hunter of justice

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.

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. A written decision will follow, which I will post when it is released. 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.

Kate Kendell on whither California

At a recent conference, I had a chance to catch up with Kate Kendell, executive director of NCLR (National Center for Lesbian Rights). She's fab as always.  Following is part 1 of our conversation; tomorrow I'll have a video of Matt Coles talking about the future of marriage campaigns, and on Sunday, Kate reflects on what it was like to jump from litigation chief to an electoral campaign in a state the size of a small country.

BC Law professor crosses line in ad supporting repeal of Maine marriage rights

Boston College Law Professor Scott Fitzgibbon appears in the ad below for the Yes on 1 campaign seeking to overturn the statute adopted last summer by the Maine legislature which granted equal marriage rights to same-sex couples.  No problem there - he's certainly got every right to do that. But Professor Fitzgibbon lends his imprimatur (he is a jurisprudence and business law scholar) to three canards from the Prop 8 wars that are false: that same-sex marriage will lead to a "flood" of lawsuits against individuals, small businesses and churches; that religious groups will lose their tax exemptions; and that "gay marriage will be taught in the schools -- whether parents want it or not."

How fitting that the ad is titled "Consequences," because it sure ain't the truth. The truth is that:

First - After five plus years of legalized same-sex marriage in Massachusetts, the number of oppressive lawsuits filed that have been based on that law is exactly ... zero.

Second - Not only is it the same number - zero - of  religious groups in Massachusetts that have lost their tax exemption, but no serious scholar believes that the charitable contribution exemption from federal income tax is at risk. The only tax exemption issue that has arisen was a property tax exemption for a church in New Jersey (where marriage for gay couples isn't even legal). There the issue involved a church which advertised that a space that it owned on the boardwalk was open to the public. When it refused to rent the space to a lesbian couple for a civil union ceremony, the property tax exemption (which had been specifically premised on the space being available for public use) was withdrawn. (More here)

Third - The case cited in the ad, Parker v. Hurley, involved whether parents could withdraw their children from a diversity curriculum that included sexual orientation. Some of the materials used by some teachers dealt with marriage. The courts upheld the discretion of the local school board to make curricular decisions. (More background here)

Does this mean that there are no legitimate or difficult issues raised by the conflict between religious beliefs and secular equality principles? No. But in fact they tend to arise more frequently with the application of anti-discrimination laws, not equal marriage laws. The arguments made in this ad are nothing more than scare tactics.

Defenders of Prop 8 seek to win Perry case without trial

The defendants in Perry v. Schwarzenegger have filed a motion for summary judgment in which they seek a ruling that, notwithstanding any factual disputes, there should be no trial because controlling precedents compel a ruling that Prop 8 is constitutional.

A summary judgment motion is a completely predictable move by defendants - try to get the plaintiff's case dismissed before you have to spend any time or money in discovery or trial. What is unusual is that in Perry, the judge has repeatedly demanded that the parties create a full factual record. (See this earlier post, or just click on the category "Perry  lawsuit" to get the background.) Despite that, though, this motion is the logical next step for defendants who have argued from the beginning that the constitutional challenge brought by the Ted Olson/David Boies team is, literally, groundless.

The motion is 117 pages long, so at this point I will just summarize the main points on which the defendants are relying, and add a little commentary:

> That the Supreme Court has foreclosed the question of whether there is a constitutional right for same-sex couples to marry by its dismissal of an appeal from one of the earliest marriage challenges - in Minnesota in 1973 - in a case called Baker v. Nelson. More in a future post about why this is a bogus argument, but for now suffice it to say that one or two things about the law have changed in the last 36 years, and the precedential weight of that form of dismissal is not entirely clear in any event.

> That there is no fundamental right to marry for same-sex couples because, under Washington v. Glucksberg, the test for such a right is whether it is grounded in history, and the right to "same sex marriage" isn't.  But then, of course, the right to marry is.

> That there should be no heightened scrutiny for sexual orientation classifications because two criteria for such scrutiny are not met: sexual orientation is not immutable and gay people wield "substantial political power." And that these two assertions are not only correct but beyond reasonable dispute? - this is a hornet's nest for both sides.

> That even under rational basis review, California voters had good reasons to enact Prop 8, including, among others, that "the traditional institution of marriage promotes:...the formation of naturally procreative unions;...stability and responsibility in naturally procreative relationships; [and] the naturally and mutually beneficial bond between parents and their biological children." Nothing new here.

> That Prop 8 is not tainted by animus. You've got to be kidding.

Oral argument on this motion is scheduled for October 14.  Sure wish I could be there ringside - it's going to be quite a show.

Election Day 2009 preview: Maine and Washington

An analysis by Lisa Keen, from Bay Windows:

In what is being described as perhaps the "narrowest margin ever for qualifying for the ballot," the Washington State Secretary of State’s office announced Monday evening that opponents of gay relationships in that state collected enough valid signatures to secure a ballot measure this November. The measure, which will be known as Referendum 71 or R-71, seeks to overturn Washington’s domestic partnership law, which provides same-sex couples with "everything but marriage."... And meanwhile, the Maine Secretary of State [has announce] that a ballot measure seeking to overturn that state’s newly minted equal marriage law has been certified for the ballot there this November.

Washington: Referendum 71

...Washington Families Standing Together, a group seeking to preserve the domestic partnership law, filed a lawsuit August 27 challenging the Secretary of State’s signature validation process. The lawsuit asked a state court to stop the Secretary from certifying the petitions, contending that the Secretary accepted some petitions that do not meet state requirements. A King County judge refused Wednesday, September 2 to interfere with certification of the ballot measure, and the Secretary of State then certified Referendum 71.

The group seeking to overturn the domestic partnership law, Protect Marriage Washington, also filed a lawsuit -- in federal court -- seeking to seal the petitions from public scrutiny. The group claims that pro-gay activists will harass voters who signed the petitions. The state Public Disclosure Commission has already rejected the group’s request to conceal the signatures and a federal judge issued a temporary order stopping release of the signatures, pending a final decision.

The Washington Secretary of State’s website has been making daily reports about the count process and the lawsuits during the past month as election officials examined each of 137,689 signatures turned in by Protect Marriage Washington. The group needed 120,577 to qualify for the ballot. Early indications suggested the rejection rate of signatures might be high enough to prevent the group from reaching the requisite number. According to the website, the rejection rate on petitions has been about 18.5 percent historically, but Protect Marriage handed in a much smaller number of signatures, meaning it had to reach a rejection rate that was under 12.4 percent to qualify. In the end, its signature rejection rate was 11.8 percent.

And then there’s Maine

Having enough signatures has not been in question in Maine. There, a coalition of groups called "Stand for Marriage Maine" turned in more than twice the 55,000 signatures they needed.... [A] measure to repeal the state’s newly passed marriage equality law has been certified for November’s ballot. That puts the law, which was set to go into effect this month, on hold.

The battle against same-sex marriage licensing in Maine is being led by anti-gay newcomer Bob Emrich, pastor of an independent Baptist Church in Plymouth, Maine -- population 1,257, according to the 2000 census. Emrich is also director of a group he calls the Maine Jeremiah Project, a 501(c)(3) named after a passage from the Book of Jeremiah that urges exiles to pray for "peace and prosperity" in their own city because if the city prospers, "you too will prosper." According to his website, these words call on him to focus on "public policy and contemporary culture."

He’s part of a coalition called Stand for Marriage that includes his group and 10 others. Marc Mutty, director of public affairs for the Roman Catholic Diocese of Portland, Maine, is chairman of the coalition group, that includes the diocese, several Catholic fellowship groups, and several national conservative organizations. Among the latter is the National Organization for Marriage, the Eagle Forum, Concerned Women of America, and Family Watch International.

Since forming its campaign committee in June, the Stand for Marriage Maine coalition has taken in $343,690 in contributions -- 99.7 percent of which has come from only three entities: the National Organization for Marriage ($160,000), the Portland diocese and affiliated groups ($152,000), and the state chapter of Focus on the Family ($31,000).

This unusual concentration of funding -- only a few hundred dollars coming from individual donors -- set off the bells and whistles for one pro-gay California activist. Fred Karger, founder of Californians Against Hate, contacted the Maine Commission on Governmental Ethics and Elections Practices. He suggested it could be a sign that the organizations are "trying to hide the true identities of those contributing to the campaign," which could run afoul of state election funding laws.

Jonathan Wayne, head of the commission, said a ballot question committee, like a political action committee, must accurately report the source of its contributions. He said his commission has asked Karger to "reformulate his request" to provide more specific information before it proceeds. The commission has also given Stand for Marriage an opportunity to respond to Karger’s concerns.

Meanwhile, the key group working against the referendum, "No on 1: Protect Maine Equality," has raised $143,290 -- only $35,000 of which has come from national groups ($25,000 from the Human Rights Campaign and $10,000 from the ACLU). Equality Maine, another group working to defend the equal marriage law, has raised $63,561 -- of which $20,000 came from a national group, the National Gay and Lesbian Task Force....