Same-Sex Marriage Comes to Washington D.C.
A bill legalizing same-sex marriage in Washington D.C. was signed into law by D.C. Mayor Adrian M. Fenty in December last year. D.C., being a federal district, has its laws reviewed by Congress before they go into effect. The period of time Congress had to review the same-sex marriage legislation expired yesterday, and so today was the first day marriage licenses were issued to gay and lesbian couples.
Washington D.C. also permits voters to block legislation pending a referendum on the issue, but anything that violates the D.C. Human Rights Act is exempted from this policy. The United States Supreme Court decided today in a three-page ruling that the same-sex marriage law was covered by the Human Rights Act exemption. Therefore, the Court refused to grant the petitioners' request to stay the new legislation.
While the life of legal same-sex marriage in Washington D.C. is dependent on the eventual referendum vote, marriage licenses are now available to D.C. couples.
[Via The Associated Press]
Have a question, comment, or response? 1 person does.This Week in Gay News Roundup: 11/1 - 11/6
The week that brought us the one year anniversary of California's Proposition 8 and the passage of Maine's Proposition 1 was certainly not a celebratory one. Here is what happened this week in LGBT law in case you missed it. For for up-to-the-minute news stories, follow FamilyFairness on Twitter.
- Proposition 1, the Maine bill allowing voters to overturn the legislature's earlier passage of marriage equality, passed with a margin of 53-47. Same-sex marriage was supposed to come to Maine on September 14 this year, but was put on hold pending the results of the veto vote. Maine was the fifth state to legalize gay marriage, and the first to successfully do so legislatively (California's legislature also twice passed a marriage bill that was vetoed by Governor Schwarzenegger).
- On the same election day, voters in Washington affirmed the expanded domestic partnership law that had been passed earlier this year. Referendum 71, the voter initiative seeking to affirm legislatively expanded domestic partnerships, was approved on a margin of 52-48. Washington retains its "everything but the name" version of marriage.
- Basic Rights Oregon announced that it was seeking to repeal the state's Constitutional ban on same-sex marriage in 2012. The amendment has existed since 2004, and was passed in response to Oregon's Multnomah County movement to give marriage licenses to same-sex couples. 3,000 licenses were issued until a judge found no right to gay marriage under Oregon laws and invalidated them all. Oregon has had expanded domestic partnership laws since 2007.
- A United States Department of Justice answered Massachusetts's petition to find the Defense of Marriage Act (DOMA) unconstitutional in that it deprives Massachusetts's married citizens of federal spousal benefits. While the DoJ agreed that DOMA was discriminatory and wanted it overturned, it said that "[t]here is, however, no fundamental right to marriage-based federal benefits." Massachusetts is the first state to issue a challenge to DOMA.
- Tena Callahan, the Texas trial court judge who ruled that her state's ban on same-sex marriage is unconstitutional explained her ruling. In reference to popular support in Texas for keeping gay marriage illegal, Callahan said: "My dad always used to tell me that a billion people can believe in a bad idea, and it's still a bad idea. And that man taught me to have the courage of my convictions and to do what's right." Her opinion is expected to be overruled on appeal.
I hope voters in California, Maine, and any other state in which the people try to turn back civil equality remember Callahan's words.
Have a question, comment, or response? Share your thoughts.Oregon, New Mexico, and D.C. Laws Good for Two Mothers, Bad for Two Fathers
In many states, same-sex couples face difficulties when trying to obtain parental rights. Because birth certificates often demand the names of the biological mother and father, the female partner of the birth mother or male partner of the sperm donor are frequently left out. However, some states are beginning to pass laws aimed at correcting this inequity.
Washington D.C. recently enacted the Domestic Partnership Judicial Determination of Parentage Act of 2009, a law which states that the domestic partner of a woman who gives birth to a child through artificial insemination is automatically the legal parent of the child. New Mexico is poised to enact a similar law in 2010, and Oregon granted the same rights to lesbian parents in an appellate case, Shineovich v. Kemp. These new laws are tremendous victories for lesbian mothers who previously needed second parent adoption agreements and the consent of the biological father to obtain joint custody. Unfortunately, none of these laws address the needs of gay fathers.
In each of the three states, there is no provision of law designed to recognize the partner of a sperm donor. Complicating matters, many states, including Washington D.C., have made surrogacy illegal. Even in states that permit such agreements, many require that the surrogate not be financially compensated, and permit her to claim parental rights if she changes her mind following the birth of the child. Even once these factors are overcome, the male partner who did not donate his sperm is still required to go through a second parent adoption agreement, which can be costly and time-consuming. However, if a second parent adoption is not performed, the male partner will be left with no parental rights.
Even more concerning, given the infancy of laws recognizing the female partner of a birth mother, it is likely that those of Oregon, New Mexico, and D.C. will become the template for other states wishing to pass similar laws to the exclusion of gay fathers.
It is important that states pass laws recognizing the female partner of birth mothers, but it is also important that these laws contain provisions recognizing the male partner of birth fathers as well. Until then, male same-sex couples will continue to face expensive and lengthy legal gymnastics when trying to conceive a child.
Have a question, comment, or response? Share your thoughts.The American Bar Association and DOMA
The American Bar Association (ABA), a professional association of attorneys, passed earlier this month a resolution calling for the repeal of Section 3 of the Defense of Marriage Act (DOMA), the section preventing same-sex couples who are married under state law from receiving federal benefits. The measure takes no position supporting or opposing marriage rights for same-sex couples, but seeks to "ensure that state decisions on whether to recognize such marriages are given deference under federal laws and programs".
Though the ABA is made of legal professionals, it has no ability to make, interpret, or enforce laws. In other words, its position is not binding on any state or federal courts, and does not necessarily reflect the modern flow of law. Professional organizations take stands on a number of social and political issues, but they do very little to actually change the minds of our opponents. For instance, though the Diagnostic and Statistical Manual of Mental Disorders (DSM) stopped classifying homosexuality as a mental disorder in 1973, many anti-gay organizations still cling to the belief that gay and lesbian individuals suffer from mental illness. Similarly, though the American Psychological Association has supported adoption by same-sex parents since 2004, these same organizations remain convinced that gay parents are somehow harmful to children. Commentary from experts in anthropology, psychology, law, and other disciplines does little to sway the opinions of those in anti-gay groups who would rather believe outdated propaganda than review the latest research.
However, the ABA, in deciding to take no position on marriage itself and instead focus on the issue of federalism (whether DOMA is an unacceptable usurpation of states' rights), has shaped the argument in such a way that even the anti-gay groups could not possibly disagree. Their reasoning is as follows:
Throughout our history, the federal government has looked to state and tribal law to determine who is married for purposes of these provisions. But in 1996, Congress abandoned this tradition of deference to the states by enacting the Defense of Marriage Act, Section 3 of which denies same-sex couples married in accordance with state law the legal protections, rights, and responsibilities accorded to other married persons under federal law.
The enactment of this provision was an unprecedented encroachment on state prerogatives in the field of marital and family law, overriding state determinations and profoundly altering the traditional distribution of authority between the federal government and the states in the field of family law. It has deprived thousands of lawfully married same-sex spouses of the range of federal protections they would otherwise receive, making it difficult for them to provide for one another and subjecting them to financial hardship and uncertainty.
Stated more simply, since the founding of the country, it has been up to each of the state governments to determine the rules of marriage, which the federal government would then respect. DOMA Section 3 was the first and only departure from this principle, and allowed the federal government to ignore the states' rules and enforce its own. This, according to the ABA, is impermissible.
It remains to be seen what the implications of ABA's stance on DOMA will be, and what, if any, effect it will have on GLAD's lawsuit challenging DOMA. However, the ABA at the very least has shown that gay rights matter not just to same-sex couples, but also to anyone who supports the state's right to sovereignty and freedom from unwarranted federal intrusion.
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.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.
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