Same-Sex Marriage Update

[Blade]

WASHINGTON In a historic shift on gay rights, the Obama administration announced that it believes the Constitution forbids unequal treatment of gays and lesbians in almost all cases, and specifically when it comes to federal benefits for legally married same-sex couples.

Attorney General Eric Holder said in a letter to Congress on Wednesday that the Justice Department would no longer oppose legal challenges to the Defense of Marriage Act. The act, which was passed by Congress in 1996, bars the federal government from recognizing same-sex marriages or extending them the same benefits as heterosexual couples.

Holder said President Barack Obama had decided that discrimination against gays can no longer be accepted as reasonable. Laws that allow such discrimination "warrant heightened scrutiny" by officials and judges, he said, similar to the scrutiny that courts give to laws "targeting minority groups with a history of discrimination."

This new stance by the administration was hailed as a "monumental turning point in the quest for equality" by Jon Davidson, legal director for Lambda Legal, a gay-rights group in Los Angeles.

On Capitol Hill, Republicans were sharply critical. Sen. Orrin Hatch, R-Utah, called the decision "deeply disturbing. President Obama's personal policies are trumping his presidential duty."

It comes just two months after Congress and Obama agreed to repeal the military's ban on openly gay service members.

Limited practical effect

The immediate practical effect of the announcement may be limited. Holder said the administration would continue to enforce the law until a final ruling is made, most likely by the Supreme Court.

In the longer term, even if the administration's view prevails it would not force states across the nation to grant equal marriage rights to gays and lesbians.

But Obama's position, if accepted by the courts, would prevent federal agencies, including the IRS, from discriminating against gays and lesbians who were legally married. Its legal rationale could also be used to challenge state bans on gay marriage as an unconstitutional violation of equal rights.

A Republican-led Congress passed the Defense of Marriage Act to prevent one state's adoption of gay marriage from spreading nationwide. Usually, states are required to honor legal agreements made in another state, including marriage, under the "full faith and credit" clause in the Constitution. In enacting the law, Congress said neither the states nor the federal government were obliged to recognize a marriage other than "a legal union between one man and one woman."

But in recent years, the law has been challenged as a denial of equal rights by gays and lesbians who were legally married.

Until now, the Obama administration had taken the view that it had a duty to defend all laws, including discriminatory measures, if they could be justified as constitutional.

But Holder said the case of Windsor v. the United States forced the administration to confront, for the first time, the question of whether discrimination against gays and lesbians is presumed to be unconstitutional.

Unnecessary controversy?

In his letter to House Speaker John Boehner, R-Ohio, Holder said the Justice Department will not defend against Windsor's suit in New York or a similar suit in Connecticut. He said Congress may wish to appoint its own lawyers to defend the law.

A spokesman for Boehner criticized the White House. "While Americans want Washington to focus on creating jobs and cutting spending, the president will have to explain why he thinks now is the appropriate time to stir up a controversial issue that divides the nation," said Boehner aide Michael Steel.

[MsTinkerbelly]

Maryland Senate passes bill legalizing freedom to marry for same-sex couples
By Adam Bink

Fantastic news in Maryland just now:

After about an hour of discussions from opposing views, Maryland’s State Senate voted 25-21 in favor of Senate Bill 116, The Civil Marriage Protection Act on Thursday, Feb. 24.

A House version of the bill is expected to be introduced in House committee tomorrow.

If signed into law, the bill would grant same-sex couples legal marriage rights in the state of Maryland, while also protecting the rights of religious institutions to handle issues of marriage however they see fit.

The marriage bill was written by Sen. Rich Madaleno (D-Montgomery), the only out gay member of Maryland’s Senate, and Sen. Jamie Raskin (D-Montgomery).

Maryland State Senate President Thomas V. Mike Miller, Jr. allowed Senators to talk before declaring a vote at 6 p.m., with debates from each side limited to 30 minutes after the vote.

Onward to the Assembly

[MsTinkerbelly]

Two new Prop 8 developments, and Courage Campaign’s amicus curiae letter to the California Supreme Court
By Adam Bink

This afternoon, as noted in the comments on the previous thread, two moves in the Perry case.

The first is that Attorney General Kamala Harris on behalf of the state of California filed a motion with the 9th Circuit encouraging the Court, as the AFER team did, to lift the stay:

“For 846 days, Proposition 8 has denied equality under the law to gay and lesbian couples,” Attorney General Harris said. “Each and every one of those days, same-sex couples have been denied their right to convene loved ones and friends to celebrate marriages sanctioned and protected by California law. Each one of those days, loved ones have been lost, moments have been missed, and justice has been denied.”

A copy of her filing can be found here. There is no word from the 9th Circuit yet.

The second is that the California Supreme Court denied the motion to shorten time as submitted by the Olson/Boies/AFER legal time:

“The application of respondents Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo to shorten the briefing schedule and application to set oral argument for May 23, 2011 is denied.”

Disappointing and frankly outrageous, to say the least. The Court will drag its feet on this for at least 6 months while couples wait and some, especially those who are older and becoming ill (not to mention their families) will literally suffer waiting for the Court to take its time.

The more I think about it, the more I realize that the Court really doesn’t see us out here. They have their schedules and their timing. It makes me feel like other eras in our nation’s history- civil rights and AIDS and earning the right of women to vote- when we have to roll up our sleeves and PUSH to get them to notice people suffering. In this case, it’s the same-sex couples and their families- straight and LGBT- out here, literally dying while waiting for the Court to take 6 freaking months just to hear oral arguments.

[Jess]

Thanks for the update Ms. Tinkerbelly.

I share your sentiments entirely. It has been long enough already!

[MsTinkerbelly]

Boehner launches effort to defend gay marriage ban

Associated Press – 2 mins ago
WASHINGTON – House Speaker John Boehner says he's launching a legal defense of the federal law against gay marriage. The Ohio Republican announced Friday that he was convening a bipartisan legal advisory group to defend the Defense of Marriage Act, which defines marriage as a union between a man and a woman. President Barack Obama has refused to defend the law signed by President Bill Clinton in 1996.

The leaders can instruct the House's non-partisan general counsel to take legal action on behalf of the chamber.

Attorney General Eric Holder has said that the Justice Department would continue to enforce the law but no longer would defend its constitutionality.

The Supreme Court has not ruled on the matter, but last year a federal judge in Massachusetts ruled the law unconstitutional.

**Note from me-Asshat!!!!!!

[MsTinkerbelly]

Tomorrow’s NYTimes editorializes for lifting the stay on Judge Walker’s Prop 8 ruling
By Adam Bink

Brilliant editorial. It dovetails exactly with what we’ve been arguing here:

Seven months have passed since Proposition 8, California’s voter-approved ban on same-sex marriages, was ruled unconstitutional by a federal judge in San Francisco following a much-publicized trial that turned up no evidence to justify the measure’s denial of equal protection and due process.

Yet the 2008 initiative continues to inflict serious harm on same-sex couples and their families thanks to a court order that prevents gay men and lesbians from marrying in California while the case is being appealed. That stay should be lifted now.

The appeal was argued in December before a three-judge panel of the United States Court of Appeals for the Ninth Circuit. It could be many more months before the panel rules. In February, it asked the California Supreme Court to resolve a procedural question regarding the standing of the initiative’s sponsor to bring the appeal. The state’s top court has said it will not even hold a hearing on the issue until September, at the earliest.

In legal papers filed last week, lawyers challenging Proposition 8 took note of the “serious, lasting, and irreparable damage to gay men and lesbians who wish to marry” caused by this extended timetable and called on the federal court to lift its injunction.

The stay should never have been granted in the first place. Applying traditional legal criteria, the extraordinary relief of a stay is only warranted when the applicant makes a strong showing of likely success on the merits and of irreparable injury in the absence of a stay — two arguments that cannot be satisfied here.

As the trial judge’s ruling affirmed, the denial of marriage equality furthers no legitimate governmental aim. And defenders of Proposition 8 can point to no real injury they would suffer if gay men and lesbians are permitted to wed.

Every day same-sex couples are denied their right to marry is another day of injustice for them and their families. Couples who wish to wed knowing that the appellate court could decide to uphold Proposition 8’s ban should be allowed to take that chance.

Personally, I am just shaking my head. I’m not sure I could have written a better editorial myself. Our arguments are resonating. Our stories of discrimination- like Courage Campaign members Shane and John‘s on ABC News, and Ed and Derence‘s in The Washington Post, The Advocate, and many other places- are resonating in the media. And tomorrow, a huge section of this nation will read it.

If you haven’t given to our fundraiser to keep P8TT going and keep building our work to result in outcomes like these, we’re about $4,000 short. That’s 80 people giving $50. We’re making progress. Please contribute. And ask a few friends to. Even better, become a monthly donor. We’re making a difference

[Jess]

we're still waiting...