Recognition

There are two marriage cases from Michigan. The famous one is about same-sex couples' right to marry. It had a big trial last March with a favorable outcome, was overturned by the 6th Circuit, and is now before the Supremes. When that big announcement came out last March about 300 couples got married before the 6th Circuit issued a stay. Shortly after that Michigan Governor Rick Snyder proclaimed those 300 marriages are legal, but the state won't recognize them or provide any benefits (taxes, joint ownership, adoption, etc.). Eight couples sued for recognition, becoming the second case.

Last month a federal district judge ruled the state must recognize those marriages. A three-week stay was added to the ruling, giving the state time to appeal. That time is almost up and... Snyder will not appeal. Yay!

All the news reports I've seen highlight the words of Snyder. Conspicuously absent are words from Attorney General Bill Schuette. It was Schuette who wrote the Free Press editorial whining how he just had to support the rule of law and take that first case all the way to the Supremes. So did Snyder knock some sense into Shuette's head?

Gary Glenn, our nemesis who wrote Michigan's 2004 Marriage Protection Amendment and is now a member of the Michigan House, is pissed at Snyder. He's calling on Snyder to do what Schuette claimed must be done.

Between the Lines is reporting that arguing the marriage case before the Supremes will cost $1 million – and that's with the lawyers doing all their work for free. The cost includes such things as filing all the legal documents with the court, putting on mock trials so their brief time in front of the Supremes goes well, and getting advice and assistance from constitutional law experts. A group renamed itself from Michigan Marriage Challenge to National Marriage Challenge to raise money to meet those expenses.

In other marriage news...

The 11th Circuit has denied an extension of the stay in the Alabama case. The Supremes have until Monday to intervene. Otherwise marriages begin. The 11th Circuit has also put the Alabama and Florida cases on hold until the Supremes rule on the Michigan case.

The 8th Circuit has agreed to combine and expedite the marriage cases from Arkansas, Missouri, and South Dakota. Oral arguments are scheduled for mid May.

When the Defense of Marriage Act went before the Supremes John Boehner and GOP colleagues in the House spent $2 million to help defend it when Obama said he wouldn't. The Supremes ruled in our favor in June of 2013, which provided the legal framework for the mountain of same-sex marriage rulings that have come since. Now that marriage itself is before the Supremes Boehner and colleagues have announced they will sit this one out. That is great to hear. Haven't heard yet what their base thinks of that.

Lesbian couple v. ?

Who had role of defendant in the Oklahoma marriage equality case is a convoluted, but important story. The original case (way back in 2004) named the Gov. and AG. But they argued, eventually successfully, that it is county clerks who issue marriage licenses and they are part of the Judiciary branch of state gov't. So in 2009 the Gov. and AG were off the case -- along with the state's legal dept.

Next in the defense seat were the US AG (because of DOMA), the Tulsa County Court Clerk, and the State of Oklahoma. The court dismissed the state as defendant, and Eric Holder, the US AG, said he would not defend DOMA.

Next the US House GOP leadership stepped into this case, in the same way they stepped into the DOMA case before the Supremes. But when the Supremes canned part of DOMA the House leadership dropped their participation in the Oklahoma case.

That left the county clerk, represented by county lawyers. The national organization Alliance Defending Freedom stepped in, offering their services. And the ADF has an astonishing record -- for losing cases.

A commenter notes the ADF isn't made up of lawyers, but of fundraisers. And a legal win would mess up their Christians are being discriminated against! Send money! spiel.

It's Freaking Utah!

Another big Christmas gift. Though a ruling wasn't expected until next month, federal district court judge Robert Shelby has declared Utah's ban on same-sex marriage to be unconstitutional. He agreed that marriage is defined and regulated by the states, as Utah asserted (which was their way of telling the feds to butt out). But such laws still have to comply with the national constitution.

Dozens of gay couples in Utah dashed to county clerk's offices and Salt Lake City mayor Ralph Becker was available to conduct ceremonies. State Senator Jim Dabakis was one of those who quickly married his partner. The clerk's office closed at 7:00 so the line was cut off at 5:00 -- with 75 couples in it.

Shelby did not stay the ruling pending appeal. The state Governor and Attorney General have now filed the appeal with the 10th Circuit Court, but apparently did not file a stay at the same time. A commenter named Cowboy, a resident of Utah, noticed something important. The ruling was issued on a Friday afternoon before a holiday. It could be January 4th before a stay could be issued. And only someone truly hateful (alas, they exist) would want to undo all the marriages that could happen in the meantime.

One reason why filing a stay might take a while is that "Utah’s elected Attorney General John Swallow resigned last month in the wake of multiple corruption investigations." The acting AG, Brian Tarbet, wants to make sure he gets all the details right.

This little bit is so delicious! Shelby pulled Justice Antonin Scalia's dissent in last summer's Windsor case that struck down DOMA and used it against him. Scalia wrote:

In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. As I have said, the real rationale of today’s opinion . . . is that DOMA is motivated by “bare. . . desire to harm” couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.

Scalia was warning that if the Supremes strike down DOMA it will provide rationale to strike down state same-sex marriage bans, so we shouldn't strike down DOMA. Shelby said, yep, striking down DOMA provides rationale to strike down same-sex marriage bans. Thanks, Tony.

Shelby, already called an activist judge overriding the will of the people, was nominated by Utah Senator Orrin Hatch, one of the conservative Republicans.

Rachel Maddow contrasts the Uganda story with the Utah story. She also wonders if this decision is different from all the previous ones because "it's freaking Utah!" Or is it because this is the first federal ruling after last summer's Supreme ruling which shows a successful way to attack those 30 marriage protection amendments. The video is 14 minutes. She notes that the bill in Uganda and the law in Russia were driven by Fundie American anti-gay lobbyists.

Timothy Kincaid of Box Turtle Bulletin had to update his map of what states have marriage equality. He had added New Mexico just the day before. A commenter adds that not being able to keep this kind of map up-to-date is a delightful problem to have.

In this map two states stand out. One is Pennsylvania. Someone noted it is possible to take Amtrak from Washington, DC to Boston (or Portland, ME) and Philadelphia is the only stop where same-sex marriage is illegal. They're working on it. The other state is Arizona, surrounded by Calif, New Mexico, Utah with equality and Nevada and Colorado who have all the rights without the word "marriage." But don't expect a change in Arizona soon.

In related news, the GOP in New Mexico are considering a marriage protection amendment. Gov. Susana Martinez, also GOP, said efforts are better spent elsewhere, such as with education and the economy. She could have added that though New Mexico didn't have a marriage protection amendment the ruling was written as if there was one -- meaning the state Supremes have already ruled it unconstitutional.

And in the voting booth

I gave my second and last exam today. Grading should be rather swift tomorrow. I’m pretty sure my student passed both classes. My first day back is January 14, which means the break is a week longer than what I usually get.

I had an appointment with the physiologist of the weight-loss program of my traditional medical center. I'm down three pounds since I saw her five weeks ago. Since I'm having a lot more success with the diet from my Ann Arbor nutritionist we agreed my work with the physiologist is concluded. That may change a couple months from now if my insurance company mandated weigh-in still shows me as borderline obese rather than merely overweight.

While with the nutritionist I asked her about the success rate of those on her program (the one that didn't work for me). She said they don't have hard numbers, though that is changing. Those who are successful (there are some) are the ones who put in the effort. To me that sounded like saying if you don't lose weight in our program it's your own fault, not the fault of our diet. She went on to say not all diets work for all people and she's pleased I found one that works for me.



Time has designated Pope Francis as their Person of the Year. In just a few months he has started to change the conversation from doctrine to love.

I'm pleased to see that Edie Windsor ended up #3 on the list. She's the one behind the case that prompted the Supremes to overturn part of the Defense of Marriage Act.



Last week I had written that the Australia Capital Territory had claimed that their "same sex marriage" was not "marriage" as the federal gov't defined it, so was legal. The High Court didn't buy that argument and ruled only the Federal Parliament can expand marriage law to include same-sex couples. As part of their ruling the High Court said that in the constitution "marriage" means "any two natural people." So when the Parliament does get around to marriage equality (sigh), it can't be challenged as being unconstitutional.

There were five days between the time the ACT same-sex marriage law went into effect and the High Court struck it down. Yup, about 30 couples took advantage of the time. And this ruling dissolved those marriages.



Marriage equality will be on the ballot in Oregon next November! They collected over 116,000 signatures in 4 months. The enacted their constitutional ban in 2004 (the same time Michigan did, and they were the only state with a lower percentage of yes votes than Michigan). They're likely to be the first state to repeal a ban by citizen vote.

The prospect of a vote is not greeted by everyone on our side, as I see from the comments. The largest objection is that rights should not be put up for a vote. Another is that the stream of nasty campaign ads will damage the psyches of gay youth. There are also those who say it is a waste of time and money. We should wait for one of the many lawsuits heading to the Supremes that will bring marriage equality nationwide.

Others respond by saying the only way to get equality in Oregon, other than waiting for the Supremes, is by this vote. And if Oregon votes it in, our chances with the Supremes are that much better. We can show the Supremes "we've had wins in the state legislatures, in the state courts, in the Federal courts, by Federal proclamation, AND in the voting booths."

Hawaii, challenge denied

Hawaii did slip in front of Illinois in providing marriage equality. Hawaii's governor signed the bill yesterday. The gov. of Illinois will have his ceremony next week. So Hawaii gets to be #15.

Hawaii has also fended off a legal challenge of the new marriage equality law. About 24 hours after the law was signed a judge (I don't know at what level) tossed out the challenge. The challengers claimed the 1998 constitutional amendment banned same-sex marriage, because that's what voters thought they were voting for. The judge (and Attorney General) replied the amendment said the legislature gets to decide if same-sex couples may marry. In 1996 (before the amendment) the legislature decided they could not. And this year the legislature decided we could.

Ari Ezra Waldman provides a bit of history of marriage equality in Hawaii. Twenty years ago several same-sex couples asked for marriage licenses. Their case went to the Hawaii Supremes, who told the lower court to explain more completely why same-sex couple should be excluded from marriage. That case scared the socks off Congress and in 1996 the Defense of Marriage Act (DOMA) was enacted. And now a big chunk of DOMA is gone -- and Hawaii has marriage equality.

Long history and tradition

Brian Chelcun and Ari Ezra Waldman take a look at Samuel Alito's dissent in the DOMA case. The Constitution doesn't say anything about marriage, so how can the Supremes declare marriage to be a fundamental right? Because of a long history and tradition. But in the case of same-sex marriage, according to Alito, there is a long history and tradition of discrimination. And that discrimination should continue.

So are gay couples "same-sex married" or simply "married"? If the former, Alito may have a point. If the latter, Alito is profoundly wrong. A fundamental right is fundamental for everyone.

Commenter Matt has an analogy. Before 1920 women had a long history and tradition of not voting. But after that date, voting was not "redefined" and there is no "female vote" separate from the "male vote". Matt says,

By Alito's argument, there can never be ANY extension of recognition of fundamental rights to groups that have traditionally been prevented from exercising those rights.

Which means we are working for marriage equality, not for gay marriage. Alas, I have 400 posts to this blog with the tag "gay marriage". So this post will use both new and old tags.

No longer defending discrimination

Though section 3 of DOMA means the federal gov't can't discriminate against gay people, there are still details to work out. There is a case before the US District Court in Massachusetts (probably filed before the Supremes ruled) arguing about the word "spouse" in veterans' benefits. The GOP in the House has been a big player in the DOMA case, taking over when Obama said he wouldn't defend it. No more. The GOP leadership has announced they are withdrawing from the veterans' benefits case. The Supremes have spoken and they will abide by it. That is welcome news. It's good to see the GOP leadership showing a shift in their politics and won't continue to defend discrimination.

How to start a movement

We've come a long way since 1969. Today is the anniversary of the Stonewall riot in New York City. They are named for the Stonewall Inn where they took place. The riot marks the start of the era of gay civil rights, when feelings shifted from fear to a confident push for dignity and full rights. If you don't know about the Stonewall riot, you have some Googling to do. Not bad work for 44 years.



I've been writing that the demise of DOMA means federal benefits for married same-sex couples will be true across America. That may not be the case immediately. Obama has said he very much wants it to be true and he has his staff looking into the issue.

In the meantime a couple Congresscritters are submitting bills to overturn the rest of DOMA, the part that says one state can ignore a marriage that was celebrated in another state.



Rob Tisinai looks at the latest ad from the National Organization for Marriage. It says "The Supreme Court has not ended the debate. It has started a movement." Presumably, NOM believes it is a movement to overturn our gains in gay equality, especially marriage. Does that mean all the work they've done over the last decade (or at least half-dozen years) hasn't been a movement?

Well, says Tisinai, that work did start a movement. And they did it by relentlessly humiliating a tiny minority and stripping away their rights. They kept doing that until that minority rose up and fought back. Which is how we came to repeal the Calif. gay marriage ban. Tisinai says he didn't particularly care to get involved -- until he was stung by that big defeat in Calif. Yup, a movement was started. But not the kind NOM intended.

Commenter Richard Rush notes another effect of the actions of NOM and other Fundies who attack gays. That is a movement away from religion. It has caused many to seriously look at religious belief and many of those see bigotry and want no part of it.



I wrote about Tim Huelskamp of Kansas filing a new version of the federal marriage protection amendment. One little problem -- his fellow GOP members (both in Congress and in the state legislature) in Kansas are doing all they can to distance themselves from him. Maybe his voters still love him?



Ohh, there are some fun implications to the latest cover of the New Yorker.



There was talk it would take maybe 3 weeks for the Supreme Court to go through the paperwork to notify the 9th Circuit Court and several days for the 9th Circuit to lift it stay before marriage could resume in California. Eager couples were looking at perhaps a wait of a month. Nope. Took two days. The 9th Circuit lifted it's stay today. The plaintiffs, Sandy Stier and Kris Perry have already been married by the Calif. Attorney General Kamela Harris. Jeff Zarillo and Paul Katami, the other pair of plaintiffs are on their way to their own ceremony. Done.



Equality Michigan reports that a federal district judge has struck down the ban on employee benefits to same-sex partners of public workers. The law is a violation of the Equal Protection Clause of the US Constitution.

The debate moves to the states

Gay news sources are full of reactions and implications of yesterday's gay marriage rulings by the Supremes.

The end of the Defense of Marriage Act (DOMA) had an effect within 30 minutes. There was a court hearing to determine if a Colombian man should be deported. He is married to an American man. The hearing was interrupted with the news of the ruling. Deportation was suspended. Thanks to Gabe the intern who dashed through five city blocks to get the ruling to the judge. Rachel Maddow includes that story in her report.

That report by Maddow, all 15 minutes (and well worth it), talks about the importance of these rulings. That's the first of 3 videos on this page. She focuses on the gay-rights case of 10 years ago, Lawrence v. Texas that said gay sex is not criminal. In horror, Scalia predicted that the case would be used to justify gay marriage. He was right -- Kennedy, who wrote both that ruling and this one cited the previous one. Scalia, still horrified, said in his dissent, that yesterday's ruling will bolster the case for gay marriage in states where their constitution bans it. And I agree, it will. But with hope, not horror.

Ari Ezra Waldman, who has a regular column on Towleroad to explain gay legal issues, explains both cases. In the Calif. gay marriage case he explains why the Supremes rejected the case. Even though the Calif. Supremes said the authors of the law have standing, federal law is very clear in saying they don't. They have a grievance, but they aren't injured.

In the DOMA case, even though the GOP House leadership brought the suit instead of the Justice Dept. they do have an injury as part of the gov't -- somebody in the gov't has to pay back Edie Windsor's $350,000 estate tax bill. It is the language of the ruling that is most important. Justice Kennedy wrote a lot about the importance of marriage and the dignity equality brings. These words will be used again.

The organization Freedom to Marry put out a fact sheet. It lists the various areas that are affected by the elimination of DOMA. These include bankruptcy, benefits for federal employees and the military, family and medical leave for non-federal employees, federal taxes, federal student aid, immigration (leaving gays out of the big immigration bill doesn't matter anymore), Medicare and Medicaid, employment benefits, Social Security survivors, veteran spousal benefits, and assistance to needy families.

Some news reports talked about how much gay couples will save in federal taxes. Rob Tisinai reminds us that not all the changes will save us money. There are also responsibilities -- the income of both couples will be used to determine student financial aid, for example. These are responsibilities that any couple in love would take on.

The leadership in the House -- who spent several million defending DOMA -- are saying the debate now moves to the states. That means the House leadership is done with the issue. They've accepted the ruling by the Supremes. Subtext: gays are no longer relevant to their reelection.

That's not true of all the House members. Tim Huelskamp of Kansas, surely playing to his base, announced he will introduce a federal marriage protection amendment. At least we're now confident it won't go anywhere. The last such amendment came in 2006 and came 54 votes short of the required 2/3 majority.

Money shifts to the states as well. Both marriage equality and anti-gay organizations are starting fundraising pushes for a state-by-state battle. Expect to raise at least $1 million per battle.

Civil unions were sold on the idea that they are identical to marriage except in name. Several states have this variety now, including New Jersey, Oregon, and Nevada. There were countless little ways where this was not true -- various businesses saying, "but that's for married couples." But now there is a really big, demonstrable difference between civil unions and marriage -- married couples get federal benefits. Civil union couples do not. This is the start of a fresh crop of lawsuits, starting at the state level.

Though the Supremes are done with rulings for this term, they had a couple bits of business for today.

In 2008 Arizona added domestic partner benefits for state employees. In 2009 Gov. Jan Brewer canceled them. In 2011 the 9th Circuit Court told Brewer she can't do that. Now the Supremes say they aren't taking the case, leaving the 9th Circuit ruling in place.

A challenge to Nevada's ban on gay marriage (they have civil unions that are supposed to be the same, see above) was denied by the Supremes. Though the high court doesn't explain why it takes or rejects a case, the assumption this time is because those seeking equality in Nevada asked to bypass the 9th Circuit.

Gay rights groups are laying out a five-year plan:

* In moderate states, such as Oregon, use a ballot initiative to overturn the constitution ban.

* In states that have civil unions same as marriage in all but name, aim for a court case.

* In more conservative states, work for expansion of gay rights, such as non-discrimination cases, and recognition of marriages celebrated elsewhere. This will get the citizens of those states at least talking about marriage equality to lessen a backlash when the Supremes rule again.

Yup, the goal is marriage equality across the country by 2018. Go for it!

Is the issue gender or orientation?

Pam Spaulding of Pam's House Blend brings attention to an article by Sonja West for Slate. In our legal battles for marriage equality are we focusing too much on equality for sexual orientation? Perhaps we'll do better if we focus instead on gender discrimination.

Consider this example. Alice applies for a marriage license to marry Charlie. No problem. But if Bob applies for a license to marry Charlie, Bob is refused. Is Bob discriminated against because he is a man or because he is gay? That distinction matters because there is already significant precedent for gender discrimination cases. Not so much for sexual orientation discrimination cases.



The Supremes have about 10 days left to issue their opinions in this term's cases. Yes, marriage equality and the Defense of Marriage Act (DOMA) rulings will come then. So expect a lot of articles on the issue in that time.

One of those articles explores the open questions, no matter the rulings. One of those questions is raised if DOMA is struck down. Do married gay couples automatically get federal benefits? Um, that depends. Some federal agencies define marriage by the state in which the license was issued. Other agencies use the state of residence. So, yeah, if you marry in New York, but live in Michigan, you may get only some federal benefits. Unless Obama, out of the kindness of his heart, directs agencies to issue benefits based on the state where the license was issued. Or another court case reaches the Supremes.

Marriage already redefined

Last week, about the time the Supremes finished hearing oral arguments in the two gay marriage cases, Time put out an edition with the cover story "Gay Marriage Already Won." You can buy the issue with a cover showing two men or two women kissing.

During the second case before the Supremes Chief Justice Roberts made a lot of noise about gays being "politically powerful," noting the slew of senators trumpeting their support of marriage equality. Perhaps Roberts was saying "Don't bother us, you can get there through politics."

Many in the gay community are telling Time (and Roberts), "Not so fast." There are still 33 states that ban gay marriage and most of them in the state constitution. According to Nate Silver the last few states may not overturn their ban for another decade. Edie Windsor, at the center of one of last week's cases, is 83 and doesn't have a decade.

We may no doubt win, but we haven't won yet. Our opposition will be fighting nasty. Heroes (on our side) will still be created.



Ari Ezra Waldman reviews the arguments against gay marriage along with their refutation. He actually posted this before the cases were heard last week, alas I'm only getting to it now. The rundown:

* The country has an interest in upholding morality. But the Supremes have already ruled that morality, especially moral disapproval of a group, cannot be the sole reason for discrimination.

* We can't afford granting gay couples federal benefits when money is scarce. Again, Supremes have already ruled that administrative costs cannot justify discrimination.

* We as a nation need the uniformity of DOMA's denial of federal benefits while states work out who can and can't get married. Repealing DOMA has no effect on the states working through the issue.

* The state has an interest in the optimal family structure and in encouraging straight couples to produce babies within marriage. This is really the only argument that got much airing before the justices.

The reply to the last one has two parts:

* Gays used to be portrayed as promiscuous. This argument actually claims that gays shouldn't marry because straights are promiscuous.

* Banning gays from marriage does nothing to promote straights to get hitched.



Brian Dickerson in the Sunday Free Press notes that marriage has already been redefined, and not by gays. These days 48% of women give birth to their first child before getting married. This change started more than 20 years ago. Yes, two parents are better, but the sex of the parents doesn't matter. Perhaps excluding some people from marriage convinces others that marriage doesn't matter?

That question is worth exploring. But the consequences of the trend needs to be taken into account. Do we condemn these women or help them finish their education? Do we offer gov't support or do we pay for remedial education and incarceration of their offspring? But however we help these single-parent families it is completely separate from barring some people from getting married.

Skim-milk marriage

I didn't have a chance earlier to listen to Rachel Maddow's discussion of Tuesday's arguments before the Supremes. The video is under 10 minutes. She starts with a clip of Justice Kagan talking to the lawyer wanting to maintain the gay marriage ban. The lawyer makes his usual claim about marriage being for procreation. Kagan asks what about banning marriages when both people are over 55? Maddow is frustrated with the number of men -- lawyer and fellow justices -- who refuse to see Kagan's point. No matter that a man stays virile until he dies, the couple isn't going to be creating babies. Why do we allow them to get married?

Maddow then discusses the case with Kenji Yoshino of New York University Law School. Yoshino notes the evolution of using kids in this debate. It's still about "protect the kids." That used to mean protect the kids because gays will molest them. Then it was about protecting kids from learning about gays because they might become gay. Now since Obama talked about children when he began supporting us, the phrase means lets protect the children of gay couples by allowing their parents to marry. The combination of kids and gays isn't so toxic anymore.

Rachel Maddow's show yesterday was a summary of the second day of gay marriage before the court. There are three videos.

In the first one (17 minutes) Maddow plays the important audio clips of the proceedings with a bit of discussion. She has great admiration for spunky Ruth Bader Ginsberg, who had one of the great lines of the day. Ginsberg mentions many of the ways in which the federal gov't supports straight marriages but doesn't support gay marriages. The result is full (straight) marriage and gays who end up with "skim-milk marriage." You go, girl!

In a second clip Maddow interviews Mary Bonauto. The video is about 6 minutes. I've heard that name quite a bit over the last decade, but hadn't connected it all together. Bonauto was behind the case to get Vermont to create civil unions in 2000 (yeah, a court case prompted the law). She was directly involved in the case the brought gay marriage to Massachusetts, and one of the cases that declared DOMA to be unconstitutional (alas, not the one the Supremes heard). Here's a profile in the New York Times listing the cases I missed. Thank you for your strategy and your work.

In the third clip, 9 minutes long, Maddow discusses why the GOP is getting very quiet on the gay marriage issue. Thanks to the repeal of Don't Ask, Don't Tell, the military now deals with married gay servicemembers. The military is saying the Defense of Marriage Act requires them to discriminate against our soldiers, sailors, and such and this discrimination is harmful to them and to the military as a whole.

And for a bit of icing on the cake, Jon Stewart discusses the shift in support in the Senate.



Earlier this week I discussed how the Defense of Marriage Act might be tossed out because it interferes with states rights. I had noted how that might prevent overturning the Calif. gay marriage ban. Josh Marshall of Talking Points Memo (by way of Box Turtle Bulletin) caught the significance of the states rights argument.

If that’s the case, it would probably be the first time that “states rights” was ever used to vindicate any actual person or group’s rights. It’s almost always been bulwark behind which states hide to deprive citizens of rights. There are likely some marginal examples of the contrary. But the big verdict of history is unmistakable. It would be an ironic first.

About a week ago I noted polls showing a big jump in approval for gay marriage in just the last seven months. Alas, Nate Silver isn't so impressed with the data. He shows the gains have been rather steady since 2004, with no strong upturn in the last couple years.

We also look to Silver for predictions. He has a chart for projected support for gay marriage in 2016 and 2020 compared with support in 2008 and 2012. Conclusions: lawmakers better get cracking in Rhode Island, Hawaii, New Jersey, Delaware, and even Oregon and Nevada. Michigan should get it done by 2016. Louisiana, Georgia, Alabama, and Mississippi -- it's gonna be a while, sometime after 2020.



Rob Tisinai of Box Turtle Bulletin discusses the various points made in the Calif. gay marriage case. Tisinai is very good at pointing out absurdities. I'll let you read it on your own. It's in two parts. I mention it because a commenter, Ben in Oakland, has a description of Scalia that made me laugh:

He’s a finger down the throat for the soul, an emetic in the medicine cabinet of life, last year’s unrefrigerated mackerel, a bit of sushi that long since went to its final reward.

Do you think I am biased?

Heather Long of The Guardian reminds us discrimination against us does not end with favorable rulings on these cases. And it isn't just marriage discrimination. It takes a while for attitudes to change -- we're still dealing with racism.

For example, the Kentucky legislature passed a bill to preserve the right for people with "sincerely held beliefs" to discriminate against whomever they want. The governor vetoed it (yay!). The legislature wasted no time in overriding that veto. Commenters note all they've accomplished is a lot of grandstanding and the accumulation of a lot of legal bills.



Noah Feldman of Bloomberg looks at the mess that would result of the Supremes try to go slow by making a narrow ruling. What happens when a gay couple from Massachusetts moves to Louisiana? Do they get federal benefits but not state benefits? That's the reverse of what happens now. Lawsuits will result. We've already had another type of case -- a gay couple moves and find they can't divorce in their new state. Yeah, there is the issue of imposing marriage equality across the country before a lot of people are ready for it (see above). It seems a few justices don't want to get involved (at least not yet). But a narrow decision will keep them involved for a good long time as they hear cases from state after state.



Ari Ezra Waldman (who I've been reading all week) takes a step back and looks at seven broad "takeaways" related to the two cases heard this week. I won't bother with all seven, but two caught my attention.

Let's hear it for the women -- Justices Sotomayor, Kagan, and Ginsberg who deftly sliced up the flimsy arguments of our opponents, attorney Roberta Kaplan who represented Edie Windsor in the DOMA case, Edie herself who is at the center of one case and Kris Perry and Sandy Stier who are at the center of the other. And especially Mary Bonauto (see above). Yes, of course, there were fine men in there too -- the male couple in the gay marriage case, Jeff Zerillo and Paul Katami, and their lawyers Ted Olson and David Boies.

The Supreme Court matters. Just being in front of the Supremes is a big boost for our cause. Even w lukewarm ruling gives us something to build on. And an adverse ruling would be devastating.



I've heard comments over the last few days about the Supremes ducking the Calif. gay marriage case and waiting for another to come in "five or ten years". I got to be thinking -- it won't take anywhere near that long. I've already reported on a marriage equality case in Michigan where the judge has delayed his ruling until after the Supremes rule in June. If the Supremes don't allow marriage equality in Michigan, this judge could rule our state ban unconstitutional. Give it a couple years in Circuit Court and it will be before the Supremes.

Domain of the states v. discrimination

Gay marriage round two at the Supremes today. The demonstrations outside the Court were a lot smaller and quieter. So on to the actual case. This time it is the Defense of Marriage Act (DOMA), particularly the part that says the federal gov't defines marriage as one man and one woman for all of its business. Again, I'm relying on the analysis of Ari Ezra Waldman of Towleroad. No time tonight to search for other opinions.

The first hour was spent discussing whether the Court should even bother with the case. If the Obama admin. supported getting rid of DOMA and won that case in Circuit Court they aren't the injured party and shouldn't be able to ask the Court to review the case. Along the way a justice noted that if Edie Windsor (the lesbian widow at the heart of the case) wins, the gov't owes her $350,000 in a tax refund. So, yeah, the gov't is the injured party. But enough of that.

In the rest of federal law the states say, "These people are married," and the feds respond with, "Fine. These are the benefits they get." Those benefits are a small way of encouraging stability in marriage.

But DOMA says, "No matter what the state says, for federal purposes gay people are not married." Which leads to a big discussion of whether DOMA is unconstitutional on federalism grounds -- whether the feds are usurping the role that should be left to the states. Some justices, particularly Kennedy, focused on this idea.

But this one could bit us in the backside if it is used. If this case says who can marry is solely a state issue, then California is free to decide gays should be excluded from marriage. Much better to decide DOMA is discriminatory, but there may not be five votes for that.

Paul Clement, the lawyer for the House wanting to keep DOMA, tried to say that DOMA is necessary for equality -- it means the feds treat all gay couples equally. If DOMA is overturned, gay couples in marriage equality states are treated differently than gay couples in other states. Nice try, dude. What that means is gay couples would always be treated differently from straight couples. The justices then used Clement for target practice. The poor guy was reduced to his one argument: But gay marriage is different.

Clement's rebuttal tried the same tactic as the anti-gay side. Gay marriage is going to win anyway, so the courts should stay out of this issue. But leaving our rights up to the good graces (or whims) of our opponents violates the constitution and courts are abdicating their responsibility if they ignore inequality. Not responding to the tyranny of the majority eviscerates our system of justice and democracy.

We have lots of friends at the court

More than 60 companies have signed on to a brief asking the Supremes to strike down the Calif. gay marriage ban. They don't like being compelled to endorse the idea that gay and lesbian employees and customers are second-class citizens. And over 300 companies, law firms, civic and professional groups, cities and counties, and the Conference of Mayors have signed a brief to ask the Supremes to invalidate the part of the Defense of Marriage Act that prevents the federal gov't from recognizing gay marriages. They also don't like treating gays differently, and they don't like the cost of figuring out how to administer benefits when some couples get federal recognition and some don’t. That includes explaining the differences to the employees and helping them make appropriate choices. And there is one more cost: When gay couples see their benefits are different, who do they take it out on? The employer, who is seen as inquisitor and discriminator.

A couple professional football players, Brendan Ayanbadejo and Chris Kluwe, have made a name as gay allies. They also filed a brief in the Calif. gay marriage case. Thanks, guys.

The pro-gay side of the Calif. gay marriage case is reporting dozens of briefs filed on their behalf. It is quite a list.

And, finally and at the last moment, Obama (through his Justice Dept.) has filed a brief. Some people are annoyed because, though the brief says all the right things, it also has something about the "eight-state solution." If a state has civil unions that are the same as marriage except for the name the ruling could say those civil unions must become marriages. This is seen as a way of sidestepping the ruling that gay marriage bans are unconstitutional. I haven't read the 40 page brief (and I don't play a lawyer in this blog) so I don't know the details. Those 8 states are: California, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island.

On to the Supremes

A whole slew of gay cases have arrived at the Supreme Court and the court has taken a great deal of time (apparently more than usual) deciding which cases it will hear, which it will refuse to hear, and which it will save for another day. We've been waiting since the beginning of the term in October.

The Supremes finally issued orders today.

Several of the cases are about the Defense of Marriage Act. The one chosen was from Edie Windsor, who had to pay a huge (north of $360K) inheritance tax when her wife died. No word yet on what will happen with the other cases.

A part of this case is whether the GOP House is allowed to bring it to the Supremes when the Prez. decided not to.

The second case chosen is the Calif. gay marriage issue. When this came up from the 9th Circuit Court, it was narrowed to refer only to Calif. which had gay marriage before voters took it away. Because of that many Supreme watchers thought the court would not bother, allowing the 9th Circuit to lift its stay and letting marriage in Calif. resume. And allowing the Supremes to avoid the issue.

But the Supremes said they will look at whether Calif. can define marriage to be one man and one woman, not whether Calif. can grant a right then take it away. Interestingly, the Court also said they will look at whether the case should have made it this far. The state of Calif. isn't defending the law, an anti-gay org. is. The Supremes could say the org. isn't being harmed by gay marriage and shouldn't have brought the suit. That means the could sidestep the actual marriage case. Here is a history of the case.

One case not taken (and not yet denied) is from Arizona, which had domestic partner benefits for state employees, then took them away.

Both of these cases have an "opt-out" clause. The Supremes could say the people bringing the case have no standing to do so. Thus the lower court ruling stands. This is likely about strategy. If one side begins to see they may not get five votes they have a way to drop the case and wait for another day.

Arguments for both cases will happen sometime at the end of March with a ruling by the end of June.

There was another complication that appeared in just the last few days. A judge in a district court in Nevada decided that yes, indeedie, Nevada was quite proper in having a gay marriage ban. The judge is Mormon and the ruling came straight out of Fundie beliefs, including a line that if gays married then straights would stop marrying (Rob Tisinai tries to figure out who those people would be). In addition, the judge said he didn't need no stinkin' evidence. Put another way, this one is ripe for overturning.

Someone involved in the Nevada case (I'm not sure on which side) decided to skip the liberal 9th Circuit Court and go straight to the Supremes. There was fear (and perhaps strategy) that yet another case would slow down the process the Supremes use to choose cases, delaying the date of marriage equality. Also, this would give the Supremes a case in which a gay marriage ban is upheld.

Thankfully, the Supremes didn't let that one influence their choice of cases.

In a related post celebrating gay marriage in Maryland, Terrence Heath has some useful pie charts showing what happens when gays are allowed to marry.

The photo at the top of this link now represents gay marriage in Washington state. They've just started issuing licenses and weddings will begin on Sunday. Cute couple.

History of discrimination doesn't justify continuing

Karen Golinski wants to put her partner on her employer supplied health plan. A bit of irony -- Golinski works for the 9th Circuit Court, which just ruled favorably in the Calif. gay marriage case. But that means Golinski is a federal gov't employee and the Defense of Marriage Act won't allow her marriage to be recognized for benefits.

Judge Jeffrey White, a federal judge, has declared DOMA to be unconstitutional. This is one of many cases about DOMA working their way towards the Supremes. Most of those that have had a ruling have said it is unconstitutional.

Ari Ezra Waldman, a lawyer, lists some of the ways this particular case adds to the argument.

The 9th Circuit ruling on the Calif. case included one dissent. That judge thought that it was fine for voters to vote for discrimination as long as they had a good reason, even if that reason was based on lies. Judge White's ruling said that previous cases (Romer and Lawrence) have already said moral disapproval is not enough to justify discrimination.

DOMA does not encourage responsible procreation and child rearing because it has nothing to do with straight marriages and their kids.

Denying federal recognition of married gay couples only burdens those couples.

It does not nurture traditional marriage because a person in a gay marriage is already married and will not marry someone of the opposite sex.

DOMA does not maintain the status quo. DOMA was the first time the federal gov't defined marriage.

A long history of discrimination does not justify its continuance.

A desire to be cautious in a hot social issue does not permit continued discrimination.

No doubt the case will be appealed to the 9th Circuit -- yeah, the court where Golinski works.

Sorry, your toaster won't consent to marriage

Some more cool stuff from Tuesday's election:

North Carolina seems to be a hotbed of gay politicians, which is a great thing since the state will vote on a marriage protection amendment next May. I mentioned LaWana Mayfield in Charlotte and Mark Kleinschimdt in Chapel Hill. There is also Lee Storrow, only 22, now on the Chapel Hill city council and Lydia Lavelle back as an Alderwoman in Carrboro.

Dade County, Florida, voted in an equal benefits ordinance. An employer must give same-sex couples the same benefits as straight couples.



Here is a summary of why the argument that gay marriage leads to marrying your toaster (or a dog, or a corpse) is bogus.



The Senate Judiciary Committee has approved the Respect for Marriage Act, which would repeal the Defense of Marriage Act of 1996. The vote was 10-8, along party lines. The fate of the bill before the whole Senate is unknown. Considering the House leadership is trying to defend DOMA, this bill won't get far there, even with 135 sponsors. This vote is hugely important, even if the bill goes no further.

Full faith and credit

I wrote yesterday about the Respect for Marriage Act (repealing DOMA) and said the repeal includes the provision that says states will have to honor gay marriages performed in other states. Tobias Barrington Wolff, formerly the Chair of LGBT Policy for Obama's 2008 campaign and with an article in Pam's House Blend, offers correction and clarification.

That clause in DOMA that says states don't have to honor gay marriages from other states is based on a false premise and wasn't necessary. In the past states have disagreed on marriage issues (such as interracial marriage) and the courts have worked out how to handle the differences. They will do so again. There will be differences in gay marriage law for quite some time (barring a really favorable ruling by the Supremes in the Calif. gay marriage case).

The Full Faith and Credit phrase of the Constitution is cited as the need for the part of DOMA mentioned above. However, that phrase applies to court proceedings, such as custody or wrongful death. Someone is not able to subvert a court judgment simply by moving to a more favorable state. So if a recognition of a marriage is required to complete a court judgment a second state must honor that marriage, if only to carry out the judgment.

However, if courts are not involved the situation is different. A gay couple going to New York to marry for the purpose of demanding Alabama (or a health insurance company there) recognize their marriage probably won't succeed. State courts don't have to violate strong public policies.

Repeal of the Full Faith and Credit part of DOMA is still important, for three reasons.

* The Constitution says (as discussed above) one state must honor the court judgments of another state. DOMA says this does not have to be followed for gay people.

* States legislatures or courts are able to work out sensible policy about the circumstances an out of state marriage might be recognized. But with DOMA that discussion is avoided and states are encouraged to treat gay couples with legal hostility.

* This part of DOMA was the first time the federal gov't singled out a group of people and declared their relationships could be treated with hostility in interstate situations. It is a bad precedent.

Calling out the damn lies and statistics

Senator Diane Feinstein has introduced a bill, the Respect for Marriage Act, to overturn the Defense of Marriage Act. And she means not just the part that the federal gov't can't acknowledge gay marriages but also the part that says states don't have to accept gay marriages performed in other states. With that bill now in the senate system hearings were held yesterday. It featured testimony from gays hurt by the law, such as a man who had to sell his condo when his partner died because the partner's federal pension didn't recognize him.

There were the usual cast of anti-gay bigots, such as Thomas Minnery of Focus on the Family. And senators Al Franken and Patrick Leahy were ready. Minnery claimed that children do better in mother-and-father families. Franken pounced. Nope, the study says "nuclear families" and families headed by a same-sex couple are included in that definition. Franken said, "And I frankly don’t really know how we can trust the rest of your testimony if you are reading studies these ways." Leahy then got Minnery to agree that children are better off with gay parents than with no parents and that gay couples should have the same financial benefits as a straight couple. Thank you, Mr. Franken and Mr. Leahy.

This is why the anti-gay crowd doesn't like legal proceedings. They would rather trumpet their false claims without having to provide proof as part of an election campaign.

E. J. Graff, in an article in The Atlantic, has a full report on the hearing and compares it to the hearings held 15 years ago when DOMA was enacted. One aspect didn't change -- various witnesses said pretty much the same thing as was said before (though perhaps different people saying it). Ah, but the words coming out of the mouths of senators was quite different.

Back in 1996, no senator was calling the antigay forces on their lies, damn lies, and statistics. No senator approvingly quoted his state's married same-sex couples or invited white-bread suburban lawnmowing gay men and lesbians to tell the heartbreaking disaster stories about being excluded from full marriage recognition. This time, perhaps no Republican senator was yet willing to urge DOMA's repeal, but only Sen. Chuck Grassley (R-Iowa) showed up to speak in support of it.

It is so good to see the list of senators who helped our side. DOMA is getting wobbly.

Significant and regrettable

A while ago the Department of Justice declared it would no longer defend the Defense of Marriage Act in court challenges. Last Friday the DoJ filed a brief in one of those cases. It was a lot more than a simple "We won't defend that law." One part was a thorough discussion of why. Another part was a long discussion of the "significant and regrettable role" in discrimination of gays in all levels of government, especially the federal level. It then goes on to document that discrimination, starting with Eisenhower's executive order to add "sexual perversion" (meaning gays) to the reasons why a person might be fired from government employment. In a sense the DoJ is issuing an apology.

This significantly changes the dynamics of public perception and of the case itself.