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Archives – November, 2012

Illinois legislature may consider marriage equality bill in January

By Jacob Combs

The Illinois General Assembly could vote on a marriage equality bill as early as January 2013, according to a press release issued yesterday by Lambda Legal.  Along with the ACLU, Lambda is representing several same-sex couples in the state seeking equal marriage rights in the companion cases of Darby v. Orr and Lazaro v. Orr; yesterday, the plaintiffs in those cases met with state legislators to urge a vote on the bill, HB 5710, also called the Religious Freedom and Marriage Fairness Act.  From the release:

“We want our lawmakers to know how important this is to our family,” said Anne Dickey, plaintiff in Darby v. Orr. “Every day, our child feels different from his friends because Laura and I aren’t allowed to get married. Whether it is through the courts or the legislature, we need the freedom to marry.”

“Our family, our love and our commitment deserves the recognition and dignity of marriage,” said Richard Rykhus, a plaintiff in Lazaro v. Orr. “We believe that Illinois law should recognize fully the family that we have built together.”

Since Lambda Legal and the ACLU of Illinois filed their suits, both the Illinois Attorney General and the state attorney for Cook County (where the cases were filed) have publicly stated that they support marriage equality.  Cook County Clerk David Orr, the named defendant in the cases, also supports marriage equality and has declined to defend the state’s marriage laws.  In July, two other county clerks filed motions with the court to defend those laws, and a judge heard arguments in September from an anti-gay group called the Illinois Family Institute seeking to intervene in the case.

Support for marriage equality in Illinois has increased by 10 points in just two years, a poll released in late September showed, with 44 percent of respondents backing equal marriage rights.  Equality Illinois, one of the state’s largest LGBT rights organizations, announced yesterday that it is opening new offices in the suburban Chicago area and has appointed two new field directors to expand the group’s outreach programs in the state.

3 Comments November 29, 2012

Rep. Jackie Speier (D-CA) introduces Congressional resolution targeting anti-LGBT ‘conversion therapy’

By Scottie Thomaston

Today, Rep. Jackie Speier (D-CA) is introducing a ‘Stop Harming Our Kids’ resolution to fight anti-LGBT ‘conversion therapy’ – efforts to ‘change’ a person’s sexual orientation or gender identity/expression. Conversion therapy has been condemned by all the reputable mental health organizations, and the psychiatrist who wrote the study backing the practice has since repudiated it and apologized.

California has since passed a law banning conversion therapy and Governor Jerry Brown signed it. (The law is facing court challenges from organizations that practice this form of ‘therapy’.) And yesterday, the Southern Poverty Law Center announced a lawsuit against one organization that practices conversion therapy, alleging fraud.

At a press conference in Washington DC this morning, Rep. Speier will discuss “the resolution and her efforts to investigate whether taxpayer funds have been used to reimburse therapists for this discredited and ineffective practice through the federal Medicaid or TRICARE healthcare programs” according to a press release received by Prop 8 Trial Tracker.

The text of the resolution has not yet been released, but it is inclusive: aimed at curbing efforts to change both sexual orientation and gender identity.

At the press conference with Speier will be survivors of this practice as well as representatives of LCSW, Southern Poverty Law Center, National Center for Lesbian Rights, and Human Rights Campaign (HRC).

32 Comments November 28, 2012

San Francisco asks Ninth Circuit for advance notice regarding Prop 8 decision mandate

By Jacob Combs

Yesterday, Therese Stewart, San Francisco’s Deputy City Attorney, wrote a letter to the Ninth Circuit asking for advance notice “if and when the mandate will be issued in the event the United States Supreme Court denies certiorari in the Perry case.”  This involves a bit of legal intricacy, but essentially the issue is this: if the Supreme Court decides not to hear the appeal of the Ninth Circuit’s decision of the Prop 8 case, the Ninth Circuit’s ruling becomes the final legal say on the matter.  But the circuit court’s ruling doesn’t go into effect the very instant the Supreme Court issues its order denying certiorari in the case; rather, the high court essentially returns the case to the Ninth Circuit for final dispensation in the case.  The circuit court must then issue what is called a ‘mandate,’ or a formal declaration that its decision should go into effect.  (The ruling is currently stayed ‘pending issuance of the mandate.’)

In Stewart’s letter, she outlines two reasons for the City’s request:

“As the Court is aware, this case has generated extremely wide interest.  In prior instances when decisions were issued in this and other cases relating to marriage for same-sex couples, there have been large gatherings, including protestors, in the Civic Center area of San Francisco…. To ensure the health and safety of San Francisco’s residents and visitors, the San Francisco Police Department would be grateful if the Court could provide advance notice of its intention to issue its mandate in this case so that the Department can plan for and deploy an adequate number of officers to the areas where protests are likely to occur.

“Equally important, if the Supreme Court denies certiorari and the Ninth Circuit and the Ninth Circuit issues the mandate, the City anticipates there will be immediate and substantial demand from same-sex couples for marriage licenses and ceremonies…. The logistical efforts the City undertook to accommodate the couples as promptly and seamlessly as possible were substantial.”

Naturally, if the Supreme Court does deny certiorari in the Prop 8 case next week, the first question for everybody will be when same-sex couples can wed again in California.  In the past, the Ninth Circuit has provided advance notice to the media and the public before issuing its decisions, so it looks like there’s a good chance it will grant Stewart’s request to ensure the end of Prop 8 goes smoothly.

Thanks as always to Kathleen for the full letter below, via Scribd.

[scribd id=114688486 key=key-2eo6lia3xcjiusmqshra mode=scroll]

7 Comments November 28, 2012

Prop 8 at the Supreme Court: what to expect at the November 30 conference

By Scottie Thomaston

Back on September 24, the Supreme Court held its first closed-door conference to determine which cases it will take up for full review, and among the cases were several challenges to Section 3 of the Defense of Marriage Act, as well as Hollingsworth v. Perry, the constitutional challenge to California’s Proposition 8. The Court, however, moved those challenges (along with an attempt by Arizona Governor Jan Brewer to deny gay and lesbian couples domestic partnership benefits) to a new conference date twice: first to November 20, then, November 30.

At its conference on November 30, the Court will review the eight petitions for certiorari related to Section 3 of DOMA, as well as Prop 8 and the Arizona Brewer v. Diaz petition. The Justices will vote privately on whether to hear each petition. It takes four votes to grant review of a case (although it takes at least five votes for a majority opinion to finally decide the case after oral arguments and briefing.) The Court will announce the following Monday which cases it will review. There is a slight chance of a miscellaneous order on Friday, the 30th, but that seems unlikely. It is likely the Court would review the constitutionality of Section 3 of DOMA for one main reason: the Court has stated repeatedly that when an appellate court strikes down a federal law with a wide reach, they are inclined to review the lower court’s decision. Two appeals courts, the First Circuit Court of Appeals, and the Second Circuit Court of Appeals, have now struck down Section 3 of DOMA as unconstitutional. House Republicans, tasked with defending the law through the Bipartisan Legal Advisory Group (BLAG) have only filed a petition for review in one challenge to Section 3 of DOMA: the First Circuit’s Gill/Massachusetts set of consolidated cases. The rest were filed either by the Justice Department or the plaintiffs themselves, most of them before judgment at the courts of appeals.

In terms of the challenge to Prop 8, the way forward is less clear. As we wrote on September 24, the day of the first conference, “it seems unlikely that the Court would be ready to issue a broad ruling in the Prop 8 case bringing marriage equality to the nation. It would also seem like a strange move for the Court since the Ninth Circuit explicitly narrowed its ruling to apply only to California, and the legal issue before the Court in its current form is whether California’s withdrawal (through a ballot initiative) of gay and lesbians citizens’ state constitutional rights violates the U.S. Constitution. For that reason, it’s good news if the Court declines to hear the Prop 8 case (and marriages would be able to resume in California); it might not be a great sign if the Court agrees to take up the case.”

Ted Olson and David Boies, representing the plaintiffs in the case, formally opposed Supreme Court review in a filing. The legal team has made several public comments on the pending case, with Olson suggesting most recently that he is unsure whether the Court should hear the case:

Ted Olson, the conservative Washington lawyer who joined David Boies to lead the legal attack on Proposition 8, acknowledges he is torn over whether the Supreme Court should hear the case.

“We won the case, and if they don’t take it, our clients have won. They will be allowed to marry,” Olson said. “But if they take the case, it could lead to a broader victory. We believe gays and lesbians have a constitutional right to be treated equally. And if it is a constitutional right, you shouldn’t have to try to win at the ballot box in every state.”

Boies has suggested that there are “more than five votes” to strike down Prop 8.

And Professor Nan Hunter, among others, has speculated that the Court may hold the Prop 8 case until it reaches a final decision on the constitutionality of DOMA. Once the final DOMA opinion is released, the Court could send the Prop 8 case back to the Ninth Circuit to take a new look in light of the legal guidance laid out in the Court’s opinion. If that happens, there would be no announcement on the fate of the Prop 8 case until at least June 2013.

The Court could also decline to review the Prop 8 case outright, though we may not find about a denial until later the following week. If that happens, marriage resumes in California immediately after the Ninth Circuit takes care of some housekeeping issues with the case.

If the Court grants review in any of these cases, they will lay out a briefing schedule and oral arguments would likely be sometime around March, with a decision on the merits in June 2013 at the end of the current term.

30 Comments November 27, 2012

The Supreme Court’s Marriage Precedents

By Matt Baume

At AFER, we often talk about how the United States Supreme Court has ruled fourteen times that marriage is a fundamental right.

But what are those fourteen cases, going all the way back to the 1880s? Let’s take a closer look at exactly what they were about, and how they bolster the case to overturn Prop 8.

At the American Foundation for Equal Rights, I’m Matt Baume, and welcome to a special episode of Marriage News Watch.

The Supreme Court’s ruled on marriage over a dozen times. And those cases touched on a wide range of issues — from parenting to divorce to reproduction and housing.

But if they hear our case, it could be the first time that the court rules on the freedom to marry for gay and lesbian Americans.

Let’s start back in 1888, with Maynard v. Hill. That case clarified the rules for divorce, and the court wrote that marriage is “the most important relation in life … without which there would be neither civilization nor progress.”

Those words are 125 years old, but they illustrate a crucial point. Marriage isn’t just some run-of-the-mill interest. It’s a fundamental freedom. It’s special. And the government can’t restrict it unless there’s a really good reason. And that really good reason, as we saw in court, simply doesn’t exist.

The next major marriage case was Meyer v. Nebraska in 1923. That case involved parental rights, and the court wrote that the right “to marry, establish a home and bring up children” is a central part of the Due Process clause. In other words, it’s protected by the Constitution.

That was followed by four cases involving reproductive rights: Skinner v. Oklahoma, 1942; Griswold v. Connecticut, 1965; Carey v. Population Services International in 1977; and later Planned Parenthood v. Casey in 1992. Those cases prompted the court to write that marriage is “one of the basic civil rights of man,” and involves “a right of privacy older than the Bill of Rights.”

The court added that “among the decisions that an individual may make without unjustified government interference are personal decisions relating to marriage.”

Those four cases spanned fifty years, during which the court also heard Loving v. Virginia. That’s the big one that in 1967 overturned racist anti-miscegenation laws. The court wrote in Loving, “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”

And the plaintiff in that case, Mildred Loving, wrote, “I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. … I support the freedom to marry for all. That’s what Loving [v. Virginia] and loving [each other] are all about.”

Following the Loving case were seven separate cases that invoked the Due Process clause in recognizing the importance of marriage.

First was Boddie v. Connecticut in 1971, involving divorce law. The court wrote, “marriage involves interests of basic importance to our society” and is “a fundamental human relationship.”

That was followed by Cleveland Board of Education v. LaFleur, which overturned discriminatory maternity laws in 1974. The court wrote, “personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.”

Then came Moore v. City of East Cleveland in 1977, which overturned a law that limited the definition of family to only nuclear families.

A year later, the court heard Zablocki v. Redhail, a challenge to laws that restricted re-marriage. The court ruling was consistent with past decisions: “the right to marry is one of fundamental importance for all individuals.”

We’re in the home stretch now with Turner v. Safely, 1987. That case unanimously overturned a law that prevented prisoners from marrying without permission from the warden. Again the court wrote that “the decision to marry is a fundamental right.”

And in a 1996 case involving parenting known as MLB v. SLJ, the court wrote “choices about marriage, family life, and the upbringing of children are among associational rights this court has ranked as ‘of basic importance in our society,’ rights sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.”

And now we get to Lawrence v. Texas in 2003, a landmark decision that overturned some — but not all — discriminatory anti-gay laws. In that decision, the court wrote, “our laws and tradition afford constitutional protection to personal decisions relating to marriage … Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.”

So, why does all this matter?

Because all of these cases track closely with the case against Proposition 8. The rulings against Prop 8 closely echo that long history of rulings by the Supreme Court.

When the District Court ruled in our favor in 2010, it was on the basis of due process and equal protection. In fact, the court cited Loving v. Virginia and Griswold v. Connecticut, writing, “the right to marry … has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household.”

And when the Ninth Circuit upheld that ruling, the court wrote that Prop 8 violates the Equal Protection clause of the Constitution by excluding gay and lesbian couples from marriage. The court wrote “Proposition 8 singles out same-sex couples for unequal treatment by taking away from them alone the right to marry,” which is a “distinct constitutional violation” in that it subjected a minority group to “the deprivation of an existing right without a legitimate reason.”

The rulings in our case are consistent with 125 years of rulings by the Supreme Court of the United States. That’s why we’re confident we’ll win.

But we’ll still need your help to do it. We have the winning arguments, but bringing them to the Supreme Court requires a lot of resources. Visit to find out how you can help add this case to the long list of cases that expanded the freedom to marry.

4 Comments November 27, 2012

Requests filed to halt proceedings in several DOMA cases pending Supreme Court conference this week

By Scottie Thomaston

With the Supreme Court conference on the eight petitions related to challenges to Section 3 of the Defense of Marriage Act as well as Proposition 8 and Arizona’s denial of domestic partnership benefits to same-sex spouses approaching on Friday, the lower courts are busy with requests to delay arguments or stay cases related to Section 3 of DOMA pending possible Supreme Court review. If the Court takes up one (or more) of the cases, it will effectively decide the outcome of the others currently winding through the district and circuit courts. The Bipartisan Legal Advisory Group (BLAG), tasked with defense of the law, has begun requesting cancellation of oral arguments in some cases and stays in others. The Justice Department, though it agrees that Section 3 of DOMA is unconstitutional, is doing the same.

In Cardona v. Shinseki, a challenge to Section 3 of DOMA, as well as another statute related to military benefits, by a military servicemember, oral argument was set for November 15 at the appeals court, in this case the US Court of Appeals for Veterans’ Claims. The case has been on an expedited track – sped up by the government’s decision to stop defending Section 4 of DOMA. (In this case, they are not defending the other statute at issue here, either.)

Secretary Shinseki then requested rescheduling oral argument to November 29, facing objections from Cardona, the plaintiff. Despite the fact that the case is on an expedited track, the judge granted that motion.

On November 8, BLAG filed a motion to postpone oral argument in the case (opposed by the plaintiff) and the judge has granted the order. Cardona, in her opposition, argued that, “(1) the Court expedited this matter and has previously granted a motion to postpone oral argument, (2) regardless of whether the Supreme Court grants certiorari in a case involving DOMA, her case involves the constitutionality of 38 U.S.C. § 101(31), which this Court must still address, (3) BLAG was aware of the pending petitions for certiorari when the Court set oral argument for November 29, (4) it is uncertain when the Supreme Court will announce its decision to grant or deny certiorari on these petitions, and (5) further delay will burden her because she already has requested time off from work and purchased non-refundable airplane tickets to attend the November 29th argument, and the continued deprivation of spousal benefits causes an economic hardship on her family[.]”

But the judge agreed that the Supreme Court is likely to resolve the issue of the constitutionality of Section 3 of DOMA, and in the interest of “judicial efficiency” the argument is canceled. The judge suggested that the case may be stayed once the Supreme Court decides on whether to review Section 3 of DOMA and releases orders from its November 30 conference: “if the Supreme Court grants a petition for writ of certiorari, this case may also be stayed pending the issuance of its decision considering the constitutionality of DOMA.”

Pedersen v. Office of Personnel Management is currently pending at both the Second Circuit Court of Appeals and at the Supreme Court on a petition for a writ of certiorari before judgment, and the Justice Department is asking the court to suspend the briefing schedules and hold the case in abeyance pending a decision by the Supreme Court on whether to hear challenges to Section 3 of DOMA. In this case, BLAG consents to the request, while the plaintiffs do not oppose the request insofar as it would hold the appeal in abeyance pending whatever happens at the November 30 Supreme Court conference. However, plaintiffs “oppose holding these appeals pending final resolution by the Supreme Court if the Supreme Court were to grant one or more of the petitions filed in any of the cases challenging the constitutionality of Section 3 of DOMA.”

If the Court does decide to hear challenges to the constitutionality of Section 3 of DOMA, we are likely to see many more of these requests.

h/t Kathleen as usual for these filings

ORDER – Cardona:11-3083 #177

DOJ request – Pedersen:12-3273 #109

1 Comment November 27, 2012

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