Same-Sex Marriage Update

[MsTinkerbelly]

Questions and answers on next steps as the Prop 8 case heads towards Supreme Court
By Scottie Thomaston, Adam Bink, and Jacob Combs

Yesterday was the big news of the Ninth Circuit’s decision not to rehear the case with an 11-judge en banc panel. The staff here at Prop8TrialTracker.com have seen a steady stream of comments and questions about today’s decision and the future of the Perry v. Brown case challenging the constitutionality of Proposition 8. Here we will try to answer some of these questions. Updates with new questions from the comments or elsewhere will be added at the bottom.

1. Is there still a stay? What’s the story with that?

Yes. Yesterday’s 9th Circuit order says: “The mandate is stayed for ninety days pending the filing of a petition for writ of certiorari in the Supreme Court. If such a petition is filed, the stay shall continue until final disposition by the Supreme Court.”

A petition for writ of certiorari means to request that the U.S. Supreme Court review the case. If the proponents of Proposition 8 (those who put it on the 2008 ballot and helped pass it, and now are defendants in the lawsuit) decide to seek review by the Supreme Court – and they have already indicated they will indeed file a petition for certiorari – the decision will remain stayed if the Supreme Court takes the case until a final decision by the Supreme Court, likely in the summer of 2013. If the Supreme Court does not take the case, the decision will become final and Prop 8 will end.

2. What will the proponents do next?

The proponents of Proposition 8 will file a petition for certiorari at the Supreme Court. They will argue that the Ninth Circuit wrongly decided the legal issues presented in the case and they will suggest the Supreme Court should reverse the Ninth Circuit’s decision. It takes four votes out of the nine Justices to grant review of cases and set the case up for arguments before the Supreme Court.

3. Is super en banc at the 9th Circuit still possible?

“Super en banc” means review at the 9th Circuit by all the judges on the court, rather than a 3-judge panel or 11-judge panel. It’s theoretically possible under the current rule 35-3. However the wording of the rule seems to suggest that so-called “super en banc” is only possible after the en banc panel hearing with 11 randomly-selected judges, and that rehearing for an 11-judge panel was just denied by the Ninth Circuit judges. So it seems highly unlikely that this case is headed anywhere except straight to the Supreme Court.

4. When do Prop 8′s proponents have to appeal or go home by?


Proponents have 90 days to file for a writ of certiorari at the Supreme Court. After that, if there is no petition filed, the mandate will issue (meaning that the Ninth Circuit’s decision will come into effect, Prop 8 will end, and same-sex marriages will resume in California.)

5. If Prop 8′s proponents appeal, when will the Supreme Court decide whether or not to take the case?

The Supreme Court heads into summer break soon, and given the timeline for appeal, it is unlikely the Court will decide in conference whether or not to take the case until they return from their summer break around October 2012.

6. By when would the Supreme Court issue a decision if they took the case?

Oral arguments are usually heard within 4 months or so if certiorari is granted, and the Court almost always issues its decisions by July 4th. So a decision would be expected by July 2013.

7. What issues will the Supreme Court decide on appeal if they take the case?

It’s up to them. The Supreme Court has broad discretion to decide which questions it will take up in each case. In the petition for certiorari, there is a list of “questions presented” which are the legal issues the petitioners want the Supreme Court to take on. But just because proponents ask doesn’t mean the Supreme Court has to take those specific questions.

Having said that, it’s likely that the Supreme Court would decide whether or not proponents have ‘standing’ to appeal the case in federal court, and it’s of course likely that the Supreme Court will rule one way or the other on the constitutionality of Proposition 8. Beyond those key issues, Supreme Court review is typically limited to the issues raised in the court below. Since the opponents of Proposition 8 raised the issue of subjecting laws against gays and lesbians to a higher form of scrutiny and since they addressed the possibility of a broader ruling on marriage equality, the Supreme Court could decide to accept those questions if they are raised, or introduce the issue. It seems more likely that they would want to decide the narrow issue of Proposition 8′s constitutionality, but that’s just speculation until the Court has their conference and agrees on the questions it will hear.

8. Is it better or worse for the opponents of Proposition 8 if the Supreme Court does or does not review the case?

It depends on one’s goals and predictions. The Supreme Court is of course a mostly conservative court. On many issues, it is made up of four moderates and four conservatives with Justice Kennedy as the ‘swing vote’ on a few social issues. Justice Kennedy is, for the most part, fairly conservative. He did write the opinions in the two most recent pro-LGBT cases to come out of the Supreme Court: Romer v. Evans and Lawrence v. Texas, however. If the Supreme Court reviews the case, that presents the possibility that they might uphold Proposition 8. If they deny the petition for certiorari, the Ninth Circuit decision stands and California will have marriage equality as the law in the state.

If the Supreme Court reviews the case, though, there is a real potential of having at least five votes to uphold the Ninth Circuit decision striking down Proposition 8. Since Justice Kennedy has written pro-LGBT opinions, it is not outside the realm of possibility he would apply his own logic from those opinions (especially Romer, on which the Ninth Circuit’s opinion heavily relies) to this case and decide things in our favor. Even if we ended up with a narrow Supreme Court opinion striking down Proposition 8 in a way that only applies to California, the case could be used as precedent to build on in the future.

On the other hand, there are reasons to hope the Supreme Court does not take the case. Perhaps chief among them is, as Adam noted here back in February, there is a big chance that supporters of marriage equality could lose. No one knows where Anthony Kennedy, nor other Justices, stand on same-sex marriage, although the 9th Circuit decision is tailored in such a way to make it more likely to turn a favorable ruling. Why risk it, especially with another case in Nevada that may reach the Court after more states have legalized same-sex marriage, public opinion keeps moving and the composition of the Court grows perhaps more favorable? Take a strong ruling that Prop 8 is unconstitutional, legalize same-sex marriage in California, and on to the next fight. Second, for the sake of couples who have waited a long time to marry, waiting another year could lead to serious harm (such as, in the case of Ed and Derence, one’s unfortunate passing). So it depends on one’s goals and predictions regarding the future of same-sex marriage in California and the nation.

[MsTinkerbelly]

Opponents of marriage equality in Washington state file signatures required for ballot referendum
By Jacob Combs

The Washington state law passed earlier this year to bring marriage equality to the state is officially on hold now that opponents of the measure have submitted a raft of signatures to the Secretary of State seeking to put the issue on the November ballot. The ballot measure, known as Referendum 74, would ask Washington voters to uphold or overturn the legislature’s law allowing same-sex couples to wed in the state while protecting the religious freedoms of places of worship who do not recognize marriage equality. The proponents of Referendum 74 told reporters that they had collected 241,000 signatures, about twice as many as the 120,577 required by law.

Before the ballot initiative becomes official, the Secretary of State will have to verify the accuracy of the signatures, but it is extremely likely the proponents will have required the requisite number even if a chunk of signatures are found to be invalid. According to the Secretary of State’s office, the referendum could be officially certified by the middle of next week.

It goes without saying that marriage equality’s past record at the ballot box looks unpromising–32 out of 32 states have voted against marriage rights in the past. In reliably blue Washington, though, opponents of marriage equality face a tougher road than they have in some other states. Washington is the only state where a popular vote has uphold expanded rights for LGBT citizens: in 2009, voters upheld a law passed by the legislature that extended domestic partnerships to gay and lesbian couples. According to Matt Barreto, a political science professor at the University of Washington who has conducted extensive polling on the issue, support for equal legal rights for same-sex couples has grown since 2009.

That means that marriage opponents must walk a fine line in the state as they try to avoid making it seem like they are against legal equality for gays and lesbians while striving to preserve the definition of marriage as a union of opposite-sex partners. Speaking to the New York Times, Joseph Backholm of the anti-marriage equality group Preserve Marriage Washington said that Washington voters this year will have a chance to make a decision on marriage only, and could repeal the new law without feeling like they’ve taken rights away from gay couples. In a way, the fact that Backholm has to frame the issue this way is in itself a victory for our side, since it shows that the island of exclusion he and his colleagues stand upon is being steadily eroded as public opinion changes. (Of course, this does mean that Backholm’s position is becoming increasingly tenuous and, in a sense, desperate, since it is essentially only a matter of semantics.)

The facts on the ground in Washington look good for our side: a recent independent poll found that 54 percent percent of Washingtonians approve of the legislature’s law, with only 33 percent opposed. Support among independents was also strong, with 52 percent in favor and 36 percent opposed. Obama carried Washington easily in 2008, and he enjoyed a 54 percent approval rating in the state just last week. In addition, marriage equality advocates have a big cash advantage so far: they’ve raised over $700,000, while opponents have so far raised only a little over $110,000.

Finally, another anti-marriage equality group in the state, the awkwardly named Marriage Equals One Man Plus One Woman, is seeking signatures for another ballot amendment that would institute a mini-DOMA in Washington limiting marriage to heterosexual couples only. That group must obtain 242,000 signatures by July 6, and has collected approximately 100,000, according to the Chicago Tribute. If both ballot measures qualify for the November election, it could create a bit of chaos for all sides, the effects of which are unclear, but which could bode well for marriage advocates if opponents are split between two measures.

When it comes to popular votes on marriage equality, it’s always wise to be cautious. We can be sure that our opponents will be out in droves between now and November, and its going to take both manpower and money for us to win. Still, in Washington state, we will be able to conduct perhaps the most aggressive campaign on the most positive ground that we’ve had so far. That in itself is enough of a reason for us to give it everything we’ve got.

[Quintease]

This is sad, the cost of same sex marriage.

[MsTinkerbelly]

Over 70 cities and corporation file amicus brief against DOMA in Golinski case
By Jacob Combs

The Seattle Times reported earlier this week that the city of Seattle is joining seven other cities in opposing the constitutionality of the Defense of Marriage Act in court in the case of Golinski v. OPM. In a new brief filed on Tuesday, over 70 business and municipal employers urged the Ninth Circuit to uphold a district court’s ruling that DOMA violates the U.S. Constitution, specifically addressing the impact that the law has on employers in the way it forces them to discriminate against their own workers:

The House of Representatives argues that Congress, through DOMA, sought to impose a uniform rule of eligibility for federal marital benefits.3 The perspective of the American employer who must implement DOMA is very different. Because marriages are celebrated and recognized under state law, a federal law withholding marital benefits from some lawful marriages, but not others, creates a non-uniform rule. Employers are obliged to treat one employee spouse differently from another, when each is married, and each marriage is equally lawful. In this brief, amici show how the burden of DOMA’s dual regime is keenly felt by enterprises that conduct operations or do business in jurisdictions that authorize or recognize same-sex marriage.

Joining Seattle in the brief were the cities of San Francisco, New York, Boston, Cambridge, Santa Monica, Los Angeles and West Hollywood and a wide range of major businesses, among them Levi Strauss, Microsoft, McGraw-Hill, CBS, Starbucks, eBay, Xerox, Viacom, Gap and Google.

What makes the new Golinski brief so powerful is that it addresses specifically the ways that DOMA harms American businesses by straining the relationship between employers and employees and interfering with companies’ efforts to create transparent, fair work places. As the companies wrote in the brief, “DOMA forces amici to investigate the gender of the spouses of our lawfully- married employees and then to single out those employees with a same-sex spouse,” requiring businesses to incur the cost of providing fair and equal benefits to their gay and lesbian employees should they choose to do so.

Perhaps even more significantly, the new brief argues that DOMA essentially prohibit companies from conducting business according to their own corporate missions and instead forces them to affirm discrimination that they disagree with. As the amici brief concludes:

Our principles are not platitudes. Our mission statements are not simply plaques in the lobby. Statements of principle are our agenda for success: born of corporate experience, tested in laboratory, factory, and office, attuned to competition. Our principles reflect, in the truest sense, our business judgment. By force of law, DOMA would rescind that judgment, and direct that we renounce these principles, or worse yet betray them.”

If this employers’ brief demonstrates anything, it shows just how short-sighted and narrow the determination to pass DOMA was in the first place. Congress put the law into place with minimal research and fact-finding, doing it merely to set in stone a government-dictated restriction predicated upon the prevailing morals of the day.

But American society and American business have changed since 1996. Today, over 86 percent of Fortune 500 companies protect their gay and lesbian employees from discrimination. Overwhelmingly, American business is of the belief that gays and lesbians should be treated equally to heterosexuals. It’s past time for our government to do the same

[MsTinkerbelly]

Second-parent adoption upheld in lesbian Georgia couple’s divorce case
By Jacob Combs

The GA Voice reports that the Georgia Court of Appeals has upheld a lesbian couple’s second-parent adoption, although the court declined to address the state’s marriage equality ban on the legality of second-parent adoptions in general. The complex case arose after Nicole Bates, who became pregnant through a sperm donation in 2007, requested that her partner Tina be allowed to adopt the child as a second legal parent. A Fulton County judge approved the adoption. From the GA Voice:

In 2010, the couple broke up and the biological mother, Nicole Bates, went back to Judge Glanville and asked the adoption be voided. Judge Glanville told Nicole Bates that she did not file within the six-month time limit allowed to challenge adoption cases, so the second-parent adoption was still legal.

Not satisfied, Nicole Bates appealed the judge’s decision to the Court of Appeals, which eventually dismissed the case. Nicole Bates went to the state Supreme Court seeking to void the adoption of her former partner, but the state Supreme Court also decided to not hear the case.

Tina then filed for custody of the child, but when the Georgia Supreme Court would not hear the case, Nicole filed a motion asking Henry County to dismiss Tina’s request since Georgia does not allow second-parent adoptions between couples who are not married. A state judge in Henry County sided with Nicole, but Tina requested that an appeals court invalidate the ruling, arguing that the case had already been decided in Fulton County. The Court of Appeals sided with Tina, but stated clearly in its decision that it decided “nothing in this case about whether Georgia law permits a ‘second parent’ adoption.”

[Kobi]

BOSTON—Civil unions for gay couples in Vermont must be treated as "the equivalent of marriage" in Massachusetts, the highest court in Massachusetts ruled Thursday.

The Supreme Judicial Court ruled that a couple who enters into a civil union in Vermont must dissolve that union before either person can marry a third party in Massachusetts.

The ruling came in the case of two gay men who married in 2005 in Massachusetts, the first state to legalize gay marriage.

During divorce proceedings several years later, one of the men found that his partner had previously been in a civil union in Vermont. The man then argued that the Massachusetts marriage was invalid because of the earlier Vermont civil union.

The SJC agreed.

"We define marriage as `the voluntary union of two persons as spouses, to the exclusion of all others.' ... This is the relationship established by Vermont civil unions. ...By that definition alone, a Vermont civil union is the functional equivalent of a marriage," Justice Roderick Ireland wrote for the court in the unanimous ruling.

The case went to the high court after a Probate and Family Court judge handling the divorce case asked for a ruling on whether the Massachusetts marriage was invalid.

Todd Elia-Warnken entered into a civil union in Vermont in 2003. Even though that union was never dissolved, he married Richard Elia in Massachusetts in 2005.

In 2009, Elia-Warnken filed for divorce from Elia.

Elia filed a counter-claim for divorce in 2010. At some point, Elia learned that Elia-Warnken had an undissolved civil union in Vermont. He then moved to dismiss the divorce complaint and counterclaim on the grounds that his Massachusetts marriage was void.

The SJC found that because the high court considers the Vermont civil union the equivalent of marriage, the Massachusetts marriage was void because it would constitute illegal polygamy if Elia-Warnken had a spouse in Vermont and another spouse in Massachusetts.

In 2000, Vermont became the first state in the country to recognize same-sex unions, with civil unions, giving gay and lesbian couples some rights and benefits of marriage. In 2009, the state Legislature passed a gay marriage bill. Same-sex couples can no longer get a civil union, but existing civil unions are still recognized.

Elia-Warnken argued that because the law did not convert civil unions into marriages, civil unions were different and not equal to marriages.

The SJC, however, did not agree with that argument and said it wanted to avoid the "uncertainty and chaos" that could result if the civil union was not dissolved.

"Here, if we do not recognize the plaintiff's civil union, he would have two legal spouses, each of whom could expect virtually the same obligations from him, such as spousal or child support, inheritance, and healthcare coverage," Ireland wrote.

"Preventing complications such as these is one of the purposes of the polygamy statutes."

Ben Klein, a senior staff attorney for Gay & Lesbian Advocates & Defenders, who represented Elia, said Massachusetts laws have always said that a person can have only one spouse at a time. He said the SJC ruling simply applies that law to the legal relationships of same-sex couples.

"They were not saying that civil unions are constitutionally acceptable under the Massachusetts constitution; they were only saying that because Vermont has created this as a legal mechanism that provides all the rights and benefits of marriage, we will respect that Vermont law for the purposes of how we treat civil unions here," Klein said.

http://www.boston.com/news/local/mas...--+Latest+news

[Little Fish]

Thanks for this update kobi--one step closer......:-)