Same-Sex Marriage Update

[MsTinkerbelly]

In new lawsuit, DOMA is challenged as it applies to immigration rights
By Scottie Thomaston

Immigration Equality has filed a new lawsuit challenging the Defense of Marriage Act as it applies to the immigration rights of gay and lesbian bi-national couples. The complaint, notes the reasons that the Defense of Marriage Act treats same sex couples dealing with immigration issues particularly harshly:


The discriminatory impact of DOMA is particularly acute in the immigration context. For immigration purposes, whether the federal government recognizes a couple’s marriage can determine whether a family may remain in the United States and live together, or may be torn apart.

The group’s press release says:


Five lesbian and gay couples filed suit today in the Eastern District of New York, challenging Section 3 of the federal Defense of Marriage Act (DOMA), which prevents lesbian and gay American citizens from sponsoring their spouses for green cards. The lawsuit, filed on the couples’ behalf by Immigration Equality and the law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP, alleges that DOMA violates the couples’ constitutional right to equal protection.

“Solely because of DOMA and its unconstitutional discrimination against same-sex couples,” the lawsuit states, “these Plaintiffs are being denied the immigration rights afforded to other similarly situated binational couples.” Were the Plaintiffs opposite-sex couples, the suit says, “the federal government would recognize the foreign spouse as an ‘immediate relative’ of a United States citizen, thereby allowing the American spouse to petition for an immigrant visa for the foreign spouse, and place [them] on the path to lawful permanent residence and citizenship.”

The complaint asserts that keeping families together is not only the highest priority for the plaintiffs who are in long term same sex relationships, but it’s also considered the highest government priority and commitment to family values is repeatedly affirmed in our laws. Because of DOMA, these and other families could be ripped apart:


Each of the Plaintiff couples were legally married, and there is no question that each couple’s marriage is recognized in the jurisdiction in which the American spouse resides. For example, Frances Herbert and Takako Ueda were lawfully married in 2011 in Vermont. Thus, if Takako were a man instead of a woman, she would have already been recognized as an “immediate relative,” allowing her to attain lawful permanent residence and to remain in the United States.

Immigration Equality notes on their website the administration’s rather arbitrary enforcement of DOMA as it pertains to immigration – they’ve stopped some deportations but allowed others – and explains their case:


Over the course of the past year, the Obama Administration has refused to approve – or even hold — green card applications filed by our families. As a result, couples are facing separation and exile … and we will not sit idly by as the federal government keeps tearing families apart.

There is no question that DOMA is unconstitutional. We know it; the Obama Administration knows it; and the families who feel its impact know it most of all. It is time to end this law, and Immigration Equality and our families will do just that.

On April 2nd, we filed suit on behalf of five lesbian and gay couples, challenging Section 3 of DOMA, which prevents lesbian and gay American citizens from sponsoring their spouses for green cards. The lawsuit, filed on the couples’ behalf by Immigration Equality and the law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP, alleges that DOMA violates the couples’ constitutional right to equal protection.

This is not the first lawsuit that has alleged DOMA is unconstitutional as applied to immigration rights. In California, Lui v. Holder was thrown out because the judge said Adams v. Howerton is controlling precedent. In Illinois, Revelis v. Napolitano is awaiting further action.

The lawsuit is called Blesch v. Holder

[Cin]

Originally Posted by MsTinkerbelly

In new lawsuit, DOMA is challenged as it applies to immigration rights

I have my fingers crossed. It might be pie in the sky right now, but I would love someday for my wife and I to be able to choose where we want to live.

[MsTinkerbelly]

DOMA trial: What to expect from tomorrow’s hearing in the First Circuit Court of Appeals
By Jacob Combs

Tomorrow morning, starting at 9:30 a.m. EDT, the First Circuit Court of Appeals in Boston will hear oral arguments in the companion cases of Gill v. Office of Personnel Management and Massachusetts v. Health and Human Services. It has been almost two years since District Court Judge Joseph Tauro ruled that Section 3 of the Defense of Marriage Act is unconstitutional under both the Fifth and Tenth Amendments of the U.S. Constitution. Judge Tauro, a Nixon appointee, was the first district court judge in the country to strike down DOMA. A little over a month ago, another Republican-appointed judge, Jeffrey White of the Northern District of California, also declared DOMA unconstitutional.

It’s been a while since the original district court trial that Judge Tauro presided over, so we here at Prop8TrialTracker.com wanted to provide a brief review of the issues presented in the two cases and the legal analysis behind the judge’s decision. In Gill, filed by Gay & Lesbian Advocates & Defenders (GLAD), the plaintiffs argued that DOMA violates the equal protection provisions of the Fifth Amendment by discriminating against gay and lesbian couples who are married under the laws of the state they live in but denied federal marriage benefits by the government. In the companion case of Massachusetts, Massachusetts Attorney General Martha Coakley claimed that Congress overstepped its authority and ran afoul of the Tenth Amendment in passing DOMA because the law undermined states’ abilities to recognize marriage equality.

Judge Tauro awarded summary judgment to the plaintiffs in both cases, striking down DOMA under the Fifth and Tenth Amendments. In his decision in Gill, Tauro rejected the arguments that DOMA encouraged responsible procreation or realized a governmental desire to ensure children were raised by their two biological parents and concluded instead that Congress passed DOMA because of moral disapproval of same-sex relationships and prejudice against gay people. In Massachusetts, Tauro affirmed that marriage has always been a province of state law in the United States, and ruled that DOMA constituted an unprecedented intrusion upon states’ rights by imposing a national definition of marriage. In his decisions, Judge Tauro declined to decide whether or not DOMA should be considered under heightened scrutiny, ruling that the statute failed even the more deferential rational basis scrutiny.

Because it is so significant, the issue of which level of scrutiny should apply to cases like the DOMA and Prop 8 trials deserves some explanation here. Essentially, when a court considers an equal protection challenge of a law that applies certain rules to specific groups of people, that court must decide whether the group bringing the suit is subject to heightened or rational basis scrutiny. As Judge White wrote in his February ruling explaining the two levels of scrutiny: “Courts apply the most searching constitutional scrutiny to those laws that burden a fundamental right or target a suspect class, such as those based on race, national origin, sex or religion.” In cases like these, the government must show that a classification is “substantially related to an important government objective.” If a law doesn’t involve a protected class or a fundamental right, they are subject to rational basis scrutiny, and must be shown to be “rationally related to the furtherance of a legitimate governmental interest.”

As we wrote about here at Prop8TrialTracker.com, in February of 2011, the Department of Justice announced its determination that sexual orientation was a classification meriting heightened scrutiny review. In addition, it announced that is would cease to defend DOMA in court, and the House of Representatives’s Bipartisan Legal Advisory Group (BLAG) took up the defense in its stead. Briefings were submitted in the fall. As it did recently in another DOMA case in the Ninth Circuit, the Department of Justice (along with the plaintiffs) filed a request for en banc review in the First Circuit as opposed to the slower route of proceeding to a 3-judge panel before en banc consideration. The reasoning behind this decision has to do with the scrutiny question. Because the 3-judge panels that first hear cases when they appealed are bound by a court’s earlier decisions, the panel appointed to hear Gill and Massachusetts would have to consider the First Circuit’s 2008 decision in Cook v. Gates, which determined that no Supreme Court ruling held that sexual orientation is a classification meriting heightened scrutiny. An en banc panel would not be bound by that determination, and could consider the question anew. Nevertheless, the petition for initial en banc hearing was denied.

In tomorrow’s hearing, you can expect to hear about the issue of scrutiny, and specifically Cook v. Gates, since the appeals panel will no doubt want to address the whether rational basis or heightened scrutiny applies. As mentioned above, Cook is a controlling precedent on this 3-judge panel, making it extremely unlikely the panel would opt for heightened scrutiny in considering Judge Tauro’s rulings. Because the Cook case concerned Don’t Ask, Don’t Tell, a law that affected the military, it is somewhat different from these DOMA cases, which affect civilians (and, it might be added, service members as well). Nonetheless, it seems almost certain that the First Circuit panel will follow Judge Tauro (and Cook) and use rational basis scrutiny in its determination of DOMA’s constitutionality.

The most unique portion of Judge Tauro’s 2010 ruling was his use of the Tenth Amendment, a darling of conservatives seeking to limit the scope of federal power. Tauro’s ruling in Massachusetts persuasively makes the case for striking down DOMA on Tenth Amendment grounds alone, even though the Fifth Amendment equal protection arguments of Gill are perhaps more traditional in cases like these. It will be intriguing to watch what questions the panel asks in terms of Judge Tauro’s two parallel tracks of analysis, and whether it finds one more convincing than the other.

Tomorrow’s meeting is also significant because of the lawyers who will be arguing for the various different parties. As we wrote before here at P8TT, the Justice Department will be represented by Stuart Delery, Acting Assistant Attorney General for the Civil Decision and one of the highest-ranking officials in the department. BLAG, on the other hand, will be represented by conservative legal wunderkind Paul Clement, former U.S. Solicitor General, who enjoyed the national spotlight this week because of his well-reviewed performance arguing against the constitutionality of the Affordable Care Act before the U.S. Supreme Court. In addition, Mary Bonauto, a prominent civil rights attorney whom the New York Times Magazine compared to former Supreme Court Justice Thurgood Marshall, will be arguing for GLAD. Bonauto is well-known for her successful arguments in Goodridge v. Department of Public Health, the 2003 Massachusetts Supreme Court decision that brought marriage equality to the Bay State. Maura Healy, the head of the Massachusetts Attorney General’s civil rights division, will represent the state of Massachusetts.

In terms of the panel itself, there appears to be little to be read from the proverbial tea leaves. The three judges making up the panel are Chief Judge Sandra L. Lynch, Judge Juan R. Torruella and Judge Michael Boudin, who are Clinton, Reagan and George H.W. Bush appointees, respectively, and the most senior active justices in the First Circuit. In terms of pertinent decisions in the judges’ past, Judge Boudin last year upheld the right of transgender prisoners to receive hormone therapy. In an email to P8TT, Shannon Minter, Legal Director at the National Center for Lesbian Rights, wrote that none of the three judges can be easily classified as liberal or conservative.

Unfortunately, due to the ban on electronic devices of any kind in the courtroom tomorrow, P8TT will not be able to live blog the First Circuit hearing. If you live in Boston, you can try to attend the hearing in person when the courtroom opens at 9:00 a.m. (the courthouse itself will open at 7:30 a.m.). Feel free to send reactions and dispatches to prop8trial AT couragecampaign DOT org. Immediately after the hearing, audio of the oral arguments will be posted on the court’s website.

As always, Prop8TrialTracker.com will provide full coverage of tomorrow’s hearing. Check back throughout the day for updated news and analysis

[MsTinkerbelly]

Ohio’s Attorney General certifies ballot language to replace anti-gay marriage amendment
By Scottie Thomaston

Ohio’s Attorney General Mike DeWine has finally certified the ballot language for an amendment to the state constitution to repeal and replace their anti-gay amendment that currently bans gay and lesbian couples from being able to get married. The new language will state that marriage is “a union of two consenting adults.” The proposed language also clarifies that no religious institution will be required to perform or recognize marriages.

The certification comes after DeWine’s refusal last month to authorize the proposed ballot language. He suggested a few reasons for denying certification at the time:


After reviewing the submission, I conclude that I am unable to certify the summary as a fair and truthful statement of the proposed constitutional amendment for three reasons. First, the summary is longer than the text of the amendment… Second, the summary states that the amendment retains the rights contained in “Section 11 of Article XV for political subdivisions to not recognize a legal status for relationships of unmarried individuals.” However, the text of the amendment does not indicate that political subdivisions would retain these rights. Third, the summary states that the amendment retains “the portions of Title 31 that codifies this Amendment.” However, the text of the amendment does not contain any reference to Title 31.

In today’s statement, DeWine calls the new language fair and truthful:


The group re-submitted its paperwork on March 26 and DeWine today certified the proposal and a “fair and truthful” summary of the proposed amendment, he said in a news release.

“Without passing on the advisability of the approval or rejection of the measure to be referred, I hereby certify that the summary is a fair and truthful statement of the proposed constitutional amendment,” he said in a letter to the petitioners.

Yesterday, it was reported that Cleveland’s NAACP President George Forbes has joined the Freedom to Marry campaign – the group pushing the marriage initiative in Ohio. Forbes noted that he worked to clarify the religious language exempting churches from having to perform services, and said:


“The time is now to grant two loving people the Freedom to Marry,” he said in a written statement.

“Not since the Civil Rights Act of 1964 has there been a more important step to achieving equality for all Americans.”

As for the next steps in the amendment process:


DeWine said in a news release that once the summary language and initial signatures are certified the Ohio Ballot Board must determine if the amendment contains a single or multiple issues. The petitioners must then collect signatures in 44 of Ohio’s 88 counties, equal to 5 percent of the total vote cast in the county for the office of governor at the last gubernatorial election.

Total signatures collected statewide must also equal 10 percent of the vote cast for the office of governor in the last gubernatorial election.

If successful it will add to the growing list of pro-marriage initiatives on statewide ballots in the upcoming election.

[MsTinkerbelly]

There are some really interesting articles over at the Prop 8 Trial Tracker Blog this morning that are way too lengthy to repost and I am link challenged.

One of the arguments to repeal DOMA is focusing not on the 14th amendment, but on the 10th which has to do with the individual States ability to decide what is right for the people of the State; and then the Government saying no, they can't have those rights.

Like I said, it's an interesting read.

[MsTinkerbelly]

California federal judge rules denial of same sex spousal benefits is discriminatory
By Scottie Thomaston

Chief Judge James Ware of the Northern District of California has issued a ruling in a case involving denial of insurance benefit to a law clerk with a same-sex spouse, deciding that the denial of benefits is discriminatory. The court has a policy that guarantees a “discrimination-free workplace.” Because he can’t force the national office to cover spouses,:he ordered the chief clerk of the San Francisco federal court to reimburse Nathan for the past and future costs of buying insurance for his husband.

But the Defense of Marriage Act complicates the issue. Courts have to comply with DOMA, and the administration itself is still enforcing it, until it’s ruled unconstitutional definitively by the Supreme Court. It puts a spotlight on the fact that courts have policies on anti-discrimination in the workplace but then are required by law to discriminate. If there is to be any change in procedure, that decision, Wieking [the clerk ordered by Ware to reimburse funds] said, “will have to be made by the Administrative Office of the U.S. Courts.”

[MsTinkerbelly]

In Minnesota, President Obama’s campaign opposes anti-gay amendment that denies “rights and benefits to same sex couples”
By Scottie Thomaston

The president’s campaign for re-election is coming out in opposition to an attempt to put an anti-gay marriage amendment in Minnesota’s constitution, in what looks to be the administration’s new approach to discussing anti-gay ballot initiatives. Using language much like the statement released by the Obama campaign in opposition to Amendment 1 in North Carolina – and much stronger than previous statements referencing “divisive and discriminatory” laws but not addressing gays and lesbians – the campaign says:


“While the President does not weigh in on every single ballot measure in every state, the record is clear that the President has long opposed divisive and discriminatory efforts to deny rights and benefits to same sex couples,” said Kristen Sosanie, spokeswoman for the Obama for America – Minnesota campaign. “That’s what the Minnesota ballot initiative would do – it would single out and discriminate against committed gay and lesbian couples – and that’s why the President does not support it.”

As in North Carolina, state law in Minnesota already makes it illegal for gay and lesbian couples who are in love to be able to marry each other. The amendment is another in a long line of superfluous, animus-based attacks on gay and lesbian families meant to reclassify them as less valid than heterosexual relationships.

It’s good to see the administration address the problem with these amendments head on. The problem was never that laws or amendments of this sort are “divisive” or vaguely discriminate – they’re targeted at viciously attacking gay and lesbian families by placing in state constitutions the idea that one form of relationship and one sexual orientation is the only valid kind, and anyone else is inferior.

And the fact that the campaign has to keep noting that they can’t weigh in on every one of these initiatives says a lot in itself. This year the gay and lesbian community is fighting back against efforts to ban legal recognition of our relationships in some states and fighting to affirm them in other states. Even after releasing statements on North Carolina and Minnesota, there are still efforts in Maine and Maryland and Washington and New Jersey underway. When one law passes to affirm gay and lesbian relationships it always follows with immediate efforts to undermine the new law. It’s a concerted, long-term effort to deny gays and lesbians legal and societal acceptance and recognition.