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Entries in Prop 8 (3)

Thursday
Feb282013

Obama Administration Joins Legal Fight Against Calif. Gay Marriage Ban

iStockphoto/Thinkstock(WASHINGTON) -- The Department of Justice filed a brief Thursday in the case of a controversial California ballot initiative that defined marriage as between one man and one woman, asking the Supreme Court to affirm a lower court decision that struck down the measure, known as Proposition 8.

The brief marks the first time that the Obama administration has come out in court against Prop 8.

"The exclusion of gay and lesbian couples from marriage does not substantially further any important governmental interest. Proposition 8 thus violates equal protection," wrote Solicitor General Donald B. Verrilli Jr. in a "friend of the court" brief filed in favor of gay and lesbian couples challenging Prop 8.

Referring to proponents of the voter-approved measure who are defending it in court, Verrilli wrote, "Petitioners contend that Proposition 8 serves an interest in returning the issue of marriage to the democratic process, but use of a voter initiative to promote democratic self-governance cannot save a law like Proposition 8 that would otherwise violate equal protection."

But Thomas Peters, communications director for the National Organization for Marriage, which opposes gay marriage, invoked California's voters in saying it expected the court to uphold the law.

"NOM expects the Supreme Court to exonerate the votes of over 7 million Californians to protect marriage," said Peters, whose group is not the one arguing for Prop 8 in court. "The president is clearly fulfilling a campaign promise to wealthy gay marriage donors. There is no right to redefine marriage in our Constitution."

The Obama administration brief noted that California extends all of the rights and responsibilities of marriage to gay and lesbians, but forbids them the designation of "marriage."

That circumstance, "particularly undermines the justifications for Proposition 8," Verrilli wrote.

"The brief pays closest attention to California and the other seven states that grant same-sex couples all the rights and responsibilities of marriage but insist on denying them the favored name," said Jane S. Schacter, a professor at Stanford Law School. "But it advocates that the court adopt a much tougher, more skeptical approach to any state law that denies same-sex couples the right to marry."

"That approach is what lawyers call 'heightened scrutiny,'" she added, "and if it were faithfully applied to all state laws banning same-sex marriage, it would result in the invalidation of those laws. The administration's brief provides a blueprint for a national right-to-marriage equality, even though it does not advocate that in express terms."

Stephen I. Vladeck, a professor of law at American University of Law, called it the, "tip of a much larger anti-discrimination iceberg."

According to the brief, Vladeck said, "states can't discriminate against gays without a really strong reason -- not just with respect to marriage, but adoption, employment, benefits and so on."

Today, 39 states have laws restricting marriage to opposite-sex couples. This number includes voter-approved constitutional amendments in 30 states barring same sex marriage. Nine states allow gay marriage.

"The brief filed by the solicitor general is a powerful statement that Proposition 8 cannot be squared with the principles of equality upon which this nation was founded," said Adam Umhoefer executive director of the American Foundation for Equal Rights (AFER), the group behind the challenge of Prop 8.

Copyright 2013 ABC News Radio

Friday
Nov302012

Supreme Court Takes No Action on Gay Marriage

iStockphoto/Thinkstock(WASHINGTON) -- When the nine Supreme Court justices retreated behind closed doors Friday for their regularly scheduled conference, they considered the issue of gay marriage and were widely expected to decide whether to take up a case that could ultimately determine whether there is a fundamental right to same-sex marriage.

But the justices surprised court watchers when they took no action at all. Although they discussed the issue in their closed door conference Friday morning, they made no decision on whether they would hear unrelated cases having to do with California's 2008 Prop 8 and the Defense of Marriage Act.

The Court could act on Monday when it is scheduled to release orders, or discuss the cases again in their next scheduled conference on next Friday.

At issue in the cases is Proposition 8, the controversial 2008 California ballot initiative that defines marriage as between a man and a woman. It passed with 52 percent of the vote.

A divided three-judge panel of the 9th Circuit Court of Appeals in February struck down "Prop 8," ruling that it "serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California and to officially reclassify their relationship and families as inferior to those of opposite-sex couples."

Supporters of Prop 8 are asking the Supreme Court to hear an appeal of that ruling. Gay marriages have been put on hold in California until the Supreme Court decides whether to step in and hear the case.

In court briefs, Charles J. Cooper, a lawyer for ProtectMarriage.com, the original sponsor of Prop 8, writes, "Californians of all races, creeds, and walks of life have opted to preserve the traditional definition of marriage not because they seek to dishonor gays and lesbians as a class, but because they believe that the traditional definition of marriage continues to meaningfully serve society's legitimate interests, and they cannot yet know how those interests will be affected by fundamentally redefining marriage."

Judge Stephen Reinhardt, who authored the Prop 8 decision, made clear that the court was ruling on the "narrowest grounds" specific to circumstances concerning the passage of Prop 8 and was leaving the more general question concerning whether under the Constitution same-sex couples "may ever be denied the right to marry" to be resolved "in other states" and by "other courts."

Opponents of Prop 8 are represented by David Boies, and Theodore Olson, two lawyers who argued on opposite sides in Bush v. Gore.

They contend in court briefs that the question about whether the states might discriminate against gay men and lesbians in the provision of marriage licenses could be the "defining civil rights issue of our time."

They say that the Prop 8 case might be an "attractive vehicle for approaching, if not definitively resolving, that issue."

"By eliminating the right of individuals of the same sex to marry, Proposition 8 relegated same-sex couples seeking government recognition of their relationships to so-called 'domestic partnerships.' Under California law, domestic partners are granted nearly all the substantive rights and obligations of a married couple, but are denied the venerated label of 'marriage' and all of the respect, recognition and public acceptance that goes with that institution," Boies and Olson say.

But because they won at the lower court, even though it was a narrow ruling, they have urged the Supreme Court not to take up the case. In part, they argue, the court should decline the case because more review would delay the ability of their clients to marry in California.

The Supreme Court could still act Monday in a number of ways. Even if it granted the case, it could issue an opinion narrowly tailored to California and, thus, avoid the broader question regarding a fundamental right to same sex marriage. It could decline to take up the appeal, which would mean gay marriages could resume in California.

Court watchers speculate that some of the conservative members of the court who are uncomfortable with a lower court decision that struck down a successful ballot initiative, might have a greater concern with Justice Anthony Kennedy's ultimate vote. While it only takes four justices to agree to take a case, it takes five to win and Kennedy is seen as a likely swing vote.

"Conservative justices hoping to find an ally in Justice Kennedy may be concerned about his majority opinion in favor of gay rights advocates in two previous cases in 1996 and 2003," professor Margaret Russell of the Santa Clara University School of Law said.

"Kennedy's basic approach in those cases was to protect the individual liberty and choices of gay men and lesbians."

Other justices might vote against taking up the case out of a belief that the issue should be allowed to percolate further at the state level.

Nine states and the District of Columbia allow (or will soon allow) gay marriage.

Besides the Prop 8 case, called Hollingsworth v. Perry, the Justices Friday will also address several challenges to a federal law, the Defense of Marriage Act (DOMA) that defines marriage as between a man and a woman.

Such cases do not involve a fundamental right to gay marriage, as the couples involved are already legally married in their state. Instead, at issue is whether legally married same-sex couples (in states that allow gay marriage) can be denied federal benefits, such as Social Security survivor benefits and federal health care, that are available to opposite-sex couples.

The Obama administration decided in 2011 to no longer defend DOMA in court, arguing that it was unconstitutional. Two federal appeals courts have struck down the law.

Because the government refuses to defend the law in court, Republican Speaker John Boehner of Ohio moved to intervene and appointed the U.S. House of Representatives Bipartisan Legal Advisory Group (BLAG) to do so.

Paul D. Clement serves as BLAG's lawyer and stresses that DOMA was enacted with strong majorities in both houses of Congress and was signed into law in 1996 by President Bill Clinton. In court briefs, Clement writes that DOMA was not meant to invalidate any marriages, but "simply asserts the federal government's right as separate sovereign to provide its own definition which governs only federal programs and funding."

Kenji Yoshino, a professor at New York University School of Law, believes that the court is more likely to take up one of the DOMA cases than the Prop 8 case. "I think the court is almost certain to take the DOMA cases, as they involve lower courts striking down a federal statute rather than a state law, as is the case in the Prop 8 case," he says.

"The DOMA case also asks the court for less, in that it does not affect the marriage law in any state. Rather it returns the Congress to its traditional posture of deferring to state definitions of marriage."

Copyright 2012 ABC News Radio

Wednesday
Feb222012

House Democrats Protest California‚Äôs Proposition 8

iStockphoto/Thinkstock(WASHINGTON) -- A collection of House Democrats are protesting silently against Proposition 8 Wednesday, participating in a photo shoot to draw attention to California’s state law banning same-sex marriage.

Wednesday the NOH8 campaign released images of 10 members of the House of Representatives from its “NOH8 on the Hill” photo shoot; the campaign opposes California’s Proposition 8, which bans same-sex marriage, and supports the LGBT community with its stand against bullying and discrimination.

Four Democratic lawmakers from California -- Reps. Judy Chu, Lynn Woolsey, Barbara Lee and Jackie Speier -- joined Dennis Kucinich (Ohio), William Keating (Mass.), Earl Blumenauer (Ore.), Niki Tsongas (Mass.), Jared Polis (Colo.) and Del. Eleanor Holmes Norton (D.C.) in the cause.

“Equality before the law is an American value articulated in our Constitution and it’s at the heart of the NOH8 Campaign,” Polis, one of a handful of openly homosexual members of Congress, said. “With a focus on our nation’s value of freedom and an unflagging insistence on equality for all, we can look forward to a time when equal rights for all is a given.”

Earlier this month, the Ninth Circuit Court of Appeals affirmed a lower court’s ruling that California’s ban on same-sex marriage violates both the due process and equal protection clauses of the Constitution. That ruling, however, is pending further appeal.

The photo shoot, which occurred on Capitol Hill on Feb. 15, was open to any members of Congress willing to take a stand against the controversial law, although no Congressional Republicans participated.

Each member issued a statement explaining why they had the NOH8 logo applied to their face, along with a piece of silver duct tape covering up their mouths.

“Gay and lesbian Americans are part of the fabric that makes this country strong,” Blumenauer said. “The notion that we could ask these men and women to do everything from paying taxes to serving our country in uniform while denying them the right to marry is offensive to everything I believe in as a public servant. I won’t stop working for equal rights in Congress until they have been extended to every American.”

“These pictures speak volumes about the will of the American people to be treated the same, regardless of race, religion or sexual orientation,” Chu stated.

Proposition 8 is the ballot initiative passed in 2008 to amend the California constitution and ban same-sex marriage. About 18,000 same-sex couples had already obtained marriage licenses in the state before voters approved the law.

Copyright 2012 ABC News Radio







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