Box Turtle Bulletin

Marriage in the Western states, brought to you by Abbott Labs

In January, the Ninth Circuit Court of Appeals ruled on a HIV drug pricing dispute between GlaxoSmithKline and Abbott Laboratories. Part of the dispute was over whether a potential juror could be excused because he was gay. Although Abbott insists that they excused him for other reasons, the Ninth Circuit found otherwise and ruled that just as one cannot exclude racial minorities or women from the jury pool, gay people also could not be excluded.

But the more important portion of their ruling had to do with why a gay man could not be excluded. For the first time at the Appeals Court level, it was determined that discrimination based on sexual orientation is subject to heightened scrutiny. This was a game changer.

Although courts have increasing held that gay people are entitled to equality in marriage and other matters, they’ve done so on ‘reasonable basis’ determinations, the lowest level of consideration. It is generally agreed that if laws that segregate by orientation are held to heightened scrutiny, few if any can survive.

In fact, so certain is this conclusion that the Democratic Attorney General and Republican Governor of Nevada decided that they would not even defend their state’s anti-gay marriage ban, citing the Ninth Circuit’s ruling.

However, all of this is subject to the US Supreme Court upholding or striking down the Ninth Circuit’s standard of scrutiny. If they were to hear Abbott Lab’s appeal (or that of AbbVie, the spin-off that is now the legal party in the dispute), they could strike down this decision and deal a rather heavy blow to the community.

But they won’t.

Because they are not going to hear the appeal.

Because Abbott Labs has decided that some things are more important than winning in court. (BuzzFeed)

An AbbVie spokesman, Dirk van Eeden confirmed that the company would not be pursuing further appeals in the case.

“AbbVie recognizes that the implications of the Court’s findings extend far beyond the underlying case. For that reason, we chose not to appeal,” van Eeden told BuzzFeed.

This is a potentially multi-million dollar decision. Frankly, I’m a bit stunned.

They may still appeal another section of the ruling. And perhaps they figured they’d lose anyway so why put out the cost of appeal. Or maybe they didn’t want to alienate customers.

But on the face of it, AbbVie chose to behave like a good citizen and neighbor. And because of that decision, I believe that probably before the end of the summer all area covered by the Ninth Circuit – Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, and possible Guam and the Mariana Islands – will have marriage equality.

Marriage comes to United Methodist Church, in New York

Bishop Martin McLee

The United Methodist Church has been split for decades over the issue of where gay people fit within the body of faith. Many churches, even districts, have made loud gestures of inclusion and advocated for equality. But the UMC is a global, rather than national, denomination and representatives from Asia and Africa have allied with conservatives in the US to block advancement and inclusion. And so gay members remain banned from the clergy and officiating at same-sex marriages is forbidden.

Consequently, there is a growing sense of frustration by many of the UMC laity and clergy and an increasing likelihood of schism. This has been exacerbated by the ferocious and punitive responses by conservative Methodists who, holding the advantage of votes from foreign delegates, have arrogantly imposed their values on the majority of American Methodists.

The latest example was in November when a church trial in Pennsylvania convicted Frank Schaefer of violating the Methodist Book of Discipline by officiating at his son’s wedding. Those leading the charge were vile in their attack and succeeded in having Schaefer de-credentialed.

In response, Minerva Carcaño, UMC Bishop of Los Angeles, invited Schaefer to Southern California to work out of her office and to minister, though in a somewhat lesser capacity.

But while Schaefer’s trial caught the attention of the church and the public, it promised to pale in comparison to the scheduled trial of another Methodist minister accused of breaking the church’s doctrine by officiating at his son’s wedding. Schaefer was somewhat obscure, but Rev. Dr. Thomas W. Ogletree is not. (Yale)

Professor Ogletree has served as dean of Yale Divinity School (1990–96) and the Theological School at Drew University (1981–90). He was director of graduate studies in religion at Vanderbilt University (1978–81). He is the author of five books… He was also one of the principal drafters of the current United Methodist Disciplinary statement on doctrinal standards. Under the auspices of a Guggenheim Fellowship and a Cross-Disciplinary Fellowship from the Society for Values in Higher Education, he pursued postdoctoral studies at the Free University in West Berlin, and at the Center for Advanced Studies at the Sorbonne in Paris. He is a life member of Clare Hall at Cambridge University.

Defrocking a pastor of a rural Pennsylvania church is one thing. But seeking to expel the former dean of Yale Divinity School from your denomination commands global news coverage, and not in a way that makes your church look more Christian.

And so, with less than a week before trial, the bishop responsible for Ogletree’s trial made a dramatic decision. (NYTimes)

Bishop McLee, who oversees about 460 churches in lower New York State and Connecticut, agreed to drop all charges against Dr. Ogletree; in exchange, he asked only that Dr. Ogletree participate in a dialogue about the church and its stance on matters of sexuality. Promoting dialogue, the bishop said, could be a model for other United Methodist bishops to follow.

“While many insist on the trial procedure for many reasons, I offer that trials are not the way forward,” Bishop McLee said in a statement attached to the resolution of Dr. Ogletree’s case. “Church trials result in harmful polarization and continue the harm brought upon our gay and lesbian brothers and sisters.”

McLee said that he would not prosecute cases in his district in which UMC ministers violated the Book of Discipline by officiating at same sex weddings, effectively giving permission to begin UMC gay marriages in New York.

It is too soon to know whether other bishops follow McLee’s lead, but I think it likely. And the consequence will be either to disunite the Methodists, or to result in an uneasy alliance under which each bishop or church can follow their conscience and the conservatives will fade into the corners. But irrespective of the eventual consequence to the denomination, to gay and lesbian Methodists this is an exciting and joyous moment.

Marriage support in two graphs

Pew research has conducted another poll on marriage equality. You may have heard the headline that now 54% of the US population now supports equality; but here are two graphs that make it clear as to why the picture is much more positive than just “four percent more than half”.

More GOP voices for equality

From the NYTimes

Evoking Ronald Reagan and Barry Goldwater, a group of Western-state Republicans plans to enter the battle in favor of same-sex marriage on Tuesday, urging a federal appeals court to declare gay marriage bans in Utah and Oklahoma unconstitutional.

The most prominent of the approximately 20 signers of the brief are former Senator Alan K. Simpson of Wyoming, a longtime supporter of gay rights, and former Senator Nancy L. Kassebaum of Kansas, who said last year that she had reconsidered her former opposition to same-sex marriage. The document says that “marriage is strengthened” and “the social stability of the family unit are promoted” by allowing gay and lesbian couples to marry.

Neither of those names is exactly surprising, but very welcome. For too long mainstream Republicans have let the far right be the face and voice of the party on social issues so, while they have a long way to go, it is encouraging to see momentum build in the moderate side of the party.

And Texas falls

Dallas Morning News

A federal judge in San Antonio ruled Wednesday that Texas’ ban on same-sex marriage unconstitutionally deprives some citizens of due process and equal protection under the law by stigmatizing their relationships and treating them differently from opposite-sex couples.

U.S. District Judge Orlando Garcia cited recent U.S. Supreme Court rulings as having trumped Texas’ moves to ban gay marriage.

“Today’s court decision is not made in defiance of the great people of Texas or the Texas Legislature, but in compliance with the U.S. Constitution and Supreme Court precedent,” he said in his order. “Without a rational relation to a legitimate governmental purpose, state-imposed inequality can find no refuge in our U.S. Constitution.”

The decision is on hold pending appeal at the Fifth Circuit Court of Appeals.

Garcia is a former Democratic Texas State Representative from San Antonio. He was appointed to the bench by President Bill Clinton.

This should all prove to be interesting. Texas has more than it’s fair share of those opposed to treating their neighbor like themselves and Texan’s are unusually willing to let their biases and bigotries be known.

Wyoming House votes down anti-gay marriage bill

Yesterday we reported that the Wyoming House of Representatives had rejected a marriage equality bill by a 41 to 17 vote. Later in the day, the House also rejected an anti-gay marriage bill. (SFGate)

The state later Thursday voted down a bill sponsored by Casper Republican Rep. Gerald Gay that would have specified that Wyoming wouldn’t recognize same-sex marriages performed elsewhere.

Cheyenne Rep. Dan Zwonitzer [R – Cheyenne] spoke against the bill, saying the “Equality State” shouldn’t take a step backward.

The House voted against introducing the bill by a vote of 31-to-29.

I suppose the message here is that the Wyoming House of Representatives is not ready to support marriage equality. Yet. But they’re on their way.

Perhaps it is time to try again for Domestic Partnerships.

Wyoming House votes down a marriage bill

From SFGate

The Wyoming House has defeated a bill that would have changed state law to allow same-sex marriages.

Democratic Rep. Cathy Connolly of Laramie sponsored the bill. It would have removed the state’s current legal specification that marriage is a civil contract between a man and a woman.

The House voted 41-to-17 against the bill on Thursday.

I don’t think anyone expected this bill to pass. What’s interesting, however, is that the Wyoming House has 52 Republicans and 8 Democrats. Which means that a marriage equality bill in Wyoming got the support of 9 Republicans.

And that is a sign of progress.

Indiana’s anti-gay marriage ban delayed two years

The Indiana Senate has passed the House version of a bill to amend the state constitution to define marriage as one man and one woman.

This is actually good news.

In order to amend the constitution, the bill must pass two separately elected legislatures with identical language and then be ratified by a vote of the electorate. In 2011 the legislature passed a bill that would ban same-sex marriage and also civil unions. Had it passed again, it would have gone to the voters this fall.

But this year the Indiana House of Representatives revised that bill to remove the civil unions restrictions.

There was some concern that the Senate might put the original language back into the bill. But now that the Senate has opted to accept the House’s version, it resets the clock and the earliest that the bill can be on the ballot is 2016.

And by then, political will may bring the death of the bill entirely. Or, perhaps, the conservatives may decide that they really really do want to put the civil unions ban back in and push it even further down the road.

More about ‘liberal’ Judge Heyburn

Yesterday U.S. District Judge John G. Heyburn II ruled that Kentucky’s ban on recognizing same-sex marriages from other states violates the U.S. Constitution’s Equal Protection clause.

Immediately, the antigay ranting voices started screaming about liberal activist judges.

Family Foundation of Kentucky (Courier-Journal)

Martin Cothran, an analyst for the Family Foundation of Kentucky, said the decision “puts Kentucky voters on notice that if their reasons for defining marriage as between a man and a woman don’t correspond with the political ideology of liberal judges, their votes don’t count.”

National Organization for Marriage

“Today yet another federal judge has entered the competition for lawlessness on the marriage front,” said Brian Brown, NOM President.

Family Research Counsel’s Tony Perkins

This ruling is another example of the deep betrayal of a judicial system infected with activist judges who are legislating from the bench.

So here’s a bit more about ‘lawless liberal activist’ Judge Heyburn from his bio:

From 1976 until his appointment to the bench, Judge Heyburn was associated with the law firm of Brown, Todd & Heyburn, where he was a partner at the firm from 1982 through 1992. His legal practice focused on civil litigation, with an emphasis on problems within the construction industry. Judge Heyburn also served as special counsel to then Jefferson County Judge Executive Mitch McConnell [who went on to be conservative Republican Senator McConnell]. Judge Heyburn was active in civic and political affairs in Kentucky. He was a delegate to the 1984 and 1988 Republican National Convention.

On March 20, 1992, President Bush nominated Judge Heyburn to the United States District Court for the Western District of Kentucky. He was confirmed by the United States Senate in August, 1992. From December, 2001, to December, 2008, Judge Heyburn served as Chief Judge of the Western District of Kentucky.

(hat tip GoodAsYou)

Portion of KY ban on equality ruled unconstitutional

From the Courier-Journal

A federal judge Wednesday struck down Kentucky’s ban on recognizing valid same-sex marriages performed in other states, saying it violates the U.S. Constitution’s guarantee of equal protection under the law.

U.S. District Judge John G. Heyburn II joined nine other federal and state courts in invalidating such bans.
…
Heyburn did not rule that Kentucky must allow gay marriages to be performed in the state.

Heyburn is a Kentucky native and former Army Reservist. He was appointed by President George H.W. Bush at the recommendation of Senator Mitch McConnell (R). Predictably, the antigay groups are already calling him a “liberal judge”.

Nevada Gov and AG pull state’s defense of marriage ban

Although Nevada generally allows its residents and visitors a greater degree of personal freedom, it was the fourth state to pass a constitutional amendment disallowing gay citizens equal access to marriage.

In 2000, 70% of voters passed the following language: “Only a marriage between a male and female person shall be recognized and given effect in this state.” As Nevada requires two votes of the public to amend their constitution, it was brought back to the ballot in 2002, where it passed by 67%.

In 2012, several same-sex couples sued the state in Federal court, arguing that the ban violated the equal protections provisions of the US Constitution. On November 29, 2012, Judge Robert C. Jones, an active member of the Church of Jesus Christ of Latter Day Saints (the Mormons), denied the plaintiffs’ claims in Sevcik v. Sandoval, asserting that “a meaningful percentage of heterosexual persons would cease to value the civil institution as highly as they previously had and hence enter into it less frequently.”

The couples appealed to the Ninth Circuit Court of Appeals.

The named defendants were three county clerks and Governor Brian Sandoval (R). Sandoval is represented by the State Attorney General Catherine Cortez Masto (D). Also given intervenor status was the Coalition for the Protection of Marriage, an anti-gay group.

In January, Cortez Masto filed the state’s defense before the Ninth Circuit. Many gay activists were angered by the Democrat’s language, which they believed compared homosexuality with bigamy and incest.

On January 21st, the Ninth Circuit issued it’s position on a jury selection case resulting from a dispute between two pharmaceutical companies. The result hinged on the court’s determination that gay civil rights cases are to be held to heightened scrutiny, a position that had, until then, been undetermined.

A few days later, Carson City District Attorney Neil Rombardo (acting on behalf of Carson City Clerk-Recorder Alan Glover) pulled his defense of the marriage ban. His opposition had been related to his fears of a slippery slope. But now that gay persons are affored legal status different from bigomists, polygamists, and the like, they were no longer on the same slope. (Las Vegas Review Journal)

Rombardo said Carson City’s initial concern was not that gay marriage should be banned, but rather that legal standards could have invited challenges to other state marriage laws, specifically prohibitions against polygamy.

“I did not oppose equal rights marriage,” Rombardo said. “I do oppose polygamy. I do not think they are one and the same.”

But the 9th Circuit’s decision in the SmithKline case essentially said that homosexuals are a protected class and that heightened judicial scrutiny applies in cases involving alleged discrimination, Rombardo said.

“Any concern I had regarding the previous analysis was gone,” he said.

Now the heightened scrutiny ruling has also caused the Attorney General Cortez Masto and Governor Sandoval to pull their support for the ban. (NY Times)

Attorney General Catherine Cortez Masto, a Democrat, in a motion filed with the Court of Appeals for the Ninth Circuit, said Nevada’s legal arguments defending the ban voters approved in 2002 are not viable after the court’s recent ruling that potential jurors cannot be removed during jury selection solely because of sexual orientation. “The state has determined that its arguments grounded upon equal protection and due process are no longer sustainable,” she said.

Gov. Brian Sandoval, a Republican seeking re-election this year, said he agreed.

“It has become clear that this case is no longer defensible in court,” Mr. Sandoval said in an email to The Associated Press.

This leaves the defense of Nevada’s ban solely in the hands of the Coalition for the Protection of Marriage.

The Ninth Circuit is likely to decide in the favor of the plaintiffs. However, in the Proposition 8 case, the Supreme Court ruled that private groups do not have standing to defend a state, so there is no one to take such a ruling to the Supreme Court.

So the most likely result is that marriage equality will come to Nevada, but that this will not be the case on which nation-wide equality is achieved.

Indiana House amends marriage ban bill

The Indiana House of Representatives has voted to amend the anti-gay marriage ban to remove the second sentence:

Only a marriage between one (1) man and one (1) woman shall be valid or recognized as a marriage in Indiana. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.

The vote to amend passed by a healthy majority, 52 to 43.

The House has not yet voted on the bill itself. But if it does pass both the House and Senate as amended, it cannot go before the voters until the next legislative session passes identical language. This means that the bill cannot go before voters on the November ballot.

UPDATE: 23 of the state’s 69 Republican reps and 29 of 31 Democratic reps voted to strip the second sentence.

Indiana House to vote today on marriage ban

The Indiana House of Representatives will vote around 1:30 today on HJR-3, a bill to place before the voters a constitutional ban on same-sex marriage.

Only a marriage between one (1) man and one (1) woman shall be valid or recognized as a marriage in Indiana. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.

But though Republicans hold a 69 to 31 advantage, the vote’s passage is not a foregone conclusion. (IndyStar)

In an Indianapolis Star poll of all 100 members of the Indiana House, 38 said they planned to vote in favor of House Joint Resolution 3, the proposed constitutional amendment to ban same-sex marriage, while 38 said they would vote no. Another 13 members said they were undecided going into the weekend; 11 declined to give a response. That leaves the outcome uncertain, with 51 votes needed to pass or defeat the amendment.

It seems that the biggest deterrent to supporting the bill is the second sentence, which includes a ban on civil unions or any other form of couple recognition. While Indiana’s voters might oppose equality, this hard stance might be too far for some legislators and could threaten the success of voter ratification in the fall. The bill is also strongly opposed by the business community, which sees it as hostile to recruiting efforts.

The solution for some legislators may be to amend HJR-3 to remove the second sentence. As a bill has to pass two consecutive sessions with identical language, this would effectively table the decision for another two years.

A teary-eyed Grammys

Even had my pastor at the Hollywood United Methodist Church not told the congregation this morning to watch this year’s Grammy Awards because it would have a moment that would reflect our congregation’s values of equality, I had heard enough in advance to know that there would be a recognition of marriage in the show this year. And indeed, when Macklemore and Ryan Lewis sang Same Love, their marriage equality anthem, I was prepared for couples to exchange rings.

So when Queen Latifah officiated marriage for a variety of couples, with vocals from Madonna, I was prepared for a celebration of love (though I will admit that I was surprised that the first couple shown included my long-time friend Yawie).

Yet even so, I was composed. It was a nice touch, but that song was not even nominated for Record of the Year.

But tears came to my eyes watching Sir Paul McCartney stand and raise his fist in the air to agree with Daft Punk’s spokesman who, in their acceptance speech for the night’s highest honor, gave tribute to Macklemore and Ryan’s message:

You know I just got a message from the robots [Daft Punk’s public image] and what they wanted me to say is that as elegant and as classy as the Grammys has ever been is that moment when we saw those wonderful marriages! And same love is as fantastic … and it was the height of fairness and love and the power of love for all people at any time any combination … is what they wanted me to say.

To take their moment in the spotlight to celebrate equality as expressed by someone else’s song was a moment of true generosity and an expression of integrity that few other artists could ever hope to emulate.

Indiana GOP moves gay ban bill to the floor

As expected, the hand-selected committee chosen by Indiana House Leader Brian Bosma has given its rubber stamp to the divisive and discriminatory HJR-3, a proposal to put a gay marriage ban before voters in November. (Journal Gazette)

A panel of Indiana lawmakers has approved a proposed constitutional ban on gay marriage, sending the measure to the House of Representatives for consideration.

The House Elections Committee voted 9-3 to advance the measure Wednesday evening. The vote followed weeks of intense lobbying, emotional testimony and widespread uncertainty on the issue.