Voter ‘animus’ to be issue in Calif marriage case
When the U.S. Supreme Court overturned an amendment to the Colorado Constitution that outlawed discrimination protections for gay people, same-sex couples could not enter into civil unions or domestic partnerships anywhere in the nation, much less get married. But as they seek to persuade a federal judge to strike down California’s ban on gay marriages, lawyers for two unmarried gay couples are using that 13-year-old decision as their road map — one they expect will eventually lead the high court to take up the marriage issue. In the Colorado case, Romer v. Evans, the Supreme Court majority held that voters’ dislike of gays and the laws that several cities had approved to shield them from bias motivated the state amendment. Such “animus,” it said, was incompatible with the section of the U.S. Constitution that requires the government to treat its citizens equally absent a compelling reason to do otherwise. The attorneys behind the challenge to California’s Proposition 8 plan to argue during a pretrial hearing Thursday that by stripping gays of the right to wed, the voter-approved ban runs afoul of America’s founding framework in the same way — and for the same reason. “Romer is a strikingly similar situation to what we have here. You had a ballot initiative, a majority vote of the people, taking away a right,” said Theodore J. Boutrous Jr., a member of the legal team led by former U.S. Solicitor General Theodore Olson and veteran trial lawyer David Boies. “And there was no justification or rationale other than disapproval by that majority of that group.” U.S. District Chief Judge Vaughn R. Walker on Tuesday issued a tentative order to fast-track the case in his San Francisco court. Among the questions he said he wants covered at trial are whether sexual orientation is unchangeable, if permitting same-sex marriage “destabilizes” traditional unions and whether Proposition 8’s ballot history demonstrates the measure had “discriminatory intent.” California Attorney General Jerry Brown, a defendant in the case, has sided with gay rights advocates and declined to defend the ban, which overturned a California Supreme Court ruling that had legalized same-sex marriages. The state Supreme Court five weeks ago upheld the measure, saying it represented a valid exercise of voters’ authority to amend the California Constitution. Proposition 8’s sponsors, a coalition of religious conservative groups called Protect Marriage, has been given permission to intervene in the federal case. In court papers, the group’s lawyers rejected the assertions that anti-gay attitudes fueled the November measure and that the 1996 Colorado case was applicable. “Nothing in California law, either Proposition 8 or otherwise, indicates that Californians harbor animus towards gay and lesbian individuals,” they wrote. Since the U.S. Supreme Court’s 6-3 decision, attorneys for gay rights and Christian conservative groups have debated whether the Romer decision could be used to expand gay rights. The ruling marked the first time the Supreme Court determined that the Constitution’s equal rights guarantees extended to gays and lesbians. “The basic point of Romer is that government cannot ever act out of hostility toward a group of people, and whether that is in the context of marriage or anti-discrimination law, the point carries over,” said Suzanne Goldberg, who worked on the case and now directs Columbia Law School’s Sexuality and Gender Law Program. The ruling has been cited, though so far unsuccessfully, in past challenges to gay marriage bans in Nebraska and Florida. At the same time, gay rights groups mostly have shied away from pursuing federal marriage cases in favor of pursuing marriage rights in state courts. Legal observers on both sides of the debate agree, however, that California’s Proposition 8 presents novel questions that could make the issue ripe for federal action.
San Francisco Chronicle
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Same-Sex Unions Supplant Abortion As Social Priority for Conservatives In Fight Over High Court Pick
As President Obama prepares to name his first Supreme Court justice, conservatives in Washington are making clear that his nominee will face plenty of questions during the confirmation process on the legal underpinnings of same-sex marriage.
In addition to shedding more light on the nation’s most contentious unfolding social drama and legal frontier, Senate Republicans say the debate could provide a road map to an Obama nominee’s judicial philosophy.
“It may reflect the degree to which they think that they’re not bound by the classical meaning of the Constitution, and that they may want to let a personal agenda go beyond what the law said,” said Sen. Jeff Sessions (Ala.), the senior Republican on the Senate Judiciary Committee.
Questions on social issues in confirmation hearings have tended for the past 30 years to focus squarely on abortion, with partisans from both sides poring over a nominee’s writings and rulings and presidents typically denying that any “litmus test” was employed in the selection.
Same-sex marriage carries the same freighted potential to dominate a hearing, conservatives say.
“It is now the flash point where politics and law meet. That flash point used to be abortion. I don’t think anybody thinks that’s going to be the flash point in this nomination,” said William A. Jacobson, a Cornell University law professor and conservative blogger.
Sen. Orrin G. Hatch (Utah), another GOP member of the Judiciary Committee, said conservatives are particularly eager to avoid a Supreme Court ruling akin to the 1973 Roe v. Wade decision, which legalized abortion nationwide and has divided the country ever since. “I don’t think members of the court, or any of us, ever want to see a decision like that again,” Hatch said. Obama assured the senator in a recent meeting that he will not pick a “radical” to replace Souter, but Hatch added: “Presidents always say that. That’s why we have the hearing process.”
Same-sex marriage gained national resonance in the wake of last month’s Iowa Supreme Court ruling that legalized the practice in that state. And in the two weeks since Justice David H. Souter announced his retirement, Maine also legalized same-sex marriage, becoming the fifth state to do so; the New Hampshire legislature sent a marriage-equality bill to the governor; the New York State Assembly approved gay-marriage legislation; and the District of Columbia voted to recognize same-sex marriages performed elsewhere.
Those actions, in so short a time, have outstripped the ability of Democrats in Washington to stake out their public position on the issue. MORE at Washington Post
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Gay-marriage backers target New England
Two New England states have already legalized same-sex marriage, and a Boston-based advocacy group wants to see the other four join them.
Gay and Lesbian Advocates and Defenders, known as GLAD, has launched a first-of-its-kind regional campaign aimed at winning approval for same-sex marriage in the six-state New England region by 2012.
Same-sex marriage is already legal in Connecticut and Massachusetts, a result of court decisions in cases brought by GLAD lawyers. The 2003 Massachusetts decision was the first in the nation, while the Connecticut ruling went into effect Nov. 12.
“We can make New England a marriage-equality zone by strategically combining existing legal, electoral and on-the-ground know-how to fast-track marriage in every New England state,” GLAD Executive Director Lee Swislow said.
“By 2012, we not only can have marriage equality throughout New England, we can have a road map for the rest of the country,” she said.
See Gay-marriage backers target New England
Washington Times - Washington,DC,USA
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