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Archives – October, 2012

Strikeout #8 for DOMA

By Matt Baume

Another ruling against the Defense of Marriage Act marks the anti-gay law’s eighth consecutive loss in court. Also this week, a former Prop 8 supporter releases a new video explaining his change of heart. And polling on marriage in key states remains very close just days out from the election.

The federal Defense of Marriage Act has struck out — again. The Second Circuit Court of Appeals has ruled in the case Windsor v. United States that DOMA violates the US Constitution.

The court also affirmed the use of heightened scrutiny in examining laws that target gays and lesbians. This is a huge victory, because it means additional protection against discriminatory laws.

The ruling cites AFER’s case against Prop 8, pointing out that “the argument that withdrawing the designation of ‘marriage’ from same-sex couples could on its own promote the strength or stability of opposite-sex marital relationships lacks any such footing in reality.”

This marks the third court of appeals to strike down laws that prevent the government from recognizing gay and lesbian relationships. It’s DOMA’s eighth overall loss in court. And it brings the total number of federal judges who have ruled against marriage bans to 34.

Also this week, new polling data out from Gallup shows that 3.4 percent of Americans identify as LGBT. Among the groups more likely to identify as LGBT are non-white Americans, young people, and among those with low income and education.

Turning to states, Minnesota is still locked in a dead heat over a proposed marriage ban. The measure has 47 percent support, up one point from a survey last week.

But we’ve picked up a powerful new ally: David Blankenhorn, who just three years ago testified against the freedom to marry in the Prop 8 case. Here’s the former Prop 8 supporter talking to the campaign in Minnesota.

“There are powerful reasons to believe that we will be a better society if we include gay and lesbian people and their relationships as full and equal parts of society.”

Polling looks better in Maryland, where a Washington Post survey this week shows support for marriage equality at 52% to 43% opposed.

And in Washington, polling has us ahead among registered voters, 56 to 36 percent.

Time is running out to push for marriage in the leadup to the election. Visit to learn more and get involved in a state near you. Maine, Maryland, Minnesota, and Washington will all vote on marriage in just two weeks.

2 Comments October 23, 2012

Polling continues to hold positive signs for marriage equality in Maryland

By Jacob Combs

Maryland’s marriage equality ballot initiative, Question 6, would pass if the November election were held today, according to a new Washington Post poll that found 52 percent of likely voters planning to vote for the measure and 43 percent planning to vote against it.  Thirty-nine percent of respondents said they were strongly in favor of the measure, while 36 percent were strongly opposed.  Five percent of likely voters had no opinion, and the poll had a margin of error of four points.

Digging down into the poll’s breakdowns, Question 6 enjoys more support from women (who favor it by a 54-40 percent margin) than men (whose margin is 51-46 percent).  White voters support it by a 56-39 percent margin, with 49 percent of non-white voters planning to vote for Question 6 and 47 percent planning to vote against.  Among African-American voters, the margin is 53 percent opposed to 42 percent in favor.

Not unexpectedly, the Post poll found a wide discrepancy amongst different age groups: 64 percent of likely voters between 18 and 39 support Question 6, compared with 51 percent of 40-64 year olds and just 40 percent of voters over 65.  The poll also found a not surprising split between respondents based on party identification, with 58 percent of Democrats supporting the measure and only 32 percent of Republicans doing so.  Perhaps significantly, however, independents favored it by an even wider margin than Democrats, with 62 percent support and only 34 percent opposition.

Last Friday, Prince George’s County Executive Rushern Baker told a radio host that he supports Question 6, marking yet another prominent African-American in the important Baltimore-Washington area county to come out in favor of the measure.  Prince George’s County, which has a large African-American population, will undoubtedly be important to the fate of Question 6 in November.  As Metroweekly noted, Baker is the 17th elected official in the county to support Question 6, and the 30th African-American elected official in the state to do so.

Also last week, Marylanders for Marriage Equality released a video featuring several African-American clergy members who support Question 6 that addressed the law’s explicit protections for religious institutions that do not agree with marriage equality.  You can watch that video, as well as the final video from the marriage equality website The Four, which focuses on Maryland, below. (more…)

12 Comments October 23, 2012

Updates on two pending challenges to Section 3 of DOMA within the Second Circuit

By Scottie Thomaston

At the Second Circuit last week, Section 3 of the Defense of Marriage Act was struck down under equal protection principles in Windsor v. USA. Notably, all of the states under the Second Circuit’s jurisdiction have legalized same-sex marriage. The court in this case also applied a heightened form of judicial scrutiny – called intermediate scrutiny – to cases in which gays and lesbians are singled out as a class. The decision to strike down Section 3 of DOMA and to apply heightened scrutiny are now precedent at the Second Circuit, where previously the question of the level of scrutiny for classifications based on sexual orientation had not been decided. The losing side could ask the full panel of Second Circuit judges for a hearing en banc to rehear the challenge, or the Supreme Court could stay the Second Circuit’s decision if it decides to take up one of the many DOMA cases.

But for now the case is having an impact on some of the other challenges to Section 3 of DOMA within the Second Circuit. In Roe v. Empire Blue Cross Blue Shield, a lesbian employee of a Catholic hospital is suing for her spousal benefits. Recently the briefing schedule was set in the case. Now, the plaintiffs have noted to the district court judge their intent to file a preliminary injunction declaring that the defendants can no longer deny the plaintiffs their spousal benefits, following the Second Circuit’s decision in Windsor v. USA. The plaintiffs have asked for a pre-motion conference on the injunction and the judge will hold that conference November 1. If the preliminary injunction is granted, it means that the plaintiffs will be allowed to receive their spousal benefits while the case is proceeding. Usually preliminary injunctions aren’t granted unless the plaintiffs can show a likelihood of success on the merits of the case.

Another challenge to Section 3 of DOMA is at the Second Circuit. Pedersen v. Office of Personnel Management is on appeal there with opening briefs due in late November. The plaintiffs in that case had initially asked the court to expedite their case and hear it alongside Windsor but they were refused the request. It would seem to make sense that the plaintiffs in this case would file a letter asking the court to take notice of the Windsor opinion, but it’s unclear if anything beyond that would happen.

Both Windsor and Pedersen are awaiting a Supreme Court conference to determine whether the Justices will hear challenges to Section 3 of DOMA. Both cases were sent to the Court before judgment at the court of appeals. The final responses to the petitions in challenges to Section 3 of DOMA were due to be filed by the Justice Department and plaintiffs in various cases this past Friday. There was no conference on Friday – the next will be October 26. Orders from that conference are expected to be released the following Monday, but as usual, no one is sure if any of the DOMA cases, the Prop 8 case, or the Arizona domestic partner benefits case will be taken up at Friday’s conference.

h/t Kathleen for this filing

Letter in Roe noting the opinion in Windsor:7:12-cv-04788 #20

2 Comments October 22, 2012

Ted Olson suggests that the Supreme Court will take up Prop 8, DOMA cases

By Scottie Thomaston

The Prop 8 case is now awaiting a conference at the Supreme Court, where they will determine whether to take up the case or decline to review the Ninth Circuit’s decision striking down Prop 8 as unconstitutional on fairly narrow grounds. The initiative sponsors of Prop 8 petitioned the Court to review and overturn the Ninth Circuit’s decision and the opponents of Prop 8, led by Ted Olson and David Boies, responded to the petitions by opposing review.

In comments at the Commonwealth Club in San Francisco, Ted Olson suggested that the Supreme Court will review the case:

I think there’s a pretty good chance that they’ll take it,” Olson told an evening forum at the Commonwealth Club.

The Supreme Court grants review of only a small percentage of the thousands of appeals submitted to it each year.

But Olson said he thinks the justices may want to review the California same-sex marriage ban so that they can decide related claims in that case and in federal Defense of Marriage Act challenges at the same time.

The legal team had argued that the Supreme Court should not grant review because there was no “circuit split” on the issue, the case presented a unique issue of ‘legal standing’, and if granted, the Court may be forced to affirm the Ninth Circuit’s decision on broader grounds if it were to disagree with the Ninth Circuit’s narrow holding but not the outcome.

Olson said:

“We would be happy if the court refuses to hear the case, but not as happy as we would be if we had established this as a constitutional right for all people in the United States[.]”

Asked about the tougher road to get the Supreme Court to strike down a state marriage ban versus Section 3 of the Defense of Marriage Act, the federal definition of marriage, Olson said:

“I’m not too worried about that,” Olson answered, “because at some point we do have the 14th Amendment” federal constitutional guarantees of equal protection and due process.

“There is a floor, and states, whatever their rights are, can’t go beneath that floor,” he said.

The Prop 8 case is awaiting a decision on whether the Supreme Court will hear the case. The next conference is Friday, October 26. Orders from that conference will be released the following Monday, but there is no way to know which cases will be taken up at that conference until after the order list is released.

38 Comments October 22, 2012

Anti-marriage equality strategist Frank Schubert backs off of argument his own ads make

By Jacob Combs

Frank Schubert was one of the media masterminds behind the successful campaign to get Proposition 8 passed in California in 2008, and he’s back this year working against marriage equality in all four states that will consider the issue during the November’s election.  Schubert’s ads often point to the grave danger that marriage equality poses to the well-being of children (consider, for example, the infamous ‘Princess’ ad from the Prop 8 campaign) and marriage equality opponents have used the scare tactic of this supposed threat to children over and over.

But as ThinkProgress points out, Schubert admitted in a recent interview with radio host Michelangelo Signorile that he cannot defend the arguments his own ad makes about the danger marriage equality poses to children.  When asked by Signorile why he doesn’t campaign against adoption rights for same-sex couples and focuses only on marriage rights (following the logic of Schubert’s anti-gay ad to the conclusion that adoption laws allowing same-sex couples to raise children would be as much of a danger to those children as marriage equality), Schubert had difficulty defending himself, as ThinkProgress’s transcript of the exchange shows:

SCHUBERT: I will say that the issue here is not about adoption or whether gay couples love their children or should be able to have children. They have that right. I’m not objecting to it. What I’m objecting to is redefining marriage to accommodate that desire. […]

SIGNORILE: You keep arguing that children do best in a heterosexual marriage…

SCHUBERT: This is not a controversial statement… I’m saying children do better with a mother and a father…

SIGNORILE: But you have a sister with children — who is a lesbian — and you should be trying to stop her from having children then.

SCHUBERT: I’m not! That’s ridiculous. You’re making a silly argument. Having children, by itself, is not a reason to redefine marriage. It’s just that simple.

This brief exchange undermines the entire contention of Schubert’s ads that allowing gay and lesbian couples to marry harms children and points to the odd semantic specificity of Schubert’s supposed explanation for his anti-gay beliefs.  In essentially admitting that adoption for same-sex couples is fine but that the ‘redefinition’ of marriage harms children, Schubert reveals that the concern for children’s well-being upon which his ads are supposedly based cannot possibly be the real reason he focuses on opposing marriage equality.

So what is the real reason, then?  It’s probably money.  As ThinkProgress notes, Schubert has received almost $3 million for his work with NOM against marriage equality in Maine, Maryland, Minnesota and Washington, along with an addition $1 million from his work in North Carolina earlier this year.  For Frank Schubert, it’s not really about doing what’s best for kids.  It’s about following the anti-gay money wherever it goes, and these days, that money is all flowing to oppose marriage equality as a so-called ‘redefinition’ of the institution of marriage.

7 Comments October 22, 2012

Pro-Prop 8 witness David Blankenhorn asks Minnesotans to vote no on amendment to ban marriage equality

By Scottie Thomaston

In Minnesota, there is an amendment to ban same-sex marriage on this November’s ballot. Minnesota, of course, already does not allow gays and lesbians to marry. This amendment will get a vote alongside initiatives in other states to affirm the right of gays and lesbian couples to marry.

Now, David Blankenhorn, of Prop 8 fame, is joining those asking Minnesotans not to enshrine this amendment into their state constitution. Blankenhorn was an expert witness in the Prop 8 trial, testifying against same-sex marriage. Eventually in the trial, he conceded that we would be “more American” if gays and lesbians could get married.

When North Carolina put its amendment banning same-sex marriage on the ballot, Blankenhorn spoke out against Amendment 1, asking North Carolinians to vote against it. Later, he announced in the New York Times that he now supports marriage equality.

Blankenhorn appears in a video opposing the Minnesota amendment, explaining how he formerly opposed marriage equality and his evolution on the issue:

15 Comments October 19, 2012

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