If the justices pick any of these seven same-sex marrage cases, the impact could be huge.
Yet these victories are complicated by the lack of a national legal standard on gay marriage: For now, it remains a state-level question. But that could change if the US Supreme Court steps in. Last week, the high court announced that it will review a package of seven gay-marriage cases from five states in late September when it chooses which cases to consider in their 2014-2015 term.
Legal experts say it’s likely that the court will hear at least one of the cases. “I think they’re going to take a case,” says Dale Carpenter, a professor of civil liberties law at the University of Minnesota law school. “The only question is which one. They know whichever they take, it’s going to be momentous.”
This cluster of cases centers on two key questions: All seven ask SCOTUS to consider whether a state law limiting marriage to a union between a man and a woman violates the 14th Amendment. Six of the seven cases also raise the question of whether states must recognize same-sex marriages performed in other states."I think they’re going to take a case. They know whichever they take, it’s going to be momentous."
The Supreme Court ruled on two landmark gay marriage cases in 2013: Hollingsworth v. Perry, which overturned California’s Proposition 8, and US v. Windsor, which invalidated the Defense of Marriage Act. But neither weighed in on the constitutionality of same-sex marriage bans, leaving the choice to allow gay marriage up to each individual state. If the court takes one of these new cases, it’s likely that its decision will have a broad and more definitive impact. “Should they decide that the 14th Amendment actually protects the rights of same-sex marriage, that would have the effect of being binding on the federal government,” says Jane Schacter, a professor at Stanford Law School.
The cases before the court involve the 14th Amendment’s guarantees to equal protection under law and due process. If the high court rules that it is a violation of either promise for one state to deny a marriage license to a same sex couple, then it would become unconstitutional for any state to do so. Any state that failed to comply with the ruling, Carpenter elaborates, “would face immediate lawsuits—a complete waste of time and money.”
It’s anyone’s guess which case (or cases) SCOTUS may choose. The justices will choose between three Virginia cases, and one each from Utah, Indiana, Oklahoma, and Wisconsin. Ted Olson and David Boies, the attorneys on one of the Virginia cases, successfully argued Hollingsworth v. Perry last year. The attorney on one of the other Virginia cases is Paul Smith, who has argued multiple cases before SCOTUS, including Lawrence v. Texas in 2003, which struck down state sodomy laws. Carpenter says that the cases from Utah, Indiana, or Wisconsin might prove the most comprehensive choices for the court. “Utah, Indiana, and Wisconsin involve the marriage issue and the recognition issue and the state attorney generals are fully defending those laws. You have all the elements together in those cases,” he says. “The Supreme Court might want to just take a very clean case in which you’ve got the state squarely taking the position and defending its law.”
The Supreme Court could take multiple cases or all of them. It could also consolidate cases, something the court has done in the past with hot-button issues. (For example, 1954’s landmark Brown v. Board of Education combined six desegregation cases.) “All these plaintiffs want to be the chosen one,” says Schacter. “But it wouldn’t surprise me at all if they take more than one case.”
Here’s a closer look at all seven cases being considered by the court, and what’s at stake in each:
1. Herbert v. Kitchen (Utah): SCOTUS briefly dealt with this case earlier this year. In December 2013, a federal district court struck down Utah’s ban on same-sex marriage. Weddings began immediately. In January, the high court issued a temporary stay, putting a halt to marriages while the state’s appeal was considered. In June, the 10th Circuit Court of Appeals upheld the lower court’s ruling that the state’s same-sex marriage ban was unconstitutional.
2. Smith v. Bishop (Oklahoma): First filed in 2004, this case originally sought both to overturn Oklahoma’s ban on same-sex marriages and to recognize marriages performed in other jurisdictions. In January, a district court judge ruled that the state’s ban is unconstitutional, but dismissed the portion of the lawsuit addressing marriages from other states, ruling that the plaintiffs lacked standing. Both sides appealed to the 10th Circuit Court of Appeals, which affirmed the district court on both counts. In its appeal to SCOTUS, the state of Oklahoma isasking the court to rule exclusively on the marriage question.
3. Bogan v. Baskin (Indiana): This case began as three separate suits filed on behalf of a widow and 11 couples. Several plaintiffs have same-sex marriage licenses from other states that are unrecognized in Indiana. In June, a district court judge consolidated the suits into Baskin, and struck down the state’s ban on gay marriage. He did not stay the decision, allowing marriage licenses to be issued immediately. Earlier this month, the 7th Circuit Court of Appeals upheld the lower court’s decision.
4. Walker v. Wolf (Wisconsin). In February, the American Civil Liberties Union filed this case on behalf of eight same-sex couples, three of whom had married in other places. In March, a district court judge denied the state’s requests to dismiss the case. In June she ruled in favor of the plaintiffs, overturning Wisconsin’s ban on same-sex marriage. Her ruling was unclear on whether marriages could begin or not: Still, clerks in some cities began marrying couples immediately. Earlier this month, the 7th Circuit Court of Appeals upheld the lower court’s decision.
5, 6, and 7. Rainey v. Bostic, Schaefer v. Bostic, and McQuigg v. Bostic (Virginia): These three cases are different iterations of a suit filed in July 2013 by plaintiffs Timothy Bostic and Tony London, who seek to get married in Virginia. Carol Schall and Mary Townley joined the case in September 2013. They were legally married in California in 2008, but their union is not recognized in the Old Dominion. This has made it impossible for Schall to formally adopt her own daughter. In February, a district court judge ruled on all three cases, concluding that the state’s laws barring in-state gay marriages and prohibiting recognition of out-of-state marriage licenses is unconstitutional. In July, the 4th Circuit Court of Appeals affirmed the lower court’s ruling. A fourth case, Harris v. Rainey, a class action suit, has been incorporated into Rainey v. Bostic.
Rep. Michele Bachmann came out in favor of impeaching President Obama over his handling of the Defense of Marriage Act and Obamacare during her appearance this week on the radio show “Faith & Liberty.” She said that while Obama should be impeached, first “the American people have to agree with and be behind and call for the president’s impeachment.”
“Legally, do I believe our president has committed impeachable offenses? Yes I do. And I believe that our president is subject to impeachment,” she said.
The Minnesota Republican, however, cautioned that House Republicans should wait to hold impeachment proceedings until they successfully “make the case” to voters.
“We the people who are elected in the United States Congress, we are here to be the voice of the people and we need to reflect what it is what the people are telling us,” she said. “There is a group of people who see that this president has committed an impeachable offense and are anxious for Congress to do something, but if you look at the overwhelming number of people, they just aren’t there yet and it is up to Congress to make the case and explain to the people why we have to impeach.”
Bachmann also said she was in complete agreement with conservative pundit Andrew McCarthy’s “great book,” “Faithless Execution: Building the Political Case for Obama’s Impeachment,” warning that Obama is bringing about a “constitutional crisis” and a “tyranny against the people.”
U.S. Attorney General Eric Holder said the Obama administration would file a brief in support of litigation seeking marriage rights for gay couples when it returns to the Supreme Court. During a TV interview with ABC News’ Pierre Thomas that aired Sunday, Holder said filing a brief urging the court to rule in favor of marriage equality would be consistent with the administration’s action on the Defense of Marriage Act. “We are proud of what we have done,” Holder said. “If the case comes before the Supreme Court, we will file something consistent with what we have done that would be in support of same-sex marriage.” In response to a follow-up question, Holder affirmed he believes discrimination against gay people in terms of marriage is unconstitutional. “I think that’s why we decided not to support the Defense of Marriage Act,” Holder said. “When you have differentiations that are made on the basis of sexual orientation, they should be subject to heightened scrutiny. That being the case, I think a lot of these measures that ultimately will come before the Court will not survive a heightened scrutiny examination.”
As marriage equality lawsuits continue to make their way through the judicial system, observers expect the Supreme Court will return to the issue as soon as next year. Justices delivered rulings on DOMA and California’s Proposition 8 in 2013.
Following the U.S. Tenth Circuit Court of Appeals ruling affirming that Utah’s ban on same-sex marriage is unconstitutional, Utah Attorney General Sean Reyes has already vowed to take up the matter with the Supreme Court.
Advocates have already welcomed the idea of the Obama administration participating in the marriage equality lawsuits. It wouldn’t be the first time the Obama administration has weighed in. The Justice Department submitted a friend-of-the-court brief in favor of overturning Prop 8 when the issue was before the Supreme Court.
It remains to be seen whether the brief that the Justice Department will submit next to the court will call for a nationwide ruling on marriage equality. The brief submitted in the Prop 8 case endorsed the idea known as the time as the “eight-state solution” in which states with domestic partnerships or civil unions would be required to extend full marriage rights to same-sex couples.
Evan Wolfson, president of Freedom to Marry, said he welcomes news the Obama administration would participate in marriage equality lawsuits before the court and the action is consistent with Holder’s record in favor of LGBT rights.
“The attorney general has consistently been a strong champion, faithfully upholding the Constitution’s command and putting the federal government on the side of families and freedom,” Wolfson said. “Of course, the Justice Department will find itself in good company, given the more than 20 federal and state rulings that have upheld the freedom to marry as we make our way to the Supreme Court.”
Early this month, just before the Independence Day holiday, Sojourners founder Jim Wallis — an internationally-known theologian, bestselling author, self-proclaimed “prophet,” and one of the most influential figures in progressive Christianity — added his voice to the chorus of faith leaders weighing in on President Obama’s promised executive order that will ban federal contractors from discriminating against LGBT people in the workplace.
Wallis’s voice wasn’t added to the conversation on purpose, though; his views were revealed by BuzzFeed, which obtained a draft of a letter Wallis had penned to the President and was circulating among other religious leaders in the hopes they’d sign on.
So what is Wallis’s position on the issue? The words of the draft letter speak for themselves:
We believe that change in our churches is necessary in regard to welcoming LGBT persons and are committed to working on that. But we believe that government action in making those changes would be very counter-productive to our goals of change.
In particular, we are concerned about the real danger of handing the “tool” of religious liberty (a very legitimate issue) over to those who would use it against the LGBT community and your administration in pursuing equal protection. Faith-based organizations that have been trying to work on these issues internally would strongly react to the state telling them they must change their current beliefs publically—or no longer be eligible for federal contracts. Change is coming on the inside, but those changes could easily be reversed if they were perceived to be forced by the government…
If religious exemptions are removed, withdrawn, or seriously cut back from those in place, like in ENDA, the perception will be that your administration is attacking religious freedom and liberty… Just as freedom of speech is only meaningful if it protects all viewpoints, ensuring religious liberty must be respected for churches and faith-based organizations who believe that heterosexual marriage is the biblical norm. And the state should not require faith-based organizations to violate those beliefs in order to receive government contracts or grants.
When BuzzFeed's Chris Geidner asked Wallis to explain the inconsistency between his liberal reputation and his belief that religion-based discrimination against LGBT people deserves special protections, he reportedly backpedaled on much of the draft letter's contents and said that now it might not be sent at all.
Backpedaling aside, it’s clear that on LGBT workers’ rights, Wallis wants to have it both ways: he wants to be seen as an ally of the LGBT community, but he also apparently believes in the creation of a special “right” for businesses receiving federal contracts to discriminate against LGBT people on the taxpayers’ dime — until they magnanimously decide to stop, anyway.
While Wallis’s position is both a galling and insulting one for an alleged “progressive” Christian to take, it sadly isn’t surprising: this “prophetic” man could only manage a tepid statement of quasi-support for marriage equality last year — one in which he managed to never directly say he supported same-sex marriage at all. By Wallis’s own admission, he only got that far because young evangelicals forced his hand. (“Young believers, 62% of young evangelicals now support marriage equality,” Wallis said.) And this “evolution” conveniently occurred at the precise moment when Wallis was hawking his newest book.
I don’t call that “progressive” or “prophetic,” I call it blatantly opportunistic.
And that’s not even the worst of it: just one month after Wallis sorta kinda admitted that same-sex relationships deserve equal treatment, he threw LGBT couples under the bus in the battle over immigration reform.
The maliciously cruel “Defense of Marriage Act,” which was still in force at the time, tore binational same-sex couples apart and ripped children away from their gay and lesbian parents. But when Vermont Senator Pat Leahy proposed an amendment to the immigration reform bill that would protect such couples, Wallis opposed it, along with anti-gay groups like the Southern Baptist Convention, the National Association of Evangelicals, and the United States Conference of Catholic Bishops. Wallis said it was the wrong place at the wrong time” to even consider treating binational same-sex couples and families with dignity.
Marriage equality, immigration reform, workplace equality… Jim Wallis has managed to either fumble or drop the ball completely on virtually every major LGBT civil rights issue of the past several years. On what planet can such a person be considered a friend of the LGBT community? With “friends” like this, who needs enemies?
It’s time we send a loud and clear message to Jim Wallis-style “progressive” Christians: no more. When it comes to LGBT rights, you can’t have it both ways. You either fully support our equality — in all areas of civil society, without religious exemptions — or you don’t get to call yourself an LGBT ally. The choice is yours.
In contrast to Jim Wallis, I am a full supporter of LGBTQ rights.
h/t: John M. Becker at The Blierico Project
Legal experts say the Supreme Court is likely to accept the case. With lawsuits piling up, and gay marriage on an undefeated legal streak since the Court axed the Defense of Marriage Act in 2013, the justices may plausibly hear the case in next term and decide it by June 2015.
"I think the Court will take the case. Since [U.S. v.] Windsor, all of the lower courts that have ruled have struck down laws prohibiting same sex marriages,” said Erwin Chemerinsky, the Dean of the University of California, Irvine School of Law. “Perhaps without a split in the lower courts, the Supreme Court will wait. My prediction, though, is that the Court knows the issue needs to be resolved and will take it.”
And if the Court does hear the case, all eyes will be on Justice Anthony Kennedy, not simply because he’s the traditional swing vote, but because he has written all three decisions in Supreme Court history that advanced gay rights.
"I also predict that the five justices in the majority in Windsor will be the majority to declare unconstitutional laws that deny marriage equality to gays and lesbians,” Chemerinsky said.
Jonathan Adler, a professor at Case Western Reserve University School of Law who’s respected by conservative legal luminaries, also suggested Kennedy may continue his gay rights streak.
"I would think the Court is likely to take a case in the Fall, though they may wait to see if a real split emerges. Whenever they do take such a case I would not be surprised to see Kennedy cast the deciding vote in favor of gay marriage," Adler said in an email.
In the DOMA case, Kennedy said the federal government may not deny equal benefits to married same-sex couples but didn’t address the question of whether state bans on gay marriage were constitutional. Lower court judges widely cited the reasoning in Kennedy’s decision, concluding that laws against marriage equality — like DOMA — are motivated by a desire to harm gays and lesbians and thus impermissible under the Constitution’s equal protection clause.
The Supreme Court typically resolves national disputes on major issues, especially when the lower courts split. In this case, there may not be a split; if so the Court could choose to wait, experts said. But eventually the widespread view among court watchers is that the lawsuits will keep coming and, in order to avoid chaos and confusion while rulings are on hold pending appeal, the Supreme Court will opt to settle the matter.
Currently 31 states prohibit same-sex marriage, a number that has been dropping.
At least four justices have to vote to take a case in order for the Supreme Court to do so, which could happen as early as this fall.
h/t: Sahil Kapur at TPM
WASHINGTON — The Justice Department will announce this week that it has done all it can to recognize same-sex couples’ marriages and that Congress will have to act for final recognition — primarily within Veterans Affairs and the Social Security Administration — to take place.
In the meantime, though, those two agencies plan to announce Friday that they are taking steps at this time to provide the recognition for same-sex couples that they have determined is legally possible now, even in the absence of a congressional fix.
For instance, if a person married to someone of the same sex applies for Social Security benefits and moves from a state where the marriage is legal to a state that does not recognize the marriage, the Social Security Administration (SSA) is announcing it will not reassess the person’s eligibility status. The VA, for its part, will now allow same-sex couples in a “committed relationship” to be eligible for burial in VA cemeteries.
The Supreme Court ruled last June that the federal government’s ban on recognition of same-sex couples’ marriages in the Defense of Marriage Act was unconstitutional. President Obama then directed Attorney General Eric Holder to work with the various agencies and departments to provide recognition wherever possible.
Changes, from federal employees’ benefits to immigration to income taxes, that allowed married same-sex couples to receive the same treatment as opposite-sex couples were announced quickly in the months that followed. Notably, most policy announcements made clear that the marriages would be recognized by the federal government so long as they were recognized by the jurisdiction where the marriage took place — referred to as the “place of celebration.”
In a few areas, however, a more restrictive “place of domicile” rule applied by statute or regulation, meaning that the marriage would only be recognized by the federal government if it was recognized by, generally speaking, the state where the couple lives. Although some of the regulatory provisions have been changed over the past year to allow the more broad “place of celebration” rule to apply,Social Security and veterans benefits have limits under statute that the administration has determined can only be changed by Congress.
In a Thursday meeting with LGBT advocates at the White House, Assistant Attorney General Stuart Delery summarized the changes made — which are being presented in a brief report being released by the Justice Department this week — and addressed the specific areas in which the Social Security Administration and Veteran Affairs Department have been able to work around the “place of domicile” statutory restrictions to provide some benefits in the absence of a legislative fix.
A person familiar with Delery’s presentation provided BuzzFeed with a summary of the changes being announced in the two departments.
For both Social Security and Veterans Affairs, where the state recognizes same-sex couples’ marriages, then federal government will as well. The person noted, however, that even going that far in the VA required additional action because of the language within Title 38 — which governs veterans’ benefits — that had a DOMA-like limitation specific to veterans’ benefits. The administration, however,announced it would stop enforcing that provision following the DOMA ruling and a subsequent federal trial court ruling that the provisions in Title 38 were unconstitutional.
In addition to that expected step, the person explained, the administration has found a “supportable, legal basis” for allowing the SSA to not revisit an applicant’s state of residence if they move at any point during the application process or after. What this means, the person said, is that as long as someone is living in a state that recognizes same-sex couples’ marriages at any point while their application is pending, even if they move during or after that application process, SSA will not revisit their status or qualification for benefits based on having moved to a state that does not recognize their marriage.
Finally — in a decision that the source said impacts Colorado, Nevada, and Wisconsin — the administration found a basis for conferring all Social Security benefits to same-sex couples in those states. This decision is based on language in the Social Security Act that says that if a person is in a state, even if it doesn’t recognize marriage equality, that has other provisions in state law that allow a person to inherit from a same-sex partner on the same terms as a spouse, then SSA has the authority to confer full benefits.
As to Veterans Affairs, the person said that there are several groupings of benefits that the administration has determined are not limited by the “place of domicile” rule, which include three main areas: (1) the transfer of post-9/11 GI Bill education benefits to dependents; (2) participation and benefits conferred under the service members group life insurance program, veterans group life insurance program, and family service members group life insurance program; and (3) survivors and dependents education assistance.
In addition, the person said, the ability for a service member’s spouse to be buried in a VA cemetery is limited under law. Under a separate provision in law that allows the secretary of the VA to waive that requirement, the administration has determined that the secretary can do so and that it will allow any individual in a “committed relationship” with a service member to be buried in a VA cemetery. Similarly, the administration found a legally supportable basis to allow the stipend that would usually go to cover the cost of a veteran’s funeral to be paid out to the same-sex spouse even in a non-recognition state based on finding authority elsewhere in the VA law.
The changes being announced Friday, the person noted, are aimed at showing that the administration has been as forward leaning as it has determined would pass legal muster in order to provide recognition to married same-sex couples, regardless of where they live.
Nonetheless, the person said, the administration believes Congress will need to finish the job and make the statutory fixes necessary to providing full recognition. Specifically, the person noted legislation introduced by Sens. Patty Murray and Mark Udall to address the Social Security language and by Sen. Jeanne Shaheen to address the VA language. The other option, the person said, was the Respect for Marriage Act, which would go further than the issue-specific fixes to guarantee “certainty” of recognition by the federal government across the country.
A White House official confirmed much of BuzzFeed’s report early Friday, noting that the effort to make the changes post-Windsor “has been moving forward expeditiously.”
Specifically, the official noted that “the Justice Department will announce the completion of their overall review” on Friday.
Additionally, the official said that the Department of Labor will announce Friday that “it is issuing a notice of proposed rulemaking on the Family and Medical Leave Act, clarifying that an employee is eligible for leave to care for a same-sex spouse, regardless of the employee’s state of residence.”
The rule change is not the Labor Department’s first FMLA-related change after the Windsor decision. In August 2013, the department announced that FMLA leave was eligible to same-sex spouses if their marriage was recognized “in the state where the employee resides.” Friday’s rule change would expand that coverage even to those legally married same-sex couples who live in states where their marriage is not recognized.
Of the Justice Department review, the official said:
“In almost all instances, federal benefits and obligations for same-sex married couples will be provided, regardless of where the couple lives. There are a handful of provisions under current law that preclude the federal government from extending benefits to legally married couples regardless of where they currently live – the so-called “place of celebration” standard that we have been able to apply in almost all cases. …
“The Administration is calling for legislation to fix those provisions that prohibit legally married same-sex couples from enjoying the federal benefits they are entitled to. Examples of existing legislation that would help fix this problem include the Respect for Marriage bills introduced by Senator Dianne Feinstein and Congressman Jerrold Nadler, the Social Security and Marriage Equality Act introduced by Senators Mark Udall and Patty Murray, and the Veterans Affairs’ amendment proposed by Senators Mark Udall and Jeanne Shaheen earlier this year.”JUNE 20, 2014, 12:17 a.m.
With court rulings against states’ same-sex marriage bans piling up, LGBT advocates now say a favorable Supreme Court ruling on same-sex marriage could be a year or two away.
How those cases actually end up and win at the Supreme Court is a bit complicated. Here’s a simple guide, in three steps, to how it could happen.
1. Circuit courts give their rulings.
The next major battles for marriage equality will occur at circuit courts, the second highest federal courts in the country. It’s expected that the Fourth and 10th Circuit Courts will be the first to rule this summer or fall, since same-sex marriage cases are most advanced in those circuits.
THIS NEXT STEP COULD PRODUCE MUCH MORE MIXED RESULTS FOR LGBT ADVOCATES
As ThinkProgress explained, this next step could produce much more mixed results for LGBT advocates than lower court’s unanimously pro-marriage equality decisions. While the Fourth, Ninth, and 10th Circuit Courts are considered liberal, the Fifth, Sixth, and Seventh Circuit Courts are fairly conservative and also facing same-sex marriage cases.
Now, judges don’t necessarily decide their cases based on partisanship. The judge who struck down Pennsylvania’s same-sex marriage ban, for example, was supported by Republicans Rick Santorum and George W. Bush. But partisanship can certainly play a role, especially in the higher courts.
2. The Supreme Court agrees to an appeal.
After one or more circuit court hands down a ruling, the case can be appealed to the Supreme Court for a final decision. The Supreme Court doesn’t have to accept appeals, but, with same-sex marriage cases now reaching all corners of the country, it’s widely expected they will.
"THE SUPREME COURT WANTS TO BE THE ONE TO DECIDE THIS ISSUE, NOT THE LOWER COURTS"
The chances of the Supreme Court taking the case will also grow if circuit courts give contradictory rulings. If one circuit court rules in favor of marriage equality and another rules against it, that would place a lot more impetus on the Supreme Court to clarify the issue and give a final judgment.
If there aren’t contradictory rulings and all circuit courts support same-sex marriage rights, it’s possible that marriage equality could be established in all the circuits — in other words, nationwide — before the Supreme Court makes a decision.
But even if that happens, the Supreme Court could still take a same-sex marriage case. Given the interest in the issue, LGBT advocates argue the Supreme Court has an interest in settling the issue once and for all — perhaps even before all circuit courts get a chance to give their own judgments.
"My personal view is that the Supreme Court wants to be the one to decide this issue, not the lower courts," Paul Smith, a leading LGBT rights litigator, said in a previous interview. “So the Supreme Court will probably take it.”
3. The Supreme Court rules.
If the Supreme Court accepts a same-sex marriage case, they’ll likely make a precedent-setting decision. There are legal technicalities the court could use to punt on the issue even if it takes a case, but those tactics seem unlikely at this point.
"UNDER DOMA, SAME-SEX MARRIED COUPLES HAVE THEIR LIVES BURDENED, BY REASON OF GOVERNMENT DECREE, IN VISIBLE AND PUBLIC WAYS"
How the court will rule will be an open question until the day of the decision. But LGBT advocates are fairly confident the Supreme Court will rule 5-4 to strike down states’ same-sex marriage bans, just like the court did in the case against the federal Defense of Marriage Act. Key swing vote Justice Anthony Kennedy, after all, wrote the majority opinion that ended the federal government’s ban on same-sex marriages.
"Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways," Kennedy wrote. "By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound."
Similar reasoning could be applied against states’ same-sex marriage bans, and in fact has been applied in lower court rulings that struck down the bans. If that’s the track Kennedy takes, then marriage equality could be nationwide in the next couple years.
Let’s hope marriage equality comes to the USA Nationwide within the next year or two.
h/t: Germán López at Vox
The nation’s last unchallenged state same-sex marriage ban is about to lose that status.
“There will be a case filed challenging North Dakota’s same-sex marriage ban,” says Joshua Newville, a Minneapolis-based civil rights attorney who filed a suit Thursday against South Dakota’s ban on behalf of same-sex couples there.
Newville is in talks with advocates and attorneys in North Dakota and confirmed that either he or another attorney will bring a lawsuit against that state’s ban within six to eight weeks.
Until Wednesday, just three of the 33 states that ban same-sex marriage had not been sued over those policies. But same-sex couples sued Montana that day and South Dakota on Thursday, leaving only North Dakota’s unchallenged.
The same-sex marriage movement has enjoyed a streak of more than a dozen victories in federal courts since a pivotal Supreme Court decision last summer, striking down a central part of the Defense of Marriage Act and granting federal recognition to same-sex married couples. Since then, no state ban has survived a court challenge, according to the Human Rights Campaign, which advocates for same-sex marriage.
The latest two federal decisions, overturning bans in Oregon and Pennsylvania, were delivered last week with officials in both states saying they would not appeal those decisions. Same-sex couples are now allowed to legally marry in 19 states. More than 2 in 5 Americans live in such states, according to HRC.
Nancy Rosenbrahn, 68, hopes to be among them soon. She and her partner Jennie Rosenbrahn, 72, are the lead plaintiffs in the suit filed by Newville over South Dakota’s ban.
The road to taking on that prohibition began last summer. The two wondered what the Supreme Court’s DOMA ruling would mean for their own state’s constitutional ban, passed in 2006 by a 52 percent to 48 percent vote.
Then, after the Obama administration announced in February that it would no longer defend federal laws banning recognition of same-sex marriages, Nancy, whose last name then was Robrahn, decided it was time. She proposed to Jennie, whose last name at the time was Rosenkranz, and on April 26, after 27 years together, each said “I do.”
“I thought I would go to my grave never hearing that,” Nancy said. The wedding took place in Minneapolis and was officiated by Mayor Betsy Hodges. The two changed their last names to Rosenbrahn because, Nancy said, there wasn’t enough space on an official form for a hyphenated name.
She and Jennie were motivated to act because they felt their state should be part of the national movement to legalize same-sex marriage and they felt better protected than others to be a part of the challenge. South Dakota is among 29 states that lack an explicit ban on discrimination based on sexual orientation, according to the Human Rights Campaign. But because the pair own their home and a mobile-home business, they didn’t have to worry about any kind of retaliation from an employer or landlord.
North Dakota similarly lacks explicit protections from discrimination based on sexual orientation, a reality Newville has made clear to couples expressing interest in taking on that state’s constitutional ban on same-sex marriage, which was passed in 2004 in a 73 percent to 27 percent vote.
That lack of protection from discrimination represents one of the next battles in the fight for gay rights, Rosenbrahn says. ”Marriage was the start, but it’s not the end.”
In all, 29 state constitutions and four state laws limit marriage to heterosexual couples, according to a list maintained by the National Conference of State Legislatures. Several of those bans have been ruled unconstitutional in federal court, with some same-sex marriages allowed to proceed even as states appeal those decisions. Some same-sex marriage advocates hope to use the state-by-state fight to secure a Supreme Court ruling in their favor.
Much has changed since DOMA was enacted in 1996. Just 27 percent of respondents to Gallup and Pew polls that year supported same-sex marriage. Support has since doubled. Pew now reports support of 54 percent while Gallup reports 55 percent support.
Source: Washington Post
Fighting & WInning Against Proposition 8
On August 19, 2009, Jo Becker of the Times wrote a front-page profile of Ted Olson, the most well-known and highly regarded conservative lawyer in the country, who had filed a federal lawsuit challenging California’s Proposition 8, which amended the state constitution to prohibit gay marriage. Olson said that he hoped to take the argument to the Supreme Court, to seek a ruling that the Constitution guaranteed every gay and lesbian the right to marry. What’s more, Olson was joined in the lawsuit by one of the most prominent left-leaning attorneys in the country, David Boies, who had been Olson’s opposing counsel in Bush v. Gore. Boies, like Olson, is straight. Becker quoted Paul Katami, one of the gay plaintiffs in the California case, describing how Olson “put his arm around me and said, ‘We’re going to plan your wedding in a couple of years—this is going to happen.’ ”
I remember reading the story at the time and thinking, “This is clever.” A lot of people who were not in favor of same-sex marriage—or who weren’t even thinking about it, as it was only allowed in five states—might now seriously consider the issue. If two of the best lawyers in America, from opposite sides of the political spectrum, joined forces, and had resources comparable to those that they enjoyed when battling on behalf of corporate clients, it seemed like they had a real chance of convincing the Supreme Court that the Constitution did guarantee a right to marry.
The story was so intriguing to Becker that she covered it, full time, for almost five years, arranging with the plaintiffs and their lawyers to obtain unrestricted access to them during the case, on the condition that she not publish the complete story until after it was over. Her book, “Forcing the Spring: Inside the Fight for Marriage Equality,” will be released on Tuesday. (I was interviewed for the book.)
The book focuses on Chad Griffin, a Los Angeles political consultant, Hollywood fund-raiser, and former staffer in the Clinton White House (where he and I briefly worked together). Soon after the passage of Proposition 8, in November, 2008, the idea of hiring Olson was serendipitously suggested to Griffin by an acquaintance of one of his clients, who happened to drop in on their lunch one day at the Beverly Hills Hotel. Griffin was pained by the success of the anti-gay initiative and, like a good public-relations man, he knew better than to pass up a headline-grabbing idea. Olson, much to Griffin’s surprise, was more than eager to take up a challenge to what he regarded as the violation of a constitutionally guaranteed right to marry. Olson and Griffin decided to enlist a liberal co-counsel, to help convince gay-rights groups that their plan was not a sinister anti-gay scheme. After their first two choices declined, Boies agreed to sign on—Becker suggests that Boies liked the case from the start, in part because “its history-making potential and odd-couple story line was sure to garner huge amounts of press interest.” (The lawyers and their backers were so sure of this that they not only arranged for Becker to have behind-the-scenes access, they also had a documentary film crew and an award-winning photographer chronicle the story.)
Their strategy was simple: draw attention to the issue by featuring these new and unlikely advocates; wrap the cause in the American flag; embrace support from those who had come late to the fight; and orchestrate the whole thing like a political campaign. As we now know, this was, in many ways, a brilliant stroke, politically if not legally. The Proposition 8 lawsuit did not succeed in obtaining the broad Supreme Court ruling that Olson and Griffin had hoped for; the justices decided that their opponents didn’t have standing, and left in place a lower-court ruling overturning California’s ban. That did restore marriage rights to couples in that state; still, if that was all that the court had ruled that summer, it might have been viewed as a disappointment. But it was decided the same day as the Supreme Court’s historic decision in the case brought by Edie Windsor and her lawyer Roberta Kaplan to overturn the federal Defense of Marriage Act (DOMA). Becker reports that Olson and Griffin originally considered fashioning their case as a challenge to DOMA, but did not want to pit themselves against President Obama, whose Department of Justice would have had to defend the law. Still, there is no question that the Proposition 8 case was a major factor in the shift in public opinion that laid the political groundwork for Windsor.
It was the Court’s ruling in Windsor, not the Proposition 8 case, that has become the legal basis for a number of other cases seeking full federal recognition of same-sex marriage rights, which are now working their way through the appeals courts. One or more of these cases—possibly including a new one brought by Olson and Boies—will reach the Supreme Court in a year or two. As Becker describes in considerable detail, the California case and the strategy behind it worried and angered the established gay-rights legal community, which believed that the suit was too aggressive, might precipitate a Supreme Court ruling that could set back the cause, and was liable to upset the long-gestating, incremental legal strategy already under way—not to mention that two straight corporate lawyers, Boies and Olson, would get the credit if it succeeded. Becker reports that Paul Smith, the openly gay lawyer who argued Lawrence v. Texas before the Supreme Court, turned down a request to join the case from Olson and Griffin, because he believed that their approach was too risky. There was more to that than Becker perhaps acknowledges. But the Proposition 8 argument turned out to be insightful: it anticipated a developing shift in American public opinion on this issue, while at the same time helping to accelerate it. And whatever the internal battles, other gay civil-rights groups were at least publicly supportive of it. They helped to lay that groundwork, too.
Becker’s account of the hearings, and her analysis of the complicated legal theories involved in the long appeals process, are excellent. Her writing about the four plaintiffs in the case—the true emotional heroes of this book—is particularly affecting. The book is not, however, a neutral account of what happened: it is an account as seen largely through the eyes of Griffin and Olson. It could be argued that Becker is not sufficiently careful in drawing attention to this distinction, but I think any knowledgeable reader will understand that this is the case. The book is a rather adoring narrative profile of these two men and what they went through in an effort to change history, and perhaps to make their own personal marks on it. Here are a recently “out” and fairly conservative young gay Democrat from Arkansas and a very prominent Republican attorney who symbolized the triumphant conservatism of the Bush years, joining forces to fight for gay equality.
Even before its release, the book has attracted considerable attention: an excerpt appeared in the Times Magazine, detailing Obama’s own struggle to “evolve” on the issue, which I wrote about here. Late in the book, Charles Cooper, the lawyer who argued against Olson and Boies, reveals to Becker that his daughter is a lesbian—and this tidbit was leaked to the press last week to help create more pre-publication buzz. The portrait of Cooper, whom Becker interviewed at length after the case ended, is beautifully nuanced. “My views evolve on issues of this kind the same way as other people’s do, and how I view this down the road may not be the way I view it now, or how I viewed it ten years ago,” Cooper told her. That kind of admission would seem to be the whole point.
For the most part, Becker does not write about participants in the campaign for marriage equality who were not directly involved in bringing the Proposition 8 case, except to highlight their skepticism about what she clearly believes was an excellent legal strategy. Indeed, a reader coming to the story only through this book would miss something important about the roles of Evan Wolfson, whose Harvard Law School thesis formed the basis for the marriage-equality movement and who has continued to be a legal and political leader on the topic; Andrew Sullivan, who gave the movement intellectual heft with his writings on gay marriage in the nineties; and Mary Bonauto, the adored lawyer for the movement who brought the first successful marriage case in Massachusetts, among many others.
Anyone who wants a complete history and overview of the gay-rights movement can read Linda Hirshman’s excellent and comprehensive “Victory: The Triumphant Gay Revolution,” published in 2012, or, even before that, Dudley Clendinen and Adam Nagourney’s “Out for Good: The Struggle to Build a Gay Rights Movement in America,” published in 2001, which is still a treasure. But if you are interested in the story of how a Hollywood political consultant and a conservative lawyer joined forces in 2009, in the belief that they could really make a difference, and, no doubt, gain some notoriety for themselves and their cause, helping to dramatically change the way Americans thought of gay people and the way gay people thought of themselves—this book is for you. The real story it tells is how seemingly small moments, occurring by happenstance, when combined with boldness and imagination, can help to change the course of history. There is a moment toward the end of the book when Olson expresses some self-doubt, as he prepares to argue the case before the Supreme Court, but one of his longtime conservative friends tells him, “You’ve already won.”
Richard Socarides is an attorney and longtime gay-rights advocate. He served in the White House during the Clinton Administration and has also been a political strategist. He now oversees public affairs at GLG. Opinions expressed here are only his own. Follow him on Twitter @Socarides.
Photograph of Ted Olson by Amanda Edwards/Getty.
Source: Richard Socarides for The New Yorker
Stockman: "Obama Administration Marriage Equality Stance 'Setting Up For A Dictatorship'" | Right Wing Watch
Texas congressman and U.S. Senate candidate Steve Stockman criticized the Obama administration’s position on the Defense of Marriage Act (DOMA) during an interview yesterday with Religious Right talk show host Janet Mefferd.
Stockman said the administration’s refusal to defend DOMA “undermines the whole concept of our country” and insisted that people “should have pickets” in Washington. “You’re really setting up for a dictatorship,” he said. “It’s really pretty frightening for the children and grandchildren down the road, this is really a dangerous example to set.”
Of course, Obama is far from the first president to decline to defend a federal law the administration deemed unconstitutional.
From the 02.25.2014 edition of Salem Radio Network’s The Janet Mefferd Show:
h/t: Brian Tashman at RWW
In an interview with WorldNetDaily today, Eagle Forum founder Phyllis Schlafly compared the Supreme Court’s decision in U.S. v Windsor to the infamous Dred Scott case, arguing that the landmark marriage equality decision should not be used as legal precedent.
Attacking President Obama for his “dictatorial attitude” and “judges who think they can do anything they want,” Schlafly urged Americans to simply ignore the legal precedent set by gay rights decisions. Schlafly recalled how Republicans in the 1850s argued that the Dred Scott decision shouldn’t set a binding legal precedent. “We should reject some of these laws that try to write into the Constitution gay marriage, which is not a constitutional right,” she said.
h/t: Miranda Blue at RWW
Sens. Ted Cruz (R-TX) and Mike Lee (R-UT) have introduced a Senate version of the “State Marriage Defense Act,” a bill that would prohibit the federal government from recognizing same-sex couples’ marriages if they live in a state that doesn’t recognize them. This “You’re Not Married Anymore” bill would mean that families would lose all their federal protections simply by crossing the border into another state.
The legislation is a workaround since the Supreme Court overturned the Defense of Marriage Act last year, reasoning that the federal government could not refuse to recognize legally valid marriages performed in the states. Since then, the Obama administration has been using a “place of celebration” standard, meaning that as long as a same-sex couple’s marriage was valid where it was performed, it continues to be valid for most federal purposes (like tax benefits, etc.), even if they travel or move to a state that bans same-sex marriage.
EARTH TO TED CRUZ AND MIKE LEE: Your anti-marriage equality bill will fail big.
Rep. Steve Stockman (R-TX) yesterday called into The Steve Deace Show where he accused President Obama of acting like an emperor on issues like health care reform and the Defense of Marriage Act.
“It’s amazing what they’re saying is covered by Obamacare,” the congressman continued. “If you decide to become transgender you can also get that covered…‘The next time I call your show,’” he said in a high-pitched voice.
From the 11.14.2013 edition of The Steve Deace Show:
h/t: Brian Tashman at RWW
The National Organization for Marriage (NOM), the leading force behind the now-failed effort to stop marriage equality, announced in September that it will be joining the ugly fight against a law passed in California to protect transgender children in schools from bullying and discrimination. The move is completely outside NOM’s claimed mission to “defend” marriage as an institution of “one man and one woman.” But it’s not a shocker. We’ve seen it all before among radical right groups hellbent on enforcing a religious agenda.
During the ’80s and early ’90s, amid the darkest years of the AIDS epidemic and well before the reality of marriage equality, conservative religious groups that were focused on battling against abortion rights would sometimes meet with limited success. The groups often shifted into gay-bashing campaigns (augmenting the work of lesser-known, diehard anti-gay activists) as a way to raise lots of money to re-energize their anti-abortion crusades. The Oregon Citizens Alliance (OCA), for example, got an initiative on the ballot in that state in 1990 to require parental notification for abortions by minors. It failed, and the OCA came back in 1992 with Measure 9, which would have had the Oregon Constitution deem “homosexuality, pedophilia, sadism and masochism as abnormal, wrong, unnatural, and perverse.”
That failed too, but not until after a long, brutal campaign punctuated by hate and violence in which the OCA and other groups raised a lot of money. The issue of gay and lesbian rights was always a cash cow, because there was much fear and misunderstanding about gays, a tiny and often invisible minority at the time. AIDS only exacerbated that, as the right exploited a panic over the epidemic and further stigmatized gays as diseased, dirty and disgusting. Radical right groups promoted fear and ignorance, putting money in their coffers for the larger ideological battles they were waging against women’s right to choose, secular society, free speech and what they saw as widespread sexual immorality — battles that have re-energized them over the years and which they are still waging, sometimes with alarming success (as evidenced by recent anti-abortion legislation in the states), using the Republican Party to do it.
Today, with Hawaii on the verge of becoming the 16th state to pass marriage equality, and with gays much more visible, conservative ideologues are having a harder time on the issue, including trying to raise money around it. But it doesn’t mean they’re any less ferociously focused on taking away the rights of gays — or women, or Muslims, or atheists or any other group that doesn’t fit their Christian theocratic worldview.
Enter transgender rights, the newest potential cash cow for the extremist right. NOM has joined the fight against a bill signed by Gov. Jerry Brown this year that allows trans students to define their genders themselves, choose which restroom they want to use and decide whether to play on girls’ sports teams or boys’ sports teams, in accordance with their gender identity. And this week, the California group attempting to repeal the law announced that it has enough signatures to bring the issue to the California ballot next year (though it’s not clear whether they actually have enough signatures), setting up a similar battle to that of Prop 8, which NOM helped pass. Frank Schubert, the strategist who exploited voters’ ignorance and irrational fears about gays and children to pass Prop 8 (and who crumbled under questioning when I interviewed him), is leading the effort.
NOM had a terrible year in which the Supreme Court struck down a key section of the Defense of Marriage Act and invalidated Prop 8. Last week alone the group saw Illinois and Hawaii move forward on marriage equality. Its own fundraising appears to have dwindled from the days when NOM would make splashy announcements about big donors. NOM and other groups think they can raise a lot of money on fear and ignorance about trans people.
You can only imagine the kind of hate that NOM and other groups will inject into a campaign to take away needed protections for transgender students. NOM and the radical right can’t be allowed to win with anti-democratic ballot measures in which the majority strips away the rights of a minority. And we also should remain aware of how intricately all these issue are tied together. Abortion rights, sexual orientation and gender identity all involve decisions about what you do with your own body and about keeping the state from controlling your body. Religious extremist groups may shift focus, or even seem to back off from one issue or another from time to time. But there’s no doubting that they’re gunning for the rights of all of us.
Concerned Women for America communications director Alison Howard joined CBN’s David Brody this week to talk about what it’s like to be a young person advocating against gay rights.
Howard told Brody that she sees the Supreme Court’s decision striking down a key part of the anti-gay Defense of Marriage Act in light of Roe v. Wade in that both will somehow deprive the world of mothers and fathers.
"Forty years ago, our parents faced a very big decision in Roe v. Wade," Howard said. "They decided at that point to allow the Supreme Court, nine people in black robes, to step in and try to decide for the entire nation the right to abortion. Forty years later, we see the consequences, don’t we? We see men and women hurt, 55 million children lost. And we’re dealing with that as individuals and our families, knowing everyone has a story of someone they know who has been affected."
“For 55 million children lost, you think about how many moms and dads, potential moms and dads, there were there that lost their motherhood or their fatherhood,” she added.
She predicted that the Supreme Court’s DOMA decision would create the same kind of “pain.”
“Conservatives and christians,” she said, will “have to deal with this, in 40 years maybe, the pain that comes from this, of what we have to deal with with children and hurt women and hurt men.”
h/t: Miranda Blue at RWW