hunter of justice

What is the government's interest in preventing gay marriage? Here's your answer -

Many people who don't actually care a great deal one way or the other about gay marriage find it difficult to imagine why they should care. After all, how does allowing same-sex couples to marry affect your typical heterosexual married couple? This is the single hardest question for the opponents of marriage equality to answer and the one on which Jon Stewart etc can most reliably trigger laughter in ridiculing their priggishness.

Well, thank goodness for lawyers. In the pretrial brief filed in Perry v. Schwarzenegger, the defendants had to  identify what they believed to be the legitimate state interests behind Prop 8, the California constitutional amendment that prohibited same-sex marriage. And being the excellent lawyers that they are, they came up with not one, not two, but 47.  Yes, 47. Three more and the whole thing could join AARP.  But I digress.

The first five of the 47 are really the same thing - enforcing "traditional" marriage - although the idea is ingeniously morphed into five variations: "preserving the traditional institution..," "preserving the traditional meaning...," "preserving the traditional purposes..., "preserving the traditional meaning ...as it has been defined in English," [think how many more there could be: in Spanish, in Mandarin, in Farsi,...] and "expressing support for the traditional institution of marriage." Just when did "traditional" get to be a magic word, some kind of unassailable talisman? Oh right, Justice Scalia.

You have to assume that the first five represented their best shot. So who should get credit for using so many words to say the same thing? I see a litigation team meeting, in the conference room of Chuck Cooper's firm, with multiple associates around a table tweaking the language. I see billable hours.

And what of the other 42 justifications - where are the zingers to deploy against the Jon Stewarts of the world? Or even to just answer the "whatever dude" masses of potential turncoat heterosexuals?

Well, I can't do justice to all 42 of them.  So here are my 10 favorites, in Letterman order:

10. Preserving "the prerogative and responsibility of parents to provide for the ethical and moral development and education of their own children" (against those child-snatching gay couples);

9. To avoid "the further, and in some respects the full, de-institutionalization of marriage" (silly me, I thought people wanted to be de-institutionalized);

8. To avoid "publicly replacing the idea that parenting is largely gendered with the idea that parenting is largely unisex" (which is to say, cliches about mom- and dad-ism become harder in same-sex couples);

7. To avoid replacing "the norm of the natural parent with the norm of the legal parent" (have you ever heard of adoption?);

6. To avoid "enshrining the principle that sexual orientation, as opposed to sexual embodiment, is a valid determinant of marriage's structure and meaning" (what the hell is "sexual embodiment"?);

5. To avoid "ending or diluting the public socialization of heterosexual young people into a marriage culture" (sounds like a Moonie wedding);

4. To avoid requiring "that all relevant branches and agencies of government formally replace the idea that marriage centers on opposite-sex bonding and male-female procreation with the idea that marriage is a private relationship between consenting adults" (not that! not consenting adults!);

3. To avoid increasing "the likelihood that bisexual orientation could become a legitimate grounding for a legal entitlement to group marriage" (I knew there was a reason to be bisexual);

2. To avoid contributing to "the belief that marriage in our society is now politicized" (not like in the good old days when women were serfs, for example); and .....

1. To serve the interest of "using different names for different things." (Res ipsa loquitur baby)

Pretty impressive, huh?  As I said, lots of billable hours.

Checking in on Ted and Dave's excellent adventure

A slew of pretrial memoranda have been filed in the last couple of days in Perry v. Schwarzenegger, the mega case challenging the constitutionality of Prop 8 in federal court in San Francisco.  A side issue involving whether the defendants will have to turn over to plaintiffs a series of e/mails and other communications related to the campaign strategy behind passing Prop 8 is pending on appeal before the Ninth Circuit. Judge Walker ordered that the materials be turned over, 2009 WL 3234131 and 2009 WL 3823174, but the panel of Ninth Circuit judges that heard the appeal indicated during oral argument that it was likely to rule that forcing disclosure would violate the First Amendment. Other than that, however, the case seems to be on track for its trial date of January 11. There is a pretrial hearing next Wednesday, the 16th, at which final decisions about the scope and length of the trial may be made.

And what a trial it is going to be -

In comparing the plaintiffs' witness list and the defendants' witness list, it is clear that defendants are sticking to their primary theory of the case, which is that plaintiffs' claim is invalid as a matter of law.  Defendants filed a summary judgment motion on those grounds, which Judge Walker denied.  But it appears from their list of proposed witnesses - which includes several of the same individuals expected to testify on behalf of plaintiffs - that the defendants will seek to score points by aggressive cross-examination of plaintiffs' witnesses (which is why the same witnesses are also on the defendants' list), and that they apparently plan to introduce few experts of their own.  Perhaps because few scholars support their position...

Persons on both plaintiffs' and defendants' lists include Lee Badgett, economics professor at the University of Massachusetts and research director at the Williams Institute at UCLA Law School; George Chauncey, a professor at Yale and leading gay historian;  Nancy Cott, another Yale history professor who has written extensively on the relationship between marriage and citizenship; Greg Herek, a psychology professor at Cal-Davis who has been studying sexual orientation for many years; Michael Lamb,a psychology professor at Cambridge who is an expert on parenting; Ilan Meyer, a professor at the Columbia School of Public Health, who will testify about the psychological stress associated with minority status; Anne Peplau, a UCLA psychology professor who will testify about the effects on individuals of equal marital status; and Gregory Segura, a Stanford political science professor who will testify about the political power or lack thereof of the lgbt minority in the United States.  

I gave a talk today at the Department of Justice, and one of the attorneys there suggested that the Perry trial might rival the Scopes trial (on the theory of evolution) as a critical turning point in public understanding.  I hope he's right, with one caveat: the good guys lost the Scopes case, Clarence Darrow's efforts notwithstanding. Let's hope this one turns out differently.

Toward a sensible religious accommodation in DC

In my view, when the legal consequences of same-sex marriage or civil rights laws affect religious providers of social services, both the law enforcement authorities and the sectarian groups should stretch to find a solution that allows the anti-discrimination principle to take effect while not forcing the religious entity to actively endorse a tenet which runs counter to its faith.  When this cannot be achieved and when the religious groups are receiving public funds, human services officials should have the discretion to suspend enforcement of an anti-discrimination mandate until equivalent services can be obtained, with the caveat that a transition must genuinely go forward.

In other words, I support a phase-in period when applying an anti-discrimination law to government contractors that claim a religious objection, if necessary to protect a vulnerable population.

In DC, this kind of situation has arisen because Archbishop Wuerl has threatened to stop providing a variety of services to indigent residents, for which Catholic agencies receive roughly $20 million a year in government funds. The top priority should be to insure that the people receiving those services experience no harm if a changeover to other providers is required, but there is no reason that an orderly transition cannot take place.

Compromise may still avert this kind of hostage-taking of defenseless people. Negotiations in DC are ongoing to find language that could be adopted a week from Tuesday (Dec 15), when the Council takes its final vote and will, with or without a workaround for the Archdiocese, adopt the marriage bill. (Because DC laws must remain in limbo for potential Congressional review, same-sex marriages are not likely to become actually available until sometime in the spring.)

From a Washington Post editorial:

Catholic Charities's intransigence is mystifying. The fight going on in the District today took place 13 years ago in San Francisco.

When that city's Board of Supervisors unanimously passed a law requiring city contractors to provide spousal benefits to domestic partners, Archbishop William J. Levada protested. He raised the same objections we're hearing today. But a compromise was reached after a meeting with then-Mayor Willie Brown and four supervisors. A business or agency with a city contract is in compliance with the law if it "allows each employee to designate a legally domiciled member of the employee's household as being eligible for spousal equivalent benefits." Georgetown University provides another model. It provides medical, dental and vision coverage to an employee's spouse or a "legally domiciled adult" defined as someone 18 or older who has lived with the employee for at least six months. A "Legally Domiciled Adult Certification Form" must be filed.

These two models [now being offered by DC Councilmembers] are worthy compromises that should allow the Catholic Charities to be within the law without violating church principles.

Who's on first? Congress and states reshuffle lgbt issues - Updated

In  last week's election, Maine, New Jersey and Virginia delivered a triple whammy to progressives.  Although it is a mistake to treat these results as a herald of conservative resurgence - polls also show strong support for a public option in health reform, for example - it is nonetheless silly to deny that winning the elections in those three states (or two, or one) would have been a lot better than losing all of them. Instead, marriage bit the dust in yet another ballot contest; and Dems in Congress are spooked by the loss of the two governorships, no matter how many op-eds proclaim that the results were driven by local issues.

So what happens as a result?  As one of the most vulnerable and expendable of Dem priorities, lgbt issues look considerably shakier than they did two weeks ago.

In Congress, Rep. Barney Frank - who, whatever his faults, often speaks realpolitik to wishful thinking - now says that ENDA will likely get to the House floor in February.  This is not what advocates were thinking two weeks ago, when the sense was that mark-up in the House, followed by a floor vote, could happen before Thanksgiving, certainly before Christmas.  Instead, Barney is predicting that domestic partner benefits for federal employees is likely to jump the queue, moving ahead of ENDA in the sequence of lgbt rights legislation. Okay, federal employee benefits is an important issue. But ENDA is the bill that will shift workplace dynamics and help achieve basic material equality for every lgbt person in the nation who is employed. 

The difference between the two? ENDA includes transgender persons; partner benefits does not implicate that issue. In other words, this is ugly. And dangerous. It is ESSENTIAL that both the House and the Senate pass ENDA before the 2010 election season begins in a few months, around spring break in academic-speak. (In some, mostly Beltway, politics-obsessed quarters, it began on November 5, 2008.)

(UPDATE 11/17 - The mark-up in the House committee on the Domestic Partners Benefits and Obligations Act will be next Wednesday, November 18. You can watch it here. The mark-up on ENDA was originally set for the 18th, but has been postponed, with no new date set.)

And in the states -

In New Jersey, the plan was always that the lame duck legislative session would enact a marriage law, regardless of who won the governor's race. That is still the plan, but it looks less like a lock than it once did.  Soon to be ex-Governor Jon Corzine will sign a marriage law if it gets to him in the two months remaining in his term. After that, incoming Governor Chris Christie has vowed to veto such a bill. Although the top job changed hands, there was essentially no change in the party breakdown in the legislature. So will the deal to pass a new marriage bill hold, or will the Maine vote scare off enough legislators to delay any possibility in NJ for another four years? Apparently, there is little doubt that a marriage bill would make it through the state house, but the state senate vote is likely to be a squeaker.

And New York ...What can I say -- New York's state legislature has been dysfunctional for so long that even the smallest sign of adulthood looks like up from here. Governor David Paterson, who is as strong a supporter of marriage equality as any non-gay politician anywhere, has apparently struck a deal with state senate leaders to guarantee that there will be vote on the issue before Christmas. (See Gay City News for a fascinating account of the machinations.) Which side will win this vote is anybody's guess.

If we get to New Year's Day 2010 and neither New York nor New Jersey has legalized gay marriage, that campaign will be hitting its lavender ceiling much sooner than the advocacy groups expected.

Gay marriage after Maine

As heartbreaking as it was for the people on the ground and as callous as this may sound, Maine 09 was just another move in the two steps forward, one step back dance that social change movements are. The overall strategy on marriage has been to win in enough states to create a tipping point before seeking a nationwide resolution. Perry v. Schwarzenegger, the big gamble of a case now in federal court in California, might change that strategy, but a loss in any one state won't. Instead, what comes out of Maine are little lessons that are new and big questions that are old.

The little lessons are tactical points: Heavy turn-out is not necessarily a good sign for a minority rights issue. Religiosity isn't everything (Maine is one of the four least religious states in the country). A huge fundraising advantage may be necessary but definitely is not sufficient. And we should trust only automated polling - when people respond to other people instead of to computers, a chunk of them say they will vote to legalize gay marriage, then actually cast their ballots against it.

More importantly, here are three major issues reinforced by the Maine experience as ones that people need to wrap their minds around:

+ Marriage is different. For lots of progressives and lgbt people, marriage is simply the next frontier in an expanding civil rights movement. (Personally I dissent from the view that legalizing marriage is the apex of our goals, but I digress - that's another post.) We visualize it as linear because that is how we conceptualize it. But for a huge number of other Americans (at least if they are over 35), marriage really is different. Really different. Really. Maybe our team should consider ways to acknowledge that feeling without endorsing it.

+ Time may be on our side in the long run, but in the very short run of an election campaign, time feeds doubts about jettisoning the status quo. Both in Maine and California, early polls showed the good guys winning, but that lead evaporated in the run-up to the election. Draining a swamp of fear and prejudice can't be done with a three-month campaign, even a smart one.

+ Lastly, if the post-election surveys that are about to be done (if they haven't begun already) indicate that the homosexuals-indoctrinating-children-in-schools attack was as effective in Maine as it was in California, the gay marriage forces may want to consider an inoculation against that, even if the inoculation is painful. Let parents of young children register with the school if they want to opt their children out of teacher-initiated discussions of gay marriage. Not out of discussions of gay people and their families, but solely and specifically discussions of marriage. Most parents won't do it; most teachers won't be affected. It could make a difference.

MSU Law professors propose "e/marriage"

Michigan State Law Professors Adam Candeub and Mae Kuykendall have launched a website to promote the idea, explicated in their article, E: Marriage: Breaking the Marriage Monopoly, that states should permit a couple to marry under the laws of jurisdictions other than where they live, without having to travel to those locations. If Massachusetts, for example, enacted an e-marriage provision, a couple residing in another state could avail themselves of a Massachusetts marriage. They could have the ceremony in their home location, perhaps with the officiant performing the ceremony online. However, the couple's home state would not be required to recognize the marriage. The authors argue that the e/marriage laws would create a competitive federalism in family law. 

The article abstract summarizes the proposal:

This Article advocates updating the law governing marriage formation to recognize the shift in social interactions from real to virtual life. We argue that couples can use internet communications not only to marry when separated by great distance but also to choose which state's laws will authorize their marriage. In particular, same sex couples could marry under the laws of a state that permit such unions, regardless of where they exchange vows.

States inadvertently have created geographic monopolies, requiring each marriage receiving the benefits of their licensing laws to be performed within their borders. This Article's model builds upon established precedents, such as proxy marriage and choice of law for multi-jurisdictional and internet contracts. Using the power of internet communications, our proposal allows states to compete over marriage's procedures and substance. Depending on a couple's preferences for "e-ritual" and a state's desired level of regulatory control, couples could consume the trappings of a traditional ceremony before their friends and family, without travelling to another jurisdiction, perhaps with an officiant presiding on-line from a remote location. More simply, couples could have a complete marriage ceremony in the location of their choice, but would receive a license and file necessary papers with a distant state jurisdiction.

Some states do not recognize types of marriages that other states authorize, i.e., Massachusetts same sex marriage or Louisiana covenant marriage. Every type of e-marriage will not be enforceable everywhere. We argue, however, that marriage satisfies a unique human need for socially sanctioned commitment, which a simple contract cannot satisfy, a point ignored by those who argue for a purely private, contractual approach to marriage. E-marriage can more efficiently distribute the "status good" of marriage-even if it cannot provide a legally enforceable relationship in every state. Finally, our proposal encourages a legal cosmopolitanism as individuals witness a variety of sanctioned relationships within their own places of worship and communities, defusing protracted political struggles at the state level over substantive marriage rules.

Critical moments in New England campaigns for marriage equality

The Boston History Project sponsored a panel discussion recently in which GLAD Legal Director Gary Buseck posed questions to two of the leading advocates for gay marriage: GLAD lawyer Mary Bonauto and Vermont Freedom to Marry lawyer Beth Robinson.  The result is a window into the history of the litigation and legislative efforts across New England, beginning more than a decade ago. Listening to the video below (excerpts of the discussion, compiled by GLAD) reminded me of how profoundly local these decisions are. I found especially interesting the background on the civil unions law in Vermont - its enactment and the almost successful attempt to repeal it. And there's a very funny story about then Vermont Governor Howard Dean at the end of the first excerpt.

DC should not eliminate domestic partnerships when it authorizes gay marriage

One of the questions associated with legalizing gay marriage is the question of what to do about existing domestic partnership laws which create some meaningful form of legal recognition for relationships in addition to the standard conjugal couple form. Unfortunately, DC City Councilmember David Catania's bill to legalize gay marriage also would terminate access to domestic partnerships. 

Big mistake.

In DC, domestic partnerships are open not just to gay or even straight unmarried couples, but also to any two people in "a committed, familial relationship." I don't have any problem with eliminating civil union laws, because typically they create only a marriage mimic status, with all of the rights and responsibilities of marriage, open only to same-sex couples. If same-sex marriage becomes legal in one of those states, there is no reason to preserve civil unions, which really are just a segregated, second-class form of marriage. But DP laws such as the one in DC have created rights for non-gay folks and/or non-couples, and they shouldn't be dropped because gay couples acquire the right to marry.

Happily, there has been something of a revolt against this part of the bill within the DC lgbt community. A Council hearing on the bill tonight, at which more than 250 people have signed up to testify, will center mostly on the merits of legalizing gay marriage and the religious arguments pro or con, and will doubtless produce a massive amount of noise and probably not a single new argument on either side. However, some of the testimony in support of the marriage bill will also oppose the DP sunset provision. I endorse the arguments being made by Nancy Polikoff, who will testify about the importance of not limiting legal protections to couples, but extending them to other family forms as well.

Other jurisdictions that move from a domestic partnership system to marriage rights for gay couples will also have to decide whether to extinguish recognition for the different sex couples and others who can qualify as DPs. Currently, coverage varies from state to state. The next place where this issue will have to be addressed will probably be New Jersey. Thinking through how non-marital family recognition laws should be structured after gay couples have the right to marry is an important issue, for the gay and straight couples who choose not to marry, for people in various other forms of familial relationships, and for family law in general.

UPDATE - The provision phasing out domestic partnerships was dropped by the committee.

Maine in home stretch with polls showing tie; Bonauto-Mutty debates begin

Polls show the Maine referendum on marriage equality as a cliffhanger: the most recent (and according to Nate Silver, probably the best) poll shows a dead heat: 48 to 48, although earlier polls have shown the pro-equality (No on 1) side winning by 5 to 9 points. Silver argues that the fundamentals look good for No on 1 to win for two primary reasons:

(1) Maine is one of the least religious states in the nation (see map below); and
(2) Pro-gay marriage groups have outstripped their opponents in the fundraising contest by almost two to one.

Polls also show that virtually no one is undecided; Silver predicts that the outcome will turn on the GOTV, election day ground game. For more details, see Lisa Keen's latest article.

Non-Mainers who want a flavor of how the arguments are being framed can listen to a series of TV and radio debates between GLAD's Mary Bonauto and Yes on 1 leader Marc Mutty.  The first is tomorrow at 1 pm east coast time -

Thursday, October 22nd, 1  to 2 p.m.
Listen at http://www.mpbn.org/

Remainder of schedule after the jump -->

Changing marriage

Quote of the day, from Melissa Harris-Lacewell, writing at The Nation:

Typically advocates of marriage equality try to reassure the voting public the same-sex marriage will not change the institution itself. "Don't worry," we say, "allowing gay men and lesbians to marry will not threaten the established norms; it will simply assimilate new groups into old practices."

This is a pragmatic, political strategy, but I hope it is not true. I hope same-sex marriage changes marriage itself. I hope it changes marriage the way that no-fault divorce changed it. I hope it changes marriage the way that allowing women to own their own property and seek their own credit changed marriage. I hope it changes marriage the way laws against spousal abuse and child neglect changed marriage. I hope marriage equality results in more equal marriages. I also hope it offers more opportunities for building meaningful adult lives outside of marriage.

Breaking: Judge Walker denies summary judgment motion

In an oral order from the bench that followed two hours of argument and a recess, Judge Walker denied the summary judgment motion filed by defenders of Prop 8 in Perry v. Schwarzenegger. In his comments, Judge Walker rejected Baker v. Nelson as precedent, saying that the Perry case was more like Romer. [Thanks to Shannon Minter for the description]

For more flavor, here's the S F Chronicle:

A federal judge refused today to dismiss a lawsuit challenging California's ban on same-sex marriage, setting the stage for the nation's first trial on the constitutionality of a law allowing only opposite-sex couples to wed. Chief U.S. District Judge Vaughn Walker, in a ruling from the bench in San Francisco, said a trial was needed to resolve crucial issues, including whether gays and lesbians are persecuted minorities entitled to judicial protection from discriminatory laws. He has scheduled the trial for January.

Sponsors of Proposition 8, approved by 52 percent of the voters in November, argued that the initiative was clearly constitutional under U.S. Supreme Court precedents, which have never recognized a right to marry a person of the same gender. Plaintiffs in the suit seeking to overturn Prop. 8 - two same-sex couples, a gay-rights organization and the city of San Francisco - contend that the measure's real purpose was to strip a historically persecuted minority group of rights held by the majority. The sponsors contended that Prop. 8 was based on an ages-old tradition of male-female marriage and the ability of opposite-sex couples to conceive children.

But Walker said the Supreme Court, in striking down laws against interracial marriage and by allowing prisoners to marry, had defined the right to wed as fundamental without limiting it to certain groups. Disputes over the state's authority to enshrine traditional marriage in its Constitution, and exclude same-sex couples because of their inability to conceive children, raise factual questions that require a trial, the judge said.

Oral argument today on motion to derail Perry case

It's back to the battle stations today in Perry v. Schwarzenegger, the fancy lawyer face-off in the Northern District of California over the constitutionality of Prop 8. Judge Vaughn Walker will hear arguments on whether the complaint should be dismissed on the ground that there is no viable claim that Prop 8 is unconstitutional. I doubt very much whether the defendants will win their motion for summary judgment, but I do think they will try to persuade the Ninth Circuit to accept the case on appeal immediately if they lose. If they succeed in getting the case moved to the appellate court over this preliminary motion (the general rule is that there is only one appeal, after the entire case has ended in the trial court), then they will have achieved their secondary goal of delaying the case, and lengthening the time that Prop 8 is in effect.

The primary question facing the court is how to interpret Baker v. Nelson, a 1972 case in which the U. S. Supreme Court denied without hearing the appeal from a decision of the Minnesota Supreme Court that two men did not have the right to marry. The plaintiffs were appealing a ruling that the Minnesota law was constitutional under the federal Constitution. The Supreme Court dismissed the appeal "for lack of a substantial federal question"(FLSFQ).  In other words, the Court said in effect, the law on this question is so overwhelming that we can dismiss your arguments summarily, without having to go through the normal process of reading briefs and hearing argument.

Now the defenders of Prop 8 are arguing that Baker is binding precedent, such that only the Supreme Court can reverse it. Unless and until that happens, they argue, lower courts must rule that excluding same-sex couples from marriage is constitutionally unproblematic. This is what conservatives think is their legal ace-in-the-hole in marriage cases. Senator Grassley used it as a way to try to trap then nominee Sonia Sotomayor in her confirmation hearings. She initially responded that she did not recall Baker, and said that she would answer his question the following day. When she did respond, she said that she could not comment on whether Baker settled the question of whether marriage exclusions were constitutional because the precedential effect of a dismissal FLSFQ was itself a unsettled question on which she might have to rule as a Justice. (nice move) There was a bit of irony in having the Baker question come from a senator whose own state (Iowa) had legalized same-sex marriages, but hey - what's a little inconsistency among cronies.

In their opposition to summary judgment, plaintiffs are making two arguments that I think will carry the day.  The first is that a dismissal FLSFQ is binding only as to the precise issues presented in the earlier case, and the theory of the Baker appeal was that the Minnesota marriage law discriminated based on sex, which is not a claim in Perry. The second is that the import of such a dismissal is eroded when subsequent doctrinal developments undermine the legal basis for it, which has certainly occurred as a result of Romer v. Evans and Lawrence v. Texas.

However, even if Judge Walker rejects the argument that Baker predetermines his ruling in Perry, I would bet that the defendants will seek an immediate appeal, and use that move to delay the case.  It is already starting to seem unlikely that the parties in Perry will actually be ready for trial by January 14, the date initially set.

Meanwhile, lurking in the background is another issue that the judge could ask the parties about tomorrow, even though it is not calendared. The defendants are asking the court to stay further discovery (motion here) while they appeal an order that directed them to turn over information concerning the strategies and tactics used by Prop 8 proponents during the campaign. They argue that the forced exposure of these internal documents infringes the First Amendment, because it will chill expression in future ballot campaigns. I don't think the defendants have much chance with this motion either, but the outlines of an overarching strategy for delay are pretty easy to discern.

NY Court of Appeals hears challenge to recognition of out-of-state s/s marriages

New York's highest court heard arguments today in two cases raising the question of whether marriages involving same-sex couples must be recognized by the state if they were legal where and when performed. Following are excerpts from the NY Times report:

...The cases ... concern relatively narrow executive and administrative orders in recent years that extended benefits like health insurance to same-sex spouses of government employees who married in jurisdictions where such marriages are legal, and, in one county, required local officials to treat same-sex couples as married. But a broad enough ruling by the Court of Appeals could force businesses and local governments in the state to recognize out-of-state marriages between same-sex couples, effectively legalizing the unions of thousands of New Yorkers who were married in Vermont, Iowa, parts of Canada and other places where same-sex marriage is legal.

In one of the cases, opponents of same-sex marriage are challenging a 2007 policy, adopted by the State Department of Civil Service, that extended health insurance benefits to the same-sex partners of state and local government employees who married in states that allow such marriages. In the other case, opponents are seeking to overturn an administrative order issued in 2006 by Andrew J. Spano, the Westchester County executive, directing county officials to recognize same-sex unions performed elsewhere.

The plaintiffs in both cases are being represented by the Alliance Defense Fund, a conservative legal-advocacy group based in Scottsdale, Ariz., whose lawyers have argued that state officials and Mr. Spano exceeded their authority. Lower courts have sided with state and local officials in the two cases.

The fund is also coordinating the legal fight against a much broader executive order on gay unions that Gov. David A. Paterson issued in 2008. It required all state agencies to revise their policies and regulations to recognize gay couples legally married out of state. While the legal challenge to Mr. Paterson’s order has not yet reached the Court of Appeals, questioning by the court’s judges during arguments in the two narrower cases raised the possibility that they might leapfrog to the larger question raised in all three cases: whether New York must recognize same-sex marriages performed elsewhere, even though such unions are not allowed in the state.

“I guess what I’m struggling with is, the marriage-recognition rule would not be unique to state government,” said Judge Victoria A. Graffeo, referring to the legal doctrine under which most marriages legally performed in one state are generally recognized in other states. “That would also apply to the private sector, then, if our court indicates that the marriage-recognition rule requires the recognition of these marriages.”...

Kendell 2.0 - I felt like I was playing out of position

Kate Kendell reflects on the personal side of the California roller coaster ride for lgbt rights (with apologies for too much camera movement):

Matt Coles - Making the non-discrimination norm local, even after ENDA

A few good words from Matt Coles of the ACLU LGBT Rights Project -

Tomorrow - Kate Kendell on 21st century civil rights lawyering.