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Federal Judge Strikes Down Kentucky's Marriage Discrimination Law

BY ARI EZRA WALDMAN

Kentucky-flagIn the 23rd consecutive pro-equality ruling from a federal court since the Supreme Court's decision in United States v. Windsor, Judge John G. Heyburn, a President George H.W. Bush appointee at the recommendation of now-Senate Minority Leader Mitch McConnell, struck down Kentucky's ban on gay couples marrying. Those of us following the situation in Kentucky knew this was coming: Judge Heyburn had previously ruled that Kentucky had to recognize the marriages of same-sex couples performed out of state. It was a small step to invalidate Kentucky's own ban.

The opinion in the case, aptly captioned Love v. Beshear, reviews much of the ground covered by the 22 rulings that preceded it. It also departs from the past by, in particular, both relying on Windsor and narrowing it. It explicitly declines to take the route preferred by the Tenth Circuit Court of Appeals in Kitchen v. Herbet, which was to find Utah's ban unconstitutional as a violation of a fundamental due process right, and instead relies on the Equal Protection Clause. Judge Heyburn concluded that Windsor was an equal protection ruling, not a due process one. The confusion stems from the lack of clarity in Justice Kennedy's opinion. The result is the same: the ban is unconstitutional.

AFTER THE JUMP, I review in detail Judge Heyburn's interpretation of Windsor and show how it is different than many of the cases that have come before it in the post-Windsor world.

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Utah, Indiana, Heightened Scrutiny and Next Steps: Is Marriage Heading to the Supreme Court?

BY ARI EZRA WALDMAN

UtahOne year this week, the Supreme Court brought marriage equality back to California when it ended the Prop 8 case. It also declared Section 3 of the Defense of Marriage Act (DOMA) unconstitutional and, thereby, ushered in a year of unbroken marriage equality victories indebted to United States v. Windsor. The Supreme Court was equally as active today, deciding, for example, that police must get a warrant before searching cell phones upon arrest and that the Aereo streaming television service is illegal under the Copyright Act.

Unless you count the impending Hobby Lobby case, a challenge to Obamacare's requirement that employers offer their employees health plans that cover contraceptives, which raises the highly relevant question of how big of a donut hole will be carved out by so-called "religious exemptions" to equality legislation, our right to marry did not have a date at the Supreme Court this week.

But much progress was made in the lower courts.

The Ninth Circuit has refused to rehear the case in which it held that antigay discrimination merits heightened scrutiny. This means that pretty much any gay rights case out of the most populous circuit in the country -- stretching from Montana to Arizona and from Nevada to Alaska and Hawaii -- will more than likely end with a pro-equality ruling. Heightened scrutiny makes it nearly impossible to justify discrimination, which brings us closer to our goal of universal equality.

The Tenth Circuit affirmed District Judge Shelby's ruling that Utah's ban on same-sex marriage is unconstitutional. The 2-1 decision marks the first time a federal appellate court has ruled on a marriage ban in the post-DOMA world. The ruling, which included a stay pending Supreme Court review, sets the stage for several potential next steps, all of which may culminate at the Supreme Court.

And a district court judge in Indiana ruled that state's ban on same-sex marriage is unconstitutional. And there was no stay attached to the decision, so for now, gay couples can marry -- and are marrying -- already.

Judge Richard Young of Indiana was right. He remarked how he had never seen anything like this before: In the span of one year, marriage equality went from a handful of states with a loud opposition to victory after victory after victory since the Supreme Court decided the DOMA case. 

In the coming days, I will summarize and analyze these decisions (and other legal developments affecting the LGBT community, but for now, let's discuss what happens next.

CONTINUED, AFTER THE JUMP...

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Michelangelo Signorile Questions Ted Olson About His Work On Gay Marriage, Prop. 8: AUDIO

 In a SiriusXM Progress interview last week, Michelangelo Signorile asked solicitor Ted Olson about his work on the issue of same-sex marriage.

TED OLSON AND DAVID BOIESThe interview follows the publication of a new book Redeeming the Dream: The Case for Marriage Equality, in which Olson and David Boies discuss how they had California's Proposition 8 ruled unconstitutional and related issues.

In the interview, among other topics Signorile and Olson discuss how the issue of gay marriage can move forward given that the Republican religious base is still opposed, Olson’s criticism of the incrementalist approach to the issue of gay marriage, the importance of the Defense of Marriage Act, and how working on the cause has affected Olson personally.

Listen to a few key clips, AFTER THE JUMP...

And read Signorile's full transcript here.

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Embattled Lesbian Military Widow Finally Granted Survivor Benefits By VA

Couple

The lesbian widow of an Army National Guard Staff Sergeant killed in Afghanistan back in October 2012 will finally receive survivor benefits from the Department of Veterans Affairs, The Washington Blade reports:

During her speech upon receiving an award at the inaugural dinner in D.C. for the American Military Partners Association, Tracy Johnson said she received a notice in the mail earlier in the month verifying that she would be eligible for survivor benefits. They would be retroactive, she said, to the time of the death of her spouse, Staff Sergeant Donna Johnson, who was killed on patrol in Afghanistan on Oct. 1, 2012. “This decision from the Department of Veterans Affairs is an important step toward our end goal of achieving equal treatment for all military families,” Tracy said. “This would not have been possible without your support.” But Tracy also said her work isn’t done and her “biggest goal,” which has yet to be achieved, is to get the Army to change Donna’s death certificate to recognize their marriage.

Johnson’s announcement came just days before Veterans Affairs Secretary, General Eric Shinseki, and President Obama spoke out about reports of corruption and excessive back-log at the VA.

Johnson first filed for survivor benefits in January of 2013 and again in July of that year after the Supreme Court struck down key provisions of DOMA:

She said she was never denied benefits, but was told the administration was evaluating her case and would reach out to her with any questions. Her understanding, she said, was the process for receiving the benefits could take anywhere from two to three months or up to a year if the claim is contested. Tracy refused to disclose the amount of initial money she received with her final notification, but said the monthly entitlement was $1,233 and the payment start-date is retroactive to Nov. 1, 2012.

At stake in the VA’s decision to grant Johnson benefits is a specific provision of Title 38 that has enormous impact on whether military spouses in same-sex marriages can receive benefits. Section 103(c) of that statue “looks to the state of residency, not the state of celebration, when determining whether a couple is married.” Previously, The White House and Attorney General Eric Holder announced they would neither defend nor would they enforce Title 38 of the military code that was then being used to deny gay veterans spousal benefits. In reaching this decision, the DOJ cited the Supreme Court’s ruling in United States v. Windsor, noting that while the court did not directly consider Title 38, its decision on DOMA was enough to make it clear that Title 38 violated the 5th Amendment of the Constitution. 

However, even after this decision from the DOJ, section 103(c) of Title 38 still appeared to be in effect, restricting benefits only to same-sex couples who lived in states where same-sex marriage was legal. This then excluded spouses of LGBT service members from receiving benefits, survivor or otherwise, if they lived in a state where same-sex marriage wasn’t recognized. What’s remarkable about Johnson’s case is that though she was married in Washington, D.C. where same-sex marriage is legal, she resides in North Carolina where it is not. Consequently many have been left wondering whether the VA’s granting of benefits to Johnson signals a shift in VA policy whereby all spouses in same-sex marriages would be eligible to receive benefits regardless of where they reside in the U.S. 

For her part, Johnson hopes that others will follow her in applying for and receiving the benefits they deserve:

“We’re all in this together; it wasn’t just me getting awarded these benefits, and then just turning my cheek and walking away. This isn’t just about me; it’s about all of us fighting the good fight for the right reason.” 


The Marriage Equality Ruling in Idaho: A Legal Summary and Analysis

BY ARI EZRA WALDMAN

Last last night, a federal magistrate judge in Idaho declared that state's ban on same-sex marriage unconstitutional.

DaleJudge Candy Wagahoff Dale wrote as follows:

After careful consideration, the Court finds Idaho’s Marriage Laws unconstitutional. This conclusion reaffirms a longstanding maxim underlying our system of government—a state’s broad authority to regulate matters of state concern does not include the power to violate an individual’s protected constitutional rights. Idaho’s Marriage Laws deny its gay and lesbian citizens the fundamental right to marry and relegate their families to a stigmatized, second-class status without sufficient reason for doing so. These laws do not withstand any applicable level of constitutional scrutiny.

Latta v. Otter, slip op. at 3.

This conclusion should sound familiar to regular Towleroad readers. The key takeaway points: The right to marry is fundamental, in line with many Supreme Court cases; bans on gays marrying stigmatize gays and gay relationships as less than equal and relegate us to second-class status (remember Justice Ginsburg's "skim milk marriages" comment?); and, the exact level of scrutiny demanded by antigay discrimination is irrelevant because the ban is so irrational that it fails even under the lowest form of review.

A decision like this has become the new normal, especially in the post-Windsor world.

CONTINUED, AFTER THE JUMP...

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ACLU Opposes DOMA Lawyer's Intervention in Federal Challenge to Ohio Gay Marriage Ban

Roberta Kaplan, the lawyer who successfully fought Edie Windsor's DOMA case with the ACLU before the Supreme Court, filed a motion to intervene in an ACLU case challenging Ohio's gay marriage ban several weeks ago. On Friday, the ACLU told the Sixth Circuit Court of Appeals to deny her intervention, the Washington Blade reports:

KaplanIn a filing Friday before the U.S. Sixth Circuit Court of Appeals, the American Civil Liberties Union — along with the ACLU of Ohio and private attorneys at Gerhardstein & Branch — expressed opposition to Roberta Kaplan’s intervention in a case seeking recognition of same-sex marriages in Ohio for the purposes of death certificates.

The 16-page brief argues that Kaplan should be denied intervention in the Ohio case — in which she sought entry on behalf of Equality Ohio and four same-sex couples — on the basis that she wants to enter the case at too late a stage and is making arguments already stated by plaintiffs in the lawsuit.

“Plaintiffs-Appellees have the utmost respect for Equality Ohio and the four unmarried couples and their counsel and the important interests they represent,” the brief states. “However, Plaintiffs-Appellees should be entitled to continue to litigate the case that they initiated in July of last year without the disruption and prejudice that would flow from new claims and parties at this late stage.”

The ACLU also expressed displeasure at Kaplan's timing, months after the case was filed and briefings were scheduled.

Kaplan refused to respond to the Blade when asked, saying she would be filing her response with the court.

More at the Blade...

ObergfellThe case is an appeal of a ruling by Judge Timothy Black brought by John Arthur and Jim Obergfell, who flew to Maryland from Ohio last year so they could marry on the airport tarmac before Arthur's ALS, a progressive neurological disease that robs patients of their ability to walk, talk and eventually breathe, became too difficult.

Arthur died in October.

Ohio's attorney general appealed Black's ruling in January, bringing the case before the Sixth Circuit.


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