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Wednesday, March 04, 2009

Law - Various gay marriage issues in the news

(1) California's Prop. 8 challenge will be argued before the California Supreme Court tomorrow. Maura Dolan of the LA Times has a story headed "California Supreme Court may reveal stance on Prop. 8 on Thursday". Some quotes:

The California Supreme Court may reveal Thursday whether it intends to uphold Proposition 8, and if so, whether an estimated 18,000 same-sex marriages will remain valid, during a high-stakes televised session that has sparked plans for demonstrations throughout the state.

By now, the court already has drafted a decision on the case, with an author and at least three other justices willing to sign it. Oral arguments sometimes result in changes to the draft, but rarely do they change the majority position. The ruling is due in 90 days. * * *

"It is one of the most important cases in the history of the California Supreme Court," said Mark Rosenbaum, legal director of the ACLU of Southern California. "The core tenet of our constitutional democracy is that fundamental rights of historically disadvantaged minorities are not dependent on the whim of the majority."

The challenges to the initiative are based on novel legal theories. Gay rights lawyers argue that the measure was an illegal constitutional revision, rather than a more limited amendment. The court has struck down constitutional amendments passed by voters as impermissible revisions only twice in its history, and there are relatively few precedents on the subject.

"While no case forecloses the revision argument, there is no case that really supports it, and most of the cases mildly cut against it," said UC Davis law professor Vikram Amar.

Upholding existing same-sex marriages would be a lower hurdle for the court, Amar and other scholars said.

"There is enough ambiguity in Prop. 8 that the court could easily interpret the measure as not applying to existing marriages," Amar said. "That is a legally plausible interpretation, and it is so clearly the just interpretation that I think getting four votes for that seems easier."

State Atty. Gen. Jerry Brown's office will ask the court to uphold the marriages and strike down the initiative as an illegal repeal of an inalienable right without compelling justification. Brown's argument is even more novel than the revision challenge, which his office said had no merit.

The Proposition 8 case has attracted more friend-of-the-court briefs than the marriage dispute that led to last year's historic ruling -- the previous record-holder. Most of the outside groups that have weighed in have asked the court to overturn the initiative.

The San Francisco Chronicle has a "viewer's guide":
How to watch: The hearing is scheduled from 9 a.m. to noon at the court's chambers at 350 McAllister St. in San Francisco. It can be viewed live on the California Channel, which is carried on Comcast cable systems in the Bay Area. The channel number varies from city to city, so check local listings.

-- A group favoring same-sex marriage will sponsor a public viewing of the oral arguments on a JumboTron in San Francisco's Civic Center Plaza.

-- A live Webcast will also be available at www.calchannel.com.

Opponents: Lawyers for two groups of same-sex couples challenging Prop. 8 will have 30 minutes each to present their case. The city of San Francisco, representing local governments opposing Prop. 8, will also have 30 minutes.

Proponents: Kenneth Starr, representing Protect Marriage, sponsor of Prop. 8, will have one hour.

Attorney general's office: Attorney General Jerry Brown's office will have 15 minutes for arguments that Prop. 8 is unconstitutional because it denies fundamental rights to a minority group. His office also will have 15 minutes, however, to counter Prop. 8 opponents' arguments that the measure is an invalid revision of the state Constitution and a violation of separation of powers.

(2) Same-sex unions with federal status.Two writers, David Blankenhorn and Jonathan Rauch, published an op-ed in the Feb. 21st NY Times headed "A Reconciliation on Gay Marriage." It is described as "A federal compromise on the issue of gay marriage that could satisfy both sides in the short run.." NPR's Talk of the Nation for March 2nd has a 17-minute discussion on the proposal.

(3) "Same-sex spouses sue federal government: Legally married couples say they suffered injustices under the Defense of Marriage Act, which deprives them of benefits accorded others." That is the headline to this story today, by Carol J. Williams, in the LA Times. It begins:

Saying they suffered injustices under the Defense of Marriage Act, a dozen legally married same-sex spouses filed suit against the federal government Tuesday, alleging that the 1996 law deprives them of a range of benefits accorded other couples.

The suit filed in Boston by the Gay & Lesbian Advocates & Defenders, or GLAD, challenges a section of the federal law denying gay couples access to more than 1,000 federal programs and legal protections in which marriage is a factor.

Legal analysts predicted it will be years before the suit makes its way through the federal court system, but said they believed it had a good chance of eventually leading to the invalidation of the act's power to discriminate on the basis of sexual orientation.

"The statute wouldn't be ripped to shreds," said Laurence H. Tribe, a constitutional law professor at Harvard Law School, "but it would be unconstitutional as applied to circumstances like these where you have two couples identically legally married in the states where they live but one is entitled to financial or other tangible benefits that the other couple can't get."

From the Boston Globe, a story by Jonathan Saltzman that begins:
Fifteen gay and lesbian residents from Massachusetts who wed after this state legalized same-sex marriages filed a discrimination suit today, challenging a federal law that defines marriage as a union between a man and a woman.

Six same-sex couples and three men whose husbands have died -- one of the deceased was retired congressman Gerry E. Studds -- said in the suit that the 1996 Defense of Marriage Act treats them like second-class citizens and is unconstitutional. The 92-page complaint was filed in US District Court in Boston.

The suit, which legal specialists described as the first serious challenge to the federal law signed by President Bill Clinton, contends that the statute has deprived the plaintiffs of benefits enjoyed by heterosexual married couples.

Those benefits include health insurance for spouses of federal employees, tax deductions for couples who jointly file federal income tax returns, and the ability to use a spouse's last name on a passport.

"Suit Seeks to Force Government to Extend Benefits to Same-Sex Couples " is the headline to this story in the NY Times. NPR's Morning Edition has this nearly 5-minute story March 3rd.

Posted by Marcia Oddi on March 4, 2009 01:42 PM
Posted to General Law Related