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Archives – July, 2013

California Supreme Court declines to halt same-sex marriages in latest challenge by San Diego’s county clerk

By Scottie Thomaston

David Boies with Ted Olson
David Boies with Ted Olson

Last week, San Diego’s county clerk filed a petition with the California state supreme court to end the issuance of marriage licenses to same-sex couples in the state. (This is separate from the one filed the previous week by the proponents of Prop 8 to halt marriages.) As in the petition filed the week before, San Diego’s county clerk asked for an immediate temporary stay on the marriages, and for the state supreme court to ultimately decide whether they will allow counties to refuse to issue same-sex marriage licenses.

The state of California filed a response, opposing an immediate stay, largely for the same reasons as the other petition. The state supreme court has now denied the request for an immediate stay in a brief order. Marriages will continue across the state while the California supreme court works through the issues.

In the proponents’ new case, twenty clerk recorders have opposed the petition and filed a brief in support of marriage equality.

Thanks to Kathleen Perrin for these filings

3 Comments July 24, 2013

Updated: Pennsylvania county official issues same-sex marriage licenses despite state ban on marriage equality

By Jacob CombsPennsylvania state seal

Updated (1:30 p.m. Eastern): Loreen Bloodgood and Alicia Terrizzi of Pottstown, Pennsylvania, became the first married same-sex couple in the state after being granted a license this morning by D. Bruce Hanes, the Montgomery County-based Times-Herald reports.  A second couple, Sasha Esther Ballen and Diana Lynn Spagnuolo, of Wynnewood, were also granted a license.

“I think we feel equal, for once. I think we feel the same as everybody else and it’s a great feeling. It’s almost indescribable,”  Bloodgood told the paper.

“We think it’s really important to show our children that we are a family and we just like their friends who have moms and dads. It’s important for us to stand up for what we believe in.  We weren’t really planning on being the first people. I thought there was going to be a giant line here. I guess we are kind of trendsetters.”

It remains to be seen how Pennsylvania state officials will react to Hanes’s actions, although it seems quite likely another legal challenge could simmer soon in the state.

Original post (11:00 a.m. Eastern): D. Bruce Hanes, the register of wills in Montgomery County, Pennsylvania, announced yesterday that his office was preparing to offer marriage licenses to same-sex couples, despite state law limiting marriage to different-sex couples only.  From Philly.com:

“I decided to come down on the right side of history and the law,” D. Bruce Hanes said, announcing that his office would issue marriage licenses to gay and lesbian couples.

He follows state Attorney General Kathleen Kane, who is refusing to defend the state law against a federal lawsuit, and the Obama administration, which declined to defend the federal Defense of Marriage Act. Both Hanes and Kane are Democrats.

Hanes’ decision could have statewide implications, bringing gay and lesbian Pennsylvanians to Norristown for licenses that could then be used for weddings anywhere in the state.

The legality of those licenses would remain in question, however. Under Pennsylvania law, marriage is restricted to one man and one woman.

Hanes’s new stance, according to the Philly.com article, came through a consultation with lawyers following a lesbian couple’s request for a license.  A press conference for the issuance of the marriage license was planned for late yesterday, but the couple backed out of the plans, according to their attorney, because they were “extremely concerned that the issuance of the marriage license would be challenged on procedural grounds without the courts ever addressing the actual issue of marriage equality.”

Hanes cited the equal protection provisions of the Pennsylvania Constitution in support of his decision to issue same-sex marriage licenses, saying, “Those are provisions of the Pennsylvania Constitution which I think are diametrically opposed to the marriage law.”

Of course, Hanes is not the first county official to offer same-sex couples marriage licenses in contravention of state laws prohibiting marriage equality.  Then-San Francisco Mayor Gavin Newsome set off a media firestorm in 2004 when he ordered a county clerk to issue licenses to same-sex couples; similar events took place later that year in Multnomah County, Oregon and Sandoval County, New Mexico.  All of these licenses were later determined to be legally invalid.

Earlier this month, the ACLU filed a new legal challenge in a Harrisburg district court challenging Pennsylvania’s marriage equality ban.  The case is known as Whitewood v. Corbett.  A few days after the filing, state Attorney General Kathleen Kane announced that she would not be defending the ban in court.  “I cannot ethically defend the constitutionality of Pennsylvania’s (law banning same-sex marriage), where I believe it to be wholly unconstitutional,” she told reporters during a press conference in Philadelphia.  It is likely that Gov. Tom Corbett, a Republican, will defend the law.

2 Comments July 24, 2013

Federal judge orders Ohio state officials to recognize marriage of a same-sex couple

By Scottie Thomaston Ohio state seal

Yesterday, a federal judge ordered the state of Ohio to recognize a same-sex marriage for the purpose of acknowledging a man’s marital status on his death certificate. John Arthur and James Obergefell live in Ohio and got married in Maryland, and Arthur was diagnosed with ALS (Lou Gehrig’s disease) which is fatal. The couple wants the legality of the marriage recognized on Arthur’s death certificate: he is in hospice, and according to legal filings in the case, death is imminent. Ohio doesn’t recognize same-sex marriages performed in other jurisdictions, so the couple challenged the non-recognition in federal court.

A hearing was held yesterday, and last night the judge granted a temporary restraining order barring the state from issuing a death certificate that refers to Arthur as unmarried.

Writing that “[t]his is not a complicated case,” the judge laid out the legal rationale under the Equal Protection Clause for recognizing both same-sex and opposite-sex marriages performed outside of the state:

Addressing the constitutional question, Black explained, “Although the law has long recognized that marriage and domestic relations are matters generally left to the states, the restrictions imposed on marriage by states, however, must nonetheless comply with the [U.S.] Constitution.”

To that end, the court examined the Supreme Court’s decision striking down part of the Defense of Marriage Act this June in United States v. Windsor, the 1996 decision in Romer v. Evans, and in other decisions addressing differential treatment found to be unconstitutional under the Constitution’s guarantee of equal protection of the laws.

Looking at Ohio’s bans on recognizing same-sex couples’ out-of-state marriages, while acknowledging its recognition of the marriages of opposite-sex couples who would not be allowed to marry in Ohio, Black concluded, “The purpose served by treating same-sex married couples differently than opposite-sex married couples is the same improper purpose that failed in Windsor and in Romer: ‘to impose inequality’ and to make gay citizens unequal under the law.”

The judge found that a temporary restraining order is warranted here because the couple is likely to succeed on the merits of the constitutional challenge after a full trial – this was only an initial hearing, related to just the one order. The order notes that Arthur is in hospice and if the state isn’t temporarily restrained, Arthur’s constitutional rights may be violated before he passes away, and only remedied after his death.

Thanks to Kathleen Perrin for these filings

3 Comments July 23, 2013

New Mexico attorney general won’t defend marriage equality ban in court

By Jacob CombsNew Mexico state seal

In a filing yesterday with the New Mexico Supreme Court, state Attorney General Gary King asked the 5-justice court to end the state’s lack of marriage equality, arguing that it violates the new Mexico Constitution.  From the AP:

In written arguments filed with the court, King said the justices should invalidate the state’s ban on gay marriage if they agree to resolve the issue in a lawsuit filed by two Santa Fe men who were denied a marriage license.

King, a Democrat who plans to run for governor next year against Republican Gov. Susana Martinez, said New Mexico law effectively doesn’t allow gay marriages although there’s no statutory provision that specifically prohibits, or authorizes, gay couples to be married.

“New Mexico’s guarantee of equal protection to its citizens demands that same-sex couples be permitted to enjoy the benefits of marriage in the same way and to the same extent as other New Mexico citizens,” King said in the filing.

The five-member court had asked King’s office to respond to the lawsuit. No hearing has been scheduled in the case so far, and it’s uncertain whether the Supreme Court will issue a decision resolving the same-sex marriage dispute.

The lawsuit was filed directly with the justices to try to get a speedy decision. However, the court could decide that the case should be handled differently and has to work its way through the legal system as an appeal from a lower court ruling.

But despite advocating for same-sex couples’ rights to access marriage licenses in the state, King also wrote in his filing that the Supreme Court should deny the specific request for a marriage license in this case because it was brought directly to the high court rather than to a lower court.  The plaintiffs went straight to the top court in an effort to obtain a speedier ruling; King believes the issue should be presented to a lower state court and then make its way to the Supreme Court through an appeal.

Earlier last month, after conducting a review of New Mexico state law, King announced in a press conference his determination that New Mexico law is unclear as to whether marriage equality is prohibited or allowed in the state, cautioning county clerks against issuing marriage licenses to same-sex couples and calling for the courts to definitively settle the issue.  The couple who are bringing their case before the Supreme Court filed their challenge just hours after King’s announcement.

King’s legal review followed a resolution passed by the city of Santa Fe after a March press conference during which Mayor David Coss, City Councilor Patti Bushee and City Attorney Geno Zamora argued that New Mexico law (which contains no specific provision prohibiting marriage equality) should be construed to allow same-sex couples to marry.

Another marriage equality lawsuit is also currently pending in New Mexico.  That challenge, brought on behalf of two lesbian couples, one from Santa Fe and another from Aluquerque, the National Center for Lesbian Rights (NCLR) and the ACLU of New Mexico argue that the New Mexico Constitution guarantees marriage equality on the basis of its due process and equal protection provisions, its equal rights amendment, which holds that “[e]quality of rights under law shall not be denied on account of the sex of any person,” and its prohibitions on discrimination on the basis of sexual orientation.  The case is known as Griego v. Oliver.

Earlier this year, the New Mexico House Voters & Elections Committee voted 7-4 against a bill that would have amended the state constitution to explicitly allow marriage equality.  The legislation had previously been approved by another House committee on a 3-2 vote.

3 Comments July 23, 2013

DOMA Defenders Finally Give Up

By Matt Baume

Marriage equality is the law of the land throughout California, with at least one county setting a marriage license record. House Republicans will stop defending federal bans on recognizing LGBT couples. There’s a new lawsuit in Arkansas and strong new polls in Virginia and New Jersey. And marriage equality spreads to England, Wales and Colombia.

Official estimates from California’s Santa Clara County indicate that they’ve broken their record for the most number of marriage licenses issued in a single day. They issued 149 licenses on July 5th, bringing the weekly total to 381.

The Prop 8 Proponents are still trying to find a way to undo their decisive loss. But this week the California Supreme Court refused their request to halt weddings. Although their challenge hasn’t been thrown out altogether, it’s pretty clear at this point that marriage equality is here to stay.

Meanwhile, at the federal level, House Republicans have suspended their defense of regulations that, like DOMA, prohibit recognition of LGBT couples. This comes after the House Bipartisan Legal Advisory Group spent millions on dollars on a failed attempt to defend DOMA. The most immediate impact will be felt in a lawsuit concerning veterans benefits.

There’s another lawsuit challenging the marriage ban in Arkansas. This one’s in federal court, and names the Governor and Attorney General as defendants. This is distinct from a separate lawsuit filed last week in state court. Just like AFER’s case against Prop 8, both suits cite the equal protection and due process clauses of the US Constitution as a basis for overturning the state’s marriage ban.

We have some more good news in the polls this week. In Virginia, Quinnipiac and HRC polls put support for marriage in the low 50s with opposition about 10 points behind. That’s a reversal of public opinion just two years ago.

And a Quinnipiac poll in New Jersey is even stronger, with 60 percent support to 31 percent opposed.

Major international news this week: marriage equality has been legalized in England and Wales, although a one-year waiting period means that marriages won’t start until the middle of 2014. Scotland is about a year behind, with legislation still in the works but likely to be signed next year.

And a judge in Colombia has ordered the country to recognize the marriage of a gay couple planning to wed this week. The ruling comes amidst confusion and dispute over exactly what the law requires in that country, following a series of court rulings and legislative fights.

Those are the headlines. Remember to subscribe here on YouTube for the latest updates. And share this video so we can keep marriage equality in the public eye as we work to overturn bans from coast to coast.

July 22, 2013

The latest in ongoing court challenges to Section 3 of DOMA

By Scottie Thomaston

Department of Justice
Department of Justice

More challenges to Section 3 of the federal Defense of Marriage Act (DOMA) are still working their way through the courts, and EqualityOnTrial is working to keep up with the latest developments in the ongoing cases. Here is a round-up of some of the most recent updates:

Golinski v. Office of Personnel Management: This case is on appeal to the Ninth Circuit Court of Appeals. In the latest filing, the parties to the case have agreed that the appeal should be dismissed. Golinski and her wife won at the district court level, and the Supreme Court struck down Section 3 of DOMA in United States v. Windsor. Golinski’s wife has been receiving health benefits at the same time the government pursued an appeal to the Ninth Circuit. The latest request would simply leave the district court’s order in place, now that the Supreme Court has invalidated the statute.

Dragovich v. Department of Treasury: This is another case that is on appeal to the Ninth Circuit. In the latest filing, the Justice Department and the Bipartisan Legal Advisory Group (BLAG) – who stepped in to defend Section 3 of DOMA on behalf of House Republicans – are asking for the dismissal of BLAG’s appeal to the Ninth Circuit. They’re also asking for BLAG’s removal from the case. (BLAG is only defending Section 3 of DOMA, which has been invalidated, so they are opting to remove themselves from these challenges.) The Justice Department still has its own appeal in this case, and neither BLAG nor the Justice Department have asked for dismissal of that appeal at this point. (The case involves more than just the now invalid statute.) The case is still stayed until August 1.

McLaughlin v. Panetta: This is a challenge to Section 3 of DOMA as well as statutes defining marriage for purposes of military benefits. BLAG asked to withdraw from the case last week, and the Justice Department told the court that in light of Windsor it would construe the military benefit statutes to apply to both opposite-sex and same-sex married couples. The Justice Department argued that judgment should not be entered for the plaintiffs for procedural reasons – they argued the case was brought to the wrong court, as they have done previously. In the latest filings, the stay in the case was continued, and the Justice Department is ordered to issue a status report by September 9 on the government’s progress in implementing benefits for same-sex couples. The court granted BLAG’s motion to withdraw as well.

Thanks to Kathleen Perrin for these filings

July 22, 2013

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