Recently in Same-Sex Marriage Category

Perry Poses Problems for Same-Sex Marriage Advocates
5:02 PM ET

JURIST Guest Columnist Kevin Snider, Chief Counsel for the Pacific Justice Institute says that the Ninth Circuit panel in Perry v. Brown unanimously acknowledged that a right to same-sex marriage is not supported by Supreme Court or Ninth Circuit precedent, and that sexual orientation is not a suspect classification according to longstanding case law...

Lost in the respective euphoria and postmortems over the decision of the US Court of Appeals for the Ninth Circuit on Proposition 8 in Perry v. Brown is the importance of the unanimous agreement by the court on two fundamental issues. I pose them as questions: 1. Is there a constitutional right to same-sex marriage? 2. Is sexual orientation — in this case homosexuality — a suspect classification?

Is There a Constitutional Right to Same-Sex Marriage?

Writing for himself and Judge Hawkins, Judge Reinhardt states near the outset what the opinion will not attempt to resolve: "Whether under the Constitution same-sex couples may ever be denied the right to marry ... is an important and highly controversial question ... We need not and do not answer the broader question in this case." Instead, the majority ruled on the narrower grounds that once a state provides a right it cannot take it away. Although that position, stated as an absolute proposition, is an error, this submission will narrowly focus on the two questions stated above.

The majority stated clearly that no fundamental right was at issue. Citing Romer v. Evans, the court asserted that if a law does not "burden a fundamental right" the provision will be upheld if it is rationally related to a legitimate end. From that premise the court found that Proposition 8 did not involve such a right, stating succinctly, that "[s]uch was the case in Romer and it is the case here as well." Not surprisingly, the dissenter, Judge Smith, agreed. Citing Lawrence v. Texas, Judge Smith wrote that "The United States Supreme Court has not recognized that the fundamental right to marry includes a fundamental right to gay marriage."

As noted by both the majority and dissent, this issue has already been before the Supreme Court in Baker v. Nelson. Hence, a federal court of appeals lacks the legal capacity to find a right to same-sex marriage under the US Constitution. It is important to look at the context in which same-sex marriage was handled by the justices of the Supreme Court.

Baker was a case that came from the Minnesota Supreme Court where the US Supreme Court reviewed a denial of a marriage license to two male applicants. The same-sex couple brought a claim under the Equal Protection Clause of the Fourteenth Amendment. Their arguments proved to be a precursor to the same-sex marriage and benefits cases that would be brought in the decades that follow up to and including Perry.

The core thesis espoused by the same-sex couple was as follows: "the right to marry without regard to the sex of the parties is a fundamental right of all persons and that restricting marriage to only couples of the opposite sex is irrational and invidiously discriminatory." However, the Minnesota Supreme Court rejected this argument stating: "We are not independently persuaded by these contentions and do not find support for them in any decisions of the US Supreme Court." The court further opined: "The equal protection clause of the Fourteenth Amendment, like the due process clause, is not offended by the state's classification of persons authorized to marry. There is no irrational or invidious discrimination." Hence, Minnesota's high court, using rational basis analysis, determined that there was no violation of the Equal Protection Clause in reviewing classifications based upon sexual orientation.

Subsequent to that decision, the same-sex couple exercised their rights to the mandatory appeal procedure to the US Supreme Court available at the time. The Court issued a summary affirmance of the decision. Under the procedures of the time, such was a decision on the merits. As a result (as Mandel v. Bradley affirms), lower courts cannot come to "opposite conclusions on the precise issues presented and necessarily decided by those actions." In view of this rule of law, it is not surprising that the one other federal court of appeals confronting the issue of same-sex marriage, the US Court of Appeals for the Eight Circuit in Citizens for Equal Protection v. Bruning, cited among its authorities the summary affirmance in Baker.

In sum, had the Ninth Circuit decided to directly answer the question as to whether same-sex marriage is a fundamental right, the Court would have been obliged to follow Baker. Stated simply, the panel could not have found a constitutional right to same-sex marriage.

Is Sexual Orientation a Suspect Classification?

The authors of both the majority and dissenting opinions also found themselves in agreement on the threshold issue of whether sexual orientation is a suspect classification. Again citing Romer, Judge Reinhardt wrote that "if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification." He then noted that the present case fit that description. Judge Smith agreed, writing that "Proposition 8 does not involve such a suspect classification." Of course, the Supreme Court's position that sexual orientation (defined in Romer as "homosexual, bisexual or lesbian") is not a suspect class is dispositive.

However, even if Romer could feasibly be construed to not speak to this issue — an implausible position — the members of the panel had little choice in coming to the conclusion that "[g]ays and lesbians are not a suspect or quasi-suspect class." This has been the law in the Ninth Circuit for 30 years, as established in Adams v. Howerton. Due to the Adams decision, the Perry court, as a three-judge panel, lacked the authority to overrule a circuit precedent, for, as Robbins v. Carey asserts, "that power is reserved to the circuit court sitting en banc." Further, Adams was not an anomaly in the Ninth Circuit. Three other panels on the circuit came to the same conclusion in High Tech Gays v. Defense Industrial Security Clearance Office, Holmes v. California Army National Guard and Flores v. Morgan Hill Unified School District.

This line of cases does not represent another Ninth Circuit aberration from orthodoxy, for which there have been many. Nine other circuits, covering 12 opinions over the span of more than 25 years, have come to the same conclusion that homosexuals are not a suspect class. Indeed, to date no circuit has come to a contrary conclusion. Because homosexuals do not belong to a suspect class, a sexual orientation claim will receive rational basis review.

The Perry court did not and could not elevate sexual orientation to the same plane as that reserved for race or religion. This is as it should be. By extension, the Ninth Circuit was not at liberty to find a right to same-sex marriage under the Fourteenth Amendment's Equal Protection Clause. Unless the Supreme Court abandons the logic of its own precedents, those who celebrate traditional marriage have reason to be optimistic when Perry comes before the Court.

Kevin Snider is the Chief Counsel at the Pacific Justice Institute. His areas of expertise include constitutional law and civil rights issues, and he is a frequent presenter at various seminars on church law and religious liberties.

Suggested citation: Kevin Snider, Perry Poses Problems for Same-Sex Marriage Advocates, JURIST - Hotline, Feb. 16, 2012,

This article was prepared for publication by Stephen Krug, an assistant editor for JURIST's professional commentary service. Please direct any questions or comments to him at

Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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Petitioner Privacy Rights Lost Amid Marriage Equality Fight
10:12 AM ET

JURIST Guest Columnist Steve Simpson, a senior attorney at the Institute for Justice, says that recent decisions releasing the names of those who signed a petition to place domestic partnership laws on the ballot in Washington state lack a proper examination of the facts of the case and fail protect petitioners' right to privacy...

The US Court of Appeals for the Ninth Circuit recently issued a decision in Doe v. Reed that probably signals the end of the plaintiffs' efforts to protect the identities of those who signed petitions supporting Referendum 71, an anti-domestic partnership measure in Washington state. The decision is a disappointing end to a case that is more noteworthy for the controversy surrounding the underlying issue, same-sex marriage, than for the rule of law regarding petitioners' privacy established in any of the decisions in the case. Perhaps more than anything, the various decisions in the case illustrate a triumph of legal formalism over engaged, fact-based judging.

When the case was decided by the Supreme Court, the issue in Doe was whether the First Amendment prevented Washington state from publicly disclosing the identities of those who signed petitions to place Referendum 71 on the ballot. On the heels of the battle over Proposition 8 in California, the plaintiff in Doe was concerned that if the signatures were released, those who supported placing the referendum on the ballot would suffer harassment and intimidation. The Court addressed the issue narrowly, construing the challenge as a facial attack on the state's authority to require the disclosure of petition signatures at all. Applying precedents that established the state's wide latitude to prevent fraud in elections, the Supreme Court concluded that disclosing the petitions was a legitimate means of verifying signatures. Disclosure in this context, according to the Court, would allow members of the public to essentially verify the state's verification, and thus help identify any invalid signatures.

There may have been some sense to the Court's position if we lived at a time when election officials laboriously pored over long lists of petition signatures by hand. However, as Justice Clarence Thomas pointed out in dissent, in the modern era, this sort of thing is typically done by computer. Indeed, by the time the case reached the high court, the state had performed its normal verification process with little difficulty. The groups that sought the petition signatures did not seem interested in verifying signatures after the fact. In fact, two of them intended to post signers' identities on the Internet so others could confront them about their views on same-sex marriage. Justice Thomas thus rejected the majority's rationale for disclosure, and would have struck down the law allowing public disclosure as a violation of the right to free speech and association.

Despite all this, the Court held that the plaintiffs could still assert an as-applied challenge to disclosure on remand. When the case returned to the district court, the question was whether the plaintiffs could show that the threat of harassment or reprisals to them was sufficient to outweigh the government's interest in disclosure. The district court concluded that disclosure was constitutional, despite the fact that Referendum 71 had gone down to defeat months earlier.

The state made the petitions public, and the plaintiffs appealed to the Ninth Circuit seeking an injunction protecting the petitions from further disclosure. The Ninth Circuit denied the injunction on the grounds that it was likely moot because the signatures had already been disclosed. Judge Smith dissented from the panel's decision, arguing that the issue was likely not moot because there was no evidence that anyone had reviewed the petitions and identified individual names or could do so. Judge Smith also pointed out that there was no hurry to disclose the petitions or harm to the state from preventing disclosure, so the court could easily have granted the injunction while it decided the appeal. Ironically, argued Judge Smith, if the issue was not moot, the court's own decision denying the injunction would make it so by virtually ensuring that the identities of petition signers would be distributed far and wide.

In summary, the Supreme Court upheld public disclosure of petition signatures so the state could verify signatures when it already had an adequate means for doing so without public disclosure, and no one seemed to want the signatures for that purpose. The district court then denied an as-applied challenge to disclosure after the point at which verification of signatures could do any good, because the election was over. The Ninth Circuit capped off a triumvirate of questionable decisions by concluding an injunction after disclosure was moot and ensuring that if it was not, it surely would be soon because of the court's own refusal to reverse that disclosure.

Regardless of one's views on same-sex marriage, the issue of publicly disclosing petition signatures in ballot issue elections deserves better treatment than it received in this case. It is perfectly appropriate for individuals involved in a political battle to confront and criticize their opponents, but it is equally appropriate for their opponents to guard their privacy. Indeed, it is inconsistent to protect the right to vote anonymously, on the one hand, and yet to compel disclosure of one's views on the same issue by allowing the signatures of those who sign petitions to be made public, on the other. As Justice Thomas pointed out in his dissent, states can verify signatures without publicly disclosing them, so disclosure served no valid state interest in this case and could only lead to chilling speech and political participation.

The Constitution was intended to allow the government to function on a practical level, for instance by establishing sensible rules for elections, without trampling individual rights. To properly interpret and apply its provisions, courts must look at both sides of that equation seriously.

Steve Simpson litigates primarily free speech cases for the Institute for Justice (IJ) nationwide, including successful cases before the Supreme Court. He is the author of multiple publications dealing with the First Amendment and has been published in numerous national periodicals. Before working for IJ, Simpson was a litigation attorney for an international firm.

Suggested citation: Steve Simpson, Petitioner Privacy Rights Lost Amid Marriage Equality Fight, JURIST - Hotline, Dec. 14, 2011,

This article was prepared for publication by Leah Kathryn Sell, an assistant editor for JURIST's professional commentary service. Please direct any questions or comments to her at

Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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Proposition 8 Opponents Face Increasing Difficulties
8:12 AM ET

JURIST Guest Columnist Brian Raum, Senior Counsel and Head of Marriage Litigation at the Alliance Defense Fund, argues that the recent California Supreme Court decision on Proposition 8 is just one of many losses for opponents of the amendment that will not bode well for their cause moving forward...

Those seeking to throw out California's marriage amendment have lost yet another round in their lawsuit, Perry v. Brown, and the loss does not bode well for them going into the next hearing before the US Court of Appeals for the Ninth Circuit on Thursday.

On November 17, the California Supreme Court, in a unanimous decision, agreed with the official proponents of Proposition 8 [PDF] and issued a decision which clearly supports their right to defend the amendment on appeal in the Ninth Circuit. The court flatly rejected the plaintiffs' arguments that the amendment should go undefended simply because the California attorney general and the governor refused to defend it.

The court embraced a long-standing practice allowing official proponents of initiatives to defend those initiatives in court when they are challenged. The court explained that the initiative right is "one of the most precious rights of our democratic process" and that it is the duty of the courts to "jealously guard this right of the people." Consequently, the court held that "[n]either the Governor, the Attorney General, nor any other executive or legislative official has the authority to veto or invalidate an initiative measure that has been approved by the voters." That is exactly what would have happened if the plaintiffs had their way.

This is the third time that their position on the law has been flatly rejected by an appellate court. The first time was prior to the Perry trial when the plaintiffs' counsel sought documents related to the internal communications of Proposition 8's proponents — documents which are clearly protected under the First Amendment. Unsurprisingly, then-Chief Judge Vaughn Walker of the US District Court for the Northern District of California permitted them to seek these documents. Proposition 8's proponents were forced to seek an immediate ruling from the Ninth Circuit, which issued a scathing decision rejecting the plaintiffs' arguments and reversing Judge Walker's ruling. Then the plaintiffs supported the unlawful videotaping and transmission of the trial, despite the fact that the court's rules prohibited the broadcast of federal trials. Again, Proposition 8's proponents were forced to appeal. This time the issue went all the way to the Supreme Court, which issued an order on the first day of trial halting the taping and planned broadcast. After Judge Walker issued his unprecedented decision striking down the California marriage amendment, its proponents sought to stay the decision pending appeal. Of course, the plaintiffs objected, and Judge Walker denied the request, only to have the Ninth Circuit grant it days later.

The plaintiffs have been on the wrong side of established law from the beginning of this case. They were wrong on the scope of the First Amendment during pre-trial discovery, they were wrong on the lawfulness of broadcasting the federal trial, they were wrong on whether a stay of Judge Walker's decision was appropriate, and they were wrong about whether the proponents of Proposition 8 had standing to appeal and defend it. So why would anyone think that the plaintiffs are right about the amendment's constitutionality? Every appellate court to have considered claims identical to theirs has rejected those claims — including the Ninth Circuit and the Supreme Court.

The plaintiffs insist that they have a fundamental right marry someone of the same sex, knowing full well that the Supreme Court has held repeatedly that a fundamental right is one that is "objectively and deeply rooted in our nation's history and traditions," and that every time the Supreme Court has articulated the fundamental right to marry, it has been in the context of a man and a woman. They also take the extreme position that there is no legitimate reason whatsoever for marriage to have existed for millennia as the union of a man and a woman. Not only that, they insist that anyone who believes otherwise is irrational — "anyone" includes dozens of judges, hundreds of legislators, and millions of Americans who have voted to preserve marriage.

Clearly, the only thing that is irrational is to make such an argument. Those who are pursuing so-called "marriage equality" would do well to better respect those who believe in "marriage integrity."

Brian Raum is Senior Counsel and Head of Marriage Litigation for the Alliance Defense Fund, a US-based organization committed to defending religious freedom. He also is a member of the legal team that is defending Proposition 8 in Perry v. Brown.

Suggested citation: Brian Raum, Proposition 8 Opponents Face Increasing Difficulties, JURIST - Hotline, Dec. 6, 2011,

This article was prepared for publication by Stephen Krug, an assistant editor for JURIST's professional commentary service. Please direct any questions or comments to him at

Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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Same-Sex Marriage Law Reflects Suquamish Tribal Values
4:09 PM ET

Leonard Forsman, Chairman of the Suquamish Tribe, says that the tribe's decision to recognize same-sex marriage reflects the community's high value on inclusiveness and the fact that homosexuality historically has not been a divisive issue in the tribe...

Last month, the Suquamish Tribal Council amended its existing Marriage and Divorce Ordinance to permit marriages regardless of the couple's gender. The amendment passed by a unanimous vote of the council and allows same-sex couples to receive the same treatment and benefits as opposite-sex couples. At least one person entering the marriage must be an enrolled member of the Suquamish Tribe. The amendment also provides for tribe members in civil unions entered in recognized jurisdictions to convert the union into a Suquamish Tribal marriage.

The issue of sexual orientation is not controversial in the Suquamish community. I have found no mention of sexual orientation as an issue in my research of the Tribe's oral history or in non-Indian archival data. Some elders have stated that traditional views on same-sex interactions suggested that these individuals may have possessed unique spiritual associations. Research indicates that sexual orientation was probably not an area of great moral concern or discussion in Suquamish society before interaction with non-Indians. That same cultural value remains within the community today.

This tribal community of 1,050 members is sensitive to discrimination. Many members have experienced mistreatment based on race in their own lifetime, so the council understands the importance of ensuring that tribe members do not face discrimination in their own tribal laws, including due to sexual orientation. Tribe members view the amendment as an expression of the high value they place on inclusiveness and acceptance of diverse views within our community. This amendment embodies the Suquamish people's ultimate exercise of its inherent right as a sovereign government to address the essential social question of whom Suquamish Tribe members can choose to marry.

Leonard Forsman is the Chairman of the Suquamish Tribe, located on Port Madison Indian Reservation in Puget Sound in Washington state. Forsman served on the Tribal Council for fifteen years and has been the elected Chairman since 2005. He holds a bachelor's degree in anthropology from the University of Washington and a master's degree in historic preservation from Goucher College. He is the former director of the Suquamish Museum and worked as a professional archaeologist for over a decade for a private consulting firm.

Suggested citation: Leonard Forsman, Same-Sex Marriage Law Reflects Suquamish Tribal Values, JURIST - Hotline, Sept. 14, 2011,

This article was prepared for publication by Edward SanFilippo, an associate editor for JURIST's professional commentary service. Please direct any questions or comments to him at

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Montana Precedent and the Rights of Same-Sex Couples
12:09 PM ET

Betsy Griffing, Legal Director of the American Civil Liberties Union of Montana, argues that despite a constitutional amendment banning same-sex marriage in Montana, the equal protection guarantees of the state constitution and Montana Supreme Court precedent require the recognition of same-sex couples short of marriage...

In Donaldson and Guggenheim v. Montana, the American Civil Liberties Union of Montana and the National ACLU sued on behalf of six same-sex couples seeking legal recognition of their long-term committed relationships. Montanans had amended the Montana Constitution to define marriage as between a man and a woman, but that amendment does not prevent analyzing the claims under either the equal protection or privacy clauses of the state constitution.

The suit explains that the statutory scheme granting protections, obligations and benefits to one set of couples (opposite sex couples who can marry) but excluding a similarly situated set of couples (committed same-sex couples who cannot marry) violates equal protection and privacy rights under the Montana Constitution. Strict scrutiny should be applied to that statutory scheme, and there is no compelling state interest supporting this discrimination.

With respect to the privacy claim, the right to choose a life partner and protect a family relationship is integral to the express right of privacy contained in the Montana Constitution. That right of privacy includes the right to substantive protections which, at the very least, require the state take some affirmative action to acknowledge and support the domestic partnership or family unit. The express right of privacy, coupled with the right to human dignity provision in the Montana Constitution, forms the basis for legal recognition of same-sex couples who are similarly situated to married couples.

Along with these progressive state constitutional provisions, Montana has a history of recognizing that same-sex relationships are entitled to a modicum of protection under the equal protection and privacy clauses. In Gryczan v. Montana, the Montana Supreme Court invalidated the state's sodomy law six years before the US Supreme Court invalidated a similar Texas law in Lawrence v. Texas. In Gryczan, the Montana Supreme Court recognized the expansive protections of Article II, § 10 of the Montana Constitution, which states that the "right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest." Because the right of privacy is explicit, it afforded greater protections than those provided under the US Constitution. The Gryczan Court held the statute criminalizing same-sex sexual conduct violated the personal autonomy component of this fundamental privacy right.

In Snetsinger v. Montana University System, the Montana Supreme Court reviewed a university policy that allowed opposite-sex unmarried couples to have health insurance coverage, but denied same-sex unmarried couples such coverage. The Court held that the policy violated the state's Equal Protection Clause. Most recently, in Kulstad v. Maniaci, the Court reviewed the state third-party parenting statute that allows someone other than the adoptive or natural parents to establish a parental interest with the child. A lesbian couple had adopted two small children, but only one had her name on the adoption certificate. The Court affirmed the constitutionality of the statute, recognizing the parental interest in the non-adoptive parent.

With these foundational cases, the ACLU filed suit in state district court on behalf of six same-sex couples, each in long-term committed relationship and willing to enter into a domestic partnership arrangement if it were provided by the state of Montana. We argued that the provision in the state constitution defining marriage as between one man and one woman could not be construed to limit the equal protection and privacy clauses, and therefore was restricted to only sanctioning the designation of marriage. The state trial court dismissed the case, however, focusing on one of the remedies that was requested — an order to the state of Montana to offer the same-sex couples a legal status through a domestic partnership scheme. The trial court held that such an order violated separation of powers principles, and while the marriage amendment would not preclude challenges to individual statutes, it bolstered the court's reluctance to engage in a broad review of the statutory scheme.

The case is currently on appeal to the Montana Supreme Court, with briefing to be done this fall. The Court should continue its recognition of the protections afforded all Montanans under its state constitution and determine that it can provide relief for the ongoing injuries experienced by same-sex couples in Montana.

Betsy Griffing has been the Legal Director of the American Civil Liberties Union of Montana for five years. She has been practicing law in Montana for over 30 years, with a focus on constitutional law. Griffing has also taught Montana constitutional law at the University of Montana School of Law for seven years.

Suggested citation: Betsy Griffing, Montana Precedent and the Rights of Same-Sex Couples, JURIST - Hotline, Sept. 13, 2011,

This article was prepared for publication by JURIST's professional commentary editorial staff. Please direct any questions or comments to them at

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New York Marriage Bill Does Not End Legal Discrimination
4:07 PM ET

Ashley Dunn, Staff Attorney at Gay & Lesbian Advocates & Defenders, argues that despite the legalization of same-sex marriage in New York, legal discrimination remains in the form of federal legislation and the increasing trend of broad religious exemptions...

The efforts of both parties and the tireless work of advocates on the ground which led to the passage of legislation bringing marriage equality to New York last week must be applauded. It is no doubt an important step forward in the movement. However, we cannot forget the pervasive discrimination that LGBT people, including those who will take advantage of the freedom to marry in New York, still face in its wake.

While different-sex couples who marry can expect automatic eligibility for spousal protections from many federal programs, including Social Security, family health insurance, and family medical leave, same-sex couples who marry are categorically excluded from these critical legal safety nets because of the Defense of Marriage Act (DOMA), which defines marriage as between one man and one woman for all federal purposes. There are several ongoing lawsuits challenging DOMA's constitutionality, including Gill v. Office of Personnel Management. In that case, Judge Joseph Tauro of the US District Court for the District of Massachusetts ruled that DOMA's wholesale refusal to recognize the marriages of same-sex couples violates the constitutional guarantee of equal protection under the law. The case is currently on appeal in the US Court of Appeals for the First Circuit. While President Obama and the Department of Justice decided they could no longer defend the constitutionality of this blatantly discriminatory law in February, it will remain in effect until repealed by Congress or a final resolution is issued by the Supreme Court.

Additionally, across the country, there has been an increasing trend of including ever-expanding religious exemptions within marriage equality and civil union laws, and New York is no exception. Exempting clergy from solemnizing same-sex marriages is harmless, albeit redundant. However, these new religious exemptions propose to do far more—perhaps more than people tend to realize. The language of New York's marriage equality legislation provides that religiously affiliated and benevolent organizations may take "such action as is calculated ... to promote the religious principles for which it is established or maintained." In essence, the law enshrines discrimination. While it is unclear exactly what the ramifications of such a provision will be, there is concern that it allows religious organizations to choose not to recognize the legal marriages of same-sex couples. For example, a Catholic hospital could choose not to allow a woman to make medical decisions on behalf of her wife, and a Catholic university could deny family medical leave to gay employees.

Even more troubling is the final clause of New York's marriage equality legislation which essentially works as a "poison pill" for any same-sex couple who would challenge the constitutionality of these discriminatory practices in litigation—it contains a severability provision providing that if a court declares any part of the legislation to be invalid, the "remainder of this act shall be invalidated" as well. Therefore, if any part of the religious exemption language is successfully challenged in court, marriage equality will disappear in New York.

Thus, while the passage of marriage equality in New York is a momentous occasion, it does not bring an end to the discrimination faced by same-sex couples in the Empire State.

Ashley Dunn is a graduate of Harvard Law School. Before joining GLAD, she was a legal fellow from the New York law firm Dewey & LeBoeuf LLP. Dunn has previously worked in Pittsburgh for the Office of the United States Attorney for the Western District of Pennsylvania and the Department of Economic Development in Allegheny County.

Suggested citation: Ashley Dunn, New York Marriage Bill Does Not End Legal Discrimination, JURIST - Hotline, July 1, 2011,

This article was prepared for publication by JURIST's professional commentary editorial staff. Please direct any questions or comments to them at

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Passage of New York Marriage Bill a Vote of Conscience
2:06 PM ET

Sarah Warbelow, State Legislative Director for Human Rights Campaign, argues that the passage of same-sex marriage legislation in New York coincides with changing attitudes about same-sex marriage nationally, despite ongoing efforts across the country to prevent similar legislation elsewhere...

Last week, the New York state legislature passed legislation legalizing marriage for same-sex couples, making it the sixth state in the nation, in addition to the District of Columbia, where gay and lesbian couples have the freedom to wed. The State Senate's passage of the bill late Friday night came after a long week of deadlock, with 31 senators publicly in favor of the bill and 31 others opposed or still undecided about their votes. In the end, it was a bipartisan effort led by Governor Andrew Cuomo that brought the bill to the floor, and the courage of senators on both sides to break with their parties and vote with their conscience that lead to the bill's final passage.

New York's "conscience vote" was a refreshing change. In recent months and years, marriage bills in other states have fallen victim to party line votes, often with little to no substantive discussion. Just a few short months ago, a Colorado civil unions bill was defeated on a party line vote after opponents inaccurately claimed that a vote for civil unions was a vote for same-sex marriages. In contrast, the effort in New York was bipartisan from the beginning, with Democrats and Republicans meeting frequently to discuss concerns and negotiate language in the bill. In the end, four Republicans joined 29 Democrats to pass the measure and made marriage equality in the Empire State a reality.

New York is now the largest state to allow same-sex couples to wed, and passage of the bill effectively doubled the number of Americans who live in a place where same-sex marriage is legal (about 11 percent of the total population). New York joins Connecticut, Iowa, Massachusetts, New Hampshire and Vermont, and the District of Columbia as the seventh US jurisdiction where such marriages are now allowed.

Passage of the bill coincided with recent changes in public sentiment about same-sex marriage, both in New York and nationally. In New York, just 37 percent of the state's residents supported allowing same-sex couples to wed in 2004, but this year polls showed that support jumped to 58 percent. Nationally, a Gallup poll released in May showed that for the first time, a majority of Americans (53 percent) support same-sex marriage.

Advocates are hopeful that the victory in New York will keep the momentum going for other states seeking marriage equality. In Maryland, the House Committee retracted a same-sex marriage bill in the current legislative session with the hopes of preserving it for passage in the 2012 session. In Minnesota, proponents of marriage equality will be fighting a proposed constitutional amendment on the 2012 ballot which seeks to limit the definition of marriage to a union between one man and one woman. Finally, same-sex marriage supporters in Maine announced this week that they plan to collect signatures to put the issue of same-sex marriage on the ballot there in 2012. With the lessons of New York in mind, advocates are optimistic that the freedom to marry the person you love is closer than ever to becoming a reality nationwide.

Sarah Warbelow works with state and local legislators and lesbian, gay, bisexual and transgender advocacy organizations in pursuing their legislative priorities. Previously, Warbelow served as the program manager for the American Association of University Women Foundation Legal Advocacy Fund, specializing in education and employment discrimination law.

Suggested citation: Sarah Warbelow, Passage of New York Marriage Bill a Vote of Conscience, JURIST - Hotline, June 30, 2011,

This article was prepared for publication by JURIST's professional commentary editorial staff. Please direct any questions or comments to them at

Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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New York Marriage Bill Suffers From Procedural Infirmities
4:06 PM ET

William Duncan, Director of the Marriage Law Foundation, argues that whether or not same-sex marriage is a beneficial public policy, the New York legislation sets a bad precedent and is possibly unconstitutional under the state constitution due to violations of procedural requirements...

Putting aside the merits of the recently enacted law creating same-sex marriage in New York, the way it was approved raises some important legal questions; specifically about the application of two constitutional provisions to the unconventional process of the amendment's passage in the Senate.

First, Article III, section 14, of the New York Constitution provides:

No bill shall be passed or become a law unless it shall have been printed and upon the desks of the members, in its final form, at least three calendar legislative days prior to its final passage, unless the governor, or the acting governor, shall have certified, under his or her hand and the seal of the state, the facts which in his or her opinion necessitate an immediate vote thereon.
Not only was Assembly Bill 8520 not available 72 hours before the vote last Friday, it was not public until earlier that same day. Of course, proponents claim this procedure was "necessary" but wanting to get a favored bill passed quickly does not seem to be the type of "necessity" contemplated by the Constitution. The New York Court of Appeals explained this constitutional requirement in Schneider v. Rockefeller: "The clear purpose of this provision is to prevent hasty and careless legislation, to prohibit amendments at the last moment, and to insure that the proposed legislation receives adequate publicity and consideration." It may be that courts will not want to examine the sufficiency of the governor's determination of necessity, but that should not insulate the determination from public criticism and debate. The governor's certification of the reasons for the quick procedure should be made readily available immediately.

Second, Article III, section 10 requires: "The doors of each house shall be kept open, except when the public welfare shall require secrecy." Senator Kevin Parker revealed after the vote that the members were locked in the chamber. It is possible, of course, to read the open door requirement as merely an openness provision that would be met by televising the proceedings, but it is troubling that this part of the Constitution was not more carefully adhered to. The requirement of openness was more blatantly violated in other instances. The story reporting on Senator Parker also explained: "Bill Mahoney of the New York Public Interest Research Group was told by two state troopers that the public was not allowed into committee meetings. Mahoney informed them that this was illegal and they responded they were just following orders."

Other procedural irregularities, such as the failure to allow senators to speak to the bill or to allow the bill to be laid aside for debate are also relevant to this discussion. It has been reported that the governor was anxious for a quick resolution in order to allow the vote to be reported on the 11 o'clock news. This may be a politically savvy course but it does not necessarily comport with the law and these questions ought to get more attention and the actions of the governor and his Senate supporters deserves scrutiny.

At the very least, the procedure for passage of same-sex marriage in the New York Senate contravenes the principles underlying the constitutional provisions noted above. Those provisions attempt to secure an open, transparent and deliberative process. By contrast, the procedure followed to get the same-sex marriage bill through as quickly as possible was characterized by secrecy, curtailed discussion and top-down control. The important changes to the bill's religious exemption were not only not explored at any length, but the attempt of Senator Ruben Diaz to ask questions about these provisions (which had only become public a few hours before) was completely foreclosed.

However one comes down on whether same-sex marriage is good public policy, its passage in New York clearly sets a bad precedent, perhaps rendering its enactment illegal.

William Duncan formerly served as acting director of the Marriage Law Project at the Catholic University of America Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at Brigham Young University J. Reuben Clark Law School, where he was also a visiting professor.

Suggested citation: William Duncan, New York Marriage Bill Suffers From Procedural Infirmities, JURIST - Hotline, June 29, 2011,

Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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