This Week in Gay News Roundup: 5/24 - 5/30
The week that brought us disappointment over Proposition 8's approval by California courts and hope with a federal challenge featured many other strides in our fight for equality. Here is what happened this week in case you missed anything. For more up-to-the-minute news stories, follow Family Fairness on Twitter.
- President Obama made his first Supreme Court nomination to fill David Souter's vacant seat. His pick, current Second Circuit judge Sonia Sotomayor, would be the Court's third woman, third non-white, and first hispanic justice. Though her time in the New York District Court and Second Circuit have not revealed her stance on gay issues, legal activists are happy with her nomination. Paula Ettelbrick, executive director of the International Gay and Lesbian Human Rights Commissions, said of a meeting with Sotomayor in 1991, "she was totally interested [in gay civil rights issues] and supportive." Evan Wolfson, head of Freedom to Marry, said, "from everything I know, Judge Sotomayor is an outstanding choice — fair and aware, open and judicious. I believe she has the demonstrated commitment to principles of equal protection and inclusion that defines a good nominee to the Supreme Court." The National LGBT Bar Association and Lambda Legal have also made statements supporting Sotomayor.
- A Brown University poll revealed that 60% of Rhode Island voters support the right of same-sex couples to marry, and 75% support Civil Unions. Of the six New England states, four have legalized marriage equality with a fifth — New Hampshire — in the process. While Rhode Island legislatures have attempted to pass marriage bills every year since 1997, none have made it to the floor for a full House or Senate vote. Equality advocates are hopeful that such a strong showing of support will encourage lawmakers to more seriously consider a bill.
- Speaking of New Hampshire, House and Senate negotiators have reached a compromise on the state's marriage bill and will be holding votes on the amendments next week. Governor Lynch, who threatened to veto the last version of the bill unless the changes were made, has indicated his support of the new bill. The legislation added a sentence specifying that religious organizations have exclusive control over their practices with regards to marriage.
- Two bills, one of which would legalize same-sex marriage while the other would ban it, are circulating for co-sponsors in Pennsylvania. While the outcome of either bill is uncertain, Senator Leach, who intends to introduce the marriage equality legislation, believes that the climate is right for Pennsylvania to follow in the footsteps of other legislatures the recognized the fundamental inequality of marriage exclusion.
- The White House released a statement reaffirming President Obama's support for efforts repealing the Defense of Marriage Act (DOMA). The statement says "DOMA is a federal law passed by Congress that precludes uniform federal recognition of same-sex relationships, even those recognized as valid under the law of the state. Because the President believes that this is an issue that should be left to the states, he continues to support the legislative repeal of DOMA." While the statement is comforting given Obama's relative silence on issues important to the gay community, it offered no timeline as to when these efforts would begin.
- The domestic partnership bill in Nevada that won support from the state's House and Senate was vetoed by Governor Jim Gibbons as he promised to do. A statement released by the governor explains that he believes the 2002 constitutional amendment banning same-sex marriage also extends to domestic partnerships, and that "only the voters should have the right to undo or amend constitutional mandates." He also stated that other private contracts, like a Power of Attorney document or a health care proxy, were already sufficient to give same-sex couples legal rights and that domestic partnerships were unnecessary.
Did I miss anything? Be sure to let me know in the comments. You may also follow Family Fairness on Twitter for more up-to-the-minute news stories.
Have a question, comment, or response? Share your thoughts.Gay leaders not happy about federal Prop 8 challenge. So what?
Yesterday, I wrote about Theodore Olson and David Boies, and their planned federal challenge to Proposition 8. Already, the leaders of nine prominent gay advocacy organizations, including Lambda Legal, HRC, Freedom to Marry, GLAD, and the ACLU have released a publication critical of the case. In the document, entitled Why the ballot box and not the courts should be the next step on marriage in California [pdf], the coalition says:
Since we lost Proposition 8 just six months ago, and since a ballot initiative to repeal is likely to require a huge investment in time and money, it is tempting to at least try a federal lawsuit first. But it's a temptation we should resist.
[. . .]
Rather than filing premature lawsuits, we need to talk to our friends, family and neighbors, and help them understand why denial of the freedom to marry is wrong. We need to build a vigorous, aggressive campaign to overturn Prop 8 and restore the freedom to marry in California. This is the moment to convince California and America that we should have the freedom to marry.
The core of the group's worries is that if a federal challenge were to fail — and they seem to think that it will given the conservative makeup of the current Supreme Court — bad legal precedent will be set that would negatively affect future attempts to win marriage equality.
While the concern is legitimate, I am uncomfortable with 'strategy' displacing the rights of individuals to bring their grievances to court. The plaintiffs believe that California's actions have harmed them, and they should be free to pursue whatever legal remedies are available without worrying about the potential ramifications for "the cause". Pressuring the very individuals whose rights these organizations purport to protect feels unseemly.
Further, the concerns the groups have may never materialize. It could take more than two years before this case makes its way to the US Supreme Court, well past Equality California's goal to place the issue back on the ballot in 2010. A vote to overturn Proposition 8 would render the case moot, killing it before it even makes it to the Court.
I fear that the real source of the organizations' disapproval is their discomfort with an old, straight, white man potentially succeeding where they thus far have not. But old, straight, white men are the ones who make up the Supreme Court — with apologies to Clarence Thomas who only votes like an old, straight, white man, and Ruth Bader Ginsberg to whom only 3 of the 4 criteria apply. But the unfortunate truth is that claims raised by old, straight, white men resonate with the Court, especially when they come from old, straight, white men who have been before them 55 times already as Olson has.
The gay community is not a monolith; we are filled with different insights and opinions, and we sometimes disagree. I can respect the Elite 9's strategic plans, but I do not believe it is appropriate for them to speak publicly against the efforts of others in our community. We have succeeded most when we have taken multiple approaches to the same problem, and I do not see how quashing alternative strategies will advance our mutual goals.
What do you think? Is Olson and Boies's case ill-timed, or should they continue with their litigation? Let me know in the comments.
Have a question, comment, or response? 4 people do.Senate to hold first ever hearing on anti-gay policies in immigration law
Senator Patrick Leahy has announced that the Senate Judiciary Committee will convene to discuss anti-gay policies in United States immigration law. The subject of the hearing is the Uniting American Families Act (UAFA), a bill designed to allow gay and lesbian US citizens to sponsor their partners for residency in the United States. The hearing is scheduled for next Wednesday, June 3rd, and represents the first time Congress has addressed the difficulties binational same-sex couples and their families face.
Immigration Equality, an organization committed to ending discrimination in immigration law, said the following:
The June 3rd hearing will not only be a milestone on our path to victory in Washington, but it will also be a watershed moment for ensuring that our families are part of the national conversation on immigration reform. This will be a powerful moment – and a significant step forward – in our work to educate lawmakers about our relationships and engage Congressional leaders on the issue [. . . .] The hearing is, quite simply, one of the most significant moments ever in our work to secure full equality for lesbian and gay binational couples.
An estimated 36,000 binational families are currently affected by United States policies that prohibit the sponsoring of ones partner in a same-sex relationship, according to Immigration Equality. At present, only 19 counties have laws permitting sponsorship for gay and lesbian couples.
The hearing will take place at 10:00am, and will be broadcast online on the Senate Judiciary Committee website.
Have a question, comment, or response? 2 people do.Bush v. Gore Lawyers Team Up to Challenge Proposition 8 Federally
Theodore Olson, former US Solicitor General and attorney who represented George Bush in Bush v. Gore, has teamed up with David Boies, who represented Al Gore in the same case, to challenge California's Proposition 8 in federal court. Referring to yesterday's ruling in Strauss v. Horton, the California case that upheld Proposition 8, Chad Griffin, Board President of the American Foundation for Equal Rights, said, "yesterday's ruling had an even more profound impact: it signaled to gay americans across this nation that we are not viewed as equal in the eyes of the law," adding, "this fight is not over, and we will win."
Though Strauss v. Horton was decided on the California constitution, this new claim will be resolved under the US Constitution, specifically under the Fourteenth Amendment's guarantees of due process and equal protection. Said Griffin, "we are taking this fight to the federal courts in order to protect the equal rights guarenteed to every american by the United States Constitution. Our courts exist to protect our rights when they are violated, and we are prepared to go all the way to the United States Supreme Court to find justice."
The announcement came as a surprise to many gay rights advocates who had expected that the next step would be to bring a second initiative repealing Proposition 8 to California voters in 2010 or 2012. Allen explained that they "are acting now because, as Dr. [Martin Luther] King said, 'justice delayed is justice denied.'" He added, "for even one couple to live through one more day of state-sanctioned second class citizenship is one day too many."
The suit was filed Friday, May 22 in the United States District Court, Northern District of California. The text of the complaint [pdf] is available on the American Foundation for Equal Rights website. The plaintiffs also requested a preliminary injunction [pdf] against Proposition 8, which, if granted, would immediately permit same-sex couples to marry in California. A hearing for the injunction is scheduled for July 2.
Boies, explaining why he joined with his former opponent, said:
This is not a question of Republican, Democrat, Conservative, Liberal - Ted [Olson] and I, as everyone knows, have been on different sides in important political issues - we come from different parts of the political spectrum. But I think Republicans, Democrats, Conservatives, and Liberals all recognize the importance of the equal rights guaranteed by the Constitution. This is not something that is a partisan issue; this is something that is a civil rights issue - a legal issue - and I think that is what has brought us together
The press release [pdf] and a video of the press conference can both be found at the American Foundation for Equal Rights.
Have a question, comment, or response? 1 person does.Legal Analysis of Strauss v. Horton: California’s Proposition 8 Challenge
Though the California Supreme Court in In re Marriage Cases found a fundamental right to marriage equality, it today upheld Proposition 8, the initiative restricting marriage to opposite-sex couples. The 18,000 gay and lesbian couples who wed before Proposition 8, however, are permitted to remain married.
The court rejected the argument advanced by marriage equality advocates that Proposition 8 was a Constitutional revision and not an amendment. The core of the argument was that a fundamental right cannot be taken away by a simple majority vote. The Human Rights Campaign explains the position using this analogy:
It helps to think about this in terms of renovating your home. If you want to paint your house, you just go to the store and select a color, then paint. But if you want to add on to, structurally change, or even demolish your house, you need to get a permit, and typically the work gets done by a licensed professional. Why? Because when you’re dealing with the bearing walls and the structure, you need to take care with what you’re doing, or the whole thing can tumble down. And people can get hurt.
It’s the same with a constitution — through the initiative process, you can embellish and clarify, but you can't move a bearing wall, not without a deliberative process.
The court limited its analysis only to whether Proposition 8 was a valid exercise of the initiative process. In doing so, it reached three main conclusions in the case:
- Only changes to the government’s structure constitute a revision;
- Proposition 8 did not abridge a group’s fundamental rights, but merely limited the word "marriage"; and
- Constitutional amendments do not have a retroactive effect, and therefore the previous marriages must be honored.
I will explore each of these conclusions individually. Quotations have all come from the Strauss v. Horton opinion unless otherwise cited. The full text of the opinion is available on the court's website [pdf].
Amendment versus Revision
The majority opinion offered very little justification for why Proposition 8 was a constitutional revision and not an amendment. On this point, the court merely says the following (internal citations omitted):
[T]he numerous past decisions of this court that have addressed this issue all have indicated that the type of measure that may constitute a revision of the California Constitution is one that makes "far reaching changes in the nature of our basic governmental plan", or, stated in slightly different terms, that "substantially alter[s] the basic governmental framework set forth in our Constitution."
The most troublesome case if adopting this reasoning is Raven v. Deukmeijan, which found that California Proposition 115 — a measure limiting the rights rights of certain criminal defendants — was an unconstitutional revision because it had the "far-reaching changes" the court refers to. But the court overlooks that Proposition 115's unconstitutionality was rooted in its robbing of the power to independently interpret constitutional provisions. The court’s interpretation of equal protection was as infringed by Proposition 115 as it is now by Proposition 8. The Strauss majority opinion is inadequate in specifying how Raven does not control the outcome here.
Rather than relying on — and, by extension, applying or distinguishing — precedential authority, the court engaged in formalistic chatter about the differences between a 'revision' and an 'amendment'. It failed to explain substantively why stripping a historically oppressed minority of their rights to due process, equal protection, and privacy did not amount to a qualitative change to the constitution, and in doing so, functionally ignored one of the plaintiffs' primary arguments. In place of justification, the court instead praises the state’s initiative system, and merely offers that "[i]f the process for amending the Constitution is to be restricted [. . .] this is an effort that the people themselves may undertake."
On this point, it appears as if the court decided the case not on legal grounds, but on political ones; it preferred not to be the body to overturn a popular vote even though the constitution and the court’s own precedent seems to suggest that it must.
Fundamental rights
Strauss v. Horton additionally seems inconsistent with In re Marriage Cases. Though the justices expressed during oral arguments that the playing field had shifted as a result of Proposition 8, such a finding does not support what the court ultimately concluded. Though the opinion offers that "Proposition 8 [does not] fundamentally alter the meaning and substance of state constitutional equal protection principles as articulated in [In re Marriage Cases]," the court seems to have forgotten what that case actually found. In it, Chief Justice George outlined the various ways in which domestic partnerships are unequal to marriage. Now, however, the court seems to conclude that the only difference is in the designations.
Proposition 8 did not alter the rights, benefits, or privileges of either marriage or domestic partnerships, so it does not hold that the playing field was shifted by the measure. Strauss's conclusion is wholly inconsistent with the tenets of Marriage Cases and its finding of substantive differences between marriage and domestic partnerships. The court has schizophrenically changed its position while pretending that Marriage Cases said something different than it actually did.
Justice Moreno’s dissent touches even more on this critical point:
Proposition 8 represents an unprecedented instance of a majority of voters altering the meaning of the equal protection clause by modifying the California Constitution to require deprivation of a fundamental right on the basis of a suspect classification. The majority’s holding is not just a defeat for same-sex couples, but for any minority group that seeks the protection of the equal protection clause of the California Constitution.
Retroactive Effect
While the court ultimately concluded that Proposition 8 would not retroactively cancel the marriages of the 18,000 couples legally wed before the measure’s enactment, I am slightly troubled by the reasoning in this area as well.
The text of the amendment plainly states that "[o]nly marriage between a man and a woman is valid or recognized in California." It suggests an intent to apply retroactively. However, by ruling that Proposition 8 is not retroactive, the court implicitly changed the wording and meaning of the amendment. Because such a retroactive application would violate the constitution, the court effected Proposition 8's constitutionality by altering its text. And while the court is empowered to do so, I do not believe its exercise of discretion was appropriate in this case.
Proposition 8 demands that same-sex marriages not be recognized in California. Contrary to the language, however, the court expressly requires that those 18,000 same-sex marriages be recognized. This leaves a host of unanswered questions, most notably the status of individuals who were married in other states before Proposition 8 and therefore denied marriage licenses in California. Will their marriages still be recognized? If so, the court deviates even further from the text of Proposition 8. If not, the court violates its own reasoning for recognizing those 18,000 marriages to begin with.
A more just solution would have been for the court to find the entirety of Proposition 8 unconstitutional, and provide leave for voters to attempt to amend the constitution a second time using text that does not apply its prohibition retroactively. By doing so, the new proposition would not run afoul of the constitution — at least in the court’s mind — and would not create the host of problems unresolved in this opinion.
I believe it goes without saying that I am deeply disappointed by the California Supreme Court’s ruling in Strauss v. Horton. I believe that its jurisprudence was sloppy, and that it failed to adequately address the plaintiff's most persuasive arguments or rely on any legal precedent. I cannot see the case as anything but a black mark on a state that has now fallen behind five others in equality for its citizens. I hope to see the day very soon when voters have the courage to do what the court did not.
On a personal note, your author planned to marry his partner in California in 2010. I can only hope that the law catches up by then.
Have a question, comment, or response? 3 people do.The marriages of 18,000 couples depend on tomorrow’s ruling
Tomorrow morning at 10:00am PDT, the California Supreme Court will issue their ruling in Strauss v. Horton, the case challenging Proposition 8. Now seems to be an appropriate time to highlight one of the 18,000 couples whose marriages may depend on tomorrow's outcome. Below are Jackson and Jacob Howa-Morrow, board members of Family Fairness who were featured in GLAD's Show America What Marriage Equality Looks Like photo album:
Jackson and Jacob were married June 26, 2008 in Palm Springs, California one week after the Supreme Court's decision in In re Marriage Cases that recognized marriage equality in the state. The two have been together for more than five years since meeting in High School. Tomorrow, their marriage will be on the line, but their relationship will not. No matter how the court rules, the fundamental nature of their union cannot be taken away. A simple vote will not prevent gays and lesbians from continuing to form lasting bonds, even if the law refuses to recognize them.
For Jackson, Jacob, and the 18,000 couples whose rights are at risk, I sincerely hope that marriage equality will return to California . Whatever the ruling, a legal analysis of the court's opinion will appear here tomorrow.
Have a question, comment, or response? Share your thoughts.