S. 1102, The Domestic Partnership Benefits and Obligations Act, sponsored by Sen. Joe Lieberman (I-CT), and Sen. Susan Collins (R-ME) has been scheduled for a hearing in the Senate Homeland Security and Governmental Affairs Committee on Dec. 16th, to consider amendments to the bill before voting to pass it on to the Senate floor for full debate. Lieberman is Chairman of that committee.
The Domestic Partnership Benefits and Obligations Act (DPBO) would provide the same family benefits to lesbian and gay federal civilian employees as are already provided to employees with different-sex spouses. To receive benefits, employees would have to submit an affidavit of eligibility for benefits with the Office of Personnel Management, certifying that the employee and domestic partner meet necessary criteria, as provided in the Act.
Last month the House Oversight and Government Relations Committee voted 23-12 to send its version of the DPBO Act, H.R. 2517, sponsored by Rep. Tammy Baldwin (D-WI) and Ileana Ros-Lehtinen (R-FL) to the House floor for a vote.
In a ceremony at the White House in June, President Obama voiced his support for the measure.
Fifty-nine percent of Fortune 500 companies currently provide domestic partner benefits to their employees. In addition, 22 states, the District of Columbia, and over 150 local governments make benefits available to public employees and their same-sex partners. DPBO would bring employment practices in the federal government in line with those local governments and companies.
In late November, a judge ordered Obama's administration to enroll a lesbian federal employee's partner into their health benefits program. With 30 days to comply sprinting by, it appears they won't act on the order.
The administration already has a long history of defending anti-LGBT laws it says are discriminatory but must protect because their "job description" tells them so. However, openly gay Director of the Office of Personnel Management John Berry, who ironically is going along with the administration and told Blue Cross/Blue Shield to not extend the benefits to his fellow gay citizen, says he nor Obama have the authority to follow the judge's order. Huh? He spoke at the International Gay and Lesbian Leadership Conference Saturday.
I guess they're simply hoping that Rep. Tammy Baldwin's Domestic Partnership Benefits & Obligation Act succeeds so that they won't have to take responsibility for anything. That's a rather cowardly strategy in my opinion. And I would bet that the legislation won't pass by the time the 30 days are up. So what is the administration going to say then?
But here's some actual good news. Openly gay Reps. Baldwin and Jared Polis, "said they are also confident that the House will include in the annual military spending bill next year a provision to repeal the law that bans gays from serving in the U.S. military. All the measures face a harder time in the Senate following the death of longtime ally Sen. Edward Kennedy, but Baldwin and Polis said they remained optimistic Senate leaders would."
“I’m hopeful we will see those three pieces of legislation make it all the way, or damn close,” said Baldwin, referring to the Domestic Partnership Benefits, DADT and ENDA.
Office of Personnel Management director John Berry, the Obama administration’s highest ranking gay appointee, told the conference that the president strongly supports the trio of gay rights measures.
Including transgender workers as part of the legislation to ban job discrimination and lifting the “don’t ask, don’t tell” ban on gay service members may especially meet opposition in Congress, Berry said. But he said that with a Democrat in the White House and Democratic majorities controlling the House and the Senate, victories were “within our grasp.”
I hope they're right. There's been a lot of anger recently about ENDA stalling in congress.
Everyone keeps saying, "Wait for 2010." Though I applaud Baldwin and Polis, their Democratic colleagues better come through on their promises, because with the Don't Ask Don't Give campaign growing momentum, and the recent betrayal in the New York state senate by the Democrats there, they better be doing everything they can to get these pieces of legislation through, or they just may find LGBT citizens supporting their primary opponents.
"U.S. 9th Circuit Court of Appeals Judge Stephen Reinhardt deemed the denial of healthcare and other benefits to the spouse of federal public defender Brad Levenson to be a violation of the Constitution's guarantee of due process and discrimination on the basis of sexual orientation, which is prohibited by California state law," says the Los Angeles Times.
Brad Levenson and Tony Spears were married July 12, 2008 during the time marriage equality was legal in California.
Back in February, Judge Reinhardt had ruled that the Defense of Marriage Act (DOMA), which bars gay federal employees' spouses benefits, is unconstitutional.
In his ruling, Reinhardt wrote:
"The denial of federal benefits to same-sex spouses cannot be justified simply by a distaste for or disapproval of same-sex marriage or a desire to deprive same-sex spouses benefits available to other spouses in order to discourage exercising a legal right afforded them by the state."
Wednesday's order doesn't give Levenson and Spears spousal benefits, but it does order the government to give compensation. The couple had calculated how much more they would have to spend without the benefits, and it wound up being thousands of dollars.
"The judge's order is expected to resolve the injustice Reinhardt has cited in previous orders in Levenson's case. But it also recognizes the status quo of federal government rejection of gay marriage under the Defense of Marriage Act," says the Los Angeles Times. 'Several other challenges by those denied federal benefits, like filing joint tax returns, are making their way slowly through the federal courts."
New York
Back in April, New York's high court agreed to hear anti-LGBT Alliance Defense Fund lawsuit against the state, challenging its recognition of same-sex marriages performed outside its borders and granting benefits to these couples.
Today, however, the court rejected ADF's challenge 4-3 on the narrow basis of benefits, not on whether or not the legislature should legalize marriage equality. The court also noted that under the state's constitution, same-sex marriage isn't legal but it doesn't address recognizing legally performed same-sex marriages performed in other jurisdictions.
"The effect of the majority's rationale in affirming these orders will be to permit an unworkable pattern of conflicting executive and administrative directives ... (at the) individual discretion of each agency head," Judge Carmen Beauchamp Ciparick warned in an otherwise concurring opinion.
"We ought to avoid the confusion that would arise from a same-sex couple considered legally married by one agency for one purpose, but not married by another agency for a different purpose," the judge wrote.
With Thursday's court decision, legally married same-sex couples will be entitled to public employee health insurance coverage and certain other benefits provided to heterosexual spouses.
America Blog reported, "All the government must do is prove a 'rational basis' for the legislation meaning 'a legislative policy must be upheld so long as there is any reason- ably conceivable set of facts that could provide a rational basis for it, including ones that Congress itself did not advance or consider. DOMA satisfies this standard.'"
I find it striking that the Department of Justice (DOJ) used the rational basis argument given that recently, the proponents of Proposition 8 just filed a motion for summary judgment to avoid going to trial on the federal case against the initiative. One of their arguments rest on the rational basis argument (which relies heavily on past rulings and tradition), stating that gays and lesbians are not warranted heightened scrutiny (which requires evaluation of found facts and witness testimony to determine if a law harms or helps state interest) - a stark disagreement with the California Supreme Court ruling in the marriage cases which classified gays and lesbians as suspect, putting us in the same category as race and gender among others.
Today, GLAD has responded to the DOJ by filing for a summary judgment itself. This is the same tactic used by the defendants of Prop 8 to avoid going to trial. However, on this case, this works for us.
GLAD wants the judge to issue a ruling in its favor based on law without trial. However, unlike the defendants of Prop 8 and the DOJ who do not want heightened scrutiny, GLAD does because it reveals more of the discriminatory motivations behind DOMA, thus proving there is no rational basis for it and the government should not uphold it.
No federal court has reviewed sexual orientation with heightened scrutiny. If the court agrees and reviews before the Prop 8 trial in January, it will be the first to do so.
GLAD Forcefully Responds to U.S. Motion to Dismiss DOMA Lawsuit; Seeks Final Ruling in Favor of Plaintiff Couples
Stepping up its litigation challenging Section 3 of the Defense of Marriage Act, Gay & Lesbian Advocates & Defenders (GLAD) today filed in the U.S. District Court for the District of Massachusetts both an opposition to the federal government's motion to dismiss Gill v. Office of Personnel Management, and a motion for summary judgment seeking a final ruling on the law in favor of the plaintiffs.
"Both sides agree that our plaintiffs have taken on the commitments of marriage, played by the rules, paid into the system, and been denied benefits because of DOMA," says GLAD Legal Director Gary Buseck.
"Now we're asking the court to say once and for all that the federal government must end its blatant double standard of providing rights and protections to all married couples except gay and lesbian married couples."
"While the government has rightly abandoned the reasons Congress relied on in passing DOMA in 1996, it now seeks to dismiss our case by arguing that DOMA "maintains the status quo," says Mary L. Bonauto, GLAD Civil Rights Project Director.
"The reality is that DOMA itself radically changed the status quo by which the federal government recognized and accepted state determinations of who is married. There is no valid excuse for the federal discrimination imposed by DOMA and this can be resolved now and without a trial."
GLAD argues that under Equal Protection guarantees, there is no justification for splitting married people into two classes: those who are "married" under federal law and those whose marriages do not exist for any federal purposes. "We believe that DOMA should receive 'heightened scrutiny' from the District Court for many reasons, including because it deliberately targets gay men and lesbians," said Bonauto.
More specifically, GLAD argues that
DOMA represents an unprecedented intrusion of the federal government into the states’ traditional roles in determining the marital status of its citizens.
By prohibiting married same-sex couples from accessing the safety net, the federal government provides for all other married couples, DOMA Section 3 unfairly burdens their ability to protect and care for their families.
By targeting gay men and lesbians, DOMA discriminates explicitly on the basis of sexual orientation. GLAD argues that any discrimination based upon a person’s sexual orientation should be viewed with suspicion by the court.
America Blog was available for a press conference call with GLAD that I was unable to make. They report, "Several reporters asked whether this case could ultimately end up in the Supreme Court. If it does, according to the GLAD lawyers, the ruling would impact only those states that allow same-sex marriage and would determine whether the federal government would have to respect those marriages. If the judge does find DOMA unconstitutional, it's expected that the Obama administration would appeal that ruling."
Here you will find plaintiff and expert affidavits supporting GLAD's arguments. The submission of these testimonies will be permissible under heightened scrutiny.
Earlier on Unite the Fight I reported that Massachusetts Attorney General Martha Coakley sued the federal government for discriminating against legally wed, same-sex couples because it did not extend federal marriage benefits upon them.
The Department of Justice (DOJ), under the Obama Administration, has responded with a filing in court claiming the federal government cannot be forced to extend such benefits and cites the Defense of Marriage Act (DOMA) as its reason.
The Obama administration agrees the Defense of Marriage Act, or DOMA, is discriminatory and wants it repealed, but says it has an obligation to defend laws enacted by Congress while they are on the books and can be reasonably defended.
The law "does not prohibit gay and lesbian couples from marrying, nor does it prohibit the states from acknowledging same-sex marriages," according to the court filing by Assistant Attorney General Tony West.
Massachusetts, the filing continues, is trying to claim individuals have a right to federal benefits based on marital status.
"There is, however, no fundamental right to marriage-based federal benefits," according to the 36-page filing.
DOJ spokeswoman Tracy Schmaler went on to tell the AP that any state "can allow gay and lesbian citizens to marry and can make its own decisions about how to treat married couples when it comes to state benefits."
"Massachusetts is not being denied the right to provide benefits to same-sex couples and, in fact, has enacted a law to provide equal health benefits to same-sex spouses," she said.
Like I and many others have said before, precedent has shown that an administration can choose not to defend a law that it believes to be unconstitutional (Reagan, Bush, Clinton). And since Obama does believe it is unconstitutional, I do not understand why he and his DOJ can say in one breath, "We don't like this law but we're going to defend it."
Let's top this off with quoting America Blog: "...this White House has already refused to enforce laws it didn't like - on immigration and medical marijuana - so don't lecture us about how you had to side with the religious right because of your respect for the rule of law. We simply weren't important enough."
Obama has stepped it up more lately, such as passing hate crimes legislation. I'm grateful. But this is such an affront to what the Supreme Court has already said is a fundamental right.
U.S. Rep. Pete Stark (D-California) introduced the Every Child Deserves a Family Act on Thursday which would restrict federal funding for states with adoption or foster care laws that discriminate on the basis of marital status, sexual orientation or gender identity.
Madam Speaker, I rise today to introduce legislation that will open up thousands of good homes to foster children. On any given day, there are approximately 500,000 children in the child welfare system. Over 125,000 of these abused and neglected children are waiting to be adopted. There is an acute shortage, however, of adoptive and foster parents. The result is that many children, particularly minority and special needs children, languish in foster care without permanent homes. The severe developmental, emotional, and educational costs to children raised in foster care are well documented. The 25,000 youth who never find a permanent family and “age out” of the system each year are more likely than nearly any other group to become homeless, incarcerated, or suffer with mental illness or substance abuse.
Despite the shortage of adoptive and foster parents and the terrible consequences of long stays in the child welfare system, some states have enacted discriminatory bans prohibiting children from being placed with qualified parents due to the parent’s marital status or sexual orientation. Currently, over 65,000 adopted children and 14,000 foster children are living with a gay or lesbian parent. Studies suggest that upward of 2 million gay and lesbian individuals are interested in adopting or fostering a child. Yet, statewide discriminatory bans and the practices of individual adoption agencies have resulted in fewer children being placed in safe and permanent homes.
Congress invests over $8 billion in the child welfare system each year and we should not accept policies that use Federal funds to enact barriers to adoption and close the door to thousands of potential homes. Multiple studies have found that adopted and foster children raised by gay and lesbian parents fare just as well as their peers being raised by heterosexual parents.
When considering a potential placement for a child, the only criteria should be what is in the child’s best interest and whether the prospective parents can provide a safe and nurturing home. Bigotry should play no part in this decision. That is why I am introducing the “Every Child Deserves a Family Act.” This legislation would simply prohibit any entity that receives Federal child welfare funds from denying or delaying adoption or foster care placements based solely on the prospective parent’s marital status or sexual orientation. States and child welfare agencies that fail to end discriminatory practices would face financial penalties. This is the same approach that put an end to race discrimination in adoption and foster care placements.
States with adoption restrictions that would be affected if this legislation becomes law are Utah, Florida, Arkansas, Nebraska and Mississippi, reports the Washington Blade. Other states that have considered restrictions include Tennessee and Kentucky.
The legislation, Stark told the Washington Blade, would restrict funds from states that have discriminatory adoption bans or restrictions by agencies, individual socials workers or judges. If states don't comply, federal officials could withhold funds provided to them for child welfare services. Follow-up would be done by the Government Accountability Office within five years of enactment.
Currently, no co-sponsors have stepped up to show support, but Drew Hammill, Speaker of the House Nancy Pelosi's spokesperson, said "Denying a child a loving home solely on the basis of a couple's sexual orientation is wrong and ultimately harms the child. With that in mind, we are encouraged that Rep. Stark is taking up the issue and will be monitoring the legislation's progress."
"I'd like to counter early on the arguments that will come up — sexual orientation will train the children to assume a gay lifestyle, and you know the claptrap that I'll get," Rep. Stark said. "But I think if we can have the hearings in a rather calm approach, we could put those issues to rest."
Rep. Stark hopes to find a Republican co-sponsor, then work on getting Senate companion legislation introduced.
The Human Rights Campaign, the nations largest LGBT advocacy organization has announced that while they are supportive of the bill "they will not lobby for the bill until and if it gains traction in congress"
HRC should be behind all LGBT bills (popular or not) if we can't count on the largest LGBT rights organization to lobby for this change, how can we expect this change to gain traction?
Demand HRC actively lobby for the Every Child Deserves a Family Act.
Contact your congressperson and kindly request they support and co-sponsor this legislation.
With the recent announcement that Congress will be in session during the National Equality March, I contacted Robin McGeHee, one of the chief organizers of the event, and asked her if this caused any new actions to be planned.
"We will be sticking to our main goal of training people and then sending them home to do the work that's needed to be done there," Robin said. "After their training [in Washington DC], they will be contacting their representatives at home."
Equality Across America, the organization forming out of the National Equality March, is actively involved in organizing all 435 congressional districts in the nation in an effort to gain full federal equality for all. Their goal is to have Congressional Action Teams per district, some of which have already formed and will be attending the march for training.
"Some Congressional Action Teams will be lobbying Congress over the weekend," Robin said. In order to accomplish this, they may miss out on some of the scheduled training.
The next big step to come out of the National Equality March will be to have the newly trained activists return home and plan for a national action day on November 5.
Depending on where they live and how LGBT-friendly their towns are, the activists will hold rallies or in more conservative areas, write persuasive op-eds in major local newspapers and perform other tasks to create more awareness. Some of the events may join in spirit others being planned in California to memorialize the damage caused by the passing of Proposition 8 which by then will have been a year ago. All will be encouraged to lobby their U.S. Representatives.
More information about November 5 will be given at the National Equality March.
Federal U.S. District Chief Judge Vaughn Walker, presiding over the case against Proposition 8 brought by the plaintiffs represented by the Olson/Boies team, is considering whether to order the sponsors of the Yes on 8 campaign to produce internal campaign communications and records over to the the plaintiffs.
Attorney Charles Cooper, representing the Yes on 8 campaign, claimed the documents and internal discussions were private and cited First Amendment protections on political speech and free association. Communications made to the public at large are subject to discovery, Cooper conceded, but internal discussions should remain private.
Law.com reports, "The material sought by gay marriage supporters could make for good impeachment evidence, argued their attorney, Christopher Dusseault of Gibson, Dunn & Crutcher. For instance, if the Yes campaign had commissioned a study that wound up showing that homosexuality is immutable -- and then the campaign withheld it from the public -- that would directly contradict arguments now being made in court, Dusseault said."
"That's a little speculative, Mr. Dusseault. Why not try a little closer to home," Walker said.
If the plaintiffs can show more publicly available contradictions to the defendants' court argument of state interest, then Walker indicated he would be more open to obtaining private documents.
"However, Walker appeared to be angling for some sort of compromise, asking Cooper why some sort of protective order couldn't be fashioned to avoid the pitfalls his side had elucidated," Law.com reports.
In what has been descriptive behavior of the case so far, Cooper stated in papers that if the plaintiffs get access to private documents of the Yes on 8 campaign, then he will request the same from the No on 8 campaign.
A federal judge today has thrown out a case that is challenging the Defense of Marriage Act (DOMA) due to a technicality. The Smelt case was filed by a Californian couple claiming that DOMA discriminates against gays and lesbians and consequentially, is unconstitutional.
U.S. District Judge David O. Carter ruled the case - the first of several pending challenges to the federal Defense of Marriage Act - must be refiled in federal court.
Carter said the suit had been improperly filed in state court before it was transferred to his jurisdiction. As a result, the judge said, he would not entertain arguments on its merits, at least not yet.
"There is no point for us to go down the line of decision-making and waste time," he said during the hearing in Santa Ana.
The case caused a huge rift between the LGBT population and the Obama administration when the Department of Justice filed a brief which invoked incest and pedophilia when categorizing same-sex marriage, declaring that it was not in the best interest of the government to recognize such relationships.
A more recent brief filed by the DOJ on the case attempted to make amends by stating the Obama administration believes that DOMA is in fact discriminatory and should be repealed, a stance taken by Obama during his campaign. This was met with mixed reaction from the LGBT population. Though many were happy that for the first time the administration was on court record as being against the legislation, the DOJ went on to defend it, furthering the contradictions exhibited by the administration on LGBT rights since coming to power near eight months ago.
Alliance Defense Fund attorney, Brian Raum, who is working with the government to defend DOMA, stated that Carter had grounds to dismiss the case.
The federal government cannot be sued in state courts, Raum said.
Smelt and Hammer's lawsuit could be back in a federal court in a matter of months, when "ultimately it will come down to the merits," he said.
Not surprising, the Plaintiffs in the federal case against Proposition 8, Perry vs. Schwarzenegger, and the Defendants (aka the defendant "Intervenors" aka the Yes on 8 campaign) do not agree on any of the stipulations or case schedules that the Court (aka Judge Vaughn Walker) asked them to discuss in order to submit a joint Case Management Statement (CMS). This helps set the agenda of sorts on how to proceed and what to argue. As a result, two diametrically opposed statements were issued on Friday.
The Plaintiffs want a public bench trial, something that was never done in any marriage case so far. The Defendants do not want to proceed to public trial but want to proceed through dispositive motions, which are written arguments submitted to the judge based on pass rulings, a precedent set by prior marriage cases.
Charles Cooper, the defense attorney, wrote, "This Court should follow the course set in each of the many gay marriage cases that have been litigated over the course of the last decade. In not one of these cases has a trial been held."
The core of his argument hinges on legislative facts based on prior cases involving broad subjects versus adjudicative facts, which “are simply the facts of the particular case.” He believes legislative facts can conclude the case.
He goes on to site the U.S. Supreme Court’s 1972 dismissal of a challenge (Baker vs. Nelson) to Minnesota's refusal to recognize any sort of same-sex relationship. Cooper claims this ruling is enough for this Court to rule against the Prop 8 challenge after hearing a motion in September. If the Court does not accept this argument, then Cooper proposes a late May deadline for opposing sides to submit complete reports and depositions with final briefs filed b July 2010. Final arguments and a decision would follow.
Olson disagrees with the Minnesota claim, writing, "The issue decided in Baker—a State’s complete refusal to recognize same-sex relationships—is different from the issue presented here, namely whether California may constitutionally reserve marriage for opposite-sex couples and relegate same-sex couples to the lesser and unequal status of domestic partnership."
He also states that, "The issue in this trial will not be, as Intervenors would have it, whether 'same sex marriage' is deeply rooted in this nation’s history and tradition. Rather, the issue will be whether the deeply rooted right to marry has been denied to a single, disfavored group without a compelling state interest for doing so."
Olson wants a trial to get everything on record for the appellate courts. For the record, he wants the statements made by campaign workers as they labored for Prop 8’s passage, the historic and continued discrimination against gays and lesbians, the value gay Americans offer society - including the ability to procreate and raise children in same-sex relationships, and the ever changing definition of marriage.
Olson's proposed schedule would have the case finished seven months earlier than Cooper's. Fact discovery, the exchange of evidence and rebuttal submissions would occur in September through October, a hearing on these motions in November, and a trial in front of Walker by December 14.
Olson's reasons for an expedited trial: "Given the importance of the issues raised by Plaintiffs’ claims, the Court’s decision to defer ruling on Plaintiffs’ motion for preliminary injunction, and the fact that Plaintiffs suffer irreparable harm each day that Prop. 8 remains in effect, the Court should not impose a schedule that takes more than a year to get from the filing of Plaintiffs’ Complaint to a Judgment."
Cooper balked at Olson's schedule, calling it "breakneck" and "patently unrealistic."
As for the stipulations, what were the facts that Walker asked them to discuss to see if anything can be agreed upon in order to streamline the process? Basically, all you have to do is look at the Table of Contents of the CMS statements embedded below. However, most of these Olson wants to prove through witnesses and expert testimony to have it on record while Cooper does not.
But it boils down to this (outline taken from Plaintiff's CMS Table of Contents):
I. Facts Pertaining to the Appropriate Level of Scrutiny
How deserving are gays and lesbians of being a "suspect class", which the CA Supreme Court ruled gays and lesbians deserving of when they struck down the same-sex marriage ban? In other words, what is the appropriate level of "scrutiny" do they deserve for protection against discrimination, similar to African Americans and other minority groups? By definition, a suspect class must meet four criteria or reviewed for:
Whether the group at issue has suffered a history of purposeful discrimination
Whether the characteristics that distinguish the group bear any relation to the group’s ability to participate in and contribute to society
Whether the distinguishing characteristic is immutable
The political power of the subject class
Specifically in regards to the Prop 8 case, these four issues are termed:
A. The History of Discrimination Faced by Gay and Lesbian Individuals B. Whether the Characteristics Defining Gays and Lesbians as a Class Might Affect Their Ability to Contribute to Society C. Whether Sexual Orientation Can Be Changed and, If So, Whether Gay and Lesbian Individuals Should Be Encouraged to Change It D. The Relative Political Power of Gay and Lesbian Individuals, Including Successes of Both Pro-Gay and Anti-Gay Legislation
The Defendants won't dispute the A or B; however, they do intend to "present evidence demonstrating that such discrimination has decreased significantly in recent years, both in governmental and non-governmental contexts."
They also will dispute C and D. Obviously, they believe sexual orientation can be changed. But what is alarming is their belief "that gays and lesbians wield substantial political power."
So "decreased" discrimination and "political power" (yeah, right) make current discrimination ok? We should all write the Defendants and thank them for proving our point in their CMS.
Moving on.
II. Facts Pertaining to Whether Plaintiffs’ Claims Involve a Fundamental Right and Warrant Strict Scrutiny on That Basis A. The History of Marriage and Why Its Confines Have Evolved Over Time
As already quoted, Olson states this case is not about tradition, but "whether the deeply rooted right to marry has been denied to a single, disfavored group without a compelling state interest for doing so."
III. Facts Pertaining to Potential State Interests Raised by Intervenors
A. The Longstanding Definition of Marriage in California (being between a man and a woman) B. Whether the Exclusion of Same-Sex Couples from Marriage Leads to Increased Stability in Opposite-Sex Marriages or Whether Permitting Same-Sex Couples to Marry Destabilizes Opposite-Sex Marriages C. Whether a Married Mother and Father Provide the Optimal Child-Rearing Environment and Whether Excluding Same-Sex Couples from Marriage Promotes This Environment D. Whether and How California Has Acted to Promote These Interests in Other Family Law Contexts
COOPER: "[Plaintiffs] essentially must prove that it is inherently irrational to maintain the bedrock social institution of marriage in the form it has always taken."
OLSON: "Plaintiffs will show that none of the supposed interests offered to justify Prop. 8 provides even a rational basis, let alone a compelling basis, for its unequal treatment of gay and lesbian individuals."
IV. Facts Pertaining to Whether Prop. 8 Discriminates Based on Sexual Orientation, Gender, or Both A. The History and Development of California’s Exclusion of Same-Sex Couples from Marriage B. Whether the Availability of Opposite-Sex Marriage Is a Meaningful Option for Gays and Lesbians C. Whether the Exclusion of Same-Sex Couples from Marriage Meaningfully Restricts Options Available to Heterosexuals D. Whether Requiring One Man and One Woman in Marriage Promotes Stereotypical Gender Roles
OLSON: "Plaintiffs will demonstrate at trial that Prop. 8 discriminates both on the basis of sexual orientation and on the basis of gender. It discriminates on the basis of sexual orientation because it prohibits gay and lesbian individuals from marrying the person they love. It discriminates on the basis of gender because it either allows or does not allow a person to marry a particular other person based solely on the first person’s gender."
Cooper states that they will disagree on the significance of certain facts on the history leading up to the ban in regards to the case. He also states it's an undeniable fact that gays and lesbians have married the opposite sex, but Olson counters that it's not about a "meaningful option" but about the choice to marry the one you love.
Cooper believes C and D above are irrelevant to the case, but Olson disagrees.
V. Facts Pertaining to Whether Prop. 8 Was Passed with Discriminatory Intent A. The Voters’ Motivation or Motivations for Supporting Prop. 8, Including Advertisements and Ballot Literature Considered by California Voters B. The Differences in Actual Practice of Registered Domestic Partnerships, Civil Unions and Marriage, Including Whether Married Couples Are Treated Differently from Domestic Partners in Governmental and Non-Governmental Contexts
The two sides argue this stipulation based on different interpretations of the Romer vs. Evans case (Plaintiffs use more than one case to prove their point for argument, though Defendants focus on this one), which dealt with a referendum that passed an amendment to Colorado's constitution that would have prevented any city, town or county in the state from taking any legislative, executive, or judicial action to protect homosexual citizens from discrimination on the basis of their sexual orientation.
The Supreme Court struck down this amendment as unconstitutional stating it was "inexplicable by anything but animus toward" gays and lesbians.
OLSON: "Plaintiffs will demonstrate that Prop. 8 lacks any compelling justification or even rational basis, and was driven by discriminatory intent, animus, and moral disapproval of gay and lesbian individuals individuals."
COOPER: "The Plaintiffs attempt to liken Proposition 8 to the Colorado constitutional amendment struck down by the Court in Romer. This is a false analogy . . . the Court did not direct its attention toward determining the subjective motivation of Colorado’s voter . . . Proposition 8, like Colorado’s Amendment 2, should stand or fall on the law’s relationship to legitimate governmental interests." The trial court in the case held a trial of facts, but the U.S. Supreme Court did not rely on the factual record to reach its conclusion about discriminatory intent.
Two points bear mention on the disagreement over a factual inquiry about Prop. 8's discriminatory intent. First, ADF and Cooper attorneys devote extended argument to why Judge Walker should not have a trial of the facts in this matter. Why? They appear anxious to preclude a factual inquiry that would support the argument that several gay-rights groups, and the San Francisco City Attorney, hope to make if they are allowed to intervene. This is the argument that Prop. 8 was adopted for no other reason than animus against same-sex couples, and that it thus advances no legitimate government interest. Second, if these parties had already been allowed to intervene, they would have not only dispatched arguments about Romer, but would have also explained why the Court needs a well-developed, factual record about the unique circumstances of Prop. 8's adoption.
A hearing is scheduled for August 19 to determine how this case will proceed.
According to Judge Walker's order, Ted Boies and Theodore Olson would have until August 7th to oppose a motion to intervene by the ACLU, the National Center for Lesbian Rights, and Lamda Legal Defense, and these movants would have until August 14th to respond. On August 19th, Judge Walker will hear arguments on this and any other timely-filed motion to intervene.
i implore your three organizations, lambda legal of los angeles, national center for lesbian rights, and aclu lgbt project, to not interfere with the olson/boies case. you will only botch up what they are trying to achieve. you have thus far not achieved it on your own and with your own tactics, so why are you trying to kybosh someone who has come along with fresh new energy, ideas, and clout? you are only behaving in the worst possible bitchy way, the way gay groups can fall victim to when their feelings are hurt. keep your noses out of it, will you please? i beg of you. you should be cheering these guys from the sidelines and showering them with gratitude for coming along and trying to help us in our hugely enfeebled position, brought on in great part by our inability to work together effectively ourselves. you are only perpetuating this useless behavior.
larry kramer
--------------------------------------------------------------------------------------------------------------- When the American Foundation for Equal Rights (AFER) announced that they would be taking the fight against Proposition 8 to the federal court with power team Ted Olson and David Boies at the helm, numerous LGBT groups immediately issued a press release stating their opposition to this strategy, "reminding the LGBT community that ill-timed lawsuits could set the fight for marriage back."
The groups associated with the press release included ACLU, Lambda Legal and NCLR. However, now they have changed their tune and have filed a motion to intervene (see definition), which would allow them to be co-plaintiffs on the case. Having fought for marriage equality in the state for sometime, it appears they don't want to be edged out. And though they did file amicus curiae (friend of the court briefs) for the lawsuit, it was clear the support was lukewarm.
"These groups wish to illustrate for the court the diverse needs of their members and the lesbian, gay, bisexual, and transgender (LGBT) community generally to provide the full factual record," said Jennifer C. Pizer, National Marriage Project Director for Lambda Legal in the press release stating their new intentions.
Yet now, after slamming the case since day one in the media, "It would appear Lambda Legal, National Center for Lesbian Rights and the ACLU LGBT Project are either realizing the case might actually be successful and therefore want to ride its coattails for credit and relevancy, or—depending on your capacity for cynicism—are intentionally dragging down a suit from a rival group working for the same cause," says Towleroad.
I hate to say it, but I agree. I'm all for uniting our efforts and our resources, but this action from these LGBT groups comes off as wanting credit for what now appears a chance at success. Having faith and trust in each other is key to winning, and these groups did not demonstrate that from the beginning. Now it just sounds as if they're looking for the media attention that a win could bring.
Chad Griffin, Board President for AFER, sent the groups a rather harsh letter. In it, he provides numerous examples of AFER's attempts to involve the groups from the beginning, but also he provides numerous other examples of how they dissed the case to the media.
He opens the letter with the following:
"On behalf of the plaintiffs and our board, donors and supporters, I am writing to ask that you not intervene in Perry v. Schwarzenegger.
"Given our willingness to collaborate with you, and your efforts to undercut this case, we were surprised and disappointed when we became aware of your desire to intervene.
"You have unrelentingly and unequivocally acted to undermine this case even before it was filed. In light of that, it is inconceivable that you would zealously and effectively litigate this case if you were successful in intervening. Therefore, we will vigorously oppose any motion to intervene."
The San Francisco Gate is calling this another skirmish within the LGBT equal rights movement due to the passing of Prop 8 and its aftermath.
I'm hearing some say this does not look good for us because its showing divisions amongst us. However, I would like to remind them that civil rights movements in the past weren't fully united and had their own share of disagreements. Not everyone agreed with MLK or the tactics that he used - some to the very end. But constant questioning of our strategies is essential to final victory.
History is hindsight 20/20, and because MLK was pivotal in winning the rights for African Americans, it now appears as if everyone was behind him from the beginning. We look back and think, "He did no wrong." And that is just not the case.
Nor will it be the case for us. We will have disagreements. We will pursue different strategies. We will have "skirmishes." However, as Chad Griffin of AFER told Unite the Fight about the beginning of the case, "We're in a war, and we [AFER board] discussed where we could take the war. If you have a single goal in winning that war, you want to have the opposition on the defensive on all fronts."
In regard to the LGBT groups criticisms, he said, "We can all agree to disagree on different tactics but at the end of the day, we all have the same goal - we can all agree on winning full federal rights for all lesbian, gay, bisexual and transgender people."
It appears now the groups are agreeing with AFER's strategy to achieve that goal.
Don't get me wrong - I have nothing but respect for these groups. I for one am a fan of Jenny Pizer - she has done great work and I was thrilled to have a chance to meet her on several occasions. However, I would like to see us reach our goal as fast as possible. If these groups' direct involvement cause a delay in the courts because they failed to act earlier, then they shouldn't have direct involvement. But AFER is open to their consultation and assistance, and if that's the best resolve for a united front, then these groups need to accept their position and assist in fighting to the end for the common goal of full equality under federal law.
The Boston Herald reports that Attorney General Martha Coakley filed a lawsuit this morning against the U.S. government to force it to extend a wide range of benefits to some 16,000 gay and lesbian couples legally married in Massachusetts.
The lawsuit challenges DOMA which Coakley says prevents gay and lesbian couples here from receiving tax, retirement, insurance, Social Security and other benefits.
The attorney general says in court papers that her action would not affect other states’ laws regarding marriage.
The AG's lawsuit claims the federal DOMA interferes with the right of Massachusetts to define marriage as it sees fit and that the act "constitutes an overreaching and discriminatory federal law."
Specifically, the lawsuit challenges the section of the law that creates a federal definition of marriage as limited to a union between one man and one woman. (Read a further breakdown of the case at Law Dork.)
Before the law was passed, Coakley said, the federal government recognized that defining marital status was the "exclusive prerogative of the states." Now, because of the U.S. law's definition of marriage, same-sex couples are denied access to benefits given to heterosexual married couples, including federal income tax credits, employment benefits, retirement benefits, health insurance coverage and Social Security payments.
"In enacting DOMA, Congress overstepped its authority, undermined states' efforts to recognize marriages between same-sex couples, and codified an animus towards gay and lesbian people," the lawsuit states.
“We strongly support the efforts of GLAD and its clients to pursue equal rights for all married couples in Massachusetts. Since the Supreme Judicial Court issued its decision in Goodridge in 2003, Massachusetts has taken many affirmative steps to ensure and solidify marriage equality in the Commonwealth. Despite all of these efforts, married individuals in same-sex relationships do not enjoy equal rights in the Commonwealth. DOMA is a law that codifies discrimination on the basis of sexual orientation. Because of this law, individuals in same-sex marriages often pay more in federal income taxes, are not eligible for surviving spouse benefits from the Social Security Administration and, if they are employed by the federal government, cannot obtain healthcare coverage for their spouses.
Today’s lawsuit describes compelling stories of individuals in committed, loving, and lasting relationships, who have been deprived of rights and protections that they rightfully deserve. They are simply seeking the legal protections given to all other married persons. Massachusetts sees no reason to view these couples in any other way than as married couples, and we hope that this lawsuit results in a similar outlook at the federal level.”
GLAD's lawsuit, which is separate from the AG's, argues it discriminates against gay couples and is unconstitutional because it denies them access to federal benefits that other married couples receive.
The third lawsuit challenging DOMA is the Smelt case which resulted in the infamous DOJ brief comparing same-sex marriage to incest and pedophilia.
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Originally posted at Lez Get Real. Thanks Paula!
