Marriage update – North America

Timothy Kincaid

January 25th, 2013

It’s getting marriagey all over the place. And it’s also getting hard to keep track of what is going on where. So here is an update to help (which will probably be outdated by the time I hit “publish”).

North America:

Canada – Marriage has been equal since 2005.

Mexico – Marriage is equal in Mexico City, and marriages conducted there are recognize throughout the nation. However, in December, the Supreme Court unanimously found that an anti-gay marriage law in Oaxaca was unconstitutional. Due to Mexico’s complicated legal system, this means that marriages are highly likely to eventually be legal throughout the nation, but the process requires that five same-sex couples in each state file an amparo (civil rights claim) and that the court issue the same ruling on each. It may take some time for the legality of the state by state process to catch up, but the reality is that any Mexican couple wishing to marry probably can, either immediately or through petition.

United States – Several locales provide or have provided marriage equally:

  • Massachusetts – 2005 2003
  • California – 2008, but rescinded that year
  • Connecticut – 2008
  • Vermont – 2009
  • Iowa – 2009
  • New Hampshire – 2010
  • The District of Columbia – 2010
  • New York – 2011
  • Washington – 2012
  • Maryland – 2012
  • Maine – 2013

In addition, two Native American tribes, the Coquille in Oregon and the Suquamish in Washington provide marriage equally to their members.

Current and upcoming movement on the marriage front includes:

* DOMA3 – several federal courts have found the federal prohibition on recognition of legally married same-sex couples – the Defense of Marriage Act, Section 3 – to be unconstitutional on several grounds. The Supreme Court of the United States has agreed to hear one case, Windsor v. the United States, a case in which Edie Windsor was assessed in excess of $300,000 in inheritance tax from her wife’s estate, a tax that does not apply to heterosexuals. On Tuesday, the special counsel for the House Bipartisan Legal Advisory Group (at the direction of House Speaker John Boehner) filed its arguments in defense of the law (I’ll try to get an analysis up soon). It argued that BLAG has standing to support the law, that only rational basis should apply to anti-gay discrimination, that the nation needs uniform recognition, and that states should be allowed to decline to offer equality if they so choose (thus, I assume, vetoing other states in the name of uniformity). Today Professor Victoria C. Jackson will, at the court’s request, filing a brief insisting that BLAG has no standing and on February 26th, Windsor’s team will present arguments as to why she should not be discriminated against. Oral arguments before SCOTUS will be on March 27th, and the Court will likely release it’s ruling in June. Whichever way it goes, it will probably only impact couples in states which allow marriage.

* Proposition 8 – this is the highest profile case, but it could end up having the least legal effect. In 2008, the California Supreme Court found the state’s law prohibiting same-sex marriage to be a violation of the state’s constitution. For several months, same-sex couples could legally marry, but in November the voters approved Proposition 8 by 52%, ending marriage equality in the Golden State. In May 2009, Ted Olson, one of the most prominent Republican attorneys and David Boies, one of the most prominent Democratic attorneys, teamed up to fight for the legal overturn of that proposition. In January 2010, though cameras were banned from the courtroom, the nation was captivated by the reporting about the case – a trial not only on the legality of the proposition but also on its merits. Federal Judge Vaughn Walker eventually found the proposition to violate the US Constitution on broad grounds. The Ninth Circuit Court of Appeals upheld the decision, but on much narrower grounds: that a state cannot provide a right to all citizens and then take it away from a select few. Last month the Supreme Court agreed to hear the appeal, but added the question as to whether the proponents defending the law (the Governor and Attorney General declined to do so) have standing. On Tuesday the proponents of the law filed their brief (I’ll try to get an analysis up soon). Olson and Boies have until February 21st to respond, and oral arguments will be on March 26th with a likely result in June. While the Court could find that the US Constitution guarantees marriage equality across the land, it could also choose to narrow its ruling to the unique issues of the case and only impact Californians.

* Rhode Island – on Tuesday, the House Judiciary Committee unanimously approved the marriage bill. The full House voted in favor today 51-19. However, the Senate is less certain. Although Rhode Island is virtually a single-party state (the Senate has 32 Democrats, 5 Republicans, and 1 Independent), the Senate President, Teresa Paiva-Weed, is an opponent to equality. She has said that she will allow a committee to hear the matter, but in times past she has made certain that committees were selected to prevent equality.

I have started a petition at Change.org to request that should Paiva-Weed obstruct or block the passage of this bill, that Rhode Island State Senators remove her from power. Please go sign this petition.

* Illinois – a marriage bill was submitted during the first week of the year in a lame-duck session. Due to difficulty in corralling members returning from holiday, the vote never took place.

After the new legislature was is session, the bill was reintroduced. Currently the status is a bit in limbo as the bill is yet to be sent to committee.

However, that does not mean that there is no excitement, just that it’s happening outside the legislature and in an unexpected arena. The GOP chairman has come out in favor of marriage, which has angered social conservatives in the state. Bit though they are demanding his resignation and threatening ouster, the party insiders are lining up behind the chairman. At the moment it seem like the prevailing position may end up, “we may not support equality, but we support those who do.” In any case, this latest public squabble serves our community well.

* Minnesota – fresh off a victory in turning back an anti-marriage bill in November, Minnesotans for All Families is fighting on and will present a marriage bill to the legislature next month. The political strategist who generaled the battle is staying on to finish the war.

Polls are breaking even in the state and the DFL (Democratic) party has a slim lead in each house, so they will have their work cut out for them. But I would be surprised if the state did not take some movement towards couple recognition.

* Colorado – supporters filed an everything-but-the-name Civil Unions bill which is pretty much guaranteed to pass. More than half of each house has signed on as sponsors. This is as far as that state can go at present, as there is a state constitutional ban on equality.

* Wyoming – out of pretty much nowhere and flying way below the radar, lesbian Sen. Cathy Connolly has file both a domestic partnership bill and a marriage bill. Both have significant Republican support.

They may not be attracting much buzz on these bills due to party power; Republicans dominate both houses by overwhelming numbers. But Wyoming Republicans are traditionally pretty libertarian in their thinking and local papers are mostly quoting the bills’ Republican cosponsors. It may be early yet, but so far there doesn’t appear to be any visible organized opposition. I would not be altogether shocked if one of the bills passed or, at least, got a decent vote.

* New Jersey – the legislature of this state has already passed a marriage bill which was vetoed by the governor. However there are the paths to equality that might be achievable.

One is to take it to the people. But though a supporter brought such a bill, it was quickly dismissed due to the inherent insult of voting on a minority’s civil rights. (Personally, I’d rather win at the polls that fight over whether its an insult to do so.)

The second path, the one favored by equality leaders in the state, is to continue building support one by one until we have the numbers to override a veto. That would require substantial Republican support and this would be held off until after the next primary to minimize conservative backlash.

The third possibility doesn’t appear likely, but it shouldn’t be written off. Governor Chris Christie is a politician, and politicians are susceptible to evolution.

Christie made his mark in the Republican Party by being hard nose on fiscal issues but being more progressive on social issues. He was the poster boy for supporting civil unions, a position that made him seem ahead of the curve. As the Party moves away from anti-gay hostility, he may find it necessary to move as well. It’s not a bet I’d take, but it’s not outside the realm if possible for the Governor to hold to his views but still find some way to allow marriage to become law.

* Hawaii – I’ve no idea why marriage hasn’t already become law.

I think it can be hardest sometimes in states in which one party dominates. In mega-red states, we have little hope (though i just made a case for Wyoming). But in all-blue states, its not always much better. There’s no reason for Democrats to show the voters the difference between them and Republicans, so they fell less pressure to live up to their potential.

I’m sure I’ve missed some state in there. And, of course, you have to always expect that something completely unexpected will happen.

Tomorrow I’ll try to provide an update for Europe and South America.

UPDATE:

Yesterday, a state representative in Hawaii filed a bill for marriage equality. She had no cosponsors. Also yesterday, 15 representatives filed a bill calling for a constitutional amendment banning equality. It was also introduced in the senate. Additionally, a state senator filed a pair of ‘take it to the people’ bills which would have voters choose to either allow or ban marriage in the constitution (he’s an opponent of equality). All in all, it looks dire for marriage in Hawaii.

Aaron

January 25th, 2013

The Goodridge decision that brought about marriage equality in MA was in 2003, and took effect in 2004, not 2005.

F Young

January 25th, 2013

Thanks for this compilation, Tmothy.

Prof. Jackson has already filed her brief; it is here:
http://equalityontrial.com/2013/01/24/court-appointed-attorney-files-amicus-brief-in-edith-windsors-doma-case-on-jurisdiction-and-standing/#idc-container

Marriage bills were filed in Hawaii yesterday:
http://www.towleroad.com/2013/01/marriage-equality-bills-introduced-in-hawaii.html

Keppler

January 25th, 2013

Can you provide a link to your Change.org petition advocating for Pavia-Weed’s removal should she obstruct a vote of the senate. Thanks.

Hyhybt

January 25th, 2013

That other Victoria Jackson must be thrilled…

Has there been any effort in Colorado to reverse their constitutional amendment? Seems like, if they can get majorities in both houses as cosponsors on strong civil unions, it would at least be worth a shot to try that too.

Timothy Kincaid

January 25th, 2013

Thanks for the corrections/updates

Ed W

January 26th, 2013

I have fond memories of standing in the big happy crowd that filled the front lawn of City Hall in Cambridge MA to celebrate as the first marriage licenses were issued to same-sex couples in the first hours of May 17, 2004. Each couple got a rousing cheer as they emerged from the doors with their license. The government of Cambridge was anxious to be the first to issue licenses to same-sex couples, and they were the only place in MA to start handing them out the moment it became legal just after midnight.

Doug

January 26th, 2013

We need to start putting marriage equality before the voters in states where there is majority support if the legislature fails to act.

Doug

January 26th, 2013

I think Hawaii goes for marriage equality if it goes on the ballot.

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