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Wisconsin latest state to face marriage lawsuit

Charvonne Kemp, Marie Carlson, American Civil Liberties Union, ACLU, gay news, Washington Blade, Wisconsin, gay marriage, same-sex marriage, marriage equality

Charvonne Kemp (left) and Marie Carlson filed a lawsuit in Wisconsin seeking marriage rights. (Photo courtesy of the American Civil Liberties Union)

Same-sex couples in Wisconsin joined others throughout the country on Monday in filing a lawsuit seeking same-sex marriage, but efforts there are unique because of the penalties for marrying in another jurisdiction.

The litigation seeks not only to overturn the state’s 2006 constitutional amendment barring same-sex marriage, but also to enjoin state official from enforcing a “marriage evasion law” prohibiting couples — gay and straight — from going elsewhere to marry if the marriage would be prohibited in the state.

The penalties of violating the marriage evasion law in Wisconsin, which is the only state to have such a statute, include up to $10,000 in fines and nine months in prison.

For Marie Carlson, one-half of one of the couples participating in the lawsuit, the marriage evasion law is of concern as she seeks recognition of her relationship with Charvonne Kemp.

“It’s illegal in the state Wisconsin to go another state and get married if you live here,” Carlson said. “I know that it’s not really all that enforced; it’s still something that hangs over your head.”

The marriage evasion law is particularly problematic for same-sex couples in Wisconsin because the Obama administration in most cases has elected to recognize same-sex marriages even if the state doesn’t recognize them — provided these couples are able to marry in a jurisdiction that allows it.

John Knight, a staff attorney with the American Civil Liberties Union’s LGBT project, called the marriage evasion law a “Catch-22″ for same-sex couples living in Wisconsin who want to marry.

“Wisconsin is unique in that sense, and so we think that argument particularly exemplifies the harm or the animus toward same-sex couples in some parts of the country,” Knight said.

But for Kemp, it’s not the fear of prosecution for marrying elsewhere that compels her to seek the right marry in Wisconsin, but the ability to wed in the state where she’s lived with her partner for seven years and raised two sons.

“We’re completely in love, and we’d like to be married in the state that we live in,” Kemp said. “We do have options where we could obviously leave the state and go to other states and get married, but we want to be legally recognized where we live.”

The lawsuit, Wolf and Schumacher v. Walker, was filed by the ACLU, the ACLU of Wisconsin and Mayer Brown LLP and is pending before the U.S. District Court for the Western District of Wisconsin.

Like other lawsuits filed throughout the country, the 29-page complaint filed by the groups in Wisconsin alleges the state’s ban on same-sex marriage violates equal protection and due process under the Fourteenth Amendment to the U.S. Constitution.

“Although Wisconsin and this country have taken some steps to reduce discrimination against lesbians and gays, Wisconsin’s ban on marriage for same-sex couples is a striking and continuing vestige of the long history of discrimination toward lesbians and gay men,” the complaint says.

The lawsuit was filed on behalf of four same-sex couples seeking to marry in Wisconsin. Along with Kemp and Carlson, who reside in Milwaukee, they are: Virginia Wolf and Carol Schumacher, who reside in Eau Claire, Wis.; Roy Badger and Garth Wangemann, who live in Milwaukee; and Judith “Judi” Trampf and Katharina “Katy” Heyning, who live in Madison.

Although Wisconsin offers same-sex couples the ability to join in a domestic partnership, enacted in the state in 2009, they don’t offer same the legal rights as marriages.

Carlson said the union isn’t enough because that union provides little assistance beyond certain health insurance benefits — and that’s only if the insurance company recognizes the partnership.

“It also goes along with the fact that last like year, Charvonne’s mother passed away, and we all had to go to New Jersey for a week,” Carlson said. “I had to use vacation time because…the company I work for didn’t recognize she was legally my partner, so I didn’t get bereavement to be able to go. So, I had to use a week of my vacation.”

The office of Wisconsin Gov. Scott Walker (R) didn’t immediately respond to the Washington Blade’s request to comment on the lawsuit.

Wisconsin Attorney General J.B. Van Hollen, however, pledged in a statement to the Blade that he would the defend the marriage amendment.

“This constitutional amendment was approved by a large majority of Wisconsin residents,” Van Hollen said. “I believe the amendment is constitutional, and I will vigorously defend it.”

The Wisconsin litigation is among 40 pending lawsuits in 22 states throughout the country seeking marriage rights for gay couples.

Amid expectations that one will soon reach the U.S. Supreme Court for a final ruling on marriage equality, Knight said it’s possible, but he wouldn’t bet on it.

“It’s one of the possibilities it might go to the Supreme Court, but the chance of that in light of all the other cases out there is probably fairly small,” Knight said. “But it could be.”

Nonetheless, if Walker continues to fight the lawsuit and a high court ruling doesn’t happen before the case is resolved, Kemp said she’s willing to take her case to the Supreme Court to fight for marriage rights across the country if necessary.

“I’m willing to go to the Supreme Court to fight for the right for everyone to be able to get married if that’s what they choose to do,” Kemp said. “It’s about marriage equality for all, not marriage equality for some, or for just us.”

For Kemp, the ability to marry in Wisconsin is not just about the legal rights that marriage would afford, but the dignity of having the access to the same union as other couples.

“However, I want to be married just like everyone else. I want it to be legal, not just for if one of us should get sick and having rights where we’re in the hospital with the other one, but also taxes, all the things that come with marriage, good and bad,” Kemp said.


Groups support trans woman in lawsuit

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Several groups have asked the U.S. District Court for permission to file a “friend of the court” brief to support Finkle.

Last fall a lawsuit was filed against Howard County in federal court by Tomi B. Finkle, 59, a retired police sergeant, claiming discrimination based on her gender identity after she was rejected for a volunteer police mounted patrol position. According to the Baltimore Sun, six advocacy organizations have filed arguments in federal court on behalf of Finkle.

The American Civil Liberties Union, its Maryland chapter, the Free State Legal Project, Lambda Legal, the National Center for Lesbian Rights and the Transgender Law Center have asked the U.S. District Court for permission to file a “friend of the court” brief to support Finkle.

The groups argue against the county’s motion to dismiss the suit stating case law supports Finkle’s claim of discrimination and she does not have to prove the county knew her transgender status, as county lawyers have argued. The county stated in court filings that Finkle cannot sue for job discrimination because a voluntary position is not employment.

Finkle expressed appreciation for the support of the groups but neither she nor her lawyer had requested it. No hearing date has been set in the case.


Cruz introduces bill to limit fed’l recognition of marriage

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Sen. Ted Cruz (R-Texas) has introduced the State Marriage Defense Act. (Washington Blade file photo by Lee Whitman)

Tea Party favorite Sen. Ted Cruz (R-Texas) introduced legislation on Thursday in the U.S. Senate to prohibit the federal government from recognizing same-sex marriages in states without marriage equality.

The Texas Republican said he introduced the bill, called the State Defense Marriage Act, in response to the Obama administration’s recognition of same-sex marriage in federal programs — even for gay couples living in non-marriage equality states — following the Supreme Court decision against the Defense of Marriage Act.

“I support traditional marriage,” Cruz said in a statement. “Under President Obama, the federal government has tried to re-define marriage, and to undermine the constitutional authority of each state to define marriage consistent with the values of its citizens. The Obama Administration should not be trying to force gay marriage on all 50 states.”

Known for his filibuster of health care reform legislation, Cruz is a freshman senator and hasn’t been in the Senate long enough to establish an anti-LGBT record while in Congress. However, he voted last year against an LGBT-inclusive version of the a bill to reauthorize the Violence Against Women Act.

Among the co-sponsors of the legislation is Sen. Mike Lee (R-Utah), another Tea Party favorite known for his opposition to same-sex marriage. Cruz and Lee are currently the only sponsors of the bill.

Lee is also chief sponsor of the Marriage and Religious Freedom Act, which would prohibit the federal government from discriminating against organizations that exercise “religious conscience” against same-sex marriage.

Cruz introduced the legislation on the heels of complaints from conservatives over U.S. Attorney General Eric Holder’s announcement that the Justice Department would recognize same-sex marriages in courtrooms and federal programs — even in jurisdictions without marriage equality.

Tony Perkins, president of the anti-gay Family Research Council, praised Cruz for introducing the legislation in the wake of policy developments along the lines of Holder’s announcement.

“The Department of Justice (DOJ) is the latest agency to announce a policy of recognizing same sex couples as ‘married’ – even if they live in a state that does not,” Perkins said. “These announcements not only contradict other agency guidance, but also undermine state laws on marriage, a result directly condemned by the Windsor Court’s ruling.”

Companion legislation already exists in the House, where a bill was introduced Rep. Randy Forbes (R-Texas). Counting Forbes, the legislation has 58 sponsors.

Ian Thompson, legislative representative of the American Civil Liberties Union, called the legislation an effort “to reincarnate DOMA under a new name.”

“The bill would force the federal government to disrespect the legal marriages of same-sex couples in (currently) more than half the country,” Thompson said. “Rather than wasting time trying to, once again, enshrine anti-gay discrimination in federal law, Congress should pass the Respect for Marriage Act to provide married same-sex couples with certainty that the federal government will recognize their marriages regardless of where in the country they live in or move to.”


Second N.C. marriage lawsuit filed

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(Washington Blade file photo by Michael Key)

GREENSBORO, N.C. – The American Civil Liberties Union of North Carolina on April 9 filed a second same-sex marriage lawsuit in the Tar Heel State.

The group filed the lawsuit in federal court on behalf of three married same-sex couples who are seeking recognition of their marriages in North Carolina. They have asked the court to expedite the case because three of the six plaintiffs have serious medical conditions.

“Without the legal security that only marriage affords, these families are left vulnerable,” said Jennifer Rudinger, executive director of the ACLU of North Carolina. “If they could marry or have their marriages recognized in North Carolina, the law would protect their families in countless ways.”

The ACLU in 2012 filed a federal lawsuit against North Carolina’s second-parent adoption ban on behalf of six gay families. The group last year amended the case to directly challenge the state’s constitutional amendment that defines marriage as between a man and a woman.

The 4th U.S. Circuit Court of Appeals in Richmond, Va., will hear oral arguments in a case that challenges Virginia’s same-sex marriage ban.

North Carolina, South Carolina and West Virginia also fall under the 4th Circuit’s jurisdiction.


Months after court ruling, DOMA issues remain unresolved

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U.S. Attorney General Eric Holder has pledged to extend federal benefits to married gay couples to the furthest extent possible under the law. (Washington Blade file photo by Michael Key)

Ever since the Supreme Court ruled against the Defense of Marriage Act last year, the Obama administration has been rolling out on a continual basis new federal benefits for married same-sex couples — but access to some benefits remains uncertain months after the decision.

While the administration has afforded a preponderance of the 1,138 federal benefits of marriage to same-sex couples, other benefits — including Social Security, veterans and family leave benefits — are still in limbo for those living in non-marriage equality states. For these benefits, federal policy looks to the place of residence, not the place of celebration, in determining whether a person is married.

The policy of the Obama administration has been to expand benefits to married same-sex couples to the furthest extend possible under the law following the court decision against DOMA. That position was formalized last week in a memo from U.S. Attorney General Eric Holder extending certain federal benefits under the purview of the Justice Department to married gay couples.

“It is the Department’s policy, to the extent federal law permits, to recognize lawful same-sex marriages as broadly as possible, and to recognize valid in the jurisdiction where the marriage was celebrated,” Holder writes.

Thus far, the administration has extended numerous benefits to married same-sex couples related to taxes, immigration, federal employee benefits, employer-provided pensions and, most recently, the ability to refuse to testify against a spouse in federal court — even if these couples live in non-marriage equality states. The Justice Department has also ceased enforcement of a provision in Title 38, which governs veterans benefits, that independently defines marriage in opposite-sex terms.

But things get dicier when it comes to other benefits where the law governing them looks to the state law where a couple resides, rather than the state law where the couple was married in determining whether a marriage is legitimate. Does the spirit of the Supreme Court ruling against DOMA mean that these portions of these laws should also not be enforced, or are they so far removed from the ruling they require a legislative fix?

One such issue is with Social Security benefits. Although the Social Security Administration is processing retirement and survivor benefits for same-sex couples living in marriage-equality states, for the time being, it’s placing applications on hold for married same-sex couples living in places that don’t their recognize their union.

Kia Anderson, a Social Security spokesperson, said work coordinated with the Justice Department is still underway to determine whether her agency can recognize these same-sex marriages for benefits purposes.

“We are working with the Department of Justice to develop and implement policy and processing instructions on this issue,” Anderson said. “However, we encourage people to apply right away for benefits, even if they aren’t sure they are eligible. Applying now will protect against the loss of any potential benefits.”

Yet another benefit on hold for married same-sex couples living in non-marriage equality states is veterans benefits, which include disability benefits, survivor benefits and joint burial at a veteran’s cemetery for the spouses of former service members. As with Social Security law, a portion of veterans’ law, 103(c) of Title 38, looks to state of residence, not the state of celebration, to determine whether a couple is married.

Genevieve Billia, a spokesperson for the Department of Veterans Affairs, said her department is still reviewing the issue of these benefits with the Justice Department.

“VA is working closely with the Department of Justice to develop guidance to process cases involving same-sex spousal benefits, and to implement necessary changes swiftly and smoothly in order to deliver the best services to all our nation’s veterans,” Billia said. “Our commitment to provide all veterans and their families with their earned care and benefits will continue to be our focus as VA implements the Supreme Court’s decision in Windsor, and the president’s direction on Title 38.”

The continued enforcement of 103(c) of Title 38 to discriminate against gay couples has been a cause for concern for U.S. senators. Last month, seven senators — led by Sen. Mark Udall (D-Colo.) — called on the Obama administration to stop enforcing the law in a way that blocks gay veterans in same-sex marriages from receiving spousal benefits.

Stephen Peters, president of the American Military Partner Association, called the issue “a top concern” among veterans belonging to the LGBT military group.

“While we understand it takes time to review existing policies and laws in light of the Windsor decision, for the sake of our veterans and their families, our hope is that the administration will take swift action in extending full and equal VA benefits no matter what state the veteran and their family live in,” Peters said. “These veterans have earned these benefits and there is no valid reason why they should continue to be denied them.”

The American Military Partner Association has launched an online petition calling on Holder to stop enforcing U.S. code governing veterans benefits in a way that discriminates against same-sex couples. According to the organization, a little more than 1,000 people had signed the petition as of Wednesday.

Ian Thompson, legislative representative for the American Civil Liberties Union, expressed confidence the administration would be able to come to a conclusion on these issues as it has done with other benefits in the aftermath of the DOMA ruling.

“Federal agencies have moved with commendable speed to extend recognition to married same-sex couples, and to do so in a way that recognizes that these marriages don’t dissolve when a couple crosses state lines,” Thompson said. “While more work remains, including with SSA and the VA, we are confident that these issues can be properly addressed.”

The Justice Department didn’t respond to the Blade’s request for comment on the pace with which these benefits are being rolled out or when these outstanding issues will be resolved.

Shin Inouye, a White House spokesperson, touted the administration’s work so far in implementing benefits as he acknowledged “some work remains.”

“Following the Supreme Court’s ruling in Windsor, the president directed the attorney general to work with the Cabinet to review federal law to ensure the decision and its implications for federal benefits and obligations are implemented swiftly and smoothly,” Inouye said. “That process is ongoing, and while some work remains, the administration has worked to affirm the principle that all couples who are legally married receive full and equal recognition, to the greatest extent possible under the law.”

Should the administration determine it must continue enforcing these laws, a legislative fix from Congress would be necessary to ensure these benefits can flow to gay couples. For the Social Security benefits, that would mean passage of the Social Security Equality Act, sponsored by Rep. Linda Sanchez in the House. For the veterans benefits, that would mean passage of the Charlie Morgan Act, sponsored by Sen. Jeanne Shaheen (D-N.H.) in the Senate.

The federal benefits of marriage across the board would be assured for married gay couples regardless of where they live after passage of the Respect for Marriage Act, which is sponsored by Rep. Jerrold Nadler (D-N.Y.) in the House and Sen. Dianne Feinstein (D-Calif.) in the Senate.

A Senate Judiciary Committee aide told the Blade last year that a Senate hearing was in the works for fall 2013 on the legislation. Although the hearing never took place, a Senate aide told the Blade plans are still underway for a hearing.

“Chairman Leahy continues to push for timely and comprehensive implementation of the Windsor decision, including last week’s landmark announcement that the Justice Department will treat all lawfully married couples equally in federal legal matters,” the Leahy aide said. “Chairman Leahy is committed to taking discrimination out of our laws, and he is working to schedule a hearing and build support for the Respect for Marriage Act.”

Not all the outstanding issues in the aftermath of the DOMA ruling are related to law. Benefits are blocked from flowing to married same-sex couples in non-marriage equality states under the Family & Medical Leave Act not because of statute, but by regulation, which the administration could change at any time without action from Congress.

And that change is already taking place. Last last year, the Department of Labor announced it was changing the regulations for the Family & Medical Leave Act — along with regulations for a slew of other laws — to ensure those benefits flow to married same-sex couples living in non-marriage equality states. According to Thompson’s HR Compliance Expert, the change will be implemented in March.

Laura Fortman, principal deputy administrator of the Labor Department’s Wage & Hour Division, wrote about the proposed change in a little-noticed blog post at the time.

“No one should have to choose between succeeding at work and being a loving family caregiver,” Fortman said. “The FMLA’s protections help ensure that people have the opportunity to be both and our proposed rulemaking is an important step in ensuring the law keeps up with the needs of all families in this country.”

Rea Carey, executive director of the National Gay & Lesbian Task Force, said her organization looks forward to the day when the DOMA decision is “fully implemented” by the federal government.

“Steady progress is being made and more is to come,” Carey said. “For example, we are working with the Department of Health and Human Services to ensure that health insurance plans offer coverage for same-sex spouses regardless of where they live. Big picture, we fully expect this landmark decision to continue to positively impact the lives of LGBT people and their families for years to come and in ways that we haven’t even imagined.”


Alaska high court rules state tax law is anti-gay

Gayle Schuh, Julie Schmidt, gay news, Washington Blade

Gayle Schuh and Julie Schmidt won their case before the Alaska Supreme Court. (Photo courtesy ACLU)

The Alaska Supreme Court ruled on Friday the state acted unconstitutionally by refusing to grant same-sex couples a special property tax exemption afforded to senior citizens and disabled veterans who live with their spouse in their home.

In the 45-page decision, the court determined that the State of Alaska and the Municipality of Anchorage’s decision to withhold the $150,000 tax exemption from same-sex couples violates equal protection rights under the Alaska State Constitution.

“Same-sex couples, who may not marry or have their marriages recognized in Alaska, cannot benefit or become eligible to benefit from the exemption program to the same extent as heterosexual couples, who are married or may marry,” the ruling states. “The exemption program therefore potentially treats same-sex couples less favorably than it treats opposite-sex couples even though the two classes are similarly situated.”

Because same-sex couples cannot legally marry in Alaska, the state prior to the ruling only allowed them an exemption for half the value of their homes.

The case, Schmidt and Schuh v. Alaska, was filed by Davis Wright Tremaine LLP and the American Civil Liberties Union of Alaska on behalf of three same-sex couples. According to the ACLU, the decision applies to all same-sex couples in the state.

One couple — Julie Vollick and Susan Bernard — jointly purchased their Eagle River home in 2004. Vollick, who retired after 20 years in the United States Air Force and has service-related disabilities, was seeking the exemption based on her veteran status.

The other couples — Julie Schmidt and Gayle Schuh, who have been together 33 years, and Fred Traber and Larry Snider, who have been together 28 years — were seeking to qualify for the benefit as senior citizens.

Schmidt, who moved with Schuh to Alaska from Illinois after they both retired from careers in education, said in a statement the court ruling validates their relationship.

“Gayle and I built a home and a life here because we loved what Alaska had to offer,” Schmidt said. “It hurt that the state that we loved so much treated us like strangers. It is gratifying to have our relationship recognized.”

In ruling in favor of the couples, the court affirms a decision by a lower court in Alaska granting summary judgment to all three same-sex couples who filed the lawsuit.

But the Supreme Court excludes from the decision one same-sex couple, Traber and Snider. Traber was the sole owner of the home, but 62 so not yet a senior citizen, and Snider was found not to have an ownership interest in the home.

Although attorneys for the couples argued they should be able to receive the exemption because laws based on sexual orientation should be subject to heightened scrutiny, the court didn’t get that far in its ruling because justices were able to determine the state’s practices were unfair based on minimum scrutiny.

“Because the tax exemption program affects the couples’ economic interests, it is subject to at least minimum scrutiny,” the ruling states. “Because minimum scrutiny resolves this case, we do not need to consider the couples’ contention that we should apply heightened scrutiny.”

Although there was no dissent in the ruling, Justice Daniel Winfree wrote a concurring decision in favor of the same-sex couples, saying he would have decided the case on non-constitutional grounds.

Joshua Decker, executive director of the ACLU of Alaska, said the ruling affirms no one is second-class under the law — whether they be gay or straight.

“Families in Alaska deserve better than a second-class system of laws for same-sex couples who are just as committed to each other as heterosexual couples,” Decker said. “Our senior citizens and veterans should not have to pay more taxes just because they happen to be gay or lesbian.”

Gay couples in Alaska don’t have access to marriage in the state because Alaska voters made a ban on same-sex marriage part of its state constitution in 1998. The state is one of four in the country that doesn’t have marriage equality or pending litigation seeking marriage rights for same-sex couples.


Court rules gay couples can marry now in Chicago area

Vernita Gray (left) and Patricia Ewert were the first same-sex couples in Illinois (Photo courtesy Lambda Legal).

Vernita Gray (left) and Patricia Ewert became the first gay couple to wed in Cook County.(Photo courtesy Lambda Legal).

A federal court in Illinois ruled on Friday gay couples can marry immediately in the Chicago-area Cook County without waiting for the marriage equality law to take effect in June.

Meanwhile, LGBT advocates behind the lawsuit are interpreting the decision to mean clerks across the state should begin granting marriage licenses to same-sex couples.

In a brief four-page order, U.S. District Judge Sharon Johnson Coleman, an Obama appointee, says Cook County can no longer prohibit gay couples from marrying because the marriage ban violates the Fourteenth Amendment to the U.S. Constitution.

“There is no reason to delay further when no opposition has been presented to this Court and committed gay and lesbian couples have already suffered from the denial of their fundamental right to marry,” Coleman writes.

As Coleman notes, “there is no opposition” to the ruling because Cook County Clerk David Orr and Illinois Attorney General Lisa Madigan weren’t defending the marriage law in court. Both Orr and Madigan filed briefs in support of the plaintiff same-sex couples in the case.

Although Gov. Pat Quinn signed into law a bill legalizing same-sex marriage in Illinois, the measure won’t take effect until June.

The class-action lawsuit, Lee v. Orr, was filed by Lambda Legal and ACLU of Illinois of behalf of same-sex couples seeking to wed before that time in Cook County. The named plaintiffs in the lawsuit — Elvie Jordan and Challis Gibbs as well as Ronald Dorfman and Ken Ilio — are facing terminal illness.

In her ruling, Coleman invokes the legacy of civil rights leader Martin Luther King, Jr., to explain her decision to allow gay couples in Cook County to wed immediately.

“Since the parties agree that marriage is a fundamental right available to all individuals and should not be denied, the focus in this case shifts from the ‘we can’t wait for the terminally ill individuals to ‘why should we wait’ for all gay and lesbian couples who want to marry,” Coleman writes. “To paraphrase Dr. Martin Luther King, Jr., the time is always ripe to do right.”

Bernard Cherkasov, CEO of Equality Illinois, praised Coleman for a ruling that he said would bring justice to thousands of same-sex couples.

“Tens of thousands of Illinois couples have been waiting for a long time, some for decades, for their love, commitment and marriage to be recognized,” Cherkasov said. “This day – and the opportunity to finally get married – could not have come sooner. We congratulate all of the couples and their families, and the people of Illinois on this significant day.”

Orr said in a statement the Bureau of Vital Records would be open an extra two hours on Friday until 7 p.m. to accommodate couples seeking to wed in the wake of the court order.

“I’m thrilled same-sex couples who want to get married won’t have to wait any longer,” Orr said. “We are very excited to celebrate this historic milestone with every loving couple from today onward.”

According to Cook County, marriage licenses are valid from the day after issuance and for 60 days, so couples that obtain a marriage license on March 1 may get married between March 2 and April 30.

Moreover, the $60 license fee will be waived for couples already in a civil union. Couples that wish to convert their prior civil union date to a marriage will have to wait until June 1 because it was not addressed in Coleman’s order.

There are differing accounts about the scope of the opinion. Coleman writes her ruling only applies to Cook County because of the nature of the lawsuit.

“Although this court finds that the marriage ban for same-sex couples violates the Fourteenth Amendment Equal Protection Clause on its face, this finding can only apply to Cook County based on the posture of the lawsuit,” Coleman said.

But LGBT advocates are interpreting the ruling differently and say clerks across Illinois should start affording marriage licenses to same-sex couples.

Erik Roldon, a Lambda spokesperson, said no clerk in Illinois has authority to enforce the marriage ban in the aftermath of the decision.

“The law was declared facially unconstitutional,” Roldan said. “That means there are no circumstances under which it can be enforced – in Cook or elsewhere.”

Edwin Yohnka, a spokesperson for the ACLU of Illinois, shared that assessment of the ruling.

“The court found the current marriage ban to be unconstituional,” Yohnka said. “We would hope that all clerks would read that decision. If they do, we believe that they would not want to be in the position of enforcing a law that has been found unconstitutional.”

Gay couples that marry as a result of the court decision would not be the first to do so in Illinois. Vernita Gray and Patricia Ewert married in Cook County in November as a result of a federal court saying they should be afforded a marriage license immediately because Gray has been diagnosed with terminal breast cancer.


ACLU opposes DOMA lawyer’s intervention in marriage case

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The ACLU opposes Robbie Kaplan’s intervention in an Ohio marriage case (Washington Blade file photo by Michael Key).

The national group that teamed up with a lesbian attorney to litigate successfully against the Defense of Marriage Act is now arguing against her participation in a lawsuit against a ban on same-sex marriage in her home state.

In a filing Friday before the U.S. Sixth Circuit Court of Appeals, the American Civil Liberties Union — along with the ACLU of Ohio and private attorneys at Gerhardstein & Branch — expressed opposition to Roberta Kaplan’s intervention in a case seeking recognition of same-sex marriages in Ohio for the purposes of death certificates.

The 16-page brief argues that Kaplan should be denied intervention in the Ohio case — in which she sought entry on behalf of Equality Ohio and four same-sex couples — on the basis that she wants to enter the case at too late a stage and is making arguments already stated by plaintiffs in the lawsuit.

“Plaintiffs-Appellees have the utmost respect for Equality Ohio and the four unmarried couples and their counsel and the important interests they represent,” the brief states. “However, Plaintiffs-Appellees should be entitled to continue to litigate the case that they initiated in July of last year without the disruption and prejudice that would flow from new claims and parties at this late stage.”

The ACLU contends Kaplan, who wanted to enter the case to argue that heightened scrutiny protection is warranted on the basis of sexual orientation, is making a claim that plaintiffs say they’ve already asserted. But the ACLU also objects to the new claims presented by Kaplan on the basis that they “have not been addressed by the parties or decided by the District Court.”

Further, the ACLU takes issue with the timing of her request to intervene in the case, which was made late last month.

“The motion is untimely because it was filed nine months after the case was filed in the District Court, three months after the notice of appeal was docketed and eight weeks after the appellate briefing schedule was issued,” the brief states.

Not so long ago, the ACLU and Kaplan worked side-by-side on behalf of same-sex couples. The decision against Section 3 of DOMA handed down by the U.S. Supreme Court not even a year ago was the result of the ACLU working with Kaplan on behalf of widow Edith Windsor, who was suing the U.S. government because she had to pay $363,000 in estate taxes under the law in the aftermath of the death of her spouse.

Asked to respond to the ACLU’s objection to her intervening in the lawsuit, Kaplan replied, “Our response will be in the reply brief that we file with the Court.”

Robyn Shepherd, an ACLU spokesperson, said her organization didn’t become involved in the case until “at the end of last month.”

The case, Obergefell v. Himes, was filed by private attorneys last year on a behalf of a same-sex couple that flew to Baltimore and married on the tarmac at the airport. Afterward, one half of the couple, James Obergefell, sued Ohio in federal court to ensure that his name would appear on the death certificate of his partner, John Arthur, who was terminally ill.

U.S. District Judge Timothy Black ruled in the couple’s favor before Arthur died. Afterwards, Ohio Attorney General Mike DeWine appealed the case, bringing it before the Sixth Circuit Court of Appeals.

Kaplan — who was born in Ohio, but now lives in New York — filed a brief on April 23 to intervene in the case on behalf of  four couples and Equality Ohio, seeking to argue the state’s marriage ban is unconstitutional in ways other than with respect to death certificates.

“The Proposed Intervenors seek more than the recognition of out-of-state marriages for the limited purposes sought by plaintiffs,” Kaplan writes. “Rather, they seek equal dignity for all gay and lesbian relationships, as mandated by the Supreme Court in United States v. Windsor… and the overturning of all Ohio laws that discriminate against gay people, as provided by the Supreme Court in Romer v. Evans…Specifically, the Proposed Intervenors’ brief will demonstrate that article XV, section 11 of the Ohio Constitution, and related statutory laws, unconstitutionally discriminate against gay people.”

It’s not the first time that Kaplan has sought to intervene in a marriage case. She also filed a request to participate in Kitchen v. Herbert, the case seeking marriage equality in Utah, but the U.S. Tenth Circuit Court of Appeals denied her request.

It should be noted that both sides in the case are opposing Kaplan’s intervention in the Ohio case. On the same day that ACLU voiced its objections, DeWine filed a 10-page brief against her participation, similarly making the case that Kaplan waited too long to intervene.

“Proposed Intervenors — Equality Ohio, Equality Ohio Education Fund, and four same-sex couples — ask this Court to take the unusual step of letting them intervene in this litigation after it has reached a final judgment in the trial court, after one side has appealed, after a briefing schedule has been set, after briefing has begun, and (by the time of this response) after at least two-thirds of the briefing is complete (and perhaps all briefing by the time the Court rules on the motion),” DeWine writes. “Other courts have rejected similarly belated attempts by similar proposed intervenors to join other existing cases as full parties.”

Another lawsuit challenging the Ohio ban on same-sex marriage as unconstitutional was filed last week by six same-sex couples. Their lawyer is the same as the attorney who successfully argued against the ban with respect to death certificates, and in a later case with respect to birth certificates and Ohio’s prohibition on recognizing same-sex marriages.

The objection to Kaplan’s intervention in the case takes place amid the perception that LGBT advocates are battling to be part of the case that makes its way to the Supreme Court in anticipation that justices will make a final, nationwide ruling in favor of marriage. Whoever is behind such a lawsuit will get credit for being part of the most significant gay rights case in history.


ACLU, Lambda Legal seek to join Virginia marriage lawsuit

Virginia, Norfolk, same-sex marriage, marriage equality, gay marriage, gay news, Washington Blade

Lambda Legal and the ACLU on Wednesday petitioned a federal appeals court to intervene in a case that challenges Virginia’s same-sex marriage ban. (Photo courtesy of Casey Hartman)

The American Civil Liberties Union and Lambda Legal on Wednesday petitioned a federal court that is poised to hear a lawsuit challenging Virginia’s same-sex marriage ban to join the case.

The two groups – which filed their own federal lawsuit against the commonwealth’s constitutional amendment that bans nuptials for same-sex couples last August on behalf of two lesbian couples from the Shenandoah Valley – submitted a brief with the 4th U.S. Circuit Court of Appeals in Richmond to join a separate lawsuit brought by Timothy Bostic and Tony London of Norfolk and Carol Schall and Mary Townley of Chesterfield last year.

U.S. District Judge Arenda L. Wright Allen’s Feb. 13 ruling in the Bostic case was appealed to the federal appellate court earlier this week.

“From the beginning, both of these cases have proceeded on parallel tracks, and for the good of all couples in the state, we hope it will remain that way,” said Joshua Block, staff attorney with the ACLU Lesbian Gay Bisexual and Transgender Project. “This motion just ensures that all affected couples have their day in court.”

U.S. Circuit Judge Michael F. Urbanski late last month certified the Lambda Legal and ACLU lawsuit filed on behalf of Victoria Kidd and Christy Berghoff of Winchester and Joanne Harris and Jessica Duff of Staunton as a class action. Urbanski earlier this month said he would not hold oral arguments in the case – and he is expected to issue his ruling in the coming weeks.

“Marriage is a fundamental right of all Virginians,” said Claire Guthrie Gastañaga, executive director of the ACLU of Virginia. “That’s why it’s important that all couples in both cases be represented in the appeals court at the same time.”

Former U.S. Solicitor General Ted Olson and David Boies, who successfully argued against California’s Proposition 8 before the U.S. Supreme Court last year, are among the lawyers representing Bostic and London and Schall and Townley.

Virginia Attorney General Mark Herring last month announced he will not defend the commonwealth’s marriage amendment that voters in 2006 approved by a 57-43 percent margin.

“The Bostic case is extremely well positioned heading into the Fourth Circuit,” American Foundation for Equal Rights Executive Director Adam Umhoefer told the Washington Blade in a statement. “The district court issued an order that, if it is affirmed, will ensure that all gay and lesbian Virginians who wish to marry, or to have their marriage recognized, can do so.”

Herring’s spokesperson, Michael Kelly, declined to specifically comment on the Lambda Legal and ACLU request to join the Bostic case.

“Attorney General Herring’s priority remains ensuring that higher courts have an opportunity to hear this case as quickly as possible to settle the fundamental issues it presents,” said Kelly.

Matthew D. McGill, co-counsel for the plaintiffs in the Bostic case, questioned why the two groups petitioned the 4th U.S. Circuit Court of Appeals to join the Bostic case.

“The addition of new parties to the case at this late stage risks delaying the proceedings, and there is not a moment to lose when gay and lesbian couples and families across Virginia – and other states in the Fourth Circuit – are experiencing real harm,” said McGill. “We hope the Harris plaintiffs and their lawyers will continue to support our shared goal of marriage equality by filing an amicus brief alongside us.”

A source involved in the legal process who asked to remain anonymous told the Blade there are “grave and serious consequences for an unwarranted ACLU intervention.” These could include the possibility that other groups from West Virginia, North Carolina and South Carolina that fall under the 4th U.S. Circuit Court of Appeals’ jurisdiction could seek to join the case if allowed.

“If intervention were granted, it could adversely slow down the current appeals process – and time is critical when it comes to attaining marriage equality for all Virginians,” said the source. “There is not a day to lose. Groups like the ACLU can be supportive by simply filing amicus briefs.”

“We are eager for the Fourth Circuit to move ahead swiftly in the Bostic case,” added Umhoefer. “Any delay in the appeals process means that gay and lesbian couples and their families will continue to suffer prolonged harm under unjust laws. We welcome the ACLU to participate as amicus curiae in the case.”

James Esseks, director of the ACLU’s Lesbian Gay Bisexual Transgender and AIDS Project, told the Blade the plaintiffs in the Harris case and their lawyers have been “appointed as representatives of a class of 14,000 same-sex couples in Virginia.” He added the motion to intervene in the Bostic lawsuit are to “do right” by the thousands of gays and lesbians in Virginia who are either married in another jurisdiction or want to exchange vows in the commonwealth.

“This is not about an either or thing,” Esseks told the Blade, noting the Bostic case is not a class action. “This is about an and thing.”

Greg Nevins of Lambda Legal echoed Esseks.

“There still are a lot of moving parts in this,” Nevins told the Blade. “We’ll eventually just do what we can to do the best on this particular case. No one knows where the chips are going to fall.”


Plaintiffs in Va. marriage lawsuit ‘cautiously optimistic’

Christy Berghoff, Victoria Kidd, Harrisonburg, Virginia, marriage equality, gay marriage, same-sex marriage, gay news, Washington Blade

Victoria Kidd and Christy Berghoff join a handful of same-sex marriage supporters outside the federal courthouse in Harrisonburg, Va., on May 12, 2014. (Washington Blade photo by Michael K. Lavers)

HARRISONBURG, Va. — One of the three lead plaintiff couples in a lawsuit challenging Virginia’s same-sex marriage ban on Monday told the Washington Blade they are “cautiously optimistic” on the eve of oral arguments in their case that will take place before a federal appeals court in Richmond.

“Cautiously optimistic I think is the best way to put it,” said Victoria Kidd of Winchester as she and her partner of 10 years, Christy Berghoff, and their 18-month-old daughter Lydia stood in front of the federal courthouse in Harrisonburg with a handful of same-sex marriage supporters from the group People of Faith for Equality in Virginia. “It’s wonderful to be able to stand up for our family.”

People of Faith for Equality in Virginia held similar gatherings in Winchester, Christiansburg and Richmond.

“Marriage should be entered into freely, deliberately, certainly seriously; but we should have the right to do that,” said Rev. Carolyn Mobley, interim pastor of Metropolitan Community Church of Richmond during an event at St. Paul’s Episcopal Church near the state Capitol. “I cannot think of anything that would help me pursue my own happiness more than the opportunity to marry the person I love.”

Virginia, Richmond, same-sex marriage, marriage equality, gay marriage, gay news, Washington Blade, Virginia

An interfaith group of same-sex marriage advocates gathered at the 4th U.S. Circuit Court of Appeals in Richmond, Va. on Monday. (Washington Blade photo by Michael Key)

Mobley and more than two dozen others marched from the church to the state Capitol and then to the nearby federal courthouse where a three-judge panel with the 4th U.S. Circuit Court of Appeals will hear oral arguments in the case.

“I’m excited about what’s going on,” Henry Branch of Richmond told the Blade as he and his partner of more than two years, Les Quintana, stood outside the courthouse holding signs in support of marriage rights for same-sex couples. “I never thought this would be happening at this time.”

Timothy Bostic and Tony London of Norfolk last July filed a lawsuit challenging Virginia’s constitutional amendment that defines marriage as between a man and a woman. Carol Schall and Mary Townley of Chesterfield joined their case two months later alongside former U.S. Solicitor General Ted Olson and David Boies, who successfully argued against California’s Proposition 8 before the U.S. Supreme Court had also agreed to represent the two couples.

The American Civil Liberties Union, Lambda Legal and the ACLU of Virginia last August filed a lawsuit on behalf of Kidd and Berghoff and Joanne Harris and Jessica Duff of Staunton. A federal judge in Harrisonburg earlier this year classified their case as a class action.

U.S. District Court Judge Arenda L. Wright Allen in February found Virginia’s same-sex marriage ban unconstitutional. The 4th Circuit a few weeks later ruled the ACLU and Lambda Legal could join the Bostic case.

Same-sex couples in neighboring West Virginia and North Carolina and South Carolina are among those who have filed lawsuits seeking marriage rights since the U.S. Supreme Court last June struck down a portion of the Defense of Marriage Act. A 4th Circuit ruling that upholds Allen’s decision could either strike down the three states’ same-sex marriage bans or allow gay advocates to mount additional legal challenges against them because they fall under the federal appellate court’s jurisdiction.

Equality North Carolina and South Carolina Equality last month filed amicus briefs with the federal appeals court in the Bostic case.

“We believe that the issue happening in the 4th Circuit has a direct impact on a large number of individuals in our state,” said South Carolina Equality Executive Director Ryan Wilson on Monday during a conference call with reporters. “The time is now we believe for the 4th Circuit to rule for marriage equality not only in Virginia, but in all the four states of the 4th Circuit.”

The Alliance Defending Freedom, the Liberty Council and the U.S. Conference of Catholic Bishops are among the groups that filed amicus briefs with the 4th Circuit on behalf of Prince William County Circuit Court Clerk Michèle McQuigg and Norfolk Circuit Court Clerk George Schaefer, III, who appealed Allen’s ruling. National Organization for Marriage President Brian Brown and Victoria Cobb, president of the Family Foundation of Virginia, and others are scheduled to attend a rally outside the federal courthouse before the oral arguments begin.

“We’re not imposing our belief on them,” Bonnie Hockaday of Glen Allen told the Blade on Monday as she stood with other same-sex marriage supporters outside the federal courthouse in Richmond. “We’re not saying they have to get married, just allow [it.]”