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Filed under: DOMA Repeal

Equality news round-up: Support for marriage equality climbs among older Americans, and more

By Scottie Thomaston

Bisbee, Arizona
Bisbee, Arizona

– On DOMA and immigration.

– “In Tennessee, gay marriage has young doubting Republicans.”

– Former Congressman Charles Bass calls on Republicans to support full marriage equality.

– A new Gallup poll shows that people over the age of 55 now support marriage equality.

– The town of Bisbee, AZ has approved its civil unions measure that EqualityOnTrial has covered several times. The measure was amended after objections and threats of a lawsuit, and the new version passed.

A new Pew poll surveys acceptance of homosexuality in other countries.

June 5, 2013

Could the Senate still include LGBT binational couples in the immigration reform bill?

By Scottie Thomaston

Supreme Court building
Supreme Court building

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 UAFA carves out an exception to DOMA: DOMA would remain the law until repealed or struck down by the Supreme Court, but same-sex binational couples could escape deportation.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.

1 Comment May 23, 2013

Report: Congress won’t introduce DOMA repeal until after the Supreme Court issues ruling in Windsor

By Scottie Thomaston

Capitol Hill
Capitol Hill

The Supreme Court could strike down Section 3 of the federal Defense of Marriage Act next month: the Court’s decision is expected in the final weeks of June, right before the Justices leave for their summer recess. If the Court decides to uphold Section 3 of DOMA, Congress could still take action on the repeal bill, the Respect for Marriage Act. That bill would eliminate DOMA’s language defining marriage for purposes of federal law and require the federal government to recognize same-sex marriages for if the couple married in a state where it’s legal. The federal government typically looks to state law to determine the legitimacy of a marriage, and same-sex marriage has been the only exception, because of the federal DOMA. (Indeed the FEC reiterated that stance this week in an opinion holding that they would have recognized same-sex marriage but for DOMA’s command.)

The Respect for Marriage Act hasn’t been introduced in this session of Congress, but last year it had 32 Senate co-sponsors, and it picked up Republican support in the House of Representatives. The Washington Blade is reporting today that lawmakers have decided they won’t reintroduce the bill until after the Court’s ruling in United States v. Windsor is handed down, but if the Court challenge fails and the bill is reintroduced it may pick up Republican support in the Senate for the first time:

Lawmakers are holding off on introducing legislation that would repeal the Defense of Marriage Act until after the Supreme Court rules on the anti-gay law, according to multiple sources familiar with the bill, as one Republican LGBT organization expects Sen. Rob Portman (R-Ohio) to sign on as a co-sponsor.

A number of LGBT advocates familiar with the legislation, which has been known as the Respect for Marriage Act, told the Washington Blade its lead sponsors — Rep. Jerrold Nadler (D-N.Y.) in the House and Sen. Dianne Feinstein (D-Calif.) in the Senate — are delaying introduction until after the expected court ruling in June.

According to the report, the executive director of the Log Cabin Republicans believes that Senator Portman, since he recently announced support for marriage equality, would sign on to the Respect for Marriage Act as a co-sponsor, though he says he hasn’t heard from Portman himself on the subject.

Republican support for the RFMA would be incredibly helpful in the event the Supreme Court holds that DOMA is constitutional: Congress has begun its work on a comprehensive immigration reform bill, and while some legislators are saying that they hope to include same-sex couples in the finished product, by way of introducing the Uniting American Families Act (UAFA) to allow citizens to sponsor their partners so they can stay together in the United States, that outcome is less than certain. Some congresspeople are already suggesting that an immigration bill is not likely to pass if it includes protections for same-sex couples. If it fails, the RFMA would be the last available option for binational same-sex couples.

For their part, members of Congress are considerably more silent on the bill, according to the report. And it seems likely to stay that way, at least until the Supreme Court makes its ruling in Windsor.

1 Comment May 1, 2013

Another House Republican announces opposition to DOMA’s federal definition of marriage

By Scottie Thomaston

Last week, another Republican in the House of Representatives, which is defending Section 3 of the federal Defense of Marriage Act, said in a speech that the Supreme Court should strike down Section 3, the federal definition of marriage that excludes same-sex couples. Rep. Justin Amash represents MI-03, and he is considered one of the more conservative people in Congress.

Amash hasn’t said he supports marriage equality generally, and during his speech he said:

“My view has always been that government should not be in the business of defining or redefining marriage,” Amash said. “I see it as a private issue. I personally see it as a religious issue.”

His issue with the law is one of federalism, concerns that Justice Kennedy and others voiced during oral arguments in United States v. Windsor this week. States have so-called “police powers” and the Court has even recognized that one of those powers is the regulation of marriage. The federal government shouldn’t be in the business of deciding which relationships are valid and which are not:

“I don’t want the government deciding who has a legitimate baptism, who has a legitimate communion, who’s involved in other personal relationships we have,” Amash said. “I want the government out of it.”

On DOMA specifically, Amash said he has “always opposed the federal definition of marriage in DOMA. So if it were repealed, I think that would be a step in the right direction, with respect to that portion of DOMA.”

Amash’s change of heart (as Dave Weigel points out, in 2011 Amash thought the law was valid) comes just after many politicians from both parties have announced support for marriage equality and have said Section 3 of DOMA should be overturned.

At last week’s arguments at the Supreme Court, it seemed like there are at least five votes for striking down Section 3 of DOMA, and while there doesn’t appear to be a consensus on how to do it and what legal rationale should be used, the federalism concerns ended up playing a significant role in the arguments. Justice Kennedy talked about how “when [there are] 1,100 laws [that involve the definition of “marriage” or “spouse”], which in our society means that the Federal government is intertwined with the citizens’ day-to-day life, you are at — at real risk of running in conflict with what has always been thought to be the essence of the State police power.”

Other Republicans and conservatives have voiced concerns about the federalism aspects of the definition of marriage. Several federalism scholars filed a brief in the case suggesting Congress lacks the power to regulate marriage. And of course, at the First Circuit Court of Appeals in the Gill case, the panel wrote that there is no valid Tenth Amendment claim (such as the one raised by the state of Massachusetts in that case) but that there are real federalism concerns with the government involving itself in state issues, so those concerns are at play even in the equal protection analysis, weighing heavily in favor of striking down Section 3 of DOMA.

If the Court were to somehow avoid addressing the constitutionality of Section 3 (which doesn’t seem like a realistic possibility at this point) it would be up to Congress to pass the repeal bill, the Respect for Marriage Act. And since the House is controlled by the Republican party, if DOMA is to ever be repealed, more Republicans would necessarily have to abandon their current positions on the validity of the law.

1 Comment April 1, 2013

DOMA oral arguments at the Supreme Court: an in-depth look at questions of standing and jurisdiction

By Jacob Combs

Part Two: questions of standing and jurisdiction

This post and my next will take a deeper dive into the two separate sections of today’s oral arguments.  A caveat: these may still be somewhat wonky because the arguments themselves certainly were.  For the most part, Justices’ questions here are my paraphrases, not direct quotes, since it was very, very difficult to write down full quotes as I was furiously writing on my steno pad.  Direct quotes are in quotation marks.  Here goes!

The first lawyer up to argue was Vicki Jackson, a Harvard Law professor whom the Court appointed to take the position that BLAG does not have standing to defend DOMA and that the Supreme Court has no jurisdiction over the Windsor case since the federal government agrees with Edie Windsor that DOMA is unconstitutional.  Her central arguments were simple: the federal government is only asking the Supreme Court to affirm the lower courts’ decisions, as opposed to asking for redress, which is the traditional remedy that courts can supply, and BLAG cannot point to any cognizable injury that it would suffer if DOMA were overturned.

Justice Scalia asked why the district court hadn’t simply ordered the federal government to refund Edie Windsor’s money without deciding the merits of DOMA, since the federal government argued against DOMA at that court (after modifying its position from its original defense of the law).  Justice Breyer likened the president’s position to that of a trustee who feels obligated to obtain a final, authoritative decision on a question of law before relinquishing some of the trust’s money, even if he or she were to agree with the legal decision on the law.  Kennedy seemed to agree that there was an injury in the Windsor case for the government, with Kagan jumping onto his point to say that whether the government is “happy or sad” to pay the tax refund, there nevertheless is a fiduciary injury.  Justices Sotomayor and Breyer seemed on board with this reasoning.

As I mentioned before, Chief Justice Roberts told Deputy Solicitor General Sri Srinivasan that the federal government’s argument that it could appeal a ruling where all parties are pleased by the decision would be “wholly unprecedented.”  Scalia expressed deep discomfort with the idea, calling it a strange new world where the Attorney General could simply choose not to defend laws, which he worried would bring many more cases like Windsor (where both parties agree) to the Supreme Court.  In defense of the government’s position, Srinivasan quoted a previous Supreme Court decision, INS v. Chadha, which held that the United States is the aggrieved party in any ruling against it, even if it agrees with the ruling.  Justice Sotomayor steered Srinivasan to the question of BLAG’s standing, to which he also quoted Chadha, which he argued suggested the houses of Congress should join cases through amicus status rather than as full parties.

Arguing for BLAG, Paul Clement read Chadha to the reverse effect, arguing that it in fact points to the House as the proper party to defend a law in court if the executive won’t.  Chief Justice Roberts pushed back on Clement: could Congress file to join a lawsuit if it didn’t like the executive’s arguments in defense of the a law it had passed?  Kagan then jumped in: could the House try to join a lawsuit if the attorney general decided to interpret a law more narrowly than it liked?  Kennedy asked if the Senate could join as a party to defend DOMA–which Clement said it could not–while Justice Alito asked why one house of Congress alone should be able to defend a law when it takes both of them to pass one.  Clement also ridiculed a motion to dismiss filed by the federal government when the Windsor case was in the district court that the government wrote was essentially for the purposes of creating a suitable appeal.  In response, Justice Kennedy admitted that that brief’s intricate argumentation could give any reasonable reader “intellectual whiplash.”

Long story short, it seemed unclear from today’s oral arguments whether the Supreme Court will get past the standing questions to consider DOMA on the merits.  From the Justices’ questioning, there didn’t look like much support for the contention that BLAG has standing to join the case as a party.  But the question of whether the United States can appeal a decision that it agrees with is much more central to the Windsor case: if the Court finds the appeal was invalid, it simply will not be able to rule on the merits of the law.  Justice Kennedy and the court’s liberals did seem to lean towards the idea that the Court does have jurisdiction since there was a fiduciary injury to the United States.  That means the Court will probably issue a decision on the merits.

3 Comments March 27, 2013

Ohio GOP Sen. Ron Portman announces support for marriage equality

By Jacob Combs

In an opinion piece published yesterday in the Columbus Dispatch, Republican Sen. Rob Portman of Ohio announced his support for marriage equality, writing, “if two people are prepared to make a lifetime commitment to love and care for each other in good times and in bad, the government shouldn’t deny them the opportunity to get married.”

In his piece, Portman specifically cited his gay son, Will, as one of the central reasons he had changed his position:

“Two years ago, my son Will, then a college freshman, told my wife, Jane, and me that he is gay. He said he’d known for some time, and that his sexual orientation wasn’t something he chose; it was simply a part of who he is. Jane and I were proud of him for his honesty and courage. We were surprised to learn he is gay but knew he was still the same person he’d always been. The only difference was that now we had a more complete picture of the son we love.


“I’ve thought a great deal about this issue, and like millions of Americans in recent years, I’ve changed my mind on the question of marriage for same-sex couples. As we strive as a nation to form a more perfect union, I believe all of our sons and daughters ought to have the same opportunity to experience the joy and stability of marriage.”

Portman, the first sitting Republican Senator to endorse marriage equality and speak out against the Defense of Marriage Act, has been a steady opponent of equal marriage rights in the past.  He was a co-sponsor of DOMA in 1996 and supported the Federal Marriage Amendment, which would have written a ban on marriages for same-sex couples into the U.S. Constitution.  In 1999, he supported a bill that would have prohibited same-sex couples from adopting.

According to the Columbus Dispatch, Portman chose to announce his new position at this time because the Supreme Court will consider oral arguments in the Prop 8 and Windsor DOMA cases later this month and he anticipated being asked questions regarding the court cases.

He has no plans to sign onto legal briefs in the cases, including the one that more than 100 prominent Republicans filed in the Prop 8 case arguing for nationwide marriage equality.  Among the signatories to that brief were Rep. Ileana Ros-Lehtinen of Florida and Rep. Richard Hanna of New York, both of whom support the Respect for Marriage Act, which would repeal DOMA.

Portman’s announcement means that there is now bipartisan support for marriage equality and against DOMA in both houses of Congress.  What remains to be seen is whether the senator will endorse other LGBT-related legislation.  According to the Columbus Dispatch, Portman is unlikely to take a “leadership role” if Ohio moves to overturn its 2004 constitutional ban on marriage equality.

It is also unclear at this point whether he will join the Respect for Marriage Act as a co-sponsor, or if he will endorse ENDA, the Employment Non-Discrimination Act, which would protect LGBT Americans from being fired on the basis of their sexual orientation or gender identity.  As recently as last summer, Portman reiterated his opposition to ENDA in response to a question from ThinkProgress:

“What I’m concerned about in Paycheck Fairness and other legislation like that is the fact that it will spawn a lot of litigation the way the legislation is written….  A lot of them would create a lot of legal rights of action that would make it more difficult for employers to feel comfortable, to be able to hire, and to keep this economy moving.”

During that interview, Portman did say that “no one should discriminate.”

You can watch a video below of an interview between Sen. Portman and CNN’s Dana Bash on the senator’s new support for marriage equality.

3 Comments March 15, 2013

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