All eyes are on Illinois, with less than a week left to pass its marriage equality bill. Meanwhile, public support grows in Tennessee and an equality bill passes the legislature in Nevada, but major obstacles remain in both states. And we’re just one month away from the deadline for a Prop 8 decision. Depending on the ruling, marriage equality could soon be the law of the land in California, and possibly beyond.
This is it — the last week of the legislative session in Illinois. If marriage equality is going to pass this year, it’s going to have to happen in the next few days.
The bill has been endorsed by both Bill Clinton and Barack Obama, and Governor Pat Quinn has pledged his signature. But we still don’t know if there are enough votes for passage. The effort’s being led by Equality Illinois. Visit EQIL.org to find out how you can help, wherever you are.
A new survey in Tennessee shows growing support for marriage. Forty-nine percent favor some form of relationship recognition, with 32 percent for marriage. This is quite a jump from 2006, when just fifteen percent opposed a state constitutional ban on marriage. That ban ultimately passed, and remains in place to this day.
Meanwhile, marriage has advanced in Nevada, but still has a long way to go. The state Assembly passed a marriage equality bill last week on a 27 to 14 vote, which included one Republican voting in favor. The next step for the bill won’t come for another two years, when the legislature must pass it one more time before it goes to the ballot in 2016.
It’s still a long road to victory in Nevada, and in the 29 other states with constitutional amendments. But that landscape could change dramatically once the US Supreme Court rules on Prop 8. The deadline for that ruling is in one month.
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This week is the last chance for Illinois to send the marriage equality bill to Governor Quinn’s desk for his signature. The legislative session ends on Friday, and only the state senate has approved the bill. Last week, former President Bill Clinton added his voice to the calls for passage before the session’s end. The bill has been somewhat stalled in the state house while legislators count the votes. Sixty votes are needed there to ensure the bill becomes law.
Originally, the state house had set the deadline to consider senate-passed bills for Friday the 24th, but that date has been extended, and now the bill can be considered until the session’s expected end on Friday, May 31. The sponsor of the house bill reiterated his intention to call the vote:
Chief Sponsor Rep. Greg Harris told Windy City Times he will “absolutely” call the bill to a vote before session ends at the end of the month and that it will pass.
Harris reiterated that sentiment in an email to supporters May 24.
“There’s exactly one week left in the legislative session,” he wrote. “And let me make one thing clear: in the next seven days, we can — and we will — secure the freedom to marry.”
According to another report, the CEO of Equality Illinois agrees that the vote will be called this week, and that it will pass:
Bernard Cherkasov, CEO of Equality Illinois, told ChicagoPride.com that he was confident the bill would pass.
“The votes are indeed there. And I believe the bill is going to pass, but we’ve received no indication yet on when the bill would be called,” he said.
Illinois would be the 13th state to allow marriage equality (along with Washington DC) and would likely be the last US state to take up the issue before the Supreme Court issues its rulings in Hollingsworth v. Perry and United States v. Windsor next month. And if, as expected, the Court issues a narrower opinion on the marriage equality issue, the only way for equality advocates to continue their winning streak would be to work on the longer term goal of repealing some of the marriage amendments in the 30 or so states where they were passed. The process is already underway in Nevada, and Oregon is expected to put a ballot initiative before the voters as well. But as Buzzfeed notes, without a broad Supreme Court decision, it will be tough to move forward for awhile.
What the Court says, if it reaches the merits of the two cases, could still impact some of the marriage cases still working their way through the federal court system. Lambda Legal is challenging Nevada’s ban in court, while Michigan and Hawaii’s bans are facing other separate challenges. If the Court doesn’t hold that there’s no standing in the Prop 8 case, whatever they decide could impact these other challenges, or even lead to more litigation in other states.
In a piece published yesterday titled “Will Justices take note of new gay marriage laws?”, the Associated Press’s Mark Sherman asks whether or not recent advances in marriage equality will affect the Supreme Court’s decisions in the DOMA and Prop 8 cases.
As Sherman points out, in just a 10-day spread this May, legislators in Rhode Island, Delaware and Minnesota extended marriage rights to same-sex couples; Illinois could well become the 13th marriage equality state by the end of this week. France legalized equal marriage rights this month, as did Uruguay and New Zealand in April, and a marriage equality bill received final approved in the UK House of Commons, setting it up for almost certain success in the House of Lords this summer.
In light of these successes, the inevitable question is how the constantly-changing landscape of American marriage law might affect the U.S. Supreme Court as it decides two of the most important LGBT rights cases ever considered by the U.S. judiciary. Of tantamount importance, of course, is how this month’s news could affect Justice Anthony Kennedy, the court’s frequent swing voter and a likely candidate to author at least one of the marriage equality decisions this term. “It is always possible,” Harvard law professor Michael Klarman told the AP, “that Justice Kennedy is reading the newspapers and is impressed with the progress.”
As the AP notes, there is precedent for Justices changing their minds during the course of writing opinions: in fact, Justice Kennedy himself was assigned to write a majority opinion in 1992 upholding the right to include prayers in public school graduations but changed his mind during the drafting process, and ended up leading the 5-justice majority that prohibited such prayers.
Advocates on both sides of the marriage equality issue can make the claim that recent legislative victories reinforce their respective arguments for how the Court should rule this June. For opponents of equal marriage rights, legislative wins for marriage equality show that the issue is being worked through as part of the democratic process and proves that the courts need not step in to ‘constitutionalize’ the issue.
“These developments provide yet further evidence…that the claim that gays and lesbians are politically powerless and that the courts therefore have some special role in subjecting classifications affecting them to strict scrutiny is baseless,” Ed Whelan, a marriage equality and president of the Ethics and Public Policy Center, told the AP.
On the other side of the issue, advocates of equal marriage rights argue that the rapid growth of public support for marriage equality demonstrates that the justices would be helping to enact an inevitable shift if they extend marriage rights to same-sex couples. Recent progress, these advocates point out, has been primarily in the blue states, and LGBT Americans in the red states could be left in the lurch were the Supreme Court to stay out of the issue. “These states moving in the direction of marriage is a far cry from all states doing it,” Mary Bonauto, who directs the Civil Rights Project at Gay & Lesbian Advocates & Defenders, told the AP.
In the end, the fact that three (and possibly four) states will have newly minted marriage equality laws by the end of May only reinforces the conventional wisdom on marriage equality: the American public has passed a tipping point of support for same-sex couples’ marriage rights, which means that the blue states will soon allow couples to wed but the redder states will likely continue their marriage prohibitions. At some point, the Supreme Court will almost certainly need to step in to establish marriage equality across the U.S. That moment keeps seeming sooner and sooner, although it still may very well not come this June.
– The Boy Scouts of America ended the ban on gay scouts yesterday; they didn’t end the ban on adult Scout leaders, and their statement notes that the policy on adult leaders wasn’t under consideration.
– Huffington Post‘s Lila Shapiro has a report on the discrimination complaint against Exxon Mobil that EqualityOnTrial has discussed.
The Nevada Assembly voted last night 27 to 14 to approve Senate Joint Resolution 13, a constitutional amendment that would end the state’s ban on marriages for same-sex couples and establish full marriage equality instead.
The Nevada Senate approved SJR13 by a 12-9 vote in late April, and yesterday’s Assembly vote will be the final legislative consideration of the bill this session. As we noted when the legislature first took up the bill, the amendment has a long path ahead of it before Nevada couples will be allowed to marry:
“The amended bill will have to be approved by both houses of the Nevada legislature during the current session and again during the 2015 session, and then placed on the 2016 ballot as a constitutional amendment. If Nevada voters approve the amendment, the marriage equality ban currently in the state’s constitution would be removed and replaced with language inclusive of same-sex couples.”
According to Freedom to Marry, a February 2013 poll conducted by the Retail Association of Nevada found that 54 percent Nevadans support ending the states marriage equality ban, while only 43 percent of respondents wanted it to stay in place.
The Reno Gazette-Journal reported in late April that even opponents of marriage equality think the amendment will eventually be sent to voters in 2016:
“Even the resolution’s most ardent opponents, such as the conservative Eagle Forum’s Janine Hansen, think it will pass the Assembly before the end of this legislative session. She also thinks passage in the 2015 Legislature is probable.
“‘It will pass, unless there is some radical change in the Legislature and we get a majority of Republicans in one of the houses who are willing to vote against it,’ said Hansen. ‘But that doesn’t seem likely to me.'”
The proposed constitutional amendment, which is being spearheaded by the ACLU and the Progressive Leadership Alliance of Nevada, is not the only push to bring marriage equality to the Silver State: Lambda Legal, an LGBT legal advocacy group, is currently pursuing a federal lawsuit, Sevcik v. Sandoval, challenging the state’s refusal to offer marriage licenses to same-sex couples.
The suit contends that Nevada’s laws, which provide same-sex couples with domestic partnerships but not full marriage rights, violate the equal protection provisions of the U.S. Constitution’s Fourteenth Amendment. In its complaint, Lambda Legal wrote that Nevada’s laws subject the suit’s plaintiffs “to the inferior and novel status of registered domestic partnerships, and has disrespected the marriages some of them have entered in other jurisdictions, because they are lesbians and gay men in same-sex relationships.”
A federal district court judge upheld Nevada’s marriage equality ban last November; that decision has been appealed to the Ninth Circuit. The case is currently on hold until the Supreme Court issues a ruling in the Proposition 8 case out of California, which also falls under the Ninth Circuit. The Sevcik case has also been appealed–unsuccessfully, so far–directly to the Supreme Court by the Coalition for the Protection of Marriage, which is defending Nevada’s marriage equality ban.
The Senate Judiciary Committee on Tuesday rejected pro-LGBT amendments to the “comprehensive” immigration reform bill, and as EqualityOnTrial noted yesterday, four Democrats also opposed inclusion of the amendments. Activists reacted with anger to the exclusion, with some suggesting they were shocked. The amendments were an attempt to protect members of binational same-sex couples from facing deportation, because the federal Defense of Marriage Act bars recognition of legal same-sex marriages and sponsorship of spouses relies on the definition imposed by DOMA.
The chairman of that committee, Senator Leahy (D-VT) had introduced two pro-LGBT amendments: one is the Uniting American Families Act (UAFA), which would create the category of “permanent partner” in immigration laws as a way to reduce some of the effects of DOMA. The classification of permanent partner would have imposed most of the same requirements as marriages: the couple would have to be in a committed relationship, couldn’t be underage or blood relatives, and couldn’t be married or in a permanent partnership with anyone else. UAFA carves out an exception to DOMA: DOMA would remain the law until repealed or struck down by the Supreme Court, but same-sex binational couples could escape deportation.
The other amendment is a different type of workaround. It would add a section to the Immigration and Nationality Act providing that a marriage will be recognized as legal if it is legal where it was performed. This wouldn’t create any new categories, it would just ensure that the federal government relies on state law definitions for immigration purposes.
Neither amendment was included in the bill by the committee, but yesterday Greg Sargent reported in the Washington Post that Democratic aides are saying that the amendments may be reintroduced after the immigration bill reaches the floor of the Senate. The report suggests that the amendments may reappear in time to coincide with the Supreme Court’s eventual ruling in United States v. Windsor, Edith Windsor’s constitutional challenge to Section 3 of DOMA. If the Court strikes down the law, it would make UAFA mostly inoperable. But this Court is unpredictable on social issues and any decision could hinge on Justice Anthony Kennedy’s vote. At oral argument he seemed most convinced that Section 3 of DOMA violates federalism principles, but most of the moderates seemed to find an equal protection holding more appealing while the conservatives disagreed with both. If the Court leaves DOMA intact, it’s hard to see how Congress would repeal it any time soon. The House is majority Republican and the Senate usually proceeds on the assumption that 60 votes will be required due to obstruction.
Introducing the amendments right before the Court’s ruling could change the conversations over LGBT inclusion: if Section 3 of DOMA is struck down, the amendments would be seen as largely unnecessary, but if it’s upheld and the amendments aren’t included in the bill, same-sex binational couples will not get any relief from this immigration reform package. Interestingly, Sargent’s piece suggests that Democrats actually want to force the issue:
And so, if Dems wait until the DOMA decision comes down, they could find themselves without any real need to push the LGBT issue in the immigration reform debate. At the same time, though, this is a fight Democrats — and the White House – want to have, for substantive and political reasons. So they may introduce the amendments before the DOMA decision comes down — forcing a public battle with the GOP over gay rights.
That would theoretically gin up the right wing base, forcing Republicans to rail against — and vote against — the simple act of extending a bill many of them support, i.e., immigration reform, to cover gay married couples, too. That would again reveal the GOP’s unwillingness to evolve on gay marriage along with the rest of the country, at a time when even some Republican officials and strategists are urging the party to develop a more tolerant and inclusive aura, something that is being made impossible by the refusal of most Republican voters to accept the inevitable.
[emphasis mine]
It’s a bigger challenge to get the amendments in the bill on the floor, of course. It will take 60 votes for the Senate to include the amendments on the floor, whereas if the committee had included it, Republican opponents would have needed 60 votes to strip the amendments on the floor. If there’s a serious push, it may happen, but if it’s just to “forc[e] a public battle with the GOP over gay rights[]” then inclusion of the amendments would ultimately be more about discussing the issue of LGBT inclusion and less about doing the work to include LGBT people. The Court’s ruling, expected by late June, may be a critical factor in Congress’ decision.
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