It was about a week ago that we saw the ruling throwing out California's Prop 8; that decision has now been appealed, and we will see, at some point in the future, how the 9th Circuit Court of Appeals handles the matter.
A couple of days later, I had a story up that walked through the ruling, describing the tactics used by the Prop 8 proponents, which, in the opinion of the Judge who looked at the evidence, were basically to try to scare Californians into thinking that gay people, once they're able to get gay married, will somehow now be free to evangelize your kids and make them gay, too.
In the course of answering comments on the several sites where the story is up, I noticed that there were those who felt the Bible should be guiding our thinking here...that if it did, we would be better off than where we are today, with all those immoral gay people running around free to do all those immoral gay things.
This led me to an obvious question: are those who have been using the Bible as a sort of "divining rod" to figure out who is immoral and who is not...actually any good at it?
If you didn't see Freedom to Marry's introductory post this morning on their summer tour, you can read it here.-Adam
Earlier this week, Freedom to Marry teamed up with local and state equality groups to launch Summer for Marriage, a cross-country series of events about the importance of marriage to gay and lesbian couples. The tour also counters the anti-gay bus tour being sponsored by the National Organization for Marriage (NOM). NOM is headed by Brian Brown who recently called for an amendment to the U.S. Constitution banning same-sex couples from marrying.
The first stop on the equality tour was in Augusta, Maine. Marriage supporters were joined by Gov. John Baldacci who called the marriage movement "It was one of the most passionate, committed causes that I've been a part of, and proud to be a part of." Gov. Baldacci signed the marriage bill into law in 2009 that was overturned by votes in a ballot fight partially financed by NOM. Adam provided great on-the-ground coverage of the Maine ballot campaign here.
A coalition of groups led by Equality Maine is working together to win back marriage for gay and lesbian couples. The coalition held a press conference on Wednesday attended by rough 100 marriage supporters and featuring same-sex couples and elected officials who support marriage equality.
We are back, just a bit late, to wrap up the discussion we began about the pair of rulings issued in Boston by Federal District Judge Joseph Tauro this week that declare the federal Defense of Marriage Act (DOMA) unconstitutional.
I don't usually tell you the end of the story at the beginning, but this time I will: there are a lot of happy Plaintiffs this week, and the Federal Government, as Defendant (whom I will refer to as "the Feds" from time to time), is not so happy at the moment.
As with last time, there's a lot of ground to cover, and the sooner we get to it, the better.
I have to work fast over the next two days to get you this story, but it is a good one.
We are all aware of the Federal Defense of Marriage Act (DOMA), championed by former Congressman Bob "I'm A Libertarian If It Doesn't Involve Your Penis Or Vagina" Barr; we now have two rulings, released on the same day by the same Federal judge, that will render the Act moot, if they're either upheld throughout the appeals process...or if the Obama Administration decides to end that appeals process right now.
There's a lot of ground to cover, and time is short.
Today was the first day same-sex couples could apply for marriage licenses at the Superior Courthouse in the District of Columbia. Couples started lining up in the wee hours of the morning. Below is a picture of Sinjoyla Townsend and Angelisa Young, the first couple to obtain their marriage license:
h/t to Cathy Renna for the photo
By 11:30 AM, over 100 couples had applied for marriage licenses and the clerk said she was processing 20-25 per hour. The language was changed to "I now pronounce you legally married" instead of "I now pronounce you man and wife". Kudos to HRC, GLAAD and Renna Communications for providing media assistance on the ground to spread the word about how the nation's capital is now providing equality to all.
For those counting, this now makes DC the sixth jurisdiction in which same-sex couples currently have the freedom to marry, along with Iowa, Connecticut, New Hampshire, Vermont and Massachusetts. Previous same-sex weddings performed in California between June and November 2008 have also been ruled legally valid, and in states like New York and (moving forward) Maryland, out-of-state weddings are legally valid. More and more states are recognizing marriage is about love, and today's couples show that once again. Congrats to all the couples.
I hate losing elections, but what I REALLY hate is losing after a high turnout. Losing because our base didn't vote is depressing, but at least it tells us what we need to do to win next time - and progressives can take heart in the fact that "the people" are truly on their side, if only they showed up. Last night, Maine's Question 1 passed 53-47 - despite a much higher turnout than expected (we matched last year's Obama level at the University of Maine in Orono, winning the campus 81-19.) The "No on 1" campaign also had a far greater field presence than the opposition, and superior financial resources. It reminds me of 2004, when Bush won despite the progressive base voting in record numbers. When California's Proposition 8 passed last year, everyone could tell that our side ran an awful campaign. It was painful, but gave us many lessons to learn - lessons that the "No on 1" campaign in Maine took to heart, and performed beautifully. That's why this loss is so much worse than Prop 8. I don't know what we could have done differently, and am too sleep-deprived to think it all through.
BANGOR - "Welcome to the real Maine," said Regional Field Organizer Gabi Bérubé as I arrived yesterday at the "No on 1" office in Brewer, just across the Penobscot River from Bangor. That's what Mainers up here call their part of the state, and it's where I am spending the rest of my time on the campaign. I asked to go to Bangor because I wanted to help our field effort in more challenging places, after "No on 8" spent too much time last year preaching to the choir. The Bangor office covers everything north and east of here - in other words, two-thirds of the state's land mass. Replicating Howard Dean's 50 State Strategy, "No on 1" believes we have gay marriage supporters everywhere - and it's our challenge to organize them. But we're also targeting the University of Maine in Orono, whose 11,000 students make it the largest college in the state. Mobilizing young people on campus - and turning out identified supporters in rural areas - will prevent us from getting creamed in northern Maine, which will help us win statewide.
In 1964, Stanley Kubrick produced the Cold War film Dr. Strangelove, or "How I Learned to Stop Worrying and Love the Bomb." By upholding Proposition 8, the California Supreme Court has learned to stop worrying and love the initiative process. It's an apt analogy, because today's decision leaves an unchecked power of the voters to strike a "bomb" through our basic Constitutional protections. Not only did the Court minimize Prop 8's effect on the right to marry, using logic that contradicted last year's decision on the same subject. It set up a dubious distinction between "amendments" and "revisions" to the state Constitution, which will allow virtually any ballot measure to pass as a mere "amendment." Without adequate safeguards that a "revision" was meant to place, equal protection is no longer sacred - because the power of the ballot is supreme. At the same time, the Court ruled that the 18,000 same-sex couples who legally wed last year are still married - because to invalidate these licenses would be an undue violation of due process and property rights. While that was a wise decision, it remains a mystery why such a right is more important than equal protection.
Imagine that you're a resident of, say, Massachusetts, and you decide to bring your spouse down to D.C. for a long weekend of visiting monuments and museums. Now imagine that when you get to D.C., you're suddenly no longer married, because D.C. refuses to recognize your Massachusetts marriage. Just like that, you've lost all the legal protections that being married brings. Heaven forbid that while you're here visiting, your spouse is hit by a Tourmobile and seriously injured. She's rushed to a D.C. hospital, where she's placed in intensive care. And then you find out that only spouses and other immediate family members are permitted to visit patients in the ICU, so you are denied access to your loved one at this moment of great need.
Or imagine that you and your spouse have moved to D.C. from Massachusetts so that you can take a job with a K Street lobbying firm. When you try to enroll your spouse in your employer's health insurance plan, you're denied spousal coverage because your marriage isn't recognized in D.C.
Sound farfetched? Hardly.
Until last week's unanimous vote by the D.C. Council paved the way for D.C. to recognize the marriages of same-sex couples lawfully entered into in other jurisdictions, suddenly becoming "unmarried" when stepping across the borders into D.C. was a harsh reality for same-sex couples who have been legally married elsewhere. Is this any way to run a country?
We don't think the Framers of our Constitution thought so. Article IV, Section 1 of the Constitution requires that
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other state.
While some commentators believe that interstate marriage recognition may be less a function of constitutionally-mandated "full faith and credit" than of principles of "comity" or "choice of law," the decision of the D.C. Council is certainly consistent with the nation-unifying policy that animates the Full Faith and Credit Clause.
Under our system of federalism, the states have agreed to give up some of their own sovereignty in order to form a single, unified nation. This result is, in part, effectuated by the Full Faith and Credit Clause. As the Supreme Court has stated, "The very purpose of the full faith and credit clause was to alter the status of the several states as independent foreign sovereignties, each free to ignore obligations created under the laws or by the judicial proceedings of the others, and to make them integral parts of a single nation . . . " As Justice William O. Douglas put it, the Constitution "in no small measure brings separate sovereign states into an integrated whole through the medium of the Full Faith and Credit Clause."
Under the principles that undergird the Full Faith and Credit Clause, couples who are legally married in one state have every right to expect their relationship to be recognized everywhere else in this country.
The D.C. Council is to be applauded for ending the game of "now you're married, now you're not," and for doing its part to ensure that same-sex couples legally married elsewhere can expect to have their marriages recognized in our nation's capital, whether they move to D.C. or, like so many thousands of others this time of year, are just visiting to enjoy the Cherry Blossoms.
Originally posted at Text & History. Judith E. Schaeffer is Vice President of the Constitutional Accountability Center (CAC), a law firm and think tank dedicated to demonstrating how the Constitution upholds progressive outcomes.
Dangerous Things are happening in America these days, we are told, and the once-innocent citizens of Iowa and Vermont have already been exposed to the hazard...and now it looks as though the contagion might spread to States across New England.
But lucky for us, our friends on the Right are here again to save to save us from...(insert horror film music here)...
...The Gay.
The Gay, it turns out, want the opportunity to marry.
Among other complaints, our friends on the Right feel this will destroy religious tradition, which will ultimately destroy first Christianity, then the Nation. Therefore, religious tradition must be protected at all costs.
Well as it turns out, there are some people from our past who know a few things about religious traditions and how they distort reality-and today, we'll examine the lessons they have to teach us.
On Friday, the Iowa Supreme Court, in a unanimous ruling, held that a state statute prohibiting same-sex couples from marrying under civil law violated the equal protection guarantees of the Iowa Constitution. The ink was barely dry on the ruling before right-wing critics predictably began hurling charges of "judicial tyranny" and "judicial activism" at the seven justices on the Iowa High Court. (Strangely, conservatives never seem to lob these charges at judges who strike down laws that protect individuals from discrimination or otherwise rule in ways that make it more difficult for Americans to obtain justice in the courts, but we digress.)
Underlying these charges is a dangerous misunderstanding of the role of the courts in our constitutional democracy. Whether at the state or the federal level, it is the role of the legislature to make the laws, but those laws must be consistent with the requirements of the federal Constitution and, in the case of state laws, with the state Constitution as well. And when a specific law has been challenged on the basis that it violates constitutional provisions, it is the responsibility, in fact the obligation, of judges to determine whether or not that is the case.
This is, of course, the principle of judicial review, affirmed more than 200 years ago by Chief Justice John Marshall in Marbury v. Madison. As Justice Marshall famously wrote, "It is emphatically the province and duty of the Judicial Department [the courts] to say what the law is." And as Chief Justice Marshall recognized, what would be the point of having written a written constitution, if the legislature could just ignore it in passing laws and the courts could do nothing but sit idly by?
In their opinion on Friday, the Iowa Supreme Court Justices in fact specifically addressed the nature of their obligations as judges to determine whether the challenged state law violated the Iowa Constitution:
The legislature, in carrying out its constitutional role to make public policy decisions, enacted a law that effectively excludes gay and lesbian people from the institution of civil marriage. The executive branch of government, in carrying out its role to execute the law, enforced this statute through a county official who refused to issue marriage licenses to six same-sex couples. These Iowans, believing that the law is inconsistent with certain constitutional mandates, exercised their constitutional right to petition the courts for redress of their grievance. This court, consistent with its role to interpret the law and resolve disputes, now has the responsibility to determine if the law enacted by the legislative branch and enforced by the executive branch violates the Constitution.
(Emphasis added.) In proceeding to make that determination by applying the provisions of their state Constitution to the challenged Iowa marriage law, the Justices of the Iowa Supreme Court were doing what they, as judges, are supposed to do. They were acting in the best tradition of John Marshall, and they should be commended, not excoriated, for doing their jobs. Critics who nonetheless claim "judicial activism" in such decisions are doing a great disservice to our democracy and to Americans' understanding of the proper role of courts in our society. And some of those critics, undoubtedly, are hurling these charges in an effort to intimidate judges.
On Friday, in Iowa, that tactic thankfully did not work.
Originally posted at Text & History. Judith E. Schaeffer is Vice President of the Constitutional Accountability Center (CAC), a law firm and think tank dedicated to demonstrating how the Constitution upholds progressive outcomes.
It's depressing to think - after having just lost an expensive and exhausting campaign - that repealing Proposition 8 could mean going back to the ballot. It is unfair and unjust that a slim majority of California voters took a fundamental right away from a minority, jeopardizing equal protection. But the state Supreme Court heard oral arguments on the City Attorney's lawsuit yesterday, and the signs were very discouraging. Justice Joyce Kennard (who last year voted to grant marriage equality) was hostile to the case against Prop 8, and Chief Justice Ron George was skeptical. Not that there isn't any hope: perhaps the extreme arguments made by Prop 8 lawyer Kenneth Starr will inadvertently sway the Court into recognizing the measure's dangerous effects. But no one should expect the Court to repeal Prop 8. Activists must get ready for a 2010 proposition campaign as the next available remedy, however deficient a political solution that would be. We must learn from the colossal mistakes of the past campaign, and a new generation of activists will make it happen.
At 10 am central time this morning, the Iowa Supreme Court will hear oral arguments in Varnum v Brien, a case in which six couples are challenging Iowa's law declaring that "Only a marriage between a male and female is valid." Polk County has appealed a district judge's ruling last year that the statute is unconstitutional. Last night jpmassar published a good overview of the legal issues underlying Judge Robert Hanson's ruling as well as the county's defense of the statute.
If you like, you can watch a livestream of the oral arguments at the Iowa Supreme Court's website as well as at several other media sites. You can download pdf files of the district court ruling and the briefs submitted to the Iowa Supreme Court on appeal here.
My focus in this diary is not the legal arguments, but the political case that will need to be made for marriage equality once the Supreme Court has ruled on Varnum v Brien several months from now. Follow me after the jump for more.
I didn't join the street protests against Proposition 8 right after it passed. My gut reaction was: "where were all these people when we had the chance to defeat it?" But "No on 8" ran a terrible campaign that would not have effectively used more volunteers, and it's possible that many had tried to get involved. Now the state Supreme Court will decide what to do about Prop 8, and City Attorney Dennis Herrera has put on a strong case to have it overruled. But that doesn't mean the Court will do the right thing; even the best legal arguments can lose. A mass movement of peaceful protest is crucial at building the political momentum to attain marriage equality - which can convince the Court it's okay to overturn the "will of the voters." Social movements rely too much on lawyers and politicians to make progress - without effectively using the masses of people who want to help. Now people are angry, and this weekend we saw mass protests across the country. It's now time for everyday people to get involved.
When SF City Attorney Dennis Herrera sued last week to overrule Proposition 8, I didn't expect him to prevail - as much as I appreciated him trying. As wrong as it sounds, the initiative process allows a bare majority of California voters to change our state constitution - and with other states having passed similar marriage amendments, I couldn't see how the courts would repeal it. But after having read Herrera's well-written brief and done some legal research, I am now more optimistic that justice will prevail. Prop 8 was not your typical "amendment" that merely tinkers with the California Constitution. It was a drastic revision that deprives a "suspect class" (gays and lesbians) of a fundamental right under equal protection. And a simple majority vote of the people is not enough to take that right away - especially when the purpose of equal protection is to shield minorities. While other courts have upheld marriage amendments in other states, they have different Constitutions - and court rulings have changed considerably in a short period of time. And unlike many states, California has explicitly found sexual orientation to be a "suspect class." If the Court overrules Prop 8, it will be a powerful affirmation for justice - capping what has been a powerful year of "change."
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