hunter of justice

Marriage, animus and the Supreme Court

Today's New York Times carries an op-ed by Bill Keller titled "A Brief for Justice Kennedy" in which he makes a sweet, but pretty much legally beside the point, argument that the Supreme Court should strike down exclusionary marriage laws because they harm gay couples. With all due regard to Keller for endorsing this argument, and realizing that he is writing for a non-legal audience, I think it nonetheless makes sense to remind people that the real briefs that will need to be filed with that or other courts have to come up with more than that.  Lawyers have to persuade a court that democratically-adopted laws not only cause harm, but are so invidious and so lacking in any legitimate purpose that they must be struck down.

Without belaboring legal technicalities, the key to achieving that goal will be to persuade judges that such a law is a product and instrument of unjustified bias, or, to use the term that has evolved in case law, of animus. And the elaboration of a more sophisticated theory of animus is one of major contributions of the Ninth Circuit's February opinion in the Prop 8 case.

Here's part of what I had to say about that in an essay titled "Animus Thick and Thin" published in Stanford Law Review online:

One fundamental point of the Perry decision is that singling out a socially disfavored group for the withdrawal of an important right reeks of animus. This should not be a controversial claim. Considered together with the denigration of gay people that saturated the pro-Proposition 8 campaign, the consequence of the “taking away” sequence of events in California [the state supreme court ruled that same-sex couples have a fundamental right to marry, then voters enacted Prop 8] is to trigger heightened rational basis, the standard of review used by the Supreme Court in Romer v. Evans. In my view, sexual orientation ought to be considered fully suspect when it is used as a basis for differential treatment under law, but neither the Supreme Court nor any U.S. court of appeals has so held.

By contrast, taking a closer look at laws infused with animus is something that the Supreme Court has done since 1973, when it struck down a law enacted to disqualify otherwise eligible “hippies” from obtaining food stamps. However, the Supreme Court has done so rarely and, more importantly, has never said that it was using this device. Indeed, how to categorize and assess animus has become a recurring and unresolved question in equal protection law.

Justice Scalia raised the stakes on animus in his dissent in Romer, in which he attacked the majority opinion for adopting “the proposition that opposition to homosexuality is as reprehensible as racial or religious bias.” Scalia derided the Court’s suggestion that voters had “been guilty of ‘animus’ or ‘animosity’ toward homosexuality,” and characterized its “stern disapproval of ‘animosity’ toward homosexuality” as a misreading of a “reasonable effort to preserve traditional American moral values.”

In Board of Trustees v. Garrett, a case that divided the Court five to four, the dissenting opinion argued that adverse treatment resting upon “negative attitudes, fear, or irrational prejudice” necessarily violated the Equal Protection Clause. Chief Justice Rehnquist, writing for the majority, replied that “[a]lthough such biases may often accompany irrational . . . discrimination, their presence alone does not a constitutional violation make.” Justices Kennedy and O’Connor both joined the Rehnquist opinion, but also wrote separately to say that “[p]rejudice . . . rises not from malice or hostile animus alone,” but also from thoughtlessness. Clearly the concept of animus marked highly contested ground.

Justice O’Connor responded in her concurring opinion in Lawrence v. Texas, where she spelled out the analysis for why evidence of animus (presumably when not merely “prejudice”) should trigger tougher review under the Equal Protection Clause, even for nonsuspect classifications. Perry v. Brown, however, is the first opinion with precedential weight to adopt Justice O’Connor's approach.

The Ninth Circuit accepted the proposition that there might be a rational reason—i.e., apart from animus—for a state to limit the benefits linked to marriage to only those couples who might “procreate accidentally.” Since same-sex couples don’t have those kinds of accidents, including them in the group eligible to marry would not be necessary to advance that interest. Thus, the court reasoned, a state could rationally choose to exclude gay couples from marriage.

The court found, however, the proponents of Proposition 8 advanced no legitimate reason for taking away the right to marry and its presumed protective benefits for children from the broader group covered under a regime of marriage equality. 

The difficulty with this part of the court’s reasoning is that the accidental procreation argument itself is so strained. Using marriage as a state-sanctioned mechanism for enhancing the likelihood that adults who have children will legally bind themselves to each other and thereby—so the theory goes—provide a stable family dynamic for raising children is advanced as much by allowing gay couples to marry as allowing straight couples to marry.  So for the court to accept that accidental procreation is a plausible state interest, it has to accept that the state could have a legitimate interest in protecting only the children of unplanned and unwanted pregnancies. 

The Perry court did not have to reach the question of whether the accidental procreation rationale could ever make sense, so it didn’t. Beneath this hesitancy surely lay an understanding that profound shifts in social meaning occur in slow motion; that very factor justifies minimalist adjudication.

Prop 8 lawyers debating what to do next

Will the Prop 8 defenders who lost the Perry case before the Ninth Circuit panel seek en banc review or head straight to the Supreme Court? They have until February 21 to file a motion for rehearing en banc; if that date passes without such a motion, we can wait for the cert petition.  According to this LA Times report, it sounds like the decision is not yet made:

Andy Pugno, general counsel for ProtectMarriage, noted that a judge on the 9th Circuit might independently call for fellow jurists to vote on whether to review the ruling. Whether such a vote would gain majority support remained doubtful, law professors said.

A rehearing would permit the 9th Circuit to reframe the legal case and deliver a ruling that would affect marriage laws in other states, the outcome preferred by ProtectMarriage's supporters, Pugno said. Tuesday's ruling was limited to circumstances in California and would not affect other states.

A ruling by a larger 9th Circuit panel also "would raise the profile of the case and increase the attention the Supreme Court would give to it," Pugno said. But he cautioned that his group's legal team was still debating strategy. In the past, ProtectMarriage lawyers have said they wanted to get to the Supreme Court as quickly as possible.

Courage Campaign says that "signs point to" ultra-conservative Judge Diarmuid O’Scannlain as being the judge interested in independently calling for an en banc hearing.

Meanwhile, back in plaintiffs' camp, it appears from MetroWeekly that Ted Olson has totally drunk the kool-aid:

One of the lawyers fighting Proposition 8 said that [yesterday's decision] of the U.S. Court of Appeals for the Ninth Circuit in Perry v. Brown striking down the initiative makes it "somewhat less likely" that the U.S. Supreme Court would hear an appeal of the case, while his co-counsel was more ambitious, suggesting that the ruling could have a ripple effect of advancing marriage equality in Georgia and Arkansas.

On a conference call organized by the American Foundation for Equal Rights, which brought the case, attorney David Boies told reporters, "I think the grounds do make it somewhat less likely that the Supreme Court will take it."...

"With a precedent like Romer that so squarely fits," Boies asserted that the outcome in the Ninth Circuit's opinion was solid. To that end, Boies added: "The [Supreme] Court might not want to take this issue on on those facts and might want to wait for a case that raises the more general issue."...

[By contrast, Olson said,] "Our opponents are going to say, 'That didn't decide what goes on in Georgia. That didn't decide what goes on in Arkansas.' But we're talking about the fundamental right of individuals to enjoy the relationship of marriage. This decision talks in terms of how important and fundamental that is."

Data show that "marriage is losing market share"

To me, the most telling statistic in the following analysis of marriage data, from the Pew Foundation, is multiple paragraphs down. Although Americans marry at a later age than 50 years ago, the great majority marry at some point in their lives.  The "great" part of that statement, however, is also diminishing: from 85 per cent in 1960 to 72 per cent in 2010. Put differently, more than a quarter of Americans never marry.

Barely half of all adults in the United States—a record low—are currently married, and the median age at first marriage has never been higher for brides (26.5 years) and grooms (28.7), according to a new Pew Research Center analysis of U.S. Census data.

In 1960, 72% of all adults ages 18 and older were married [at the time of the survey]; today just 51% are. If current trends continue, the share of adults who are currently married will drop to below half within a few years. Other adult living arrangements—including cohabitation, single-person households and single parenthood—have all grown more prevalent in recent decades.

The Pew Research analysis also finds that the number of new marriages in the U.S. declined by 5% between 2009 and 2010, a sharp one-year drop that may or may not be related to the sour economy.

The United States is by no means the only nation where marriage has been losing “market share” for the past half century. The same trend has taken hold in most other advanced post-industrial societies, and these long-term declines appear to be largely unrelated to the business cycle. The declines have persisted through good economic times and bad.

In the United States, the declines have occurred among all age groups, but are most dramatic among young adults. Today, just 20% of adults ages 18 to 29 are married, compared with 59% in 1960. Over the course of the past 50 years, the median age at first marriage has risen by about six years for both men and women.

It is not yet known whether today’s young adults are abandoning marriage or merely delaying it. Even at a time when barely half of the adult population is married, a much higher share— 72%—have been married at least once. However, this “ever married” share is down from 85% in 1960.

Public attitudes about the institution of marriage are mixed. Nearly four-in-ten Americans say marriage is becoming obsolete, according to a Pew Research survey in 2010.¹ Yet the same survey found that most people who have never married (61%) would like to do so someday.

It is beyond the scope of this analysis to explain why marriage has declined, except to note that it has declined far less for adults with college educations than among the less educated. Some of the increase in the median age at first marriage over the long term can be explained by the rising share of young adults enrolled in college, who have tended to marry later in life; recently, there are indications that adults who are not college graduates also are marrying later.² Fallout from the Great Recession may be a factor in the recent decrease in newlyweds, although the linkage between marriage rates and economic hard times is not entirely clear.³

Divorce is a factor in diminishing the share of adults who are currently married compared with 50 years ago. But divorce rates have leveled off in the past two decades after climbing through the 1960s and 1970s, so divorce plays less of a role than it used to.⁴

What is clear is that a similar delay and decline of marriage is occurring in other developed nations, especially those in Europe, and in some cases in less developed nations. According to a recent United Nations report that analyzed marriage trends in the context of their impact on fertility,⁵ female age at first marriage rose from the 1970s to the 2000s in 75 of 77 countries included in its analysis. The increase was most marked in developed nations—and especially notable in those countries because the age at first marriage had been declining until the 1970s.

On another measure, the share of women ever married by ages 45-49, there were declines in all developed nations between the 1990s and the 2000s. According to the U.N. report, this was “due in part to an increasing acceptance of consensual [cohabiting] unions as a replacement for marital unions.”

Map of cousin-cousin marriage states

Kudos to Mac McClelland at Mother Jones for this fabulous map of where cousins can legally marry (click on image for sharper focus):

Deportation case closed, ending threat to married same-sex couple

A statement released yesterday from Stop the Deportations:

For the first time since the Department of Homeland Security’s  (DHS) November 17 announcement that a national “working group” had begun reviewing all cases currently pending in immigration courts, Immigration & Customs Enforcement (ICE) has closed a deportation case involving a married same-sex couple.

Although the latest DHS “prosecutorial discretion” guidance still did not explicitly include LGBT families, advocates at Stop the Deportations say that the decision by ICE demonstrates that existing criteria can be properly applied to keep married gay and lesbian couples safe from deportation.

Immigration Judge Terry Bain granted a Joint Motion to Administratively Close Removal Proceedings against Argentinean born lesbian, Monica Alcota, because “good cause has been established.”  Judge Bain’s decision was dated November 30, and was received yesterday, just one day before Monica Alcota was due back in court for a final deportation hearing.  Monica Alcota’s lawyer, Lavi Soloway, submitted the request for Administrative Closure to ICE Chief Counsel in Manhattan on November 14.  The request was based on her marriage to her U.S. citizen spouse, Cristina Ojeda; her deep roots in the community in which she lives and works; her activism against DOMA; and the absence of any adverse factors, i.e. that Monica Alcota is a hard-working, law-abiding person who is not a danger to the public safety or national security.

For most lesbian and gay Americans with foreign-born spouses the only obstacle to a “green card” is the so-called “Defense of Marriage Act,” (DOMA) the law that prevents the federal government from recognizing the legal marriages of lesbian and gay couples.

The “DOMA deportation” that threatened to tear apart Monica Alcota and Cristina Ojeda, a married lesbian binational couple who live in Queens, New York was stopped after ICE attorneys agreed to Alcota’s request and submitted a Joint Motion for Administrative Closure to the presiding Immigration Judge on November 29.

This is the first time the government has asked an immigation court to close removal proceedings against the gay or lesbian spouse of an American citizen since the formation of an inter-agency prosecutorial discretion working group began its work on November 17 with the goal of finding and closing all “low-priority” deportation cases.

 

Politics of marriage is changing Australian politics

By Dennis Altman, published in the National Times:

...The most interesting aspect of the Labor [Party] debate [on gay marriage] was the way in which the issue became central to the party's search for a contemporary identity. Those of us old enough to remember the battles in the 1970s and '80s for decriminalisation might wonder cynically why it took so long for the ALP [Australian Labor Party] to incorporate sexuality into concern for human rights. Such cynicism overlooks two points: the success of the gay movement and the changing nature of a larger understanding of human rights.

The campaign for marriage equality, largely run by younger women and men, not all of them gay, is one of the most successful examples of effective lobbying in Australia over the past few decades. Their efforts worked because they have been able to tap into changing social attitudes and growing acceptance of homosexuality.

Some homosexuals certainly want to get married, and others, myself included, are deeply sceptical of the desire to emulate a women's magazine version of marital bliss. But the right to marriage has become a symbol of acceptance of gay equality, and the push for marriage succeeded by framing it as commitment to basic human rights. While some of the arguments were exaggerated, the underlying question was whether to fully accept the equal validity of same-sex lives and relationships.

Accepting same-sex marriage has become the respectable way of supporting the right for adults to live their sexual and emotional lives as they wish. It is a triumph over religious doctrines, and a further mark of a secular society.

Marriage is a deeply conservative way of promoting acceptance, and same-sex marriage has become possible in an era when marriage itself is declining as an institution.

Same-sex marriage activists are unhappy that Labor has allowed a conscience vote on the issue. Rather than deploring the fact that parliamentarians will be free to vote as they choose, we might applaud the fact that individual MPs will not be able to hide behind the party in revealing their views... 

Surely we need more, not fewer, votes in which MPs are forced to take responsibility for their positions. I wish the ALP conference had extended the same latitude over asylum seeker policy, which is also a question of fundamental moral principles not easily limited to party allegiance. Indeed in a period where party membership is crumbling, the greatest weakness of Labor lies not in its party organisation but in the fact that it requires total obeisance of its MPs to the dictates of its leadership... 

The traditional demand for total loyalty to the party line is increasingly unsustainable as Australia becomes more diverse and political debates occur around a widening range of issues...Were [Prime Minister] Gillard to acknowledge that MPs are elected both as party delegates and representatives of their electorates, and that the right to vote according to their own judgment is essential in issues where there is deep disagreement within the party, she would be attacking one of Labor's shibboleths. She might also be able to stake out a position as a genuinely bold and visionary reformer.

Ninth Circuit clears the deck for the important Prop 8 issues

The Ninth Circuit has announced its game plan for tackling the cluster of Prop 8-related cases now pending before it. Bottom line, the court will not delay issuing its opinion on standing and on the merits question of whether Prop 8 is unconstitutional in order to hear additional arguments. Without knowing how long it will take to draft the opinion (especially since it is possible that the panel has not even deliberated yet on the merits question), it is impossible to predict how quickly an opinion might be issued. But it looks like the court will not let itself get sidetracked by the ancillary questions of videotapes and recusal. 

In the interest of (my own) time, I'm going to quote Lyle Denniston's post from SCOTUSblog:

...[Today, December 2,] the panel is receiv[ing] new briefs — from each side simultaneously — that will bear on question [of whether the proponents of Prop 8 have standing to appeal the District Court ruling that it is unconstitutional.]...Once those new briefs are in, the panel seemed to be indicating by its announcement, it will then move on to decide the two constitutional questions.  The announcement stressed that “there will be no further argument” in that proceeding.   It also emphasized that, up to now, the three-judge panel has not made a final decision on either question...

Besides the constitutional case, the same panel has before it two other cases brought to it by the Proposition 8 backers.  One (docket 11-17255) is an attempt by the ballot measure to overturn a different federal judge’s ruling allowing the public release — and thus public broadcast — of the videotape made of the entire trial before Judge Walker.  That tape has remained sealed since the trial was over, but the same-sex couples who won the case before Judge Walker, along with a coalition of media organizations, are seeking public release of the recording.  Its release is on hold in the meantime.  The Circuit Court said Wednesday that it will hold a hearing on that case at 2:30 p.m. (Pacific time) on Dec. 8.

The other case (docket 11-16577) is a plea by the Proposition 8 backers to throw out entirely Judge Walker’s ruling against Proposition 8, on the argument that he should have been disqualified from conducting the Proposition 8 trial, because he is gay, is in a long-term personal relationship with another man, and was thus in a position to benefit from any decision striking down gay marriages in the state.   That plea has been rejected by the judge who succeeded Walker on the case, Chief District Judge James Ware of San Francisco.   (Judge Ware is also the one who has ordered release of the videotape of the Walker trial.)    The Court said Wednesday it will hold a hearing on that case at 3:30 p.m.  (Pacific time) on Dec. 8.

Both hearings, according to the announcement, will be videotaped “for later broadcast on C-SPAN and the NBC-7 television station in San Diego.”  The Court will also allow still photographs of its hearings.   A  live audio and video feed of the two hearings will be sent to other rooms in the San Francisco federal courthouse, and to viewing sites in federal courthouses in Pasadena, in Portland, Ore., and in Seattle, Wash. [that are also located within the geographic boundaries of the Ninth Circuit].

Gay marriage ad campaign begins in Maine

A new ad campaign with nation-wide ramifications begins today in Maine, described in the San Francisco Chronicle:

...[Today] in Maine, where voters in 2009 repealed a state law that would have legalized same-sex marriage, supporters of gay nuptials will launch a new TV ad that shows what they have learned - much of it culled from research in California and led by an Oakland pollster.

Maine is being targeted because the issue probably will be on the ballot there next year. Instead of being preachy, the ads aim to empathize with the "journey" voters are taking as they try to sort out their conflicted feelings about same-sex marriage.

National gay leaders and funders will closely gauge the reaction from the target audience: the one-third of Maine voters who are comfortable with civil unions but conflicted about supporting marriage. Reaction to the new messages will have implications for how activists approach other state ballot fights.

"You bet that people are watching this nationally," said Rick Jacobs, chairman of the 750,000-member Courage Campaign in Los Angeles, whose online members contributed $250,000 in 2009 toward research into the marriage question.

Nationally, the movement is nearing a tipping point. Although polls show that most Americans support same-sex nuptials and the military has ended its "don't ask, don't tell" policy for gay and lesbian service members, the movement has failed to win a ballot initiative in nearly three dozen tries.

Winning at the ballot box in Maine could have national reverberations, analysts said, reviving fatigued donors in the gay community to support other state ballot fights, including possibly in California. But winning won't be easy. Past ad campaigns in support of same-sex marriage have been criticized as too preachy. The language used didn't connect with independent voters. In 2009, 53 percent of Maine voters supported overturning their legislature's decision to legalize same-sex marriage.

Pastor Bob Emrich, who helped lead the repeal campaign in Maine, said the new ads aren't going to persuade Mainers. There is "lingering resentment" among opponents of same-sex marriage, he said. "People here don't want to talk about it," said Emrich, who leads a 150-person congregation at Emmanuel Baptist Church in Plymouth. "They don't want to make it so personal. People here ... don't want to change what the institution of marriage means."

Still, supporters of same-sex marriage see Maine, a geographically small state with 1 million voters and a mostly white electorate, as a state they can swing. It is small enough to make direct contact with voters, which is key to changing minds on such an emotional issue...

Timed to run around Thanksgiving, when families gather around the table and in front of the television, the first 30-second ad features a close shot of an elderly Catholic couple from rural Maine who have been married 42 years, describing the journey they took to accept that one of their daughters is a lesbian. At first, Jeanette Rediker says, "there were a lot of emotions." But after they asked their priest for advice, Rediker says, "I will never forget the answer he told me: 'She is the same person you loved yesterday.' " The closing frame features the words "Love. Commitment. Marriage" over two gold wedding bands.

Decision on standing in Perry case to be announced tomorrow

At 10 a.m. PST tomorrow, the California Supreme Court will rule on whether the Prop 8 proponents have standing to appeal the District Court decision in the Perry case that Prop 8 violates the federal Constitution.

The Ninth Circuit, where the issue is on appeal, unanimously asked the state supreme court to weigh in, based on the importance of whether the proponents would have standing under state law to the federal law analysis. The California Supreme Court then heard argument on that question on September 6.

What happens next? The Perry litigation saga will return to the Ninth Circuit and the federal court system. The Ninth Circuit will have to issue its own ruling on whether the Prop 8 proponents have standing. If the California court declares that there would be no standing in its system, I think the federal courts are unlikely to grant standing.

At oral argument before the California Supreme Court, however, the tone of the questions suggested the opposite result. If those signals prove correct - and often signals during oral argument are misleading - then the Ninth Circuit will consider the federal standing question in light of the fact that the proponents would be allowed to defend the law if the matter were in state court. A Ninth Circuit ruling in favor of the Prop 8 proponents becomes more likely in that event, although by no means certain.

After the California Supreme Court ruling, the Ninth Circuit panel of judges who heard argument may proceed pretty quickly to issuing a decision. Or they may ask the parties for additional briefing and argument in light of whatever the state court says. (There are no deadlines in the federal court system for when decisions must be issued.)

And when the Ninth Circuit decision comes down, if it finds that the Proponents do have standing, will it also address the constitutionality of Prop 8 at the same time, or will this next decision relate only to standing? When Perry was first argued before the Ninth Circuit, almost a year ago (December 2010), the scope of the argument included both standing and the merits.

The federal appellate court was pretty unhappy with both sides when it heard the first round of argument last winter, referring to "the inexplicable manner in which the parties have conducted this litigation." Eventually (there could be an en banc round as well) we will find out how that court will come down on this technical but far-reaching question.

Stay tuned.

Catholic Bishops ratchet up fight against gay rights, birth control, abortion

True to their word, the National Conference of Catholic Bishops has launched a new in-house advocacy group devoted to defending that faith's position on a trio of sexuality-related issues: gay rights, birth control and abortion. In a related move, several Catholic dioceses in Illinois announced that they would stop providing adoption services rather than serve same-sex couples on an equal basis.

From today's N Y Times:

The nation’s Roman Catholic bishops opened a new front in their fight against abortion and same-sex marriage on Monday, recasting their opposition as a struggle for “religious liberty” against a government and a culture that are infringing on the church’s rights.

The bishops have expressed increasing exasperation as more states have legalized same-sex marriage, and the Justice Department has refused to go to bat for the Defense of Marriage Act, legislation that established the definition of marriage as between a man and a woman.

“We see in our culture a drive to neuter religion,” Archbishop Timothy M. Dolan of New York, president of the bishops conference, said in a news conference Monday at the bishops’ annual meeting in Baltimore. He added that “well-financed, well-oiled sectors” were trying “to push religion back into the sacristy.”...

... The bishops issue guidelines for Catholic voters every election season, a document known as “Forming Consciences for Faithful Citizenship,” which is distributed in many parishes. But the bishops were informed at their meeting on Monday that a recent study commissioned by Fordham University in New York found that only 16 percent of Catholics had heard of the document, and only 3 percent had read it.

Nevertheless, the bishops remain a forceful political lobby, powerful enough to nearly derail the president’s health care overhaul two years ago over their concerns about financing for abortion. Last week, the White House, cognizant of the bishops’ increasing ire, invited Archbishop Dolan to a private meeting with President Obama, their second. Archbishop Dolan said they talked about the religious liberty issue, among others.

“I found the president of the United States to be very open to the sensitivities of the Catholic community,” Archbishop Dolan said in the news conference. “I left there feeling a bit more at peace about this issue than when I entered.”

Same-sex marriage in Oregon: Not there yet

Basic Rights Oregon ran two state-wide TV ad campaigns, conducted an online survey, did door-to-door canvassing, and concluded that there isn't enough popular support for legalizing gay marriage to justify the risk of putting the question on the 2012 ballot. Sounds to me like a smart process produced a smart decision. Advocates in other states who are considering affirmatively  move putting marriage rights up for a popular vote are, I hope, engaging in the same kind of analysis. Better to wait and win.

From The Oregonian:

Oregonians now appear about evenly divided on a proposed ballot initiative to legalize gay marriage and to overturn the constitutional ban against same-sex marriage approved by voters in 2004, [Executive Director Jeana] Frazzini said. 

The weak economy and high rates of unemployment and home foreclosures also create a tough climate for a political campaign over a social issue, she said. 

Basic Rights members favor waiting at least until the next opportunity for an initiative ballot in 2014 before plunging into a politically difficult campaign that would cost $5 million to $10 million, she said. 

National polls last spring showed support for same-sex marriage, which has climbed for the last seven years, hit the majority milestone. An ABC News/Washington Post poll in March and a Gallup Poll in May showed 53 percent of Americans in support. A Public Policy Polling survey of Oregon voters in June, however, found that 48 percent of voters support same-sex marriage. Basic Rights members want to see more support before they go to the ballot. 

Democrat wins open seat in Iowa State Senate, shielding gay marriage

Democrat Liz Mathis emerged as the winner of a race to fill a vacant seat in the Iowa State Senate, thus preserving Democratic control of that chamber and with it, the ability to block efforts to repeal state constitutional protection for same-sex marriage. An early report in the Des Moines Register estimated her share of the vote at 56%. 

Pre-election polls had predicted this result.  From Public Policy Polling:

The special election that will determine control of the Iowa State Senate on Tuesday is close, but it looks like Democrats will probably hold serve. Democrat Liz Mathis leads Republican Cindy Golding 52-46 in our poll taken over the weekend.

The numbers suggest that Mathis is just a stronger candidate than Golding. Voters in the district are split right down the middle, 44/44, on whether they'd rather Democrats or Republicans had control of the State Senate.  But Mathis is outrunning those numbers when it comes to how people are planning to vote on Tuesday. The big key for her is that she's taking 16% of the GOP vote from Golding, while losing only 9% of the Democratic vote.  That helps her make up for a 50-45 deficit with independents.

This election has been framed to some extent as a battle over gay marriage, but our poll suggests voters aren't seeing it that way. They're planning to vote for Mathis even as 46% of them say gay marriage should be illegal, compared to just 42% who think it should be legal. Although voters in the district may oppose gay marriage, only 11% say that issue is the most important factor guiding their vote compared to 86% who say it's something else.  It's also worth noting that 66% of voters do support either gay marriage or civil unions with only 30% opposed to all legal recognition for same sex couples.

If this election's not hinging on gay marriage, then what is making the difference here? Voters may be sending a message to Governor Terry Branstad. His approval rating in the district is only 39% with 42% disapproving of him. This special election is seen in some quarters as the product of a power grab by Branstad and if Mathis wins it could be indicative of an electorate that doesn't want to enhance his power.

 

When public employees seek religious exemption from job duties

The ever astute Linda Greenhouse has provided an excellent quick history for contextualizing legal conflicts between civil rights and claims for religious exemptions:

The refusal by an upstate New York town clerk to sign marriage licenses for same-sex couples... can be seen simply as a discordant footnote to the march of marriage equality in New York State. But seen in a broader context, it is also more than that...

A few years ago, a county official in Pennsylvania refused to issue a marriage license because the would-be groom, while providing proof of identity in the form of a Mexican passport, could not prove that he was in the United States legally. The couple sued (the would-be bride was an American citizen, as was their young child) and won a judgment from a federal district judge, A. Richard Caputo, who found that the “fundamental character of the right to marry” was not dependent on citizenship. ... 

What are we to make of public health workers who use the power of their state-issued licenses to impose their own version of morality on those they are licensed to serve? While nearly all states permit medical providers to refuse to perform abortions, no such consensus has emerged with respect to birth control. The issue comes up repeatedly, and the states are all over the lot. Five states require pharmacists or pharmacies to fill all valid prescriptions for contraception (California, Illinois, New Jersey, Washington and Wisconsin.) Six others allow pharmacists to refuse to dispense emergency contraception (Arizona, Arkansas, Georgia, Idaho, Mississippi and South Dakota.) Several other states exclude emergency contraception from their Medicaid plans or from required coverage for contraception in state-regulated insurance plans.

While contraception has been a back-burner issue compared with the much more visible debate over insurance coverage for abortion, that may soon end. A fierce debate, although largely still under the radar, surrounds the Obama administration’s proposal to require private insurance plans to cover “women’s preventive services” without requiring a co-payment.

According to the proposed rule, which was issued Aug. 1 and which adopts a recommendation by the Institution of Medicine, these services include “access to all Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling.” As the Department of Health and Human Services describes the purpose of the requirement: “Family planning services are an essential preventive service for women and critical to appropriately spacing and ensuring intended pregnancies, which results in improved maternal health and better birth outcomes.”

Neither the fact that the rule does not apply to abortion or “abortifacient drugs,” nor that 28 states already require employer-provided insurance plans to cover contraception, has kept opponents from describing the proposal as “attacking the consciences of our nation’s healthcare providers,” as a recent publication by the “Task Force on Conscience Protection” of the Witherspoon Institute put it.

The Witherspoon Institute [is] a conservative research organization that has assumed a leading role on the intellectual religious right from its base in Princeton, N.J...[T]he final paragraph of the Witherspoon task force’s four-page statement [condemns] “an irrational commitment to unrestrained sexual expression,” a “new federal orthodoxy concerning human sexuality.” In other words, [Witherspoon is] re-fighting not only the birth control wars but the sexual revolution itself. The social revolution that brought same-sex marriage to New York seems a brushfire by comparison.

Seventeen years ago, a Chicago police officer named Angelo Rodriguez sought an exemption from an assignment to guard an abortion clinic in his precinct. He argued that his Catholic faith prohibited him from any acts that might facilitate abortion, including protecting doctors and patients. His commander offered to accommodate him with a transfer to a district without any abortion clinics. Finding the offer inadequate and insisting on his right to an exemption, the police officer sued.

He lost in both federal district court and in the United States Court of Appeals for the Seventh Circuit. The appeals court held that the city had done all that was required under Title VII of the Civil Rights Act of 1964, which obliges employers to make “reasonable accommodation” to an employee’s religious needs. Judge Richard A. Posner wrote a separate concurring opinion to make a larger point. Beyond deciding whether a particular offer was an adequate accommodation, Judge Posner said, the court should make clear that police officers and firefighters simply have no right “to recuse themselves from having to protect persons of whose activities they disapprove for religious (or any other) reasons.” The real objection to such exemptions, he explained, was not to administrative inconvenience, “though that might be considerable in some instances.” Rather, “the objection is to the loss of public confidence in governmental protective services if the public knows that its protectors are at liberty to pick and choose whom to protect.”

Or, I would add — as I’d like to think Judge Posner might — whom to grant marriage licenses to or whom to fill birth-control prescriptions for. Ordinarily, I don’t think that Judge Posner can be topped in reasoning or rhetoric, but in this instance, I will give the last word to Gov. Andrew M. Cuomo, in his succinct response to the marriage-license refusal issue: “When you enforce the laws of the state, you don’t get to pick and choose.”

Notes from Brazil: the new appellate decision on marriage and an upsurge in anti-gay violence

From a lawyer friend in Sao Paulo:

The decision of Brazil's highest Federal Appeals Court (Superior Tribunal de Justiça) that same sex couples can legally marry went one step further than the Brazilian Supreme Court. It is certain to be challanged in the Brazilian Supreme Court, where the outcome is uncertain. Three of the Justices who voted for recognizing gay couple "civil unions" are about to retire.
 
The press and the public paid relatively little atention to the latest decision, since in Brazil the debate about the the use of the term "marriage" v. "civil unions" does not exist. However, the legal implications of the recognition of ssm are considerable, since they are legally diferent institutions. I have seen few reactions from the conservative side. (In Argentina, the President, who supported ssm legislation, was re-elected by a landslide).
 
While the US is having some horrible LGBT bullying cases (indeed they are heartbreaking), at least they give the the problem some much needed attention. This issue has not been discussed in Brazil, and I am not able to get an accurate sense of how bad things are in our classrooms.
 
As the patterns of criminal behavior are going global, we are seeing here a strong increase in hate crimes against LGBT people, most commonly physical attacks on male couples showing affection in public places. Violence against LGBT people has always existed in Brazil, but this is clearly a new trend, since it is happening in big cities and it is involving middle class people, which is unprecedented.

The week ahead: October 31, 2011

Tuesday, November 1 - New York - The NYC LGBT Bar Association is sponsoring a CLE program on The Impact of Marriage Equality in New York. The event will be held from 6 to 8 pm at the LGBT Community Center. Discussion "will focus on many of the areas potentially impacted by marriage equality in New York, including estate planning, taxation, divorce/dissolution, pre-nups & post-nups, and adoption/second-parent adoption," plus a special session on "Lessons Learned from Massachusetts." 

Wednesday, November 2 - Newark, NJ -  Nathaniel Frank will speak at Seton Hall Law School on "The Aftermath of Don't Ask Don't Tell: A Discussion of the Ongoing Challenges Faced by LGBT Service Members." Frank is the author of Unfriendly Fire: How the Gay Ban Undermines the Military and Weakens America (2009).

Thursday, November 3 - Washington, DC - Lying in State tribute to Frank Kameny will be held at D.C.’s Carnegie Library at 9th and K Streets, N.W., between 3 and 8 p.m.

Also November 3 - Retired U.S. District Judge Vaughn R. Walker will deliver a lecture at Indiana University’s Maurer School of Law on the role of judges in dealing with politically controversial issues.