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Archives – July, 2013

San Diego county clerk asks state court to end same-sex marriages

By Jacob CombsCalifornia state seal

Last Friday, Ernest Dronenburg, Jr., the San Diego Assessor/Recorder/County Clerk, filed a petition with the California Supreme Court seeking an order to halt marriages for same-sex couples in the state.

Marriage equality was returned to California on June 28, two days after the Supreme Court ruled the proponents of Proposition 8 did not have standing to defend the law in court, allowing a district court decision invalidating the law to go into effect.  Nevertheless, the legal battles surrounding the law continue, as the Los Angeles Times reports:

Ernest J. Dronenburg Jr. argued that the court should halt weddings while it considers the argument that the federal court ruling should apply only to the two couples who sued over Proposition 8, as well as to the county clerks in Alameda and Los Angeles counties, where the couples live.

Dronenburg, 69, is an elected Republican whose office is in charge of issuing marriage licenses in San Diego County.

Dronenburg’s request comes on the heels of a petition filed with the state high court by ProtectMarriage, the group which sponsored Prop 8 during the 2008 election and worked to rescind marriage equality rights in the Golden State.  In its filing, the ProtectMarriage argued that California Governor Jerry Brown lacked the constitutional authority to mandate county clerks to issue marriage licenses to same-sex couples–an argument that Dronenburg echoes in his petition.

In his filing, Dronenburg says that he is “caught in the crossfire of a legal struggle over the definition of marriage” since he believes Prop 8 is still in effect but had been ordered by state officials to provide marriage licenses to same-sex couples.

Last week, the California Supreme Court denied the Prop 8 proponents’ request for an immediate stay prohibiting same-sex couples from obtaining marriage licenses while the new legal challenge makes its way through the state courts.  Briefing on the larger issues of the case is scheduled to continue today and last through early August.

University of California, Irvine Professor Douglas NeJaime told the Los Angeles Times that Dronenburg’s filing essentially piggybacks on ProtectMarriage’s petition, although it differs in that it is being made by an  government official who may be better equipped to demonstrate a constitutional injury than the proponents of the ballot measure.  According to the Times, NeJaime predicts Dronenburg’s challenge will fail.

San Diego County’s majority Republican Board of Supervisors put distance between them and Dronenburg after the clerk’s court filing.  “The county clerk has acted independently on this matter,” board Supervisor Greg Cox told the Times. “No one else from the county was consulted or had any part of this court action, including the Board of Supervisors. The county’s position is and always has been that we, the county, will follow applicable law with regards to same-sex marriage.”

Dronenburg’s filing, via Scribd, is available below.  (H/t to Kathleen and Equality Case Files)

[scribd id=154859453 key=key-2layb79kbmlckkzuhef4 mode=scroll]

3 Comments July 22, 2013

Equality news round-up: Updates on LGBT judicial nominees, and more

By Scottie Thomaston New York state seal

– A gay judicial nominee for the Federal Circuit has advanced in a Senate committee.

– Another judicial nominee who is gay and black is facing a stalled process in the Senate.

– An analysis of why it will take a year for same-sex couples in England and Wales to be able to marry.

-Yet another poll finds more support than opposition to marriage equality in Virginia.

– Now that Section 3 of DOMA is gone, New York officials are asking the federal government to recognize marriages performed in states where they are considered legal.

July 19, 2013

House Republicans won’t defend statutes denying benefits to same-sex spouses of military servicemembers

By Scottie Thomaston

Capitol Hill
Capitol Hill

When the Justice Department declined to defend Section 3 of the federal Defense of Marriage Act (DOMA), House Republicans decided to defend the law, through its Bipartisan Legal Advisory Group (BLAG). After that, more challenges to different aspects of the federal definition of marriage began to be brought, including in the immigration and military contexts. The Justice Department decided that those other statutes are unconstitutional as well, because they use the same language as DOMA Section 3, and the Justice Department suggested the same type of stringent equal protection analysis was required. BLAG took up the defense of those other statutes while challenges to DOMA were being decided in the appeals courts, and while the Supreme Court was taking on Edith Windsor’s case.

In a new filing today in McLaughlin v. Panetta, a DOMA challenge that also involves the statute governing military benefits for spouses, BLAG is asking to withdraw from the case and to stop its defense of those statutes. BLAG writes that Windsor ends the battle over Section 3 of DOMA and that, “[w]hile the question of whether 38 U.S.C. § 101(3), (31) is constitutional remains open, the House has determined, in light of the Supreme Court’s opinion in Windsor, that it no longer will defend that statute.” “Accordingly,” they write, “the House now seeks leave to withdraw as a party defendant.”

The request for withdrawal would seem to leave these statutes without a defense, and BLAG writes that it takes no position on whether judgment should be entered in favor of the same-sex couple plaintiffs.

UPDATE 7:30PM ET: The Justice Department has filed a brief in this case telling the court that in light of the Supreme Court’s decision in Windsor, it will now construe the remaining statutes at issue here to apply equally to same-sex couples. Because of this, the Justice Department wrote that they believe the court should not enter judgment on those claims in favor of the plaintiffs.

Huge thanks to Kathleen Perrin

July 18, 2013

Texas man withdraws suit challenging marriage equality ban

By Jacob CombsTexas state seal

Domenico Nuckols, a retired nuclear engineer who lives in Galveston, Texas, will withdraw a marriage equality challenge seeking marriage equality he filed in federal court two weeks ago after consulting with several legal organizations, the Dallas Voice reports:

Nuckols, a retired nuclear engineer, filed the case two weeks ago and as of last week was trying to find pro bono legal representation. But he said after talking with the American Civil Liberties Union and receiving a letter on Lambda Legal’s position, he withdrew the suit Monday. The judge signed the order dismissing the case yesterday.

He said the organizations explained they had picked several states like Pennsylvania and Virginia where they thought they could win the fight for same-sex marriage. Nuckols also hasn’t tried to marry in Texas and doesn’t plan to do so, so standing could have been an issue with his case.

At the time of the case’s filing, the Houston Chronicle reported that Nuckols believed he would succeed in his challenge because of the Supreme Court’s decision striking down Section 3 of the Defense of Marriage Act.

At the Dallas Voice report notes, LGBT advocacy groups have filed a string of marriage equality suits in several states after the Supreme Court’s ruling: earlier this month, the ACLU announced three new challenges in Pennsylvania, Virginia and North Carolina and also said it would file a motion with Lambda Legal for summary judgment in a state court case in Illinois.

In general, marriage equality challenges filed by groups such as the ACLU or Lambda Legal are carefully planned and highly strategic: the groups are careful in selecting plaintiffs and making constitutional arguments–and, of course, they employ some of the brightest legal minds on equal protection and LGBT-related law.  Because the Supreme Court hears so few cases, any anti-marriage equality decision could be a major set-back to LGBT advocates, which explains the impetus for legal groups to discourage individuals like Nuckols from filing suits without an advocacy group’s backing.

July 18, 2013

DOMA cases continue to wind their way through the courts

By Scottie Thomaston

Edith Windsor. Attribution: Talking Points Memo
Edith Windsor
Attribution: Talking Points Memo

Nearly a month after the Supreme Court issued its decision in United States v. Windsor striking down Section 3 of the federal Defense of Marriage Act, some of the remaining challenges to the law are still working their way through the lower courts. Here is a short round up of some of the most recent updates:

Golinski v. Office of Personnel Management: this was the first case in which the district court had applied a heightened level of judicial scrutiny to laws that classify on the basis of sexual orientation to strike down Section 3 of DOMA. It was appealed to the Ninth Circuit Court of Appeals, and then stayed pending the outcome of Windsor. Last Thursday, the court asked the parties to write a letter addressing Windsor:

The parties are requested to file letter briefs of no more than 5 pages each addressing the appropriate disposition of this case in light of United States v. Windsor, No. 12-307, 2013 WL 3196928 (U.S. June 26, 2013). The letters should be filed no later than 14 days after this order.

Bishop v. United States: This case used to be known as Bishop v. Oklahoma; it is a challenge to the entire Defense of Marriage Act as well as Oklahoma’s ban on marriage equality. It’s also the longest ongoing DOMA challenge. The plaintiffs filed a supplemental brief arguing that Windsor impacts not only their decision on the constitutionality of Section 3 of DOMA, but should also mean that Section 2 and the state’s marriage ban is unconstitutional under the majority opinion’s reasoning. they also write that the Bipartisan Legal Advisory Group (BLAG) only joined the case to defend Section 3 of DOMA, so Windsor‘s outcome means they likely have no standing.

Aranas v. Napolitano: This case is a challenge to Section 3 of DOMA as it relates to immigration. On July 12, the district court held a status conference via telephone to discuss how to proceed after Windsor. At the conference, a briefing schedule on the pending motions in the case was ordered:

[O]pposition is due no later than July 29, 2013, reply, if any, is due no later than August 5, 2013 with a tentative hearing date of August 19, 2013 at 10:00 a.m.

The Bipartisan Legal Advisory Group (BLAG) had also requested to withdraw from the case and their request was granted.

McLaughlin v. Panetta: This is a challenge to Section 3 of DOMA as well as other statutes defining marriage for purposes of military benefits. The parties were asked to brief Windsor‘s impact on their case and the plaintiffs have written that Windsor ends their Section 3 case, and that the language of the majority opinion also applies to the other military-related statutes which are nearly identical to Section 3 of DOMA.

There are many more cases with pending decisions, so stay tuned.

Thanks to Kathleen Perrin as always for this information and these filings

July 18, 2013

England, Wales marriage equality bill is now law, marriages start in 2014

By Scottie Thomaston

Yesterday, the House of Lords in the UK gave final approval to the marriage equality bill, sending it back to the House of Commons (where it was voted on and passed previously) and then to Queen Elizabeth II for her royal assent.

The bill faced a two hour debate in the House of Commons yesterday, where it was approved again, finally, and sent to the Queen. Today the royal assent, a formality in the UK, was given, and marriages will be allowed in 2014:

The Queen’s approval of the Marriage (same sex couples) Bill was a formality, and now clears the way for the first gay marriages, the first of which are expected to be conducted by Summer 2014.

The bill enables gay couples to get married in both civil and religious ceremonies in England and Wales. It also will allow couples who had previously entered into a civil partnership to convert their relationship to a marriage.

Seventeen countries allow same-sex couples to marry.

July 17, 2013

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