Box Turtle Bulletin

Indiana marriage ban moved to another committee

You may recall that last week the Indiana Judiciary Committee heard testimony on a bill to place a constitutional amendment banning marriage equality on the ballot this fall.

At the time, I said that if Republican Party leadership was smart, they would kill the bill in committee. Not only will it hurt the future of the party in the state, it may go down to embarrassing defeat in November and drag Republican candidates down with it.

And, for a moment, it appeared as though that might have happened. No vote was called on the bill.

But, as it turns out, the party leadership is astonishingly stupid. Stunningly so. (IndyStar)

In a highly unusual move, Indiana House Speaker Brian Bosma today moved the controversial same-sex marriage ban to a new committee — where it stands a better chance of passing — after the measure stalled in another committee.
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The measure had a hearing last week in the Judiciary Committee, but House Republican leaders decided against bringing it to a vote amid concerns that three GOP lawmakers might vote against it and kill the amendment.

Bosma said Greg Steuerwald, R-Avon, Elections Committee chairman, told him he was not confident the amendment was going to come to the floor. Bosma said he didn’t talk to the members, but let Steuerwald do that.

OK UMC clergy declare support

Today the Oklahoma United Methodists for Equality ran the following ad in the Tulsa World:

Utah to allow married tax filings for same-sex couples

Just when you thought it couldn’t get any more confusing, the Utah State Tax Commission has announced that same-sex couples who receive Federal recognition as “married” for income tax purposes may also file their Utah State Income Taxes jointly.

2013 UTAH INDIVIDUAL INCOME TAX RETURNS

Same-sex couples who are eligible to file a joint federal income tax return and who elect to file jointly, may also file a joint 2013 Utah Individual Income Tax return as provided in Utah Code § 59-10-503. Eligible married couples may file a joint return if they are married as of the close of the tax year. (As of December 31, 2013, the Supreme Court had not yet issued its stay of the District Court’s injunction).

This applies only to the 2013 tax year.

Who defended may have played a role in OK ruling

As we have seen over and over, when it comes to marriage cases, who has standing may play an important role in the outcome. In the Oklahoma decision handed down yesterday, the case may have also hinged to some extent on who could defend the state’s constitutional amendment.

The case started nine years ago and has gone through a number of procedural hurdles since that time. The first of which may have been unexpectedly important.

In 2004, two lesbian couples filed a complaint against the Oklahoma Governor and the Oklahoma Attorney General seeking that the Federal DOMA law and the Oklahoma Defense of Marriage constitutional amendment be overturned.

The Governor and the Attorney General argued that as the issuer of marriage licenses was the County Clerk and that in Oklahoma the clerks are part of the Judiciary branch of government, the plaintiffs lacked standing to sue them. The court disagreed, but in 2009 the Tenth Circuit bought that argument and the Governor and Attorney General were dismissed.

Along with the state’s legal department.

However, the court allowed the plaintiffs to amend their case to name as defendants the Attorney General of the United States (for the federal DOMA side of the case) and the Tulsa County Court Clerk and the State of Oklahoma. The court then dismissed the State of Oklahoma as a defendant leaving only Eric Holder (for the US) and Sally Howe Smith, the clerk.

In 2011, Holder informed the court that the Justice Department would no longer defend the Federal DOMA case, and the House Bipartisan Legal Advisory Group stepped in. And, if this case is in any way similar to comparable cases, BLAG’s defense was likely nominal.

As the Hollingsworth and Windsor cases were advancing to the Supreme Court, the judge held the case in limbo until SCOTUS was heard. Upon announcement, the BLAG defense filed to have the Federal side of the case found moot and for their participation to be dismissed.

Which left the only counsel defending the amendment those who are described in the ruling as

Smith is represented by the Tulsa County District Attorney’s Office and attorneys with an organization known as the “Alliance Defending Freedom.”

So it appears that the county, having found themselves way over their heads in defending the state and federal constitution, calling in the specialists, ADF. And it is true that when it comes to gay issues, the ADF has a truly impressive record. Astonishing, really.

Well, that is, if you look at things from my perspective. The Alliance Defending Freedom (nee Alliance Defense Fund) are losers on a colossal scale. Over and over. State after state. Case after case.

And yet they are trotted out with their tired old disproven defeated arguments to be the best defenders of “tradition” and “children”. For which I am thankful.

Cuccinelli declares a ban on gay tax returns

The state of Virginia has conflicting law. On the one hand, the constitution of the state includes this language:

Only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions. This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.

On the other, like most states, Virginia tries to closely conform with Federal tax law. In general, states will start with the federally calculated taxable income and make such revisions and adjustments as are necessary to tweak for local differences.

And the Federal Government now recognizes legal same-sex marriages for federal tax purposes, even if the couple is residing in a state, like Virginia, which does not recognize same-sex marriages. So there’s a conflict.

Some states have resolved this by taking a sort of ‘don’t ask, don’t tell’ approach. They work under the logic that they don’t recognize Sally and Sue as married. But if the Federal Government, for it’s own reasons, has decided to act as though Sally and Sue have a ‘married’ filing status (though, in our non-recognition, we have no idea why), then those two single gals should file their state taxes using the same filing that the Feds (for some unrecognized reason) requires of them.

But failed gubernatorial candidate, Ken Cuccinelli (R), certainly has no desire for his state to allow gay people the same ‘lower taxes’ rights that he champions for heterosexuals. Cuccinelli is one of those ‘small government conservatives’ who believes that the role of government is to monitor and restrict the minutia of your sex life.

And on his last day serving as the Attorney General of the state, he issued an opinion as to the legality of allowing the State Department of Revenue to follow the lead of the Internal Revenue Service:

It is my opinion that a Governor may not direct or require any agency of state government to allow same-sex couples to receive joint marital status for Virginia income tax returns. Such a directive would represent an attempt to exercise legislative powers in violation of the constitutionally mandated separation of powers and would also violate the express terms of Article I, § 15-A of the Virginia Constitution.

Because, you know, Teh Ghey!

Views about marriage in Utah

They might not be what you think they are. From the Salt Lake Tribune:

Residents are now evenly split on whether same-sex couples in Utah should be allowed to get state-issued marriage licences — 48 percent for and 48 percent against — and nearly three-fourths (72 percent) said same-sex couples should be allowed to form civil unions or domestic partnerships in lieu of marriage.

NYTimes takes on Utah’s no-gay-marriage arguments

The New York Times takes on the arguments (three, so far) presented by the state of Utah as to why their ban on same-sex couples marrying is a legitimate state interest. It’s quite funny. Here’s their take on the second argument:

In the Supreme Court, state officials changed tack. They pressed a different argument, one built on a contested premise.

“A substantial body of social science research confirms,” the brief said, “that children generally fare best when reared by their two biological parents in a loving, low-conflict marriage.”

Lawyers for the couples challenging Utah’s ban on same-sex marriage responded that the assertion “is not true.” For evidence, they cited “the scientific consensus of every national health care organization charged with the welfare of children and adolescents,” and listed nine such groups. The view of the groups, the challengers said, “based on a significant and well-respected body of current research, is that children and adolescents raised by same-sex parents, with all things being equal, are as well-adjusted as children raised by opposite-sex couples.”

Utah responded that it would not be swayed by “politically correct trade associations,” referring to, among others, the American Academy of Pediatrics, the American Medical Association and the American Psychiatric Association. “We are not ruled by experts,” the state’s brief said.

Luxembourg to get marriage equality this year

The Grand Duchy of Luxembourg, a nation a bit smaller than Rhode Island tucked into the corner where France, Germany, and Belgium come together, has been a likely candidate for marriage equality. With a gay Prime Minister, a gay Deputy Prime Minister, about 85% approval, and a mostly-Catholic populace, the question has not been whether this nation will adopt equality, but when. Now it appears that the answer is ‘this year’. (Wort)

Luxembourg Justice Minister Félix Braz announced on Wednesday that the government would vote on the bill this summer and, if approved, it could mean wedding bells for same sex couples before the end of the year.

The Grand Duchy’s Lesbian, Gay, Bisexual and Transgender (LGBT) community welcomed the news.

“We’re very happy about this decision of the new government. We thought initially it could be re-filed again for another couples of months or even years, due to the fact that it might be that the government judges other points on the political agenda more important than this law, ” said LGBT Rosa Lëtzebuerg Asbl president, Gabriele Schneider, adding: “We are indeed very happy to see that it is one of the important points on the agenda of the government continuing working on the law and vote all the necessary steps to have filed it during the year 2014.

The bill had been proposed in 2010 by the previous administration but when power shifted it was delayed as other items took higher priority. Luxembourg currently has a weak couple recognition system similar to the old French PACS.

Indiana to consider marriage ban bill today

Today legislators in Indiana are scheduled to vote on a bill to put a marriage ban into the state constitution. It is likely the last time that a state will undertake such an effort.

In a sign that the public’s appetite for institutionalized discrimination is waning, this bill is facing uncertainty, despite Republicans holding majorities in both houses.

The problem is that for the amendment to be brought about, identical language must be approved by two consecutive legislatures and then approved by popular vote and, in their arrogance, the 2010 legislature went into full ‘ban everything’ mode.

Only a marriage between one man and one 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.

Now the ‘no marriage, no civil unions, no other-state recognition, no employment benefits, no nothing, never’ approach seems heavy-handed and cruel. And many moderates and business leaders are warning that such an approach makes the state appear oppressive and hostile, neither of which are good for business.

Left with a start over or risk it choice, Legislative leaders are trying to have it both ways. Starting over would mean that the likelihood of passage of anything would be much lower in four years. And risking it runs the chance of defeat, which would almost certainly be seen as a sign that the nation has tired of anti-gay amendments.

So instead they are trying to “explain” the second half of the amendment language. (News Sentinel)

“I think it’s very advisable to have an expression of legislative intent that accompanies HJR 3 (the proposed amendment),” Bosma said last week. “There are valid questions raised about the second sentence of the amendment.

“It seemed to make a lot of sense to address the issues, but still make it quite clear that civil unions are not allowed — which is the substantially similar or identical language to marriage — and define it as a man and a woman, but remove these concerns people validly are raising in most cases.”

The opposition has pointed out specific situations in which this bill would hurt lives of people in Indiana, such as partners of employees at the state colleges. Which, based on the history of other states going for the “no, no, no, no” approach is true.

The legislative leaders are hoping that by “explaining”, they can confuse the issue enough that the voters will somehow overlook the problems that the bill would bring and the image of their state as the final Hate State. But the business community is not on board and moderates are not letting the leaders get by with such a flimsy card game.

Today is the first test in whether the social conservatives have sufficient grasp on the legislature so as to push the bill through. (abc57)

The amendment vote falls in the hands of the Indiana House Judiciary Committee, a panel of just 13 lawmakers.

All 4 Democrats on the committee are expected to vote it down, but they’ll still need at least 3 of the Republicans to join them in order to defeat the amendment.

If the party is smart, they will kill this bill in committee, promise to bring it back again, and then lose it in the shuffle. The odds are that they will instead taint the image of their party and their state and plop this steaming pile of animus and self-righteousness into the laps of the voters.

UPDATE:

You can watch the hearing here.

So far opponents have included gay Republicans, business groups and chambers of commerce. Actually, some pretty hard-hitters from our side. All either hard-core Republican activists or high-level businesses integral to the economy.

Perhaps one of the most unusual arguments from a very conservative attorney is that because the second sentence is so ambiguous, then the courts will make all future decision and not the legislature.

UPDATE TWO:

Legislator just ate up ADF’s representative by asking for an example of what the second sentence would prohibit. She kept trying to say it would not effect benefits, but couldn’t say what it would do. And the silly girl said “I can say with certainty” only to have it pointed out to her that her assertions disagree with history and have no weight.

UPDATE THREE:

The Judiciary Committee has adjourned and the vote has been delayed.

Feds will recognize Utah marriages

In another twist in the Utah marriage battle, the Federal Government has weighed in on the legality of the nuptials performed in Utah’s marriage window. (NYTimes)

The Obama administration on Friday said that it would recognize as lawful the marriages of 1,300 same-sex couples in Utah, even though the state government is refusing to do so.
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“I am confirming today that, for purposes of federal law, these marriages will be recognized as lawful and considered eligible for all relevant federal benefits on the same terms as other same-sex marriages,” Mr. Holder said in the video. “These families should not be asked to endure uncertainty regarding their status as the litigation unfolds.”

This should not be seen as an affront to Utah. It is completely consistent with something that the state’s Attorney General said on Wednesday: (Fox13)

“I want to be clear that we are not saying those marriages are invalid,” Reyes said in an interview Wednesday with FOX 13. “However, as a state we cannot recognize those marriages.”

Reyes insisted that by refusing to recognize the marriages, the state was not effectively invalidating the unions by pointing to other states that recognize same-sex marriages.

“It’s not invalidating it in the same way that if they went to Hawaii, they could potentially apply for benefits there based on the marriage that took place. They can’t be recognized (here),” he said. “There is a very fine distinction, but a very important distinction based on those two things.”

It does, however, help force the hand of the courts a bit. To find that these marriages are invalid and had “never occurred” would be to cause a flood of confusion and administrative nightmares.

Hundreds of couples will be filing Federal income tax returns as married couples, there are likely even some who have made legal changes to their names and who will – by the time of the decision – have signed legal documents or established credit as married couples, and even some may have moved to states in which their marriages are fully recognized and may have availed themselves of state services.

Utah’s rather odd ruling about married couples

On December 20, 2013, Judge Richard Shelby determined that the anti-gay marriage laws of the State of Utah were in violation of the equal protections clause of the United States Constitution. And, as Shelby refused to grant a stay, same-sex marriages began immediately.

The state requested that the Tenth Circuit Court of Appeals grant a stay, and their request was denied. Finally, a request to the US Supreme Court resulted in a stay of Shelby’s ruling, but about 1,000 same-sex couples had married by the time that county clerks were instructed to deny new applicants for marriage licenses.

Now the state has issued instructions on how state services are to treat the married couples. It is a most inelegant decision:

Based on counsel from the Attorney General’s Office regarding the Supreme Court decision, state recognition of same-sex marital status is ON HOLD until further notice. Please understand this position is not intended to comment on the legal status of those same-sex marriages – that is for the courts to decide. The intent of this communication is to direct state agency compliance with current laws that prohibit the state from recognizing same-sex marriages.

Wherever individuals are in the process of availing themselves of state services related to same-sex marital status, that process is on hold and will stay exactly in that position until a final court decision is issued. For example, if a same-sex married couple previously changed their names on new drivers licenses, those licenses should not be revoked. If a same-sex couple seeks to change their names on drivers licenses now, the law does not allow the state agency to recognize the marriage therefore the new drivers licenses cannot be issued.

In addition to being awkward and placing same-sex couples in extreme legal confusion, this may have been a strategic misstep on the part of the state. It places Utah in the position of treating people in exactly the same situation (same-sex couples married under Federal authority) in disparate ways.

The second problem with the Attorney General’s decision is that in many ways this closely mirrors the Proposition 8 scenario. In Hollingsworth v Perry, the Ninth Circuit found that you cannot grant rights to a group of people and then take those rights away. Here the state granted specific rights to married same-sex couples and then swooped in and took those specific rights away. And while the Ninth Circuit decision does not create precedent in the Tenth Circuit, it nevertheless will be given consideration.

Had Utah simply said, “if you got married, you are married; if you didn’t, you are not”, that would have been a clean and simple ruling. But by taking a “we will not give you one iota of protection that we haven’t already processed” stance, the state demonstrates a significant degree of hostility. And by doing so, they have strengthened both our argument that the banning of same-sex marriage is rooted in animus and our call for heightened scrutiny in legal decisions.

Chilean civil unions bill passed by Senate

In August 2011, conservative Chilean President Sebastian Pinera fulfilled a campaign promise by proposing a civil unions bill. At that time he pledged to the bills passage by the end of his administration, March 2014.

Now movement has begun on the passage of the bill. (Santiago Times)

In its first session of 2014, Congress took a significant step for gay rights when the Senate approved legislation on same-sex civil union, as emotional supporters cheered and evangelical opponents held up banners with biblical messages aimed at lawmakers from the stands of the upper house.

Senators voted in favor of the Life Partner Agreement (AVP) late Tuesday evening with 28 votes in favor, six against and two abstentions. The bill will now pass to a constitutional assembly before returning to Congress on Jan. 20.

The country’s leading LGBTQ organization hailed the outcome as significant step toward passing a law which “the majority of the country” wants.

Incoming Socialist President-Elect Michelle Bachelet has promised support for a marriage bill.

Martinez not supporting proposed NM marriage amendment

New Mexico Governor Susanna Martinez (R) is confirming her lack of support for any effort to ban same-sex marriage in the state by means of constitutional amendment (New Mexican)

Gov. Susana Martinez said at a news conference Monday that she won’t push for a constitutional amendment to ban gay marriage in New Mexico in the upcoming legislative session.
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Asked whether that meant she wouldn’t push for the Legislature to pass a measure like Sen. Bill Sharer’s Senate Joint Resolution 6, Martinez responded, “It’s the law of the land. The Supreme Court has spoken.”

In truth, Martinez is probably delighted at her good fortune. Martinez knows that marriage equality is an unavoidable eventuality but that advocacy on either side by a moderate Republican has either a short term or long term price tag.

Before the state Supreme Court ruled that same-sex couples could marry, she mostly avoided the controversy by saying that any change in the marriage law should be brought about by a vote of the people and changed the subject. But now that the courts have brought about marriage equality – without any political cost to Martinez – she sees the contentious issue in her rear view mirror and is stepping on the gas.

SCOTUS issues Utah stay (Updated)

NYTimes

The Supreme Court on Monday blocked further same-sex marriages in Utah while state officials appeal a decision allowing such unions.

The terse order, from the full court, issued a stay “pending final disposition” of an appeal to the federal appeals court in Denver. It offered no reasoning.

UPDATE from Jim B: Here’s the U.S. Supreme Court order (PDF: 27KB/1 page):

HERBERT, GOV. OF UT, ET AL. V. KITCHEN, DEREK, ET AL.

The application for stay presented to Justice Sotomayor and by her referred to the Court is granted. The permanent injunction issued by the United States District Court for the District of Utah, case No. 2:13-cv-217, on December 20, 2013, is stayed pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit.

Marriages entered into thus far are still in effect. There just won’t be any new ones for a while. Lyle Denniston at SCOTUSblog speculates that “The order appeared to have the support of the full Court, since there were no noted dissents,” but “The order, however, cannot be interpreted as a dependable indication of how the Court will rule on the issue when it finally decides to do so directly.”

The Tenth Circuit Court of Appeals will continue with its expidited review of the lower court decision. Brief submittals occur between January 27 and February 25. No date has been set for oral arguments.

Utah man starves himself to oppose equality

Trestin Meacham has convinced himself that the State of Utah could get rid of gay marriages by simply declaring the Federal Judge’s decision null. Although the Supreme Court has ruled many times that states cannot nullify decisions that fall under the US Constitution (the Supremacy Clause), Meacham insists otherwise.

And the erstwhile Constitutional Party candidate has vowed not to eat until Utah nullifies Judge Shelby’s ruling, subsisting only just water and “an occasional vitamin”.

I’m not sure that I believe Meacham. He says he’s lost 20 pounds since the decision, but he’s still up walking around and that seems a bit suspect to me. Twelve days without food is a very very long time.

But, since Utah isn’t going to go with his wacky hypotheses, I guess he’ll either he’ll break his fast, be institutionalized, or die.