Obama Urges Supreme Court To Overturn California Same-Sex Marriage Ban

By Robert Barnes for the Washington Post - February 28


The Obama administration told the Supreme Court on Thursday that California’s ban on same-sex marriage violates the Constitution’s guarantee of equal protection, a position that could also cast doubt on prohibitions in other states.

The administration did not endorse a constitutional right to marry that would apply nationwide. But its friend-of-the-court brief, a bold declaration of the administration’s interest in gay rights, said the court should review laws banning same-sex marriage under “heightened scrutiny.”

The administration’s entry for the first time into the legal battle over Proposition 8 — a voter initiative that amended the California Constitution in 2008 to limit marriage to a man and a woman — also carried great symbolic value for those advancing the cause of marriage equality.

The Obama administration did not have to file a brief in the California case but said the question of how the court reviews laws that “target gay and lesbian people for discriminatory treatment” is of great interest to the government.

In California’s case, Solicitor General Donald B. Verrilli Jr. wrote, the state offers same-sex couples domestic partnerships but withholds marriage.

“California’s extension of all of the substantive rights and responsibilities of marriage to gay and lesbian domestic partners particularly undermines the justifications for Proposition 8,” the brief says. “It indicates that Proposition 8’s withholding of the designation of marriage is not based on an interest in promoting responsible procreation and child-rearing — petitioners’ central claimed justification for the initiative — but instead on impermissible prejudice.”

The government’s brief noted that seven other states have similar domestic-partnership laws: Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island. But it did not call for the court to overturn those laws.

In some ways, the brief marks a compromise between threatening the prohibitions on same-sex marriage that the vast majority of states have enacted and nudging along the number of states that allow such unions.

The administration has been under pressure from gay rights groups and others to enter the Proposition 8 case, especially after President Obama’s inaugural address, in which he said, “If we are truly created equal, than surely the love we commit to one another must be equal as well.”

Adam Umhoefer, executive director of the American Foundation for Equal Rights, called the brief “a powerful statement that Proposition 8 cannot be squared with the principles of equality upon which this nation was founded.”

“It is an unprecedented call to action by our government that it is time to recognize gay and lesbian Americans as full and equal citizens under the law,” he said.

Thomas Peters, communications director of the National Organization for Marriage and a supporter of Proposition 8, said his group “expects the Supreme Court to exonerate the votes of over 7 million Californians to protect marriage.”

“The President is clearly fulfilling a campaign promise to wealthy gay marriage donors,” Peters said in a statement. “There is no right to redefine marriage in our Constitution.”

The Supreme Court at the end of the month will consider two cases concerning same-sex marriage.

One addresses the Defense of Marriage Act, which restricts the federal government from recognizing same-sex marriages performed in those states where such unions are legal. The administration for two years has said that is unconstitutional, and a string of lower-court decisions have agreed.

The other is Proposition 8, which was passed by voters after the California Supreme Court recognized a right for same-sex unions under the state constitution. More than 18,000 couples were wed in the meantime.

A federal district court and the U.S. Court of Appeals for the 9th Circuit struck down the amendment.

While the DOMA case concerns couples who are already married, the Proposition 8 case offers the Supreme Court a chance to examine whether there is a constitutional right to marriage that cannot be denied by the states. But, as the administration’s brief indicated, there are more limited ways the court could rule.

Currently, the District, Maryland and eight other states allow same-sex marriages, while nearly all the rest forbid it.

Obama’s position on same-sex marriage is an evolving one, he has said. Although he opposed Proposition 8, he has never said he thought that the same-sex marriage issue should be decided nationally.

“I continue to believe,” he told ABC News last year when announcing his support of same-sex unions, “that this is an issue that is going to be worked out at the local level, because historically, this has not been a federal issue, what’s recognized as a marriage.”

Those who are defending Proposition 8 say the state’s acceptance of domestic partnerships proves that voters were motivated by a desire to protect traditional marriage, not to discriminate against homosexuals.

But the administration said that domestic partnerships prove just the opposite. California has “recognized that same-sex couples form deeply committed relationships that bear the hallmarks of their neighbors’ opposite-sex marriages; they establish homes and lives together, support each other financially, share the joys and burdens of raising children, and provide care through illness and comfort at the moment of death,” the brief stated.

It said a reluctance to change the “traditional” definition of marriage is not a defense.

“Marriage has changed in certain significant ways over time — such as the demise of coverture and the elimination of racial restrictions on marital partners — that could have been characterized as traditional or fundamental to the institution,” Verrilli wrote.

A purported interest in responsible procreation and child-rearing cannot justify Proposition 8, the brief stated, because California confers “full rights of parenting and child-rearing on same-sex couples.”

And the administration said the court should not agree with an argument that it must respect “the will of the people” to amend the state’s constitution and to overturn the California Supreme Court’s decision allowing same-sex marriage.

“Promoting democratic self-
governance and accountability is a laudable governmental interest, but it is not one that justify a law that would otherwise violate the constitution,” Verrilli wrote.

In such cases, he said, the judiciary plays a special role in protecting minorities.

The administration’s brief is added to dozens that outside groups have filed in the same-sex marriage cases. Briefs have been submitted by states that allow such unions and those that forbid them; religious groups on both sides of the issue; Republicans who support same-sex marriage and conservatives who say it undermines a traditional way of life.

Labor unions and hundreds of major corporations weighed in on the side of same-sex marriage, for instance.

The AFL-CIO said its gay workers are economically harmed by laws that do not allow them to marry.

“These economic injuries are readily quantifiable in terms of the dollars gay and lesbian workers are forced to spend on higher costs and taxes, in the denials of access to publicly and privately provided benefits, and in the refusals of entry into and in the deportations out of the U.S.,” the union brief said. “These harms further extend into the physical workplace, where gay and lesbian workers often confront and navigate biases about their sexual orientation and the comparative worth of their personal relationships.”

The businesses, which included such giants as Microsoft and Nike and small businesses such as a winery in California, said restrictions against same-sex marriage create extra work for them — over insurance coverage and taxes, for instance — and force them to categorize workers differently.

“It puts us, as employers, to unnecessary cost and administrative complexity, and regardless of our business or professional judgment forces us to treat one class of our lawfully married employees differently than another, when our success depends upon the welfare and morale of all employees,” the brief stated.

Another is signed by more than 100 prominent Republicans, including Clint Eastwood and seven former governors, among them 2012 presidential candidate Jon Huntsman (although only a small number currently hold public office).

They tell the court that supporting civil marriage for same-sex couples is consistent with a “commitment to limited government and individual freedom.”

“Many of the signatories to this brief previously did not support civil marriage for same-sex couples,” the brief stated. But after states offered such unions, they said, they have “reexamined the evidence and their own positions and have concluded that there is no legitimate, fact-based reason for denying same-sex couples the same recognition in law that is available to opposite-sex couples.”

On the other side, a coalition of African American pastors told the court it should not draw comparisons to its 1967 decision in Loving v. Virginia, which struck down state bans on interracial marriage.

“The ruling in Loving was not revolutionary the way striking down the traditional male-female definition would be in the present case,” the brief stated. “The anti-miscegenation statutes in Virginia were at war with the core purposes of marriage — especially the fostering of responsible procreation and child rearing by biological parents.”

And 19 states, including Virginia, urged the court to overturn the 9th Circuit’s opinion, which it said overrode the will of California voters.

“The result is not merely vitiation of California’s co-equal sovereignty without a clear constitutional warrant,” the brief said. “It is disintegration of perhaps the most fundamental and revered cultural institution of American life: marriage as we know it.”

Proposition 8 Dispatch From the Culture Wars Front

By Dean Hamer & Joe Wilson, with introduction by Bill Lichtenstein, for The Huffington Post:

The US District Court decision on August 4, overturning California's Proposition 8 and its ban on same sex marriages was a watershed moment for proponents of equal rights for gay and lesbian Americans.

Within hours of the landmark decision, pundits ranging from MSNBC's liberal Rachel Maddow to Fox's ultra-right wing Glenn Beck, began postulating that the ruling signaled a new "post-homophobic" era in America.

Maddow, who among news anchors may well be America's most trusted lesbian, led her show for the two nights after the decision with celebratory coverage of the ruling. She went so far as to taunt GOP leaders for being uncharacteristically quiet during the 24 hours after the US District Court decision.

Speaking presumably to Michele Bachmann, Sarah Palin, and John Boehner, among others, Maddow asked at the top of her August 5 program, "Where were the outraged Republicans? Where are you? You guys used to be so good at this."

At the same time, Glenn Beck, who is to liberal causes what "Mikey" was to breakfast foods in the 1970s Life cereal ads ("he hates everything"), turned heads by telling Fox's Bill O'Reilly that "I don't think marriage, that the government actually has anything to do with . . . [what] is a religious right," and then added a quote from Thomas Jefferson: "If it neither breaks my leg nor picks my pocket, what difference is it to me?"

In the wake of the decision, both sides held their breath as Chief Judge Vaughn R. Walker gave opponents of the ruling six days to appeal it. On August 16, the Ninth Circuit Court of Appeals left in place Prop 8 and its same sex marriage ban in California, as the case winds its way through its appeal process toward the Supreme Court, where it may ultimately be decided. Depsite forcing Golden State gay and lesbian couples to put their nuptial plans on hold, this delay has one possible plus for same sex marriage proponents.

Loyola Law School professor Richard Hasen told the LA Times , that "If this case takes another year to get to the U.S. Supreme Court, there could be more states that adopt same-sex marriage and more judicial opinions that reach that conclusion."

In fact, despite the dramatic victory in the federal court, the battle over same sex marriages in the US continues to rage at the state and local levels.

Streak of "31 Straight Victories" Brought to an End

Over the past decade, gay marriage opponents have racked up an impressive winning streak of 31 straight victories against no defeats when the issue of same sex marriages has been on the ballot in state elections. Loss number 31 was in Maine, on November 3, 2009, when voters repealed a law that had allowed gay unions. The 31-0 streak was brought to an abrupt end by Judge Walker's Prop 8 decision.

As recent events have been developing in San Francisco, filmmakers Dean Hamer and Joe Wilson have been traveling the country with their feature documentary film, Out in the Silence. The film captures the remarkable chain of events starting with the announcement of their wedding, which ignited a firestorm of controversy in the small Pennsylvania hometown Wilson left long ago.

The documentary tells the story of lesbian, gay, bisexual and transgender civil rights in rural America, and premiered at the Human Rights Watch International Film Festival, was broadcast on PBS stations across the country, and has been shown at over 400 community and school screenings accompanied by public discussions.

Currently, Dean, who has worked for the past three decades at the National Institutes of Health, and received international attention after the journal "Science" published his research in 1993 that he had identified a "gay gene," and Joe, a human rights activist and native of Oil City, Pennsylvania, where the documentary takes place, are traveling with the film through all 67 counties in Pennsylvania, a state that prohibits same sex marriage.

The following is Dean Hamer and Joe Wilson's "dispatch from the front" regarding the latest battle in America's 2010 culture wars:


Plaintiffs Kristin Perry and Sandra Stier at federal courthouse.

"The images of the plaintiffs in the Proposition 8 case standing on the steps of the Federal Courthouse in San Francisco during the trial, were typical of the now standard media portrayal of gay America: out, proud, comfortably middle class, living in a big city or suburb.

But there is another side to gay America that is rarely seen. It takes place in conservative, often deeply religious small towns and rural communities where those who are found, or even perceived to be lesbian, gay, bisexual or transgender, strive to fit in rather than to stand out. For these people coming out means risking their families, friends, jobs and livelihoods, their safety and at times even their very lives.

Our documentary film, Out in the Silence focuses on the harrowing, ultimately successful battle waged by a 16 year-old gay student and his mother against recalcitrant school authorities when the teen was brutally gay bashed for courageously coming out at his rural high school.

Filmmakers Hamer (L) and Wilson (R) in Oil City, Pennsylvania

We've reached half of our goal of screening the film in all 67 counties in Pennsylvania, and most of the events have been greeted with enthusiasm. But in Coudersport, a town of 2,650 people along the northern border of the state, we received an email from Keturah Cappadonia, a town librarian just two days before the scheduled screening informing us that the event would have to be canceled. The reason, as the Harrisburg Patriot-News later reported, was that 'after several hours of people pointing their fingers in her face and telling her she was going to hell, Keturah Cappadonia cracked' and was reduced to tears by the experience.

The controversy resulted from, no surprise, an alliance between fundamentalist Christians and right-wing conservatives. Pastor Pete Tremblay of the Coudersport Free Methodist Church told a local news web site that the film was 'designed to get people to give up their convictions based on the word of God and accept these practices as equivalent to God's design for human sexuality. It is propaganda.'

Pastor Tremblay went on to request that people 'call the library...and in a Christian manner inform them that this event is not a benefit to our community, and ask that it be canceled.'

He was joined in his condemnation of the film by George Brown, president of the Potter County Tea Party, who said he was upset at having to be 'attacked for our beliefs at a public library we support with our tax money. This is wrong and cannot be tolerated.'

Brown also told the web site that $1.5 million of local taxes was used to support the library (the actual number is $42,000), and went on to say that 'Should this agenda be continued, we may need to ask if the library should be defunded.'Diane Gramley, head of the American Family Association of Pennsylvania

That appeared to be one threat over the line for the library board. Following a quick phone meeting, they unanimously decided that the screening would go ahead as originally planned and issued a public statement for the library patrons:

The mission of any public library is to serve a diverse community with varying opinions about what is and is not objectionable material . . . We believe the library would fail in its mission if it did not provide information about ideas or topics that each of us might find uncomfortable at some level . . . American libraries are the cornerstone of our democracy. Libraries are for everyone, everywhere.

And so two days later, on the evening of July 28, 2010, a standing room only crowd gathered in Coudersport's public library, made up of mainstream members of the community along with lesbian, gay, bisexual and heterosexual, transgender and cisgender, young, middle-aged and senior citizens, together with a goodly handful of reporters, all gathered together in a public place and ready to talk about a subject that had divided their community for far too long.

As soon as the film was over, one of the opponents in the room quickly rose and read from a long list of objections to the film, including that 'most homosexuals are very well off.' Another spoke at length of his belief that homosexuality is against 'God's word.'

But then, gradually, slowly and often in tears, the LGBT folks and their family members, friends and allies began to recount their personal experiences.

A teenager described how he had been harassed at school when his classmates discovered his father was gay. 'I didn't understand why my friends turned their backs on me,' he said. 'To accept everyone is the only way to go about living.'

Then the teen's father - a local business owner, Episcopal Vestry member and former Republican Party Chair - spoke of the acceptance he has quietly gained over his 30 years in the town.

Another young man, visibly nervous, publicly announced for the first time that he was proud to be both gay and Christian, even though his church had rejected him. That prompted a local minister to stand and announce that her church was supportive of LGBT people and would serve as a resource for those who wanted a welcoming spiritual home.

When a woman with a small child in her arms offered to make a financial donation to the library to offset any losses due to the screening, she was greeted by a solid burst of applause.

The topic of marriage equality was never even mentioned. But audience members did circulate a sign-up sheet for people who wanted to work with one another and Equality Partners of Western Pennsylvania to try and make Coudersport a more welcoming and tolerant place. By the time the event was over, the majority of the people in the room had signed up.

While it was painful, even frightening to observe the open hostility of the handful of individuals who attempted to stop the meeting from occurring, and then to disrupt the conversation with angry diatribes and personal attacks, people in the community have told us that it was actually useful that it all took place in full light of day because it revealed the seriousness of the problems that LGBT people face, often alone and without any networks of personal or legal support in such an environment.

The other screenings throughout Pennsylvania, which has a law on the books prohibiting same sex marriage, drew good crowds of local LGBT people and allies including educators, social workers and business owners, but only one minister showed up, in Emporium, PA. After watching the movie he took off his white collar and placed it in his shirt pocket. 'Sometimes I'm embarrassed to be associated with the clergy in this area,' he said. 'My religion is about faith, not about hate.'



Visit the official "Out in The Silence" web site at Outinthesilence.com
"Out in the Silence" can be seen On iTunes or purchased on Amazon.

Nationwide Parties/Protests Planned: The California Supreme Court to Deliver Its Prop. 8 Verdict on Tuesday

Those battling for equality have devised new outlets for activism which have amped up the pressure for action at every level.

The California Supreme Court will deliver its verdict on Tuesday morning at 10am PT on whether or not to throw out Prop. 8, a Constitutional amendment banning same-sex marriage in the state. Brian Devine has the best legal description of this anywhere, which you can read here. The Court isn't really looking at the law itself, but whether a change of this type violates the limited ability of the people to amend the Constitution through an initiative; in other words, whether Prop. 8 was an amendment, which is legal through the initiative process that was used, or a revision, which requires a more deliberative process.

Based on the oral arguments, most people believe that the Court will not overturn Prop. 8, but may allow the 18,000 marriages that were consummated when same-sex marriage in the state was legal to remain that way. But the Court could surprise.

The initiative battle and particularly the aftermath of Prop. 8 have sparked a tremendous amount of activism in the state and nationally. Regardless of the outcome, the group at Day of Decision will hold nationwide events praising or protesting the Court ruling. On Saturday, 70 civil rights and progressive groups are sponsoring Meet In The Middle For Equality, a large gathering in Fresno, CA.

Lucas O'Connor remarks:

All of which adds up to yes, Prop 8 has proven to be one of the best organizing points in recent decades for the state of California. It's been a perfect storm of tactical and technological innovation from facebook and text messaging plus orgs like Courage Campaign and CREDO meeting resurgent activist energy and experience coming from the issue and the '08 presidential campaign legacy.

Like with the Dallas Principles, those battling for equality have devised new outlets for activism which have amped up the pressure for action at every level.

300,000 people have signed the pledge to repeal Prop. 8. Grassroots groups have sprung up out of nowhere, with more coming on line every day. There is no equal to the activism and organizing this has set off.

If I have any faith left in the ability for California to manage its seemingly intractable governmental problems, it's because I see this effort that has been launched in the name of rights and equality, and dream that it can be scaled up into a larger progressive movement that expands the fight for justice. Such an organizing effort has never even really been tried in the nation's largest state, and if successful could spread like wildfire across the country.

Religion, Hate, and State

Prop 8 - Did Mormons Go Too Far?

By Steven Greenstreet for the American News Project

Activists claim that money from the Mormon Church was the deciding factor in passing Proposition 8 in California - banning gay marriage. The church claims to have only spent a few thousand dollars on the campaign, but ANP has uncovered evidence that may expose a gaping hole in that claim. Also, the IRS forbids religious organizations from "substantially" lobbying for political legislation. Did the Mormon Church violate this law?