Gay Primary Source

Friday, January 24, 2014

Virginia AG Declines to Defend Same-Sex Marriage Ban

"PLEASE TAKE NOTICE that the Office of the Attorney General of Virginia, on behalf of Defendant Janet M. Rainey, in her official capacity, hereby changes the legal position of the Commonwealth in this action. Having exercised his independent constitutional judgment, consistent with his oath of office, the Attorney General has concluded that Virginia’s laws denying the right to marry to same-sex couples violate the Fourteenth Amendment to the United States Constitution. The Attorney General will not defend the constitutionality of those laws, will argue for their being declared unconstitutional, and will work to ensure that both sides of the issue are responsibly and vigorously briefed and argued before the courts to facilitate a decision on the merits, consistent with the rule of law ..."

Virginia Solicitor General Stuart A. Raphael, January 23, 2014.

   click here to read entire decision

I swore an oath to both the United States Constitution and the Virginia Constitution. After thorough legal review, I have now concluded that Virginia’s ban on marriage between same sex couples violates the Fourteenth Amendment of the U.S. Constitution on two grounds: marriage is a fundamental right being denied to some Virginians, and the ban unlawfully discriminates on the basis of both sexual orientation and gender. Virginia has argued on the wrong side of some of our nation’s landmark cases - in school desegregation in 1954, on interracial marriage with the 1967 Loving decision, and in 1996 on state-supported single-gender education at VMI. It’s time for the Commonwealth to be on the right side of history and the right side of the law.

The supporters of Virginia’s ban on same-sex marriage have argued in their legal brief that marriage between a man and a woman best promotes responsible procreation and optimal child rearing. This argument not only disrespects Virginia’s same-sex couple families, but it is illogical. It is simply inconceivable that denying same-sex couples the right to marry will make heterosexual couples more likely to marry and have children. Virginians should no longer face discrimination and economic hardship based on whom they love and commit their lives to. Writing for the Court in 2003 in the Lawrence v. Texas case, Justice Kennedy explained that the Constitution’s framers ‘knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.’ The Registrar and local clerks will continue to enforce the ban until the courts can act, but the Registrar and I will not defend it, and will argue for its being declared unconstitutional.

Virginia Attorney General Mark Herring, January 23, 2014.

Wednesday, January 15, 2014

Federal Court Strikes Down Ban on Same-Sex Marriage in Oklahoma

This Order addresses challenges to state and federal laws relating to same-sex marriage. The Court holds that Oklahoma’s constitutional amendment limiting marriage to opposite-sex couples violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution...

The Court recognizes that moral disapproval often stems from deeply held religious convictions. See Lawrence, 539 U.S. at 571 (explaining that moral disapproval of homosexual conduct was shaped by “religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family”). However, moral disapproval of homosexuals as a class, or same-sex marriage as a practice, is not a permissible justification for a law. See Lawrence, 539 U.S. at 577 (“‘[T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.’”) (quoting and adopting Justice Stevens’ dissent in Bowers v. Hardwick, 478 U.S. 186, 216 (1986)) (concluding that “the majority may [not] use the power of the State to enforce [moral] views [disapproving of homosexual conduct] on the whole society through operation of the criminal law”); id. at 582-83 (O’Connor, J., concurring) (explaining that “moral disapproval, without any other asserted state interest,” is not a “sufficient rationale... to justify a law that discriminates among groups of persons”); Mass. v. United States Dept. of Health and Human Servs., 682 F.3d 1, 15 (1st Cir. 2012) (“Lawrence ruled that moral disapproval alone cannot justify legislation discriminating on that basis. Moral judgments can hardly be avoided in legislation, but Lawrence and Romer have undercut this basis.”) (internal citations omitted). 37 Preclusion of “moral disapproval” as a permissible basis for laws aimed at homosexual conduct or homosexuals represents a victory for same-sex marriage advocates, and it forces states to demonstrate that their laws rationally further goals other than promotion of one moral view of marriage. Therefore, although Part A rationally promotes the State’s interest in upholding one particular moral definition of marriage, this is not a permissible justification...

The “negative impact” argument is impermissibly tied to moral disapproval of same-sex couples as a class of Oklahoma citizens. All of these perceived “threats” are to one view of the marriage institution - a view that is bound up in procreation, one morally “ideal” parenting model, and sexual fidelity. However, civil marriage in Oklahoma is not an institution with “moral” requirements for any other group of citizens. See supra Part I(C). Smith does not ask a couple if they intend to be faithful to one another, if they intend to procreate, or if they would someday consider divorce, thereby potentially leaving their child to be raised in a single-parent home. With respect to marriage licenses, the State has already opened the courthouse doors to opposite-sex couples without any moral, procreative, parenting, or fidelity requirements. Exclusion of just one class of citizens from receiving a marriage license based upon the perceived “threat” they pose to the marital institution is, at bottom, an arbitrary exclusion based upon the majority’s disapproval of the defined class. It is also insulting to same-sex couples, who are human beings capable of forming loving, committed, enduring relationships. “‘Preserving the traditional institution of marriage,’” which is the gist of Smith’s final asserted justification, “is just a kinder way of describing the State’s moral disapproval of same-sex couples.” Lawrence, 539 U.S. at 602 (Scalia, J., dissenting).

Having considered all four proferred justifications for Part A, the Court concludes that exclusion of same-sex couples is “so attenuated” from any of these goals that the exclusion cannot survive rational-basis review...

The Supreme Court has not expressly reached the issue of whether state laws prohibiting same-sex marriage violate the U.S. Constitution. However, Supreme Court law now prohibits states from passing laws that are born of animosity against homosexuals, extends constitutional protection to the moral and sexual choices of homosexuals, and prohibits the federal government from treating opposite-sex marriages and same-sex marriages differently. There is no precise legal label for what has occurred in Supreme Court jurisprudence beginning with Romer in 1996 and culminating in Windsor in 2013, but this Court knows a rhetorical shift when it sees one. Against this backdrop, the Court’s task is to determine whether Part A of the Oklahoma Constitutional Amendment deprives a class of Oklahoma citizens - namely, same-sex couples desiring an Oklahoma marriage license - of equal protection of the law. Applying deferential rationality review, the Court searched for a rational link between exclusion of this class from civil marriage and promotion of a legitimate governmental objective. Finding none, the Court’s rationality review reveals Part A as an arbitrary, irrational exclusion of just one class of Oklahoma citizens from a governmental benefit. Equal protection is at the very heart of our legal system and central to our consent to be governed. It is not a scarce commodity to be meted out begrudgingly or in short portions. Therefore, the majority view in Oklahoma must give way to individual constitutional rights. The Bishop couple has been in a loving, committed relationships for many years. They own property together, wish to retire together, wish to make medical decisions for one another, and wish to be recognized as a married couple with all its attendant rights and responsibilities. Part A of the Oklahoma Constitutional Amendment excludes the Bishop couple, and all otherwise eligible same-sex couples, from this privilege without a legally sufficient justification.

The Court declares that Part A of the Oklahoma Constitutional Amendment violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution by precluding same-sex couples from receiving an Oklahoma marriage license. The Court permanently enjoins enforcement of Part A against same-sex couples seeking a marriage license. In accordance with the U.S. Supreme Court’s issuance of a stay in a nearly identical case on appeal from the District Court of Utah to the Tenth Circuit Court of Appeals, see Herbert v. Kitchen, U.S. Supreme Court Order in Pending Case 13A687 (Jan. 6, 2014), the Court stays execution of this injunction pending the final disposition of any appeal to the Tenth Circuit Court of Appeals...”

Judge Terence C. Kern, US District Court for the Northern District of Oklahoma, January 14, 2014.

click here to read entire decision

UN Denounces Nigeria

"Even before this Act was signed into law, consensual same sex relationships were already criminalized in Nigeria - violating rights to privacy and to freedom from discrimination, both of which are protected by the Nigerian Constitution, and the International Covenant on Civil and Political Rights, which Nigeria has ratified.

This draconian new law makes an already-bad situation much worse. It purports to ban same-sex marriage ceremonies but in reality does much more. It turns anyone who takes part in, witnesses or helps organize a same sex marriage into a criminal. It punishes people for displaying any affection in public towards someone of the same sex. And in banning gay organizations it puts at risk the vital work of human rights defenders who speak up for the rights of lesbian, gay, bisexual, transgender (LGBT) and intersex people.

Rarely have I seen a piece of legislation that in so few paragraphs directly violates so many basic, universal human rights. Rights to privacy and non-discrimination, rights to freedom of expression, association and assembly, rights to freedom from arbitrary arrest and detention: this law undermines all of them. In addition, the law risks reinforcing existing prejudices towards members of the LGBT community, and may provoke an upsurge in violence and discrimination.

...International human rights law and jurisprudence clearly indicate that States have a legal duty to protect all individuals from violations of their human rights, including on the basis of their sexual orientation. Disapproval of homosexuality by the majority on moral or religious grounds does not justify criminalizing or discriminating against LGBT persons. Indeed, the defence of human rights often requires the State to step in to protect the rights of members of minority communities from the prejudices of the majority.”

United Nations High Commissioner for Human Rights Navi Pillay, January 14, 2014; denouncing new anti-homosexuality law in Nigeria.

Monday, January 13, 2014

Maryland Recognizes Utah Marriages

"I write today in response to your letter, dated January 9, 2014, in which you urge the Attorneys General of the states that recognize same-sex marriages to recognize as valid in their respective states those Utah marriages entered into between December 20, 2013, and January 6, 2014. For the reasons set forth below, I want to make clear that the same-sex marriages recently entered into in Utah are recognized as valid here in Maryland.

We are witnessing a historic change in how the American people regard same-sex marriage. Maryland has been on the forefront of this change since 2010, when I issued my opinion concluding that same-sex marriages that are valid in the state in which they were performed would be recognized as valid here in Maryland. 95 Opinions of the Attorney General 3 (2010). The Maryland Court of Appeals reached the same conclusion in 2012, Port v. Cowan, 426 Md. 435 (2012), as did the people of Maryland, who resoundingly approved a ballot initiative that recognized the validity of same-sex marriages entered into here in Maryland. Since then, the list of states casting off antiquated marriage laws continues to grow.

The marriages at issue here were conducted within Utah in response to the order of the U.S. District Court for the District of Utah, which struck down as unconstitutional yet another such law, this one amending Utah's Constitution to declare that "[m]arriage consists only of the legal union between... a man and a woman." The district court permanently enjoined the state from enforcing this and other provisions of Utah law to the extent they "prohibit a person from marrying another person of the same sex." Kitchen v. Herbert, Memorandum Decision and Order at 53 (No. 2:13-cv-00217-RJS, D. Utah Dec. 20, 2013 ). Although the U.S. Supreme Court, on January 6, 2014, stayed the effect of the district court order pending resolution of the litigation, Herbert v. Kitchen, Order in Pending Case No. 13A687 (Jan.6, 2014), it did not invalidate the marriages that were entered into in Utah during the period of time in which the district court's order was in place. Those marriages were validly entered into, as is reflected in statements that Gov. Herbert and Utah Attorney General Sean D. Reyes have made since the district court's order and recently confirmed. See, e.g., Letter from Gov. Herbert to Cabinet Members (directing state agencies to conduct business in compliance with the federal judge's ruling until such time that the current district court decision is addressed by the 10th Circuit Court)...

Although Utah officials have stated that no new marriages may be solemnized, and that the state would not recognize the already-solemnized marriages for purposes of providing additional state benefits, we are not aware of any court ruling or position of the Utah Attorney General that such marriages are no longer legally valid. In fact, the Utah Attorney General has made clear that the marriages at issue are valid for purposes of providing "proper documentation in states that recognize same-sex marriage." Letter from Attorney General Sean D. Reyes to All County Attorneys and County Clerks in the State of Utah (Jan. 9, 2014)... Because they are valid in the state where solemnized, Maryland law recognizes these marriages as valid in Maryland as well.

It is an affront to the idea of basic human rights that the battle for full marriage equality in this country remains in headlines and courtrooms. Nevertheless, as courts and legislatures accord same-sex couples the dignity and humanity they deserve, we as a nation move closer to fulfilling the Constitution's promise of equal protection of the law. Maryland will continue to recognize valid out-of-state same-sex marriages as we continue to advance that effort wherever and whenever we can."

Douglas F. Gansler, Maryland Attorney General, January 10, 2014; in response to request of Human Rights Campaign.

Friday, January 10, 2014

Feds Recognize Utah Same-Sex Marriages

“Last June, the Supreme Court issued a landmark decision - in United States v. Windsor - holding that Americans in same-sex marriages are entitled to equal protection and equal treatment under the law. This ruling marked a historic step toward equality for all American families. And since the day it was handed down, the Department of Justice has been working tirelessly to implement it in both letter and spirit, moving to extend federal benefits to married same-sex couples as swiftly and smoothly as possible. Recently, an administrative step by the court has cast doubt on same-sex marriages that have been performed in the state of Utah. And the governor has announced that the state will not recognize these marriages pending additional court action. In the meantime, I am confirming today that, for purposes of federal law, these marriages will be recognized as lawful and considered eligible for all relevant federal benefits on the same terms as other same-sex marriages. These families should not be asked to endure uncertainty regarding their status as the litigation unfolds. In the days ahead, we will continue to coordinate across the federal government to ensure the timely provision of every federal benefit to which Utah couples and couples throughout the country are entitled - regardless of whether they are in same-sex or opposite-sex marriages. And we will continue to provide additional information as soon as it becomes available.”  Attorney General Eric Holder, January 10, 2014.

click here to see video of the announcement