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New Field poll: Prop 8 will be short for this world… one way or another

by Brian Leubitz

Today, the Field Poll released their latest study on California opinions regarding marriage equality (PDF). It’s good news on the whole, with a slight majority favoring marriage equality. But there are some caveats:

The poll’s results – 51 percent in favor, 42 percent opposed, 7 percent undecided – show big differences among age groups, geography and party affiliation.

The results were close to those the Field Poll found in May 2008, six months before voters banned gay marriage by approving Proposition 8, 52 to 48 percent.

The current survey also found that support for same-sex marriage drops below a majority when voters are given another option – civil unions.(SacBee)

So, yes, there is 51% support, but that support is soft. Basically, we are back where we were two years ago. Prop 8 repeal can pass, but there is still a lot of work to be done. This time we have to run a better campaign to get our message out, be proactive and not just respond to the other side’s phony attacks. And of course, talk with our fellow Californians directly. We can, and should, win in 2012, but it will not be easy by any stretch of the imagination.

Of course, there’s still this Prop 8 trial going on, so I’ll just take a look at what one of the big California-centric pundits had to say. Dan Walters is the big California columnist at the Sacramento Bee. While I frequently disagree with his take on governance and other issues, he does offer an interesting perspective. But in today’s column, he just misunderstands the law. From today’s Bee:

In a manner of speaking, however, Joseph Tauro, a federal judge in Boston, beat Walker to the punch when he declared that the federal “Defense of Marriage Act,” which prohibits the federal government from recognizing same-sex marriages, is unconstitutional.

Although Tauro’s ruling was a victory for the gay rights movement, its legal basis could, ironically, undercut the lawsuit against Proposition 8. Tauro declared that Massachusetts had the authority, as a matter of states’ rights, to decide whether to recognize same-sex marriage, and the federal law “offends” those rights.

Logically, if Tauro is correct and the feds cannot overrule Massachusetts same-sex marriage laws as a states’ rights matter, neither could they overturn California’s anti-gay marriage law, Proposition 8. (SacBee)

From a simple reading of a summary of the cases, that would appear to be the case, but once you delve into the law, that sort of fades away. Judge Tauro’s decision actually strikes down Section 3 of DOMA under two constitutional provisions. First, he does it under the more expected Fifth Amendment of the Constitution, ruling that DOMA has no rational basis. This is the first of the two combined cases, the Gill v OPM case.

It is very clear that this part of the two decisions is clearly not a setback whatsoever. This decision argues that the marriage ban on same-sex couples violates the Bill of Rights. The Fifth Amendment has generally been considered to apply most of the Fourteenth Amendment equal protection jurisprudence to the federal government. In other words, the fifth amendment equal protection clause in Gill is, for our purposes, functionally the same as the fourteenth amendment’s protections in the Prop 8 case. Rather than hurting the challenge to Prop 8, Gill affirmatively argues for Prop 8 to be struck down.

Now, to the Massachusetts case, there the court says that the federal government cannot block the states from defining marriage as they wish due to the Tenth Amendment. Now, first, let’s just say that this part of the ruling is on some shaky legal footing. While some of the TEA-baggers are fond of the tenth amendment, it simply doesn’t have much standing in the legal world. The tenth is rarely enforced in any substantive way, and this component of the case very well may well get some new reasoning on appeal if it is upheld. In some exceptional cases, the federal government has been batted down as over-reaching. But the bar is high, and essentially applies only to Congressional action, in other words, legislation.

The final point here is that the Equal Protection Clause applies to both the states (14th) and the federal government(5th). Whether or not the federal government has a right to tell the states through legislation how to define marriage, the states still have no right to violate the equal protection clause. So, long story short, far from being a back-handed gift to the proponents of Prop 8, the DOMA decision supports the plaintiffs case in Perry.

To bring it back around…Prop 8 is going to be short for the California law books, whether it goes down via judicial action or electoral.

53 Comments July 20, 2010

IRS Ruling Is A Recognition of Fact

by Brian Leubitz

While this might not have been on everybody’s radar, the IRS kicked down a huge decision for California same-sex couples. But PLR-149319-09 (PDF) has some big importance to California registered domestic partners and same-sex married couple. Long story short, the IRS is now recognizing California’s community property rules. And that’s big. Really big.

Let’s start from the beginning. I’m no accountant, but bear with me as I try to recall my tax class in law school. Basically, California, like many Western states, has a default rule for marriage that any property acquired (other than through inheritance) is treated as “community property” between the two married spouses. For California same-gender couples that got married in 2008, these community property rules apply unless you have opted out through contract (a “pre-nup”). Also, in 2006 and 2007, the legislature passed, and the Governor signed, two pieces of legislation that granted registered domestic partnerships the same rights and responsibilities of marriage, with community property first being excluded for tax purposes in 2006, and then being completely folded in to the RDP in 2007.

Of course, the problem here is that under the so-called “Defense of Marriage” Act, the federal government was not supposed to recognize any marriage not between a man and a woman. Thus, we had a real pickle on our hands. Under California property law, the property was community property, half belonged to both partners. But how that property got there was anybody’s guess. Just off the top of my head, there are a number of ways the federal government could have handled the issue:

1) Ignored community property between same gender couples entirely. Sure, it would cause conflicts with state tax issues, but who cares, according to the Yes on 8 folks, this is a future of civilization thing here.
2) Acknowledge the community property, treating it as a gift between two unrelated partners for federal tax purposes. This would have been very bad for same-gender couples. Basically, couples would have had to pay gift tax on any difference in income over $13,000 (or so, depending on what the gift tax is that year). That would get pricy fast.
3) Acknowledge the community property, but treat it as earned jointly. Basically, each partner, for tax purposes, earned half of the income. This would be far more favorable and basically treat community property the same for all couples.

I’ll let you read PLR-149319-09 (PDF) on your own if you’d like to, but long story short, the IRS went for #3. Once they went over the law, it seems obvious, but these things rarely are obvious before hand. And that’s the case here. The IRS first relied on past precedent to first say that the federal goverment defers to the states to determine property law (U.S. v. Mitchell) and then to say that California community property law determines who owns what for California couples (US v Malcolm). Finally, the IRS simply stated that once California treated property as community property, the IRS would do so as well.

Now, in practical terms, what does this mean? Well, say you are a couple where one partner earns substantially more than the other. You’ll have noticed that your California tax bills went down with community property. Now the same will apply to the federal government. For example, say “Adam” earns $50,000 as a public school teacher. His husband “Bill” earns $150,000 as a investment hot-shot or something. (No comment on our society’s priorities there.) Under this new law, each would report income of $100,000. For a variety of reasons in the tax code, that’s going to be advantageous. Now, I’m not a tax lawyer, and this isn’t specific advice. If this is something that might apply, ask whomever prepares your taxes or some other tax professional.

There is one wrinkle in here. Technically, the IRS “private letter ruling” specifically addresses registered domestic partnerships, and uses that language. However, the ruling is entirely directed at the concept of community property, which applies in the same way for the 2008 marriages. In theory, it should be handled the same way, but theory often gets you audited. Anyway, discuss away in the comments. I’m hoping somebody else has some tax experience that can flesh out my reading of the PLR.

84 Comments July 13, 2010

How will the DOMA ruling affect California?

by Brian Leubitz

If you’ve been busy waiting for the Prop 8 ruling you may not have been expecting the news yesterday that Section 3 of the so-called “Defense of Marriage” Act was ruled unconstitutional. Not that it’s likely amongst the Trial Trackers here, but the decision definitely took me by surprise yesterday. But it happened, and you have, at least in part, Martha Coakley to thank for it. But, this decision is real, and powerful:

In the wake of DOMA, it is only sexual orientation that differentiates a married couple entitled to federal marriage-based benefits from one not so entitled. And this court can conceive of no way in which such a difference might be relevant to the provision of the benefits at issue. By premising eligibility for these benefits on marital status in the first instance, the federal government signals to this court that the relevant distinction to be drawn is between married individuals and unmarried individuals. To further divide the class of married individuals into those with spouses of the same sex and those with spouses of the opposite sex is to create a distinction without meaning. And where, as here, “there is no reason to believe that the disadvantaged class is different, in relevant respects” from a similarly situated class, this court may conclude that it is only irrational prejudice that motivates the challenged classification. As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution.

This was actually two consolidates cases, the first case being brought by ten married couples Gill v OPM – decision here, the other being the Massachusetts case (decision here). In the Mass case, the judge ruled that DOMA violated the 10th Amendment. Yup, the one about the states having power over issues not delegated to the federal government. It’s not used much, although the right wing is trying to go all anti-Obama with it these days.

Nonetheless, there are a couple of issues for Californians here. First, there are currently about 18-20 thousand same-sex married couples in the state. Give or take for folks who married in other states before moving here pre-2008 and for those relationships that have ended since then. So, how does this ruling affect us here?

Well, unfortunately, this federal court decision really doesn’t affect us at all. In theory, the ruling only covers Massachusetts for the time being. The case was brought on behalf of the state, and unless and until it moves up through the 1st Circuit and possibly to the Supreme Court, the case only has persuasive precedential value. For now, DOMA is still valid in California.

That being said, there are still many ways to challenge DOMA, and this is a big first hurdle of getting a federal judge to call it for what it is: clearly unconstitutional. We should see additional lawsuits challenging DOMA from a variety of legal fronts over the coming months and years.

Of course, that Prop 8 decision will also play a major role in all this. The end game is, of course, for universal marriage equality, but the legal doors on the way there are slowly and steadily opening.

But this flows both ways. While these twin decisions are not binding on Judge Walker in any way, they can serve as helpful points of logic for his decision. While much of this does not apply to the Prop 8 case (such as the tenth amendment claims in the Mass. case), but the equal protection logic could put down some stepping stones for Judge Walker.

I’d also recommend cruising on over to the Rachel Maddow Show’s website for an interview with Martha Coakley about the decision as well as an interview with Tobias Wolff, President Obama’s campaign advisor for LGBT issues<a

134 Comments July 9, 2010

No Rational Basis

by Brian Leubitz

I’ve been trying to keep abreast of the closing arguments, hitting refresh on several different websites. Through all of this, I have tried to at least, on occasion, take a step back to be as objective as possible. I was always something of a skeptic. After all, much of our judiciary has been appointed by Republicans. It just seemed like the logical conclusion of all this was some sort of temporary victory for Maggie Gallagher’s team. However, all that being said, I am now coming to the conclusion that our odds really aren’t that bad. And in many ways, the real legal reach would be to not overturn Prop 8.

That isn’t to say that Prop 8 will be overturned by the Supreme Court. The Roberts court has been known to make a few reaches of legal logic in the past, and a decision favoring Cooper’s case would not really shock anybody. But, the case that the legal team, headed by Olson and Boies, has built here is really quite solid.

As Rick noted, Judge Walker spent much of the day trying to get a legally valid point to emerge from Cooper’s mouth. But, when it comes down to it, this is the heart of their case:

The legislative process involves setting priorities, making difficult decisions, making imperfect decisions, and approaching problems incrementally. That process is what is at work in this state.
And it’s at work elsewhere in this country. And as the court…said, there is a debate about the morals, the practicalities, and the wisdom of this issue that really goes to the nature of our culture. And the constitution should allow that debate to go forward among the people.

In other words, what Cooper is arguing here is that despite how wrong Prop 8 might be, it should still stand. He has essentially given up on arguing that Prop 8 is actually accomplishing some valid purpose. Instead, he is relying on the “rational basis” test to argue that the state legislative authority allows Prop 8 as some sort of valid exercise because the state might have some sort of “channeling” power towards marriage. (Who exactly they are channeling remains an open question. Because, I’m pretty sure I will not be channeled anywhere.)

He doesn’t bother to claim that this is a good idea, or a just idea. Rather, it simply a “rational basis” to legislate from.

Trouble is that, quite simply, it is not a rational basis. I don’t think I can say it any better than Ted Olson:

So how does preventing same-sex couples from getting married advance the interest or protect the interest of procreation? They are not a threat to us. What is one single bit of evidence if you accept the channeling function if you accept the right that the State of California has the right to do that and I do not this is an individual constitutional right and every Supreme Court decision says it’s the right of the person. It’s not the right of the State of California to channel us into certain activities or in a certain way.

There’s a long way to go folks, but today was a good day. Even if we lose at the Supreme Court, this case has been a valuable exercise for the nation.

91 Comments June 16, 2010

Expect More of the Same

by Brian Leubitz

First, I apologize for my absence over the past few weeks, it’s been a hectic time with the June primary election. With that gone, I had a bit of time to go over the responses to Judge Walker’s questions, much like some of my fellow Trial Trackers did in the comments to the original post.

First, let’s get this one out of the way: don’t expect anything new. By definition, closing arguments are something of a summary of what’s come before. What you see in closing argument is each side pressing their advantages, and this case is no different. Keep on reading… (more…)

24 Comments June 15, 2010

Laura Bush: Gay Marriage Is Coming

by Brian Leubitz

Former First Lady is going around on a book tour, touting how sane and normal she is. And, compared to her husband and his administration, I guess she is. And apparently gay marriage is one of the areas of dispute between the two:

King: “So would that be an area where you (and George) disagree?”
LB: “I guess that would be an area that we disagree. I understand totally what George thinks and what other people think about marriage being between a man and a woman, and it’s a real reversal … to accept gay marriage.”
King: “But you do?”
LB: “But I think we could. I think it’s also a generational thing.”
King: “You think it’s coming?”
LB: “Yeah, that (it) will come.” (hat tip to Dallas Voice)

She’s right, of course. That’s why you are seeing a “new generation” of younger Republicans, think Meghan McCain, openly supporting marriage equality. Gay-bashing is so ten years ago, don’t you know we’re all the rage now?

Of course, it’s nice to rainbow wash the Bush administration’s hateful efforts by throwing Laura Bush out there as a symbol of moderation. However, when it comes down to it, George W Bush and Karl Rove cynically used our personal lives as a way to scare voters. And meanwhile, as one Republican in Alabama is busy denying that he ever believed in evolution, don’t expect that the days of our community being used as a scapegoat are over. Sure, we’re used more sparingly, and perhaps only regionally, but it’s real. We desperately need to win an election to show that these practices are no longer welcome.

Book it now: California, 2012. We’re going to repeal Prop 8.

58 Comments May 12, 2010

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