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Same-Sex Marriage  
 
page: 1  2  3  4  5  6  7  8  

Federal Challenge to Proposition 8

Soon after the announcement of the California Supreme Court's decision, veteran litigators Theodore Olson and David Boies, who had opposed each other in the bitterly contested Gore v. Bush case that decided the 2000 Presidential election, announced that they would take the battle for marriage equality to federal court.

Their announcement was initially greeted less than enthusiastically by some gay legal organizations and experts, who judged the move risky and premature, but the attorneys soon convinced most glbtq groups and individuals of their commitment.

Sponsor Message.

One of the most intriguing aspects of the Boies-Olson suit is that it may make the cause of marriage equality less partisan than it had previously been perceived, since Olson, a former Solicitor General, is a prominent conservative Republican, while Boies is a well-connected liberal Democrat.

The Olson-Boies case, supported by the American Foundation for Equal Rights, was brought on behalf of one lesbian couple, Kris Perry and Sandy Stier, who have four children, and a gay male couple, Paul Katami and Jeff Zarrillo. Because the nominal defendants in the case include the Governor of California and one of the plaintiffs is named Perry, the case became known as Perry v. Schwarzenegger (then Perry v. Brown and, ultimately, Hollingsworth v. Perry).

The case was filed in May 2009 in the Federal District Court for Northern California and was assigned to the court's Chief Judge, Vaughn R. Walker, who was appointed to the bench by President George H. W. Bush in 1989.

The trial began on January 11, 2010. Because Governor Schwarzenegger and California Attorney General Jerry Brown declined to defend Proposition 8, with Brown declaring that he considered Proposition 8 unconstitutional, the ban on same-sex marriage was defended by the proponents of Proposition 8, led by chief counsel Charles Cooper.

In the course of the trial, which spanned twelve days in January and two days in June 2010, Olson and Boies systematically built their case around the history of marriage, the harm that denial of marriage rights does to gay and lesbian couples and their children, and the irrationality of the ban. Introducing a massive amount of evidence, they demonstrated that the ban was enacted out of animus against homosexuals and that it causes great harm to gay men and lesbians for no rational governmental purpose.

The defense was stymied by the fact that they were unable to argue against same-sex marriage on religious grounds or on the inferiority of homosexuals, since such arguments would not be admissible as appropriate governmental reasons for denying a fundamental right. Instead, they were reduced to arguing that the only purpose of marriage is procreation and that permitting same-sex couples to marry would in some unspecified way contribute to the "deinstitutionalization" of marriage.

On August 4, 2010, Judge Walker issued his decision. His 136-page opinion demolished the credibility of the defendants' witnesses, systematically outlined 80 findings of facts established by the plaintiffs, and concluded unambiguously that Proposition 8 is unconstitutional.

Judge Walker declared that "the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional."

Judge Walker endorsed the contention of Olson and Boies that the ban on same-sex marriage violates the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States.

In reaching this conclusion, he found that, although sexual orientation is entitled to heightened scrutiny, Proposition 8 fails to survive even rational basis review. He further found that the ban discriminates on the basis of sex as well as sexual orientation. He described domestic partnerships as a "substitute and inferior institution."

Judge Walker emphatically rejected the defendants' argument that the purpose of marriage is procreation, observing that "states have never required spouses to have an ability or willingness to procreate in order to marry."

He described the exclusion of same-sex couples from marriage "as an artifact of a time when the genders were seen as having distinct roles in society and in marriage," and declared, "That time has passed."

The judge dismissed the idea that a referendum of voters is somehow sacrosanct. The referendum's outcome was "irrelevant," he said, because "fundamental rights may not be submitted to a vote."

In his findings of fact, Judge Walker established that same-sex couples are identical to opposite-sex couples in their ability to form successful marital unions and raise children.

Judge Walker's stayed his historic ruling to allow its appeal to the Ninth Circuit Court of Appeals.

The editorial page of the New York Times described Judge Walker's decision as both "an instant landmark in American legal history" and also "a stirring and eloquently reasoned denunciation of all forms of irrational discrimination, the latest link in a chain of pathbreaking decisions that permitted interracial marriages and decriminalized gay sex between consenting adults."

Victory in Connecticut

In a decision released on October 10, 2008, the Connecticut Supreme Court declared unconstitutional the state's prohibition on same-sex marriage and its civil union law.

These laws, the majority in a 4-3 decision ruled, violate the constitutional guarantee of equal protection under the law.

In the wide-ranging majority opinion, Justice Richard N. Palmer declared that "Interpreting our state constitutional provisions in accordance with firmly established equal protection principles leads inevitably to the conclusion that gay persons are entitled to marry the otherwise qualified same-sex partner of their choice." He added that "To decide otherwise would require us to apply one set of constitutional principles to gay persons and another to all others."

Pointing out that "civil unions enjoy a lesser status in our society than marriage," Justice Palmer declared that "Ultimately, the message of the civil unions law is that what same-sex couples have is not as important or as significant as real marriage."

As in the California decision, the Connecticut Court also ruled that sexual orientation was a "suspect" category entitled to "strict scrutiny" in determining allegations of discrimination.

Three justices entered dissents from the ruling. Two of them disagreed that civil unions provided fewer rights and responsibilities than marriage and thought that the issue of marriage equality could best be resolved through the legislative process, pointing to increased public support in the state for same-sex marriage. They also argued against applying "strict scrutiny" to issues involving sexual orientation, contending that gay people have "unique and extraordinary" political power and therefore do not warrant heightened constitutional protections.

The dissent by Justice Peter Zarella argued that marriage laws dealt with procreation, which, he declared, was not a factor in gay relationships, apparently ignoring the fact that many same-sex couples have children. "The ancient definition of marriage as the union of one man and one woman has its basis in biology, not bigotry," he wrote.

On November 12, 2008, at a time when glbtq communities in California and elsewhere were protesting against the passage of Proposition 8, gay and lesbian couples in Connecticut began exercising their right to marry.

On April 23, 2009 the Connecticut legislature voted to replace the gendered language of its marriage laws with genderless terms and to make all references to marriage gender-neutral. Governor Jodi Rell signed the law. This legislation brought the state into compliance with the Supreme Court ruling in favor of marriage equality.

Victory in Iowa

In a unanimous ruling announced on April 3, 2009, the Iowa Supreme Court struck down the Iowa law banning same-sex marriage on equal protection grounds.

The decision, authored by Justice Mark Cady, stemmed from a 2005 lawsuit filed by six gay and lesbian couples who were denied marriage licenses by the Polk County recorder's office. The seven justices affirmed the appellate ruling of Polk County Judge Robert Hanson that Iowa's ban on same-sex marriages treated gay and lesbian couples unequally under the law.

In a carefully reasoned and firmly stated decision, the court declared, "We are firmly convinced the exclusion of gay and lesbian people from the institution of civil marriage does not substantially further any important governmental objective. The legislature has excluded a historically disfavored class of persons from a supremely important civil institution without a constitutionally sufficient justification. There is no material fact, genuinely in dispute, that can affect this determination."

Acknowledging that the decision may not be a popular one in a conservative state, the court insisted on its duty to uphold the Iowa constitution. "We have a constitutional duty to ensure equal protection of the law. Faithfulness to that duty requires us to hold Iowa's marriage statute, Iowa Code section 595.2, violates the Iowa Constitution. To decide otherwise would be an abdication of our constitutional duty."

The Court rejected civil unions as an alternative to marriage.

It ordered that marriage licenses be issued to same-sex couples as soon as the decision is officially promulgated. It further ordered that the language in Iowa Code section 595.2 limiting civil marriage to a man and a woman be stricken from the statute, and the remaining statutory language be interpreted and applied in a manner allowing gay and lesbian people full access to the institution of civil marriage.

The Iowa decision is particularly important because it is the first decision in favor of marriage equality from a heartland state. Moreover, the decision is extraordinarily well-written and thoughtful. It may influence the courts of other conservative states.

Although polls indicated that a large majority of Iowans were opposed to same-sex marriage, passing a constitutional amendment to overturn the Court's decision is difficult. The process to amend the Iowa constitution requires approval of a proposed amendment in two sessions of the legislature before being submitted to the voters. The leaders of both houses of the Iowa legislature vowed not to allow consideration of a proposed amendment. Even after the Republicans took control of one house of the legislature in 2010, a constitutional amendment was not introduced.

However, the National Organization for Marriage and other conservative forces successfully targeted three members of the Iowa Supreme Court for removal from the bench in 2010. Their success indicated continuing anger at the Court for its ruling.

It should be noted, however, that the three jurists refused to campaign on their own behalf, feeling that that would be unseemly.

Moreover, in November 2012, an attempt to remove another member of the Court failed. And recent polls have shown that a majority of Iowans now support same-sex marriage, so it seems that marriage equality is now safe is Iowa.

Victory in Vermont

In 2000, Vermont became the first state to adopt civil unions; in 2009, it became the first state to adopt marriage equality by legislative mandate rather than court order.

Following a series of hearings and studies of the civil union law, in which many gay and lesbian couples complained that civil unions were not recognized as the equivalent of marriage, the Vermont legislature took up the question of marriage equality in 2009.

The bill to amend the marriage laws to permit same-sex marriage passed easily in both houses of the Democratic-controlled legislature: 26-4 in the Senate, 95-52 in the House of Representatives.

The bill, however, was opposed by Republican Governor Jim Douglas, who vetoed it as soon as it arrived on his desk. Despite the wide margins by which it was passed, whether the supporters could override the Governor's veto, which would require a 2/3 vote in both chambers, was by no means certain.

On April 7, the Senate, as expected, overwhelmingly approved the override. After a tense debate in the House, where the vote was expected to be very close to the number needed, the House voted 100 to 49--the precise number needed--to override the veto.

Following the vote to override Governor Douglas's veto, Senate President Pro Tem Peter Shumlin declared, "The struggle for equal rights is never easy. I was proud to be President of the Senate nine years ago when Vermont led the country by creating civil unions. Today is another historic day for Vermont and I have never felt more proud as we become the first state in the country to enact marriage equality not as the result of a court order, but because it is the right thing to do."

When the bill took effect on September 1, 2009, Vermont became the fourth state to offer equal marriage rights.

After September 1, 2009, Vermont ceased offering civil unions, though civil unions already performed will continue to be recognized. If parties to civil unions wish to be married, they will have to obtain marriage licenses and have marriage ceremonies.

The new law also makes explicit that Vermont recognizes same-sex marriages that have been performed in other jurisdictions where they are legal.

Although the debate over marriage equality in Vermont was sometimes tense, and often moving, it was not rancorous in the way the debate over civil unions in 2000 had been. The civility of the debate reflected the fact that Vermonters had grown familiar with gay and lesbian couples in civil unions (and in marriage in Massachusetts and Canada) and realized that none of the dire predictions made by opponents had come to pass: the sky did not fall simply because gay and lesbian couples enjoyed equal rights.

The success in Vermont is remarkable when one considers that, except in a few liberal states, few legislators support marriage equality or even civil unions or domestic partnerships. The ability to marshal a 2/3 vote in favor of marriage equality attests to the effectiveness of grass-roots organizing and to Vermonters' commitment to equality under the law.

Domestic Partnerships in Washington

In 2007, in the aftermath of the bitterly divided Washington state supreme court ruling that gay and lesbian couples had no constitutional right to marriage, the Washington legislature adopted a relatively weak domestic partnership law. It provided hospital visitation rights, the ability to authorize autopsies and organ donations, and inheritance rights when there is no will.

In 2008, the legislature expanded that law to give domestic partners standing under laws covering probate and trusts, community property, and guardianship.

In 2009, the Democratic-controlled legislature expanded the domestic partnership law to confer on same-sex partners all the rights and responsibilities that Washington state offers to married couples. The bill passed the House by a vote of 62-35 and the Senate by a vote of 30-18.

Among the rights granted by the bill are business succession rights; victims' rights, including the right to receive notifications and benefits allowances; legal process rights; the right to use sick leave to care for a spouse; the right to wages and benefits when a spouse is injured, and to unpaid wages upon death of spouse; the right to unemployment and disability benefits; workers' compensation coverage; and insurance rights, including rights under group policies, policy rights after death of spouse, conversion rights, and continuing coverage rights.

After the passage of the legislation by the state senate on April 15, 2009, Governor Chris Gregoire pledged to sign it as soon as it reached her desk, remarking, "Our state is one that thrives on diversity. We have to respect and protect all of the families that make up our communities."

However, a conservative organization announced that they would begin the process of gathering signatures to qualify a proposal repealing the new law. In September 2009, the Washington Secretary of State certified the signatures, despite irregularities in collecting and submitting them. The law thus was submitted to the voters in November 2009 for approval or rejection.

On November 3, 2009, voters in Washington, by a 53% to 47% margin, approved the domestic partner legislation, making Washington the first state in which gay partnerships were affirmed by a popular vote.

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