DOMA Challenges Headed to the Supreme Court

The Bipartisan Legal Advisory Group of the U.S. House of Representatives (BLAG), Intervenor-Defendant, filed a petition for certiorari with the Supreme Court on June 29, seeking review of the 1st Circuit's decision in Commonwealth of Massachusetts v. U.S. Department of Health and Human Services, 2012 WL 1948017 (May 31, 2012), petition for cert. filed sub nom BLAG v. Gill (June 29, 2012). The 1st ...

Leonard Link • Jul 9, 2012

What's Going on With Canadian Marriages?

To suddenly be told by the Canadian government that they are not valid, at least under Canadian law, is a very disruptive and destructive development, if it is upheld. Fortunately, there is no need for the court to go there if it wants to dismiss the divorce petition, since the lack of Canadian residency by either of the parties to the same-sex marriage would be sufficient grounds to do so, unles...

Leonard Link • Jan 12, 2012

Alaska Judge Says Gay Couples Suffer Constitutional Injury on Senior Real Property Tax Exemption

On September 19, 2011, Anchorage District Superior Court Judge Frank A. Pfiffner released a ruling that the state of Alaska and municipality of Anchorage were violating the equal protection requirements of the Alaska Constitution by maintaining a senior real property tax exemption program that discriminates against same-sex couples. The decision in Schmidt v. State of Alaska, Case No. 3AN-10-9519...

Leonard Link • Sep 26, 2011

The Next Gay Rights Case for the U.S. Supreme Court?

While there has been plenty of speculation that the U.S. Supreme Court will have to address the constitutionality of Section 3 of the Defense of Marriage Act, or the constitutional right of same-sex couples to marry, sometime in the next few years, it seems likely that another important gay rights case may get to the court sooner. Today Lambda Legal filed a petition seeking Supreme Court review o...

Leonard Link • Jul 12, 2011

Gay Rights Developments Come Fast and Furious

Here's some confusion yet to be resolved under New York's tax law as a result of the passage of the Marriage Equality Act. The Tax Law provides that individual income tax filers use their federal filing status for their state return. Since the federal government does not recognize same-sex marriages and will reject joint-filing by same-sex married couples, such couples must use the "single" fili...

Leonard Link • Jul 8, 2011

Marriage Equality in New York - A Triumph of Political Will

Much of the media attention and public comment surrounding the "religious exceptions" focused on what should have been a non-issue: whether religious officials and entities were sufficiently protected from liability in case they refused to perform religious marriage ceremonies for same-sex couples and refused to make their facilities and services available for ceremonies solemnizing same-sex marri...

Leonard Link • Jun 29, 2011

Wisconsin Circuit Judge Rejects Challenge to State Domestic Partnership Registry Law

An important part of Judge Moeser's analysis concerned a detailed examination of the legislative history of the amendment. He found that throughout its consideration in the legislature and the resulting campaign, it was clear that the proponents sought to ban same-sex marriages and Vermont-style civil unions, which carried virtually all the state law rights of marriage. Thus, the phrase "identic...

Leonard Link • Jun 23, 2011

20 Bankruptcy Judges Issue Joint Opinion Holding DOMA Section 3 Unconstitutional as Applied to Bankruptcy Cases

So twenty bankruptcy judges in California have now joined with a handful of other federal trial judges around the country to throw down the gauntlet to Congress and reject the authority of Section 3 of DOMA as a basis to discriminate against same-sex married couples. It will be interesting to see whether Speaker Boehner and his majority in the House Advisory Group (which consists of the Speaker p...

Leonard Link • Jun 14, 2011

The Anti-DOMA Heresy Spreads - Another Bankruptcy Judge Heard From

Another U.S. Bankruptcy Court judge has rejected a DOMA-based motion by the U.S. Trustee to dismiss a joint bankruptcy filing by a married same-sex couple. In In re Ziviello-Howell, Case No. 11-22706-A-7 (May 31, 2011), Judge Michael S. McManus of the U.S. Bankruptcy Court for the Eastern District of California, finding that the case before him was "substantially similar" to In re Somers, 2011 WL...

Leonard Link • Jun 12, 2011

Obama Administration opines on same-sex couples and Medicaid

These instances spelled out in the letter may seem highly technical and not significant in the grand scheme of themes, but for people affected by these situations, they are quite important. The Medicaid letter is another in a long and growing list of instances in which the Obama Administration has undertaken to reinterpret existing law and regulations in a way that recognizes the existence of sam...

Leonard Link • Jun 12, 2011

Wyoming Supreme Court Says Same-Sex Married Couples Can Get Divorced There

In a footnote, Justice Golden stressed the narrowness of the ruling: "Our analysis is expressly limited to the issue before us. Nothing in this opinion should be taken as applying to the recognition of same-sex marriages legally solemnized in a foreign jurisdiction in any context other than divorce. The question of recognition of such same-sex marriages for any other reason, being not properly b...

Leonard Link • Jun 12, 2011

Startling New Development on Same-Sex Couples and US Immigration

Is it possible that A.G. Holder is looking for a theory that would avoid the application of DOMA for committed same-sex couples? Might it be argued that the BIA inappropriately applied DOMA in this case when the couple in question are not married and not claiming to be married, but are presenting a different status - civil union - for the consideration of Immigration authorities? ...

Leonard Link • May 6, 2011

Federal Judge Invites Another DOMA Challenge

However, White concluded, if Golinski would file an amended complaint raising the constitutionality issue, he could get to the merits and acting as an Article III judge he would then have the authority to make a determination on the merits of Golinski's claim as to her wife's benefit entitlement and award appropriate relief. "Because the Court cannot find as a matter of law that amendment would b...

Leonard Link • Mar 23, 2011

Obama Administration Continues to Oppose Suit for Benefits for Federal Court Employee's Same-Sex Spouse

Attached to the response was a copy of a letter to Speaker Boehner, sent on Friday, following up on Wednesday's notification letter with a list of pending cases in which Section 3 is under challenge and in which Congress may want to field counsel to defend the law. Ten cases are listed, in various pretrial or appellate stages with numerous deadlines pending, some within weeks. If the House wants...

Leonard Link • Mar 3, 2011

Obama Administration Declines to Defend Constitutionality of Section 3 of the Defense of Marriage Act

Usually the Justice Department will defend statutes that are challenged in lawsuits against the government, and the Obama Administration has invoked the customary practice to justify its defense of DOMA (as well as the "Don't Ask, Don't Tell" statute) in pending lawsuits. However, says Holder, when the President and DOJ become convinced that a statute is unconstitutional and that there are no lon...

Leonard Link • Feb 25, 2011

The Proposition 8 Argument in the 9th Circuit on December 6

The court gave no indication at the conclusion of the argument about when they would rule, but it was widely expected that the decision would come relatively quickly, since a stay is in effect and if the court finds a constitutional violation, then every day the stay continues works an irreparable injury - a deprivation of constitutional rights. Also, if, as seems possible, the court finds that th...

Leonard Link • Dec 8, 2010

Just What We Don't Need -- Copycat Marriage Litigation!

Do they think that because a federal trial judge in San Francisco declared Proposition 8 unconstitutional, they can just run into any federal district court and get an injunction against their state? Did they stop paying attention to the news and not realize that Judge Walker's decision is stayed pending appeal? And that Wyoming is not in the 9th Circuit, so even a positive ruling by the court o...

Leonard Link • Aug 26, 2010

Can the Proponents of Proposition 8 Appeal Judge Walker's Ruling?

So where does this leave us? A strong indication from the Supreme Court that initiative proponents whose efforts result in the enactment of laws or constitutional amendments generally do not have standing to participate as parties in subsequent litigation concerning their constitutionality, and are even less likely to be found to have standing to appeal an adverse ruling on constitutionality if t...

Leonard Link • Aug 11, 2010

NJ Marriage Case Hits a Speed Bump

The problem, of course, is that the court's ruling means that the only way to challenge the Civil Union Act in court is to initiate a new action in the Superior Court, hoping to push things forward quickly to compile a factual record and, perhaps, a ruling that the Civil Union Act is unconstitutional, which the state would undoubtedly appeal (can any one doubt that Gov. Christie would demand an ap...

Leonard Link • Jul 27, 2010

ACLU Opens Up a New Front in the Battle for Equal Rights for Same-Sex Couples

Today the ACLU announced new test-case litigation in Montana, seeking a court order to the state to establish a domestic partnership system for same-sex couples. This was the first affirmative test-case state constitutional litigation to be filed in a state that has an anti-gay marriage amendment in place specifically seeking an equal status to marriage for same-sex couples. It marks a new appro...

Leonard Link • Jul 27, 2010

9th Circuit Explains Reversal of Discovery Order in Prop 8 Litigation

If a 1st Amendment privilege was raised, the burden on the Plaintiffs would be high to show their need for this information. In this case, the court said, to prove their point about bias the pPaintiffs could rely on expert testimony and about evidence of the campaign tactics that were visibly deployed by the Proponents. There was no need to delve into and seek disclosure about internal communica...

Leonard Link • Dec 18, 2009

Judge Refuses to Stay Discovery in Prop 8 Case

In their motion, they argued that they needed a stay pending appeal of Walker's order because once the information was "disclosed" it could never be "un-disclosed," so they should not be required to disclose it until an appellate court had rejected their arguments. Walker disagreed with this reasoning, evidently. (I've not seen a written opinion, just the newspaper report.) One of the tests for...

Leonard Link • Oct 27, 2009

Discovery Dispute May Delay Trial in Prop 8 Case

A dispute about a discovery demand in the pending federal lawsuit challenging the constitutionality of California Proposition 8 may delay the trial in the case, which has been scheduled to begin in January. The attorneys for the Proposition 8 Official Proponents are asking U.S. District Judge Vaughn R. Walker to stay discovery while they ask the U.S. Court of Appeals for the 9th Circuit to reverse...

Leonard Link • Oct 12, 2009

Back to Square one for California DOMA Challenge

This dismissal is merely a speed-bump, since clearly the federal district court would have jurisdiction over a case filed directly in that court. Furthermore, at the very least I think it should be possible for Smelt and Hammer to file a suit that appropriately alleges some deprivation of rights under federal law attributable to Section 3 of DOMA....

Leonard Link • Aug 26, 2009

Proposition 8 Lawsuit on a Fast Track - January 11 trial date set

Of course, when one takes this together with the profile of Ted Olson published this morning in The New York Times, it is clear that the goal of this case is to establish that denying the right to marry to same-sex couples violates the 14th Amendment. If Olson and Boies can get the federal courts to hold that way, then all the state constitutional amendments and DOMA statutes - barriers to same-s...

Leonard Link • Aug 19, 2009

The Government's New DOMA Brief

In the original motion brief, they argued that DOMA was not discirminatory, but was merely an attempt by Congress to be "neutral" in the ongoing controversy over same-sex marriage. They no longer argue that DOMA is not discriminatory. That would be pretty hard to do when your supremo boss, POTUS himself, has said publically that DOMA is discriminatory. But they persist in arguing that in light ...

Leonard Link • Aug 17, 2009

Has Obama Administration Gone Over to the Dark Side in LGBT Issues?

I think now that we are half a year into the new administration, it is past time for Obama and Holder to start showing some leadership on the issues where the campaign made specific pledges. It is time for the administration to move on DADT and DOMA, and not to sit back and wait for events to develop. And it certainly is not time to mount an aggressive, and in some respects homphobic-sounding, d...

Leonard Link • Jun 14, 2009

The Maine Marriage Law

According to Maine practice, the law goes into effect 90 days after the legislature adjourns. The legislature usually meets well into June, according to press reports, so that would put the effective date sometime in September. From the date the legislature adjourns, the opponents of same-sex marriage in Maine will have 90 days to gather sufficient signatures to put a repealer on the ballot. Ac...

Leonard Link • May 7, 2009

Justice David Souter retirement from Supreme Court unlikely to shift balance of court on LGBT legal issues

It seems unlikely that President Barack Obama would nominate a new justice to the Souter/Brennan seat whose views on LGBT issues - equal protection, due process/privacy, freedom of speech and association - would differ significantly from those of Justice Souter. The LGBT issues most likely to come before the Court over the next few years would include the military "don't ask, don't tell" policy if...

Leonard Link • May 1, 2009

Do people realize how complicated life has become for some same-sex couples caught up in the marriage wars?

One of the problems imposed on same-sex couples because of the Defense of Marriage Act and the widespread refusal of other states to recognize same-sex marriages contracted in those states that allow them (or contracted in other countries, such as Canada, where hundreds of US-resident same-sex couples have wed since 2003) is the inability to get divorced. Look at the Rhode Island situation, where...

Leonard Link • Apr 16, 2009

Delayed Gratification for Same-Sex Marriage Enthusiasts in Iowa

A syndicated column by Cal Thomas, a conservative, generally anti-gay, commentator, published in newspapers this week, suggests that the fight against "gay marriage" is lost, and that at this point conservative "family values" types should probably be focusing their attention on preventing easy divorce if they want to bolster traditional families. I think the Iowa decision is causing the more tho...

Leonard Link • Apr 9, 2009

Our Radical Left-Wing Pro-Gay Judges - Who Is Appointing These People?

So, the state supreme court justices who authored the four decisions finding that same-sex couples are entitled to marry on the same basis as different-sex couples were appointed by three Republicans and a formerly-Republican independent....

Leonard Link • Apr 3, 2009

What to do about DOMA?

It is past time for the Administration to continue mouthing its good intentions to do something in the future. The issue is here and it is time for action. A motion to dismiss the Gill case would be an unfriendly act against the LGBT community, most certainly, in terms of immediate strategic decisions facing the Administration, since it would require arguing that Congress had a legitimate justif...

Leonard Link • Mar 13, 2009

THE Legal Challenge to DOMA (the "Defense of Marriage Act") is Filed!

What is the chance that this lawsuit will be successful? To me, the more interesting question is what is the likelihood that this lawsuit will become moot before it is finally decided? Federal civil litigation presenting politically contentions issues tends to take a long time if there is no immediate requirement of a speedy disposition....

Leonard Link • Mar 4, 2009