Tag Archives: Defense of Marriage

Supreme Court to hear gay marriage arguments

The U.S. Supreme Court will hear arguments on California’s Proposition 8, the voter-approved constitutional amendment enacted in 2008 that bars same-sex marriages in that state.

The court announced its decision to hear the case Dec. 7, shortly after 3 p.m., following a private conference.

There also was word that the court would hear at least one challenge to the 1996 federal Defense of Marriage Act, which bars federal recognition of gay marriages.

The court first met privately to discuss which, if any, gay marriage cases to take up on Nov. 30, but that session did not produce any action.

The court met again on Dec. 7, which resulted in news that it will hear a DOMA case and the landmark challenge to California’s anti-gay marriage amendment. Two federal courts — a district court and an appeals court – have said Prop 8 unconstitutional.

In reviewing the Prop 8 case, the Supreme Court will consider whether amendment violates the 14th Amendment to the U.S. Constitution.

The DOMA case is U.S. v. Windsor, which involves a widow who was penalized by the U.S. government because her deceased wife was a woman, not a man. DOMA defines marriage as the union of a man and a woman and refuses to recognize, for federal purposes, the marriage of a same-sex couple. That means married gay couples are denied more than 1,000 benefits and rights associated with civil marriage.

The justices’ move means the cases likely will be argued in March or April, with decisions announced by the end of June.

Reaction was swift:

“The moment we have been fighting for has finally arrived,” said Adam Umhoefer, the executive director of the American Foundation for Equal Rights, the organization behind the legal challenge to Prop 8.

Evan Wolfson of Freedom to Marry said, “Just moments ago, the U.S. Supreme Court set the clock ticking on the important work we need to do to secure our next wave of wins in 2013.”

As clergy members, both Jerry and I know that all of us, regardless who we love, are created in God’s image,” said the Rev. Roland Stringfellow, who lives in the Bay area and hopes to marry his partner, Jerry Peterson. He added, “Should the court affirm the unconstitutionality of denying couples like us the freedom to marry, this nation will have taken another great step forward in its journey towards recognizing that we are all created equal, with the same rights and responsibilities, and that those rights include marriage.”

“Both the federal DOMA and California’s Proposition 8 serve only one purpose: to harm and stigmatize same-sex couples and their children,” said Kate Kendell, executive director of the National Center for Lesbian Rights.

Chad Griffin, president of the Human Rights Campaign and former executive director of AFER, said, “Extreme right-wing leaders are going to immediately rally their base around today’s announcement – claiming the Court can’t outpace public opinion.

“Thankfully though a majority of Americans support marriage equality. We have to counteract the other side with one booming, united voice for marriage equality.”

Said Jennifer Chrisler of the Family Equality Council, “The Supreme Court’s decision to review these cases represents an historic and significant step forward in the fight for marriage equality for all American families, but especially the more than one million loving and committed parents who are lesbian, gay, bisexual and transgender in this country who are raising more than 2 million children.

“While our families are already bound together by love, there is no denying that the freedom to marry will strengthen them,” she continued. “Denying some American families marriage also denies their children some of the basic protections they need in life as well as a sense of enduring security and stability.”

And Rea Carey of the National Gay and Lesbian Task Force said, “It’s time for the highest court in the land to say that the discriminatory principles of DOMA and Proposition 8 are unacceptable in a country based on liberty and equality and to strike down these harmful measures.”

Opponents of gay marriage also wanted a review of the issues by the high court, especially the Prop 8 case. The National Organization for Marriage, a leading funder of anti-gay marriage efforts along with the Catholic Church, said in a news release: “We believe that it is significant that the Supreme Court has taken the Prop 8 case. We believe it is a strong signal that the court will reverse the lower courts and uphold Proposition 8. That is the right outcome based on the law and based on the principle that voters hold the ultimate power over basic policy judgments and their decisions are entitled to respect.”

Gay marriage is legal, or will be soon, in nine states – Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, Washington – and the District of Columbia.

But 31 states have amended their constitutions to prohibit same-sex marriage.

House Republicans spend $1.5 million to defend anti-gay law

The U.S. House’s top two Democrats are criticizing congressional Republicans for spending nearly $1.5 million over the past 15 months to defend the Defense of Marriage Act that defines marriage as a union of a man and a woman.

Democratic leader Nancy Pelosi and No. 2 Democrat Steny Hoyer say House Speaker John Boehner is wasting taxpayer money in defending the 1996 law.

The law signed by President Bill Clinton denies federal recognition of same-sex marriages and affirms the right of states to refuse to recognize such marriages.

President Barack Obama announced last year that the Justice Department would no longer defend the constitutionality of the law.

After that, Boehner convened the Bipartisan Legal Advisory Group to defend it.

Several federal courts this year have ruled against the law, which likely will be reviewed by the U.S. Supreme Court this term.

Binational gay couples sue to overturn DOMA

Five same-sex couples filed a suit April 2 in the Eastern District of New York, challenging Section 3 of the federal Defense of Marriage Act. The 1996 law prevents lesbian and gay American citizens from sponsoring their spouses for green cards.

The lawsuit, filed on the couples’ behalf by Immigration Equality and the law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP, alleges that DOMA violates the couples’ constitutional right to equal protection.

“Solely because of DOMA and its unconstitutional discrimination against same-sex couples these Plaintiffs are being denied the immigration rights afforded to other similarly situated binational couples,” the complaint states.

Were the plaintiffs opposite-sex couples, the suit says, “the federal government would recognize the foreign spouse as an ‘immediate relative’ of a United States citizen, thereby allowing the American spouse to petition for an immigrant visa for the foreign spouse, and place (them) on the path to lawful permanent residence and citizenship.”

The five couples named in the suit are:

• Edwin Blesch and South African spouse Tim Smulian. They have been together for more than 13 years and were married in South Africa in August 2007. While their marriage is honored by Blesch’s home state of New York, their green card petition was denied on March 14. They reside in Orient, N.Y.

• Frances Herbert and spouse Takako Ueda, who is originally from Japan. They have known each other for 22 years and were married in April 2011. Their petition for a green card was denied on Dec. 1, 2011.  They reside in Dummerston, Vt.

• Heather Morgan and spouse Maria del Mar Verdugo, a native of Spain. They have known each other for 14 years. They were married, in New York, in August 2011 and have a pending green card petition, which is expected to be denied. They reside in New York City.

• Santiago Ortiz and spouse Pablo Garcia, a native of Venezuela. Ortiz, a Puerto Rican American, met Garcia in 1991 and registered as domestic partners in 1993. In May 2011, they were married in Connecticut. They have filed a green card petition, which is expected to be denied.  They reside in Elmhurst, N.Y.

• Kelli Ryan and spouse Lucy Truman, a native of the United Kingdom. They have been a couple for more than 11 years and entered into a civil union in July 2006. They were married in March 2010 in Connecticut. Their petition for a green card was denied on March 27. They reside in Sandy Hook, Conn.

The plaintiffs in the suit include a retired professor of English at a New York college, a home eldercare provider; a marketing director for a global nonprofit organization; a retired school psychologist and two doctors of immunology.

“The families … meet every qualification for immigration benefits, with the sole exception that they happen to be lesbian or gay,” said attorney Rachel B. Tiven, executive director of Immigration Equality. “Solely because of their sexual orientation, they have been singled out, under federal law, for discrimination and separation. That’s not only unconscionable; it is unconstitutional. We know DOMA cannot withstand careful review, and we know we will prevail on their behalf.”

Immigration Equality provides legal counsel to LGBT immigrant families. In 2011, the organization fielded 1,431 legal inquiries from binational couples like those in the suit filed today, a 141 percent increase over the previous year.

A recent analysis from the Williams Institute at the University of California-Los Angeles estimated 36,000 couples – and the nearly 25,000 children being raised by them – are impacted by the United States’ refusal to recognize lesbian and gay relationships for immigration purposes.

Tiven said, “These families represent the tens of thousands of others like them who are threatened with, or have already been forced into, separation or exile. Their victory in court will end the threat that has hung over their families, their homes and their marriages for far too long.”

DOMA, the lawsuit concludes, “threatens . . . marriages while purporting to ‘defend’ marriage. It does violence not only to these five couples, not only to the institution of marriage, but to the Constitution of the United States.”

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Senate to hold hearing on repeal of gay marriage ban

The Senate Judiciary Committee will hold a hearing July 20 on a bill to repeal the Defense of Marriage Act, the federal law that bans federal recognition of same-sex marriage.

Ahead of the hearing, Sen. Dianne Feinstein, D-Calif., the lead sponsor of the bill, will hold a news conference tomorrow at which she’ll be joined by three gay couples, who will talk about the challenges DOMA presents in their lives.

Feinstein introduced the repeal bill, called the Respect for Marriage Act, in the Senate on March 16. A companion bill was introduced into the U.S. House of Representatives the same day.

“There are tens of thousands of legally married same-sex couples in the United States, and more than 18,000 in my state of California alone,” Feinstein said at the time. “These couples live their lives like all married people. They share financial expenses, they raise children together, and they care for each other in good times and in bad, in sickness and in health, and until death do them part.

“But here’s the rub. Right now, because of DOMA, these couples cannot take advantage of federal protections available to every other married couple in this country. For example, they can’t file joint federal income taxes and claim deductions. They can’t receive spousal benefits under social security. They can’t take unpaid leave under the Family and Medical Leave Act when a loved one falls seriously ill. And they can’t obtain the protections of the estate tax law when one spouse passes and wants to leave his or her possessions to another. So it’ important that we right this wrong.”

The Respect for Marriage Act would repeal DOMA, which was passed by an overwhelming majority of Congress 15 years ago and signed into law by then-President Bill Clinton. Sponsors include out lesbian Rep. Tammy Baldwin, D-Wis.

Although the repeal bill stands no chance of passing both chambers of Congress this year, due largely to the solid GOP majority in the House, its supporters say the legislation and the Senate hearing will help set the stage for same-sex marriage to be an issue in the 2012 elections.

“We see this as a long-term effort and part of that effort is education,” said Adam Bink, director of online programs for Courage Campaign.

Justice Dept. opposes DOMA in legal brief

The U.S. Justice Department on July 1 filed a legal brief that maintains hostility toward gays and lesbians was the motivation for passing the Defense of Marriage Act, which “unconstitutionally discriminates.”

Justice attorneys filed the brief in federal court in San Francisco, which has jurisdiction over a lawsuit claiming the government wrongly denied health benefits to the same-sex spouse of a government employee.

The case is Golinski v. United States Office of Personal Management. Lambda Legal and Morrison and Foerster LLP filed the suit on behalf of Karen Golinski, a federal court lawyer denied medical coverage for her wife. The two married in California before voters enacted an anti-gay marriage constitutional amendment.

In 2009, a federal circuit court judge ruled that Golinski should be given family coverage. But the U.S. Office of Personnel Management challenged the order and refused to enroll Golinski’s spouse in the health plan.

Lambda and Morrison sued last year to stop OPM’s interference and then, this spring, amended the case to directly challenge DOMA.

“Karen is being compensated different than her coworkers because her spouse is a woman,” said Morrison attorney Rita Lin. “There is no adequate reason for the federal government to be compensating its employees differently on that basis.”

The Justice Department is supporting that argument, a position that’s in line with the February announcement from Attorney General Eric Holder that the Obama administration would no longer defend Section 3 of DOMA because it is unconstitutional.

DOMA, passed overwhelmingly by a GOP-controlled Congress in 1996, has two primary provisions:

Section 3 defines marriage as the union of a man and a woman for federal purposes, thus requiring the federal government to refuse to recognize legal same-sex marriages and denying married same-sex couples more than 1,200 rights and benefits.

Section 2 gives the leeway to refuse to recognize same-sex marriages legally contracted in other states. Traditionally, a marriage formed in one state is recognized in other states under the Full Faith and Credit Clause of the Constitution.

Holder said in February that the Justice Department would no longer defend Section 3 of DOMA. But he also said the administration would continue to follow the law until it’s either overturned in court or repealed by Congress.

The Justice Department’s brief in the Golinski case states, “The federal government has played a significant and regrettable role in the history of discrimination against gay and lesbian individuals.”

The brief details that role, citing government persecution of gays and lesbians over the years, including FBI and Postal Service investigations of government employees, passage of a 1950 Senate resolution to investigate “homosexuals and other sexual perverts” working in the government and Dwight Eisenhower’s executive order adding “sexual perversion” as grounds for dismissal from government service.

Fifteen years ago, there was growing consensus that Hawaii might soon legalize same-sex marriage. Then-U.S. Rep. Bob Barr introduced DOMA in May of 1996, a presidential election year. The Republican Party adopted a plank in its platform that stated, “We reject the distortion of (anti-discrimination) laws to cover sexual preference, and we endorse the Defense of Marriage Act to prevent states from being forced to recognize same-sex unions.”

DOMA moved on a fast track – from committee to floor votes to the White House in less than four months. President Clinton signed the bill.

The Justice Department brief in the Golinski case refers to House records stating that DOMA was intended to “defend traditional notions of morality” and “promote heterosexuality” by condemning homosexuality and disapproving of gays and their intimate relationships. Justice attorneys concluded that the congressional record “evidences the kind of animus and stereotyped-thinking that the Equal Protection Clause is designed to guard against.”

Lambda Legal attorney Tara Borelli, who is handling the Golinski case, said Justice’s brief is significant. “The government itself has now forcefully argued that the marriages of same-sex couples cannot be treated as different and inferior under the law, and that any laws that treat lesbian and gay people differently must be reviewed with heightened scrutiny and presumed to be unconstitutional.”

“This,” Borelli added, “is a historic shift with enormous significance.”

With the Justice Department’s argument against DOMA, a defense of the legislation is being handled by the House Bipartisan Legal Group, which, despite its name, represents congressional Republicans.

White House calls marriage law unconstitutional

In a strongly worded legal brief, the Obama administration said the federal act that defines marriage as being between a man and a woman was motivated by hostility toward gays and lesbians and is unconstitutional.

The brief was filed July 1 in federal court in San Francisco in support of a lesbian federal employee’s lawsuit claiming the government wrongly denied health insurance coverage to her same-sex spouse.

The Justice Department says Karen Golinski’s suit should not be dismissed because the law under which her spouse was denied benefits – the Defense of Marriage Act – violates the U.S. Constitution’s guarantee of equal protection.

“The official legislative record makes plain that DOMA Section 3 was motivated in large part by animus toward gay and lesbian individuals and their intimate relationships, and Congress identified no other interest that is materially advanced by Section 3,” the brief reads, referring to the section in the act that defines marriage as being between a man and a woman.

Though the administration has previously said it will not defend the marriage act, the brief is the first court filing in which it urges the court to find the law unconstitutional, said Tobias Barrington Wolff, a law professor at the University of Pennsylvania.

“This brief represents the concrete manifestation of a complete paradigm shift in the federal government’s position on anti-gay discrimination and the constitutional rights of married same-sex couples,” Wolff said in a July 2 phone interview.

The brief argues that gays and lesbians have been subject to a history of discrimination by federal, state and local governments and private parties. It also lays out the administration’s position that sexual orientation is an “immutable characteristic,” that gays and lesbians are minorities with limited political power and that sexual orientation has no bearing on someone’s ability to contribute to society and advances no legitimate policy interest.

“It’s quite powerful to have the administration saying in a court filing that this kind of discrimination should be viewed suspiciously,” said Tara Borelli, an attorney for Golinski.

Attorneys for a U.S. House of Representatives group that has stepped in to defend the marriage act’s constitutionality in the Golinski case did not immediately respond to requests for comment. House Republicans previously had criticized Obama administration’s decision that the marriage act was unconstitutional and would not be defended by the Department of Justice in court.

In court filings, they have said that multiple courts have relied on Congress’ justifications for enacting the law to uphold its constitutionality.

Golinski is a 9th U.S. Circuit Court of Appeals lawyer. She sued the U.S. Office of Personnel Management last year for not authorizing family health insurance coverage for her same-sex spouse.

Her attorneys are now seeking summary judgment in her favor.

Kennedy signs Freedom to Marry pledge

Caroline Kennedy is signer No. 100,000 on an open letter urging the president to support marriage equality for gays and lesbians.

While Barack Obama has said a portion of the Defense of Marriage Act should not be defended in court because it is unconstitutional, the president has not said he supports marriage rights for gays and lesbians.

“Falling in love, getting married and building a family is part of the American dream,” Kennedy stated. “I believe that all Americans, including committed gay and lesbian couples, should have the opportunity to pursue that dream.”

Others who signed the letter circulated by Freedom to Marry at www.freedomtomarry.org: civil rights leaders Julian Bond and Helen Fabela Chavez;  and performers, including Anne Hathaway, Jane Lynch, Eric McCormack, Martin Sheen, Lily Tomlin, Ellen DeGeneres, Portia DeGeneres, Sara Bareilles, Lance Bass, Melissa Etheridge, Cyndi Lauper, LeAnn Rimes and Rufus Wainwright.

– L.N.

NRA takes aim

The National Rifle Association has dropped its relationship with King & Spalding because the Atlanta-based law firm dropped a case from congressional Republicans. Soon after K&S announced it would not be handling the defense of the Defense of Marriage Act, the NRA announced King & Spalding would no longer be handling its important cases. “We believe King & Spalding’s decision is indefensible and raises serious concerns about its ability to be a reliable and effective advocate for any client facing potentially controversial litigation,” the NRA stated in a letter.

Pelosi calls on Boehner to disclose taxpayer cost of defending DOMA

Nancy Pelosi wants Speaker of the House John Boehner to let taxpayers know how much his decision to defend the Defense of Marriage Act in court will cost them.

On March 9, a five-member panel appointed by Boehner voted 3-2 along party lines to instruct the House’s nonpartisan Office of the General Counsel to defend the 1996 law banning recognition of same-sex marriage at the federal level. The White House announced on Feb. 23 that the Department of Justice is dropping its defense of the law because it agrees with previous court decisions finding parts of it unconstitutional.

Pelosi and fellow Democrat Steny Hoyer voted against the move.

Boehner’s decision to spend what will amount to millions on defending DOMA, despite the GOP’s contention that the government is in a dire financial crisis, came just one day after anti-gay crusader Richard Land and other far-right evangelical leaders commanded him to do so, according to a Baptist Press news service report.

“The constitutionality of this law should be determined by the courts – not by the president unilaterally ­ and this action by the House will ensure the matter is addressed in a manner consistent with our Constitution,” Boehner said in a written statement that failed to mention the prior court rulings.

In response, House Democratic Leader Pelosi issued the following public letter to Boehner:

“Dear Mr. Speaker:

The House Bipartisan Legal Advisory Group (BLAG) voted this week by a 3-2 margin to direct the House General Counsel to initiate a legal defense of the Defense of Marriage Act (DOMA). As you know, the Democratic members of the BLAG voted against directing the House Counsel to initiate the costly defense of a statute which many believe to be unconstitutional under the Equal Protection clause.

“While respecting the role of the BLAG to make such decisions, I disagree in this circumstance because of the number of cases, at least 10. There are numerous parties who will continue to litigate these ongoing cases regardless of the involvement of the House. No institutional purpose is served by having the House of Representatives intervene in this litigation, which will consume 18 months or longer. As we noted, the constitutionality of this statute will be determined by the courts, regardless of whether the House chooses to intervene.

“The resolution passed by the BLAG also directs the House General Counsel to hire private lawyers rather than utilize his own office to represent the House. The General Counsel indicated that he lacked the personnel and the budget to absorb those substantial litigation duties. “It is important that the House receive an estimate of the cost to taxpayers for engaging private lawyers to intervene in the pending DOMA cases. It is also important that the House know whether the BLAG, the General Counsel, or a Committee of the House have the responsibility to monitor the actions of the outside lawyers and their fees.

“The American people want Congress to be working on the creation of jobs and ensuring the continued progress of our economic recovery rather than involving itself unnecessarily in such costly and divisive litigation.

“Thank you for your responses to these questions concerning the cost and oversight of the litigation as it proceeds through the courts.”

Nancy Pelosi

Democratic Leader of Congress