Box Turtle Bulletin

Maryland Senate Passes Marriage Equality Bill

The vote was  25-to-21. This vote is particularly delicious, since NOM’s Maggie Gallagher’s heavy-handed lobbying had the effect of flipping at least one vote from a “no” to a “yes.” The bill now goes to the House, where supporters say they are still a few votes short of passage.

DOMA: recap, summary, and analysis

It has been a day since Attorney General Holder announced the Obama Administration’s position on the constitutionality of Section 3 of the 1996 Defense of Marriage Act, and we are beginning to get a sense of how this will impact individuals in various states. Some of this is consistent with early assumptions and thinking, some is different from my earlier thoughts, and some is as yet unclear.

DOMA

Before we discuss the impact, let’s revisit the law. DOMA had three sections and, to better understand the issue, here is the law as it is on the books:

Section 1 named the act: “This Act may be cited as the `Defense of Marriage Act’.”

Section 2 revised chapter 115 of the United States Code, which deals in part with the full faith and credit aspects of states’ interaction, and gave permission to the states to ignore any marriage laws of other states that relate to same-sex couples:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

Section 3 revised Title 1, Chapter 1 of the United States Code to define “marriage” and “spouse.” Prior to DOMA, these terms were defined by the states and not by the federal government. It is significant and telling that DOMA’s third section was placed in such a prominent position in the US Code; it says that for all of our social contract, our form of government, our protections and requirements and obligations and rights, before we consider anything else, we shall exclude same-sex couples from consideration:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

The challenges and the Administration’s postion:

The challenges to DOMA to date are as follows:

Commonwealth of Massachusetts v. United States Department of Health and Human Services (1:09-cv-11156-JLT) – Massachusetts has defined its marriage laws according to its community standards as, since the inception of the nation, states have been allowed to do. However, upon Massachusetts’ recognition of marriage between same-sex couples the federal government ignored the state’s issuance, recording and recognition, instead choosing to implement Congress’ definition of marriage. Massachusetts Attorney General Martha Coakley sued the Department of Health and Human Services to defend the state’s rights and the case was heard by Federal First Circuit Court Judge Joseph Tauro.

Gill v. the Office of Personnel Management (1:09-cv-10309-JLT) – Nancy Gill and Marcelle Letourneau, along with other same-sex couples married under the laws of the commonwealth of Massachusetts, argued that Section 3 of DOMA violated the equal protections provisions of the US Constitution. They were represented by Gay & Lesbian Advocates & Defenders (GLAD) and the case was consolidated with others (see above) and argued before Judge Joseph Tauro in conjuction with Commonwealth.

On July 8, 2010, Tauro found that Congress had exceeded its authority by seeking to assume powers that were reserved to the states (Commonwealth). Separately, he found that there was not even a rational basis for unequal treatments between legally married heterosexual couples and legally married homosexual couples (Gill).

My observations at that time were

These cases do not discuss whether states may deny marriage equality, only whether the federal government may do so. If it is constitutionally permissible to discriminate against gay people in matters of marriage, only states may enact that discrimination.

Taken together, it seems clear that Tauro finds that a distinction based on marriage is permissible. But one that is based on sexual orientation is not. This would seem to suggest that because states can determine marriage laws (Commonwealth), it can either allow or refuse same-sex marriage (until otherwise restricted). So those legally married same-sex couples in Massachusetts, Iowa, Connecticut, Vermont, New Hampshire, Washington DC, New York and Maryland and some 18,000 couples in California would be married in the eyes of the federal government while those in civil unions or domestic partnerships would not.

The Justice Department appealed Tauro’s decision on October 12, 2010 and filed a brief on January 14, 2011 defending DOMA.

Dragovich v US Dept. of Treasury (4:10-cv-01564-CW) – The Legal Aid Society sued on behalf of California public employees who were not allowed to include their spouses in CalPERS’ long-term care plan due to federal restrictions on the state program’s recognition of marriages and spouses.

On January 18, 2011, Ninth Circuit Federal Judge Claudia Wilkin refused the government’s motion to dismiss in a response that strongly indicated that Wilkin would find that Section 3 of DOMA violated both the due process and equal protection provisions of the US Constitution.

Pedersen et al. v. Office of Personnel Management (3:10-cv-01750-VLB) – Following on their success in Gill, GLAD filed in the Second Circuit Court on behalf of Joanne Pedersen & Ann Meitzen, a legally married couple under Connecticut law along with couples married in Vermont and New Hampshire.

Pedersen was filed on November 9, 2010, and the first round of filings are due on March 31. At that time the Department of Justice can file for dismissal and GLAD can file for summary judgment.

Windsor v. United States (1:10-cv-08435-BSJ)- This case, filed by the ACLU, has a unique fact pattern. Edie Windsor and Thea Spyer married in Canada in 2007 and their marriage was recognized by their home state of New York (which does not currently grant marriage licenses to same-sex couples). When Spyer died, her estate was taxed with no consideration to their marriage status.

Windsor was filed on November 9, 2010, concurrent with Pederson, and the date for the defense to file a motion to dismiss is March 31, 2011. (Holder’s letter places this date at March 11, but the docket states March 31. In either case, it is quite soon)

To recap, Commonweath deals with the rights of states to define marriage. Gill, Dragovich, Pedersen, and Windsor all deal with the rights of individuals to due process and equal access. None of these cases challenge Section 2 of DOMA or question whether one state must recognize same-sex marriages conducted in another.

What the Administration announced:

In his letter to Speaker of the House Boehner, the attorney general laid out a legal determination and a consequential plan of action. The legal determination was two-fold.

First, Holder recognized that in those court districts in which the appropriate level of scrutiny for anti-gay discrimination had no precedent, the defendants would be required to argue for such a level. And the Department of Justice found itself unable to make a cogent argument that only rational basis be applied.

The Supreme Court has established a three part test to determine whether rational basis or a stricter level of scrutiny be considered: a history of discrimination, immutable characteristics comprising a discrete group, and political powerless minority subject to majority whim. On all three of these, the DOJ found itself incapable of arguing for rational basis and thus found that only strict scrutiny could be applied to sexual-orientation based discrimination.

Secondly, Holder acknowledged that his office was incapable of presenting any argument in favor of anti-gay discrimination that could stand up to strict scrutiny. While theoretically rational basis arguments can be pie in the sky (though they must at least be rational), strict scrutiny required tangible real and compelling reasons for the discrimination that were tied to the legislature’s actual reasoning and there just wasn’t anything to present.

It is important to understand that the Administration did not say that it was refusing on unwilling to defend the law but rather that it was incapable of defending the law. There simply were no arguments to present to the court.

Those who claim that the Administration is “choosing which laws to defend” are either confused or dishonest. Those who say that this will “nationalize” same-sex marriage and impose it on unwilling states are either confused or dishonest. Those who go on TV and spout completely false information about this decision are either irresponsible or dishonest. I’m inclined to suspect ‘dishonest.’

In consequence, the DOJ announced that it would not present arguments to the judges in Pedersen and Windsor that these cases should be tried under rational basis. Should the judges independently determine that no stricter scrutiny than rational basis would be considered, the DOJ was capable of defending DOMA on rational basis pie in the sky notions.

But unless the judges independently determined that rational basis was the standard, the Department of Justice would not attempt to justify DOMA under stricter scrutiny because they had no arguments to present.

What does this mean?

Immediately, nothing. The law remains on the books, the Administration will continue to administer the law, and gay couples have no more federal recognition than two random roommates living in a dorm.

However, it is a very short time before this could all change. The House of Representatives has a small window in which to decide whether to defend DOMA in court. Should they fail to do so, then in March the courts will be presented with a motion for summary judgment (a request for a trial-less determination) which argues that DOMA Section 3 is unconstitutional, and in response the DOJ will say, “I got nothing.”

Presented with only one side, it is extremely probable that the judges will find for the plaintiffs and order the federal government to recognize their marriages. This could be limited to specific circumstances for individual plaintiffs or applied broadly against the United States and applicable to all same-sex marriages. However, without appeal to the US Supreme Court, then these decisions will only apply to same-sex married couples in Second Circuit states (Connecticut, Vermont, New Hampshire, and New York).

Should the House intervene, a not-unlikely possibility, then the House will be allowed to present arguments that only rational basis be applied and that DOMA’s discrimination achieves a governmental function. However, they will do so with the additional burden or explaining why not only the plaintiffs but the Department of Justice are incorrect in their interpretation of the Constitution.

Meanwhile the Massachusetts and California cases continue. It is difficult to know exactly how the Administration’s decision will play into these cases. Having announced that you believe DOMA Section 3 to violate the US Constitution, courts are less likely to believe the sincerity of arguments otherwise.

While GLAD has no certainty about how Gill is impacted, Massachusetts Attorney General Martha Coakley (at least publicly) believes that the DOJ will drop their appeal of Commonwealth (Globe).

“We assume they will withdraw their briefs. Unless we hear otherwise, we believe the Department of Justice’s intention is not to defend any of these cases,” said Coakley, whose suit contended that the federal law unfairly created two classes of married people.

Should the government withdraw its appeal in Gill and Commonwealth, then Judge Tauro will order the United States to recognize Massachusetts’ same-sex marriages. It is unclear whether the House would have any standing to appeal this DOMA decision.

But unless the federal government opts not to appeal to the Supreme Court and the House opts not to intervene, this issue will eventually end up before the Supreme Court (as it could through Dragovich or Perry). And there are a few ways the court could go.

Should they decide to hear Commonweath first, that could make all of the other cases moot. They could determine that states have, as they always have had, the right to define marriage. Doing so could avoid or delay any requirement to determine whether in such definition a state can distinguish between same-sex and opposite-sex marriages as Commonwealth does not address that issue.

Should they decide that the federal government has a newly found right to establish family law, then they would have to deal with the various other cases which deal with discrimination against individuals. This could be an interesting direction.

Although these cases are federal cases and speak only to what the federal government can do, should the SCOTUS find that federal anti-gay marriage law violates the constitutional rights of individuals, it is difficult to see how that would not also be true of the states. While we have assumed that Ted Olson and David Boies would be the ones to argue the unconstitutionality of banning same-sex marriage, it is possible that due to timing (delays or expedition) it could be GLAD or the ACLU.

Hawaii’s Governor Abercrombie signs civil unions bill

While our quest for marriage equality has a great many contributing historical events, the current nationwide battle can be traced to 1991, when three same-sex couples sued the Hawaii Director of Health for marriage licenses. Supportive court decisions spooked the public and anti-gay activists whipped up hysteria to raise funds, rally the voters, and slap down the “militant homosexual activists.”

And, to be honest, prior to that time a great many of us never considered that our relationships could be equal in the sight of the law. We were conditioned to our own inferiority and few questioned the heterosexist presumption that marriage, by definition, was “one man, one woman.” Hawaii’s legal wranglings first led our community to collectively question just why we should not be allowed to fully join society as spouses on an equal basis with our brothers and sisters.

It did not go well in Hawaii. A Catholic/Mormon coalition ran a campaign of bigotry and deception and the Hawaiian people voted to change their constitution to allow the legislature to define marriage (this was their first effort and they did not yet go for defining marriage itself in a constitutional amendment). The end result was that for the past few decades, Hawaii has had a useless and pointless “reciprocal benefits” scheme by which you and your life partner (or your bowling partner) could assign each other a few limited benefits.

But for a while, the myth prevailed. More than a few times in the 90’s I would hear someone say, “but can’t we get married in Hawaii?” And the dream prevailed to the point where we currently have five legal marriage states (and DC) with three more expected to join this year.

Which makes today a special day. Today Hawaii joins six states which provide the full benefits of marriage under another process (and five states and DC which offer full marriage recognition). (Star Adviser)

Less than a year after seeing the push for civil unions vetoed, gay rights advocates cheered as Gov. Neil Abercrombie signed into law a bill legalizing civil unions and making Hawaii the seventh state to grant such privileges to same-sex couples.

Abercrombie signed the legislation at a ceremony today at historic Washington Place.

“E Komo Mai: It means all are welcome,” Abercrombie said in remarks before signing the bill into law. “This signing today of this measure says to all of the world that they are welcome. That everyone is a brother or sister here in paradise.”

“The legialization of civil unions in Hawaii represents in my mind equal rights for all people,” he said.

It is indeed a jubilant day.

But it’s a little ironic – and oddly appropriate – that Hawaii’s truly joyous occasion was outshown by the actions on the national front. And just a bit sad that on the day they wished to proclaim equal rights and benefits, it seems that they just aren’t as equal as they were yesterday.

Nevertheless, congratulations to Hawaii’s same-sex couples. Together we will move towards full inclusion.

Maryland marriage bill amended by Senate

The bill in the Maryland legislature to provide for marriage equality has been debated and reviewed by the state Senate. A few amendments were added which would allow the Knights of Columbus or other religion-based mutual insurance organizations to determine their own membership requirements, which would allow churches to restrict the use of their recreation halls to such marriage receptions as are consistent with their beliefs, and which would allow religious marriage seminars to limit their education to those that meet their beliefs. Several hostile amendments were rejected.

It appears that the bill has picked up an additional supporting senator and will soon move to the House (NECN)

State senators voted 25-22 Wednesday to advance the measure to a final vote, which could come as soon as Thursday.

Breaking – Justice Dept. drops defense of DOMA

From AP

The Obama administration says it will no longer defend the constitutionality of a federal law that bans recognition of same-sex marriage.

In a statement Wednesday, Attorney General Eric Holder says President Barack Obama has concluded that the administration can no longer defend the federal law that defines marriage as only between a man and a woman.

It’s a bit early, but here is my assessment: [NOTE: this is an early assessment and I’ll likely provide a revised assessment at more information appears.]

In July 2010, Federal Court Judge Tauro found that the Defense of Marriage Act (DOMA) violated the US Constitution in two ways. 1) Congress cannot usurp the rights of states to define marriage for their citizens (the Commonwealth case) and 2) The federal government cannot treat gay married individuals differently from straight married individuals (the Gill case). It appears that the DOJ will now drop its appeal of Tauro’s decision.

This would immediately impact the First Federal Court District (Maine, Massachusetts, Puerto Rico, New Hampshire, Rhode Island) and would mean that same-sex marriages in Massachusetts and New Hampshire would be given full federal recognition. But by accepting the court’s determination that these provisions of DOMA are unconstitutional, the Obama Administration is signaling either that the federal government will immediately recognize all state’s same-sex marriages or that it will not oppose suits that seek such recognition in other court districts (such as the case already progressing in California).

This has an immense effect on those couples. This provides for equal federal taxation, spousal recognition for immigration (congratulations Tim and Junior), social security, and many many other rights and obligations. And perhaps as importantly, it removes the last barrier to “really married” that set same-sex couples apart.

But this also changes the political playing field tremendously.

Supporters of marriage equality have been given a powerful new message. It is now no longer a matter of nomenclature where states grant all the rights of marriage but not the name.

The federal government has no provision by which to recognize civil unions or domestic partnerships. So “protecting marriage” by reserving that title for heterosexuals now means denying gay citizens access to federal rights. This is, almost certainly, to tip the scales on the Perry v. Schwarzenegger case. The Proponents – assuming they are granted standing – are now required to argue that the state has a rational basis for granting all state marriage rights and denying all federal marriage rights that can meet heightened scrutiny. That is unlikely to be an easy task.

Further, this will impact the decisions of politicians who want to straddle the fence and make both sides happy. They can no longer say, “well I support your rights” when they are blocking access to social security or other federal benefits.

And this change puts anti-gay Republicans in a difficult position. The provisions of DOMA that allow Alabama to ignore Iowa’s marriages were not challenged. And they can hardly call for a Constitutional Amendment to disallow the citizens or representatives of a state to determine their own laws and still pretend to believe in local control or federalism. They can rant about Obama “usurping Congress’ role,” but they run the risk of alienating part of their own base if they insist that they should dictate to states what their laws should be.

This is a very significant day.

Washington State House bill to recognize out-of-state marriages

OOOOPS: I think I misread the bill. It would recognize out of state marriages as domestic partnerships within the state. So the rest of this commentary is not useful.

The House of Representative in State of Washington is posed to perform an odd act: recognize out-of-state same-sex marriages but not those conducted within the state. While the state offers domestic partnership which is identical to marriage in rights and obligations – a law confirmed by a vote of the people – it does not yet offer full marriage recognition.

New Mexico Democrats kill anti-gay marriage bills

From the Las Cruses Sun News

The House Consumer & Public Affairs Committee essentially killed two proposed constitutional amendments that would define marriage, for legal purposes as being between a man and a woman.

House Joint Resolution 7, sponsored by Rep. Nora Espinoza, R-Roswell, would have made gay marriage unconstitutional if approved by the Legislature and by voters in the 2012 general election.

HJR8, sponsored by Rep. David Chavez, R-Los Lunas, also would seek to amend the Constitution to prevent New Mexico from recognizing otherwise legal out-of-state marriages between persons of the same sex. Earlier this year, state Attorney General Gary King said New Mexico should recognize such marriages, even though they legally can’t be performed in this state.

The committee also tabled House Bill 162, also sponsored by Chavez, which would bar the state from recognizing same-sex marriages from out of state.

All three measures were tabled on a 3-2 party-line vote.

Wyoming Senate narrowly votes not to recognize out-of-state marriages

Tribune:

The Wyoming Senate narrowly voted Friday to stop recognition of same-sex marriages and civil unions from outside the state.

House Bill 74 passed 16-14 after tagging on a last-second amendment guaranteeing out-of-state couples in civil unions access to Wyoming courts.

This is closer than might have been expected. Ten Republicans joined all four Democrats in voting “No”.

Further, the language of this bill is interesting. It appears to invalidate all same-sex marriage, but only invalidate civil unions that would not be recognized in Wyoming. I may be misreading this, but it does seem to leave open the possibility of a civil unions bill being passed.

Maryland Senate Judicial Committee passes marriage equality

WaPo

Legislation that would legalize same-sex marriages in Maryland was approved Thursday afternoon by a Senate committee, easily clearing the first hurdle needed for passage this year by the General Assembly.

The 7-to-4 vote by the Judicial Proceedings Committee sends the bill the Senate floor, where a lengthy and emotional debate is expected next week on the most high-profile social issue facing lawmakers during their 90-day session.

The bill appears to have the bare majority for passage in the full Senate. The Majority Leader (who opposes marriage equality but agreed not to stand in its way) predicts that the bill will pass.

The brilliant Zach Wahls

You’ve probably seen this before, but if not, Zach Wahls gives testimony to the Iowa House on being raised by two mothers.

Kittleman (R – MD) endorses marriage bill

Last month, Maryland Senate Minority Leader Allan Kittleman announced plans to sponsor a bill that would legalize civil unions. He said that he thought that marriage should only be a religious institution for all couples, gay and straight, and that the state should just recognize civil unions for everyone.

Besides being impractical (no one is voting to deny heterosexuals marriage any time soon), this angered some other Senate Republicans who oppose civil unions. Kittleman stepped down from leadership, saying that this would allow him the freedom to support goals that do not have the backing of the Republican caucus.

And it now appears that marriage is one such goal. (WaPo)

Sen. Allan H. Kittleman (R-Howard) formally announced his support Wednesday morning for legislation that would allow same-sex marriages in Maryland, saying he would vote for the bill “because of my firm belief in equal rights.”

With the announcement, Kittleman became the first — and will probably be the only — Senate Republican to back one of the most high-profile bills of the 90-day session. When the full chamber considers the bill in coming weeks, the vote is expected to be very close.

Kittleman sees this as an extension of the legacy of his father, a state senator who was a civil rights activist and president of the local NAACP chapter.

He also demonstrates that some people are capable of distinguishing between their personal faith and beliefs and the rights of citizens.

I know that some may contend that since the Bible teaches that marriage is between a man and a woman, Maryland should continue to prohibit same sex marriage. First, let me state that I am a strong follower of Jesus Christ. I worked in youth ministries for many years. However, while my faith may teach that marriage is between a man and a woman, our government is not a theocracy. As the state senator from District 9, I represent everyone in my district, regardless of their faith. Therefore, while my spiritual life is extremely important to me, it cannot be the sole basis for my decisions as a state senator.

Although Democrats have a greater than two-thirds majority, the vote is expected to be close and Kittleman’s support is much welcomed.

Iowa house passes anti-marriage constitutional amendment

From OneIowa

The Iowa House today, by a vote of 62-37, passed an amendment (House Joint Resolution 6) that would deny any form of legal recognition for gay couples. The amendment seeks to prohibit not only the freedom to marry for gay couples, but also civil unions or domestic partnerships.

The bill now moves on to the Iowa Senate, where Senate Majority Leader Mike Gronstal has vowed to fight attempts to pass the amendment. If passed through both legislative bodies in two consecutive General Assemblies, the issue could be on the ballot as soon as 2013.

As the Democrats hold a majority in the Senate and have already demonstrated their support for Gronstal on the issue, barring some bizarre turn of events, this amendment will not pass the Senate.

Bush twin endorses marriage equality

Barbara Bush, one of George W. Bush’s daughters, has recorded an endorsement for marriage equality. (NYTimes)

Ms. Bush, 29, has taped a video calling on New York to legalize gay marriage. A bill to do that was defeated in the state in 2009. She describes the issue as a matter of conscience and equality.

“I am Barbara Bush, and I am a New Yorker for marriage equality,” she says in the brief message, sponsored by an advocacy group. “New York is about fairness and equality. And everyone should have the right to marry the person that they love.”

The video ends with Ms Bush, who lives in Manhattan, imploring the state’s residents to “join us.”

Barbara joins her mother, Laura Bush, and Cindy and Meghan McCain in taking a public stance in favor of marriage equality. This visibility is of tremendous importance as it gives elected Republicans, especially women or younger representatives, visible examples of “good Republicans” who support equality and helps break down partisan presumption on the issue. In New York, we very much need the vote of some Republicans in the Senate.

UPDATE: Here’s the video

Civil unions bill signed in Illinois

Governor Pat Quinn has now signed Illinois’ civil unions bill into law:

Moments ago Gov. Pat Quinn signed into law the Illinois Religious Freedom and Protection and Civil Union Act at a signing ceremony in downtown Chicago. His signature represents a long-fought victory toward fairness for thousands of gay and lesbian couples in Illinois.

The law becomes effective on June 1st.

A quiet little very important victory

A little over a week ago our community gained a significant step forward in our quest for marriage equality, and few noted it. The briefs filed in the challenge to DOMA in Massachusetts caught attention, but there is also a DOMA challenge in California. (Chronicle)

In a victory for gay rights advocates, a federal judge has ruled that state employees in California can sue for discrimination over the federal government’s exclusion of their same-sex spouses from a long-term health care program.

U.S. District Judge Claudia Wilken of Oakland denied an Obama administration request to dismiss the suit Tuesday and signaled that she is likely to overturn provisions of the 1996 Defense of Marriage Act, which denies federal benefits to same-sex couples.

Wilken has rejected, in advance, the notions usually put forward by anti-gay activists.

She also rejected arguments that the law’s sponsors put forth in 1996, that the legislation was necessary to promote procreation and preserve heterosexual marriage.

“Marriage has never been contingent on having children,” Wilken said, and denying federal benefits to same-sex couples “does not encourage heterosexual marriage.”

Wilken has not indicated whether she will allow her suit to cover domestic partners as well as spouses. If she does not, then this could have a significant impact on the Perry v. Schwarzenegger case. It would create a very significant difference between domestic partnerships and marriages (the possibility of federal recognition) and could torpedo the opposition.