Tuesday, December 21, 2010
N.Y. Marriage: Hey, You Never Know | News | The Advocate:
By Julie Bolcer
NY SENATE X390 | ADVOCATE.COM
There is work to be done in 2011, but marriage equality advocates are betting on improved odds with a Republican senate majority in New York State.
As 2011 dawns, observers identify three states with strong prospects for achieving marriage equality in the new year: Maryland, New York, and Rhode Island. Among the three, New York boasts the largest population by far, with nearly 20 million residents, and as the media capital of the country, the state guarantees to put an even more intense spotlight on marriage equality as landmark legal cases make their way to the U.S. Supreme Court.
“If some of the federal cases do wind up getting to the court in 2012, one of the main things we can all do to help shape good results in the Supreme Court down the road is to have more wins in 2011 in places like New York,” said Evan Wolfson, executive director of Freedom to Marry, one of many groups working on lobbying and public education campaigns in the state. “Everyone has a stake in winning.”
Last December, New York got closest to flirting with marriage equality, which ended in heartbreaking defeat at the hands of a Democratic-controlled senate elected with millions of dollars in gay support in 2008. Marriage equality lost by a vote of 38 to 24, with all 30 Republicans and eight Democrats, including some who seemed to hint otherwise, voting against the measure. The state assembly has already passed the bill three times, and polls indicate that solid majorities of New Yorkers support marriage equality.
Although Democrats could still dispute the November election results, Republicans expect to be in control with a 32-30 majority when the senate convenes in early 2011. Some observers view the new dynamic as a reason to feel pessimistic about marriage equality, but many more seem to think the leadership change, combined with evolving public attitudes and other favorable political developments, leaves advocates in their strongest position to date. Cautious optimism rules the day in New York, the state with the legislature repeatedly ranked as the nation’s most dysfunctional, and where the lottery motto once proclaimed, “Hey, you never know.”
First and foremost, despite the all but assured loss of the Democratic majority, the senate saw a net gain of two votes for marriage equality this election cycle, bringing the total number of anticipated yes votes to 26. Where many insiders believe the winning formula involves a bipartisan effort with anywhere from 27 to 29 Democrats and three to five Republicans in favor, the numeric victory of 32 votes now appears more within reach.
More important than the raw vote count, however, is the way the new votes were won. Groups like the Tim Gill–financed PAC Fight Back New York, the Empire State Pride Agenda, and the Human Rights Campaign demonstrated their ability to harness money and human power toward the defeat of incumbents who voted against marriage equality. Targeted efforts in November ended the careers of two long-term incumbents, a Republican from Queens and a Democrat from Buffalo. ............
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Posted by Michael at 10:45 PM
Tuesday, December 14, 2010
Gay rights take center stage in N.Y. - Ben Smith and Byron Tau - POLITICO.com: "- Sent using Google Toolbar"
Gay rights take center stage in N.Y.
By: Ben Smith and Byron Tau
December 14, 2010 04:36 AM EST
NEW YORK — Last spring, a low-profile Colorado millionaire, Tim Gill, and other gay donors financed a quiet wave of polling in a state Senate district in Buffalo and another in a Hispanic section of Queens.
The question: Would the news that a candidate “was being targeted by wealthy homosexual activists for his vote against gay marriage” make voters more or less likely to support him? Sizable majorities responded that they didn’t care much one way or the other.
The results gave courage to Gill and other top gay donors, producing a campaign that helped unseat three incumbent state legislators and opened a new phase in the politics of the gay rights movement that could have an even larger impact on the 2012 cycle. Under the New York model, well-funded gay rights groups will seek to make support for same-sex marriage as mandatory in blue America as allegiance to the Second Amendment is in red America — and to make opposition just as politically suicidal.
“We’re at a point of time where the national conversation around marriage in a lot of states has moved to a point where it’s no longer acceptable to not be there,” said Bill Smith, the deputy executive director of the Gill Action Fund, the donor’s political arm.
“This is the first time we’re going to name names and say, ‘We’re coming to get you because you’re against marriage equality,’” said Smith. “The point is, when you vote against marriage equality, there are consequences.”
The New York campaign marks a sea change in the politics of same-sex marriage, one driven by a political context that — in Democratic-leaning states, at least — has changed dramatically in the past decade. In New York, for instance, the past half-decade has seen nearly every statewide Democrat shift his or her position into supporting full marriage equality, as public support in the most recent state polls hovers near 50 percent. Gill, a publicity-shy Coloradan who made his money in software, drew national attention in 2007, when The Atlantic revealed http://www.theatlantic.com/magazine/archive/2007/03/they-won-8217-t-know-what-hit-them/5619/1/ that he’d led a successful, stealth effort to unseat dozens of anti-gay state legislators across the country.
“His surreptitious methods suggests how far they still have to go,” The Atlantic’s Josh Green noted at the time.
That has now changed.
Gay donors “came out of the closet with this,” said David Mixner, a veteran gay activist who called the New York campaign “transformational.”
With same-sex marriage battles ramping up this year in Maryland, Rhode Island and New York (again), the new strategy, said Smith, is a shift to offense.
“In the past, the [lesbian, gay, bisexual and transgender] community has been more carrot, less stick,” he said. “Now I would say, ‘Have stick, will travel.’”
This newly aggressive attitude comes from 2010 results that were truly striking: The group, despite playing in just three carefully targeted districts, spent more money in New York — $790,000 — than any other outside group. The money went to negative mailings, television ads and get-out-the-vote calls. By November, Fight Back New York had helped unseat all three incumbent legislators, something almost unheard of in Albany, and to defeat another Republican candidate who opposed same-sex marriage.
The effort does have its limits. The closely divided New York state Senate does not appear on the verge of passing marriage legislation, though even the Republican leader has said he’s willing to bring such a bill to the floor. “Look at the Senate,” said Brian Brown, executive director of the National Organization for Marriage. “It was a failure.”
But the lesson Gill and his allies sought to send in the 2010 cycle is a revolutionary one for gay politics: that there can be a higher cost to opposing same-sex marriage than to supporting it and that it’s one of those marginal issues — as the Club for Growth has made tax votes or the American Israel Public Affairs Committee has made Israel votes — that can end a legislator’s career.
The group’s breakthrough also had much to do with the tone of its campaign. Though Gill and company made no effort to hide their identity, the attacks they funded also had nothing to do with marriage. This was hard-edged politics, not an educational effort.
“Why would Sen. Bill Stachowski vote against mammograms for women?” asked a typical mailing, targeting a 28-year veteran Democratic legislator from the suburbs of Buffalo who had voted against the marriage bill. Another attacked Stachowski for collecting an unusual number of per diem reimbursements.
Stachowski’s Democratic allies tried to shut the group down. New York City Council Speaker Christine Quinn, a Democrat who is a lesbian, recalled receiving calls pleading with her to stop the campaign.
“That doesn’t happen because you’ve gone unnoticed,” she said, adding that she told callers they had “misdialed.”
Stachowski hit back in the primary’s closing week with a robocall http://www.archive.org/stream/StachowskiRobocall responding to “the innuendo spread by an out-of-state single-issue organization.”
“They choose to disguise their real agenda behind misleading vague mailings,” he said in the call. “Make no mistake: They care about a single issue. Gay marriage.” (Stachowski didn’t respond to POLITICO’s calls about the race.)
But it didn’t turn the tide, and Fight Back’s polling had led it to believe that the issue couldn’t hurt its candidate, Democrat Tim Kennedy, who ultimately won the primary contest.
“Our view was, ‘Come and get us, it’s not going to help you,’” said Valerie Berlin, whose firm, BerlinRosen, ran the group’s media campaigns.
A Queens Republican, Frank Padavan, also was hit by a pile of Fight Back mailings, attacking him for votes on health care regulations and for spending $3 million on his Senate office over four years. “Frank Padavan’s paper clips must be made of gold,” one mailing sneered.
Padavan, a 38-year incumbent, lost by about 3,000 votes. He told POLITICO he thought the group — which he called “insidious” — had played a role in his defeat.
“Their primary issue was same-sex marriage, [and] they never even mentioned it,” he said.
In another Queens district, the group says it sent 95,322 individual pieces of mail to 15,887 voters in the district of state Sen. Hiram Monserrate, who had voted against the marriage bill after saying he’d support it and who was also facing charges that he’d assaulted his girlfriend with a bottle.
One mailing showed him gazing menacingly through a broken window. “Criminals belong in prison, not in public office,” it said. (Monserrate lost badly, but, in fairness, the Fight Back New York attacks were only one factor. He was acquitted of the major charges in his domestic assault case but convicted on a minor one.)
Such opportunistic attacks are a standard feature of contemporary politics, but defeated legislators said they weren’t fair play.
“For a group whose main concern is marriage equality, they didn’t run a single campaign about marriage quality,” said Jack Quinn, a former assemblyman whom Fight Back New York helped Kennedy defeat in a general election in the Buffalo district that Stachowski had represented. Quinn said he had no hard feelings. “I understand where they’re coming from. This is no different than a Second Amendment group.”
The National Organization for Marriage’s Brown and other critics say Fight Back New York showed its weakness by campaigning on issues other than gay marriage and that the legislators it helped elect may run away from the issue.
But Kennedy, the candidate for whom it played the biggest role, said that while the issue wasn’t at the center of his campaign, he won’t run away from it.
“My support for marriage equality legislation ... was up in the forefront from the very beginning of my primary campaign and in the general campaign. I’m looking forward to voting on legislation so that people can be open and safe in their home and their community,” he said. “I believe that my election was one seat that is now a ‘yes’ vote for marriage equality.”
Posted by Michael at 8:18 AM
Thursday, December 9, 2010
With Democratic gains in state Senate, Maryland poised to approve same-sex marriage: "- Sent using Google Toolbar"
A majority of senators on a key committee in Maryland now favor legalizing same-sex marriage, making it increasingly likely that the state will join five others and the District in allowing such unions.
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STATE SENATE: Two Sides Testify on Same-Sex Marriage
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Membership changes on the panel, where same-sex marriage bills have previously died, are among a handful of shifts produced by last month's elections. Collectively, they appear to have tipped the balance on the most high-profile social issue the General Assembly will consider during its upcoming 90-day session.
Republican gains Nov. 2 in other state legislatures are expected to lead to more conservative social policies. But Democrats in Maryland bucked the trend, adding two seats to their majority in the Senate. Moreover, when the General Assembly convenes next month, a few senators who lost primaries will be replaced by Democrats more supportive of same-sex unions.
"This has truly been a transformative election on this issue," said Sen. Richard S. Madaleno Jr. (D-Montgomery), an openly gay lawmaker who has sponsored same-sex marriage legislation and plans to push for passage this session. "I could not have hoped for a better result. You can see a real path to enacting this legislation."
Despite Maryland's reputation as a liberal state, lawmakers have been slower to embrace same-sex unions than their colleagues in some other blue states, in part because of the strong opposition of the Catholic and black churches.
The legislation would remove a long-standing requirement in Maryland law that recognizes only marriages between a man and a woman.
Leaders of the House of Delegates, traditionally the more liberal chamber on social policy, said they have the votes to pass the measure. And Gov. Martin O'Malley (D) has said he would sign such a bill, although he has previously supported the alternative of civil unions.
Some potential hurdles remain - both inside and outside the State House - before Maryland can become the latest state to allow same-sex marriage since Massachusetts began doing so in 2004 and the District followed suit in March.
If a same-sex marriage bill is approved, advocates on both sides say they expect opponents to take advantage of a provision in Maryland that allows residents to petition recently passed laws to the ballot. A successful signature drive would put the measure on hold, pending the results of a statewide referendum in November 2012.
Support for ballot measures can be difficult to gauge this far out, but a Washington Post poll conducted in May found that 46 percent of Marylanders favored legalizing same-sex marriage, 44 percent opposed it and 10 percent had no opinion.
Those results reflected rapidly evolving attitudes on an issue that tends to break along generational lines. In late 2007, an identical Post poll question found 44 percent in favor overall and 51 percent opposed in Maryland.
In the nearer term, opponents in the Senate are expected to mount a filibuster to block the legislation. That would require a super-majority to move forward - including support from some more conservative Democrats opposed to the measure but willing to allow an up-or-down vote.
click link for full article
Posted by Michael at 9:42 AM
Tuesday, December 7, 2010
What are some reasons society should support same-sex marriage? « Family Scholars: "- Sent using Google Toolbar"
Barry Deutsch 12.03.2010, 8:19 PM
In the comments of Family Scholars Blog, Kisarita wrote:
The only reason to accord a unique status to a sexual relationship is because of the procreative aspect.
I disagree. Quoting The Marriage Movement Statement of Principles:
What is Marriage? Six Dimensions.
Marriage has at least six important dimensions:
1) Marriage is a legal contract. Marriage creates formal and legal obligations and rights between spouses. Public recognition of, and protection for, this marriage contract, whether in tax or divorce law, helps married couples succeed in creating a permanent bond.
2) Marriage is a financial partnership. In marriage, “my money” typically becomes “our money,” and this sharing of property creates its own kind of intimacy and mutuality that is difficult to achieve outside a legal marriage. Only lovers who make this legal vow typically acquire the confidence that allows them to share their bank accounts as well as their bed.
3) Marriage is a sacred promise. Even people who are not part of any organized religion usually see marriage as a sacred union, with profound spiritual implications. “Whether it is the deep metaphors of covenant as in Judaism, Islam and Reformed Protestantism; sacrament as in Roman Catholicism or Eastern Orthodoxy; the yin and yang of Confucianism; the quasi-sacramentalism of Hinduism; or the mysticism often associated with allegedly modern romantic love,” Don Browning writes, “humans tend to find values in marriage that call them beyond the mundane and everyday.” Religious faith helps to deepen the meaning of marriage and provides a unique fountainhead of inspiration and support when troubles arise.
4) Marriage is a sexual union. Marriage elevates sexual desire into a permanent sign of love, turning two lovers into “one flesh.” Marriage indicates not only a private but a public understanding that two people have withdrawn themselves from the sexual marketplace. This public vow of fidelity also makes men and women more likely to be faithful. Research shows, for example, that cohabiting men are four times more likely to cheat than husbands, and cohabiting women are eight times more likely to cheat than spouses.
5) Marriage is a personal bond. Marriage is the ultimate avowal of caring, committed, and collaborative love. Marriage incorporates our desire to know and be known by another human being; it represents our dearest hopes that love is not a temporary condition, that we are not condemned to drift in and out of shifting relationships forever.
6) Marriage is a family-making bond. Marriage takes two biological strangers and turns them into each other’s next-of-kin. As a procreative bond, marriage also includes a commitment to care for any children produced by the married couple. It reinforces fathers’ (and fathers’ kin’s) obligations to acknowledge children as part of the family system.
Married adults live longer, healthier, happier, and more affluent lives than adults who don’t marry or don’t stay married. This phenomenon is not simply an artifact of selection; marriage itself makes adults better off, by offering them greater emotional and financial support, wider and more integrated social networks, important economies of scale, and productive boosts in earnings, parenting capacity, and life management.
There are clearly many justifications for marriage in addition to (not instead of) the procreative aspects.
Opponents of same-sex marriage tend to argue for a single-dimensional view of marriage — marriage is about procreation, full stop — but that argument doesn’t withstand much examination. (As David Blankenhorn has written, marriage is a “multi-dimensional, multi-purpose institution. It is not true therefore to say that the state’s only interest in marriage is marriage’s generative role. Instead, marriage’s role as a pro-child social institution is only one, albeit the most important, of these legitimate state interests.”)
In her book The Case For Marriage, Maggie Gallagher (and her co-author Linda Waite) dismissed the idea that “marriage is mostly about children” as a “myth.”
Of course, all of these purposes for marriage apply to same-sex couples as they do to opposite-sex couples.
Posted by Michael at 5:01 PM
Sunday, December 5, 2010
Prop 8 Argument Day FAQ - Poliglot: "- Sent using Google Toolbar"
The topic of same-sex marriage -- particularly, marriage in California -- has popped into the public's eye with regularity over the past two-and-a-half years. On Monday -- with the U.S. Ninth Circuit Court of Appeals hearing the oral arguments in Perry v. Schwarzenegger, the challenge to the state's Proposition 8 -- the attention will again turn to the West Coast and marriage.
So, what do you need to know to get through Monday?
Here it is: The top 10 questions for Monday's oral arguments.
1. What is the background here?
In May 2008, the California Supreme Court ruled, in a 4-3 decision, that California's Constitution prohibited the state from discriminating against same-sex couples in the state's marriage laws. By mid-June, couples began marrying -- although the future of same-sex marriage in the state already was headed to the November ballot.
Then, after about 18,000 same-sex couples had married in the state, on Nov. 4, 2008, the voters of the state of California elected Barack Obama president -- but also voted to pass Proposition 8, which amended California's Constitution to add, "Only marriage between a man and a woman is valid or recognized in California." This created an upending of an otherwise joyous night for progressives, which was borne out by protests across the state -- and country -- in the weeks that followed.
With the vote, though, the marriages came to a halt. An attempt to have the initiative thrown out under state law, brought by the organizations who had supported the original lawsuit, was unsuccessful. The May 2009 ruling of the California Supreme Court upholding the amendment as valid, however, galvanized, once again, opponents of Proposition 8.
2. What's so special about this case?
The same day that the California Supreme Court ruled, word came that, very quietly, the law firm of Gibson Dunn & Crutcher LLP, with help from the law firm of Boies Schiller & Flexner LLP, had a few days earlier filed the lawsuit in federal court that all of the LGBT legal organizations had been avoiding: a direct, federal challenge to a state ban on marriage equality.
The challenge was not just any challenge, of course. It was not only that two of the leading national law firms were serving as the lawyers for plaintiffs Kristin Perry, Sandra Stier, Paul Katami and Jeffrey Zarrillo -- because big law firms had been helping the LGBT legal groups with cases for years. It was, instead, the lead lawyers, Ted Olson and David Boies, who made the headlines. The sparring partners in Bush v. Gore had come together to press the case for marriage equality.
The organization formed to bring the challenge -- the American Foundation for Equal Rights -- was an unknown entity until the day of the filing, and its leader, Chad Griffin, had -- also quietly -- pulled together the support of his PR firm, the Olson/Boies team and some Hollywood heavyweights gay and straight, including Milk screenwriter Dustin Lance Black and director Rob Reiner.
The headlines continued, but the case also moved forward quickly, and a three-week trial was held in January 2010, with closing arguments held in June.
3. So, what happened?
An Aug. 4, U.S. District Court Judge Vaughn Walker held that Proposition 8 violated the federal constitutional guarantees of equal protection of the laws and due process of law, which protects "fundamental" rights -- including marriage.
Regarding equal protection, he found that "Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license." He concluded, "Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional."
Regarding due process, he noted that marriage has been considered by the U.S. Supreme Court to be a fundamental right that he found was defined as "the right to choose a spouse and, with mutual consent, join together and form a household." He went on to discuss past marriage restrictions, including racial ones, then concluded, "Plaintiffs do not seek recognition of a new right. To characterize plaintiffs' objective as 'the right to same-sex marriage' would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy -- namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages."
Concluding that Proposition 8 is unconstitutional on both of those grounds, he also later refused to stay his ruling -- or keep it from being enforced -- while the proponents of the measure attempted to appeal his decision. He did, however, give them a brief period of time to seek a stay from the Ninth Circuit, which the Ninth Circuit granted. The parties and other groups and individuals interested in the case filed briefs giving the court their views, and argument was scheduled for Monday, Dec. 6, 2010.
ca9.png4. And, Monday is?
At 10 a.m. Pacific Time on Monday (1 p.m. on the East Coast) the three Ninth Circuit judges who were randomly assigned to hear the case will conduct two hours of arguments -- to be televised live on C-SPAN and elsewhere -- about the issues in the case.
The judges themselves have been noteworthy, with the proponents asking for Judge Stephen Reinhardt, a Carter appointee known for being one of the most unabashedly liberal of judges in the appellate courts, to recuse himself because of his wife's leadership of the ACLU of California and involvement in discussions about whether to bring the case -- a request he quickly turned down. The other two judges are Judge Michael Daly Hawkins, President Clinton's first nominee to the Ninth Circuit, and Judge N. Randy Smith, a conservative Bush appointee who attended Brigham Young University for both undergraduate and law school education and previously served as the head of the Idaho Republican Party.
The first hour of oral arguments, in which the judges will ask the attorneys questions at will, is to be focused on the issue of standing and will give half of the proponents' time to the lawyers for Imperial County to argue that they should have been allowed to intervene in the case to defend Proposition 8. The second hour is to be focused on the merits of the case, with the attorney representing San Francisco County to be given 10 minutes to argue against the constitutionality of the measure along with the AFER team.
5. What about the proponents' standing?
Because the parties who have to follow Walker's ruling -- the state defendants -- chose not to appeal the trial court's ruling, previous U.S. Supreme Court cases throw into doubt whether the proponents have standing -- one of a series of doctrines that relate to the requirement that federal courts can only hear cases involving a "case or controversy," or actual dispute.
The proponents will argue that they have standing because California courts have recognized that initiative proponents do have the ability to defend challenges to the initiative in state court. Additionally, they will be arguing that the reason why they should be found to have standing is especially clear here, where there would be no ability for higher court review of Walker's ruling if initiative proponents are denied standing. The plaintiffs, meanwhile, will argue that the state cases are inapplicable to the federal "case or controversy" requirement and that, under the federal law, the proponents simply do not have the ability to appeal a decision like the trial court's in this case.
6. What is the deal with Imperial County?
Imperial County is located in the far southeast corner of California, and it is represented in this case by lawyers from Advocates for Faith and Freedom -- which describes itself as "a non-profit law firm dedicated to protecting religious liberty in the courts." Walker denied Imperial County's request to intervene at the trial level, and the plaintiffs will argue before the Ninth Circuit that Walker's denial was proper because -- as with the proponents -- Imperial County and its officials "have no duties related to the enforcement of California's marriage laws."
Imperial County, however, will argue that they are, in fact, responsible for reviewing and granting or denying marriage licenses and are a proper party to the lawsuit who should have been allowed to intervene because their interests were not otherwise being met.
7. What are the merits of the case?
The merits of the case, as discussed in terms of Walker's ruling, are the equal protection and due process questions. Look for the proponents to attack Walker's findings of fact and conclusions about the state's interests in limiting marriage to opposite-sex couples and for the plaintiffs to focus in on Walker's conclusion that there is no rational basis for Proposition 8 and that it is instead "based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women."
Among the interesting questions to be tossed around will be the level of scrutiny that classifications based on sexual orientation should receive. The plaintiffs argued at trial that a heightened scrutiny should apply; the proponents argued that rational basis would suffice. Although Walker found that "strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation," he also found that Proposition 8 failed even to meet the lowest level of scrutiny. If the Ninth Circuit decides that strict scrutiny should apply, then it would be more difficult to uphold Proposition 8 as constitutional because it would have to be proven to serve a "compelling" governmental objective and be the "least restrictive means" of achieving that objective. If a rational basis would suffice, then the amendment merely needs to be found to be "rationally related" to a "legitimate" government interest.
Finally, as to due process, the primary question is the definition of the "fundamental right" at issue. If the right is "marriage" being sought, then same-sex marriage prohibitions are more likely to be seen as an unconstitutional exclusion. If the right being sought is "same-sex marriage," then that is a new right being sought, which is difficult to secure under prior U.S. Supreme Court rulings.
8. What could the court rule?
With no specified timeline, the court will issue its ruling -- although the fact that the court gave the case expedited consideration as to briefing and the scheduling of the oral arguments suggests it is cognizant of the desire for a quick resolution of the case.
If the court holds that some party has standing to appeal Walker's ruling, it could affirm the trial court and say that Proposition 8 is unconstitutional or it could reverse the trial court and say that Proposition 8 is constitutional. At that point, the ruling would have "precedent" -- meaning the judges would need to adhere to it -- in all of the trial courts in the Ninth Circuit.
The court also could find that neither the proponents nor Imperial County have standing and dismiss the appeal. This would leave Walker's ruling in place and invalidate Proposition 8, but would limit the ruling only to his order and provide no appellate precedent that would apply to the entire Ninth Circuit.
To take the least likely position, it could dismiss the appeal and also hold that no standing existed at trial, which could lead the appellate court to vacate Walker's judgment and, effectively, erase the entire case. This would mean that Proposition 8 would remain in effect. Because the state of California was enforcing Proposition 8 at the time of trial -- and still now -- it would be extraordinary for the court to take this route.
9. What happens after that?
Once the three-judge panel issues its decision, the party or parties unsuccessful on appeal -- on standing or on the merits -- could seek a review of the decision by an en banc panel of the court. Usually, en banc appeals involve all of the active judges on the court, but the Ninth Circuit has a unique ''limited en banc'' procedure in which all the active Ninth Circuit judges vote whether en banc consideration will be given. If a majority supports en banc consideration, then the chief judge of the circuit, Judge Alex Kozinski, and 10 randomly selected appellate judges from the circuit will hear the en banc appeal.
After that, theoretically, a party dissatisfied with an en banc ruling of the Ninth Circuit can ask for the full Ninth Circuit to review the en banc panel's decision, but the court has not agreed to do so since adopting the "limited en banc" procedure.
After en banc consideration or in lieu of even attempting it, the unsuccessful party can petition the U.S. Supreme Court to hear the case. At that point, the parties submit written arguments explaining to the court why the justices should or should not hear the case. Then, if four of the nine justices agree to hear the case, another round of briefing occurs, with the parties and outside organizations and individuals arguing the merits of the case to the justices. Oral arguments are then set and held at the Supreme Court, and some time later a decision is handed down.
10. Outside of California, does this matter?
Yes, but it is not clear yet how much and whether it will matter only as to the public discussion that the case has raised or as to the law. As discussed above, a decision on the merits by the Ninth Circuit could have enormous impact depending on the scope of the ruling. Because of the breadth of the circuit, marriage laws from Hawaii to Idaho to Alaska could be impacted.
Moreover, if a party eventually appeals the case to the Supreme Court and the court takes the case, the precedent of that decision, of course, would apply across the country. If a decision on the merits by the Supreme Court is as broad as Walker's trial court decision, then laws from the federal Defense of Marriage Act to states' laws or amendments prohibiting same-sex marriage could be in question.
But, no matter the happenings on Monday, that day is a ways off.
Posted by Michael at 11:19 PM
Thursday, December 2, 2010
NY Marriage Equality On Hold for Now :: EDGE Miami: "- Sent using Google Toolbar"
Outgoing New York Gov. David Paterson has decided not to press for marriage equality legislation from state lawmakers before he leaves office.
Paterson had gauged whether state lawmakers might consider granting New York’s gay and lesbian families marriage parity during a lame duck session, but upon hearing that such legislation wouldn’t stand a chance, he decided to leave the issue alone.
The New York Assembly had approved marriage equality legislation four times before the State Senate took up the issue a year ago and voted it down. State Sen. Thomas K. Duane had indicated that there was adequate support to get the measure passed, but in the end, the state’s senators rebuffed the measure, voting 38-24 to reject the bill on Dec. 2, 2009.
The outcome capped a drawn-out and dramatic series of maneuvers and political shakeups. Marriage supporters slammed the final vote, with Manhattan Borough President Scott Stringer--himself heterosexual--noting at the time, "Only the State Senate could snatch defeat from the jaws of pride and progress."
Added Stringer, "We will keep fighting, and in the end, equal justice will prevail."
But not quite yet. A Dec. 1 New York Times article said that Paterson had left marriage off the table when the state’s lawmakers re-convened on Nov. 30 for a final session before the start of the new year. The state Senate, which never took up the issue when GOP lawmakers were in charge, will most likely revert to Republican control, the article said.
Paterson blamed "lobbyists" for the bill’s failure to pass last year, remarking during a Dec. 1 appearance at Manhattan’s Yale Club that the timing had not been right, and that proponents had pushed too soon for marriage parity.
Even so, the outgoing governor said that he had taken measure of the political climate to see whether it would be constructive to "take one more shot at marriage equality," the article reported, before going on to say that at least one senior policymaker told the Times that he had not heard about Paterson polling lawmakers to judge the level of support a bill might receive a year after the senate rejected it.
Even the bill’s champions saw little point in revisiting the issue right now. "What’s not clear is why today is different than any other day," Democratic Assemblyman Daniel J. O’Donnell, who had spearheaded last year’s repeated passage in the Assembly, told the publication.
Paterson had a simply remedy for the problem. "Get rid of the lobbyists," he told his audience at the Yale Club, going in to say that pro-marriage activists "get enthralled by being involved in the whole legislative process" to the detriment of their own cause. "The lobbyists literally forced the vote," Paterson opined.
"It was a frustrating, difficult and emotional time for lots of people," the executive director of the Empire State Pride Agenda, Ross D. Levi, told the media. "We know it was for Governor Paterson, as well, because of his deep personal commitment to this issue."
That commitment is still strong; said Paterson, "It’s probably the one issue that I will keep replaying in my mind because I really wanted it to happen on my watch as governor. But I will come back--free of charge, by the way--to lobby the next time it comes up."
Marriage parity for all New York families is almost certain to be an issue once newly elected lawmakers join the ranks of the State Senate and the Assembly. Gov.-Elect Andrew Cuomo embraced the cause of GLBT equality from the get go, indicating that if a marriage equality bill is sent to him by lawmakers, he will approve it. In his victory speech, Cuomo touched upon the issue briefly, saying, "Yes, we are gay and we are straight. But we are one state because we are New York."
"It’s really exciting," said open lesbian Christine Quinn, who serves a speaker for the New York city council. "To have a governor who not just supports marriage equality but says he is going to sign a marriage equality bill sends a message to the legislators that they need to get the job done and get it done soon."
Other lawmakers have indicated that the issue is in for a fresh look. Though the marriage bill did not attract a single Republican supporter in the State Senate last year, GOP State Sen. Dean Skelos pledged that the chamber would vote on marriage equality if Republicans regained control of the New York Senate.
Activists--lobbyists among them--are hardly going to abandon the effort to usher marriage. GLBT equality group Fight Back New York, which was formed in the aftermath of last year’s State Senate vote, endorsed Cuomo in last month’s elections, and rallied voters to defeat anti-gay State Sen. Frank Padavan.
Text at the Fight Back New York site read, "Padavan has helped lead the charge for the passing an anti-gay so-called ’defense of marriage act’ in New York State. He doesn’t even believe that same-sex couples deserve civil unions."
Fight Back New York had also targeted other state lawmakers who had voted against the bill, particularly legislators who had previously vowed their support but then deserted the cause of marriage equality and cast their votes against the bill. One political figure who did just that and felt Fight Back New York’s wrath was Hiram Monserrate, who was tossed out of the State Senate, only to run for his old seat in the special election to replace him.
Fight Back New York was not alone in seeking to ensure that Monserrate failed in his bid to regain office. "Hiram Monserrate is one of the 38 State Senators who voted no on the marriage equality bill on December 2, 2009," text at the Web site of Empire State Pride Agenda, a New York-based GLBT equality organization, read. "Not only did he vote no, but he broke his previous commitment to support marriage equality when it came to the Senate floor for a vote," the text continued.
"Monserrate was convicted last year of assaulting his girlfriend, which led to his recent expulsion from the State Senate. But now he’s running to try to get back into the Senate," the text added. "Our candidate in the March 16 Special Election is popular Assembly member Jose Peralta, who has consistently voted in favor of marriage equality, transgender civil rights and other important LGBT issues." The site went on to encourage readers to donate, declaring, "This is our first chance to replace an anti-LGBT Senator with a strong, pro-LGBT Senator. Every dollar that you contribute will go to making sure this shameful legislator does not return to the State Senate.
"If you’re mad about the December 2 marriage vote, now is the time to get even," the text read. "Join us in taking out Hiram Monserrate and electing Jose Peralta." Though it’s unclear to what extent Monserrate’s change of position on marriage affected the outcome, he lost to Peralta in the special election.
Posted by Michael at 6:07 PM
Tuesday, November 30, 2010
Clout St: 'Historic' civil unions measure passes Illinois House: "- Sent using Google Toolbar
SPRINGFIELD --- Civil unions would be allowed in Illinois beginning next year for same-sex couples under legislation the House passed today.
The 61-52 vote followed spirited debate on whether the action would be tantamount to legalizing gay marriage.
Sponsoring Rep. Greg Harris, D-Chicago, called on his colleagues to join the arc of history that has gradually eliminated discrimination on social issues ranging from allowing women the right to vote to knocking down numerous social and legal barriers standing in the way of giving rights to people of color.
“We have a chance today to make Illinois a more fair state, a more just state, and a state which treats all of its citizens equally under the law,” Harris said. "We have a chance here, as leaders have had in previous generations, to correct injustice and to move us down the path toward liberty."
The measure now goes to the Senate, where a similar bill passed in committee today.
Rick Garcia, political director of the gay rights organization Equality Illinois, hailed the bill’s passage as historic.
“I think it was telling that as the bill was being discussed the governor came out onto the floor and got a standing ovation,” Garcia said. “We’ve taken a huge step toward fairness. We are thrilled.”
Posted by Michael at 11:14 PM
Box Turtle Bulletin » Marriage update – around the states: "- Sent using Google Toolbar"
November 29th, 2010
The 2010 election has changed the dynamic in a few states and presents both opportunities and challenges for supporters of marriage equality. Here are how I see the current landscape:
Hawaii – Neil Abercrombie, the newly elected governor of Hawaii, is a strong advocate for civil unions. Earlier this year the legislature overwhelmingly approved a civil unions bill and such a bill is likely to be presented again.
Illinois – it is expected that the state legislature will vote this week on a civil unions bill during a lame-duck session. There is adequate support in the Senate, but the House vote is uncertain. Should it pass, Governor Pat Quinn, a strong supporter who was just reelected, will sign the bill. This bill seems to be taking on the impression of a Catholic v. Protestant fight, with NOM and the Catholic Bishop serving as the public face in opposition to civil unions, while a great many Protestants ministers have endorsed the bill.
Minnesota – Mark Dayton holds a lead in the governor’s election over anti-gay Tom Emmer, but the election will not be determined until a recount is completed. Republicans took control of both houses of legislature, so no pro-equality bills are expected; but if Dayton is confirmed there also will be no anti-equality bills either.
The one concern might be that Republicans could try and put a constitutional amendment on the 2012 ballot that bans both marriage and civil unions. While that may seem like a great idea to anti-gay activists, Emmer ran a homophobic campaign designed to appeal to those who oppose marriage equality and it does not appear to have been successful. I think it likely that an anti-marriage amendment would pass, but anti-civil unions may be too much, and it is becoming increasingly more risky for anti-gays to make such assumptions. Additionally, attitudes can change dramatically in the next two years.
Meanwhile, three couples are suing the state claiming that laws restricting marriage to opposite-sex couples violate the state constitution. Today, a judge rejected the request of the Minnesota Family Counsel to intervene:
“The Council’s alleged injuries would occur solely due to its sincerely-held belief that principles rooted in its interpretations of religious texts are best for the well-being of children and families, and that marriage only between one man and one woman accords with these principles,” wrote Minnesota Fourth District Court Judge Mary S. DuFrense (PDF). “The Court certainly understands that the Council feels strongly about the social issue of same-sex marriage. Strong feelings, however, do not establish a legal interest in a lawsuit.”
Iowa – after three Supreme Court Justices were denied confirmation, anti-gay activists were celebrating. But as the Senate majority leader has committed to blocking any changes to the Iowa constitution, it is unlikely that marriage will be reversed.
New Hampshire – NOM is crowing that anti-marriage activists have taken over both houses. However, my analysis suggests that any reversal of marriage equality is unlikely. While Republicans took a veto-proof majority, a significant number have already voted against any repeal of the law.
Maine – Republican Paul LePage was elected governor, effectively eliminating any forward movement on marriage equality. However LePage supports the current domestic partnership laws so things will remain status quo for a while.
New York – this one is a big question mark. Incoming Governor Cuomo has promised to get marriage legalized. And after the last vote, state legislators have discovered that “things as they are” may well be the most dangerous position to hold; gay activists refused to play the “any Democrat is better than a Republican” game and set their sites on defeating anti-marriage votes.
Going by last year’s vote count, the current best case scenario is that we are three votes shy of what we need (there are still some undecided elections). However, this time our side is taking to the airwaves to drum up public support, and polls show that New Yorkers support marriage equality. What was a party-line vote last year may well be viewed this year in terms of tolerance and New York values and there may be an entirely different dynamic.
Rhode Island – Former-Republican Lincoln Chaffee, who ran as an Independent, beat both the Democrat and the Republican candidates to take governor of the tiny state. And one of his first actions was to inform NOM that their opinion on marriage was not of any value to him. Rhode Islanders support marriage equality, and with Chaffee’s backing there is a good chance that RI will be the next marriage state.
Maryland – another contender for next marriage state, Maryland did not suffer party reversal. A plurality of voter support marriage equality, and gay State Sen. Richard Madaleno is guardedly optimistic that marriage will be voted in, perhaps as early as January.
His optimism stems from a number of developments on Election Day 2010, some of which ran absolutely counter to national trends. In the Maryland Senate, Democrats actually expanded their majority to a 35-12 advantage over Republicans. And some Democrats who lost their seats did so in primary fights with more progressive challengers, many of whom vowed to be even stronger champions for marriage equality.
And, of course, all of the above could be impacted by Perry v. Schwarzenegger should the courts find that marriage laws which restrict gay people from participation are contrary to the Due Process or Equal Protections clauses of the 14th Amendement
Posted by Michael at 10:23 AM
Thursday, November 18, 2010
French court to examine legality of same-sex marriage ban - The Times of India:
PARIS: France's highest court of appeal, the Court of Cassation, on Tuesday asked the Constitutional Council to rule on whether gay marriage should remain illegal.
The request came after individuals in August asked a court in the northeastern city of Reims to look at the legality of articles of the civil code, France's law book, which ban same-sex marriages.
The unnamed individuals said the articles were unconstitutional because they "limit the personal freedom of a French citizen to marry someone of the same sex".
The Court of Cassation said that gay marriage "is today the subject of a broad debate within society, notably because of the evolution of morals and the recognition of same-sex marriages by the laws of several foreign countries".
The Constitutional Court will now have to rule on the articles' legality.
Lawyer Caroline Mecary, who has dealt with several cases involving homosexual partnerships, welcomed the move.
"This decision by the Court of Cassation is good news for the three million lesbians and gays who cannot get married," she said.
"Soon perhaps France will respect the principle of equality by opening marriage up to people of the same sex, as eight European countries have already done," she said.
In Europe, same-sex marriages are possible to different degrees in Belgium, Britain, Iceland, the Netherlands, Norway, Portugal, Spain, and Sweden.
Read more: French court to examine legality of same-sex marriage ban - The Times of India http://timesofindia.indiatimes.com/world/europe/French-court-to-examine-legality-of-same-sex-marriage-ban/articleshow/6938061.cms#ixzz15eEfd740
Posted by Michael at 10:24 AM
Gay City News > Next Steps, in Albany and Washington:
BY PAUL SCHINDLER
FROM THE EDITOR: Marriage equality advocacy groups showed something of a tin ear as they celebrated their success at converting State Senate seats from the “no” column to the “yes” list this year.
To be sure, five districts represented by senators who voted no last December — including three in Queens — have now elected representatives committed to supporting our right to marry. That is to the credit of the Empire State Pride Agenda, Marriage Equality New York, the Human Rights Campaign, and Fight Back NY.
It is also true that those pro-equality senators who lost their reelection bids were undone by factors wholly separate from their advocacy for gay marriage. The problem is that the number of such losses is at least one, perhaps as many as four, and in all likelihood three. Which means that the number of public Senate supporters of marriage equality will have risen by only two, to 26, in a 62-member chamber. The path to success on gay marriage in New York remains fraught, especially since, under the likely scenario, Republicans would retake the Senate. Only in the past month has the Senate GOP leader, Dean Skelos, signaled a willingness to consider allowing a second vote on the issue.
In Washington, the situation is considerably more depressing. A House of Representatives led by John Boehner holds out no realistic hope for progress on our issues — even as basic as an employment nondiscrimination measure — which stymied the current large Democratic majorities in Congress. Only the still-breathing Don’t Ask, Don’t Tell repeal effort, which could yet be approved by the lame duck Senate, offers opportunity for progress.
In this climate, there are several bottom lines our community must insist on.
In Washington, it is wholly unacceptable for President Barack Obama or Majority Leader Harry Reid to settle for anything less than passage of the Don’t Ask, Don’t Tell language already approved by the House in the Pentagon spending bill. That language was already a compromise — laying out conditions that must still be met before the policy would actually be phased out and offering no guarantee that gay and lesbian soldiers allowed to serve would enjoy nondiscrimination protection on the job.
A number of Republicans said they couldn’t vote on repeal because a special Pentagon task force studying implementation issues had not yet issued its report. That document will be available no later than December 1. There are no excuses left for anyone to dally. If this policy is not repealed, Obama, our community’s “fierce advocate,” will face LGBT voters in 2012 with only a hate crimes law and a grab bag of executive orders and actions to his credit. In a contest that will surely be hard fought, the president ought to know how risky neglecting such a key Democratic constituency is.
In Albany, we will need an all-hands strategy — that includes our friends among the Senate Democrats, those among us who are Log Cabin Republicans, and our new governor — if we are to see progress on marriage equality and transgender civil rights.
Should the three undecided races result in either a continued narrow Democratic majority or a 31-31 tie, our Senate allies, led by Tom Duane, the out gay Chelsea Democrat who is the lead sponsor on both marriage equality and the Gender Expression Non-Discrimination Act, must press for assurances that whatever governing structure the chamber establishes allows both bills to receive floor consideration when we are confident we can prevail.
GENDA is likely at or very close to the number of votes needed for passage; its tabling by the Judiciary Committee in June was unconscionable. If Duane is to effectively lobby for more support on marriage, he must be able to assure his colleagues that their courage in stepping forward publicly will be reciprocated by a floor vote on the question.
If the Senate, as seems more likely at this moment, is led by Republicans, the onus will fall on Skelos to ensure fair treatment. When the GOP last led the Senate in 2008, leadership refused to countenance floor debate on either marriage or GENDA. At a Log Cabin Republican event on October 12, Skelos said he would take the question of holding another marriage equality debate to his conference for discussion. Though that statement has widely been misreported as a “promise” of another vote on gay marriage, Skelos made clear to Gay City News’ Duncan Osborne that he was only pledging to bring the matter up with his fellow Republicans. Clearly, advocates, especially Log Cabin, will have to work determinedly to ensure that Skelos translates a friendly cocktail party message into meaningful responsiveness to the goals of an important part of the New York State family.
Should the GOP, whose 30 members voted unanimously against marriage equality last December, take control, it will place a premium on the political capital our new governor, Andrew Cuomo, is willing to put into our battles. At the Pride Agenda Fall Dinner in Manhattan, the governor-elect said, “I don’t want to be the governor who just proposed marriage equality. I don’t want to be the governor who just lobbies for marriage equality. I don’t want to be the governor who just fights for marriage equality. I want to be the governor who signs the law that makes marriage equality a reality.”
Making something a reality in Albany is often not an easy or even pretty task. But amidst all the deal-making, often out of the public eye, the things that get done are usually what one of the major bargainers makes a priority. We must be willing to hold Governor Cuomo accountable for his priorities.
Posted by Michael at 8:26 AM
Friday, November 12, 2010
Leonard Link: New Strategy to Attack DOMA Unfolds in Federal Courts
Early challenges to the constitutionality of the federal Defense of Marriage Act (DOMA) were all unsuccessful. The Act, passed in 1996, provides that no state is required to recognize same-sex marriages contracted in another state (Section 2), and that no federal law may be interpreted to recognize same-sex marriages (Section 3). The new strategy focuses on Section 3, and narrowly targets its specific applications rather than launching a broadside facial challenge to the statute.
The statute does not itself state any policy justification for the federal government refusing to recognize same-sex marriages that have been lawfully contracted in those jurisdictions that authorize such marriages, but in the legislative history (committee reports), four reasons are asserted: (1) advancing the government's interest in defending and nurturing the institution of traditional heterosexual marriage; (2) advancing and defending traditional notions of morality; (3) protecting state sovereignty and democratic self-governance; and (4) preserving scarce governmental resources.
In the early tests, all raised in private litigation, mostly in the years immediately after passage of the Act, federal judges reacted dismissively, finding that the law was subject only to the most undemanding rationality test, and finding one or more of the purposes articulated in the legislative history as sufficient. Also, challenges by couples who were not actually married were tossed out on standing grounds. Significantly, those early challenges predated the Supreme Court's 2003 ruling in Lawrence v. Texas, holding that a state may not attach criminal penalties to consensual homosexual conduct between adults because such conduct falls within the sphere of liberty protected under the Due Process Clause of the 14th Amendment, and insinuating in dicta that it was improper for the government to place significant obstacles in the way of adult intimate familial relationships.
After Lawrence, a new strategy for challenging DOMA in the courts was devised by the LGBT rights litigation groups. Individuals who had actually married and been denied some federal right or benefit as a result of DOMA would file suit, represented by one of the public interest law firms, contesting the constitutionality of DOMA as applied to their claim.
The first fruits of this strategy were harvested in Boston over the summer in Gill v. Office of Personnel Management, 699 F.Supp.2d 374 (D. Mass. 2010), a lawsuit brought by Gay & Lesbian Advocates & Defenders (GLAD), and in a companion case filed by the Massachusetts Attorney General, challenging several specific instances in which the ability of Massachusetts to accord equal treatment to same-sex marriages had been curtailed by federal policies required by DOMA. In his rulings in the two cases, Judge Joseph Tauro, a veteran federal trial judge appointed to the bench by President Richard Nixon, found that the unequal treatment required by DOMA was not justified, and that the law improperly invaded the sovereignty of Massachusetts. The Justice Department has appealed that ruling to the 1st Circuit Court of Appeals. The parties agreed to stay the judge's orders pending appeal.
Meanwhile, however, buoyed by the initial success of this strategy, LGBT rights organizations have filed additional lawsuits. GLAD filed suit in the U.S. District Court in Connecticut on behalf of same-sex couples who had married in Connecticut, Vermont, and New Hampshire, challenging the refusal of federal agency employers to extend family coverage to new same-sex spouses and the denial of spousal benefits under the Social Security Act. One of the plaintiffs in Pedersen v. Office of Personnel Management was also denied a survivor annuity under a private employer's benefit plan, the employer asserting that the plan would lose its preferred tax status under federal law if the benefit were to be extended, due to DOMA.
It will be interesting to see whether the Attorneys General of Connecticut, Vermont, and New Hampshire will be inspired by the example of their Massachusetts neighbor to file suits vindicating their states' authority to extend equal treatment to same-sex couples.
In the meantime, another suit was filed, this time in New York, by the ACLU's LGBT Rights Project and the NY Civil Liberties Union, on behalf of a woman seeking a refund from the federal government of the substantial estate tax payment made by the estate of her deceased same-sex spouse (they were married in Toronto) -- a payment that would not have been required had their marriage been recognized by the Internal Revenue Service, which declined to do so citing DOMA. Although New York State does not make same-sex marriages available within the state, a growing body of case law and executive decisions provides that such marriages contracted elsewhere are recognized in New York. As in the cases from Massachusetts and Connecticut, the plaintiff in Windsor v. United States is arguing that the unequal treatment mandated by DOMA with respect to her inheritance from her wife is unconstitutional and cannot be justified.
These challenges to DOMA proceed under the 5th Amendment of the Bill of Rights, commonly known as the Due Process Clause, which has been held by the Supreme Court to be binding on the federal government and to incorporate an "equal protection of the laws" requirement co-extensive with that expressly imposed on the state governments under the 14th Amendment. The argument goes that after Lawrence v. Texas, one can argue that unequal treatment on the basis of sexual orientation mandates heightened scrutiny by the court, which means the challenged policy should be struck down unless it significantly advances an important policy interest of the government.
In both of the recently-filed lawsuits, plaintiffs argue that the grounds articulated in the Congressional report are insufficient for this purpose, and that the additional arguments the Justice Department made in the Massachusetts case -- all rejected by Judge Tauro -- are equally insufficient. Those arguments center on a contention that by passing DOMA the federal government was attempting to stake out a neutral stance on the hotly contested issue of same-sex marriage, and to achieve uniformity in federal law by having the same definition of marriage apply throughout the country for purposes of federal policy. But DOMA is hardly neutral; it places the federal government on the anti-same-sex-marriage side in the debate, and it is hard to argue that achieving uniformity in federal law is an important goal, when the government now accommodates a regime under which marriage laws do vary from state to state in some particulars, so that couples who could marry in one state are barred from marrying in another yet the federal government recognizes all of those marriages that are contracted -- unless they involve same-sex couples.
In addition to these new lawsuits, another important case is pending on the West Coast, as Lambda Legal is pursuing the claim of a California woman who married her same-sex spouse in that state prior to the passage of Proposition 8 to include her spouse under her federal employer's health insurance program. Karen Golinski, an attorney on the staff of the 9th Circuit Court of Appeals, won a ruling in the court's internal grievance procedure from Chief Judge Alex Kozinski (appointed to the court by President Ronald Reagan), who avoided ruling on the constitutionality of DOMA by finding an alternative interpretive route involving enforcement of the 9th Circuit's internal non-discrimination policy. As the Office of Personnel Management defied the judge's ruling and instructed the insurance company not to process Golinski's application, Lambda has brought the case to the U.S. District Court in San Francisco, where oral arguments will be held on December 17. In a brief filed with the court on November 8, Lambda argues that the court can enforce Judge Kozinski's order without ruling on the constitutionality of DOMA, but in case the court decides it must confront that issue, DOMA is unconstitutional.
Lambda makes many of the same arguments that the plaintiffs make in the cases just filed on the East Coast. The telling point in all these cases is that the denial of the benefits being claimed has no rational connection with the reasons being advanced by the Justice Department for upholding the statute. Indeed, it is hard to know what important federal policy is served by denying equal treatment to married, tax-paying, lawful residents -- in some of these cases long-time federal employees -- just because they have married spouses of the same-sex.
As with the new New England litigation, it will be interesting to see whether the newly-elected New York Attorney General, Eric Schneiderman, a strong supporter of same-sex marriage, might be stirred to file an amicus brief in the case, or even commence litigation on behalf of the NY State Tax Department, which has failed to line up with other N.Y. state agencies in recognizing same-sex partners because the state's tax laws are intertwined with the federal tax code. Certainly the argument could be made, as it was made in Massachusetts, that the application of DOMA to restrict recognition of same-sex couples is requiring New York to deny such recognition under its tax code in violation of state sovereignty.
DOMA was a hysterical congressional response to litigation in Hawai'i, where the state Supreme Court had ruled in 1993 that a denial of marriage to same-sex couples might violate the state constitution. DOMA was enacted in 1996 as a trial was about to be held on that claim in Hawai'i on remand from the supreme court. A few months after DOMA was enacted, the court ruled in favor of same-sex marriage, but the decision was ultimately overruled when a state legislative compromise and a subsequent public referendum took away from the court the right to decide whether same-sex couples could marry while enacting a law providing a limited legal status and limited menu of rights for same-sex partners. So, ironically, at the time DOMA passed, same-sex couples could not actually marry anywhere in the world, the right to same-sex marriage was not established anywhere until after the turn of the century, in the Netherlands, then Canada, then Massachusetts. It was not based on any kind of systematic analysis of its potential impact should same-sex marriage eventually become available in some jurisdictions; the famous GAO study counting more than a thousand provisions of federal law that might be affected was not produced until after the statute was enacted, in response to a request by a member of Congress opposed to the law.
It seems past time for Congress to rethink the issue, although pending legislation to repeal DOMA does not appear to have sufficient support to move forward at present. So the matter falls to the courts, and the questions of the day are: Will the new strategy of chipping away at DOMA in narrowly focused as-applied attacks result eventually in a definitive declaration of unconstitutionality from the Supreme Court, obviating the need for heavy lifting in Congress? Or will an accumulating body of successful trial court decisions spark a congressional back-lash, putting the infamous Federal Marriage Amendment back on the legislative agenda? Only time will tell.
Posted by Michael at 7:36 AM
Wednesday, November 10, 2010
Hypocrisy shrouds the gay marriage debate - USATODAY.com:
The issue of same-sex marriage has receded into the background during this past election cycle, mostly because voters are overwhelmed by the state of the economy. But the recent spate of gay teen suicides has thrust the issue of anti-gay bigotry back into the spotlight.
Even some Christian leaders are re-thinking their approach to this issue. Exodus International, a Christian activist "ex-gay" group, pulled its sponsorship of the annual "Day of Truth," where high school students are encouraged to express their disapproval of homosexuality.
But why did it take multiple suicides to make a Christian group realize that heaping condemnation and judgment on others is not its job? A reading of any of the Gospels would teach you that in about two minutes.
Let's remember, Satan wasn't kicked out of heaven for being gay: It was pride. The people who really ticked off Jesus were the Pharisees, who were self-righteous and hypocritical, which could fairly describe many of today's Christians.
The Bible or the Constitution?
When novelist Anne Rice declared this year that she was quitting Christianity — though remaining dedicated to Christ — in part because she refused to be "anti-gay," it struck a nerve with many Christians.
Many complained that they weren't anti-gay, that they just opposed same-sex marriage because the Bible, they said, defines marriage as between a man and a woman. Yet, we don't live in a theocracy. The Bible is not the governing legal document of the United States. The Constitution is.
Tuesday, for the first time in Iowa's history of electing judges, voters threw out three state Supreme Court justices for invalidating an Iowa law prohibiting same-sex marriage. It was a unanimous 7-0 decision based on the law, not ideology. What a novel idea. The $800,000 campaign to unseat them was led by Bob Vander Plaats, who ran unsuccessfully as the conservative Christian option in the Iowa governor's GOP primary. When Focus on the Family's James Dobson endorsed Plaats, Dobson lauded Plaats' Bible-based crusade against gay marriage.
But if people really want to use the Bible as our governing legal document, then we need many constitutional amendments, including one that bans divorce except in the very narrow circumstances the Bible permits it. This would be a tough one for evangelicals, since their divorce rate is almost identical to that of atheists and agnostics. This might explain why you don't see evangelical leaders pumping hundreds of thousands of dollars into campaigns to keep the government from providing divorce.
Why does this double standard and selective morality matter? Because it reinforces the idea among Christians that gay people are morally inferior and don't deserve to be treated fairly. Is bullying by teens that much of a stretch when you consider the same-sex marriage rhetoric?
Evangelical superstar Rick Warren (of whom I'm a fan when he sticks to preaching the Gospel) said in an interview, "They can't accuse me of homophobia; I just don't believe in gay marriage," but then he went on to compare same-sex marriage to pedophilia and incest. So, being gay is fine, just like it's fine to be a child molester?
Come on, people.
What about heterosexuals?
If this movement isn't driven by anti-gay bigotry, then where is the outrage and "Day of Truth" over heterosexuals who are engaging in sex outside of marriage? Why aren't Christians running around confronting their sexually active heterosexual co-workers and friends about their "lifestyle"? I guess because there is no "ick factor," to borrow a phrase former presidential candidate and Southern Baptist minister Mike Huckabee used recently to describe gay men and lesbians.
This double standard might have something to do with the fact that many Christians also violate the Bible's condemnation about sex outside of marriage with impunity. (I'm still waiting for the constitutional amendment banning extramarital sex.)
A few years ago, I attended a talk on the plague of pornography in our society at a New York City evangelical church. At one point, a speaker asked the group of about 300 young Christians, "How many of you are pursuing purity?" About 10 people raised their hands.
Has anyone noticed that there is this special little area carved out where the Bible's teachings must be enshrined in U.S. law, but only when it applies to others, i.e. gay people?
It seems as if Christians have enough issues to deal with in their own community on the issue of promoting marriage.
Perhaps Christian leaders such as Warren and Dobson should spend less time trying to prevent a tiny percentage of the population from having the right to marry, and help Christians get their own house in order.
Or, as Jesus warned: Take the log out of your own eye before focusing on the speck in your neighbor's eye.
Posted by Michael at 11:25 AM
Tuesday, November 9, 2010
Double Dose of DOMA Challenges - Poliglot: "- Sent using Google Toolbar"
The Defense of Marriage Act is due for a two-pronged attack on Tuesday, as two separate organizations and sets of lawyers, representing different plaintiffs, plan to file lawsuits in federal court challenging the federal definition of marriage.
The Gay and Lesbian Advocates and Defenders (GLAD) plans to file a lawsuit in Connecticut challenging DOMA’s Section 3, which defines "marriage" and "spouse" in federal law as being limited only to opposite-sex couples. The plaintiffs are to include couples from several New England states with marriage equality, including Connecticut, New Hampshire and Vermont.
edietheamovie.jpgMeanwhile, in New York City, the American Civil Liberties Union and the law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP plan to file a lawsuit on behalf of Edith Windsor, the widow of Thea Spyer. Windsor was forced to pay a $350,000 estate bill because of the federal government’s refusal to recognize Windsor's marriage to Spyer.
The GLAD case is modeled after a similar challenge the organization brought in Massachusetts, which resulted in U.S. District Court Judge Joseph Tauro ruling in July that the marriage definition was unconstitutional as applied to several same-sex couples who had been legally married in Massachusetts.
The New York City couple, whose 2007 wedding in Toronto was featured in The New York Times, were the subject of a documentary, Edie & Thea: A Very Long Engagement. New York recognizes same-sex marriages performed legally in other jurisdictions for limited purposes.
Roberta Kaplan, a partner at Paul Weiss who is working on the case "100 percent pro bono," spoke with Metro Weekly on Monday night about Windsor’s lawsuit, summing the case up by saying, "If Thea were Theo, she would have been able to pass her estate to Edie tax-free."
Kaplan presents the facts succinctly.
"I have an 81-year-old client, and $350,000 is a hell of a lot of money -- a huge amount of money that she paid in violation of the Constitution," Kaplan said. "My client had to pay the government, and she wants her money back.
"What we’re seeking in the case is a check back -- with interest."
Asked about the comparison between the New York case and the GLAD case in Connecticut, Kaplan said, "I think the cases complement each other very well."
The GLAD case will feature several plaintiffs, including lead plaintiffs Joanne Pedersen and Ann Meitzen of Connecticut, who the GLAD news release about the case details "have been together for 12 years, and were married in 2008."
Pedersen is retired from the Department of Naval Intelligence, according to the release and is unable to put Ann, who has serious and chronic lung conditions, on her health insurance plan. Other plaintiffs in the case challenge the inability to receive leave under the Family and Medical Leave Act, Social Security death and other survivor benefits, as well as other differential treatment resulting from DOMA’s definition of marriage.
Regarding the legal theories of the cases, Kaplan said of Windsor's case, "It's about a place [New York] where the marriage is recognized, so it's similar to that theory [pursued by GLAD]."
But, "[b]ecause I think these cases come up in all sorts of different contexts," Kaplan said that Windsor's case was a "dramatic" example of the discrimination couples face from DOMA.
"I think this case really gets people in the gut," she said. "Everyone can see themselves in the position Edie found herself in" -- noting again, however, that solely because Windsor was married to a woman and not a man she faced "a $350,000 tax bill."
Kaplan, who has worked with the ACLU seeking marriage equality in New York under state law, said of this effort, "The best way, I think, to move ahead is to play on all the playing fields at the same time -- including in state and federal court."
Asked if the ACLU case figures into those efforts to gain marriage equality in the state, she said, "In the bigger picture, I think this case is really part of that -- but ... it's not a part of the state legislative battle."
When asked about the questions that have been raised regarding the Department of Justice's defense of DOMA and the "Don't Ask, Don't Tell" law in court, Kaplan at first demurred.
Then, of Windsor's case, she said, "What I do think is true is that in this case the Department of Justice is going to have a very hard time coming up with a reason to give a judge in the Southern District of New York why Edie and Thea should be treated differently than if they were Edie and Theo."
Posted by Michael at 8:33 AM
Thursday, October 28, 2010
Obama Moving Toward Endorsement of Marriage Equality? :: EDGE Los Angeles:
President Obama indicated to a group of bloggers that his attitude toward marriage equality may be evolving toward an acceptance of full-fledged legal equality for gay and lesbian families.
Anti-gay politicians have, over the course of the last two years, defended their views by saying that their stance on marriage equality is "the same as that of the president." As a candidate, Obama spoke of wanting to see the repeal of the so-called "Defense of Marriage" Act, the anti-gay federal law from 1996 that excludes same-sex families from any sort of federal recognition. At the same time, Obama said that his personal view of marriage is that it should be reserved as a special right for heterosexual couples.
In an interview with a group of gay bloggers, Obama was asked about marriage equality by Joe Sudbay of America Blog. Obama reiterated that he is "a strong supporter of civil unions," and added, "I have been to this point unwilling to sign on to same-sex marriage primarily because of my understandings of the traditional definitions of marriage.
But I also think you’re right that attitudes evolve, including mine," Obama added. "And I think that it is an issue that I wrestle with and think about because I have a whole host of friends who are in gay partnerships. I have staff members who are in committed, monogamous relationships, who are raising children, who are wonderful parents."
The president went on to say that he was "not prepared to reverse myself here, sitting in the Roosevelt Room at 3:30 in the afternoon," but that the issue remains "something that I think a lot about."
Obama also talked about having a strategy to be sure that another anti-gay law, "Don’t Ask, Don’t Tell," is repealed, and opined strongly that, while he understands the frustrations of the GLBT community, he does not agree that his administration has failed to do its best for gay Americans.
"I guess my attitude is that we have been as vocal, as supportive of the LGBT community as any President in history," Obama told Sudbay. "I’ve appointed more openly gay people to more positions in this government than any President in history. We have moved forward on a whole range of issues that were directly under my control, including, for example, hospital visitation." Added the president, "And so, I’ll be honest with you, I don’t think that the disillusionment is justified."
While some might see Obama’s remarks as evidence that he might one day shift in his view on marriage equality, others are unwilling to subscribe to that notion--if for no other reason than that skepticism remains as to the sincerity of the president’s lack of support for marriage rights for same-sex families. An Oct. 28 New York Magazine article by Dan Amira openly dismissed as "disingenuous" the distinction Obama makes when he says he upholds civil unions but not marriage equality.
Titled, "President Obama Getting Closer to Ending His Pretend Opposition to Gay Marriage," the article noted that Obama had opposed Proposition 8, the 2008 ballot initiative that rescinded marriage rights for gay and lesbian families in California. The article also tallied the president’s record of support for GLBT equality, and recalled that in 1996 Obama answered a questionnaire that asked about marriage equality by saying that he would be in favor of it.
"When you add it all up, the only conclusion that really makes sense is that, in his heart, Obama is fine with gay marriage, but didn’t think the nation was ready for a president who felt that way," Amira wrote. The article then went on to say, "Approval of gay marriage surged, it was legalized in a number of states, and Obama’s support for civil unions, which would have been considered relatively enlightened five or ten years ago, began to seem downright antiquated to many people."
Amira speculated that the comment might herald an open declaration of support for marriage equality in 2012. Given the social shift, a pro-marriage stance from Obama would "be inherently mainstream."
An Oct. 27 Politico article by Josh Gerstein echoed those speculations, citing Richard Socarides, who said, "Presidents don’t usually think out loud unless they intend to send a signal that they are shifting a position." Socarides, who had served as an advisor to Bill Clinton, went on to add, "I think [Obama] realizes he can’t run as a gay rights advocate in 2012 and be against marriage equality. People see domestic partnerships are separate but equal."
Kilian Melloy reviews media, conducts interviews, and writes commentary for EDGEBos
Posted by Michael at 5:21 PM
Friday, October 8, 2010
Leonard Link: Another Loss for Alliance Defense Fund in its campaign to rid America of legal recognition for same-sex partners
Leonard Link: Another Loss for Alliance Defense Fund in its campaign to rid America of legal recognition for same-sex partners:
Another Loss for Alliance Defense Fund in its campaign to rid America of legal recognition for same-sex partners
The Alliance Defense Fund (ADF), an organization dedicated to opposing gay rights in the courts, has struck out in the Court of Appeals of Ohio (8th Appellate District) in its challenge to the city of Cleveland's domestic partnership registry ordinance. The court ruled unanimously on September 30 that Ohio's anti-gay marriage amendment did not deprive the Cleveland city government of the ability to establish a domestic partnership registry. The city's legal staff successfully defended the local law, with amicus assistance from the ACLU of Ohio and Lambda Legal's Midwest Office in Chicago and cooperating attorneys from Cleveland.
The city enacted its ordinance on December 8, 2008. Couples can file their declarations of domestic partnership with the city if they meet specific criteria, thus generating a document that attests to their status as domestic partners recognized by the city of Cleveland. The ordinance does not provide any specific benefits to registered partners apart from the municipal recognition of their relationship.
But ADF promptly acted to stir up litigation, claiming that the ordinance violates Section 11, Article XV, of the Ohio Constitution, the marriage amendment whose passage was secured by opponents of same-sex marriage. That provision states: "Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage." The plaintiffs' argument, as summarized by the court of appeals, was that if domestic partnerships recognized by Cleveland "approximate just some of the enumerated aspects of marriage, then the domestic partners ordinance is unconstitutional." The trial court rejected this argument, and denied injunctive relief against operation of the registry. The court of appeals agreed with the trial court.
Writing for the unanimous three-judge panel, Judge Colleen Conway Cooney looked to a prior ruling by the Ohio Supreme Court rejecting the argument that because of this amendment, the state could not address domestic violence within same-sex couples under its criminal law. According to the Supreme Court, being married is "a status" that "gives a person certain legal rights, duties, and liabilities." In light of this, the court concluded that "the second sentence of the amendment means that the state cannot create or recognize a legal status for unmarried persons that bears all the attributes of marriage - a marriage substitute." In other words, the amendment would likely prohibit Ohio from establishing civil unions or domestic partnerships that carry all or virtually all of the state-law rights associated with marriage, but it does not stand in the way of the state, or its political subdivisions, extending lesser degrees of recognition to same-sex relationships in regard to particular policy issues.
Or, as Judge Cooney interprets the prior decision, "the Ohio Supreme Court explained that any legally established relationship bearing less than all the attributes of marriage is constitutional."
The Cleveland ordinance falls far short of even that. Although its qualifying criteria require domestic partners to reside together, to maintain a "committed relationship," and to "share responsibility for each other's common welfare," there is no enforcement mechanism. A domestic partner would not be able to bring his or her partner to court on a claim that they were failing to meet the obligations to which they swore when filing the partnership declaration. "Domestic partners who separate cannot take advantage of the domestic relations laws that govern divorce, alimony, child support, child custody, and equitable distribution," Cooney observed. In addition to not receiving many of the affirmative benefits accorded to married couples by the city and state, the court pointed out, as Lambda argued in its amicus brief, "the term 'domestic partner' completely lacks the social and emotive resonance of 'husband' and 'wife'" and "domestic partnerships are not given the same respect by society as a married couple, and they share none of marriage's history and traditions.'
In light of the Ohio Supreme Court's limiting construction of the constitutional language -- which could have been construed to have broader effect -- the court of appeals' ruling in the case was a foregone conclusion, and one wonders why ADF bothered bringing the case, other than to raise the flag, raise some money, and try to make some propaganda against equal rights for gay people.
ADF had also raised what seems a make-weight argument, that Cleveland exceeded its home rule power by enacting the amendment. This argument ran aground on the inconvenient fact (inconvenient for ADF, at least), that this same court had previously rejected a home rule argument that was raised to challenge a domestic partnership ordinance enacted by Cleveland Heights several years before the marriage amendment was passed. The court pointed out that the Cleveland registry, like the Cleveland Heights registry, did no more than give recognition to the relationship, providing no affirmative rights and being completely paid for by the applicants' fees so the municipalities bore no expenses from providing the registry. In addition, and most notably, no private entity is required by these ordinances to give any recognition to domestic partnerships, although it has proven that some employers and businesses have decided to adjust their policies to recognize registered domestic partners voluntarily.
Judge Christine T. McMonagle concurred in Judge Cooney's opinion. Judge Sean C. Gallagher also voted to affirm the trial judge, but without specifically concurring in the text of Cooney's opinion. He provided no explanation for his limited concurrence.
If it acts true to form, ADF will seek to appeal this to the Supreme Court of Ohio.
Posted by Michael at 8:43 AM
Thursday, October 7, 2010
Debunking the Five Myths Held By Those Who Oppose Same-Sex Marriage | Gay Rights | Change.org:
The original title for this post was "The Case Against Gay Marriage," a play on a post I wrote yesterday covering the New Yorker event where Cynthia Nixon schooled the National Organization for Marriage on the subject of marriage equality.
Folks like the National Organization for Marriage, and many others who oppose marriage equality, often harness rhetoric like "protecting the family" as a validation for furthering unequal rights. What I mean to raise in this post -- or rather, to debunk -- is the preposterous notion that marriage is pre-political or that it is somehow sacred. I even mean to bring into question whether marriage is even something to be desired, whether you're gay or straight or otherwise, religious or not.
One caveat -- of course I believe in equal rights for all; my gay brothers and sisters (myself included) should have access to exactly the same rights and privileges under federal, local and religious law that everyone else does. Assuming ceteris paribus, that all other things are equal, let's please take a moment to examine the very core of the issue in order to debunk the myths that come up repeatedly in this debate.
1. Marriage is pre-political. This is frankly poppycock. Marriage is one of the oldest political institutions that exist. The union was a way of keeping a family -- and their land and money -- legally bound and protected. Marriage historically has been about economics; marriage for love didn't even enter into cultural discourse until just a few hundred years ago.
2. Marriage is for procreation. Again, this is null and void in the modern age. Yes, marriages were cemented prior to the golden age of industrialization some 150 years ago and going back because having children meant free farm labor, the main bread earner for a home. In today's society, people have children for all sorts of good and bad reasons, but nine times out of ten, it's not to pull an ox cart in a field. Plus, there's always the known argument that plenty of people get married with no intention of having little rug rats, or else they are infertile and cannot have children.
3. History says marriage is between a man and a woman. This is also silly because gay was okay back in the day. People tend to forget, especially all of those "well informed" evangelicals, that Christians and everyone before them, prior to Paul the Apostle's clamping down on what marriage should and shouldn't be, made more allowances for same-sex love than we even do today. Most anti-gay sentiment comes not from the bible, and certainly not from pre-Judeo-Christian times, when same-sex desire was widely accepted, but from biblical interpretation by a small handful. Yes, a man married a woman in ancient Rome, Greece, the Middle East, The Far East in order to protect the family wealth and land, but when it came to desire and love, it is well-documented that men sought the comforts of other men.
4. Same-sex marriage will weaken the institution of marriage. This claim is often used though there has been no proof, let alone even one believable example, of how this may be a valid argument. I'm pretty sure it's the insanely high divorce rate and potential outmoded notions of wedlock that is weakening marriage, not gay people who want to buy into the tradition, that are threatening harm. In fact, in places like Washington D.C. and Massachusetts, same-sex marriage is emerging as the very thing that is saving marriage (not to mention the economy).
5. If you allow gay marriage, other bad things will follow. Lions and tigers and bears, oh my! This is the dumbest argument yet against same-sex marriage, that somehow if you allow gay people to get hitched, somehow polygamy, bestiality, and other apocalyptic events will occur. Folks, the gay people who want to get married are the most conservative that we have to offer as a community. The rest of us leather-donning, gender-bending, sex-crazed freaks couldn't care less about entering into your so-called sacred institution, let alone bringing our Boston Terriers with us.
If folks were to truly understand the history and politics of the institution we call marriage, I wouldn't be surprised if people everywhere, gay and straight, start to deliberately hop off the wedding bandwagon and opt instead to break down, rather than embrace, this passé pastime.
Posted by Michael at 5:14 PM
Friday, October 1, 2010
What Makes a Family? More Americans Say Gays Count - Newsweek:
The idea that gay couples who are married or have children qualify as “families” has rapidly become the majority view in the U.S., and researchers credit public discussions about gay marriage—by supporters as well as vehement opponents—for the unexpectedly fast pace of change. That’s the surprising conclusion of the Constructing the Family Surveys, which monitor Americans’ opinions about what makes a family. The surveys were launched in 2003 by researchers at Indiana University; the University of California, Irvine; the University of Utah; and the University of South Carolina. A detailed analysis of the results are included in the new book Counted Out: Same-Sex Relations and Americans’ Definitions of Family.
These results are particularly startling because of the widespread assumption that the passage of “defense of marriage” legislation in many states (and the federal Defense of Marriage Act) in recent years represented a growing backlash against gay marriage and gay families. But based on the new data, Brian Powell, a professor of sociology at Indiana University, says he has to conclude that any such backlash was short-lived. “Social change usually occurs at a glacial pace,” he says. “What we’re seeing is a very rapid shift in people’s views of who they consider to be a family.”
When the researchers reviewed the first round of survey results in 2003, they found that about 41 percent of the respondents supported gay marriage, yet 53.6 percent agreed that two men living with a child constituted a “family,” and 55 percent said the same thing about two women living with a child. By 2010, not only did a majority (52 percent) say they were in favor of gay marriage, but the proportion who believed that gays living with kids are families had grown to 68 percent.
Powell says the team concluded that a variety of recent societal shifts were key to this accelerated rate of change, including the fact that homosexuals have become increasingly open with friends, family, and acquaintances about their sexual orientation. In 2003, 58 percent of the survey’s respondents said they didn’t have any family or friends who were gay. By 2010, that proportion had fallen by almost a third: only 40 percent said they didn’t have any gay friends or relatives. Only 18 percent said they didn’t know anyone who was gay.
While you might presume that those with a gay family member were the most open to gay marriage, Powell says that people with gay friends are more likely to be swayed. “Maybe that’s because you choose your friends but only a few of your relatives,” he says. Overall, in 2003 the researchers found that 20- to 29-year-olds were the most supportive of gay marriage; by 2010, that group had expanded upward to age 38. “That’s a big jump in a short time,” Powell says.
Researchers who did follow-up interviews with some respondents also noticed significant changes in the way people spoke about gay issues over the last seven years. When they talked to their first group in 2003, Powell says, “a lot of people would lower their voices before saying the word ‘gay.’ They didn’t want to say it out loud.” But starting the next year, as defense-of-marriage laws became a major political issue and there was much more public discourse about gay issues, people seemed to become more comfortable discussing the topic. Respondents began to mention, for example, “the impact of seeing Lynne Cheney talking about her daughter on TV,” Powell says, and “people became much more likely just to say the word. The sheer fact of talking about it seems to make a difference. It brings it out of the shadows.”
Celebrities who are open about their sexual orientation have also had an impact. “When Ellen DeGeneres had her own show on TV in 1997 and came out, there was an uproar,” Powell says. “But since then we’ve certainly seen a large increase in the number of same-sex couples on TV. Look at the show Modern Family. If you had told people there would be a same-sex couple with a child on a mainstream TV show and that it would win an Emmy, no one would have believed that 10 years ago.”
Over the last seven years, Powell says, the researchers were also able to document a “profound shift” in what the public considers to be the determinant of an individual’s sexual orientation. “By 2010, the proportion who say homosexuality is the result of either ‘genetics’ or ‘God’s will’ is over 60 percent, and those who say it’s caused by bad parenting has gone way down. That means the number who think [sexual orientation] cannot be changed has gone up.” Interestingly, the 15 to 20 percent who say homosexuality is the result of God’s will also tend to be among the most open to gay rights, he says.
Finally, there’s the effect of what Powell calls “the power of law.” “In 2003, many people said gay couples didn’t qualify as ‘families’ because they couldn’t get married,” he says, and only 26 percent of all respondents disagreed with that idea. “But once gays were allowed to be legally married, even in just a few states, more people (59 percent by 2010) were willing to describe a married gay couple without children as ‘a family.’ ”
The trends Powell and his colleagues are documenting are similar to what sociologists found during the years when interracial marriage was becoming more common and legal, culminating with the U.S. Supreme Court’s Loving v. Virginia decision in 1967, which struck down Virginia’s ban and made such marriages legal throughout the country. “Before the Loving case, Americans were overwhelmingly opposed to interracial marriage,” Powell says. “But after Loving was upheld by the U.S. Supreme Court, views shifted. By 1972, only a third of whites were still opposed. There was a huge drop in resistance as a result of the legal shift.”
What does all this portend for the near future? While those who strongly oppose gay marriage have been a powerful political bloc because they tend to be one-issue voters, Powell says his best guess is that their numbers will continue to shrink. Between 2003 and 2010, he says, the number of people who adamantly opposed gay marriage declined from 45 percent of the survey’s respondents to 35 percent. “I suspect that this is changing more rapidly than most politicians realize,” he says. That should be a lesson to politicians: don’t assume you know what the voters think. They could be way ahead of you.
Posted by Michael at 1:30 PM