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Archives – October, 2012

Justice Department urges Supreme Court to grant Edith Windsor’s DOMA case after Second Circuit ruling

By Scottie Thomaston

As anticipated after the Second Circuit’s ruling in Windsor v. USA striking down Section 3 of the Defense of Marriage Act as unconstitutional and applying a heightened form of judicial scrutiny to laws that classify on the basis of sexual orientation (along with defining gays and lesbians as a “quasi-suspect class” which allows laws that discriminate against them to be regarded suspiciously), the Justice Department has filed a supplemental brief in the Windsor case at the Supreme Court, telling the Court that the Second Circuit’s decision is the most appropriate one for review.

The Justice Department points out that the Court has the authority to review the Second Circuit’s decision just as it does their petition before judgment at the appeals court that they had previously filed. They write, “[a]lthough the government’s petition in this case was filed as one for certiorari before judgment, the issuance of the court of appeals’ intervening decision does not deprive the Court of the authority to grant it.” They contend that, “[i]f granted, the writ of certiorari would still be directed to the court of appeals, and this Court could still exercise jurisdiction pursuant to 28 U.S.C. 1254(1) (“Cases in thecourts of appeals may be reviewed by the Supreme Court by writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree.”). This Court’s rules do not establish any additional requirements, other than inclusion of the court of appeals’ opinion (attached as an Appendix to this brief), for a petition for a writ of certiorari after judgment.”

In its petition for certiorari before judgment, the Justice Department had asked the Court to hold onto their petition and grant it in the event no other case challenging Section 3 of DOMA is seen as an appropriate vehicle. In this filing, the Justice Department suggests a different course, writing, “Although the government initially recommended that its petition be held pending the consideration of petitions in other cases raising the same issue, the court of appeals’ decision materially strengthens this case as a vehicle for resolving the constitutionality of Section 3 of DOMA.”

The Justice Department suggests that the discussion of the level of scrutiny to be applied to laws that classify on the basis of sexual orientation (for a more detailed explanation of the concept of heightened judicial scrutiny see here) in the Second Circuit would benefit the Court’s analysis. They point out that the pending petition in the Gill case asks the Court to review a decision by the First Circuit, which had to contend with binding precedent. The Second Circuit has no precedent deciding the level of judicial scrutiny that should be applied in these cases, therefore they could fully analyze the question. The Department writes this is particularly important, “In particular, the court of appeals in Massachusetts [Gill] was constrained by binding circuit precedent as to the applicable level of scrutiny, No. 12-15 Pet. App. 10a, whereas the court of appeals here was not so constrained, and its analysis may be beneficial to this Court’s consideration of that issue.”

They write that in the event the Court decides to deny the Windsor petition, it should grant the petition for certiorari before judgment in Golinski, another case where a lower court applied a heightened level of judicial scrutiny.

h/t Kathleen for this filing

12-307 #5

23 Comments October 26, 2012

Debunking NOM’s Bigotry/Biology Ad

By Matt Baume

Well the National Organization for Marriage has a new video and it’s full of the usual crazy claims.

Of course, we debunked all this during the Prop 8 trial, so it’s easy to call call them out. Starting with their comparison of same sex couples to drug dealers and pedophiles.

What do loving, committed gay and lesbian couples have to do with drug dealers and pedophiles? Nothing. This is just demeaning people for no reason. Words like these do serious long-lasting harm, particularly to gay and lesbian kids.

And then there’s this: “natural marriage.”

This term is nonsense, because marriage doesn’t come from nature. It comes from people. It’s a set of laws. During the trial, Harvard History Professor Nancy Cott testified, “the state is involved in granting …a status to that institution that no informal marriage has ever approximated.”

Not to mention, with this term, NOM calling gay people unnatural. It’s just more name-calling.

It’s not surprising that NOM gets their terminology so wrong, because their definition of marriage is defies reality. Here’s what NOM thinks marriage is:

“Natural marriage creates children.”

No, sex creates children. There’s a difference between sex and marriage. You don’t have to be married to have children. And you don’t have to have sex to be a parent.

“It best raises children.”

No. This has been debunked by one medical organization after another. NOM knows that this claim isn’t true.

“It’s protects women. It civilizes men.”

At least, to NOM’s credit, they’re equally sexist against both men and women. This is a hard claim to debunk because it doesn’t even make sense. But what NOM seems to be saying is that if gay people can get married, then suddenly men will start impregnating women and then leaving to go commit crimes. This is offensive to just about everyone, but most of all to reality.

“It lowers crime, poverty, and welfare.”

That’s actually true. Marriage has a stabilizing social influence. But not just for straight couples — the same holds true for gays and lesbians. If NOM really cared about reducing crime, poverty, and welfare, they would want us to have the freedom to marry.

So, what have we learned? That an organization calling itself “The National Organization for Marriage” apparently doesn’t know what marriage is or how it works.

“Same-sex marriage offers no benefits for society as a whole.”

This is another crazy claim that we could spend all day debunking, because as everyone knows — including NOM — there are thousands of legal rights and ancillary benefits that accompany marriage. And the last time we checked, gay and lesbian couples are a part of society.

“Same-sex marriage merely validates sex partners.”

It takes a lot of nerve to make such an offensive statement. NOM’s talking about families here. They’re dismissing loving, committed couples as “mere sex partners,” which goes beyond civil debate and enters the realm of invasive personal attack. It’s unacceptable.

“We know, statistically, that natural marriage creates the best possible family for children.”

This isn’t true either. NOM may claim to know this “statistically,” but they don’t cite any actual data. That’s because those statistics simply don’t exist. They’re made up.

“Your business and taxes fund homosexual relationships.”

This is another weird claim. Businesses are aren’t funding anyone’s relationships. It’s true that in some states, companies may have to do business with gay couples. But that’s has nothing to do with marriage.

And as far as taxes go, gay and lesbian couples have to file extra returns and pay extra taxes because the government won’t recognize those relationships.

“The law already treats everyone equally. Every citizen can marry someone of the opposite sex.”

That’s cute, but NOM knows that’s not really what’s at issue here. Yes, everyone can marry someone of the opposite sex. But only straight couples have the freedom to marry the person they love. Only straight couples can form a complete legal family unit with the person of their choosing. Gay and lesbian couples are out of luck. That’s not treating people equally.

And this is the same argument that people made for racist anti-miscegenation laws. “These laws treat people equally,” the argument went, “because everyone is free to marry someone of the same race.” That didn’t make sense in 1967, when the Supreme Court ruled in Loving v. Virginia. And it doesn’t make sense today.

“But only the union of one man and one woman should be promoted because it alone is the foundation of a civilized society.”

More name-calling: now NOM is saying that gay and lesbian couples aren’t part of civilized society. That they’re uncivilized. That’s bad enough, but look what comes next.

“That’s not bigotry. That’s biology.”

So let’s see:

NOM just compared an entire minority group to criminals, called them unnatural, said they’re less fit to raise children, demeaned their relationships, and called them uncivilized.

And then they say that’s not bigotry?


19 Comments October 26, 2012

More news on marriage equality ballot problems in Maryland

By Jacob Combs

Yesterday, I wrote about an NBC Washington News4 report that some absentee ballots being sent to Maryland voters are missing the page which contains all the state ballot measures up for a vote this November, among them Question 6, which would affirm marriage equality legislation passed earlier this year.  As I wrote:

“Ross Goldstein, deputy administrator of the Maryland Board of Elections, confirmed that a number of absentee ballots in Montgomery County and Prince George’s County are indeed missing the second page, but told News4 that Maryland is investigating the issue and believes the number of incorrect ballots is small.  Maryland residents who have received an incorrect ballot should contact their local election board: in Prince George’s County, the number is 301-430-8020.  In Montgomery County, it’s 240-777-8550.”

Yesterday evening, Metro Weekly reported on the matter, including in its article the following statement from Josh Levin, the campaign manager or Marylanders for Marriage Equality:

“We’re looking into this matter and taking it seriously.  Every registered voter must have the same opportunity to participate in the electoral process. We’re confident the board of elections will get to the bottom of this quickly and resolve it.”

The Maryland campaign also emailed voters instructing them to call 800-222-8683 to request replacement ballots should they receive one that contains errors or omissions.  Metro Weekly went on to mention another ballot issue from Silver Spring, first reported by WUSA9 regarding a problem with the Spanish-language summary of Question 6:

In the Spanish summary, one word was mistranslated to read that the measure would amend current law, which its says already allows same-sex couples to obtain marriage licenses. The language would seem to imply that a “no” vote would allow marriage equality to continue to be law in Maryland, when in fact it would prevent gay and lesbian couples from being able to marry.

Goldstein apologized for the translation error, but noted that the error was only in the explanation. He told WUSA that the actual ballot language for the measure was correctly translated into Spanish.

Although none of these issues look widespread or extremely significant, it’s important to follow them as we move closer to the election.  If you live in Maryland or know of anyone having a problem with their ballots, let us know in the comments!

9 Comments October 26, 2012

UPDATED: President Obama endorses marriage equality ballot measures in Washington, Maine and Maryland

By Scottie Thomaston and Jacob CombsGoal Thermometer

Updated as of 6:00 pm Eastern to reflect Maine endorsement and 8:05 Eastern to reflect Maryland endorsement

The Obama campaign made a flurry of announcements today pertaining to the four marriage equality ballot measures that will appear on the November ballot, formally endorsing Referendum 74 in Washington, Question 1 in Maine and Question 6 in Maryland, all of which would grant equal marriage rights to same-sex couples.  The campaign had already spoken out in April against Minnesota’s Marriage Amendment, which would amend the state’s constitution to forbid marriage equality.

In Washington, the Seattle Post-Intelligencer reported the following statement today from Paul Bell, the Washington Press Secretary for Obama for America:

“While the president does not weigh in on every single ballot measure in every state, the president believes in treating everyone fairly and equally, with dignity and respect. Washington’s same-sex marriage law would treat all Washington couples equally, and that is why the President supports a vote to approve Referendum 74.”

That statement matched one noted in the Portland Press Herald and made by Michael Czin, OFA’s Northeast regional press secretary, which began with the same language and then went on to read, “The president believes same-sex couples should be treated equally and supports Question 1.”  Tonight, via email, Maryland’s marriage equality campaign also announced the president’s endorsement with the following quote from Obama campaign spokesman Frank Benenati: “Maryland’s same-sex marriage law would treat all Maryland couples equally, and that is why the president supports Question 6.”

In April, Metro Weekly covered the following statement made by the campaign regarding the Minnesota Marriage Amendment by OFA Minnesota Communications Director Kristin Sosanie:

“[T]he Minnesota ballot initiative … would single out and discriminate against committed gay and lesbian couples — and that’s why the President does not support it.”

President Obama has weighed in before against efforts to ban marriage equality, most recently in North Carolina against Amendment 1. And earlier this year, of course, he announced his personal support for the right of same-sex couples to marry. But today’s announcements marks the first time he has announced support for an initiative to approve marriage equality.

Washington United for Marriage’s campaign manager, Zach Silk, issued the following statement today regarding the president’s endorsement:

“President Obama support for marriage reflects what’s happening in WA and across the country. As more people, and more voters, realize that only marriage fully protects and supports families, they move towards supporting marriage for same-sex couples and approving Referendum 74. “We’re now in the home stretch, mobilizing thousands of volunteers with the largest ground game in Washington ballot history. We feel momentum is on our side, and having the President weigh in on approving Referendum 74 puts an extra gust of wind in our sails.”

These announcements by the Obama campaign demonstrate the President’s confidence that marriage equality is a winning issue for him and for Democrats, even in a close presidential race.  That alone is a sign of great progress and a mark of just how significantly the politics surrounding marriage equality has shifted.

What you can do to pass marriage equality in Washington:

Goal Thermometer

1. Contribute to the campaign to approve marriage equality in Washington, via ActBlue.

2. Volunteer to make calls to voters in Washington.

3. Sign up to travel to Washington and help get out the vote! Courage Campaign is arranging out-of-state caravans and travel assistance is available.

25 Comments October 25, 2012

Where things stand with Prop 8 and DOMA at the Supreme Court

By Scottie Thomaston

We have been paying close attention to the DOMA and Prop 8 cases at the Supreme Court, as well as Arizona’s domestic partner benefits case. Some of the cases were ready for a conference on September 24, where the Court would decide whether to take any of them up for briefing, argument, and full review this term. As we’ve written, the cases were held and nothing was decided at that conference or in the weeks after.

The responses to the various petitions that were due have been filed with the Supreme Court. Parties can reply to these responses, but they are not required to do so. It seems pretty likely that we can expect replies, though.

The next conference is Friday, October 26. It is unlikely that the Court would deal with DOMA or Prop 8 at Friday’s conference (and indeed SCOTUSBlog’s ‘Petitions to Watch’ for the conference don’t list those cases.)

The Court created its list for the October 26 conference on October 3. It was completed on October 10; this is the list for the types of cases that would include the ones we are watching. None of the cases we are paying attention to are on the new list.

There is a conference November 2 but it seems unlikely the Court would take a look at these cases at that one.

It is more possible that the cases might be taken up at the November 9 conference. The list of cases for that conference was started yesterday.

After that is the November 20 conference. The list for that conference will be created beginning October 29 and completed November 5. Given recent developments – and the fact that November 20 is after the election, among other reasons – it seems most plausible the Court would decide which of these cases to take up at the late November conference. This would mean we could learn which cases the Court will hear the next day (Wednesday the 21st) or the following Monday, the 26th.

Given that Windsor is one of the cases in front of the Court and it reached them through petitions for certiorari before judgment at the appeals court, and there is now a judgment at the appeals court (along with promises by the Justice Department and the Bipartisan Legal Advisory Group (BLAG) to take further action in light of the Second Circuit decision) it’s unclear if there would be any sort of delay in terms of any new filings in the case. But if the cases aren’t taken up until November 20, that could allow enough time to pass anyway.

Whichever cases the Court takes up, it is expected that oral argument would be in February or March, and a decision on the constitutionality of Section 3 of DOMA (as well as, possibly, Prop 8 ) would be issued in June 2013. If the Court denies the Prop 8 petition, after some legal housekeeping is completed at the Ninth Circuit, Prop 8 would be eliminated.

h/t Kathleen for some of this information

23 Comments October 25, 2012

Anti-gay comments and absentee ballot problems in Maryland

By Jacob Combs

Over the weekend, the anti-marriage equality group Maryland Marriage Alliance held a panel discussion on Question 6, the marriage equality initiative that will appear on the November ballot, and inflammatory comments made by one of the participants has been making waves in the state this week.  At the event, Pastor Robert Anderson of Colonial Baptist Church offered a fire-and-brimstone diatribe against equal marriage rights and gays and lesbians in general:

“The Scriptures in Leviticus 18:22 — you know what that says, that a man is not to lay down with another man; if they do that, it’s an abomination. But there is one verse I really wanted to drive home and then I’ll stop, but that’s in Romans Chapter 1. And it’s the very last verse — as you know, Paul addresses this. Listen to the last verse: “Knowing the righteous judgment of God that those who practice such things are deserving of death. Not only do the same” — but watch this — “for those who also approve of those who practice these things.  If we don’t vote against it, then we are approving these things that are worthy of death!”  (You can watch the video of Anderson’s comments here, via Jeremy Hooper.)

Also attending Maryland Marriage Alliance’s event last weekend was Greg Quinlan, president of the group Parents and Friends of Ex-Gays and Gays, an ex-gay organization that advocates for gays and lesbians to change their ‘lifestyle’ and return to heterosexuality.  But most significantly, seated directly between Anderson and Quinlan was Derek McCoy, Maryland Marriage Alliance’s executive director.  What that means is that Pastor Anderson isn’t on the fringe of the anti-marriage equality or anti-gay movements in Maryland, he’s at the center of them–literally seated at the same table with the most important figure of the campaign against Question 6.

When asked about the comments, Derek McCoy responded with the following statement:

“Any attempt to imply that Dr. Anderson’s reading of scripture was a call to harm gays and lesbians is false and serves as a distraction from the real issues of this campaign.  From the beginning, we have been deeply committed to civility and honor the value of everyone’s human rights.  We continue to deplore violence or bullying against any person and or group of people on either side of this issue. … There are people of good will on both sides of this issue. … Supporting traditional marriage does not make anyone anti-gay.”

This is absolutely incredible, as in difficult to believe.  The biggest problem with Anderson’s comments isn’t that they could be construed as a call to violence against gays and lesbians–when I first read them, that thought didn’t even cross my mind.  The problem is that anyone would think such violent language is acceptable to use in a political campaign even in the abstract.  Regardless of whether they constitute a literal call to arms, Anderson’s words are undoubtedly a call to hate.

And that’s where McCoy’s response truly comes across as hollow and craven.  You cannot say your campaign is “deeply committed to civility” when it sits down at the table with anti-gay pastors who rail against homosexuality as a sin deserving condemnation, either earthly or not.  It’s one thing to advocate for a ‘traditional’ definition of marriage as a union of the two sexes.  It’s another to attack gays and lesbians based entirely on a selective reading of scripture.  Pastor Anderson’s words are the true “distraction” from the “real issues of the campaign,” as McCoy puts it–not the response of marriage equality advocates.

In other news out of Maryland, NBC Washington’s News4 reported Tuesday that some absentee ballots sent to Maryland voters are missing an entire page, one that includes the state’s ballot initiatives, among them Question 6.  Ross Goldstein, deputy administrator of the Maryland Board of Elections, confirmed that a number of absentee ballots in Montgomery County and Prince George’s County are indeed missing the second page, but told News4 that Maryland is investigating the issue and believes the number of incorrect ballots is small.  Maryland residents who have received an incorrect ballot should contact their local election board: in Prince George’s County, the number is 301-430-8020.  In Montgomery County, it’s 240-777-8550.


11 Comments October 25, 2012

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