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Archives – January, 2013

The Family Research Council files an amicus brief in support of Prop 8 proponents

By Scottie Thomaston

Today is the date amicus curiae briefs are due for proponents of Prop 8 and for supporters of Section 3 of DOMA.

The Family Research Council has filed its brief in support of reversing the Ninth Circuit Court of Appeals (and upholding Prop 8.) In the summary of their argument, they claim that no state or federal court has applied heightened scrutiny to laws classifying people on the basis of sexual orientation:

And no state or federal court applying federal equal protection analysis has held that classifications based upon one’s sexual orientation are subject to heightened review. Because Proposition 8 is reasonably related to multiple, legitimate state interests, it passes constitutional muster.

The federal district courts in Golinski and Pedersen applied heightened scrutiny. As did the Second Circuit Court of Appeals in Windsor.

Read more below…


8 Comments January 29, 2013

Marriage equality updates from Rhode Island, Navajo Nation, Hawaii and Ireland

By Jacob Combs

In an interview with Rhode Island NBC affiliate WJAR 10 this Sunday, state Senate President Teresa Paiva Weed addressed the proposed marriage equality bill which recently passed the Rhode Island House of Representatives, saying that she is “listening to everyone on both sides” of the issue.  Paiva Weed repeatedly deflected questions regarding her personal feelings on the issue (she has opposed equal marriage rights in the past), telling WJAR that as senate president she has a responsibility to “speak to the chamber’s position.”

During the interview, Paiva Weed said that she simply doesn’t know if the votes are there in the Senate to pass the bill.  From a video of the interview, which you can find at the end of this post (h/t to Towleroad for the link):

“There are a number of folks in the Senate that would vote for that marriage equality bill that Sen. [Donna] Nesselbush has filed that mirrors [House] Leader [Gordon] Fox’s legislation. There’s another group that wouldn’t vote for any marriage equality bill. There’s some folks that would support a referendum and support marriage equality. There are other folks that would support a referendum and would vote against marriage equality. And there’s another group that might support marriage equality if the religious exemption was more expansive than it was in the House.”

Navajo leaders last week held a forum on LGBTQ issues such as marriage equality, which the tribe’s leaders may consider legalizing, the Navajo Post reported.  In 2005, Navajo lawmakers passed a law called the Dine Marriage Act of 2005, which limited marriages in the Navajo Nation to opposite-sex couples only, despite the fact that then-Navajo President Joe Shirley supported marriage equality.

The Human Rights Campaign this week announced it is spearheading the creation of a new group, the Business Coalition for DOMA Repeal, which will bring together large, national corporations who support overturning the 1996 ban on federal recognition for same-sex couples’ marriages, CNN reported yesterday.  Major companies who have joined the coalition include Groupon, Google, Orbitz, Hyatt Hotels, Morningstar, Exelon, Aetna, Thomson Reuters, Armani Exchange and Marriott International.

As the Los Angeles Times noted, the inclusion of Marriott hotels in perhaps a surprising one, given that the company was founded by and is still run by a devoutly Mormon family.  (Last month, Mitt Romney rejoined Marriott’s board of directors.)  But as Marriott International executive chairman/chairman of the board Bill Marriott told Business Insider last summer, despite his personal belief that only opposite-sex couples should be allowed to marry, he maintains that the company should “take care of [its] people, regardless of their sexual orientation or anything else.”

In Hawaii, a new poll conducted this month for the Equality Hawaii Foundation showed an 18-point margin in favor of marriage equality, with 55 percent supporting equal marriage rights and 37 percent opposed.  Of the 55 percent in favor, 39 percent said they ‘strongly’ favor it.  A federal court case challenging Hawaii’s marriage laws is currently on hold pending Supreme Court resolution of the Prop 8 case.  A marriage equality bill has also been introduced in the Hawaii legislature.

Another new poll out of Ireland shows an increase in support for equal marriage rights of 12 percentage points since 2008.  Seventy-five percent of respondents to the poll said they would vote yes on a marriage equality referendum.  Support for adoption rights for same-sex couples enjoyed a lower level of support, albeit still a majority one, with 54 percent.  Ireland is currently undergoing a national Convention on the Constitution to consider amendments to be presented for popular referenda.  The Convention will consider marriage equality on the weekend of April 13th and 14th.

January 29, 2013

Breaking: Wyoming House Committee advances domestic partnership bill but sinks marriage equality

By Jacob Combs

The Wyoming House Corporations Committee today passed HB 168, a bill which would allow same-sex couples in the state to enter into domestic partnerships, by a 7-2 vote.  The same committee rejected another bill, HB 169, which would have allowed same-sex couples to marry, by a 5-4 vote–despite bipartisan support.

The full House could vote on the domestic partnerships bill later this week.

January 28, 2013

Equality at the Inauguration

By Matt Baume

We’re making major progress in multiple states, with bills advancing in Rhode Island and Colorado. Plus historic words from President Obama, strong polling numbers, and the anniversary of the Prop 8 trial.

It’s looking good for marriage in Rhode Island, but obstacles may still remain. This week the House voted overwhelmingly to approve a marriage bill. Now it’s on to the Senate, where many legislators are still deciding whether they’ll support the measure. A key sticking point is whether the bill will provide broad exemptions for anti-gay groups that don’t want to recognize marriages they don’t approve of.

It may take several weeks — possibly months — for the bill to get a Senate vote. In the mean time, connect with RI United for Marriage dot com to get involved.

And we made progress in Colorado this week as well. The Senate Judiciary Committee passed a civil unions bill on party lines, 3 to 2. Now it moves to the Appropriations Committee. You can get in touch with One-Colorado dot org to help support their work to move the bill along.

We’re also seeing some legislative movement in Hawaii, where Representative Faye Hanohano introduced a marriage bill this week. There’s also a competing bill that would put a marriage ban in the state Constitution. Visit Hawaii United for Marriage dot org for ways that you can get involved there.

And we’re not done yet: there’s also a brand new marriage bill in New Mexico. Representative Bian Egolf introduced the measure, which is admittedly a long shot. The bill’s first stop is the House Consumer and Public Affairs Committee.

And on Monday, the 28th, a House committee in Wyoming will hear testimony on marriage bills.

Meanwhile, Minnesota legislators are working on overturning the state’s statutory ban on marriage. Public opinion is quickly moving in their favor. Voters defeated a constitutional marriage ban in November. And a new poll from Public Policy Polling shows a plurality supports marriage equality, 47 to 45 percent.

That growth in support is consistent with national polling, which consistently shows a majority favors the freedom to marry. President Obama acknowledged that sentiment in his inauguration address, comparing Stonewall to such civil rights watersheds as Seneca Falls and Selma.

The Department of Justice has already stated that they believe the Defense of Marriage Act to be unconstitutional. But there’s no word on whether the administration will become involved in AFER’s Prop 8 case. Amicus briefs in the case are due in just a few weeks.

We’ve now reached the three-year anniversary of the Prop 8 trial. It was first time a federal court heard testimony under oath on marriage for gay and lesbian couples.

To mark the occasion, AFER is bringing you highlights from each day of the trial. Visit and check Facebook and Twitter every day to see new highlights from each day of the trial.

This is going to be the busiest year yet for marriage equality. To get an overview of what to expect in the coming months, check out our brand new video, Looking Ahead to 2013. That has all the details you need on the federal work before the Supreme Court, as well as state-by-state progress.

1 Comment January 28, 2013

Will the Obama administration get involved in the Prop 8 case?

By Scottie Thomaston

With due dates for amicus curiae (“friend of the court”) briefs for the proponents and opponents of Prop 8 approaching, top Obama administration lawyers are meeting with both sides of the litigation, according to a Reuters report. There has been pressure on the administration to get involved in the Prop 8 fight. The federal government is not a party to the case but they can submit a “friend of the court” brief on behalf of either (or neither) side of the case telling the Justices what their position is on whether the Fourteenth Amendment’s Equal Protection Clause requires same-sex marriage.

Tomorrow, January 29, would be the deadline for an amicus brief in support of the proponents of Prop 8 (the group who wants the marriage ban upheld.) February 28 is the deadline for an amicus brief in support of the opponents of Prop 8 – the plaintiffs in the lower court.

According to the report, the president himself would likely be closely involved in any action the Solicitor General’s office takes:

While President Barack Obama has vigorously endorsed gay marriage, as recently as in his second inaugural speech last Monday, he also has suggested that the federal government should not take the lead. White House Press Secretary Jay Carney said the day after the inauguration ceremony that while Obama’s “personal view” favors same-sex marriage, he “believes that it’s an issue that should be addressed by the states.” The administration has never taken a position on Proposition 8, which California voters adopted on November 4, 2008, the day Obama was first elected president.

Under laws passed since 2004, nine states and the District of Columbia allow same-sex couples to wed.

Presidents generally do not become involved in a solicitor general filing to the Supreme Court. But in this politically charged dilemma, lawyers on both sides say it is all but certain that Obama, a Harvard Law School graduate who was once a constitutional law professor, will play a big role in directing the administration’s stance.

Importantly, there are likely several issues that would come up in the decision-making process in this case. The administration is also involved in challenges to Section 3 of the Defense of Marriage Act (United States v. Windsor will be argued at the Supreme Court the day after Perry) which they stopped defending. They have taken certain positions on Article III standing and other issues throughout the DOMA cases that could present obstacles. The administration may not want to take a position on certain aspects of the Prop 8 case.

As the report notes there are more basic issues as well:

Yale Law Professor Drew Days, who was a U.S. solicitor general in the Clinton administration from 1993 to 1996, said that as Obama lawyers weigh a federal interest in the Proposition 8 dispute, they are likely considering how it would intersect with the administration’s nuanced stance in the DOMA case. Days is not involved in either case and said he has no direct information about the administration’s position.

The administration in early 2011 said it would no longer defend DOMA’s disparity in marriage benefits. It also has suggested there be a heightened constitutional standard for assessing laws that treat gay people less favorably. Only when the Department of Justice files its brief in the case of United States v. Windsor in late February will it indicate how the administration thinks such constitutional scrutiny should apply to various laws based on sexual orientation, from limits on marriage benefits to an outright ban on same-sex unions.

And now the New York Times is adding its voice to the growing list of people who want the Obama administration to take action in the case. In an editorial, they write:

Now that Mr. Obama has declared that he believes denying gay people the right to wed is not only unfair and morally wrong but also legally unsupportable, the urgent question is how he will translate his words into action. To start, he should have his solicitor general file a brief in the Proposition 8 case being argued before the Supreme Court in March, saying that California’s voter-approved ban on same-sex marriage is unconstitutional.

Just a day after the inauguration, Mr. Obama’s spokesman, Jay Carney, said that while Mr. Obama supports same-sex marriage as a policy matter, the president still believes it is an issue for individual states to decide. That was Mr. Obama’s formulation when he first announced his support for same-sex marriage in May, and even then it made no sense, except perhaps as political cover approaching the general election campaign.

Suggesting that not showing up for this constitutional fight would seem to imply that the administration is not confident about the Constitution’s protection of equal protection for gays and lesbians, the editorial points out that the Justice Department will be arguing the next day that a similar law is presumptively unconstitutional so it makes little sense to avoid this fight, they argue:

The government will be arguing that discrimination against gay people, a vulnerable minority group, is presumptively unconstitutional. It is hard to see how the marriage act’s discrimination is presumptively invalid but not California’s wiping out of existing marriage rights for gay people that were mandated by the state’s top court.

As the administration’s lawyers have met with both sides of the Prop 8 fight at this point, and the deadlines are coming up, a brief could be filed as early as tomorrow or as late as the end of February.

January 28, 2013

Marriage equality updates from Wyoming and Illinois (and a little Prop 8 news as well)

By Jacob Combs

This week, the Wyoming legislature will vote on three LGBT-rights related bills, with two of them up for consideration later today.  The House Corporations, Elections and Political Subdivisions Committee will hear testimony this afternoon on both a marriage equality bill and a domestic partnership bill, and if the committee passes either, they could proceed to a full House vote in a few days.  Wednesday morning, the Senate Judiciary Committee will consider testimony on a non-discrimination bill.  The National Center for Lesbian Rights (NCLR) has information on how to contact members of both the House Corporations Committee and the Senate Judiciary Committee.

Wyoming currently offers no rights to same-sex couples.  H.B. 0168, the domestic partnership bill, would provide partners with the freedom to make decisions regarding health care and childrearing.  The marriage bill, H.B. 0169, would expand the definition of marriage to include same-sex couples, while Senate File Number 0131, the anti-discrimination measure, would protect people from being fired based on their sexual orientation or gender identity.

In Illinois, Heather Steans, the top Senate sponsor of a bill to bring full marriage equality to the state, told the Windy City Times that she expects the bill to be considered in early February when the Senate comes back into session.  Rep. Greg Harris, the bill’s House sponsor, told the Times that he and other advocates of the measure are exploring modifications to the its religious freedom provisions in an attempt to garner more votes for it.

Finally, Joan Biskupic, who covers the Supreme Court for Reuters, took a fascinating, behind-the-scenes look at the lobbying efforts by lawyers on both sides of the Prop 8 case to persuade the Justice Department to file an amicus brief in their favor.  From Biskupic’s piece:

On separate occasions in recent days, lawyers on opposite sides of a Supreme Court fight over same-sex marriage took an elevator to the fifth floor of the Department of Justice, entered a large conference room and made a pitch to Solicitor General Donald Verrilli and other top Obama administration lawyers.

Each side wants the administration’s support in a late-March showdown on the fundamental rights of gay men and lesbians.

On January 18, Theodore Olson and David Boies, the well-known duo representing gay couples challenging California’s ban on same-sex marriage, asked the administration to back their claim of a constitutional right to such unions nationwide. On Thursday, attorney Charles Cooper, who has long represented defenders of the ban known as Proposition 8, asked the government to stay out of the case.

These advocates and others in the dispute over same-sex marriage joined a common but little-known ritual of Supreme Court litigation. Parties seeking outside “friend of the court” briefs they hope will sway the court’s nine justices often try to get the weight of the federal government behind them. Justice Department officials regularly hear out both sides, with such meetings concerning a couple dozen cases each court term.

The Justice Department has until the end of the day tomorrow, January 29, to file a brief in support of the proponents of Prop 8.  If it wishes to file a brief arguing that Prop 8 is unconstitutional, it has until February 28 to do so.

January 28, 2013

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