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Archives – March, 2013

Headed to DC, thanks to you

h/t Jeff Kubina
U.S. Supreme Court

By Adam Bink

Last week, myself, Scottie and Jacob all asked you for help getting to DC to cover perhaps the biggest week in Supreme Court history when it comes to LGBT equality, so we can bring you the best coverage. I am happy to report that:

1) You came through, and more. Our initial, bare minimum fundraising goal was $1,500, which we raised to $5,000 to more fully cover travel expenses, and help Scottie replace his on-its-last-legs computer. You broke through that as well. All I can say is thank you (on behalf of myself, Scottie, Jacob and the entire Courage staff) and that we’re looking forward to bringing you the best coverage on the web. It really is a privilege to write for and work with such a great community!

2) I type this in an airport on the way to DC, while Scottie is e-mailing me from his own airport, and Jacob is hopping on a train later today. We’ve secured a press credential for Jacob, who will be taking notes in the press section on the inside (electronics are forbidden) and while reports show that the lines outside the Supreme Court started absurdly early, we have made arrangements and hope to secure additional seats in the courtroom. Scottie and I will bring color commentary and monitoring reports outside (and hopefully inside) the courtroom. We’ll get you a report published as soon as the hearings conclude on both days. We’ll also have interviews with other folks on the ground.

3) I know many of you are attending the rallies and arguments as well. Courage Campaign is distributing signs and working with press on both March 26th and 27th, while our members will be in attendance. If any of you can help with that for 30 minutes or an hour, please drop me a line via adam AT couragecampaign DOT org. We hope to see you there! Lastly, there’s some talk of an EqualityonTrial (née! ah, nostalgia) get-together some of you are organizing — if you have final details and would like us to publish them here, please just drop myself, Scottie or Jacob a line.

Looking forward to covering history!

1 Comment March 25, 2013

Final brief by DOMA defenders urges Court to let the political process decide marriage equality

By Scottie Thomaston

Attribution: Talking Points Memo
Edith Windsor

The final filing from House Republicans, via the Bipartisan Legal Advisory Group (BLAG), on the constitutionality of Section 3 of DOMA was filed this week. The brief is especially noteworthy because BLAG’s lawyers go to great lengths to urge the Supreme Court not to apply a heightened level of scrutiny, but to instead apply the most deferential form of rational basis review. This form of rational basis review, they write, has only led to the Court striking down one statute as unconstitutional. BLAG says that Windsor’s attorneys “distort” the way rational basis is actually applied, in order to make it appear less deferential to legislative prerogatives than it actually is.

They also attempt to dissuade the Court from considering that laws classifying people on the basis of sexual orientation are “suspect”:

Nor is there any basis for this Court to make sexual orientation the first new suspect class in forty years. Treating a group as a suspect class for equal protection purposes is, at bottom, a determination that by dint of a long history of official disenfranchisement or other obstacle, a group cannot protect its interests through the ordinary political processes. But gays and lesbians have made more progress through the ordinary political processes more quickly than any other group in recent memory, both on the issue of marriage and more generally. The impressive array of amici supporting affirmance provides powerful testimony to the political clout of a group that has been remarkably and increasingly successful in accomplishing its goals through the political process.

Along with noting the long list of amici, BLAG points to the recently-passed civil unions law in Colorado as a sign of progress. And as they did in their opening brief, they suggest again that the “political process” is really the best way to handle the issue of same-sex marriage:

This Court should decline the invitation to cut this vital debate short, uphold DOMA as constitutional, and permit the citizens of this country to continue participating in working through this important issue.

The brief does seem to make a few concessions; in a footnote, they concede that gay couples marry for the same reasons as straight couples (in defending their argument about marriage penalties making people less likely to marry.)

They again suggest that a child should be raised by his or her biological, opposite-sex parents:

DOMA’s opponents challenge as irrational the long-held cultural judgment that a child’s biological parents are, other things being equal, the child’s natural and most suitable guardians. Ms. Windsor even claims (at 45) that current law does not recognize this principle. That is mistaken: Every state recognizes that a child ordinarily should be raised by his or her biological mother and father, if they are able and willing.

The Court, they write, should only investigate the law for animus after they’ve exhausted all possible rational bases, instead of looking for animus separately:

Thus, while the Court has long recognized that discrimination purely for its own sake is not rational, under the established approach, constitutional review does not require a separate judicial inquiry into whether a law was motivated by “animus.” Instead, only
after the search for other rational bases for a law has been exhausted will the Court conclude that impermissible animus is the sole remaining explanation. Animus is thus a conclusion drawn from the unsuccessful search for rational bases, not a separate inquiry. Since the House has identified numerous rational bases for DOMA, the inquiry ends there.

Under this view, as long as BLAG can identify a rationality for DONA, the Court can’t decide whether or not DOMA was enacted simply out of animosity toward gays and lesbians.

Another concession BLAG makes is that the classification involved in the passage of DOMA is a classification based on sexual orientation. At certain points, they had previously seemed to be suggesting that it’s not orientation, but rather conduct that certain people wish to engage in. But they write here that:

All parties to this case agree that Section 3 should be analyzed as a sexual-orientation classification, and DOJ and Ms. Windsor argue thatsuch classifications should be subjected to heightened scrutiny.

They, of course, still suggest that the four qualifications typical for “suspect classes” don’t match sexual orientation, so they, again, urge the Court not to adopt a higher level of judicial scrutiny or consider sexual orientation a suspect classification.

They do, finally, suggest that Section 3 of DOMA would pass even a heightened level of judicial scrutiny, because of “dual sovereignty” considerations. In their opening brief, they had only dedicated a footnote to an argument that Section 3 of DOMA passes heightened scrutiny.

They close their brief with a plea to the Justices to allow the political process to work out any issues related to sexual orientation discrimination. They argue that debate is healthy and allows people to understand each other.

Next Wednesday, March 27, the Court hears arguments in the case, United States v. Windsor.

h/t Kathleen for this filing

Windsor: BLAG Reply on merits by EqualityCaseFiles

March 22, 2013

Rhode Island Senate committee hearing on marriage equality lasts for more than 12 hours

By Jacob Combs

Yesterday, the Rhode Island Senate Judiciary Committee considered testimony on a proposed marriage equality bill which passed the state House in late January.  Astonishingly, the testimony began around 4 p.m. and lasted more than 12 hours, finally concluding at 4:57 a.m. the next morning.  From the Providence Journal:

Supporters and opponents of gay marriage offered testimony at a Senate hearing through the night, finally concluding at about 5 a.m. Friday morning.

As of about 4 a.m., 9 of the 10-member of the Rhode Island Senate Judiciary committee were still listening to testimony at the hearing, according to Ray Sullivan, campaign directory for Rhode Islanders United for Marriage, a group that supports same-sex marriage.

The testimony ended at 4:57 a.m., Sullivan reported via Twitter.

The judiciary committee did not take a vote on moving the bill to the Senate floor.

2 Comments March 22, 2013

ACLU, NCLR file marriage equality challenge on behalf of two New Mexico lesbian couples

By Jacob Combs

The ACLU of New Mexico and the National Center for Lesbian Rights (NCLR) filed a lawsuit yesterday in an Albuquerque district court on behalf of two lesbian couples who sought and were denied marriage licenses by the Bernalillo County Clerk.  The couples’ lawsuit contends that New Mexico’s marriage laws and the New Mexico Constitution contain no explicit ban on marriage rights for same-sex couples, and that marriage equality should be recognized in the state.

The new lawsuit, Griego v. Oliver, was filed in New Mexico’s Second Judicial District Court by Rose Griego and Kim Kiel of Santa Fe and Miriam Rand and Ona Porter of Albuquerque.  Griego and Kiel have been together for eight years, and experienced firsthand the challenges of a lack of state recognition for their union when Griego was hospitalized and Kiel was denied all information on her condition in the hospital until Griego’s family arrived.

Rand and Porter have been together for 25 years and raised three children together.  One of their daughters suffers from multiple sclerosis, so Rand and Porter have adopted her 14-year-old daughter but face legal uncertainty because their relationship is not recognized by the state.  When the two women’s mothers’ health deteriorated, they resorted to pretending they were sisters in order to make mutual decisions about care and visitation for their loved ones.

As the couples’ complaint points out, the New Mexico Constitution guarantees all citizens the rights of due process and equal protection and holds that “all persons are born … with certain natural, inherent and inalienable rights, among which are the rights of enjoying and defending life and liberty … and of seeking and obtaining safety and happiness.”  In addition, the state constitution contains what is known as an ‘equal rights amendment’ which reads, “[e]quality of rights under law shall not be denied on account of the sex of any person.”  New Mexico law also prohibits discrimination on the basis of sexual orientation.

The couples’ suit argues that New Mexico’s lack of marriage equality violates the New Mexico Constitution on five counts:

  • 1) It denies same-sex couples equal protection under the law and discriminates on the basis of sexual orientation.
  • 2) It violates the state constitution’s Equal Rights Amendment by discriminating on the basis of sex.
  • 3) It denies same-sex couples’ due process rights “to marry, to privacy, to freedom of intimate association, and to other fundamental liberties”
  • 4) It deprives couples of their right to freedom of speech and expressive association.
  • 5) It violates the state constitution’s provision regarding the “natural, inherent and inalienable rights” of all citizens to “seek[] and obtain[] safety and happiness.”

In terms of judicial remedy, the complaint asks the state court to rule that any refusal of marriage licenses to same-sex couples in New Mexico is unconstitutional and to direct county clerks to authorize the issuance of licenses to all couples regardless of sexual orientation.

The Griego lawsuit comes just days after Santa Fe Mayor David Coss, City Councilor Patti Bushee and City Attorney Geno Zamora announced in a press conference that New Mexico’s laws, as written, can be interpreted as allowing same-sex couples to obtain marriage licenses, and that a resolution calling for marriage equality will be introduced at the next city council meeting, on March 27.

A day after the press conference, Bushee released a statement that read, “If you are planning to go to a county clerk’s office to apply for a marriage license; or, if you go to a county clerk’s office and are denied a marriage license, please coordinate your efforts by contacting” the ACLU of New Mexico and Equality New Mexico, whose contact information was included. Coss, Bushee and Zamora’s press conference seems clearly intended to set up a court challenge like the one Griego, Kiel, Rand, Porter, the ACLU and the NCLR have filed.

The Griego lawsuit will likely make its way to the New Mexico Supreme Court.  The eventual outcome of the case could be affected by the Supreme Court’s decision regarding the constitutionality of California’s Proposition 8, which the Court will consider in oral arguments for the case Hollingsworth v. Perry next Tuesday.

1 Comment March 22, 2013

Why next week’s Supreme Court hearings matter this much to me

By Scottie Thomaston

Please chip in to send me and the rest of the blogging team from EqualityOnTrial to the Prop 8/DOMA arguments at the Supreme Court.

Next Tuesday marks the final opportunity for opponents of Prop 8 to present their arguments to the nine Justices on the Supreme Court. The following day, Edith Windsor’s legal team will tell the Court why it should strike down Section 3 of the federal Defense of Marriage Act. Importantly, this is the first time in history the Court will hear arguments on marriage equality for gays and lesbians. They’ve only seen the issue one other time, in 1972. Then, the Court dismissed a mandatory appeal in Baker v. Nelson in a one-sentence order, without briefing or arguments. Not only are these cases historic, but arguments in the Prop 8 case will be held on a historic day: March 26, 2003, the Court heard oral arguments in Lawrence v. Texas, the case that ultimately ended bans on same-sex intimacy.

As an Alabamian, I’ve faced a lot of homophobia and tried to persevere in an environment that has been rough and almost entirely unwelcoming for people like me. And I’ve followed these cases with a lot of hope, because for people here, or for my friends in Tennessee, it often seems like the only way we’ll see progress and an end to rampant anti-LGBT discrimination that’s inherent in this region is through our federal court system. For me, these cases represent more than just the single issue of marriage; that is undeniably important and I strongly believe those same-sex couples who want to marry deserve to have the Supreme Court confirm that the Constitution of this country protects the rights of same-sex couples just as it protects the rights of opposite-sex couples. But there’s a great deal more at stake for those of us living in areas where there’s no political will for change, and where it often seems like, if anything, things are changing in a regressive direction.

That’s because the Court will decide, to put it simply, whether laws that are passed to affect LGBT people are presumptively constitutional or presumed to be unconstitutional because of the suspicion that these types of laws only exist to harm LGBT people. That the Court might decide courts need to review these laws more closely and presume they’re unconstitutional at the outset would change the environment all over the country, and especially in the South, where our politicians usually feel like they can pass discriminatory measures and gain more votes in the next election. If the Court says these laws are suspicious, the decision will impact whether legislators really want to continue pushing anti-LGBT laws. Courts could no longer accept rationalizations for these laws. So as an Alabamian, these cases represent a hope that things could be better for us.

That’s why I’ve saved up money from the moment these cases were filed in federal court: so I could listen to our legal advocates argue for our humanity and our equality at the Supreme Court. And now here we are.

I’m glad to be a part of the EqualityOnTrial team, which has worked to bring the best and most in-depth coverage of the Prop 8 case, and more recently, challenges to DOMA, with the help of the community here. In 2010, the site was created as, and the P8TT team sat in the courtroom during the proceedings to document the trial after live broadcasting was blocked.

Now our team is traveling to Washington DC to witness the goings-on at 1 First Street NE, the United States Supreme Court. We wouldn’t be here without your help and we couldn’t get there without your help. Adam will be coming from California, Jacob is taking a train into DC from New York, and I’m flying into town from south Alabama.

Please consider chipping in $15, or any amount you can, to help the EqualityOnTrial team pay for travel expenses.

These hearings are the next and nearly final step toward the end of the long fight against discriminatory laws like DOMA and state constitutional amendments banning equality like California’s Prop 8. After the hearings, the only remaining step will be the announcement of the Court’s final decision, sometime in late June.

EqualityOnTrial is committed to bringing our community the most in-depth, thoughtful, and detailed coverage so that readers will not only know what was said, but also what it all means and what it might portend for the future of marriage equality and the LGBT legal movement generally. But we can’t do that without your help — we don’t have corporate sponsors or large benefactors. We need you if you want this coverage.

We’re thrilled to be a part of this with all of you, and we will do all we can to provide the most up-to-the-minute analytical coverage of next Tuesday and Wednesday’s hearings. Please follow along with us next week here at EqualityOnTrial for the latest and send a few bucks our way to make all of this possible.

Thanks for joining us and supporting the EqualityOnTrial team in this historic moment.

March 21, 2013

Analysis: The Prop 8 proponents’ final Supreme Court brief strikes familiar notes

Steve Rhodes
Charles Cooper, lead attorney for the Prop 8 proponents.

By Jacob Combs

Here’s to attorney Charles Cooper’s final Supreme Court brief on behalf of the official ballot proponents of Proposition 8 in defense of the law’s constitutionality. I sincerely hope it’s the last piece of his writing I ever have to read.

To be fair, Cooper is a very, very good lawyer.  He has a way with words both in writing and during oral argument, as he demonstrated in December 2011 during the impassioned and histrionic conclusion to his appearance before the Ninth Circuit in the Prop 8 case (known at the Supreme Court as Hollingsworth v. Perry):

“If this Court says what they [the plaintiffs challenging Prop 8] urge you to say, this will be a signal and dark day in American jurisprudence.”

(In response to that remark, Judge Reinhardt, who would go on to pen the Ninth Circuit ruling invalidating Prop 8, responded wryly, “Thank you, Mr. Cooper.  Well, let’s hope, however it comes out, that it won’t be a dark day.”)

As Cooper’s most recent Supreme Court brief demonstrates, though, the proponents of Prop 8 don’t really have any new arguments to make in defense California’s marriage equality ban.  Cooper is left to rely instead on lawyerly twists and evasions in order to make the law look as though it supports the constitutionality of Prop 8.  In light of this, Cooper’s plaintiffs–and the legal argument they’re trying to make–may have a tough day in court next Tuesday. (more…)

5 Comments March 21, 2013

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