Same-Sex Marriage Update

[Corkey]

Wait that wasn't the decision? Color me confuzzled.

[Stearns]

Decision still to come. Should be soon.

[Cyclopea]

Originally Posted by Corkey

Wait that wasn't the decision? Color me confuzzled.

In the U.S. marriage rights are decided by each state. It is each state’s “right” to decide upon and enact it’s own laws pertaining to marriage and divorce. That is why each state has different marriage and divorce requirements.

In 1996 a judge in the state of Hawaii ruled that gays and lesbians had the right to the same treatment under state marriage laws as everyone else. This groundbreaking ruling sent bigots and their elected representatives nationwide into a frenzy.

One of the few ways the federal government controls marriage rights is by deciding the ways in which the federal government interacts with married people as decided by the states. Federal law states that the agencies of the federal government (IRS, Social Security, Veterans Admin, etc etc) must treat marriages from each state equally, regardless of the ways states have decided to implement those laws.
And that each state must also recognize marriages from other states, even if those marriages were formed under different requirements (for example some states have a waiting period or residency requirement to get married, some- like Nevada with its booming Las Vegas wedding business- do not.) According to federal law a drunken marriage in las vegas or a marriage to an incarcerated death row serial killer is treated equally to a marriage in a state where those marriages would not be legally allowed due to state law. The federal government must treat marriages from each state equally, and each state must recognize marriages from other states, even if those marriages would not be permitted in that state. Most of the federal laws relating to this equality are the result of lawsuits based on states laws which forbid marriages based on race, even into the 1970s.

Hawaii’s groundbreaking same sex marriage legal ruling was ultimately undermined and delayed by various legal and political wranglings. But the national terror among bigots that states would be required, under federal law, to recognize legal marriages from other states EVEN IF THEY WERE GAY ONES resulted in Bill “free willy” Clinton enacting an amendment to the US Constitution (!!!) stating that the federal government would NOT recognize any state marriages between gays, even if a state legalized such a marriage (the feds could not outlaw states legalizing gay marriage because specific marriage laws are decided by each state). And that the federal government would NOT require all states to recognize marriages from other states if those marriages did not involve the new federal marriage standard of one man one woman. This constitutional amendment was called Defense of Marriage Act (DOMA).

Over 30 states also adopted state constitutional amendments stating that those states also will not recognize same sex marriages from other states or allow same sex marriages. Since these state amendments are purely discriminatory, they are (very slowly) being challenged and struck down one by one.

In some states gay marriage has been won, not through the courts, but through the legislature. This was the case in Hawaii, where the lawmakers passed a law legalizing civil unions through the political process rather than wait for the courts to inevitably order it. Yesterday the kooky-ass Hawaiian governor unilaterally VETOED the law that their legislature agreed upon. The same thing happened in Vermont after the legislature passed gay marriage through the political process, rather than in the courts. The kooky VT Governor vetoed it, then the legislature overrode the veto in special session. The legislature in Hawaii has declined to reconvene to override the kooky governor’s veto, because they are on the golf course, and they know that Lingle is a sitting duck wacko who will soon be gone and they will simply pass the damn thing again next session. This weirdo bigot Lingle actually invited the judge who wrote the original decision 17 years ago (which said that Hawaii marriage laws were discriminatory against gays and lesbians) to her press conference announcing her veto. Serious issues, lady, serious issues…

So wacko Lingle’s veto decision came yesterday.

And then HA HA HA today- The DOMA law which enshrined anti-gay bigotry in the US Constitution was OVERTURNED in federal court today on the grounds that it is DISCRIMINATORY. HAHAHAHAHA. Fuck you Lingle!
It was actually two decisions which came down today in federal court, based on two lawsuits filed in massachucetts, one filed by Gay and Lesbian Advocates and Defenders (GLAD) and one filed by Saint Martha Coakley, the attorney general of the state of massachucets. Each challenged DOMA on different grounds, the GLAD one filed on behalf of gay and lesbian married federal workers who were denied equal rights and benefits (family medical leave, social security, etc) by the federal government, and the Coakley one on the grounds that the federal government is infringing on the STATES RIGHTS of Massachusetts by forcing the state to discriminate against it’s own citizens and by discriminating against the STATE by unfair federal dispersal of various entitlement funds (COBRA- which is a federal program which subsidizes medical insurance costs for employers – but not for gay employees!) etc. Both lawsuits were somehow lumped together under the same judge and he issued rulings -STRONG STRONG rulings in both today.
“In his opinion, Tauro found that DOMA didn't even survive rational basis review, which is the least exacting form of constitutional scrutiny” National Law Review: http://www.law.com/jsp/article.jsp?i...f_Marriage_Act

The next decision being awaited is the Walker decision on the Prop 8 lawsuit which will decide whether california’s prop 8 law is constitutional. Because his online legal docket is blank for the rest of the month of July an imminent decision is being speculated- but that’s not certain, he can take as long as he wants.

Both the DOMA rulings today and the Prop 8 Walker decision (whichever way it goes) will ultimately be appealed to and decided by the supreme court. While today’s DOMA ruling definitely gives Walker more legal ammunition to overturn Prop 8, the real hope is that these DOMA rulings will reach the US Supreme Court before the prop 8 case, because the legal precendent set by the overturning of DOMA will lend immeasurable credence to the arguments in the prop 8 challenge.

The reason is that the prop 8 case does not address any of the clear financial ways in which the federal gov discriminates against gay marriage. The prop 8 case merely argues that civil unions are discriminatory because they are SOCIALLY inferior to marriages. Since civil unions confer all the same STATE rights as marriage, social discrimination is the only basis on which inequity can be argued on the state level. The blatant and outrageous ways in which civil unions are not equivielnt to marriage (taxes, social security, agricultural subsidies, etc etc ) are all FEDERAL marriage entitlements, which under DOMA are illegal anyway so that is a moot point in arguing for marriage over civil union on a state level. If SCOTUS overturns DOMA based on the two rulings today BEFORE the prop 8 case gets to SCOTUS, all the financial discrimination will be applicable to the prop 8 case and it can be argued on much more concrete ground than social discrimination.
At least that’s how I understand todays rulings and things going forward. Hope it made sense! If I see a good re-cap explaining things better I will post it.

All in All, The BEST NEWS we’ve had in 17 years.
I am very happy.
I am loving watching the ‘phobes and the religious reich squirm as they now attempt to support federal power and argue against the very state rights that they have been embracing for the last 50 years.

[Corkey]

Yea I knew all that, it wasn't the confusing problem, which has been solved. But thanks for taking the time to write that all out.

[Cyclopea]

http://joemygod.blogspot.com/2010/07...vs-office.html

[MsTinkerbelly]

US Federal Judge In Massachusetts Rules Part of DOMA Is Unconstitutional
by Robert Cruickshank

UPDATE: Here’s the PDF of the ruling, via GLAD. Original post begins here:

As we await the ruling from Judge Vaughn Walker on Perry v. Schwarzenegger, we just received word about a decision in two marriage equality suits. A federal judge in Massachusetts just ruled that Section 3 of the Defense of Marriage Act, the federal law passed in 1996 that bars federal recognition of same-sex marriage and enables states to withhold recognition of same-sex marriages performed in other states, is unconstitutional.

The ruling in the cases, Commonwealth of Massachusetts v. Health and Human Services and Gill v. Office of Personnel Management, does not strike down DOMA in its entirety. But what it does appear to do is to remove the ban on the federal government’s recognition of same-sex marriage.

Bay Windows, New England’s largest GLBT newspaper, provides a very useful overview:

In an enormous victory for same-sex marriage, a federal judge in Boston today (Thursday, July 8) ruled, in two separate cases, that a critical part of the federal Defense of Marriage Act (DOMA) unconstitutional.

In one challenge brought by the state of Massachusetts, Judge Joseph Tauro ruled that Congress violated the Tenth Amendment to the U.S. Constitution when it passed DOMA and took from the states decisions concerning which couples can be considered married. In the other, Gill v. Office of Personnel Management, he ruled DOMA violates the equal protection principles embodied in the Due Process Clause of the Fifth Amendment.

In Commonwealth of Massachusetts v. Health and Human Services, Tauro considered whether the federal law’s definition of marriage — one man and one woman — violates state sovereignty by treating some couples with Massachusetts’ marriage licenses differently than others. In Gill v. Office of Personnel Management, Gay & Lesbian Advocates & Defenders (GLAD), a gay legal group, asked Tauro to consider whether DOMA violates the right of eight same-sex couples to equal protection of the law.

Adam Bink at Open Left offers the key section from Judge Tauro’s ruling in Commonwealth:

This court has determined that it is clearly within the authority of the Commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status. The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment. For that reason, the statute is invalid.

In other words, Judge Tauro’s ruling in Commonwealth is that the 10th Amendment prevents Congress from defining marriage, a right that the states held until 1996. It should be noted that there is considerable precedent, including Loving v. Virginia, giving the US Supreme Court the right to overturn bans on certain kinds of marriage, so this case should not be construed to limit the federal courts’ ability to provide for marriage equality.

The other suit, Gill v. OPM, further establishes that Section 3 of DOMA was passed with discriminatory intent and is invalid. The outcome of that suit would appear to mandate that the federal government provide benefits to couples in a same-sex marriage that is sanctioned by the state. This may lead to same-sex spouses being able to file a joint return with the IRS, something that has been denied to them (including the 18,000 same-sex couples married in California between May and November 2008) under DOMA.

Early reaction is in from Evan Wolfson at Freedom to Marry:

Today’s historic ruling strikes down federal marriage discrimination enacted under the so-called “Defense of Marriage Act” in 1996. DOMA created two classes of marriage – those the federal government respects and some it doesn’t – denying married same sex couples and their families equal treatment and depriving them of the crucial safety-net that marriage brings. In Gill et al. v. Office of Personnel Management, eight married same-sex couples and three widowers, represented by the Gay & Lesbian Advocates & Defenders, demonstrated that federal marriage discrimination harms gay and lesbian couples who are trying to make ends meet and protect their families.

Today’s ruling affirms what we have long known: federal discrimination enacted under DOMA is unconstitutional. The decision will be appealed and litigation will continue. But what we witnessed in the courtroom cannot be erased: federal marriage discrimination harms committed same-sex couples and their families for no good reason. Today’s ruling provides increased momentum to the national movement to end exclusion from marriage and Freedom to Marry’s Roadmap to secure the freedom to marry nationwide. The crucial work of changing hearts and minds and winning the freedom to marry in more states is more urgent than ever as we build on today’s momentum and encourage other decision-makers to do the right thing and end exclusion from marriage.

We’ll have more updates as we learn more about the ruling and its likely implications. It will be interesting to see what, if any, bearing this ruling has on Judge Walker’s decision in Perry v. Schwarzenegger.

UPDATE 2: More from Judge Tauro’s decision:

But even if Congress believed at the time of DOMA’s passage that children had the best chance at success if raised jointly by their biological mothers and fathers, a desire to encourage heterosexual couples to procreate and rear their own children more responsibly would not provide a rational basis for denying federal recognition to same-sex marriages. Such denial does nothing to promote stability in heterosexual parenting. Rather, it “prevent[s] children of same-sex couples from enjoying the immeasurable advantages that flow from the assurance of a stable family structure,” when afforded equal recognition under federal law.

Moreover, an interest in encouraging responsible procreation plainly cannot provide a rational basis upon which to exclude same-sex marriages from federal recognition because, as Justice Scalia pointed out in his dissent to Lawrence v. Texas, the ability to procreate is not now, nor has it ever been, a precondition to marriage in any state in the country.

This is a very sensible and effective response to the silly argument that same-sex marriage somehow limits or undermines heterosexual procreation.

Adam Bonin has a good analysis up over at Daily Kos.

A key upcoming question is whether the Obama Administration will appeal this decision. It would be wise of them to not do so.

[AtLast]

As a California resident, I have to say that it is just so damn frustrating (re: Prop 8 recent ruling) knowing that our original movement for same-sex marriage is precident for other states. States in which same-sex marriage is now legal!

Here we are in California, with a bought and paid-for (by the LDS in other states!) consitutional amendment banning anything other than one man and one woman for legal marriage at this point in time!

Talk about banging your head agains a wall!!!

To all in states in which same-sex marriage is legal- I am happy for you, but please send CA your mo-jo, woo-woo... whatever! We need it! Hell, send Lucky Charms....

[SuperFemme]

Rumor of Prop. 8 ruling brings attorneys, media to S.F. courthouse [Updated]

July 8, 2010 | 7:28 pm

Television trucks, attorneys and a few members of the public congregated at the federal courthouse in San Francisco on Thursday afternoon, waiting for a verdict in the Proposition 8 same-sex marriage trial.

But as the sun set, no ruling had come.

A rumor swept through the blogosphere and San Francisco City Hall on Thursday that U.S. District Court Chief Judge Vaughn R. Walker planned to issue his long-awaited ruling on whether Proposition 8, which banned same sex marriage in California, violates the U.S. Constitution.

But Walker’s chambers were closed Thursday and expected to be closed Friday, and he had not told any of the parties in the closely watched case that a ruling was coming.

Lawyers in the case said they doubted the rumor was true.
“I would be amazed,” said Andy Pugno, an attorney for the proponents of Proposition 8.

[Updated, 8:02 p.m.: A previous version of this post misspelled Pugno's last name as Pugo.]

-- Jessica Garrison in Los Angeles and Maura Dolan in San Francisco

[AtLast]

Originally Posted by AtLastHome

As a California resident, I have to say that it is just so damn frustrating (re: Prop 8 recent ruling) knowing that our original movement for same-sex marriage is precident for other states. States in which same-sex marriage is now legal!

Here we are in California, with a bought and paid-for (by the LDS in other states!) consitutional amendment banning anything other than one man and one woman for legal marriage at this point in time!

Talk about banging your head agains a wall!!!

To all in states in which same-sex marriage is legal- I am happy for you, but please send CA your mo-jo, woo-woo... whatever! We need it! Hell, send Lucky Charms....

UGH.. my spelling sux!

This was not about Judge Walker's decision (re: US Constitutional related ruling)- have 2 biggies going on.

[SuperFemme]

http://www.scribd.com/doc/33082633/P...ge-s-Questions

[Soon]

[Corkey]

http://gayrights.change.org/blog/vie...e-sex_marriage

[Stearns]

Originally Posted by Corkey

http://gayrights.change.org/blog/vie...e-sex_marriage

We need more str8t allies like this. Thanks for the article, Corkey.

[Soon]

[MsTinkerbelly]

IRS Ruling Is A Recognition of Fact
by Brian Leubitz

While this might not have been on everybody’s radar, the IRS kicked down a huge decision for California same-sex couples. But PLR-149319-09 (PDF) has some big importance to California registered domestic partners and same-sex married couple. Long story short, the IRS is now recognizing California’s community property rules. And that’s big. Really big.

Let’s start from the beginning. I’m no accountant, but bear with me as I try to recall my tax class in law school. Basically, California, like many Western states, has a default rule for marriage that any property acquired (other than through inheritance) is treated as “community property” between the two married spouses. For California same-gender couples that got married in 2008, these community property rules apply unless you have opted out through contract (a “pre-nup”). Also, in 2006 and 2007, the legislature passed, and the Governor signed, two pieces of legislation that granted registered domestic partnerships the same rights and responsibilities of marriage, with community property first being excluded for tax purposes in 2006, and then being completely folded in to the RDP in 2007.

Of course, the problem here is that under the so-called “Defense of Marriage” Act, the federal government was not supposed to recognize any marriage not between a man and a woman. Thus, we had a real pickle on our hands. Under California property law, the property was community property, half belonged to both partners. But how that property got there was anybody’s guess. Just off the top of my head, there are a number of ways the federal government could have handled the issue:

1) Ignored community property between same gender couples entirely. Sure, it would cause conflicts with state tax issues, but who cares, according to the Yes on 8 folks, this is a future of civilization thing here.
2) Acknowledge the community property, treating it as a gift between two unrelated partners for federal tax purposes. This would have been very bad for same-gender couples. Basically, couples would have had to pay gift tax on any difference in income over $13,000 (or so, depending on what the gift tax is that year). That would get pricy fast.
3) Acknowledge the community property, but treat it as earned jointly. Basically, each partner, for tax purposes, earned half of the income. This would be far more favorable and basically treat community property the same for all couples.

I’ll let you read PLR-149319-09 (PDF) on your own if you’d like to, but long story short, the IRS went for #3. Once they went over the law, it seems obvious, but these things rarely are obvious before hand. And that’s the case here. The IRS first relied on past precedent to first say that the federal goverment defers to the states to determine property law (U.S. v. Mitchell) and then to say that California community property law determines who owns what for California couples (US v Malcolm). Finally, the IRS simply stated that once California treated property as community property, the IRS would do so as well.

Now, in practical terms, what does this mean? Well, say you are a couple where one partner earns substantially more than the other. You’ll have noticed that your California tax bills went down with community property. Now the same will apply to the federal government. For example, say “Adam” earns $50,000 as a public school teacher. His husband “Bill” earns $150,000 as a investment hot-shot or something. (No comment on our society’s priorities there.) Under this new law, each would report income of $100,000. For a variety of reasons in the tax code, that’s going to be advantageous. Now, I’m not a tax lawyer, and this isn’t specific advice. If this is something that might apply, ask whomever prepares your taxes or some other tax professional.

There is one wrinkle in here. Technically, the IRS “private letter ruling” specifically addresses registered domestic partnerships, and uses that language. However, the ruling is entirely directed at the concept of community property, which applies in the same way for the 2008 marriages. In theory, it should be handled the same way, but theory often gets you audited.

[MsTinkerbelly]

Argentina legalizes gay marriage in historic vote

AP By MICHAEL WARREN, Associated Press Writer Michael Warren, Associated Press Writer – 14 mins ago
BUENOS AIRES, Argentina – Argentina legalized same-sex marriage Thursday, becoming the first country in Latin America to declare that gays and lesbians have all the legal rights, responsibilities and protections that marriage brings to heterosexual couples.

After a marathon debate in Argentina's senate, 33 lawmakers voted in favor, 27 against and 3 abstained in a vote that ended after 4 a.m. Since the lower house already approved it and President Cristina Fernandez is a strong supporter, it becomes law as soon as it is published in the official bulletin, which should happen within days.

The law is sure to bring a wave of marriages by gays and lesbians who have found Buenos Aires to be a welcoming place to live. But same-sex couples from other countries shouldn't rush their Argentine wedding plans, since only citizens and residents can wed in the country, and the necessary documents can take months to obtain. While it makes some amendments to the civil code, many other aspects of family law will have to be changed.

The approval came despite a concerted campaign by the Roman Catholic Church and evangelical groups, which drew 60,000 people to march on Congress and urged parents in churches and schools to work against passage. Cardinal Jorge Mario Bergoglio led the campaign, saying "children need to have the right to be raised and educated by a father and a mother."

Nine gay couples had already married in Argentina after persuading judges that the constitutional mandate of equality supports their marriage rights, although their validity was later challenged by other judges. Congressional passage now removes that doubt.

As the debate stretched on for nearly 16 hours, large crowds held rival vigils through the frigid night outside the Congress building. When the final vote came, cheers and hugs broke out among the bill's supporters, with police keeping them separate from frustrated opponents who prayed and held rosaries.

"Marriage between a man and a woman has existed for centuries, and is essential for the perpetuation of the species," insisted Sen. Juan Perez Alsina, who is usually a loyal supporter of the president but gave a passionate speech against gay marriage inside the Senate chamber.

But Sen. Norma Morandini, another member of the president's party, compared the discrimination closeted gays face to the oppression imposed by Argentina's dictators decades ago.

"What defines us is our humanity, and what runs against humanity is intolerance," she said.

Same-sex civil unions have been legalized in Uruguay and some states in Mexico and Brazil. Colombia's Constitutional Court granted same-sex couples inheritance rights and allowed them to add their partners to health insurance plans. Mexico City went further, legalizing gay marriage and launching tourism campaigns to encourage foreigners to come and wed.

Argentina now becomes the first country in Latin America to legalize same-sex marriage nationwide, granting gays and lesbians all the same rights and responsibilities that heterosexuals have. These include many more rights than civil unions, including adopting children and inheriting wealth.

Gay rights advocates said Argentina's historic step adds momentum to similar efforts around the world.

"Today's historic vote shows how far Catholic Argentina has come, from dictatorship to true democratic values, and how far the freedom to marry movement has come, as twelve countries on four continents now embrace marriage equality," said Evan Wolfson, who runs the U.S. Freedom to Marry lobby.

Wolfson urged U.S. lawmakers to stand up "for the Constitution and all families here in the United States. America should lead, not lag, when it comes to treating everyone equally under the law."

Gay activists in neighboring Chile hope Argentina's milestone will improve chances for a gay marriage law currently in committee in their own Congress.

"Argentina's political class has provided a lesson to the rest of Latin America," said Rolando Jimenez in Santiago. "We hope our own countries and political parties will learn that the human rights of sexual minorities are undeniable."

Activists in Paraguay plan to propose a similar law to the senate in October, said Martin Viveros of the group Somosgay. And in Uruguay, gays unsatisfied with the partial rights that come through civil unions are preparing legislation that would replace references to "man and woman" with "spouse" throughout the civil code.

But many Argentines remain firmly opposed to the idea of gay marriage. Teacher Eduardo Morales, for one, said the law was concocted by Buenos Aires residents who are out step with the views of the country.

"They want to convert this city into the gay capital of the world," said Morales, of San Luis province.

Ines Franck, director of the group Familias Argentinas, said the legislation cuts against centuries of tradition.

Opposing the measure "is not discrimination, because the essence of a family is between two people of opposite sexes," he said. "Any variation goes against the law, and against nature."

The president, who helped the law's chances by bringing two senators opposed to gay marriage with her on a state visit to China, spoke out from there against the Catholic Church's campaign and the tone she said some religious groups have taken.

"It's very worrisome to hear words like 'God's war' or 'the devil's project,' things that recall the times of the Inquisition," she said.

That may play well in Argentina's socially liberal capital, where many of the country's gays and lesbians live, but could be costly in the conservative provinces. Some opposition leaders accused Fernandez and her husband Nestor Kirchner, who lobbied hard for passage, of trying to gain votes in next year's presidential elections, when the former president is expected to run again.

The vote came after Sen. Daniel Filmus urged fellow lawmakers to show the world how much Argentina has matured.

"Society has grown up. We aren't the same as we were before," he said.

[Soon]

[Soon]

Silver:


The big spike you see in 2008 is California recognizing gay marriage through the courts, and then un-recognizing it through the passage of Proposition 8. Right now, it's possible to marry your same-sex partner in Buenos Aires, in Mexico City, in Ames, Iowa, and in Pretoria, South Africa, but not in San Francisco. With countries like Argentina and Portugal now recognizing same-sex marriages, however, the global trajectory has returned to its slow-but-steady upward pace.

[Jess]

Not sure if this has been posted elsewhere.. but it's a good bit of news...

http://www.hrcbackstory.org/2010/07/...news-July-2010

[Heart]

This is the first time I have ever seen the words "...butch point of view," in the New York Times.

http://www.nytimes.com/2010/07/16/us...1&ref=weddings