Marriage equality update

Wisconsin

Wis. high court to hear partner arguments in Oct. 

Madison, Wis. (AP) — The Wisconsin Supreme Court will hear arguments next month in a challenge to the state's domestic partner registry.

The registry give same-sex couples a host of legal rights. Members of the conservative group Wisconsin Family Action filed a lawsuit in 2010 alleging the registry violates a 2006 state constitutional amendment barring gay marriage and anything similar.

A state appeals court upheld the registry in December, saying married couples have more rights than same-sex couples on the registry.

The Supreme Court announced in June it would take the case. The justices have set oral arguments for Oct. 23.

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Michigan

Groups weigh in on Mich. gay marriage case 
Ed White, Associated Press

Detroit (AP) — A major legal challenge to Michigan's ban on gay marriage is attracting interest from conservative Christians, the Roman Catholic Church, law professors and civil libertarians as the state defends a 2004 constitutional amendment that defines marriage only as between a man and a woman.

Arguments originally scheduled for this week have been pushed to Oct. 16 in Detroit federal court. The case hits the docket four months after the U.S. Supreme Court said the federal government can't deny benefits to legally married same-sex couples.

The challenge to Michigan's ban was in play before the Supreme Court spoke, but attorneys for a pair of Detroit-area nurses believe the decision helps their case.

"If marriage is a fundamental right, then logic and emerging Supreme Court precedent dictate that the legitimacy of two adults' love for one another is the same in the eyes of the law regardless of sexual orientation," lawyers Carole Stanyar and Dana Nessel said in a recent filing.

They represent April DeBoer and Jayne Rowse, who live with three adopted children in Hazel Park. They sued in 2012 because Michigan law bars them from jointly adopting each other's kids. At the suggestion of the judge, the case has become even more significant and includes a challenge to Michigan's ban on gay marriage.

The state attorney general's office, defending voters' endorsement of the gay-marriage ban, said the Supreme Court has recognized that states have a right to define marriage.

"Their attempt to circumvent the legislative process and disrupt the will of the people of the state of Michigan must be rejected," the state said of DeBoer and Rowse.

U.S. District Judge Bernard Friedman has allowed other parties to file arguments in the case. The Michigan Catholic Conference, the public policy arm of the Roman Catholic Church, said "every sign of unjust discrimination" must be avoided yet marriage should remain between a man and a woman.

"That the people of the state of Michigan have sought to preserve and protect the relationship most conducive to the preservation and proliferation of the human race through the Marriage Amendment is certainly a legitimate government interest," the Catholic Conference said.

The Lansing-based Michigan Family Forum said same-sex couples can be successful parents but "that is not the question."

"The social science evidence, especially evidence founded on conclusions from population-based samples, suggests that there are unique advantages to a parenting structure consisting of both a mother and a father, political interests to the contrary notwithstanding," the group said.

On the other side, eight professors at Thomas M. Cooley Law School said Michigan's gay marriage ban clearly is unconstitutional. In addition, nearly 20 constitutional law scholars from across the country said the judge should hold Michigan to "heightened scrutiny," meaning the state would need to overcome a high legal threshold to justify a ban on gay marriage.

"Ours is not a constitution of caste or class. It is not a constitution that allows a political majority to subordinate a defenseless minority just because it can," the Cooley professors said. "It is not a constitution that turns its back on any class, much less a class that is morally blameless."

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New Jersey

Judge orders NJ marriage, state says it will appeal
Geoff Mulvihill, Associated Press

A judge's ruling Friday that New Jersey must allow gay couples to marry will not be the last word on the issue after Gov. Chris Christie's administration said it would appeal to a higher court.

The judge, Mary Jacobson, sided with gay and lesbian couples and a gay rights group that argued the state government is violating New Jersey's constitution by denying federal benefits to the couples by not letting them marry. She said the state must allow gay couples to wed starting Oct. 21.

The ruling was the first of its kind in any state court relying on a June U.S. Supreme Court ruling that struck down key parts of a law that blocked the federal government from granting benefits to gay couples.

"Every day that the state does not allow same-sex couples to marry, plaintiffs are being harmed," Jacobson wrote, citing specifically same-sex couples who include a federal employee, those who want to use the federal Family Medical Leave Act or those who file joint federal tax returns.

Whatever course Christie chose had the potential of putting the Republican governor in a tough spot politically.

He's seeking re-election in a state where polls show broad support for gay marriage and where the Legislature passed a law last year to allow it. At the same time, he's seen as a possible contender for the Republican nomination for president in 2016 — a position that requires winning over relatively conservative Republican electorates in some states with early primaries.

Still, he has been resolute about his position, favoring civil unions and opposing gay marriage.

On Friday, Christie refused to take questions about the ruling, instead issuing a brief statement through a spokesman.

"Gov. Christie has always maintained that he would abide by the will of the voters on the issue of marriage equality and called for it to be on the ballot this Election Day," said spokesman Michael Drewniak. "Since the Legislature refused to allow the people to decide expeditiously, we will let the Supreme Court make this constitutional determination."

Thirteen states now recognize same-sex marriages, including the entire Northeast except for Pennsylvania and New Jersey.

Dozens of same-sex marriage supporters cheered, hugged and popped open bottles of Champagne outside a church in Montclair, N.J., just outside New York City, on Friday night to celebrate the ruling.

Gay marriage has been a major political and legal issue in New Jersey for more than a decade. The state Supreme Court ruled unanimously in 2006 that same sex-couples had the right to the same legal protections as married couples, but a 4-3 majority ruled that the state did not have to go as far as calling those benefits marriage. Lawmakers responded by quickly creating civil unions.

In 2011, six couples and children of several of them asked the courts to find that the civil union law was not fulfilling its intention because it created a separate classification for gay couples. The state Supreme Court sent the issue to a lower court.

But the U.S. Supreme Court ruling in June on the Defense of Marriage Act changed the argument, and the couples asked anew for speedy relief.

Federal agencies have rolled out a variety of policies on whether they will recognize marriages of any gay couples or only those in states that recognize their vows.

The Christie administration argued that it's the federal government's patchwork of policies that is keeping lesbian and gay couples in New Jersey from having the same federal benefits as heterosexual couples.

The question of gay marriage also is in the Legislature. Lawmakers last year passed a law to allow gay marriage, but Christie vetoed it, saying it should be up to a popular vote, a position that most prominent gay rights activists reject.

Associated Press writer Katie Zezima in Newark, N.J., and Angela Delli Santi in Ewing, N.J., contributed to this report.

 

Excerpts from NJ ruling legalizing gay marriage 
The Associated Press

Excerpts from Friday's ruling and order by New Jersey Superior Court Judge Mary Jacobson, who found that the state must allow, effective Oct. 21, same-sex couples to marry in light of federal recognition of gay marriages:

"Every day that the state does not allow same-sex couples to marry, plaintiffs are being harmed ...."

"By statutorily creating two distinct labels — marriage for opposite-sex couples and civil unions for same-sex couples — New Jersey civil union partners are excluded from certain federal benefits that legally married same-sex couples are able to enjoy. Consequently, it is not the federal government acting alone that deprives plaintiffs of federal marriage benefits — it is the federal government incorporating a state domestic relations structure to make its determinations, and it is that state structure that plaintiffs challenge in this motion."

The ineligibility of same-sex couples for federal benefits is currently harming same-sex couples in New Jersey in a wide range of contexts: civil union partners who are federal employees living in New Jersey are ineligible for marital rights with regard to the federal pension system, all civil union partners who are employees working for businesses to which the Family and Medical Leave Act applies may not rely on its statutory protections for spouses, and civil union couples may not access the federal tax benefits that married couples enjoy."

Plaintiffs "would suffer hardship in the form of costly and time-consuming litigation burden not required of opposite-sex married couples should this court withhold review and insist that plaintiffs pursue benefit-by-benefit litigation against the federal agencies."

"Same-sex couples must be allowed to marry in order to obtain equal protection of the law under the New Jersey Constitution."

"Effective Oct. 21, 2013, defendants, or such officials of the state of New Jersey as are empowered to do so, shall permit any and all same-sex couples, who otherwise satisfy the requirements to enter into a civil marriage, to marry in New Jersey."

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Mississippi

Woman asks Miss. to recognize her gay marriage 
Holbrook Mohr, Associated Press

Jackson, Miss. (AP) — A woman is asking the conservative state of Mississippi to recognize her out-of-state gay marriage so that she can get a divorce.

Lauren Beth Czekala-Chatham (Chick AH' luh-CHAT' um) married her wife, Dana Ann Melancon, in California, but the couple lived together in Southaven, Miss., until they separated in 2010.

Czekala-Chatham could potentially pursue a divorce in California, which exempts same-sex couple from divorce laws that generally require at least one spouse to be a resident of the state for six months. But according to the California courts website, the state might not be able to issue rulings on matters such as property ownership, debt, alimony or children.

Czekala-Chatham filed her divorce petition in DeSoto County Chancery Court on Sept. 11. Her lawyer, J. Wesley Hisaw (HIGH'-saw), said a favorable ruling on the petition would not mean that same-sex couples could get married in Mississippi because that's banned under Mississippi statute.

"My client is not looking to start gay marriage in Mississippi. She wants the marriage from another state to be recognized so she can get a divorce and protect herself," Hisaw said.

Czekala-Chatham said in a telephone interview Friday that she has children from a prior relationship and is concerned that Melancon could contest her will and possibly get her kids' inheritance if they don't get divorced. Czekala-Chatham is seeking the couple's house in Mississippi and alimony.

Czekala-Chatham hopes Mississippi will recognize her marriage so she can get divorced even if the case goes all the way to the Mississippi Supreme Court.

"I don't know any other way out of it," she said.

Similar cases have popped up in other parts of the U.S. Same-sex couples are trying to use the courts to have their unions recognized by states that prohibit gay marriage following a U.S. Supreme Court ruling in June that struck down parts of the federal Defense of Marriage Act.

The Texas Supreme Court recently said it will consider whether it has jurisdiction over same-sex divorce cases and scheduled oral arguments for Nov. 5. At least two same-sex couples have filed for divorce in the state, which does not permit gay marriage.

Matt Steffey, a constitutional law professor at Mississippi College in Clinton, said Czekala-Chatham's case is a longshot.

"There's no right to terminate a gay marriage in Mississippi any more than there is a right to consummate one," Steffey said.

Steffey said a same-sex divorce case will probably make its way to the U.S. Supreme Court someday, but that could take awhile.

"This is a test case," Steffey said. "At worst, it's simply an exercise in futility. That said, all test cases look like an exercise in futility until they succeed."

Czekala-Chatham's divorce petition alleges adultery and habitual cruel and inhuman treatment.

The petition says that Melancon now lives in Osceola, Ark. She could not immediately be reached for comment Friday.

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Illinois

Ill. judge: Same-sex marriage lawsuit can proceed 
Tammy Webber, Associated Press

Chicago (AP) — A lawsuit seeking to overturn Illinois' ban on gay marriage can move forward in the courts, a judge ruled Friday, buoying hopes among some same-sex couples that it's just a matter of time before they can marry in their home state.

Cook County Circuit Judge Sophia Hall denied a motion to dismiss the lawsuit, saying the 25 couples who filed it can argue that they have a fundamental right to marry and that the state's 17-year-old ban discriminates against them based on sexual orientation.

"Marriage is the standard in terms of how you define relationships in the U.S.," said 44-year-old Suzie Hutton, a plaintiff who now is in a civil union with her partner of 11 years, Danielle Cook. "It means something, and we want to be able to say we are married. It's about being with the one you love, the one who supports you and the one you go through the routine of life with."

Another plaintiff, Patrick Bova, 75, who has been with his partner, 81-year-old James Darby, for 50 years, said they easily could have gotten married in another state that allows gay marriage. "But we want to get married in Illinois," he said.

The state law is being defended by five downstate clerks after Cook County State's Attorney Anita Alvarez and Attorney General Lisa Madigan refused to do so, saying they agreed with plaintiffs that the ban is unconstitutional.

"We are confident that Illinois' marriage laws will ultimately be upheld," said Paul Linton, an attorney for the clerks. "The people of Illinois have always understood marriage as a relationship that may exist only between one man and one woman."

He said marriage is meant for "the procreation of children and providing a stable environment for such children raised by their biological mother and father."

Illinois' lawsuit was filed last year against Cook County Clerk David Orr, a supporter of gay marriage whose office is responsible for issuing marriage licenses in Chicago and the rest of the county. All plaintiffs had applied for and been denied marriage licenses in Cook County.

But in an unusual move, Alvarez and Madigan declined to defend the ban, which defines marriage as between a man and a woman, saying it violates the state constitution's equal protection clause. Alvarez said it's her job to represent Orr — and they both agreed with the plaintiffs. The downstate clerks later were granted permission to intervene.

Plaintiffs also have filed a motion for summary judgment — basically asking the judge to rule quickly in their favor and declare the ban unconstitutional — saying a recent U.S. Supreme Court decision striking down part of a law denying federal benefits to married gay couples creates a new urgency in the state. Illinois legalized civil unions two years ago, but the recent Supreme Court decision applies only to married gay couples.

The judge has not said when she will take up that request.

The high court ruling says same-sex married couples must be treated the same as other spouses under federal laws governing taxes, health care, pensions and other federal benefits. It does not account for civil unions.

"Illinois is the only thing standing between these families and full federal respect for their relationships," said Camilla Taylor, marriage project director for Lambda Legal, which along with the American Civil Liberties Union is representing the plaintiffs.

A separate fight to legalize same-sex marriage has been ongoing in the state Legislature. Proponents will try again this fall to push gay marriage legislation through the General Assembly, where it was not called for a vote in the spring after sponsors said they didn't have enough votes.

 

Ill. AFL-CIO votes to support gay marriage 

Springfield, Ill. (AP) — The executive board of the Illinois chapter of the AFL-CIO is supporting gay marriage.

The board voted Thursday in Chicago to urge the Illinois House to adopt the "Religious Freedom and Marriage Fairness Act."

The adopted resolution states the AFL-CIO joins faith communities, civil rights organizations, President Barack Obama and its own unions in supporting "marriage equality legislation that effectively protects religious freedom."

The legislation got Senate approval in February but never got called for a vote in the House before the Legislature adjourned in May.

Supporters, including some in the business community, say a gay marriage law would be good for business. Influential lawmakers have pointed out that other states are luring couples to come to their states to get married.

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Pennsylvania

Suit challenges Pa.'s non-recognition of gay union 
Kathy Matheson, Associated Press

Philadelphia (AP) — Two women who wed in Massachusetts before moving to Pennsylvania asked a federal court on Thursday to force their new home state to recognize the marriage, as it does for opposite-sex couples.

The plaintiffs, Isabelle Barker and Cara Palladino, say they are being denied about 600 marriage-related benefits, from filing joint state tax returns to co-owning property. They also have encountered reams of paperwork for health care coverage and prepared legal documents to protect the interests of their son — red tape they say wouldn't be needed if their marriage was recognized.

"My Massachusetts marriage certificate is the same as any other couple that comes from Massachusetts," Palladino said. "It seems to me that that's the essence of discrimination. If you're taking the same piece of paper and you're treating it differently because of our status, that doesn't seem fair."

Pennsylvania is the only state in the northeastern U.S. without same-sex marriage or civil unions. Like 36 other states, it also does not recognize gay marriages performed legally in other jurisdictions. The lawsuit filed Thursday asks a judge to declare unconstitutional the state law barring recognition of such unions.

At a news conference overlooking Independence Hall, lawyers for Barker and Palladino said the statute infringes on the pair's constitutional right to travel among states without penalty and violates the guarantee that states will respect each other's judgments and decrees.

The lawsuit notes Pennsylvania honors opposite-sex marriages performed elsewhere "without qualification or question." Yet the plaintiffs "are denied the basic rights that were conferred on them by another sovereign state, solely because of a discriminatory, arbitrary and irrational distinction," it says.

Palladino and Barker lived in Massachusetts when they got married in 2005 and moved to Philadelphia later that year when Barker got a job at Bryn Mawr College. The couple had a son in 2009, and Barker said the boy has begun asking if his parents are married.

"And it's sort of befuddling to us that we don't have a really clear answer for him about that," Barker said. "If we lived in Massachusetts, we would have a very easy answer: 'Yes, of course.'"

Their lawsuit, which names Gov. Tom Corbett and Attorney General Kathleen Kane as defendants, is at least the fifth pending legal case regarding gay marriage in Pennsylvania. A representative for Corbett did not immediately return a request for comment Thursday.

In one of the other lawsuits, Kane has refused to defend the state law defining marriage as between one man and one woman. After the U.S. Supreme Court threw out part of the federal Defense of Marriage Act earlier this year, she called the Pennsylvania marriage statute unconstitutional — a statement she reiterated Thursday.

Corbett's office is now defending that case, which was filed two months ago in federal court by the American Civil Liberties Union of Pennsylvania on behalf of 32 gay couples.

That complaint parallels a separate challenge filed Wednesday, in which 21 same-sex couples sued in state court to overturn Pennsylvania's ban on gay marriage.

In another lawsuit, the state Health Department has sued to stop a Montgomery County official who decided on his own to issue marriage licenses to same-sex couples. A couple who married using one of those licenses also has filed their own lawsuit.

Barker and Palladino's legal complaint was coordinated by the Equality Forum, a Philadelphia-based gay rights organization.

 

New Pa. court challenge filed to gay marriage ban 
Peter Jackson, Associated Press

Harrisburg, Pa. (AP) — Twenty-one same-sex couples filed suit Wednesday seeking to overturn the state's gay-marriage ban on the grounds that it's unconstitutional.

The state Commonwealth Court lawsuit parallels a separate challenge to the law filed two months ago in federal court by the American Civil Liberties Union of Pennsylvania.

All of the plaintiff couples in the state action were married with licenses from a Montgomery County court clerk who began issuing them after Democratic state Attorney General Kathleen Kane concluded the law was unconstitutional and refused to defend it in federal court.

Both of the challenges argue that the law, which defines marriage as the union of "one man and one woman," violates the U.S. Constitution, but Wednesday's filing claims that it also violates the state constitution.

In another case, a Commonwealth Court judge earlier this month ordered the clerk, D. Bruce Hanes, to stop issuing the licenses because he has no power to decide whether or not the law is constitutional. The county vowed to appeal the ruling.

The state lawsuit also asks the court to affirm the legality of the plaintiffs' marriages.

"To lift the cloud over their unions, plaintiffs seek a declaratory judgment that their marriages are valid under Pennsylvania law," the lawsuit says.

The challenges followed a U.S. Supreme Court decision in June that struck down part of the federal Defense of Marriage Act, which restricts marriage as being between a man and a woman.

The state lawsuit named Republican Gov. Tom Corbett, Kane and state Health Secretary Michael Wolf as defendants. Nils Frederiksen, a spokesman for the governor's Office of General Counsel, said it had not received a copy of the suit and declined to comment.

The general counsel's office has hired West Chester lawyer William Lamb, a former state Supreme Court justice, to serve as lead counsel in the federal case.

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Ohio

Ohio gay marriage lawsuit expanded to others 
Amanda Lee Myers, Associated Press

Cincinnati (AP) — A lawsuit seeking to have the out-of-state marriages of two gay Ohio couples recognized on death certificates has been expanded to include all similarly situated couples, despite a statewide ban on gay marriage.

Attorneys are now asking federal Judge Timothy Black to require Ohio's health department director to order funeral directors and coroners to list gay clients as married if they were legally wed in another state.

Black approved a request to expand the lawsuit on Wednesday and is expected to issue a ruling in December.

A spokesman for Ohio Department of Health Director Theodore Wymyslo said departmental policy is to not comment on pending litigation.

John Arthur and James Obergefell, both 47, are the couple who began the lawsuit. Arthur, who has Lou Gehrig's disease, and Obergefell sued in July to ensure that they can be buried next to each other in Arthur's family plot, which is in a cemetery that only allows descendants and spouses.

A second couple, William Herbert Ives and David Michener, joined the lawsuit earlier this month after Ives died unexpectedly and Michener wanted him to be listed as married before he was cremated.

Black found in favor of both couples, saying they deserved to be treated with respect and that Ohio law historically has recognized out-of-state marriages as valid as long as they were legal where they took place, citing marriages between cousins and involving minors.

"How then can Ohio, especially given the historical status of Ohio law, single out same-sex marriages as ones it will not recognize?" Black wrote. "The short answer is that Ohio cannot."

His ruling has sparked backlash from opponents of gay marriage, including state Rep. John Becker, a Union Township Republican who last week called for Black's impeachment.

"The grounds are malfeasance and abuse of power," Becker wrote in a letter to U.S. Rep. Brad Wenstrup in which he asked the congressman to begin impeachment proceedings. "Judge Black has demonstrated his incompetence by allowing his personal political bias to supersede jurisprudence."

A woman who answered the phone at Black's office said the judge was prohibited from commenting.

Only eight federal judges in history have been removed by Congress, most recently Judge G. Thomas Porteous of Louisiana in 2010 after he was accused of accepting cash and other favors from attorneys and bail bondsmen with business before his court.

Phil Burress, president of the Ohio-based anti-gay marriage group Citizens for Community Values, said the effort to get gay couples recognized on death certificates is just a roundabout way to get gay marriage declared legal in Ohio.

"Basically they're trying to come through the back door," he said. "Until they change it they have to obey the law. Marriage in the state of Ohio is between one man and one woman."

Robert Grunn, a Cincinnati funeral director who is joining the lawsuit, said he wants to do what's right.

"It's making people more equal," he said. "A time of death is very painful and you don't want to have to exclude your loved ones on a certificate that's meaningful to your family history."

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