Tuesday, June 28, 2011

Marriage Equality Act

Analysis by Art Leonard

Sunday, June 26, 2011

Video of Vote in Senate

Robert and I in this video

Monday, May 2, 2011

A Tipping Point for Gay Marriage? - NYTimes.com

A Tipping Point for Gay Marriage? - NYTimes.com: "- Sent using Google Toolbar"

WASHINGTON — It’s not every day that a leading law firm fires a client for holding a position so extreme that it may be said to be unworthy of a defense. And it is rarer yet — unheard of, really — when that client is the House of Representatives and the position in question is a federal law.

Yet that is just what King & Spalding, a venerable Atlanta firm, did last week. Under pressure from gay rights groups and apparently fearful of criticism from the law students it recruits and the corporate clients it serves, the firm said it would not defend the federal Defense of Marriage Act against a challenge that it violates the Constitution.

The episode has so far mostly been discussed as a matter of legal ethics, and the firm has had a rough ride. But there is something larger going on, too.

For many gay rights advocates, the decision amounts to a turning point in the debate — the moment at which opposition to same-sex marriage came to look like bigotry, similar to racial discrimination and the subordination of women.

To opponents of same-sex marriage, the firm’s decision is the latest evidence that elite opinion generally and the legal culture in particular is racing ahead of popular opinion and shutting down a worthwhile debate.

“There is a big gap between elites and everyone else” over same-sex marriage, said Maggie Gallagher, the president of the Institute for Marriage and Public Policy, which supports traditional marriage. The polls and political science literature support her: What may be orthodoxy in faculty lounges remains an open question among the public at large.

Another critic of same-sex marriage said King & Spalding’s decision illustrated just how wide the divide between elite and mass opinion on same-sex marriage has become. “There is no doubting that the default position of the American academy is to dismantle the institution of marriage and remake it on a new basis,” Matthew J. Franck of the Witherspoon Institute, a conservative research group, wrote in a blog post on Friday. “The deadly combination of unchallenged liberal presumptions and casual intimidation of dissenters is probably at its worst in the most prestigious universities, which set the tone for the rest of the country, on this issue as on many others.”

Ms. Gallagher sounded bitter and besieged as she described how the nature if not the substance of the debate had shifted. “Either you’re with them or you’re a hater,” she said of gay rights advocates. “They’re trying to exclude you from the public square.”

Evan Wolfson, the president of Freedom to Marry, said he welcomed a conversation, but the arguments against same-sex marriage were so empty that they were not worthy of respect. “If you know that the only arguments that can be made for a position are discriminatory and harmful to real people,” he said, “you should think about whether you should make them.”

This latest skirmish in the culture war over marriage was prompted by the Obama administration’s decision in February that it would no longer defend in court the part of the Defense of Marriage Act that denies federal benefits to gay and lesbian couples married in states that recognize such unions. That decision was itself unusual and thus telling.

But it was only one indication of how quickly the battle lines are moving. In 2008, a federal judge in New York ruled that it was defamatory to call a straight man gay. Ten months later, a different judge of the same court, relying on what he called “a veritable sea change in social attitudes about homosexuality,” said there was no longer “a widespread view of gays and lesbians as contemptible and disgraceful.”

The second judge, Denny Chin, drew a comparison. In 1926, he said, New York’s highest court ruled that it was libelous to call a white man “colored” or “Negro.” Such rulings were common in much of the nation in the first half of the last century; they are unimaginable today in any state. The range of views that may be expressed in respectable circles can be a bellwether in judging what society is ready for, said David A. Bositis, an analyst at the Joint Center for Political and Economic Studies who has studied the politics of race.

“Part of the evolution of equality obviously includes moving from where statements are viewed as normal and accepted to being socially undesirable,” he said. “When some turning points in these struggles are reached, it becomes more and more unsavory to behave in some ways and take certain positions. In polite society, it’s no longer considered acceptable to make overtly racist statements.

“But in the case of gay rights,” he added, “those turning points still have a ways to go. I certainly can see that day coming. Compared with the civil rights movement for African-Americans, the movement for gay rights has proceeded with a remarkable degree of speed.”

Nathaniel Persily, who teaches law and political science at Columbia, says that today, a person’s education level is powerfully predictive of views about same-sex marriage. “Sometimes the norm of equality penetrates the elite levels first,” he said. In fact, the change of attitudes has moved farthest in the legal community, which has long embraced gay rights with a particular fervor, a point Justice Antonin Scalia complained about in a 2003 dissent that in a way predicted King & Spalding’s decision.

The “law-professional culture,” Justice Scalia wrote, “has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”

The decision Justice Scalia was dissenting from, Lawrence v. Texas, struck down a Texas law that had made gay sex a crime.

For the gay rights movement, that decision was a watershed akin to Brown v. Board of Education, the 1954 Supreme Court decision barring racial segregation in public schools, said William N. Eskridge Jr., a professor at Yale Law School and the author of several books on gay rights.

“We’re in the post-Brown era,” he said, “which for me is post-Lawrence. After Lawrence, there has been a social revolution in America.”

The analogy may be instructive in terms of timing. Thirteen years passed between the Brown decision and Loving v. Virginia, the 1967 Supreme Court decision striking down bans on interracial marriage.

“A large majority of supporters of racial integration and even nondiscrimination in the workplace did not believe that interracial marriage was tolerable,” Professor Eskridge said. “In race, the marriage issue was the very last form of discrimination struck down.”

If the comparisons are apt and the same judicial timetable holds, that means bans on same-sex marriage will fall around 2016.

A Final Push for Gay Marriage in New York State -- New York Magazine

A Final Push for Gay Marriage in New York State -- New York Magazine: "- Sent using Google Toolbar"

Governor Cuomo has set his sights on getting same-sex marriage passed by the end of the legislative session in June. And for the first time, four top advocacy groups have united under one banner for a final push. Together they’re signaling: This is it.

Why all the confidence? Because the landscape has shifted so favorably since December 2009, when a weak David Paterson led the charge, the gay groups were fractured, and a marriage bill failed in the State Senate 24-38. This time around, Cuomo enjoys a 73 percent favorability rating and political capital to spare. A record 58 percent of New Yorkers now support gay marriage. By that last measure alone, the bill should sail through, carried along by the virtue of won-over hearts and minds. It would be a beautiful thing.

But this is Albany, where getting things done is never pretty. A ­marriage-equality bill is still six votes short in the Senate, and though four senators who previously voted “no” have indicated their votes may now be up for grabs, that still leaves the tally two votes short—at least one of which will need to be Republican. The united gay groups say they are soliciting some fifteen senators, and they’re making it personal. “I’m going to talk to anybody about this issue, even if they’re down as a no,” says Cathy Marino-Thomas, board president of Marriage Equality New York, who believes she can get holdouts to see “that marriage is a right for my family.”

As a volunteer for the Empire State Pride Agenda, I’ve tried that approach, spending a sweltering day knocking on doors in Bellerose, Queens, last summer. After several hours’ work by six canvassers, we found only a dozen or so people willing to sign our marriage pledge. As I walked by a public-school campus named for then-Republican state senator Frank Padavan (a gay foe), I remember thinking we were on a hopeless quest.

So it’s a fortunate thing that even as gay people across the state are working on hearts and minds, the advocacy groups and the governor have other tools at hand. Cuomo, for example, can offer carrots on hot-button issues like rent regulation and property-tax caps. “Federally, what did Lyndon Johnson do?,” noted one gay leader. “[He said] ‘We’ll give you your federal money. You give us civil rights.’ That’s how politics works.” And then there are the sticks. If marriage passes, the wealthy gay-rights groups can lay off State Senate Republicans, instead of aiming to pick them off one by one, as they’ve been doing—as they did to Padavan, who was bounced last November. They might even support GOP senators who vote their way. In March, the Human Rights Campaign hosted a benefit for Maine’s Susan Collins to reward her for her role in repealing “don’t ask, don’t tell.”

“This is a vote that will be beneficial for Republicans,” HRC’s Brian Ellner emphasized. A majority of New Yorkers may now believe in the universal right to marry, but making that reality may come down to a select few not wanting to lose their jobs.

Wednesday, April 6, 2011

Gay Marriage Watch » Blog Archive » Ten Reasons to Say Yes to Marriage Equality

Gay Marriage Watch » Blog Archive » Ten Reasons to Say Yes to Marriage Equality: "- Sent using Google Toolbar"

Gay marriage is an extremely controversial topic. There are very strong feelings on both sides of the issue. It is an issue that entangles legal rights and religious beliefs, always a volatile mix. This article will list ten facts that are commonly given as reasons for gay marriage.

Divorce protection. Married couples who decide to end their relationship must do so through the court system. This protects the two parties from inequitable division of assets and liabilities that have been held jointly. This protection is not available to unmarried gay couples or unmarried heterosexual couples, though they can certainly enter into contractual agreements in regards to their relationships that would provide the same or better protection to their rights.
Bereavement leave. Whether it is paid or unpaid, almost every employer allows for time off from work for the bereavement of your spouse or other close family members. Couples, whether gay or straight, who do not have a marriage certificate, are dependent upon the compassion of their employers to provide them a similar benefit, should their life partner die.
Survivor benefits. Social security and many pension plans provide survivor benefits to surviving spouses, another benefit not available to unmarried couples.
Tax benefits. There are many different tax benefits that are offered to married couples, such as filing jointly, that a gay couple does not have access to without marriage. Again, the same is true for unmarried heterosexuals.
Insurance benefits. Although this has changed with a few employers and insurance companies, most insurance benefits that are available to an employee’s spouse or family members are not available to an employee’s life partner.
Sick leave to care for a partner. State and federal laws provide protection for worker’s jobs when they need to take time off to care for family members for medical reasons. Without the benefit of marriage, these laws do not provide the same protection for unmarried couples.
Stability of relationships. There are those who would argue that entering into a marriage relationship that is recognized legally, and by society in general, would bring greater stability to some gay couples. With the high rate of divorce and marriage conflict among heterosexual couples, this argument would imply that the same would not apply to gay couples, which seems unlikely.
Validation of family unit. This reason for gay marriage is much more societal than the ones that relate to monetary and legal benefits listed above. Proponents of gay marriage would argue that a legal and recognized marriage would legitimize their family unit in the eyes of society, which would be emotionally beneficial to a gay couple and any children in the household. The truth to this can only be theorized, as with any other major change to the norm of society.
Relational ties to extended family. Conventional marriage relationships become easily translated into inlaws, aunts and uncles. Non-married couples can be left without these inclusive family titles that have always come via marriage. With the increase of heterosexual couples that have chosen not to marry, this issue, again, is not exclusive to gay couples.
Cultural change. When all the reasons for gay marriage are brought together, they boil down to this one. Proponents for gay marriage believe that there needs to be a change in how modern society views and relates to homosexuals. Legalizing gay marriage is considered to be a major step in bringing about that change. It is also the reason why those who do not feel that homosexuality is acceptable, for religious or other reasons, take such a strong stand against it.

The affect of the legalization of gay marriage on society is something that can only be speculated at. First of all, no one knows how many gay couples would choose to enter into a marriage relationship, if it were available. The initial influx into the marriage ranks might be large to begin with, but whether or not the trend would continue is hard to judge. The financial impact of such a major shift in private and governmental benefits cannot be accurately calculated, but it would certainly be significant, as would the impact on society in general. The legalization of gay marriage, as shown above, would be a major cultural change that affects many more lives than the gay community itself. The debate over this issue will not be quickly or easily settled, nor should it be

Tuesday, April 5, 2011

Married Gay Couples "Refuse to Lie" on Tax Forms - NYTimes.com

some important info in this article about equalizing assets

Married Gay Couples "Refuse to Lie" on Tax Forms - NYTimes.com: "- Sent using Google Toolbar"

Courtesy of Equality Florida The “Refuse to Lie” campaign was created gay activists who believe that the federal government should acknowledge same-sex marriage.
What if You're Gay - Your Money - Bucks Blog - NYTimes.com

Some same-sex married couples are refusing to file their federal tax returns separately this tax season, as part of a movement demonstrating that they’re no longer content to quietly comply with the federal law that does not recognize same-sex marriage. And in some cases, these taxpayers will pay Uncle Sam more when they do so.

Same-sex couples who have married, or who have a legal status equivalent to marriage in certain states, must still file separate federal returns because the government — and therefore the Internal Revenue Service — defines marriage as a legal union between a man and a woman.

Using that definition, federal tax returns ask taxpayers to check one of five options under their filing status: single, married filing jointly, married filing separately, head of household or qualifying widow(er) with dependent child. Married same-sex partners typically file their own federal returns either as single or, if they qualify, as head of household, which has more favorable rates than the single filing status.

But many same-sex couples contend that filing as single amounts to lying about their marriage status, and that’s the message behind the “Refuse to Lie” campaign created by gay activists, which is timed to coincide with tax season.

“More people are refusing to lie on those forms, even though the government is telling them to,” said Nadine Smith, executive director of the gay, lesbian, bisexual and transgender advocacy group Equality Florida, who plans on filing a joint return with her wife, Andrea. “It would be both dishonest and deeply humiliating to now disavow each other or our marriage and declare ourselves single on our tax form.”

Nina E. Olson, the national taxpayer advocate who acts as an ombudsman for the I.R.S., acknowledged the uncertainty surrounding federal taxation of same-gender spouses in an annual report to Congress. In the report, she said that taxpayers may take a filing position without penalty if there is “substantial authority” to do so, such as a court case that hasn’t been overruled by the United States Court of Appeals. And there happen to be two such cases, which are currently on appeal.

In July 2010, the Federal District Court in Massachusetts declared the Defense of Marriage Act — the federal law known as DOMA that defines marriage as between a man and a woman — as unconstitutional in two cases. They are now being appealed in the First Circuit. “Thus, there may be substantial authority for same-gender spouses to take certain tax positions as married as long as the Massachusetts district court’s opinions stands,” Ms. Olson said in the report.

The “Refuse to Lie” Web site warns same-sex couples of the risks of filing jointly, and explains different options to both adhere to the law while expressing that they disagree with it. One way to do that would be to put an asterisk by the “single” box, and then indicate at the bottom of the tax form that you are “only single under DOMA.” Another option, the site says, is to attach a note with a similar message.

The campaign also explains on its Web site how to file a joint return while avoiding penalties. In the first method, each partner would file their own single return and include an attachment stating that they’re married, and then file an amended return jointly. “Once the I.R.S. rejects the amended return, or if six months passes and they do nothing, the taxpayers who file an amended return have the right to file suit in Federal District Court claiming the refund,” the activists’ site said, adding that this option would avoid penalties because your original return would be filed according to the law.

Another method suggests filing two returns: one filed jointly (and showing the tax due on the joint return) and one filed as a single taxpayer (showing the tax due on that return). Pay whatever is due on the single return — which means you will not have underpaid — and then ask the I.R.S. which return to accept. But if the I.R.S. accepts the joint return and issues you a refund, “there is no way to know what will happen if you are later audited,” the site said.

“People who follow this example need to do so with a clear head about the decision they are making and that what could happen is unclear,” Ms. Smith, of Equality Florida, said. “It’s not without risk.”

But there’s another way to preserve your right to collect any refunds due to you if the law is eventually struck down. Patricia Cain, a professor at Santa Clara Law and an expert on sexuality and federal tax law, said that couples who would benefit from a joint filing — that is, couples who would pay less in taxes or receive refunds — can file a protective claim using I.R.S. Form 843. (File separate returns in accordance with the law, then attach the form to an amended joint return).

“If you state on Form 843 that your claim is based on the unconstitutionality of DOMA, which is an issue pending in current litigation, it is more likely that the I.R.S. will do nothing until the issue is finally determined,” she added. “And if DOMA is struck down as unconstitutional, you should be entitled to the refund on the amended return.”

Although she generally recommends that same-sex married couples file their own returns in accordance with the law, she said that couples living in Massachusetts might be able to better justify filing their returns jointly because of the two court cases there.

“The question is whether that is sufficient as substantial authority to avoid being assessed penalties if you were audited by the I.R.S. and found to have filed incorrectly,” Professor Cain said.

She also said that she knew some same-sex couples in several different states who had filed joint returns and received refunds. “It’s because the returns are handled by machines,” she said, adding that the 1040 forms don’t have any gender markers on them. “That doesn’t mean they won’t be audited sometime. But honestly, I think the I.R.S. has bigger fish to fry than figuring out where same-sex couples filed jointly.”

Taxpayers who don’t pay the proper amount of tax will be levied a 20 percent penalty on top of the amount of tax owed. An I.R.S. spokeswoman said the agency followed the federal Marriage Act and declined further comment.

But for Kate Kendell it’s about more than the money. Ms. Kendell, executive director of the National Center for Lesbian Rights, said she and her wife, Sandy, who have been together for 18 years and have two children, are going to file as married this year (they married in California during the brief window in 2008 when same-sex marriage was permitted there).

“As a lawyer and a legal advocate for the L.G.B.T. community, I am often in a position to advise people to exercise great caution and to comply in most cases with the letter of the law, even when that means denying who we are,” she said. “This is my small way of saying, where we can, we are not going to play the game anymore.”

In their case, the move is going to cost the couple more than $5,000.

If you’re part of a same-sex couple and would like to file jointly, how far would you go to show that you disagree with the current law? And what does everyone else think about this effort?

Monday, April 4, 2011

Tax Answers for Same Sex Couples - WNYC

Read this about married couples and tax filings Look especially at last question from bottom. Could be very important to couples http://www.wnyc.org/articles/its-free-country/2011/mar/30/lgbt-tax-prep/

Tax Answers for Same Sex Couples - WNYC: "- Sent using Google Toolbar"

With the tax filing deadline approaching, Tina Salandra, CPA and principal at Numerical, LLC, offers advice for LGBT families on how to prepare their tax returns.

Fifty states, two levels of government, an incredibly complex tax code—you'd be hard-pressed to find a more tangled case study of bureaucracy than in the challenges that same sex couples face every April.

Filing income taxes at the state and federal levels gets tricky for a couple that isn't legally allowed to marry everywhere, and whose legitimate marriage in one state isn't grounds for recognition from the national government. Though President Obama recently ordered the Justice Department not to defend the Defense of Marriage Act (DOMA), the law stands, and will remain standing until it's successfully challenged in court. That means that for the time being, a homosexual couple wed in Vermont still can't file their federal income taxes as a married couple, even though they're allowed to file their state taxes that way.

What's more, the variety of partnership allowances for gay couples further complicates the matter. Certain states (California, New Jersey, Oregon) have banned same sex marriage in favor of civil unions and domestic partnerships, but still allow those couples who were joined in another state to file their state taxes as a unit. Then there's New York, which doesn't allow gay marriage, but recognizes and extends marriage rights to gay couples from out of state—then still doesn't let them file together.

"New York state has not changed any of their tax laws relevant to same sex couples, at least not for the 2010 filing season." said Tina Salandra, a CPA with experience filing same sex tax returns. For tax purposes, married gays in the state of New York aren't married at all. Contrast that with New Jersey's example: Salandra says the state actually requires every couple in a civil union to file as married; they don't even have the option to file single, as they're required to for their federal return.

"You either file 'married/civil union' or 'married filing separately/civil union filing separately," she explains. "It's actually neutral for the family bottom line."
What do same sex couples need to know as they prepare to file their state taxes?

The first step is to double check your state tax laws regarding same sex partners. The most obvious consequence of being allowed or forced to file together is that a couple's combined income could bump them into a collectively higher tax bracket than the one in which either individual would otherwise land—the "marriage penalty," as it's known.

That can only happen to gays at the local level, in states that permit joint filing. But Tina Salandra said that ultimately, a couple's state tax return isn't going to look remarkably different whether they file separately or not.

"States have such a narrow range of tax brackets—let's say five to nine percent—that there often isn't the same disparity for filing single or married as there is with federal tax return," she said. The difference gets more pronounced at the national level, where there's a wider range of tax rates.
How can these couples better manage their money to come close to the same deal heterosexual marriages enjoy?

Salandra fielded several questions regarding specific situations and provisions in the federal tax code. Right off the bat, gay couples shouldn't even think about filing their federal taxes jointly; fraudulent statements constitute a felony. For the finer points of financial maneuvering, here's what Salandra had to offer:

→ If you co-own property, can both homeowners get the mortgage interest deduction?

You can both get the mortgage interest deduction so long as you are both legally liable for the mortgage debt. You can allocate that interest any way you like within couple: split it 100-0, 90-10, 60-40, etc.

→ What if one partner stays home with child while other works? in a marriage, working spouse can take a dependent deduction for stay-at home spouse. can one aprtner be deemed as dependent?

Possibly. A partner can be deemed a "dependent other" if the working partner and taxpayer provides more than 50 percent of their support and the nonworking partner earns less than $3,650—the dependent exemption. That figure doesn't just have to be wage income; it includes interest, dividends, capital gains; none of that can exceed $3,650.

→ Could a same sex couple form an LLC, or incorporate legally, and then file corporate taxes? Treat your relationship as a business?

That's a very complex question, and depends on a lot. You can certainly form a corporation and put your jointly held assets in there, but some other complexities that could be negative. I wouldn't be able to answer that without knowing a lot of other information.

→ What if one partner makes more than the other, but it all goes into the same pot? Do you have to worry about the $13,000 gift tax limit?

There's a temporary tax law in place that allows a lifetime exemption of $5 million through the end of 2013. That's a new law that came into play January 1, 2011. That's an opportunity I see for same sex couples to gift half an apartment that one owned before they got together, half a brokerage account, etc., to make things a little more level in the relationship.

→ It's too late to change aspects of co-ownership or financial responsibilities for their 2010 return, but what can people do in the coming year to make it easier to file their 2011 taxes?

They should combine their assets legally, make sure they're both on the deed of their home and liable for the mortgage, and should have joint bank accounts. Likewise, if possible in the state they're in, if they have children, they should make sure to both be legal parents, whether they're adopted or biological.

However and wherever you file, tax day is April 18th this year. Same sex couples with questions can turn to specialists like Lambda Legal, Salandra's Numerical LLC, and the planning firm Christopher Street Financial.

Thursday, March 3, 2011

Jon Davidson: DOMA: What Will Congress Do?

well laid out as to what next with DOMA
Jon Davidson: DOMA: What Will Congress Do?: "- Sent using Google Toolbar"

This has been a dramatic and historic week in our fight for LGBT equality. Just yesterday, the Department of Justice (DOJ) filed papers in our case representing Karen Golinski, a federal judicial employee who has been denied equal medical coverage for her wife.

It was only last week that the president and attorney general announced that the federal government would no longer defend Section 3 of DOMA, the section that requires the federal government to ignore and discriminate against the marriages of same-sex couples, because they have concluded it is unconstitutional. The government was required by the judge in the Golinski case to explain how it intended to defend its decision to deny equal medical benefits covering Golinski's wife since the government had relied upon the very law it now agrees is unconstitutional. The government's lawyers stated that while they have concluded that Section 3 of the so-called Defense of Marriage Act (DOMA) is unconstitutional, they will continue to enforce it until it is struck down or repealed. Golinski and her wife will not get equal medical coverage today.

And in two separate DOMA challenges, one brought by our colleagues at Gay & Lesbian Advocates & Defenders (GLAD) and the other brought by the ACLU, the DOJ sent letters to the courts indicating they would "cease defending Section 3" in those matters.

What does this all mean?

First, there is a far-reaching element of the attorney general's announcement last week that will take us beyond DOMA: The DOJ concluded that laws that treat people differently on the basis of sexual orientation demand "heightened scrutiny" by courts, which means that such laws are presumed unconstitutional. When heightened scrutiny is required, the burden is on the government to prove that a law, at least, substantially relates to advancing an important government interest. The DOJ does not have the authority to establish this level of review in the law -- only courts can do that. But the opinion of the president and attorney general carry considerable weight. Courts will take it seriously.

Some anti-gay discriminatory laws have not survived even a lesser level of review, but when heightened scrutiny is applied, anti-gay laws fall quickly. When this standard of review is adopted, unfair laws like those that exclude same-sex couples from marriage, adoption and equal custody rights will be struck down. That's huge.

Second, DOMA is still in effect. The executive branch, through the DOJ, has announced its legal opinion and its decision to stop defending Section 3 of DOMA in court. But the law remains in effect until a court strikes it down or Congress repeals it. In fact, in their response late yesterday in the Golinski matter, the president and attorney general made clear their intention to continue to enforce DOMA as long as it is still in effect, in accordance with their constitutional duty to "uphold the laws."

The most interesting and still unanswered questions arise with respect to the five pending cases where DOMA is challenged: Gill v. U.S. Office of Personnel Management (OPM); Pedersen et al. v. OPM; Commonwealth of Massachusetts v. U.S. Department of Health and Human Services; Dragovich v. U.S. Department of the Treasury; Windsor v. United States and Golinski v. OPM. In the two cases filed by GLAD and the Commonwealth of Massachusetts, the government previously defended DOMA. The federal district court in those two cases ruled that DOMA was unconstitutional, and the federal government appealed. The Court of Appeals has now asked whether the government will withdraw its appeal. In the two other cases filed more recently by the ACLU and GLAD, the government has already filed notice that it will not defend DOMA. And in Lambda Legal's Golinski case, as noted above, the government will continue to try to defend its decision to deny insurance on procedural grounds, arguing that the executive branch is not bound by a federal judge's order that equal benefits must be provided. because they are bound, instead, by DOMA.

But what will Congress do? Here the story gets more complicated in ways that may prolong the life of this ugly and discriminatory law -- but, we are confident, not save it in the end. In the rare circumstances when the executive branch declines to defend a law that it has concluded is unconstitutional, Congress may try to enter the case to defend it instead. Either chamber may order its counsel to seek to file an amicus brief or to intervene, but given the current political configuration, only the House is likely to consider this action.

The first time the executive branch decided not to defend a law passed by Congress was back in 1926, when President Wilson objected to a law passed by Congress that limited the president's power to remove postmasters. When the case got to the Supreme Court, it appointed a sitting Senator to represent the legislative branch as amicus and had him argue the case -- and then the court sided with Wilson. There have been a number of cases where one or both houses filed briefs as amici, and one, INS v. Chadha, in which they passed resolutions instructing counsel to seek to intervene at the court of appeal. This was granted, leading to the Supreme Court subsequently referring to the House and Senate as "parties" to the case. However, the Supreme Court did not issue any decision as to whether that was proper or not (In INS v. Chadha, the Reagan DOJ refused to defend a law allowing either house of Congress to "veto" a discretionary decision of the attorney general not to deport someone. The Supreme Court had struck down the law in 1983.)

Congress shouldn't seek to intervene to defend DOMA -- but we are afraid they will try. We believe the law is unconstitutional, and now the president and the DOJ think so too. The most recent judge to rule on the matter has ruled it unconstitutional. President Clinton, who signed the law in 1996, now disavows it. And most importantly, approximately 50,000 same-sex couples who have married in Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, California and the District of Columbia are facing blatant discrimination from their own government and being treated differently than their neighbors and family members. This is not only unconstitutional -- it's un-American.

But there is a good chance that the House of Representatives will seek to intervene because some influential members think it is politically advantageous to do so. They won't be able to defend the law with anything more than the tired old arguments based on prejudices that are no longer working in court, because they are wrong. But they may still try because they believe they can fire up their base by attacking two political adversaries -- LGBT people and the president -- at once.

The political backlash has already been furious -- and inaccurate. Former Speaker of the House Newt Gingrich has suggested that President Obama could be impeached for his actions. House Majority Leader Eric Cantor (R- Va.) said that he'd "never been around when a president decided not to defend a law on the books." He must not have been around all that much. Senate records show that the Department of Justice has told Congress 13 times within the last six years alone (under President Bush as well as President Obama) that it was not defending an act of Congress. Indeed, our research shows that it has happened under the administrations of at least eight presidents, including Wilson, Truman, Kennedy, Carter, Reagan, George H. W. Bush, Clinton, George W. Bush (in a case argued by now-Chief Justice John Roberts) and Obama. Claims that President Obama has done something unprecedented or lawless are simply not true.

We are on a legal roller-coaster, and the ride has been pretty exciting, but we still have a long way to go. DOMA is still in effect and must be defeated in court or repealed. Instead of using time and taxpayer money to defend discrimination in court, Congress should put this bad law to rest by repealing it. Legislation to repeal DOMA and respect all marriages is being introduced in both the House and Senate. Members of Congress should vote for repeal promptly.

Monday, February 28, 2011

Prop 8 News from Stop8.org: DOMA for Dummies: This Week in Prop 8 for Feb 28, 2011

good summary for dummies

Prop 8 News from Stop8.org: DOMA for Dummies: This Week in Prop 8 for Feb 28, 2011: "- Sent using Google Toolbar"

Can you even believe this week?

President Obama this week ordered an end to the defense of the Defense of Marriage Act, which is huge. We'll check in with Marriage Equality USA's Molly McKay and Immigration Equality's Lavi Solloway to find out exactly what this means, in addition to talking about Dianne Feinstein's surprise announcement about DOMA's repeal.

And the surprises don't stop there. Ted Olson asked the California Supreme Court this week to expedite oral arguments against Prop Eight, and to start allowing gay couples to start marrying now.

In addition, we all thought Imperial County was out of the game for good, but a new foe popped up this week at the very last minute.

All that plus more good news from Hawaii, Maryland, Delaware, and Rhode Island. Whew!

The DOMA situation is pretty complicated, so let's break it down.

DOMA goes back to 1996, and has three main components. Section 1 just states the name Defense of Marriage Act. Section 2 says that no state has to recognize marriages from any other state. And Section 3 says that the federal government can only recognize marriages between opposite genders.

The law was passed in response to a court case in Hawaii, Baehr versus Miike, which fifteen years ago looked like it might legalize same sex marriage. We'll come back to that case in just a few minutes.

Now, in the last few years, five court cases have challenged DOMA in different ways. The one thing that ties them all together is that they all have awkward names.

First is Commonwealth of Massachusetts versus United States Department of Health and Human Services. Then there's Gill versus the Office of Personnel Management, Dragovich versus the US Department of the Treasury, Golinski v. United States Office of Personnel Management and Pedersen et al. versus the Office of Personnel Management, and Windsor versus United States.

And there have been other challenges, but those six are the most recent and the most likely to succeed. By the way, big big thanks to Box Turtle Bulletin for gathering a lot of this information together.

So, these cases were filed in 2009 and 2010, and the circumstances of each one is a little bit different.

Since Massachusetts legalized marriage equality, the state Attorney General there sued over Section 3 of DOMA when a legally marriage couple was denied burial in a federal veterans' cemetery. Judge Tauro, of the US District Court for Massachusetts in the First Circuit, ruled in our favor in July of 2010. The Department of Justice Appealed in October.

Gill was also filed in US District Court in Massachusetts, also challenged Section 3, also was decided in our favor by Judge Tauro in July of 2010. And also was appealed by Justice in October of 2010.

Dragovich is in the District Court for the Northern District of California, part of the Ninth Circuit, and concerns retirement benefits. That one again challenges Section 3, and although it hasn't yet been decided by Judge Wilkin, she did indicate that she was likely to rule in our favor.

Golinski's interesting because Karen Golinski isn't just a federal employee -- she's an employee of the Ninth Circuit Court of Appeals. And even though a judge has already ordered that she's entitled to spousal benefits, the federal government refuses to obey because of DOMA. So now, she's not just an employee -- she's also a plaintiff.

Pedersen was filed in the District Court of Connecticut, which is part of the Second Circuit. That's important because there's no precedent in the Second Circuit for dealing with sexual orientation discrimination. Five couples sued, again over Section 3, with filings due in March. The judge in that case is Vanessa Bryant.

And finally, Windsor. A couple from New York got married in Canada, one of them passed away, and the survivor was taxed on the estate as though they were single. Filings are due in March, the case challenges Section 3, the judge is Barbara Jones, and the court is US District Court for the Southern District of New York. Also part of the Second Circuit.

Okay. Got all that? Now, here's what's changing.

Until this week, Obama and Attorney General Eric Holder have gotten a lot of criticism for defending DOMA. Their rationale was that precedent compelled them to defend existing law.

Of course, they weren't defending it very hard. That annoyed anti-gay groups, who felt that they could do a better job.

Now, the Justice Department is saying that in the Second Circuit courts, Section 3 of DOMA is unconstitutional. So that means that they won't defend DOMA in Pedersen or in Windsor. They also said that they'll cease to defend DOMA in the first circuit court.

In Dragovich and Golinski, they still might. That's because "unconstitutional" in one court doesn't necessarily equal "unconstitutional" in another court. It's complicated. In essence, their position is that if you just casually glance at DOMA, there might potentially be a rational basis for keeping it around. But if you strictly scrutinize it, then it falls apart. COMPLICATED.

So, what's next?

For now, DOMA's still on the books. And with Justice out of the way, anti-gay members of Congress have the opportunity to step in and defend it themselves, which is what a lot of anti-gay groups wanted to happen all along.

They have until mid-March to decide exactly what they're going to do, but they've been preparing for this for weeks just in case, so we expect them to have a pretty well-organized campaign.

This could also affect on a lot of other cases, starting with Prop 8 case.

I caught up with Marriage Equality USA's Molly McKay in the Castro this week to find out more.

Matt: "So, how do you think the wording of Obama's decision, specifically about using strict scrutiny, how is that going to affect, or potentially could affect, the Prop 8, Perry versus Schwarzenegger? Do you think that could have some ramifications?"

Molly: "Absolutely. The fact that they've weighed in and the President of the United States and the Attorney General of the United States lay out the case for why they believe that heightened scrutiny should apply for sexual orientation is really powerful. And will make a huge difference in the litigation as it's moving forward. That was as big as what they declared today, really."

And oh yeah! The American Foundation for Equal Rights requested this week that the Supreme Court expedite oral arguments against Prop 8 and that the Ninth Circuit Court lift the stay.

The Prop 8 case lives in two different courts right now: the California Supreme Court is considering standing, or who has the right to defend Prop 8. The Ninth Circuit Court of Appeals is deciding whether Prop 8 is constitutional.

If the courts agree with AFER, then it could mean that we'll hear arguments really soon about who has standing to intervene, rather than in September as was originally planned. It would also mean that the Ninth Circuit would issue its decision on constitutional grounds much sooner. It could also potentially mean that gay couples could start getting married right away. Like, this afternoon. So ... ?

Matt: "What do you think the chances are of them expediting the arguments?"

Molly: "Honestly? Hope springs eternal. No matter what, whether it's spring, summer or fall, we will be there, back on the California Supreme Court steps, and we will be watching that hearing. In some ways, it's sort of a side-journey, because ultimately that case may be the one that's decided on the constitutional merits and things are moving faster, the world's moving forward. It's a great suit, can't have better legal advocates. So whether we win on standing or even better maybe the Constitutional issues, change is in the air for sure. And of course, we're so lucky to have a front seat to so much that goes on here. But it calls us to be responsible for that, and to make sure that we show up and we represent our entire country on all of these issues, because this is where so much of it is happening. And the fact that Feinstein, our Senator, is now the one repealing DOMA! Huge! Totally exciting. California rocks."

Oh yeah! Dianne Feinstein. We're not even done talking about the major surprises this week. Senator Dianne Feinstein announced that she intends to introduce a bill to repeal DOMA. So even though there's all these judicial challenges floating around, DOMA might disappear legislatively.

That's a big deal for everyone, but especially for folks working towards immigration equality. The US continues to deport legally married spouses because of DOMA. For more on what that means, let's check in with Lavi Soloway. He's the founder of Immigration Equality and Stop the Deportations.

Matt: "So, Lavi, tell me about one or two of the binational couples that you're representing. Before today, what was your strategy for fighting their deportation?"

Lavi: "Sure. We're representing a group of about a dozen gay or lesbian binational couples, all of whom are married. And in each case, the foreign spouse is in deportation proceedings. And our strategy beginning last summer when the Defense of Marriage Act was struck down as unconstitutional in Boston by a federal court judge, our strategy has been to file I-130 petitions, which are marriage-based green card petitions, on behalf of those couples. And to fight for a halt in deportation while those petitions are being considered."

Matt: "So, before today, what was the administration's response to those petitions?"

Lavi: "Well until today, the expectation was that because of of the Defense of Marriage Act, those petitions would necessarily be denied. That all changed on Wednesday, though. Because if the administration, if we take the administration at its word that it truly believes that he Defense of Marriage Act is unconstitutional, it's clearly acted consistently with that by withdrawing its defense from cases currently pending in the first circuit, we also expect them to exercise prosecutorial discretion, for example in the immigration cases, and not give effect to unconstitutional and discriminatory law, the Defense of Marriage Act. We now have two new voices arguing our position. President Obama and Attorney General Holder. And we believe that we will soon be able to expand our outreach effort to Secretary Napolitano and Secretary Clinton and try to bring in all government agencies that have discretion in how they deal with gay and lesbian bi-national couples, to try to put in some intermediate policy measures that will ensure that as DOMA is being dismantled, being relegated to history, that it does not any more have its pernicious discriminatory effect."

Matt: "So one more bonus question: what do you think of Dianne Feinstein's bill? Do you think it'll have any impact on your work and whether it'll have an impact on the Prop 8 cases, whether those'll have an impact on her? How does this change the ecosystem?"

Lavi: "We're really excited to see Senator Feinstein's announcement on Wednesday that she'll be introducing a bill in the Senate to repeal DOMA. It was followed the next day by Representative Nadler in the house, announcing that he would re-introduce the DOMA repeal bill, Respect for Marriage Act, that had 128 co-sponsors in the last Congress. We believe that this is extremely important because with a DOMA repeal bill pending in Congress, we'll now have all three branches of government in unison all working towards the end of DOMA. Again, the executive branch declaring it unconstitutional, the Congress working to repeal it, and the Judiciary, which has so far struck it down as unconstitutional."

Matt: "What do you think its chances are in Congress? With the election bringing so many Republicans into Congress, is it going to face a hostile reception?"

Lavi: "I think that the introducing a bill to repeal DOMA in the present Congress is a brilliant move, and a wise tactic. Not because we're necessarily sure that we can count up enough votes to pass it into law, but because any bill like this typically takes a lot of work to build a foundation of support. In the last Congress, we saw 120 Democrats joining together to co-sponsor the Respect for Marriage Act. We hope we can top that number in this Congress and add a healthy group of Senators. Senator Leahy announced today that he would join Senator Feinstein as a co-sponsor. And this is the road to victory. It's not necessarily a question of whether it would pass this year or next, but whether or not we can build on substantial support that exists in Congress, perhaps even expand this to become bi-partisan, and eventually pass it and repeal it. I think it's very important that Congress take responsibility to repeal DOMA because in a sense that's the branch of government that should be held accountable for passing it into law in the first place."

Matt: "Right. Well Lavi Soloway, thank you so much for joining us."

Lavi: "Sure."

Okay. I think that's everything with DOMA for this week.

Aside from AFER's requests, the Prop 8 case was pretty quiet this week until Friday, when a clerk from Imperial County stepped in, and said that he wanted to defend Prop 8. They've tried this before, and they messed it up pretty royally. Maybe this time they'll have more success. They only sure thing is that it means more delays.

Big headlines across the country this week: in Delaware, lawmakers anticipate introducing civil union legislation sometime next month. In Hawaii, Governor Neil Abercrombie signed civil unions into law, a long-fought battle that started 15 years ago with Baehr versus Miike -- which, I told you we'd come back to that case. In Rhode Island, a new survey shows a majority support marriage equality, which as always, is our cue to recognize that Rhode Island, you've got style. And the Maryland Senate passed a marriage equality bill.

So start planning your wedding now.

To find out when marriage is coming to your state, subscribe to our weekly updates. And click over here to watch our recent episodes and get all caught up.

See you next week, at which point we may all be getting married.

Friday, February 25, 2011

Court: NYer in gay marriage can inherit as spouse - Topix

Court: NYer in gay marriage can inherit as spouse - Topix: "- Sent using Google Toolbar"

NEW YORK (AP) -- A New York appeals court has upheld a ruling allowing a survivor of a same-sex marriage to inherit as a spouse. Gay-rights advocates say it's the first appellate ruling of its kind in the state.

J. Craig Leiby and H. Kenneth Ranftle were legally married in Canada. Thursday's appellate ruling says Leiby is therefore entitled to recognition as the surviving spouse in a dispute over Ranftle's estate. He died in 2008.

One of Ranftle's brothers, Richard, had challenged the legitimacy of the marriage and sought to contest the will. It left most of the estate to Leiby.

Richard Ranftle's lawyer didn't immediately return a call. A lawyer for Leiby notes the decision builds on New York court rulings recognizing out-of-state gay marriages in other contexts, such as health benefits.

Wednesday, February 23, 2011

Statement of the Attorney General on Litigation Involving the Defense of Marriage Act

Statement of the Attorney General on Litigation Involving the Defense of Marriage Act: "- Sent using Google Toolbar"

Department of Justice
Office of Public Affairs
Wednesday, February 23, 2011
Statement of the Attorney General on Litigation Involving the Defense of Marriage Act

WASHINGTON – The Attorney General made the following statement today about the Department’s course of action in two lawsuits, Pedersen v. OPM and Windsor v. United States, challenging Section 3 of the Defense of Marriage Act (DOMA), which defines marriage for federal purposes as only between a man and a woman:

In the two years since this Administration took office, the Department of Justice has defended Section 3 of the Defense of Marriage Act on several occasions in federal court. Each of those cases evaluating Section 3 was considered in jurisdictions in which binding circuit court precedents hold that laws singling out people based on sexual orientation, as DOMA does, are constitutional if there is a rational basis for their enactment. While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard.

Section 3 of DOMA has now been challenged in the Second Circuit, however, which has no established or binding standard for how laws concerning sexual orientation should be treated. In these cases, the Administration faces for the first time the question of whether laws regarding sexual orientation are subject to the more permissive standard of review or whether a more rigorous standard, under which laws targeting minority groups with a history of discrimination are viewed with suspicion by the courts, should apply.

After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases. I fully concur with the President’s determination.

Consequently, the Department will not defend the constitutionality of Section 3 of DOMA as applied to same-sex married couples in the two cases filed in the Second Circuit. We will, however, remain parties to the cases and continue to represent the interests of the United States throughout the litigation. I have informed Members of Congress of this decision, so Members who wish to defend the statute may pursue that option. The Department will also work closely with the courts to ensure that Congress has a full and fair opportunity to participate in pending litigation.

Furthermore, pursuant to the President ’ s instructions, and upon further notification to Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation of the President's and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.

The Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense. At the same time, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because – as here – the Department does not consider every such argument to be a “reasonable” one. Moreover, the Department has declined to defend a statute in cases, like this one, where the President has concluded that the statute is unconstitutional.

Much of the legal landscape has changed in the 15 years since Congress passed DOMA. The Supreme Court has ruled that laws criminalizing homosexual conduct are unconstitutional. Congress has repealed the military’s Don’t Ask, Don’t Tell policy. Several lower courts have ruled DOMA itself to be unconstitutional. Section 3 of DOMA will continue to remain in effect unless Congress repeals it or there is a final judicial finding that strikes it down, and the President has informed me that the Executive Branch will continue to enforce the law. But while both the wisdom and the legality of Section 3 of DOMA will continue to be the subject of both extensive litigation and public debate, this Administration will no longer assert its constitutionality in court.

Wednesday, February 16, 2011

Gay City News > Marriage Equality NY Stages Biggest Capitol Push

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In its largest Albany effort to date, the grassroots group Marriage Equality New York (MENY) organized roughly 300 activists for its annual legislative lobby day on February 8.

The effort resulted in meetings with state senators or their staffs from 58 of the 62 Senate districts, including a 15-minute sit-down with Dean Skelos, the Long Island Republican who is the majority leader.

“Senator Skelos listened attentively, and I felt he was genuinely interested in our story,” said Habi Reilly, a Cedarhurst mother with a 34-year-old gay son who attended the lobby day with her husband, Joe. “He said he was planning to present the bill to his conference.”

Anne Tischer, a longtime lesbian activist from Rochester, also called on Republicans, holding meetings in three of the four GOP State Senate offices that represent that area. Reflecting on meetings with Senator Joseph Robach and staff members of Senators James Alesi and George Maziarz, she said, “It’s new that they are talking in concert.” Elaborating on what it meant that Republicans are discussing the issue within their own ranks, Tischer explained, “They don’t want to be viewed as obstructionist… That’s why we got such a good hearing.”

Tischer concluded, “This is the most optimistic I have been in the eight years I have been doing marriage equality activism.”

Winning over Republicans, of course, is critical. When the Senate took up marriage equality in December 2009, the bill failed on a 38-24 vote, with eight Democrats joining every single Republican in voting no. The GOP now controls the Senate 32-30. No Republican has yet announced his support for equal marriage rights, and the tally of Democratic supporters has grown by two, to 26 of their 30 members.

Somewhere among the remaining four Democrats and the 30 Republicans, six votes have to be found, and, as importantly, the GOP majority, which is the gatekeeper on which bills receive floor consideration, has to agree to allow the measure, passed three times by the heavily Democratic Assembly, to be considered again.

On that second score, the news continues to be promising. In October, when Skelos was in the midst of his party’s drive to recapture the Senate after two years in the minority, he told the Log Cabin Republicans he would take the bill up with his party colleagues and expected them to agree to a floor vote.

The majority leader has met with marriage equality advocates in his district office on several occasions, but in the past he has generally not made himself available during a work-week lobbying effort. On a day when many senators pleaded other business in tasking their staff to meet with marriage activists, Skelos’ willingness to sit down for a meeting, as gaping budget problems consumed Albany, was noteworthy.

The following day, after a Manhattan breakfast hosted by Crain’s New York, Skelos, in comments first reported by the Advocate, said he expected a governor’s “program” bill on marriage equality to come from Democrat Andrew Cuomo, and that he would make Chelsea Democratic Senator Tom Duane, the only out gay member of the chamber, the sponsor.

That comment was significant in two respects. First, it was another in a series of confirmations by Skelos that he expects marriage equality to be on the Senate agenda this year. The majority leader also took the extraordinary step of giving a member of the minority party control of legislation that could win passage.

“That’s an amazing sign,” out lesbian City Council Speaker Christine Quinn said of Skelos’ anointing of Duane as the bill’s sponsor. “That is really unusual. No one would be shocked if he had given it to someone in his conference.”

Asked for comment, Duane’s office told Gay City News in an email message that the senator “was pleased to hear about Senator Skelos’ comments. Joined by strong support and partnership with Governor Cuomo, Senator Duane continues to work with all members of the State Senate to make marriage a reality in New York State.”

Quinn herself met with Skelos the day before the MENY activists were in Albany. She acknowledged that much of the conversation concerned the state budget and emphasized that it was a private meeting she would not discuss in detail, but the speaker added, regarding the issue of marriage, “He was very consistent with his public statements that he was willing to allow the bill to move forward.”

Both Tischer and the Reillys commented that the turnout and execution of this year’s lobby day demonstrated the growing sophistication of grassroots efforts aimed at winning equality. Their views were echoed by others on hand in Albany that day.

“It was really well organized,” said RoseAnn Hermann, a Westchester mother of a lesbian and two sons, one gay and one straight. Among several meetings she attended, she joined a group of about 20 in speaking with an aide to Staten Island Republican Andrew Lanza.

“We had straight clergy, Staten Island parents, gay and lesbian couples, local business owners,” Hermann said of that meeting. “It was really a microcosm of our society.”

Joann Prinzivalli, another Westchester activist who is a leader of the New York Transgender Organization (NYTRO), also praised MENY’s success in putting the event together, saying it was like a smaller-scale Equality and Justice Day, the annual Albany lobbying push by the Empire State Pride Agenda scheduled this year for May 10.

Noting the difficulty she encountered getting a marriage license in White Plains where she lives — “If I can’t marry a man, I ought to be able to marry a woman,” she recalled telling the New York City clerk’s office, which finally granted the form — Prinzivalli said, “Marriage equality is a trans issue, as well as an LGB issue.”

She acknowledged, however, that should the Senate take up equal marriage rights prior to the Gender Expression Non-Discrimination Act also pending, she “would like to see those I’ve worked with on marriage help out on GENDA.”

After her meeting with Rochester-area Senate offices, Tischer feels confident that Republicans know the time has come for satisfying the demand by New York same-sex couples for relationship recognition, even if some in the GOP hold out hope that civil unions will do the trick.

“They were testing the waters,” she said of the reaction she got in her meetings last week. Republicans were told in no uncertain terms, Tischer added, that nothing less than full marriage rights was acceptable.

“They know that marriage means money for New York State from weddings here,” she said. “And they see the polls. Now it’s a matter of getting the politics done. And addressing their fear of facing a primary challenge or losing the Conservative Party line in the general election.”

Hermann’s meeting with Lanza’s staff left her more cautious.

“It was a tough meeting,” she said, adding that the Staten Islander’s aide “had a smile on his face, but he didn’t get it. He would say, ‘Oh, but that’s just an isolated incident,’ when we would mention a problem that comes up from not having the right to marry… He was like a nice bully.”

And Dean Dafis, MENY’s New York City chapter leader, provided a reminder that more work remains to be done among Democrats as well. All four of the holdouts in that party represent city districts — and one, the Bronx’s Ruben Diaz, is implacably opposed to any gay rights advances.

The other three are Brooklyn’s Carl Kruger and Shirley Huntley and Joseph Addabbo of Queens. Dafis said that at a meeting with Brooklyn’s John Sampson, the Democratic minority leader told activists that Huntley, who was opposed by a number of gay groups in last year’s primary, could still be brought along.

Significantly, however, Dafis acknowledged that Addabbo, first elected to the Senate in 2008 with significant LGBT support, remained a tough sell. Noting that the senator himself did not sit down with advocates in Albany, Dafis said, “His office met with our folks. He’s a challenge. Maybe he could be persuaded. We are working on showing support in his district by getting community board resolutions so that he can’t say again he’s only voting the way his district feels.”


Tuesday, February 15, 2011

New York Couple Marriage License Denied On Valentine’s Day | The New Civil Rights Movement

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New York Couple Marriage License Denied On Valentine’s Day

by David Badash on February 14, 2011 · Comments (1)

A same-sex New York City couple, Rob Lassegue and Manuel Reyes, attempted to join the more than 1.2 million couples who, since 1930, have been joined in marriage at the Manhattan Marriage Bureau in lower Manhattan. Their request for a license was denied.

In this video you can hear Cathy Marino-Thomas, the board member president of Marriage Equality New York, talk about all the rights the couple won’t be able to access, (1138 federal, plus over a thousand state rights.) It’s important to remember that on top of right, and, to some, more important than the rights and responsibilities marriage affords couples, marriage means something else: respect.

You may remember Rob Lassegue and Manuel Reyes from this interview we published Saturday. I hope you’ll remember them, and all the other same-sex couples who want the rights, responsibilities, and respect that come with being able to say, “I do,” when marriage equality comes up in your state. And, please remember, it’s time to repeal DOMA too.

(Read Mike Lavers’ report, “Marriage Equality New York stages Valentine’s Day protest.” Our thanks to him for the video!)

Tuesday, February 1, 2011

New York State (NY) Poll * January 27, 2011 * Gay Marriage Wins Highest Supp - Quinnipiac University – Hamden, Connecticut

New York State (NY) Poll * January 27, 2011 * Gay Marriage Wins Highest Supp - Quinnipiac University – Hamden, Connecticut: "- Sent using Google Toolbar"

January 27, 2011 - Gay Marriage Wins Highest Support Ever In New York, Quinnipiac University Poll Finds; Voters Oppose Public Financing For State Candidates

Word format

By the highest margin ever, 56 - 37 percent, New York State voters support legislation allowing same-sex couples to marry, according to a Quinnipiac University poll released today.

This compares to 51 - 41 percent support, the previous high, measured in a June 23, 2009 survey, by the independent Quinnipiac (KWIN-uh-pe-ack) University.

In today's survey, support for gay marriage is 69 - 25 percent among Democrats and 55 - 39 percent among independent voters. Republicans are opposed 52 - 41 percent. Men back gay marriage 54 - 40 percent and women support it 58 - 34 percent. Support is highest among suburban voters, 61 - 33 percent. New York City voters support gay marriage 55 - 37 percent and upstate voters support it 54 - 39 percent.

By a 64 - 24 percent margin, New York State voters say an independent commission, not the State Legislature, should create the districts from which member of the U.S. Congress and the State Legislature are elected. Support is strongest, 70 - 21 percent, among independent voters and is over 60 percent among all other groups.

But despite pledges from Gov. Andrew Cuomo and many legislators to establish non- partisan redistricting, voters say 49 - 34 percent that they won't keep their promise.

"Gov. Andrew Cuomo didn't make a big issue of same-sex marriage in his state-of-the- state speech, but he said he was for it and so are most New Yorkers," said Maurice Carroll, director of the Quinnipiac University Polling Institute.

"New York State voter attitudes about gay marriage have shifted dramatically since April 15, 2004, when Quinnipiac University first asked about gay marriage and found voters opposed the measure 55 - 37 percent."

"There's a lot of cynicism out there. Former Mayor Ed Koch's call for non-partisan legislative and congressional redistricting won a lot of support during last year's campaign. By more than 2-1, voters like the idea. But many doubt that Albany will do it," Carroll added.

New York State voters oppose 51 - 40 public financing for candidates for governor, other statewide offices and the State Legislature. Democrats back campaign financing by a narrow 46 - 43 percent, but opposition is 63 - 29 percent among Republicans and 49 - 45 percent among independent voters.

Voters say 48 - 42 percent that state legislators who are lawyers should be required to publicly list their clients. Independent voters back this measure 57 - 35 percent while Democrats split 45 - 44 percent. Republicans are opposed by a narrow 47 - 44 percent.

"With a firm grip on their wallets, New Yorkers are opposed to spending tax dollars on just about anything, including campaign finance reform to clean up Albany," Carroll added.

Approvals for President, Senators

New York State voters approve 53 - 40 percent of the job President Barack Obama is doing, compared to his 48 - 43 percent approval December 8.

Voters approve 57 - 24 percent of the job U.S. Sen. Charles Schumer is doing and give U.S. Sen. Kirsten Gillibrand a 48 - 21 percent job approval rating.

From January 18 - 24, Quinnipiac University surveyed 1,436 registered voters with a margin of error of +/- 2.6 percentage points. Live interviewers call land lines and cell phones.

The Quinnipiac University Poll, directed by Douglas Schwartz, Ph.D., conducts public opinion surveys in Pennsylvania, New York, New Jersey, Connecticut, Florida, Ohio and the nation as a public service and for research. For more data or RSS feed- http://www.quinnipiac.edu/polling.xml, call (203) 582-5201, or follow us on Twitter.

2. Do you approve or disapprove of the way Charles Schumer is handling his job as United States Senator?

Friday, January 28, 2011

France’s Constitutional Court Upholds Same-Sex Marriage Ban - Lez Get Real

France’s Constitutional Court Upholds Same-Sex Marriage Ban - Lez Get Real: "- Sent using Google Toolbar"

France’s ban on same-sex marriages has been upheld by that country’s Constitutional Council after it ruled that two women raising four children together do not have the right to wed.

The Constitutional Council said it found no conflict between the law barring same-sex marriages as it stands and fundamental rights enshrined by the constitution.

The ruling relieves the government of any obligation to grant gays the wedding rights enjoyed by heterosexuals, however the court also said it was up to parliament to decide whether the law should change, rather than constitutional authorities,and left the door open for future legislative changes.

France has allowed civil unions between people of the same sex since 1999 but that accords fewer rights than marriage proper. Corinne Cestino and Sophie Hasslauer, who have lived together for 15 years and have four children, challenged the constitutionality of the French marriage law and had hoped that France would join EU partners including Spain, Belgium and Netherlands that have legalized same-sex marriage.

The couple’s lawyers are hoping the decision will now encourage lawmakers to draw up a parliamentary bill on same-sex marriage, which could make the issue a theme in next year’s presidential and parliamentary elections.

According to Reuters, the ruling comes as a just released opinion poll suggested views had changed radically in the past five years and that a majority of French people now accept the idea of same-sex marriage.

The results of the survey by TNS Sofres showed 51 percent of respondents in favour of gay marriage and 35 percent against. In 2006, the agency reported 51 percent opposition and 45 percent support.

Same-sex marriage is permitted in Belgium, the Netherlands, Norway, Sweden and Spain, according to the Council of Europe.

It is also permitted in South Africa, Argentina, Canada and in some U.S. states.

Thursday, January 27, 2011

Vote To Bring Gay Mariage Ban Resolution To Senate Floor Fails - WHO

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A Republican attempt to suspend Iowa Senate rules to force debate on a proposed constitutional amendment banning same-sex marriage has failed on a party-line vote.

Republican Sen. Kent Sorenson, of Indianola, asked Thursday morning to suspend the rules to consider the amendment after Senate Majority Leader Michael Gronstal called for a vote on a resolution. Sorenson's request failed on a 26 to 24 vote.

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Senators later approved Gronstal's resolution, again on party lines, adjusting Senate rules to make it more difficult to force a similar vote in the future.

Gronstal says the new rules codify longstanding Senate tradition but Republicans claim it's an attempt to prevent debate on controversial issues such as gay marriage.

Republicans want to force a vote on a measure putting a gay marriage ban before voters.

Wednesday, January 26, 2011

Gay Marriage Reaches Majority Support In 17 States | On Top Magazine :: Gay & Lesbian News, Entertainment, Commentary & Travel

Gay Marriage Reaches Majority Support In 17 States | On Top Magazine :: Gay & Lesbian News, Entertainment, Commentary & Travel: "- Sent using Google Toolbar"

A majority of people in 17 states now support giving gay and lesbian couples the right to marry.

According to a special reported titled Polling Shows Americans Support LGBT People On All Issues released Wednesday by the Human Rights Campaign (HRC), the nation's largest gay rights advocate, support for gay marriage has increased in all 50 states.

“While the American people embrace their LGBT friends and neighbors, government remains a lagging indicator of acceptance,” HRC President Joe Solmonese said in a statement. “The numbers don't lie. Americans want equal rights for LGBT citizens and lawmakers should heed their call.”

Citing research conducted at Columbia University, the report's authors found that as recently as 2004 such unions did not have majority support in any state, and only 3 states in 2008.

But in 2010, 17 states turned the corner, including Delaware (50%), Nevada (50%), Maryland (51%), Pennsylvania (51%), Oregon (52%), Colorado (52%), Washington (54%), Hawaii (54%), Maine (55%), New Jersey (55%), New Hampshire (55%), California (56%), Connecticut (57%), New York (58%), Vermont (59%) and Rhode Island (60%).

Not surprisingly, the highest majority (62%) was found in Massachusetts, the first state to legalize the institution in 2005.

According to a 2008 statistical report compiled by Nate Silver of the New York Times, another 10 states – including Iowa – are predicted to cross the 50% threshold by 2013.

Five mostly New England states – New Hampshire, Iowa, Connecticut, Vermont and Massachusetts – and the District of Columbia have legalized the union.

Majorities also exist in all three states – Maryland, Rhode Island and New York – where lawmakers are considering legalizing such unions.

Utah scored the lowest out of the 50 states, with only 22 percent in favor of gay marriage. However, that's an increase of 10% over 16 years.

The report also shows a near universal majority of people (89%) believe gay and lesbian Americans should have equal rights in terms of job opportunities.
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Wednesday, January 12, 2011

Gay marriage isn't revolutionary. It's just the next step in marriage's evolution.

Gay marriage isn't revolutionary. It's just the next step in marriage's evolution.: "- Sent using Google Toolbar"

By Stephanie Coontz
Friday, January 7, 2011;

Opponents of same-sex marriage worry that allowing two men or two women to wed would radically transform a time-honored institution. But they're way too late on that front. Marriage has already been radically transformed - in a way that makes gay marriage not only inevitable, as Vice President Biden described it in an interview late last year, but also quite logical.

We are near the end of a two-stage revolution in the social understanding and legal definition of marriage. This revolution has overturned the most traditional functions of the institution: to reinforce differences in wealth and power and to establish distinct and unequal roles for men and women under the law.

For millennia, marriage was about property and power rather than love. Parents arranged their children's unions to expand the family labor force, gain well-connected in-laws and seal business deals. Sometimes, to consolidate inheritances, parents prevented their younger children from marrying at all. For many people, marriage was an unavoidable duty. For others, it was a privilege, not a right. Often, servants, slaves and paupers were forbidden to wed.

But a little more than two centuries ago, people began to believe that they had a right to choose their partners on the basis of love rather than having their marriages arranged to suit the interests of parents or the state.

Love, not money, became the main reason for getting married, and more liberal divorce laws logically followed. After all, people reasoned, if love is gone, why persist in the marriage? Divorce rates rose steadily from the 1850s through the 1950s, long before the surge that initially accompanied the broad entry of women into the workforce.

Adopting love as the basis for marriage meant other changes, too, especially greater acceptance of the idea that men and women had a fundamental right to marry, even to people of whom their parents - and society - disapproved. By the 1940s and 1950s, many state courts were repealing laws that prevented particular classes of people from marrying. In 1967, the U.S. Supreme Court ruled that it was unconstitutional for states to prohibit interracial marriage. In 1978, that court struck down a Wisconsin law prohibiting marriage by parents who had not met prior child-support obligations. In 1987, it upheld the right of prison inmates to marry.

But huge as the repercussions of the love revolution were, they did not make same-sex marriage inevitable, because marriage continued to be based on differing roles and rights for husbands and wives: Wives were legally dependent on their husbands and performed specific wifely duties. This was part of what marriage cemented in society, and the reason marriage was between men and women. Only when distinct gender roles ceased to be the organizing principle of marriage - in just the past 40 years - did we start down the road to legalizing unions between two men or two women.

Over the ages, marriage enforced an unequal division of labor, wealth and power between men and women. Traditional English and American law gave the husband sole control over all property that his wife brought to their marriage and any income she earned during it. Husbands had the legal right - and the duty - to impose their will by force. A husband couldn't cede any rights to his wife, said the courts, "because that would presuppose her separate existence," according to Blackstone's Commentaries on the Laws.

By the early 19th century, the old ideas that women needed to be under male authority because they were more prone to sexual passion and religious error than men, and that husbands ruled the home just as monarchs ruled their kingdoms, had given way to a gentler but equally rigid gender ideology. Men were recast as benevolent breadwinners who exercised authority not because they were the patriarchal bosses of the family labor force, but because they were women's natural providers and protectors. Women were frail dependents whose nurturing nature and innate sexual purity predisposed them to sweet submission.

This redefinition of gender allowed 19th-century Americans to reconcile the new ideal of married love with a continued claim that husbands and wives had completely different rights and duties. And in the 20th century, even as the right of individuals to choose their partner became the cultural norm and legal reality, the insistence that marriage united two distinct gender stereotypes became increasingly shrill.

During the 1940s, '50s and '60s, sociologists and psychiatrists remained adamant that marriage required strict adherence to traditional feminine and masculine roles. In 1964, a year after Betty Friedan published "The Feminine Mystique," an article in a journal of the American Medical Association described beating as a "more or less" satisfactory way for an "aggressive, efficient, masculine" wife to "be punished for her castrating activity" and for a husband to "re-establish his masculine identity."

Well into the 1970s, marriage was still legally defined as a union that assigned differing marital rights and obligations according to gender. The husband was responsible for supporting the family financially, but he also got to decide what constituted an adequate level of support, how to dispose of certain kinds of property and where the family would live.

The wife, in turn, was legally responsible for providing services in and around the home, but she had no comparable rights to such services. That is why a husband could sue for loss of consortium if his spouse were killed or incapacitated, but a wife in the same situation could not. And because sex was one of the services expected of a wife, she could not charge her husband with rape.

In 1970, inspired by the Supreme Court decision that interracial couples had the right to marry, two Minnesota men applied for a marriage license. Asked by a reporter which one would be the wife, their reply was: "We don't play those kinds of roles." The incident received little serious attention. Most Americans could not imagine a marriage in which one partner did not assume the dominant role of husband and one the subordinate role of wife.

During the 1970s and 1980s, however, a new revolution in marriage rolled across North America and Europe. As feminists pressed for the repeal of "head and master" laws enshrining male authority in the household, legal codes were rewritten so that they no longer assigned different rights and duties by gender. Over time, people came to view marriage as a relationship between two individuals who were free to organize their partnership and their parenting on the basis of their personal inclinations rather than pre-assigned gender roles. Today, as Judge Vaughn Walker noted in his decision striking down California's Proposition 8, which banned same-sex marriage, "gender no longer forms an essential part of marriage; marriage under law is a union of equals."

Gender neutrality has made many marriages fairer and more fulfilling than ever before, which has in turn been a big factor in the falling divorce rates and steep decline in marital domestic violence over the past 30 years. And spouses who share an egalitarian viewpoint report above-average levels of marital happiness, according to researchers.

The spread of gender-neutral attitudes about heterosexual marriage has also undercut support for limiting marriage to a man and a woman. Although well-financed campaigns against same-sex marriage still generate victories on Election Day, hard-core opposition has steadily eroded. In October, the Pew Research Center reported that for the first time in its 15 years of polling, less than half the public opposed same-sex marriage. That poll also found that 42 percent actively supported it - still less than a majority, but a new high. Two other national polls have found that a small majority of Americans endorse same-sex marriage.

Support for same-sex marriage is already higher than support for interracial marriage was in 1970, three years after the Supreme Court struck down anti-miscegenation laws. And since young adults ages 18 to 29 are the group most supportive of same-sex marriage, it is largely a matter of when, rather than if, a majority of Americans will endorse this extension of marriage rights.

Opponents of gay marriage argue that this trend will lead to the destruction of traditional marriage. But, for better and for worse, traditional marriage has already been destroyed, and the process began long before anyone even dreamed of legalizing same-sex marriage.

People now decide for themselves who and when - and whether - to marry. When they do wed, they decide for themselves whether to have children and how to divide household tasks. If they cannot agree, they are free to leave the marriage.

If gay marriage is legally recognized in this country, it will have little impact on the institution of marriage. In fact, the growing acceptance of same-sex marriage - an indication that it's not just the president's views that are "evolving" - is a symptom, rather than a cause, of the profound revolutions in marriage that have already taken place.


Candian Court Rules on Religious Opt-Outs for Marriage Officials :: EDGE New York City

Candian Court Rules on Religious Opt-Outs for Marriage Officials :: EDGE New York City: "- Sent using Google Toolbar"

An appeals court in Saskatchewan has issued its verdict about a proposed law that would allow government employees to cite their religious faith in refusing services to gays and lesbians.

The case dealt specifically with marriage commissioners seeking the legal right to refuse to preside over weddings for same-sex couples. A law to that effect had been proposed, and the Saskatchewan Court of Appeal was asked by the Saskatchewan government to consider whether the bill met constitutional muster. Arguments were made before the court in May, 2010, the Canadian Press reported. Two days of hearings explored the needs of gay and lesbian couples to be treated equally before the law, as well as rationales for allowing people with anti-gay religious outlooks to carry those beliefs into the workplace. Proponents of the proposal said that gay families could always go to someone willing to marry them. GLBT equality advocates argued that such a law would set a civil rights-damaging precedent that could lead to future curtailments for gays and lesbians.

A constitutional scholar, John Whyte, told the Canadian press, "The case is significant on the very issue itself," recalled the Vancouver Sun in a Jan. 9 article. "The case also opens the door--a much wider door--on the question of accommodation of religious needs." Added Whyte, "But it has some impact on the general question of accommodation of religious belief in public servants and public service generally. That’s what’s at stake here in a conceptual way, and so the case has that significance."

The government’s solicitation of an opinion from the high court marked the first time in two decades that lawmakers turned to the judiciary in deliberating potential legislation, the Vancouver Sun said.

The court ruled on Jan. 10 that such a law would not, in fact, be constitutional, and that marriage commissioners must, therefore, set aside private religious beliefs while on the job and answer their professional obligations.

The law was a response to earlier court findings that, under existing law, marriage commissioners may not refuse to serve gay and lesbian couples. Similar questions about balancing religious freedoms with ensuring that gays receive equal treatment before the law are pending in other provinces, but the court’s decision is binding only in Saskatchewan.

The provincial government had signaled that it wanted to find some compromise between those who wish to deny same-sex couples equal service on religious grounds, and the rights of all Canadian citizens to be treated equally before the law. "What we are trying to achieve is whether we can protect the rights of same-sex couples and also the rights of marriage commissioners without having to pick [one priority] over the other," Don Morgan, the province’s justice minister, had told the media prior to the court’s verdict, according to a Jan. 10 CBC News article.

Friday, January 7, 2011

Same-sex marriage bills introduced in R.I. House, Senate - Projo Politics Blog

Same-sex marriage bills introduced in R.I. House, Senate - Projo Politics Blog: "- Sent using Google Toolbar"

Same-sex marriage bills introduced in R.I. House, Senate
5:55 PM Thu, Jan 06, 2011 | Permalink
By News staff Email this author | Email this entry

By Katherine Gregg
Journal State House Bureau

PROVIDENCE, R.I. -- With the introduction on Thursday of same-sex marriage bills in both the House and Senate, the battle now begins.

In the House, Rep. Arthur Handy, D-Cranston introduced his annual bill to legalize same-sex marriage in Rhode Island. The 29 lawmakers co-signing the bill include House Speaker Gordon D. Fox.

As she introduced similar legislation in the Senate, Sen. Rhoda Perry, D-Providence, said she hoped it would get a hearing and vote early in the legislative session.

A mirror of Handy's bill, it legalizes "civil marriage'' between people of the same gender to marry, while specifying that no religious institution would be required to marry same-sex couples if that would go against their teachings.

"We want to get it going early on," she said. "We want to have debate and a hearing, and we do not want to wait until the end of the year."

The legislation has strong support in the House, where Fox, who is openly gay, has also expressed his desire for an early vote. But House Minority Leader Robert Watson, R-East Greenwich, says that while he favors "civil unions'' he draws a line when it comes to the word "marriage,'' and doesn't believe that changing the definition of marriage should be decided solely by the 75 members of the House, 38 in the Senate.

"I agree with those who say words have meaning,'' he said Thursday, citing words like "plantations'' in the official name of the state, and "illegal aliens'' as a term to describe some non-citizens. "All these words have power and meaning, and can offend and hurt and harm.

"Well, if that's the case, a civil union bill achieves what they are seeking to achieve. A gay marriage bill appears to be a little stronger ... And I would support any bill leaving this floor and going before the voters as a referendum question.''

The bill's chances in the Senate are more iffy.

Senate President M. Teresa Paiva Weed opposes same-gender marriage, which is currently legal in Massachusetts, Connecticut, New Hampshire and Vermont, but is facing a repeal effort in New Hampshire. (In Maine, voters overturned the state Legislature's approval of same-sex nuptials.)

Paiva Weed said after the brief session Thursday that it was "premature" to comment on how soon Perry's bill, which will be referred to the Senate Judiciary Committee, might be considered.

Perry said she believes the legislation would be approved if put to the full Senate, but noted that the bill, which she has introduced at least eight times in recent years, has never been put to a vote, even in the committee.

Meanwhile, a New York-based advocacy group registered its own opposition to the term "same-sex marriage.''

The Gay & Lesbian Alliance Against Defamation said it would prefer the media and the public use the phrase "marriage for gay and lesbian couples" rather than "gay marriage," "same-gender marriage," "same-sex marriage," etc.

"The reason is this,'' said media field strategist Justin Ward. "Gay and lesbian couples are not looking to change the institution of marriage; they want to be a part of the institution as it exists now.''

Wednesday, January 5, 2011

Truth Wins Out - Rhode Island Governor Chafee Uses Inaugural Address to Call for Marriage Equality

Truth Wins Out - Rhode Island Governor Chafee Uses Inaugural Address to Call for Marriage Equality: "- Sent using Google Toolbar"

, so here’s the key text, via Towleroad:

“I urge the General Assembly to quickly consider and adopt this legislation. When marriage equality is the law in Rhode Island, we honor our forefathers who risked their lives and fortune in the pursuit of human equality. Rhode Island today must be as welcoming to all as [the state's founder] Roger Williams intended it to be. Mark my words, these two actions will do more for economic growth in our state than any economic development loan.”

Maggie Gallagher’s 2011 resolution, of course, is to find faster, more efficient ways to play Whack-A-Mole.

If you’re in Rhode Island, Maggie’s organization helpfully put together a list of the Senators who’ll be voting on this, with contact info and everything. Thank you, Maggie, for working so tirelessly, and accidentally, for gay equality!
Tags: Lincoln Chafee, Maggie Gallagher, marriage equality, Rhode

Tuesday, January 4, 2011

Federal Appeals Court Sends Prop 8 Case On Detour To State Supreme Court: News: SFAppeal

Federal Appeals Court Sends Prop 8 Case On Detour To State Supreme Court: News: SFAppeal: "- Sent using Google Toolbar"

A federal appeals court in San Francisco today sent a key question in a challenge to Proposition 8 to the California Supreme Court.

A three-judge panel of the 9th U.S. Circuit court of Appeals asked the state high court to decide whether the sponsors of the voter-approved state ban on same-sex marriage have the legal right to appeal a decision that struck down the measure.

The issue arose because former Gov. Arnold Schwarzenegger and former state Attorney General Jerry Brown, who is now governor, declined to defend the voter initiative in the trial of a civil rights lawsuit.

The state officials were the original defendants in a lawsuit filed by two same-sex couples.

The appeals court panel said the state Supreme Court must decide whether the sponsors have the right to appeal under state law.

If the state court rules that there is no such right, then the appeal must be dismissed, the court said. That would leave in place an August ruling in which U.S. District Judge Vaughn Walker of San Francisco struck down the measure.

The federal panel wrote, "This court is obligated to ensure that it has jurisdiction over this appeal before proceeding to the important constitutional questions it presents, and we must dismiss the appeal if we lack jurisdiction."

If the California Supreme Court concludes that the sponsors do have a right to appeal, the case would go back to the 9th Circuit, which would then decide whether the initiative violates the U.S. Constitution.

But the detour to the state high court would delay a final ruling in the case for at least several months.

Proposition 8, enacted by voters in 2008, provides that only marriage between a man and a woman is valid in California.

Walker's ruling striking down the initiative has been put on hold during the appeal process.

Julia Cheever, Bay City News