While We're on the Subject of Marriage Equality

This just in from Lambda: Iowa Court Issues Decision in Lambda Legal's Historic Lawsuit: Same-Sex Couples Must Be Allowed to Marry 'This decision brings to life the Iowa Constitution's promise of equality for same-sex couples and their families in Iowa.' (Des Moines, IA, August 30, 2007) ---- A 63 page decision issued today by the Iowa District Court for Polk County said that same-sex couples must be allowed to marry based on the Iowa Constitution's guarantee of equal treatment under the law. The case was filed by Lambda Legal on behalf of six same-sex couples and their families in Iowa. "This decision brings to life the Iowa Constitution's promise of equality for same-sex couples and their families in Iowa," said Camilla Taylor, Senior Staff Attorney in Lambda Legal's Midwest Regional Office in Chicago. "This is a significant step forward in recognizing the constitutional rights of all Iowans, and it's an amazing day for same-sex couples and their families all across Iowa," said Dennis Johnson of Dorsey and Whitney, co-counsel for the Plaintiffs with Lambda Legal. In his decision, Judge Robert B. Hanson said, "Couples, such as Plaintiffs, who are otherwise qualified to marry one another may not be denied licenses to marry or certificates of marriage or in any other way prevented from entering into a civil marriage pursuant to Iowa Code Chapter 595 by reason of the fact that both persons compromising such a couple are of the same sex." In December 2005, Lambda Legal filed a lawsuit with the Polk County Court on behalf of six same-sex couples who were denied marriage licenses in Iowa, arguing that denying marriage to same-sex couples violates the equal protection and due process guarantees in the Iowa Constitution, and prevents these couples from taking care of each other and their children. Today's decision comes after a hearing in May of this year where both sides made arguments before the court. The plaintiffs in this case include: Kate, 34, and Trish Varnum, 42, of Cedar Rapids, who have been in a committed relationship for nearly seven years. In addition to the Varnums are David Twombley, 66, and Larry Hoch, 65, of Urbandale, both retired teachers who have been in a committed relationship for over six years; Dawn and Jen BarbouRoske, 39 and 37 respectively, of Iowa City, who have been together for more than 17 years and their two children, McKinley, 9, and Breeanna, 5; Ingrid Olson, 29, and Reva Evans, 33, of Council Bluffs, who have been together for nearly 10 years and their son, Jamison, 1; Jason Morgan, 37, and Chuck Swaggerty, 35, of Sioux City, who have been together for 10 years; and Bill Musser, 49, and Otter Dreaming, 50, of Decorah, who have been together for over six years. Camilla Taylor and Kenneth Upton Jr., Senior Staff Attorneys at Lambda Legal are handling the case. They are joined by former Iowa Solicitor General Dennis Johnson of Dorsey and Whitney in Des Moines. The case is Varnum v. Brien.

Update on the California Marriage Case

This article just appeared in the on-line version of the Advocate: Calif.'s Jerry Brown: Marriage "insignificant" Tuesday, August 28, 2007 / 02:04 PM SUMMARY: Equality advocates are cheered by the blitheness and brevity of recently wed Attorney General Jerry Brown's arguments to the high court against the right to marry. It's been roughly three and a half years since the National Center for Lesbian Rights sued the state of California, seeking the right to marry on behalf of a dozen same-sex couples. Now, after winding its way through two layers of court review and myriad interim rulings on this or that technicality, the case is heading into the home stretch before the California Supreme Court. And equality advocates are cheered by the blitheness and brevity of recently wed Attorney General Jerry Brown's arguments to the high court against the right to marry. Woo v. California is one of six coordinated marriage cases under review as one. After winning at the lower court level, the marriage cases lost at the appellate court in a 2-1 decision in October. This year has been spent writing briefs to the high court, a process that is nearing completion. In June, the high court asked lawyers on both sides to answer four supplementary questions, a request widely read as an indication that the justices take the underlying issues very seriously. Those supplementary briefs were due Aug. 17, and a quick page count suggests that the LGBT advocates took these issues as seriously as the court. Shannon Minter of the NCLR and his colleagues turned in 66 pages, or 18,546 words in response to the court. On the other side, Brown and his staff managed just over 2,000 words, little more than a few paragraphs on each question. In an ironic twist, Brown himself got married during the course of this long litigation. Why? "Well, first of all, she wanted a ring," the former governor joked to the media a couple of years ago. No doubt the future Mrs. Brown wanted the "insignificant" "m" word as well. Are there differences between California's registered domestic partners and married couples under state law? the court asked in question one. Minter listed 17 distinctions, ranging from the paperwork involved to the differing interpretations of the two statuses by state courts. The state, in turn, announced flatly that no differences exist, a claim advanced in three paragraphs with no explanation. What exactly does the "right to marry" encompass? the court asked in question two. Are there substantive features to this well-established legal claim? Of course there are, wrote the NCLR in a 13-page reply, although the main value of marriage lies not in a particular set of benefits, but in "the unique quality of intimacy and emotional connection on one hand, and the public validation on the other." The state, by contrast, wrote that although marriage was a "reciprocal and binding contractual commitment of mutual support," it did not have to include any particular rights. In other words, the legislature would be free to revoke any and all statutory marriage rights if it had a good reason. Question three asked whether the terms "marriage" or "marry" have any constitutional significance, or whether perhaps the legislature could just rename the institution at will? That would be fine, said the state in a ludicrous one-paragraph answer. "The state submits that the words 'marry' and 'marriage' have no essential significance under the California Constitution," wrote Brown's staff blithely. Question four, a technical matter of interpreting the state's ban on recognizing marriages from out of state, was knocked off with similar nonchalance. In a way, the state was left with little choice in its replies, since the questions seemed designed to force the attorney general's office to detail the assumptions behind their arguments in support of the status quo. In essence, the state has claimed from Day One that same-sex couples already enjoy the benefits of marriage, and that the name itself is insignificant. But the cavalier responses can't help but add to the optimism that surrounds the case as it gathers speed. By Friday, attorneys must reply to the supplemental briefs, presumably an easier assignment for the NCLR given that they have so little to address. On Sept. 17, friend-of-the-court briefs are due; replies to those briefs must be provided by Oct. 9. Only then will the justices schedule a date for oral arguments, most likely early next year. (Ann Rostow, Gay.com)

Sometimes All It Takes is a Little Human Decency

I just came across a wonderful decision from the United States District Court for Eastern Pennsylvania. Since most of you would otherwise never see this decision, I thought I'd share. First, by way of editorial comment: The United States federal courts are generally remarkably conservative on "social" issues, what with only 8 years of Democrats controlling the White House in the past 26 years. (In case you weren't aware, it is our President who is charged with filling vacancies in the federal courts.) And then there's Pennsylvania, hardly a den of radicalism.... So it was a very pleasant surprise to read a recent decision from the federal district court in Pennsylvania where the court, quite simply, got it right. The case has a rather inauspicious start, involving a gay male couple -- Steven Roberts and Daniel Mangini -- who were sentenced to prison for conspiracy to possess methamphetamine with the intent to distribute. Mangini was sentenced to 18 months in prison; Roberts got 30 months. Both men were subject to 5 years of "supervised release" (i.e. probation/parole) upon release from prison. When Mangini got out of prison, he went to live with Roberts's uncle. When Roberts got out, he requested permission to move in with his uncle as well. Now here's the catch: it is a standard condition of federal probation that probationers cannot fraternize with convicted felons without permission from the Probation Office. Roberts and Mangini -- who had been together as a couple for almost 20 years at this point -- requested such permission, but were denied on the grounds that they were neither relatives nor spouses. (Remember, this is a federal regulation we're dealing with here, so it's the federal government's definition of "spouse" that controls, not that Pennsylvania's definition of "spouse" is any better!) All efforts to convince their probation officer to change his mind failed, and the two men were forced to live apart. Further, they were not allowed to have any contact with each other (again a standard condition of probation). What this meant was that their families (including an adult daughter whom they had raised together) had to choose which of them to invite to any family event, but could never be with both of them together. It also meant that each of them was denied the companionship of his life partner during a difficult period when each was struggling mightily (and, apparently, successfully) against meth addiction and one -- Mangini -- was also fighting AIDS. Ultimately, they sued (that's how we get a decision from the district court), advising the court that: "From the moment of their arrest, each has planned and worked toward the time when they can be reunited. Both men acknowledge that their relationship suffered from their pre-incarceration drug use and each has committed himself to recovery from addiction and the rebuilding of their relationship without that type of destructive influence. Both are well aware that this rebuilding will take time and talking and care, in order to ensure that their future is not only loving but also healthy and long-lasting." And here is the federal court's description of their partnership: "Prior to their arrest at the end of 2003, Defendants lived together in a committed relationship for 18 years. They made a home together and built a life together. They supported one another financially, sharing a joint bank account. They also supported one another emotionally, each caring for the other when he was sick, celebrating successes and sharing sorrows. They considered, and still consider, themselves to be spouses. "Defendants were in every way a family. They even raised a child together, as Defendant Roberts’s niece was placed with them as a foster child by the City of Philadelphia Department of Human Services. The relationship between them was and remains the most significant in each of their lives." The court noted that: "The separation imposed [by the Probation Office] is particularly harsh in light of the fact that Defendant Mangini is fighting AIDS. Defendant Mangini is forbidden from seeing or even speaking with the person who has been more important to him than anyone else; the emotional and psychological effect of this separation undermines his physical health and causes him great distress. Defendant Roberts wants to be able to provide comfort and support to the man with whom he shared most of his life, but is forbidden from contacting Defendant Mangini while knowing that he is facing the most difficult challenge of his life. Defendant Mangini’s doctor has advised him to avoid unnecessary stress, yet the separation from Defendant Roberts enhances his stress. Defendant Roberts will be on supervised release until June 2011, and he dreads the thought that Defendant Mangini could die of AIDS before then, without the two having been allowed to resume their relationship." The court went on to hold that denying the two men the right to be together violated their "rights of intimate association and equal protection, which are protected by the Due Process Clause of the Fifth Amendment to the United States Constitution.... Given the undisputed evidence that Defendants were committed life partners for 18 years before their convictions and continue to be devoted to one another, Defendants have a constitutionally protected liberty interest in their intimate relationship with each other." Effective July 31, 2007, the court has granted Roberts and Mangini the right to call each other, e-mail each other, and be together as much as they want to be including living together if that is their choice. I wish them both long life and happiness. With all the very public political battles being waged right now over the big issues of our time, sometimes it is the small cases like this -- where two regular, flawed people just want the right to live their lives with dignity and love -- that have the biggest impact on history.

Adoption Victory in Oklahoma

Today, the U.S. Court of Appeals for the 10th Circuit held that it is a violation of the Full Faith & Credit Clause of the United States Constitution for the State of Oklahoma to deny recognition to same-sex adoptions from other states. The U.S. Court of Appeals for the 10th Circuit is one of 13 intermediate federal appellate courts, which sit between each state's federal district courts and the United States Supreme Court. (California is in the 9th Circuit.) The territorial jurisdiction of the 10th Circuit includes the six states of Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah, plus those portions of the Yellowstone National Park extending into Montana and Idaho. Needless to say, it is not a den of radical politics.... The lawsuit that led to today's decision was brought by three same-sex couples: a gay male couple from Washington State who adopted a child born in Oklahoma; a lesbian couple living in Oklahoma who completed a 2nd parent adoption in California; and a lesbian couple living in Oklahoma who completed a 2nd parent adoption in New Jersey. After the gay male couple adopted their child, they requested a new birth certificate from Oklahoma listing both of them as the child's legal parents. After a brief legal skirmish, Oklahoma issued the child a new birth certificate showing that he had two legal fathers. The Oklahoma Legislature responded by enacting a statute providing that: "this state, any of its agencies, or any court of this state shall not recognize an adoption by more than one individual of the same sex from any other state or foreign jurisdiction." It is that statute that today has been ruled unconstitutional. This case is critically important because there has been a concerted effort by certain right-wing legal organizations around the country to argue that there is a "public policy" exception to the Full Faith & Credit Clause of the United States Constitution whereby states can refuse to honor legal judgments from sister states if those judgments would violate their public policy. This argument, if adopted by federal appellate courts (or, goddess forbid, the U.S. Supreme Court), could create a "gay exception" to the United States Constitution that would set us back decades. Today's ruling deals a decisive blow to this argument. Here are some excerpts from the decision: "[W]ith respect to final judgments entered in a sister state, it is clear there is no 'public policy' exception to the Full Faith and Credit Clause: Regarding judgments . . . the full faith and credit obligation is exacting." "A final judgment in one State, if rendered by a court with adjudicatory authority over the subject matter and persons governed by the judgment, qualifies for recognition throughout the land." "A court may be guided by the forum State’s ‘public policy’ in determining the law applicable to a controversy. But our decisions support no roving ‘public policy exception’ to the full faith and credit due judgments." "We hold that final adoption orders by a state court of competent jurisdiction are judgments that must be given full faith and credit under the Constitution by every other state in the nation. Because the Oklahoma statute at issue categorically rejects a class of out-of-state adoption decrees, it violates the Full Faith and Credit Clause." We dodged a bullet here, folks. And in Oklahoma, at that. I will sleep better tonight with this ruling protecting all adoptive families around the country from second-guessing by hostile jurisdictions.