Rhode Island House Judiciary Committee has just passed the marriage equality bill again – this was an amended version that had earlier passed the state senate. The bill will now go to the House floor for final approval, on Thursday. No surprises are expected and it had passed the House the first time overwhelmingly.
Governor Chafee will sign it when it reaches his desk after being finally approved by the House.
The state attorney general in Texas, Greg Abbott, has issued an opinion stating that local governments are violating Texas’ constitution by offering domestic partnership benefits to same-sex couples. Texas voters passed an initiative to ban same-sex marriage in 2005, adding an anti-gay marriage amendment to the state constitution. Both before and after passage of the constitutional amendment, several cities in the state have offered domestic partnership benefits to opposite-sex and same-sex couples. Travis County has offered these benefits for sixteen years. Austin, Fort Worth, El Paso, and a school district in the state have also extended these benefits to couples.
According to reports, a state senator asked for the attorney general’s opinion last year:
Tea party-backed state Sen. Dan Patrick sought the ruling in November. The Houston Republican argued that Texas amended its constitution in 2005 to define marriage as between one man and one woman, while prohibiting government entities from recognizing anything similar to marriage.
Patrick said in a statement that Monday’s opinion ensures local communities and school districts “cannot subvert the will of Texans.”
County attorneys for Travis County are researching the opinion and they’ve said they plan to address the issue with county commissioners; lawyers for the city of Austin are doing the same. And Travis County Judge Sam Briscoe has said that the attorney general’s opinion isn’t the final word: county attorneys don’t have to follow it if they disagree with the reasoning of the opinion, and state courts get the last word on these matters either way.
The Dallas Morning News, which has posted a copy of the attorney general’s opinion, says this narrow reading of the constitutional amendment would prevent even opposite-sex couples from being recognized in a domestic partnership, and from receiving these benefits, which apparently are only reserved for married opposite-sex couples. They also have a reaction from a state equality organization:
Equality Texas, a gay rights group, has a different interpretation of the ruling, based on two sentences in the ruling that provide a large loophole for governmental entities.
The attorney general wrote, “The political subdivisions you ask about have not simply provided health benefits to the partners of their employees. Instead, they have elected to create a domestic partnership status that is similar to marriage. “
Equality Texas argues that as long as cities, counties and school districts don’t have affidavits that create a “domestic partnership status,” then they can extend benefits to anyone in a household.
While many private businesses that offer domestic partner benefits have specific criteria and create a domestic partnership status, governmental entities should steer clear of that model, said Daniel Williams, legislative specialist for Equality Texas.
Lawyers for the city of Austin are concerned about the city’s ability to attract quality workers to the area if the state adopts this narrow interpretation of the amendment.
According to most reports, the opinion doesn’t force any action or require any cities or school districts to immediately comply with Attorney General Abbott’s view. But since the opinion is based on what the state government believes Texas courts will do when confronted with the issue, there is some force behind the memo. City and county attorneys will review the opinion in the coming weeks.
A bid for marriage equality in Northern Ireland has failed, the Belfast Telegraph reports, after the Democratic Unionist and Ulster Unionist parties voted against a Sinn Féin proposal in the Northern Ireland Assembly. Sinn Féin’s equal marriage push had the support of the Social Democratic and Labour Party (SDLP), the Alliance Party and the Green Party.
Following the vote, Amnesty International announced yesterday that it would likely spearhead a lawsuit with the European Court of Human Rights after the failure of the assembly to provide equal marriage rights to same-sex couples. Amnesty, along with other LGBT rights groups, had originally threatened to file a lawsuit after the Assembly last month voted to exclude Northern Ireland from the marriage equality bill which passed the House of Commons earlier this year and is due for a third reading in the near future.
The Assembly’s March vote, LGBT rights groups argued, would essentially nullify a same-sex couple’s marriage license obtained in another areas of the United Kingdom if the couple relocated to Northern Ireland. Patrick Corrigan, the Northern Ireland program director of Amnesty International, told the Guardian in March that a state cannot treat couples in different territories unequally under European law:
“That obligation is clear in international law. This means marriage should be available to same sex couples in Northern Ireland just as soon as it will be to couples in other parts of the UK. There could be a straightforward legal challenge on the basis of inferior treatment of same sex couples in Northern Ireland with regards to the right to marry and found a family.”
A legal challenge could also be filed in the British courts.
The main marriage equality bill currently pending in the House of Commons would only apply to England and Wales. The Scottish government released its own marriage equality proposal last December and asked for public feedback on the matter. Unlike the law for England and Wales, religious institutions in Scotland would be allowed to “opt in” to marrying same-sex couples. The Scottish legislation would not take effect until 2015.
Earlier this month, a convention established to recommend reforms to the Irish Constitution voted overwhelmingly in favor of providing full marriage rights to same-sex couples. That change would have to be approved by voters before couples were allowed to wed.
We’re celebrating some major victories with week, with two more states about to gain the freedom to marry. Civil unions begin in Colorado, and voters appear ready to upgrade that to marriage. Plus, legislation advances in Pennsylvania and Nevada.
With a victory in the Senate last week, Rhode Island is set to become the next state with marriage equality. One more procedural vote in the House is all that’s left, and then the bill goes to Governor Lincoln Chaffee, who has pledged his signature. Marriage would begin there on August First.
Not to be outdone, Delaware’s House of Representatives also passed a marriage bill. Now it’s on to the Senate, where the Executive Committee is scheduled to hear testimony on Wednesday of this week. The vote there could be close. Visit EqualityDelaware.com to follow the progress and get involved. If passed, marriages would begin on July First, making Delware and Rhode Island the tenth and eleventh states with marriage.
Across the country, civil unions will start in Colorado on May First. The Office of the Clerk in Denver will be open at midnight to start processing forms. A new survey from Public Policy Polling shows support for civil unions at 50% to 38% opposed. And support for full marriage equality in Colorado stands at 51% to 43%. Among voters under 30, support is at 74 to 17.
Civil unions may also be coming to Pennsylvania. Democratic Representative Mark Cohen from Philadelphia has introduced a House Bill to recognize gay and lesbian couples in PA.
And a marriage has advanced in Nevada, but it still has a long way to go. The state Senate passed the bill, which would repeal a constitutional ban on marriage. It must now pass again in 2015 and go before voters in 2016. A 2012 survey from Public Policy Polling shows support for marriage at 47% to 42% opposed.
In international news, lawmakers in Colombia have rejected a marriage bill. This means that the country will likely start recognizing civil unions in mid-June to comply with a Supreme Court ruling. And a civil unions bill is now headed to parliamentary discussion this summer in Malta.
Meanwhile we’re closer than ever to resolution on the Prop 8 and DOMA cases. Subscribe here on YouTube and at AFER.org for breaking news alerts and to find out how you can help support the cause of equality for all.
Legislators in New York have introduced a bill this week to ban so-called “conversion therapy” for LGBT people. California and New Jersey have also taken up the issue in recent months. Conversion therapy is widely discredited and considered to be ineffective. In fact, a noted psychiatrist who undertook a controversial study purporting to show that the therapy is effective has recently rejected his past work and has issued an apology to the LGBT community. And just last week, a former leader of the “ex-gay” movement, a group of people who claim to have “overcome” their sexual orientation, has renounced his past beliefs in the efficacy of conversion therapy.
Huffington Post reports that New York’s legislation is based on California’s ban. That law is currently being reviewed by federal courts, where proponents of conversion therapy are arguing that it is a form of speech, which should be constitutionally protected. The legal challenge to California’s ban is not affecting the chances of passage in New York:
Despite the unresolved legal challenge, two New York state lawmakers from New York City, Sen. Michael Gianaris and Sen. Deborah Glick, both progressive Democrats, said the time was right to propose a ban.
“There are often challenges to any manner of legislation that is protecting of the LGBT community and you can’t sit on your hands and wait until things get resolved somewhere else,” said Glick, who became the first openly gay legislator in New York in 1990.
But the challengers of the ban may have an uphill battle if the legislature passes it: the Ninth Circuit panel taking up the challenge to California’s ban in its preliminary stages seemed skeptical that the law is anything more than a permitted regulation of the medical profession, and the panel seemed somewhat dubious about the free speech claims raised. And in New Jersey, even the state’s Republican governor, who may seek the party’s nomination for president in 2016, has said he opposes conversion therapy and believes sexual orientation is determined at birth. It’s hard to imagine New York would be any more accepting of conversion therapy, and it seems unlikely that the Second Circuit (which is where any federal court challenge to New York’s proposed ban would ultimately end up) would be inclined to strike down the ban. In Edith Windsor’s challenge to Section 3 of DOMA, the Second Circuit issued an opinion in favor of Windsor.
A judge on the Ninth Circuit Court of Appeals held last week that the federal judiciary discriminated against an lesbian assistant federal public defender in Portland when it refused to recognize her Canadian marriage, the Williamette Week reported last Thursday. In his ruling, Judge Harry Pregerson held that both Oregon’s marriage equality ban and the federal Defense of Marriage Act violate the U.S. Constitution.
The assistant public defender, Alison Clark, married her partner, Anna Campbell, in British Columbia last June. She then applied for her wife to receive benefits under the Federal Employees Health Care Benefits (FEHB), which was denied because of DOMA, the federal law which prohibits the federal government from recognizing marriages between same-sex couples. Clark then filed a complaint in the courts’ Employment Dispute Resolution Plan alleging discrimination on the basis of sexual orientation.
In his decision, Pregerson wrote that heightened scrutiny should apply to Clark’s discrimination claim, but held that Oregon’s Measure 36 (the ballot measure which placed a marriage equality ban in the Oregon Constitution) fails even the most referential rational basis test. “Oregon does not state any reason for preventing same-sex couples from marrying,” he wrote.
Judge Pregerson analyzed three purported reasonings for marriage equality bans, specifically citing the similar justifications put forward for Proposition 8, California’s equal marriage prohibition. Restricting marriage to opposite-sex couples, he wrote, does not promote ‘responsible procreation,’ does nothing to ensure children will be raised in stable families, and does not ‘proceed with caution’ on the issue of marriages for same-sex couples. “I can see no objective that is rationally related to banning same-sex marriages,” Judge Pregerson wrote, “other than the objective of denigrating homosexual relationships.”
In his decision, Pregerson held that Oregon’s Measure 36 also violates Clark and Campbell’s due process rights as well as their equal protection rights, citing language from Loving v. Virginia that the right to marry is one “of fundamental importance for all individuals” as well as the Supreme Court’s landmark sodomy ruling in Lawrence v. Texas.
After declaring Measure 36 invalid, Judge Pregerson’s opinion also examined DOMA, again using rational basis review, and found that the law’s denial of benefits to same-sex couples violates both the equal protection and due process provisions of the U.S. Constitution. In his conclusion, Pregerson ordered the Administrative Office (AO) of the United States Court to accept Clark’s claim, and instructed the AO to process future benefits requests “without regard to (1) the sex of a listed spouse and (2) whether a validly executed same-sex marriage is recognized by state.” Absent that relief, Pregerson ordered the AO to grant Clark back pay to purchase the coverage on her own.
Pregerson’s ruling was not officially published, and was made in his capacity as chair of the Ninth Circuit’s Standing Committee on Federal Public Defenders and not a Ninth Circuit judge. “This does not have the effect of a traditional decision of the Ninth Circuit,” Lambda Legal’s Tara Borelli told the AP, “both because it was unpublished and because it was issued in an administrative capacity.” Because of that, the decision will have no effect on the enforcement of Measure 36 or DOMA, and will hold no precedential weight in future litigation.
In February, the Portland-based gay rights group Basic Rights Oregon announced that it was launching a petition drive to place a constitutional amendment on the November 2014 ballot that would allow same-sex couples to marry in the state. If the measure is approved, Oregon voters would be the first in the nation to place a marriage equality ban in their state constitution by a popular vote and later repeal it by another vote. Earlier this month, BRO won a victory from Oregon’s Attorney General on the ballot measure’s language, which equal marriage opponents had sought to amend.
You can read Judge Pregerson’s full ruling here, courtesy of the Willamette Week.
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