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Archives – April, 2013

Legislators in Pennsylvania and Minnesota mull civil unions, albeit with very different motivations

By Jacob CombsPennsylvania state seal

Earlier this week, Mark Cohen, a Democratic Pennsylvania state legislator from Philadelphia, introduced a bill that would allow same-sex couples in the state to enter into civil unions.  Cohen’s bill, HB1178, contains language that “would amend Title 23 (Domestic Relations) of the Pennsylvania Consolidated Statutes, in marriage, adding a definition; and providing for civil unions.”

Cohen’s legislation has the support of 27 other members of the Pennsylvania House of Representatives.  The chamber has 203 members, with Republicans holding the advantage with 109 seats to Democrats’ 93.  HB1178 has been referred to the House Judiciary Committee, which has 15 Republican members and 10 Democratic members, and will likely face an uphill climb in the House as well as the state Senate, where Republicans hold a 27-23 majority.

In a press release issued Wednesday, according to Philadelphia Magazine, Cohen called civil unions a “middle-of-the-road compromise position between constitutionally banning and permitting gay marriages,” implicitly acknowledging that equal marriage legislation would have no hope in the Pennsylvania legislature.  In the release, Cohen explained that his bill would create civil unions that afforded the full rights (but, of course, not the designation) of marriage to same-sex couples.  The legislation would also establish reciprocity under state law for same-sex couples to have any marriage or civil union license from another state recognized as a civil union in Pennsylvania.

In Minnesota, meanwhile, Republicans have continued to push for civil unions as an alternative to a proposed marriage equality bill that was approved in mid-March by committees in the both the state House and Senate and is now pending full floor votes in both chambers.  An initial piece of legislation introduced in early April would have provided same-sex couples with civil unions but not full marriage rights; a new bill introduced this week would effectively end civil marriage in the state, providing all couples with civil unions regardless of sexual orientation and leaving the term ‘marriage’ for religious ceremonies.

One Democratic representative, Kim Norton, who had originally backed the first civil unions bill but later withdrew her support, told KAAL-TV she would be backing the new legislation.  “It makes certain that every Minnesotan couple gets a civil union in the state of Minnesota and that marriages are left to the churches that are offering them,” Rep. Norton told the station.  “Some people have got[t]en hurt by my decision to sign this on, but as I think I’ve shared with you before, I have not found a majority of folks in my community with one opinion.”

It’s safe to say that any bill which essentially abolished the institution of civil marriage would pose significant problems of public policy–not to mention the fact that such a bill could very well be unconstitutional.  Consider, for example, the issue of federal benefits, for which married couples are eligible but couples in civil unions are not.  Would Minnesota’s proposed law prohibit any of its residents from accessing these benefits?  The bill would also pose significant problems for married couples who moved to Minnesota, whose marriages would theoretically be converted into civil unions.  In short, the situation would lay fertile ground for an equal protection challenge.

As this week’s developments in Pennsylvania and Minnesota demonstrate, civil unions are still seen by lawmakers as a useful tool.  In Pennsylvania, the utility of civil unions manifests as a pro-LGBT representative seeing them as a more feasible political lift in a Republican-dominated legislature.  In Minnesota, it takes the form of anti-LGBT lawmakers using civil unions to siphon support away from legislation that would provide full marriage equality.

But while some lawmakers may see civil unions as a safe alternative to equal marriage rights–or even a bulwark against their implementation–the people may increasingly be of a different mindset.  In a new poll published this week, Public Policy Polling found that 50 percent of Colorado voters support the civil unions bill that was approved in March, with only 38 percent of voters opposing it.  Surprisingly, PPP’s poll found that voters in the state actually were more supportive of marriage equality than civil unions, albeit not by much: 51 percent were in favor of equal marriage rights and 43 percent were opposed.  As is always the case when viewed through the lens of generational divides, voters who were younger than 30 supported marriage equality by a margin of 74-17 percent.

This probably means full marriage equality isn’t too far away in Colorado, which would mirror other states (such as Illinois, Hawaii, Rhode Island and Delaware) that have seen pushes for equal marriage rights just a few years after legalizing civil unions.  As opponents of marriage equality begin to see civil unions as the last line of defense against marriage equality, they may well find that voters have very little appetite for any ‘middle-of-the-road’ legal status that effectively creates a separate but equal regime.

Update (3:40 p.m. Eastern): Thanks to Seth from Maryland for pointing this out in the comments: A new Survey USA poll finds 51 percent of Minnesota voters support marriage equality, with 47 percent opposed.

2 Comments April 26, 2013

Federal Election Commission decision holds that it can’t recognize same-sex marriages under DOMA

By Scottie Thomaston FEC seal

Yesterday, the Federal Election Commission (FEC) issued an opinion ruling on an aspect of election law that relies on Section 3 of the federal Defense of Marriage Act to determine whether a married couple can contribute to political campaigns jointly. The FEC generally allows married couples to donate jointly to campaigns, so that the amount doesn’t exceed the cap on individual contributions imposed by federal law. But they were asked to determine if same-sex married couples may legally do the same thing, and their decision says that no, same-sex married couples can’t do this until Section 3 of DOMA is repealed or struck down as unconstitutional by the Supreme Court (a possibility given that they’re reviewing United States v. Windsor now and a decision is expected by late June.

The opinion noted that the FEC doesn’t define “spouse” itself and its standard practice is to rely on state law to determine whether a couple is legally married. However, the point of Section 3 of DOMA was to provide a uniform definition of “marriage” and “spouse” that has the same application for all federal laws. So, as the FEC is obligated to follow DOMA’s restrictive definition of “spouse”, it has to interpret the federal regulation at issue differently. Instead of simply allowing for joint contributions, with DOMA in place, the same-sex couple would be considered to have made “a contribution in the name of another person”, which is illegal.

So, for now, the FEC has to follow DOMA, but the issue will probably be reconsidered after the Supreme Court issues its decision in Windsor:

The FEC’s ruling cited the Defense of Marriage Act’s definition of ‘spouse’ — being only between one man and one woman — as the determining factor that would preclude same-sex couples from recognition under federal regulations. Pointing to the upcoming Supreme Court decision, the FEC intends to revisit the question once the high court rules later this year.

The request from Winslow came as an olive branch to independent-minded Massachusettsians, who may warm up to his campaign following a more open social values platform. Compared to his Republican competitors: Gabriel Gomez, a former Navy SEAL turned politician, is in favor of same-sex marriage whereas Michael Sullivan, a former U.S. attorney, recently shifted his stance on the issue.

Former FEC officials had filed an amicus brief in the Windsor case pointing out how Section 3 of DOMA affects, and sometimes infringes on, free speech. The brief addressed this issue, along with others that affect campaign financing and federal election practices. Citizens for Responsibility and Ethics in Washington (CREW) filed its own amicus brief in the case: CREW is a Congressional ethics watchdog group, and its brief pointed out the myriad ways in which DOMA’s restrictive definition of marriage interferes with enforcing ethics laws and regulations.

The FEC makes a point to say that the issue will be addressed again after Windsor, and a footnote in the opinion also suggests that the Supreme Court’s resolution of Hollingsworth v. Perry, the Prop 8 case, could affect the FEC’s approach to enforcing federal election regulations in the context of same-sex marriage. The decision in Perry is also expected in June.

1 Comment April 26, 2013

Federal judge puts immigration-related challenge to DOMA on hold pending Supreme Court’s decision in Windsor

By Scottie Thomaston

A federal judge has stayed a class-action challenge to Section 3 of the federal Defense of Marriage Act as it relates to immigration laws, pending the Supreme Court’s resolution of Edith Windsor’s case, United States v. Windsor. The case, Aranas v. Napolitano, was allowed to move forward earlier this week, when the judge issued orders certifying the case as a class-action and permitting the plaintiffs to raise an equal protection challenge to the law. Also among those orders, the judge denied a request for a preliminary injunction barring enforcement of possible deportation while the case is pending in federal court, writing that Immigration and Customs Enforcement can use its prosecutorial discretion in deciding which cases warrant immediate action. This would have meant that the government might not actively prosecute cases involving same-sex marriages until the constitutionality of Section 3 of DOMA is definitively resolved.

The new filing is an order addressing the Justice Department’s motion to stay the case until the Supreme Court decides Windsor. After weighing the factors that a federal judge has to consider when deciding on a motion to stay proceedings, the judge ruled that waiting for a resolution in Windsor would not subject the plaintiffs to irreparable harm, and the Supreme Court’s final decision may end up providing important guidance. This is especially likely, considering that the Court asked the parties to brief and argue questions about Article III standing and the Court’s jurisdiction in challenges to Section 3 of DOMA: if the Supreme Court doesn’t think there are litigants with standing to defend the law, that will impact the course of this case in federal district court as well.

Nothing else will happen with the case until the Supreme Court decides Windsor. Today, the Court heard its last two cases for this term. They won’t sit for oral arguments again until October, though they will continue releasing opinions until late June. For big, contentious cases, the Court usually will not release opinions until the last couple of days of the term. This is generally because there may be more than one or two opinions, or because some of the more complicated cases involve several different legal issues. So while there’s nothing preventing the Court from releasing opinions in the marriage cases at any point from now until the end of June, most Court-watchers anticipate decisions coming later rather than sooner.

h/t Kathleen for this filing

8:12-cv-01137 #129 by EqualityCaseFiles

2 Comments April 25, 2013

Santa Fe City Council approves pro-marriage equality resolution

By Jacob CombsNew Mexico state seal

Last night, the Santa Fe City Council voted in favor of a resolution supporting marriage equality and exhorting New Mexico’s county clerks to issue marriage licenses to same-sex couples, precipitating applause from the standing room-only crowd which attended the meeting.  Five council members voted yes, one voted no, and two abstained.

So many people came to witness the council vote, according to the Santa Fe New Mexican, that the Santa Fe Fire Department “had to bar the doors before the meeting started,” and many were forced to watch from the hallway.

The city council resolution will have no legal effect, as only county clerks in New Mexico have authority over who can and cannot receive marriage licenses.  In 2004, then-Attorney General Patricia Madrid issued an advisory telling clerks not to issue licenses to same-sex couples.

This year, the clerk of Doña Ana County and a state representative from Mesilla Park asked state Attorney General Gary King to issue an updated opinion on whether county clerks should allow same-sex couples to wed under current New Mexico law.  King’s office has not yet issued any guidance, although the attorney general did issue a directive in 2011 holding that the state must honor any out-of-state marriage license, regardless of the couple’s sexual orientation.

The Santa Fe resolution comes after a March press conference during which Mayor David Coss, City Councilor Patti Bushee and City Attorney Geno Zamora argued that New Mexico law (which contains no specific provision prohibiting marriage equality) should be construed to allow same-sex couples to marry.

In a legal opinion announced at the press conference, Zamora wrote, “Since New Mexico does not define marriage as between a man and a woman, New Mexico does not prohibit same-sex marriage, New Mexico already recognizes same-sex marriages from other states, and the New Mexico Constitution requires equal treatment on the basis of sex, same-sex marriage is permitted in New Mexico.”

At the time, Santa Fe County Clerk Geraldine Salazar told the New Mexican that she would not be issuing marriage licenses to same-sex couples until the law could be clarified.  “The Legislature creates the laws and the judges interpret the laws,” she said, “and I as a county clerk do not create or interpret laws.”

Shortly after the Santa Fe press conference, the National Center for Lesbian Rights (NCLR) and the ACLU of New Mexico filed a lawsuit in an Albuquerque district court against the Bernalillo County Clerk alleging that same-sex couples should be allowed to marry.

In their complaint on behalf of two lesbian couples, one from Santa Fe and another from Aluquerque, the legal groups argue that the New Mexico Constitution guarantees marriage equality on the basis of its due process and equal protection provisions, its equal rights amendment, which holds that “[e]quality of rights under law shall not be denied on account of the sex of any person,” and its prohibitions on discrimination on the basis of sexual orientation.  That case is known as Griego v. Oliver.

Earlier this year, the New Mexico House Voters & Elections Committee voted 7-4 against a bill that would have amended the state constitution to explicitly allow marriage equality.  The legislation had previously been approved by another House committee on a 3-2 vote.

4 Comments April 25, 2013

Breaking: Rhode Island Senate approves marriage equality bill

By Jacob Combs

Just now, the Rhode Island Senate voted 26-12 to approve SB38, a marriage equality bill that would provide full rights to same-sex couples in the state. All five of the chamber’s Republican members voted yes on the bill, joined by 21 of their Democratic colleagues. An amendment by Sen. Ciccone to put marriage equality on the ballot which was rejected by the Senate Judiciary Committee also failed today on the Senate floor by a vote of 28-10.

SB38 will now return to the Rhode Island House of Representatives, which passed a similar marriage equality bill 51-19 in January but must vote again on SB38, which contains small changes to the provision’s religious exemptions. House Speaker Gordon Fox believes a final vote could put the bill on Gov. Lincoln Chafee’s desk “as early as next week.”

Gov. Chafee has said he will sign the bill into law. Rhode Island would be the 10th state to allow the full rights of marriage to same-sex couples, who could apply for marriage licenses beginning August 1.

UPDATE (10:15 p.m. Eastern): Gordon Fox sent out a tweet this evening anticipating final approval in the House by the end of next week:

1 Comment April 24, 2013

Equality news round-up: news from IL, MN, NV on marriage equality, and more

By Scottie Thomaston

– The Employment Non-Discrimination Act (ENDA) will be introduced in Congress on Thursday.

– The chairman of the Illinois Legislative Black Caucus is co-sponsoring the marriage equality bill in the state.

– A state senator in Minnesota who is considered a swing vote on the marriage equality bill has said he will vote for it.

– During a debate in Nevada on efforts to begin the process of repealing the state’s same-sex marriage ban, a state senator came out as gay.

– CNBC reports on the financial aspects of the eventual end of the federal DOMA.

– Former GOP congressman Jim Kolbe is pushing for the inclusion of LGBT families in a proposed immigration reform bill.

April 24, 2013

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