Box Turtle Bulletin

Oregon starts petition drive to reverse state DOMA

Oregon United for Marriage (yeah, yours too) hit the streets and parks today to begin the petition drive to put marriage back on the ballot next fall. (Oregon Live)

The campaign to overturn Oregon’s constitutional ban on gay marriage hits streets Friday, with organizers on a quest to gather more than 116,000 signatures by July 2014.

KOIN

As early as 6 a.m., dozens of volunteers were gathering signatures at a petition booth at Tom McCall Waterfront Park in Portland. The booth is one of several being manned by more than 1,000 volunteers in cities and towns throughout the state this weekend.

Judge grants injunctive relief to Ohio married couple

John Arthur and Jim Obergefell married last week in Maryland. It is a marriage that is doomed to be short, as Arthur has ALS and is not expected to live much longer.

Upon returning, they sued in Federal Court to have Ohio, their home state, recognize their marriage. In 2004, voters amended the Ohio Constitution to limit recognition of marriage to opposite-sex couples.

Today Federal Judge Timothy S. Black ordered that the State of Ohio recognize the marriage and list the couple as married on Arthur’s death certificate.

This Court finds that Plaintiffs have established by clear and convincing evidence their entitlement to injunctive relief. Accordingly, Plaintiffs’ motion for a temporary restraining order (Doc. 3) is GRANTED, and a temporary restraining order shall issue by separate order, directing, inter alia, that the local Ohio Registrar of death certificates is hereby ORDERED not to accept for recording a death certificate for John Arthur whichdoes not record his status as “married” and/or does not record James Obergefell as Mr.Arthur’s “surviving spouse” at the time of Mr. Obergefell’s death, which is imminent.

Ohio recognizes heterosexual marriages in other states that it would not allow to be conducted within its borders (first cousins, for example) provided that the marriage was legal where conducted. While this order is not a ruling on the merits of the case, it seems a foregone conclusion that Judge Black will find for Arthur and Obergefell when this case is determined.

Federal Judge Orders Ohio Officials To Recognize Gay Couple’s Marriage

In as stunningly swift development, a Federal Judge has issued a temporary restraining order requiring Ohio state officials to recongize the marriage of John Arthur and Jim Obergefell, who were married two weeks ago in Maryland. Federal District Judge Timothy Black ordered Ohio officials to recognize the Cincinnati couple’s out-of-state marriage just as they recognizing marriges performed in other states even when those marriages cannot be performed in Ohio:

Throughout Ohio’s history, Ohio law has been clear: a marriage solemnized outside of Ohio is valid in Ohio if it is valid where solemnized. Thus, for example,under Ohio law, out-of-state marriages between first cousins are recognized by Ohio,even though Ohio law does not authorize marriages between first cousins. Likewise,under Ohio law, out of state marriages of minors are recognized by Ohio, even thoughOhio law does not authorize marriages of minors.

How then can Ohio, especially given the historical status of Ohio law, single outsame sex marriages as ones it will not recognize? The short answer is that Ohio cannot … at least not under the circumstances here.

By treating lawful same sex marriages differently than it treats lawful opposite sexmarriages (e.g., marriages of first cousins and marriages of minors), Ohio law, as applied to these Plaintiffs, likely violates the United States Constitution which guarantees that”No State shall make or enforce any law which shall … deny to any person within its jurisdiction equal protection of the laws.

The end result here and now is that the local Ohio Registrar of death certificates is hereby ORDERED not to accept for recording a death certificate for John Arthur that does not record Mr. Arthur’s status at death as ‘married’ and James Obergefell as his ‘surviving spouse,'”

Judge Black noted that when the U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act, it left in place Section 2, which allows states to refuse to recognize same-sex marriages performed in other states, but:

…the issue whether States canrefuse to recognize out-of-state same sex marriages is now surely headed to the fore.Indeed, just as Justice Scalia predicted in his animated dissent, by virtue of the presentlawsuit, “the state-law shoe” has now dropped in Ohio.

John Arthur is bedridden with ALS, or Lou Gehrig’s Disease, a progressive neurological disease which robs patients with the ability to walk, move, and eventually breath. When the U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act, Arthur and Obergefell, partners of 20 years, used donations from friends and relatives to charter a special medical transport plane and fly to Maryland two weeks ago, accompanied by a nurse, two pilots trained in emergency medicine, and Arthur’s aunt, who had been ordained specifically to perform the wedding. They married on the tarmac at an airport in Baltimore and immediately returned to their home in Cincinnati. Last Friday, the couple filed a lawsuit in Cincinnati Federal District Court demanding that the State of Ohio recognize their marriage.

Judge Black limited the order to Arthur and Obergefell only, citing the plaintiff’s “strong likelihood of success on the merits” and Arthur’s declining health for the urgency of his order:

…In addition to the alleged denial of Plaintiffs’ constitutional rights, the Court must also consider the fact that Mr. Arthur is in hospice care and death is imminent. Without a temporary restraining order, the official record of Mr. Arthur’s death, and the last official document recording his existence on earth, will incorrectly classify him as unmarried, despite his legal marriage to Mr. Obergefell. The death certificate will also incorrectly fail to record Mr. Obergefell as the “surviving spouse,” which status he lawfully enjoys. Furthermore, Mr. Arthur wants to be buried in his family plot at Spring Grove Cemetery. He also wants Mr. Obergefell to be buried next to him someday. The family plot directive limits those who may be interred in the plot to descendants and married spouses. Thus, without a temporary restraining order, Mr. Arthur’s burial may be delayed or his remains may have to be exhumed when this case is finally decided.

…Moreover, there is absolutely no evidence that the State of Ohio or its citizens will be harmed by the issuance of an order temporarily restraining the enforcement of these provisions against the Plaintiffs in this case. No one beyond Plaintiffs themselves will beaffected by such a limited order at all. Without an injunction, however, the harm toPlaintiffs is severe.

[via BuzzFeed]

Churches in Minnesota get ready for same-sex marriages

The concept of conducting a same-sex marriage may not seem to be tough; you just do what you would do with an opposite-sex couple. But in practice, there are some differences that require pastors to adjust.

From the Austin (Minnesota) Daily Herald:

At Edina Morningside Community Church, a United Church of Christ congregation, Pastor Rosemary Rocha will be performing her first same-sex marriage at the church next month. When talking to the two men who want to be married by her, Rocha says she asked them, “Do I pronounce you husband and husband? … I think we’re looking at I’m to pronounce them ‘married.’?”

“I’ve been learning along the way,” Rocha added. “Because we don’t have a big population of LGBT people in our church, it’s important for me to educate and familiarize myself with some of the issues. You can’t just go assuming … there are some things that might be the same for same-gender and male-female weddings. But what does it mean for a gay couple … who have been in love, cared about people, and been denied this? “

Ohio Couple Challenges State’s Marriage Equality Ban in Federal Court

Last week, John Arthur and Jim Obergefell, partners of 20 years, flew from Cincinnati to Maryland to get married. A trip like that to get married is already complicated enough, but Arthur is in a hospice, suffering from ALS, or Lou Gejrig’s, a neurological disease which, over time, robs patients of their ability to walk, move, talk, and eventually breathe. Aurthur needs around-the-clock care, and a commercial flight was out of the question. After the call went out, friends, family, and total strangers donated aver $12,000 to charter a private plane. They flew to Baltimore, the pilots parked off the runway, and the couple was married on the tarmac. A few minutes later, the couple celebrated with champagne, the pilots climbed back in the cockpit, and the wedding party was back in the sky on the return trip to Ohio.

The Cincinnati Enquirer published a well researched, in-depth story on the couple shortly after they married, illustrating the problems they face in a state which relegates them to legal strangers to each other. Last Friday, Arthur and Obergefell filed suit in Federal Court seeking Ohio’s recognition of their legal marriage. Their attorney, civil rights lawyer Alphonse Gerhardstein, noted some of the absurdities of Ohio’s marriage law:

“(T)he marriages of opposite-sex couples that are legal in other states but would not be allowed in Ohio – e.g., marriages of first cousins or a young partner – are routinely accepted in Ohio if those marriages are legal in the state where they are celebrated,” the suit notes.

The suit seeks a temporary restraining order and injunction, hoping to allow Arthur’s death certificate to reflect that his status at death was “married.” That is more important now, the suit notes, because Arthur is gravely ill.

“It is the final record of a citizen’s life. It must be accurate,” Obergefell said of the death certificate.

Justice Department Did NOT Step In As BLAG Pulls Out

A Report that the Justice Department filed a brief opposing a request by gay veterans and their spouses for judgment in their favor their challenge to veterans’ benefits statutes led to some confusion as to what the Justice Department’s objections really were. One interpretation was that the Justice Department was trying to take up the work of the GOP-controlled House Bipartisan Legal Advisory Group (BLAG) after BLAG announced that they would drop their efforts to prevent the veterans spousal and family benefits from being extended to married same-sex couples. But according to the actual filing by the Justice Department:

In light of the Supreme Court’s decision in Windsor, striking down Section 3 of DOMA, the Department of Defense will now construe the definitional provisions of “spouse” in Titles 10and 32 to include same-sex spouses See Extending Benefits to Same-Sex Domestic Partners of Military Members, Memorandum for Secretaries of the Military Departments, Feb. 11, 2013, available at http://www.defense.gov/news/Same-SexBenefitsMemo.pdf (“In the event that the Defense of Marriage Act is no longer applicable to the Department of Defense, it will be the policy of the Department to construe the words ‘spouse’ and ‘marriage’ without regard to sexualorientation, and married couples, irrespective of sexual orientation, and their dependents, will begranted full military benefits.”). The Department of Defense intends to expeditiously make available benefits provided under Titles 10 and 32 to the same-sex spouses of servicemembers. To that end, the Department of Defense is currently working to revamp its Defense Enrollment Eligibility Reporting System (“DEERS”), a computerized database of military sponsors, families and others who are entitled to various military benefits. Indeed, the central claim in the Complaint is Plaintiffs’ inability to enroll in DEERS, which in turn has prevented Plaintiffs fromfiling claims for military benefits.

Because the Supreme Court has already struck down Section 3 of DOMA in Windsor, there is no need for this Court to grant any declaratory relief with respect to Section 3 of DOMA.There is also no need for this Court to grant declaratory or injunctive relief with respect to the definitional provisions of Titles 10 and 32. As noted above, the government will apply these provisions in light of Windsor to include same-sex spouses. There is no longer any dispute with respect to Defendants’ obligations to process and consider Plaintiffs’ claims for military benefits because the government agrees that it needs to do so, and is working to do so as it implements the Supreme Court’s decision in Windsor. Given the government’s agreement, there is no longer any case or controversy with respect to Plaintiffs’ Titles 10 and 32 claims.

The Justice Department then went on to argue that, with DOMA3 out of the way and the Defense Department moving to implement the Windsor decision, the court had no jurisdiction on procedural grounds. BLAG was seeking to block veterans spouses from accessing veterans benefits altogether, which is precisely the opposite of what this motion says.

Kiwi one-upmanship

Australia and New Zealand are friendly rivals, a bit like brothers who are ever competing with each other. So, naturally, when New Zealand achieved marriage equality laws, well…

And on August 19, 2013, Paul McCarthy and Trent Kandler are going to be the very first Aussie gay couple to be wed in New Zealand under the Marriage Amendment Act which will also take effect that very same day.
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The couple had won the Tourism New Zealand promotion.

Tim Burgess, Tourism New Zealand’s General Manager said that, “Trent and Paul’s entry was unique, inspiring and had a distinct Kiwi flavor. Their affection for New Zealand shone through and we immediately knew that we had the perfect Australian couple to come and tie the knot in New Zealand. We are looking forward to helping Trent and Paul “Make History” in Wellington next month, it is going to be a wonderful celebration.

Justice Department steps in after BLAG pulls out

Earlier today we learned that the House Bipartisan Legal Legal Advisory Group (BLAG), under the direction of Republican Speaker of the House John Boehner, had ceased defending any of the laws which seek to distinguish between opposite-sex and same-sex marriage. Most of us assumed that meant that there was no opposition to the judge in McLaughlin v. Panetta awarding spousal benefits.

But in an odd turn of events, the Obama Administration has stepped in to oppose the assignment of benefits. (Chris Geidner at BuzzFeed, who has been all over this story).

The Justice Department, however, goes on to claim two reasons why the court should not rule in the veterans and their same-sex spouses on their claims regarding Title 38. The first is an argument that “no plaintiff has sufficiently alleged that he or she has applied for or would be entitled to veterans’ benefits but for the definitional provisions in Title 38.”

“We disagree with that and will be addressing that with the court,” an attorney for the plaintiffs, Christopher Man with Chadbourne and Park, told BuzzFeed Thursday night.

The second reason, according to Justice Department lawyers, is that the court doesn’t have “jurisdiction to hear any claim for veterans’ benefits” because the Veterans’ Judicial Review Act “provides an exclusive review scheme for veterans to pursue benefits claims, including raising constitutional challenges to statutes and regulations that govern veterans’ benefits.”

While the second reason may have some technical merit (outweighed, I believe, by the question before the judge about the constitutionality of unequal treatment), the first is mouth-gapingly nonsense. It is difficult to fathom how suing in federal court for benefits is not sufficient evidence that Major McLaughlin would have applied for them had they been available.

House Republicans stop anti-marriage efforts

In a slightly oddly worded filing, the House Bipartisan Legal Advisory Group (BLAG), under the direction of Republican Speaker of the House John Boehner, has ceased defending any of the laws which seek to distinguish between opposite-sex and same-sex marriage. The BLAG’s last-minute filing in a case involving service member’s marital benefits was the venue through which this retreat was announced. (BuzzFeed)

The Supreme Court recently resolved the issue of DOMA Section 3’s constitutionality. See United States v. Windsor, 570 U.S. __ (2013), 2013 WL 3196928 (U.S. June 26, 2013). The Windsor decision necessarily resolves the issue of DOMA Section 3’s constitutionality in this case. While the question of whether 38 U.S.C. § 101(3), (31) is constitutional remains open, the House has determined, in light of the Supreme Court’s opinion in Windsor, that it no longer will defend that statute. Accordingly, the House now seeks leave to withdraw as a party defendant.

In other words, while Windsor only addressed DOMA3, not the myriad of laws that are written such that they limit application to male-female marriage, the decision on DOMA3 made clear the court’s intent. And so – unlike the Proposition 8 supporters in California – the Republicans in the House will not spend any more time or money fighting the minutia in court.

This is a bit further than I expected.

The broad stroke exclusion of gay couples found in DOMA3 was struck down as unconstitutional. This does not mean, from a legal perspective, that every exclusion of same-sex couples is unconstitutional. The BLAG could have continued on a case-by-case basis to argue that while broad exclusion is not allowed, in the instances at question there are good and valid governmental interests in upholding unequal laws and it’s possible that they would prevail in some.

So this decision to pull out and the language utilized suggests that more than just a legal determination has been made. This also heralds a shift in political will.

Today is Boehner’s deadline to oppose service member benefits

BuzzFeed reminds us that not all of the legal questions relating to federal same-sex marriage benefits have been answered.

The House Republican leadership faces a Thursday deadline to decide if it will continue to defend laws that limit veterans benefits to opposite-sex couples in the wake of the Supreme Court ruling striking down a similar provision in the Defense of Marriage Act.

“We’re reviewing the impact of the Supreme Court’s decision, and don’t have any announcement to make at this time,” House Speaker John Boehner’s spokesman, Michael Steel, told BuzzFeed on Wednesday when asked if the defense of the veterans’ statutes would continue.

This is a no-win situation for Boehner.

The Republican Party has a real problem on their hands when it comes to marriage equality. The country in increasingly supportive and even many of those who oppose equality don’t want strident anti-gay action to be taken. But “the base” of the party is strongly opposed to equality, so for the last year Boehner has “defended” DOMA (while trying hard never to discuss it and, in some instances, not even filing even the most flimsy of responses).

This particular situation is even more troublesome for Republican leadership. Service members are also a base of the Republican Party, and opposing military benefits sets one loyal party group against another.

So here’s betting that Boehner woke up late, forgot his watch, lost his briefcase, and got tied up in meetings all day and just, gosh darn it, just didn’t have time to file a motion today.

Marriage goes to the Queen

Jim already put up the story, but I love the fireworks pictures.

A rational call for tolerance

We have won the war over equality (though the battle rages on) and we must now begin to think of what kind of victors we shall be. Will we demand the spoils of war, or will we help rebuild and respect local and individual cultural mores. Will we be tolerant with those who have disagreed or who continue to disagree?

Orson Scott Card has recently illustrated the most absurd end of the spectrum of responses. His call for “tolerance” is nothing more than a demand that those who won the war now enrich those they defeated.

But there may be other who do deserve tolerance, or at least autonomy. Bart Hinkle, in the Richmond Times-Dispatch, makes a case for such.

It was a great day when the Supreme Court struck down the federal Defense of Marriage Act and threw out a California case that could have undermined gay marriage in the Golden State. On that day, gay and lesbian citizens won something profoundly important: acknowledgment of the right to live as they choose, without interference from others who think they know better.

Now the question is: Will gay and lesbian citizens acknowledge that everybody else has the same right? Some certainly will. But others are challenging the notion – and thereby undermining the case for their own hard-won victory.

It’s a thoughtful piece and worth consideration.

UK Lords pass marriage equality

Bloomberg

The upper, unelected chamber approved the Marriage (Same Sex Couples) Bill without a vote in London today. Some members of the house wore pink carnations to mark the occasion.

The legislation has already been passed by the Commons amid opposition from more than 100 lawmakers from Cameron’s Conservative Party. The bill will now return to the Commons, where amendments introduced by the Lords will be considered. If they’re accepted, the bill will be sent to Queen Elizabeth II for her signature before becoming law.

Ohio’s Petro to endorse marriage initiate

From the Columbus Dispatch

Republican Jim Petro, Ohio’s former attorney general and state auditor, is expected to endorse a 2014 Ohio ballot measure that would permit same-sex marriages in the state.

Marriage a consideration in Chilean presidential election

In Chile, a president can serve more than once, but not consecutive terms. Former President Michelle Bachelet (2006 – 2010) appears, at present, to be the likeliest winner of this year’s contest. (The Economist)

She ended her presidency in 2010 with a sky-high approval rating of 84%. Barring an upset, Michelle Bachelet looks set to return for a second term next year with her popularity undiminished. On June 30th she comfortably won a primary election in the Concertación, Chile’s centre-left coalition, taking 73% of the vote. Little seems to stand between her and victory in November’s election. She would be the first president in 81 years to win a second term (consecutive terms are not allowed).
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Ms Bachelet also promises a more liberal approach to social affairs. She says she wants to legalise gay marriage and allow abortion in some limited circumstances (Chile is among the handful of Latin American countries that ban abortion outright, even when the mother’s life is in danger).