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Nevada AG invokes bigamy, incest to defend marriage ban

Nevada, Catherine Cortez Masto, gay news, Washington Blade

Nevada Attorney General Catherine Cortez Masto. (Photo public domain)

Ask the attorney general of Nevada about the definition of marriage, and she’ll tell you it doesn’t include the union of a same-sex couple. But in the same breath, she’ll tell you it also doesn’t include incest or bigamy either.

In a 55-page brief filed on Tuesday, Nevada Attorney General Catherine Cortez Masto urges the U.S. Ninth Circuit Court of Appeals to uphold the state’s constitutional ban on same-sex marriage on the basis that it reflects the will of the people.

“The interest of the State in defining marriage in this manner is motivated by the state’s desire to protect and perpetuate traditional marriage,” Masto writes. “In establishing this criterion and others — e.g., age, consanguinity, unmarried status, etc. — the state exercises its prerogative as a State, and that exercise is entitled to respect.”

But in a section titled “Marriage Defined” explaining “what marriage is” and “what marriage is not,” Masto reminds the court that in addition to not being for same-sex couples under Nevada law, marriage is also not for those engaging in bigamy or incest.

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The invocation of bigamy and incest in Nevada’s brief before the Ninth Circuit recalls the first legal brief the Obama administration filed in support of the Defense of Marriage Act when it was still defending the law in court. That brief invoked bigamy and pedophilia to assert the constitutionality of the ban on federal recognition of same-sex marriage, which riled LGBT advocates.

Evan Wolfson, president of Freedom to Marry, took Masto to task for making an implicit comparison between same-sex marriage and bigamy or incest while saying she makes no solid argument against allowing gay nuptials in Nevada.

“Marriage is not ‘defined’ by who is denied it, and nothing in the brief explains why loving and committed couples of the same sex should be denied the legal commitment and bundle of obligations and protections that are available to different-sex couples,” Wolfson said. “To invoke bigamy and incest, as the attorney general does — at least she stopped short of bestiality! — doesn’t supply an explanation; it makes clear that the state has nothing to offer to justify the discrimination against same-sex couples in Nevada.

But Wolfson said he concurs with another argument within the attorney general’s brief: domestic partnerships, which are permitted under Nevada law, aren’t equivalent to and don’t provide a substitute for marriage.

The brief was filed in the case of Sevcik v. Sandoval, a challenge filed by Lambda Legal against Nevada’s ban on same-sex marriage in 2012.

Jon Davidson, Lambda’s legal director, said “of course, we find any such comparison objectionable” between same-sex marriage and bigamy or incest. The organization is slated to file its formal response to the attorney general’s brief next month.

Masto is a Democrat and has served in the role of attorney general for Nevada since 2007. Other Democrats holding the office in other states — most recently Virginia Attorney General Mark Herring — have elected not to defend marriage bans in the state on the basis that they’re unconstitutional.

Notably, Masto argues at length that the Ninth Circuit shouldn’t apply heightened scrutiny, or a greater assumption a law is unconstitutional, to the ban on same-sex marriage. That argument is somewhat dated after the Ninth Circuit on Tuesday applied heightened scrutiny in ruling that a juror cannot be excluded from a trial based on sexual orientation — a decision that will have precedent in the marriage case.

“Under an objective application of due process and equal protection analyses, there is no basis for heightened review of the State’s purpose in defining marriage by its traditional meaning,” Masto writes. “There exists neither fundamental right, nor suspect or quasi- suspect class, justifying a different standard of review.”

But the invocation of bigamy and incest isn’t the only part of the brief that is raising concerns among LGBT advocates.

Responding to the various friend-of-the-court briefs filed in the case on behalf of same-sex marriage, Masto takes issue with the way some say marriage is about children and others say it isn’t.

“There is some irony in the inconsistency in certain arguments made by amici,” Masto writes. “A brief by the Family Equality Council, et al., posits that the policy issue is primarily about children, presenting ‘testimonials from the children raised in such families [those with same-sex parents].’ In a separate brief, Family Law Professors (who are ‘scholars of family law’) argue that marriage is not about children.”

Masto concludes these divergent views on the role of children in marriage serve to “reinforce the conclusion that the state’s legislature is the democratic crucible where the issues should be debated and decided.”

Emily Hecht-McGowan, the Family Equality Council’s director of public policy, slammed the attorney general for her interpretation of its brief in favor of marriage equality.

“The Attorney General is missing the primary point of our Voices of Children brief, which is not that marriage is primarily about children but rather that the denial of marriage equality fundamentally harms children being raised by same-sex couples by rendering them and their families second-class citizens,” Hecht-McGowan said. “We trust that the Justices reading our brief and hearing oral arguments will reach the same conclusion that Justice Kennedy reached in his majority opinion in U.S. v. Windsor — that laws denying marriage recognition to same-sex couples ‘humiliate children’ and are a violation of equal protection under the law.”

23
Jan
2014

White House mum on marriage going to Supreme Court

Jay Carney, White House, gay news, Washington Blade

White House Press Secretary Jay Carney has no comment on marriage coming to the Supreme Court (Washington Blade file photo by Damien Salas).

White House Press Secretary Jay Carney side-stepped a question Friday on whether President Obama is eager to see the U.S. Supreme Court take up the issue of marriage equality, reflecting instead on the growth on public support of same-sex marriage.

In response to a question from the Washington Blade, Carney refused to comment on the potential for a nationwide ruling from the Supreme Court on marriage equality in the wake of federal court decision against Virginia’s ban on same-sex marriage.

“Well, I’m not going to speak hypothetically about cases the Supreme Court may or may not take,” Carney said. “What I can tell you is the president supports, as he made clear, making available to LGBT Americans the rights that we all should enjoy, and his views on same-sex marriage were, I think, very powerfully expressed.”

Referencing Obama’s own evolution on his path to announcing his support for marriage equality, Carney said the president takes pride in the growing support for same-sex marriage in recent years.

“He feels very gratified by the enormous progress that’s been made on this issue, and the change in perspectives that I think we’ve seen ‘evolve’ across the country in rather a remarkable amount of time — a remarkably short amount of time — which is not to say that it shouldn’t have happened earlier, but that it is, given the way these kinds of struggles for equal rights play out, notable and commendable that Americans across the country have embraced this issue as strongly as the have,” Carney said.

Carney had no comment when asked whether he anticipates that the Obama administration would participate in any of the pending lawsuits seeking marriage equality as it did with litigation that overturned Section 3 of the Defense of Marriage Act and California’s Proposition 8.

“I wouldn’t be the right person to guess,” Carney said. “You might look for speculation at the Justice Department.”

The Justice Department didn’t immediately respond to the Washington Blade’s request to comment. The Obama administration participated in litigation against DOMA as a party to the lawsuit and in the case against Prop 8 as a friend of the court.

A number of LGBT advocates have weighed in on the possibility of the Obama administration participating in the marriage cases. Freedom to Marry President Evan Wolfson said the administration “should absolutely be part” of all the marriage cases, while legal duo Ted Olson and David Boies as well as Human Rights Campaign Chad Griffin said they’d welcome Obama’s participation.

A brief transcript of the exchange follows:

Washington Blade: A federal court yesterday ruled against Virginia’s ban on same-sex marriage. At least four circuit courts will be considering the issue this spring, which likely means the Supreme Court will be taking up the issue and making a decision next year. Is the president eager for the Supreme Court to make an nationwide decision on this over the course of his presidency?

Jay Carney: Well, I’m not going to speak hypothetically about cases the Supreme Court may or may not take. What I can tell you is the president supports, as he made clear, making available to LGBT Americans the rights that we all should enjoy, and his views on same-sex marriage were, I think, very powerfully expressed. And he feels very gratified by the enormous progress that’s been made on this issue, and the change in perspectives that I think we’ve seen “evolve” across the country in rather a remarkable amount of time — a remarkably short amount of time — which is not to say that it shouldn’t have happened earlier, but that it is, given the way these kinds of struggles for equal rights play out, notable and commendable that Americans across the country have embraced this issue as strongly as the have.

Blade: But do you anticipate the administration will participate in the cases as much as it did in the DOMA and the Prop 8 cases?

Carney: I wouldn’t be the right person to guess. You might look for speculation at the Justice Department.

14
Feb
2014

HHS backs gay couples, HIV/AIDS patients

Barack Obama, Global AIDS, gay news, Washington Blade

Married gay couples will be eligible for a family health policy under President Obama’s health care reform law. (Washington Blade file photo by Lee Whitman)

WASHINGTON — Married gay couples will be eligible for a family health policy under President Obama’s health care reform law, beginning in 2015, the U.S. government said on March 14, Reuters and other media outlets reported. Insurers were encouraged to begin offering coverage this year, the article said.

HHS exercised federal authority to prevent discriminatory insurance market practices on an issue that has been caught up in state marriage laws.

The move follows a February lawsuit filed by an Ohio gay couple that was unable to obtain family coverage under Obamacare, they said, because their state does not recognize same-sex marriage, Reuters said.

“If an insurance company offers coverage to opposite-sex spouses, it cannot choose to deny that coverage to same-sex spouses,” Dr. Matthew Heinz, who heads HHS outreach to LGBT communities, said in a posting to a government website.

The HHS also said insurers cannot turn down HIV/AIDS patients whose premiums are being paid through the federal Ryan White program, the AP reports.

19
Mar
2014

Ted Olson: Va. gay marriage ban ‘flatly unconstitutional’

David Boies, Ted Olson, gay marriage, same-sex marriage, marriage equality, gay news, Washington Blade

Ted Olson and David Boies (Washington Blade photo by Michael Key)

Former U.S. Solicitor General Ted Olson on Friday described Virginia’s same-sex marriage ban as “blatant discrimination” that is “unjustified, un-American and flatly unconstitutional.”

“The unmistakable purpose and effect of Virginia’s marriage prohibition is to stigmatize gay men and lesbians – and them alone – and enshrine in Virginia’s constitution and statutory code that they are ‘unequal to everyone else,’” he said in a brief filed with the 4th U.S. Circuit Court of Appeals in Richmond, Va., that urges it to uphold a federal judge’s ruling that struck down the commonwealth’s gay nuptials ban.

Olson said the commonwealth’s marriage amendment “actually harms children” because it prevents gay men and lesbians from tying the knot. Three of the four leading plaintiff couples who are challenging the state’s same-sex marriage ban – Mary Townley and Carol Schall of Chesterfield, Joanne Harris and Jessica Duff of Staunton and Victoria Kidd and Christy Berghoff of Winchester – are raising children.

Timothy Bostic and Tony London of Norfolk, who filed a lawsuit against the state’s gay nuptials ban last July, have been together for 25 years.

“If the commonwealth’s interest truly were ensuring that children received the benefits of parents’ remaining together to rear the children they conceive, that professed objective would be advanced only by allowing same-sex couples to marry,” says Olson.

Olson also notes in the brief filed on behalf of Townley and Schall and Bostic and London that Virginia’s interracial marriage ban dated back to the colonial period. The aforementioned prohibition remained in place until 1967 when the U.S. Supreme Court struck it down in its landmark Loving v. Virginia decision.

“The history of Virginia’s marriage prohibition demonstrates that the laws were intended to oppress,” says Olson. “They were designed to exclude gay men and lesbians from marriage in Virginia on the baseless supposition that gay men and lesbians were launching an ‘attack’ on traditional families that would ‘weaken’ the institution of marriage.”

Olson filed his brief in the Bostic case on the same day Virginia Attorney General Mark Herring defended U.S. District Judge Arenda L. Wright Allen’s February ruling that struck down the commonwealth’s same-sex marriage ban.

Herring announced shortly after he took office in January he will not defend the marriage amendment that voters in 2006 approved by a 57-43 percent margin. Norfolk Circuit Court Clerk George Schaefer, III, and Prince William County Circuit Court Clerk Michèle McQuigg defended the gay nuptials ban in briefs their lawyers filed with the 4th Circuit on March 28.

“The clerks’ narrow vision of marriage and expansive vision of state power to intrude on personal freedoms demean the institution of marriage and the dignity of gay people as free and equal human beings,” wrote Luke C. Platzer of Jenner and Block LLP, a D.C. law firm, in a brief he filed with the 4th Circuit on Friday on behalf of Harris and Duff and Kidd and Berghoff.

The American Civil Liberties Union and Lambda Legal last August filed a lawsuit against the state’s marriage amendment on behalf of the women.

U.S. District Judge Michael F. Urbanski in January certified the ACLU and Lambda Legal lawsuit as a class action. The 4th Circuit last month allowed the groups to intervene in the Bostic case.

Lawyer: Defendants’ claims are ‘bizarre’

Platzer dismissed claims the marriage amendment is necessary for the procreation of children.

“The clerks’ assertion that allowing same-sex couples to marry would sever the association between marriage and raising children is bizarre,” he says.

OurServe-SLDN and the American Military Partner Association and a group of constitutional law scholars that include Deborah Hellman and John C. Jeffries, Jr., of the University of Virginia School of Law on Friday filed amicus briefs with the 4th Circuit.

“Gay and lesbian individuals have limited ability to protect themselves through the political process against continued public and private discrimination,” writes Lori Alvino McGill of the D.C. law firm Latham and Watkins LLP on behalf of the scholars, referring to the defendants in the Bostic case who argue gays and lesbians have gained political influence in recent years. “The barriers to gay and lesbian persons achieving equal respect, equal dignity, and equal rights through the political process remain daunting, and private discrimination and hostility are still often both widespread and fierce.”

Neighboring Maryland is among the 18 states and D.C. that have extended marriage rights for same-sex couples.

Gays and lesbians in North Carolina, West Virginia, Pennsylvania, Florida, Alabama and other states have filed marriage lawsuits since the U.S. Supreme Court last June struck down a portion of the Defense of Marriage Act. A three-judge panel with the 10th U.S. Circuit Court of Appeals on Thursday heard oral arguments in an appeal of a federal judge’s ruling late last year that found Utah’s same-sex marriage ban unconstitutional.

The 4th Circuit is scheduled to hear oral arguments in the Bostic case on May 13.

12
Apr
2014

Federal appeals court hears Va. marriage case

Fourth Circuit Court of Appeals, marriage equality, gay marriage, same-sex marriage, Virginia, Richmond, gay news, Washington Blade, Emily Schall-Townley, Carol Schall, Mary Townley

Emily Schall Townley spoke at a press conference following oral arguments in the Virginia same-sex marriage case on Tuesday. (Washington Blade photo by Michael Key)

RICHMOND, Va. — A three-judge panel of the 4th U.S. Circuit Court of Appeals on Tuesday heard oral arguments in a lawsuit that challenges Virginia’s same-sex marriage ban.

Former U.S. Solicitor General Ted Olson, James Esseks of the American Civil Liberties Union and Virginia Solicitor General Stuart Raphael argued against the commonwealth’s constitutional amendment that defines marriage as between a man and a woman on behalf of the four leading plaintiff couples in the case — Tim Bostic and Tony London of Norfolk, Carol Schall and Mary Townley of Chesterfield, Joanne Harris and Jessica Duff of Staunton and Victoria Kidd and Christy Berghoff of Winchester — and the state.

“Virginia’s marriage laws single out for discrimination a class of Virginians because of their sexual orientation and because of the gender of the person they love,” said Olson.

Esseks argued Virginia’s same-sex marriage ban “violates” the guarantee to equal protection under the 14th Amendment.

“The Virginia marriage ban says to same-sex couples you folks cannot get married,” he said.

Raphael referred to the U.S. Supreme Court’s landmark Loving v. Virginia decision that struck down state interracial marriage bans in 1967. He also noted the commonwealth did not specifically ban same-sex marriage until 1975.

“It’s clear that laws that discriminate based on sexual orientation should be looked at with a very jaundice eye,” said Raphael.

David Oakley, who represents Norfolk Circuit Court Clerk George Schaefer, III, argued the extension of marriage rights to same-sex couples would prove a “dramatic departure from existing law.” He described the Loving case as “a different situation than the case we have here.”

Austin Nimocks of the Alliance Defending Freedom, who represents Prince William County Circuit Court Clerk Michèle McQuigg, argued marriage is necessary for the procreation of children.

“Same-sex couples do not provide the child with a mother and a father,” said Nimocks.

Judge Roger L. Gregory repeatedly pressed Nimocks on the issue during oral arguments that lasted more than an hour.

“You can’t just take a fundamental right and define it,” said Gregory.

Presiding Judge Paul V. Niemeyer pressed Olson on the definition of marriage, noting same-sex and heterosexual relationships have “two different purposes in society.”

“A marriage is a unit important to society in a number of ways,” said Niemeyer.

President Obama appointed Judge Henry F. Floyd, who appeared the most sympathetic to the plaintiffs during the oral arguments, to the 4th Circuit.

Gregory in 2000 received a recess appointment during the last weeks of the Clinton administration. Then-President George W. Bush renominated him in 2001.

Then-President George H.W. Bush nominated Niemeyer to the 4th Circuit in 1990.

Marriage is ‘biblically mandated’

Virginia voters in 2006 approved the state’s marriage amendment by a 57-43 percent margin.

Bostic and London last July filed a lawsuit challenging the commonwealth’s gay nuptials ban after the U.S. Supreme Court issued its landmark ruling that struck down a portion of the Defense of Marriage Act. Schall and Townley joined the case two months later alongside Olson and Boies.

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

Herring announced shortly after taking office in January that he would not defend the state’s marriage amendment.

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.

State Del. Bob Marshall (R-Prince William County,) who co-authored the marriage amendment, attended the oral arguments. National Organization for Marriage President Brian Brown, Josh Duggar of the Family Research Council and Family Foundation of Virginia President Victoria Cobb are among the hundreds of same-sex marriage opponents who gathered outside the courthouse before they began and as they took place.

Brian Brown, NOM, National Organization for Marriage, gay marriage, same-sex marriage, marriage equality, Virginia, Fourth Circuit Court of Appeals, gay news, Washington Blade

Brian Brown of the National Organization for Marriage spoke at a rally against same-sex marriage on the grounds of the Virginia Capitol in Richmond on Tuesday. (Washington Blade photo by Michael Key)

“I hope that they vote it will be illegal for two men to marry, two women to marry,” said Miss Davis of Virginia Beach.

Fourth Circuit Court of Appeals, marriage equality, gay marriage, same-sex marriage, Virginia, Richmond, gay news, Washington Blade

Same-sex marriage supporters gathered outside of the Fourth Circuit Court of Appeals in Richmond, Va. (Washington Blade photo by Michael Key)

Philip Houchins of Richmond held a Family Foundation of Virginia flag as other opponents of marriage rights for same-sex couples arrived on buses.

“It is one man, one woman that works best as far as marriage goes,” he told the Blade. “It is biblically mandated. I support that.”

Heather Mathis of Richmond, who married her wife of eight years in D.C. in April 2013, is among the same-sex marriage supporters who gathered outside the courthouse.

“I want my son to feel like we’re normal and we’re a loving married couple just like any married couple,” she told the Blade. “I want him to grow up in a society that doesn’t look as strange or unequal.”

Richmond ‘way-station’ to Supreme Court

18 states and D.C. allow gays and lesbians to marry.

Same-sex couples in neighboring North Carolina and West Virginia are among those who have filed lawsuits seeking marriage rights since the U.S. Supreme Court issued its DOMA decision.

A three-judge panel of the 10th U.S. Circuit Court of Appeals in Denver last month heard oral arguments in two lawsuits that challenge same-sex marriage amendments in Utah and Oklahoma. Texas Attorney General Greg Abbott in February appealed a ruling that struck down his state’s same-sex marriage ban to a federal appeals court in New Orleans.

Gays and lesbians have begun to marry in Arkansas after a circuit judge struck down the state’s same-sex marriage ban. Attorney General Dustin McDaniel has said he will appeal the decision to the Arkansas Supreme Court.

Niemeyer noted to Nimocks during oral arguments that the issue of marriage rights for same-sex couples will likely go before the U.S. Supreme Court.

“You’re here in Richmond as a way-station on (Interstate) 95,” said the presiding judge.

’It is not really complicated’

Herring, the plaintiffs and their lawyers were optimistic as they spoke to reporters during a press conference after they left the courthouse.

“I am here today with moms,” said Emily Schall Townley, 16, as she stood alongside Schall and Townley. “This is my family. It is not really complicated.”

Harris told the Blade the hardest part of the oral arguments for her was listening to lawyers talk about children — she and Duff have a 5-year-old son.

“It’s pretty strange to have folks who aren’t in your family talking about your child,” said Harris.

She added she feels the arguments her lawyers made were “all very wonderful.”

“It just really reaffirms everything that we think and do everyday when we’re supporting our family,” Harris told the Blade.

The panel is expected to issue its ruling in the coming weeks.

13
May
2014

Praise, calls for more action after DOMA ruling review

Eric Holder, Tammy Baldwin, Melissa Etheridge, United States Department of Justice, United States Senate, Democratic Party, Wisconsin, gay news, Washington Blade, LGBT Pride

U.S. Attorney General Eric Holder announced on Friday the conclusion of the administration’s review of the DOMA decision (Washington Blade photo by Michael Key).

As the one-year anniversary approaches of the U.S. Supreme Court’s decision against the Defense of Marriage Act, the Justice Department’s interpretation of the ruling is inspiring mixed reactions among LGBT advocates, but most are happy with the results so far.

On Friday, U.S. Attorney General Eric Holder announced in the form of a memo to President Obama the Justice Department has finished its year-long review of the Supreme Court decision striking down Section 3 of DOMA, a law that prohibited recognition of same-sex marriages at the federal level.

The DOMA decision, which was handed down alongside the Supreme Court’s ruling on California’s Proposition 8 on June 26, 2013, will see its one-year anniversary on Thursday. Some advocates say they’re happy with the administration’s interpretation of the decision, and others want more action in terms of support with litigation and legislation.

Kate Kendell, executive director of the National Center for Lesbian Rights, praised Obama for his “unparalleled leadership,” but called on him to support litigation to extend marriage rights to same-sex couples nationwide.

“Today’s announcement that same-sex spouses in states that refuse to respect their marriages will be denied the Social Security benefits they have paid for and earned, and that LGBT veterans who have served this country will be treated as second-class citizens, underscores how far we have yet to go to achieve true equality,” Kendell said. “We call on the administration to redouble its efforts to stand up for these families and to support litigation to challenge discriminatory and unconstitutional state laws that exclude same-sex couples and their children from the protections of marriage.”

The administration has afforded many benefits to married same-sex couples following the decision last year, ensuring they flow to gay couples regardless of whether they live in a jurisdiction where same-sex marriage is legal. Among those were benefits related to immigration, taxes, employer-provided pensions and federal employee benefits.

But in the memo, Holder says the Justice Department concluded as part of its review it cannot extend certain Social Security and veterans benefits to these couples if they live in one of 31 states where same-sex couples cannot legally marry.

Because federal law governing certain Social Security and veterans benefits looks to the place of residence, not the place of celebration, in determining whether a couple is married, the administration determined Congress must pass additional legislation to extend these benefits to married same-sex couples living in non-marriage equality states.

Despite the denial of these benefits, most LGBT advocates praised the Obama administration for its response to the court’s ruling.

Rea Carey, executive director of the National Gay & Lesbian Task Force, gave the Obama administration a grade of “A” for the extension of benefits to married same-sex couples.

“The U.S. Attorney General and the administration deserves an ‘A’ grade for their efforts to fully implement the Supreme Court’s Windsor decision, a long list of changes that deeply and positively impacts the lives of millions of same-sex couples and their families,” Carey said. “Moreover, it speaks volumes about the values of inclusion and diversity that underpins President Obama’s approach to delivering freedom and justice for all Americans.”

Also happy on the day the completion of the review was announced was Tico Almeida, president of Freedom to Work.

On Friday, Labor Secretary Thomas Perez announced his department is issuing a new rule to ensure individuals in same-sex marriages can take leave from an employer to care for a spouse under the Family & Medical Leave Act. This new rule builds off an earlier announcement that this benefit would be available in the wake of the DOMA decision, but only for same-sex couples applying for the benefit in states with marriage equality.

Almeida, who had pushed the administration to make the rule change, said the new policy “will let employers in all 50 states know that gay and lesbian married couples must be treated with respect when they seek workplace leave to take care of a same-sex spouse that gets into an accident or is diagnosed with an illness.

“There is no doubt that this administration has already done and continues to do more to promote LGBT fairness than any other in our nation’s history,” Almeida concluded.

Certain benefits won’t extend to gay couples

But that sense of satisfaction wasn’t shared by everyone, particularly LGBT groups that were pressuring the Obama administration to enforce Social Security and veterans laws in such a way that married same-sex couples could receive related benefits in non-marriage equality states.

Vickie Henry, a staff attorney with Gay & Lesbian Advocates & Defenders, expressed general satisfaction with the implementation of the DOMA decision, but acknowledged her group had previously said all Social Security benefits should flow to married same-sex couples regardless of where they live.

“We have advocated with the White House and the Department of Justice that there was room for them to interpret the Social Security Act to allow the extension of benefits,” Henry said. “They’ve reached the conclusion that they’ve reached. We thought that they had some room, and they are pursuing a legislative solution.”

Henry advised same-sex couples that live in non-marriage equality states and think they’re entitled to Social Security benefits to “keep those claims alive” and apply despite the administration’s post-DOMA policy.

“We’ve had people here who’ve called us because they had a spouse and they couldn’t continue to live in their home, and they lost their home, because they weren’t immediately able to access their Social Security benefits,” Henry said. “The harm here for real people can be quite significant.”

Despite the general rule about withholding Social Security benefits for married same-sex couples in non-marriage equality states, the Justice Department found limited workaround.

If a married same-sex couple applies for benefits in a marriage-equality state, but moves to another state that doesn’t recognize the marriage, the agency won’t withhold benefits based on the place of residence standard during or after the application process.

Further, same-sex couples living in states with domestic partnerships or civil unions, but not marriage equality, would be eligible for Social Security benefits. Those states are Colorado, Wisconsin and Nevada.

Stephen Peters, president of the LGBT military group known as American Military Partner Association, called on Congress to take action, saying he’s “saddened and frustrated” that the Justice Department has decided it cannot afford to extend spousal veterans benefits to same-sex couples in states without marriage equality.

“While the administration has made great efforts in providing legal recognition to married same-sex couples wherever they determined it legally possible, it simply isn’t enough,” Peter said. “Our LGBT veterans have served, sacrificed, and in some cases died right alongside their heterosexual counterparts, and our nation cannot allow this injustice to continue.”

As with Social Security, veterans benefits would still be able to flow to married same-sex couples in non-marriage equality states for the purposes of 1) transfer of GI-Bill education benefits to dependents; 2) access to group life insurance and family insurance group life insurance programs; 3) and eligibility for dependent and survivor education assistance.

Moreover, the VA recently instituted a rule change to allow joint burial for the same-sex partners of veterans in domestic partnerships or civil unions.

But according to the American Military Partner Association, veterans in non-marriage equality states still won’t have access to important benefits like ChampVA (health care for spouses of disabled veterans), higher disability compensation for disabled veterans with dependents, full access to VA home loans, and many survivor benefits for widows.

One piece of legislation that would extend all of these benefits is the Respect for Marriage Act, sponsored by Rep. Jerrold Nadler (D-N.Y.) in the House and Sen. Dianne Feinstein (D-Calif.) in the Senate, which has a “certainty” principle that would ensure the federal benefits of marriage would flow to married same-sex couples regardless of where they live.

The Social Security & Marriage Equality Act, introduced by Sen. Patty Murray (D-Wash.), would address issues related to Social Security benefits, while an amendment introduced by Sen. Jeanne Shaheen (D-N.H.) and Mark Udall (D-Colo.) along the lines of the Charlie Morgan Act would address veterans benefits. The Veteran Spouses Equal Treatment Act, sponsored by Rep. Dina Titus (D-Nev.) in the U.S. House, would also address issues related to veterans benefits.

But movement on any of these bills would be extremely difficult in the Republican-controlled U.S. House, and even in the Democratic-controlled U.S. Senate given the limited time remaining in the legislative calendar this Congress. Moreover, whether President Obama would work to guide them toward passage remains to be seen.

Shin Inouye, a White House spokesperson, enumerated the bills that could address the situation when asked if President Obama would call for a vote on them in the U.S. Senate by year’s end.

“We look forward to working with lawmakers to pass legislation like the Respect for Marriage bills introduced by Sen. Dianne Feinstein and Congressman Jerrold Nadler, the Social Security & Marriage Equality Act introduced by Sens. Mark Udall and Patty Murray, and the Veterans Affairs’ amendment proposed by Sens. Mark Udall and Jeanne Shaheen earlier this year,” Inouye said.

Another ruling from the U.S. Supreme Court instituting marriage equality throughout the country would also address the situation. Litigation continues to percolate through the judiciary, so a final ruling from the Supreme Court on the marriage issue is expected by the middle of next year.

Dena Iverson, a Justice Department spokesperson, emphasized the importance of legislation as a means to address the issue when asked about the pending litigation.

“I will refer you to our release today that said, ‘The administration looks forward to working with Congress to fix these parts of the law to ensure that Americans who rely on these programs can obtain these essential benefits no matter where they live,’” Iverson said.

Another solution could be additional litigation from same-sex couples against the federal government in these non-marriage equality states seeking Social Security and veterans benefits.

GLAD’s Henry, however, said she’s unaware of any such litigation in the works, and the process for that to happen with Social Security benefits would take an inordinate amount of time.

“It can be more than a year, which is why once you got your initial denial, you can seek an expedited review and permission to go to court, which can take a long time,” Henry said.

Henry acknowledged a nationwide ruling from the Supreme Court in favor of marriage equality would also address the situation. Although there’d be a question about retroactivity, Henry said GLAD believes such a ruling would apply to couples who had previously sought benefits.

Despite some dissatisfaction with the continued withholding of benefits, no LGBT advocate is outright criticizing the Obama administration for enforcing the place of residence standard under current law for certain Social Security and veterans benefits.

Doug NeJaime, a law professor at University of California, Irvine, said the administration’s interpretation of the relevant statutes makes sense even in the wake of the DOMA decision.

“Given the governing laws relating to social security and veterans benefits, and specifically use of residence or domicile as the determinant of marital status, it is not surprising that the administration has been unable to extend spousal benefits to same-sex couples merely through regulatory changes,” NeJaime said. “What exactly lawfully married means depends on the statutes and regulations in particular contexts, and the administration has done a lot to implement a place of celebration rule as widely as possible.”

23
Jun
2014

Larry Hogan: Position on same-sex marriage has ‘evolved’

Larry Hogan, Maryland, gay news, Washington Blade

Larry Hogan (Photo by Marrh2; courtesy Wikimedia Commons)

Republican Maryland gubernatorial candidate Larry Hogan on Friday said his position on marriage rights for same-sex couples has “evolved.”

Hogan said on News Talk with Bruce DePuyt on News Channel 8 in response to a question about whether he voted for the state’s same-sex marriage law in a 2012 referendum on it that he was “originally for civil unions.”

“I was a supporter of traditional marriage,” he told DePuyt. “It’s an issue that I fully understand. The voters have made their decision. I support their decision and will uphold the law. I’ve evolved I guess on the issue.”

Hogan said marriage rights for same-sex couples, extending in-state tuition to undocumented immigrants and other social issues “are really decided in Maryland.”

“They have no part in this campaign whatsoever,” he said. “We’ve been completely focused on the issues that all Marylanders are focused on right now, and that’s economic issues.”

Hogan, who was a member of former Gov. Bob Ehrlich’s administration, told the Washington Post in June he would not seek to repeal Maryland’s same-sex marriage law if elected governor.

Hogan told the Baltimore Sun editorial board ahead of the June 24 primary that he opposes a transgender rights bill that Gov. Martin O’Malley signed into law earlier this year.

Carrie Evans, executive director of Equality Maryland, welcomed Hogan’s comments on same-sex marriage.

“Hogan’s evolution on marriage equality reflects the reality of many Marylanders who have kept an open heart and open mind on this issue,” she told the Washington Blade. “It is valuable when people share their evolution to demonstrate it is possible.”

Gregory T. Angelo, executive director of Log Cabin Republicans, echoed Evans.

“I’ve had some great conversations with the Hogan campaign over the last several weeks and it’s encouraging to see this evolution on the issue,” Angelo told the Blade. “Mr. Hogan is just one of many Marylanders who has evolved on this issue. He, like many Marylanders, evidently sees civil marriage for committed same-sex couples as no threat to his way of life, and, like an increasing number of Republicans, sees getting beyond the marriage issue as a way to grow the GOP voting base and win.”

Hogan easily defeated Harford County Executive David Craig, state Del. Ron George (R-Anne Arundel County) and former congressional candidate Charles Lollar in the Republican gubernatorial primary.

He will face Lieutenant Gov. Anthony Brown — who publicly supports marriage rights for same-sex couples and Maryland’s trans rights law that takes effect on October 1 — in the general election.

08
Aug
2014

Lily Tomlin marries longtime partner

Mark Twain Prize, gay news, Washington Blade, Lily Tomlin

Lily Tomlin (Washington Blade file photo by Michael Key)

LOS ANGELES – Comedian Lily Tomlin and her partner of 42 years, Jane Wagner, married on New Year’s Eve.

People reported the couple exchanged vows during a private ceremony in Los Angeles.

“They’re very happy,” Tomlin’s spokesperson Jennifer Allen told the magazine.

Celebrity columnist Liz Smith broke the news of Tomlin and Wagner’s nuptials in her Jan. 3 column that ran in the Chicago Tribune.

“My longtime friends, Lily Tomlin and her love, the writer Jane Wagner, got married on the eve of 2014,” wrote Smith. “My wish is that their happiness will be as great as their combined talents.”

08
Jan
2014

DOMA lawyer seeks to join Utah marriage lawsuit

gay marriage, same sex marriage, marriage equality, Roberta Kaplan, Defense of Marriage Act, Supreme Court, gay news, Washington Blade

DOMA attorney Roberta Kaplan is seeking to part in the Utah marriage case. (Blade file photo by Michael Key)

The lawyer who successfully argued against the Defense of Marriage Act before the U.S. Supreme Court filed paperwork on Friday to take part in the federal litigation seeking marriage equality in Utah.

Roberta Kaplan, a private attorney at Paul, Weiss, Rifkind, Wharton & Garrison LLP, asked the U.S. Tenth Circuit Court of Appeals, where the litigation is pending, to allow her to join the case as a representative of three same-sex couples either seeking recognition of their marriages or the ability to marry in Utah.

In the 14-page filing, Kaplan writes that she should be able to join as an intervenor in Kitchen v. Herbert because of the nature of the litigation as an “extraordinary case.”

“[I]n a case of this significance and importance, which has the potential to shape the trajectory of the quest of gay people for full civil equality, having greater participation by affected parties and greater airing of the issues can only benefit this Court by providing the widest range of arguments and perspectives available,” Kaplan writes in the filing.

The couples that Kaplan represents are Douglas Wortham and Nicholas Nero, an unmarried gay couple who have been in a relationship for thirty years; Lynn Beltran and Claudia O’Grady, a lesbian couple who have been together fourteen years and who married on Dec. 23 in Salt Lake County; and Stanford Rovig and Charles Fluke, a gay couple who have been together for about eight years and married on Dec. 31 in Salt Lake County.

Joining the lawsuit would mean having the ability to file intervenor briefs and participate in oral arguments, which are scheduled for April 10. If the court denies her the opportunity to take part as an intervenor, the brief indicates Kaplan will participate in the case as a friend of the court.

Kaplan, who herself is in a same-sex marriage, gained notoriety last year when she successfully argued on behalf of lesbian widow Edith Windsor the case of United States v. Windsor, which led to the U.S. Supreme Court striking down Section 3 of DOMA.

01
Feb
2014

LGBT Wedding Expo in Frederick

wedding expo, wedding rings, gay news, Washington Blade

(Photo by iStock)

On March 16, Studio C Photography of Frederick presents “Over the Rainbow,” Frederick’s first LGBT Wedding and Fashion Expo. The show will feature more than 30 gay and gay-friendly wedding vendors in all categories. There will be a fashion show with same-sex couples in wedding attire to include M. Stein Tuxedo, private designer dresses, gowns, and suits, and “Under A Hundred” budget-conscious ensembles.

The Expo will be held in the Atrium at the FSK Holiday Inn, 5400 Holiday Dr. in Frederick from 1-4 p.m. There is ample free parking, and the Expo is conveniently right off I-270, I-70, and Rt. 15.

“To date, LGBT wedding shows have been made up of vendors who are there to sell their services, which of course is the point; but not all of them are truly gay friendly,” Susan Centineo, owner of Studio C Photography, told the Blade.  “This show promises vendors who have been screened and who are truly committed to providing red-carpet service for same-sex weddings, and we have added a same-sex fashion show to boot.”

Admission is free, and there will be drawings, raffles, and discounts for same-day bookings with vendors. You may RSVP in advance to qualify for a cash drawing. Email Susan at studiocphotos@yahoo.com or call/text 240-446-6085. A few vendor openings are still available.

24
Feb
2014