Marriage Equality update

In addition to legal same-sex marriage beginning August 1 in Minnesota and Rhode Island, there were significant developments in other states pushing forward legal challenges to gay marriage bans.

Here are several AP dispatches from the last week dealing with marriage equality.

Minnesota

Foes of Minn. gay marriage focus on 2014 campaign 

ST. PAUL, Minn. (AP) — Opponents of the newly enacted Minnesota law allowinggay marriage say they're putting their focus on the 2014 election campaign and the state House campaigns.

The group that pushed unsuccessfully to put a same-sex marriage ban in the state constitution said Thursday it was launching the Marriage Majority Initiative. The announcement comes as gay couples began tying the knot in Minnesota after the Legislature legalized it last spring.

The initiative is described in a news release as promoting candidates who voted against the gay marriage law and working to defeat those who backed it.

Even if there is a Minnesota House power shift, the Senate will remain in Democratic hands through the 2016 election. That means any attempt to repeal the gay marriagelaw is a longshot.

Virginia

Federal lawsuit challenges Va. gay marriage ban 
LARRY O'DELL, Associated Press

RICHMOND, Va. (AP) — Two couples from the Shenandoah Valley filed a federal class-action lawsuit Thursday challenging Virginia's same-sex marriage ban.

The ACLU of Virginia and Lambda Legal are representing the plaintiffs in the lawsuit filed in U.S. District Court in Harrisonburg. The complaint alleges that Virginia's constitutional amendment prohibiting gay marriage and denying recognition of such unions sanctioned by other states violates the equal protection and due process clauses of the Constitution.

Plaintiffs Joanne Harris and Jessica Duff of Staunton and Christy Berghoff and Victoria Kidd of Winchester say in the lawsuit that they are seeking to represent all same-sexcouples in Virginia who want to get married or have already married in other jurisdictions. About three dozen states do not allow same-sex marriage, and Virginia is one of 29 states that have put the ban in their constitutions.

Earlier this summer, the U.S. Supreme Court struck down a provision of the federal Defense of Marriage Act that denied federal benefits to married gay couples. The justices also left intact a lower court ruling overturning California's gay marriage ban. That decision was based on a legal technicality and did not address the law's constitutionality.

Berghoff, an Air Force veteran who works for the U.S. Department of Justice, and Kidd were married in the District of Columbia in 2011 and have an 8-month-old daughter.

"When I go to work in D.C., I'm married with a child, and when I come home to Virginia, I'm considered single," Berghoff said at a Richmond news conference.

Some same-sex couples have already left Virginia or are planning to move to one of the states that recognize gay marriage, but Berghoff and Kidd said they don't want to do that. Kidd said she is a stay-at-home mom and Rotarian who is active in the community.

"This is where we want to call home, and we are the kind of neighbors folks want to have," she said.

Kidd said they also are seeking change for the benefit of their daughter.

"I don't want her to grow up with the idea that somehow her parents are less than anyone else," Kidd said.

Virginia voters approved the same-sex marriage ban 57 percent to 43 percent in 2006.

"Nearly 40 million Americans, including Virginians, have voted to protect the definition of marriage as one man and one woman, and those votes shouldn't be discounted by the courts," said Chris Freund, vice president of the conservative Family Foundation of Virginia.

Claire Guthrie Gastanaga, executive director of the ACLU of Virginia, said "things have changed dramatically" in the past seven years. A Quinnipiac University poll released two weeks ago found that 50 percent of registered Virginia voters support same-sex marriage, while 43 percent are opposed. The poll's results had a margin of sampling error that is plus-or-minus 3.1 percentage points.

"If public opinion is indeed changing as same-sex marriage advocates allege, they should be able to win at the ballot box, change the legislature and use the same process we used to pass the amendment in the first place," Freund said.

Gastanaga said that is unrealistic because of legislative districts drawn by Republicans to preserve their control of the General Assembly.

"If we thought we had a viable political and legislative alternative to going to court, we would have taken it," she said.

Brian Gottstein, a spokesman for Attorney General Ken Cuccinelli, said the office does not comment on pending litigation. However, after the Supreme Court rulings in June, he said the office "will continue to defend challenges to the constitution and the laws of Virginia."

The ACLU has said its goal is to legalize gay marriage in at least 20 states by the end of 2016.

The lawsuit filed Thursday is the second one seeking to overturn Virginia's ban. A Norfolk couple filed a lawsuit in federal court last month.

Pennsylvania

Pa. county defends granting gay marriage licenses 
JOANN LOVIGLIO, Associated Press

NORRISTOWN, Pa. (AP) — Lawyers asked a state court Friday to throw out a lawsuit that seeks to stop a defiant county official from issuing marriage licenses to gaycouples, who cannot legally wed in Pennsylvania.

County attorneys for Montgomery County clerk D. Bruce Hanes said he has a sworn duty to uphold the Pennsylvania and U.S. constitutions — and Pennsylvania's law banning same-sex marriage violates both, they argued.

The state "cannot possess a clear legal right to force (Hanes) to abandon his oath," the lawyers wrote.

The documents were in response to a lawsuit filed this week by the state Health Department that seeks a court order to stop Hanes from granting licenses to gay andlesbian couples. County officials said as of late Friday afternoon, Hanes had issuedsame-sex couples 62 marriage licenses since July 24 and 13 of those have been completed and the marriages recorded.

Hanes began granting the licenses not long after the U.S. Supreme Court struck down part of the Defense of Marriage Act, also known as DOMA. At the time, he said he wanted to "come down on the right side of history and the law."

Montgomery County Solicitor Raymond McGarry said at a news conference Friday that the county's motion to dismiss the lawsuit also argues that Commonwealth Court, where the suit was filed, lacks judicial authority in the case and that the Health Department has no legal say, or standing, in the matter.

"We believe Pennsylvania's DOMA is unconstitutional," McGarry said. He cited the state constitution, which says "that all men are born equally free and independent and shall have certain indefeasible rights, among which is the right to pursue one's own happiness."

Pennsylvania is the only state in the Northeast without gay marriage or civil unions.

The Health Department contends that Hanes' actions will cause "administrative and legal chaos" and will likely lead to illegal claims for benefits.

McGarry argued that only the attorney general, district attorney or a private citizen can potentially have legal standing in the case. He also asked for the case to be transferred to the Pennsylvania Supreme Court, the state's highest court and the only one he contended has jurisdiction in the matter.

The American Civil Liberties Union has filed a separate lawsuit to overturn the 1996 state law defining marriage as a civil contract between one man and one woman. Attorney General Kathleen Kane has declined to defend the law, saying she believes it is unconstitutional. That task has now fallen to the governor's office.

Meanwhile, an official in Centre County said she will perform weddings for same-sexcouples who obtain a license from Hanes' office. State College Mayor Elizabeth Goreham said although she doesn't have the power to issue marriage licenses, she can wed couples who already have one.

Pa. same-sex partner ruling raises pension issues 
MARK SCOLFORO, Associated Press

HARRISBURG, Pa. (AP) — A federal judge granted retirement benefits to the female spouse of a woman who died three years ago in Illinois, a ruling that raises questions about the implications of the U.S. Supreme Court's recent gay marriage decision.

Judge C. Darnell Jones II ruled Monday that a 2006 Canadian marriage license and residence in a state that permits civil unions means Jennifer Tobits should collect about $40,000 earned by her late wife, Sarah Ellyn Farley.

Farley's parents pressed a claim for the proceeds of profit sharing from Cozen O'Connor, the Philadelphia law firm that employed Farley in its Chicago office. Farley had signed over those benefits to her parents the day before she died of cancer, but that form requires the spouse's permission and Tobits did not grant it.

Jones put the case on hold until after the Supreme Court determined on June 26 that portions of the federal Defense of Marriage Act were unconstitutional.

"Following the court's ruling, the term 'spouse' is no longer unconstitutionally restricted to members of the opposite sex, but now rightfully includes those same-sex spouses in 'otherwise valid marriages,'" the judge wrote.

The law firm initiated legal action to get the court's guidance to avoid paying the wrong party, not because it opposed Tobits as the benefits recipient, said Bob Fiebach, the firm's lawyer who handled the case. The dispute spawned claims and counterclaims, but it came down to a fight between Tobits and Farley's parents, David and Joan Farley.

Fiebach said companies may need to figure out if they should adopt a mechanism to cope with a shifting legal landscape and where employees can be married in one state, live in a second state and work for a company headquartered in a third state — each of which might have different laws about same-sex couples.

"I think employers will now look at their plans and talk to their tax lawyers and cover this," Fiebach said. "You want to have the same rule for every employee."

Peter Breen — senior counsel with the conservative Thomas More Society, a public interest law firm in Chicago, and a lawyer for Farley's parents — said they are likely to pursue the case further, possibly by an appeal, a request for reconsideration or a request for clarification.

Breen said Farley's death at age 37 in September 2010 occurred before the Illinois Legislature had taken up the civil unions bill that ended up taking effect the following June. He said Jones' decision opens the door to post-death pension benefit challenges in other states that have recently allowed gay marriage or civil unions.

"It could mean that if you're in a state where at death there was no same-sex marriage or same-sex unions or domestic benefits, your retirement benefits may now be due to a partner rather than others who have taken the benefits," Breen said. "It's an odd situation."

A lawyer for Tobits, Teresa Renaker, said "some very interesting problems" could arise as couples who were legally married in a state that permits same-sex marriages attempt to exert legal rights in states that do not.

She said employers and same-sex couples may need to reconsider previous retirement decisions, given the Supreme Court ruling.

Last week in Ohio, a federal judge granted a request by two gay men to have their out-of-state marriage license legally recognized, helping ensure they can be buried beside each other in a cemetery that only permits descendants and spouses.

In New York, state Comptroller Thomas DiNapoli said this week that Jones' decision will force large, private companies to recognize rights under legal gay marriages. DiNapoli, a Democrat, has used the clout of the $160.4 billion state retirement fund to propose shareholder resolutions that would expand the rights of gay workers in companies in which the pension fund has invested.

"The courts are knocking down the doors of discrimination," DiNapoli said. "It is my belief, which is confirmed by this decision, that it is a violation of federal law for those companies whose employee benefit plans are governed by (federal law) to exclude same-sex spouses from federally-mandated spousal benefits."

Associated Press writer Michael Gormley contributed from Albany, N.Y.

Illinois

IL Gov. Quinn says Wisconsin should legalize gay marriage 

MILWAUKEE (AP) — Illinois Gov. Pat Quinn says Wisconsin should follow the lead of other Midwest states and legalize gay marriage.

Quinn said Saturday during a break at the National Governors Association meeting in Milwaukee that gay people should not have more rights in some states in the region and less in others.

Gay marriage became legal this week in Minnesota. Quinn says he would sign a bill to legalize gay marriage in Illinois, but it is tied up in the Legislature.

He called on Wisconsin Gov. Scott Walker and the Republican-controlled Legislature to follow the lead of those states.

There is no movement to do that in Wisconsin, which banned gay marriage in a constitutional amendment passed in 2006.

California

San Diego clerk withdraws bid to revive Prop. 8 

SAN DIEGO (AP) — San Diego's county clerk, the man charged with issuing marriage licenses there and the most prominent public figure to move against gay marriage in California since its recent resumption, has withdrawn a legal bid to stop the practice, saying he was ceding the fight to a group that already has a similar challenge pending.

Ernest Dronenburg Jr. said in a statement Saturday that he was withdrawing his request for the state Supreme Court to halt gay weddings because the sponsors of a 2008 ballot measure to ban same-sex marriage have filed a similar petition.

The state's high court had rejected the clerk's request for a stay stopping gay marriages in California while they considered his petition.

Dronenburg had argued that county clerks could decide independently whether to issue marriage licenses to a couple.

"County clerks carry out their duties, including the issuances of marriage licenses, without supervision or control of the governor or attorney general," Dronenburg wrote in his petition. "Indeed, no statute requires county clerks to report to the governor or attorney general."

He also argued that gay marriage was only legal in Alameda and Los Angeles counties, where the couples who challenged the ban had been married.

The U.S. Supreme Court cleared the way for same-sex marriages to return to the nation's most populous state in June when it ruled that the sponsors of Proposition 8 lacked authority to appeal a federal trial judge's decision that the ban violated the constitutional rights of gay and lesbian Californians.

Those sponsors, who make up the organization ProtectMarriage, filed the petition that prompted Dronenberg's withdrawal.

Dronenburg, a Republican who was elected as San Diego County's assessor-recorder-clerk in 2010, had been chiefly known previously for his views on tax issues.

New Jersey

NJ urges no quick ruling to allow gay marriage 
GEOFF MULVIHILL, Associated Press

A New Jersey judge should not rush into allowing same-sex marriage in the state without carefully considering quickly changing legal issues, lawyers for the state government said in a court filing Friday.

The state says gay rights advocates may be misinterpreting details of a U.S. Supreme Court ruling in their push to get gay marriage recognized in New Jersey, that the issue is not ready to be decided yet and that a quick ruling would be inappropriate.

"Plaintiffs, by virtue of their summary judgment motion, seek to side-step the Supreme Court mandate concerning the need for a factual record," the state Attorney General's Office says in its brief.

The filing Friday is the first legal word from the administration of Gov. Chris Christie in a legal tactic that flows directly from a June U.S. Supreme Court decision that invalidates the key components of the federal Defense of Marriage Act, which had prohibited the federal government from recognizing same-sex nuptials.

In New Jersey, the top state court ruled in 2006 that committed gay couples were entitled to "all the rights and benefits that married heterosexual couples enjoy," but that the state didn't have to allow marriage.

Six gay couples and several of their children sued in 2011, claiming that the state's compromise solution — civil unions that offer legal protections, but not the title of marriage — were not fulfilling that mandate. The issue was already heading for a trial, but it was probably at least several months away.

But days after the landmark federal ruling in June, the couples asked a judge to allow gay marriages immediately, saying the U.S. Supreme Court had changed the dynamics.

Their argument was that if the federal government is conferring benefits — from veteran's survivor payments to joint tax filings — to gay married couples, the state's civil union law would be denying those rights to New Jersey gay couples.

A state judge agreed to hear arguments on the issue on Aug. 15.

The state is asking for the question to proceed to a full trial — and to give the sides additional time to gather facts to support their cases.

In its brief, the state says it believes the federal ruling will give couples in civil unions federal marriage benefits even if they live in states where they are not recognized as married. The state notes that some federal agencies are considering extending protections to non-married gay couples. The state also argues that New Jersey courts should show caution because there's a dispute over the question.

The state also says that if the federal government denies benefits to couples with civil unions, the advocates should be suing the federal government rather than the state.

The gay marriage debate is a part of a political battle in New Jersey as well as a legal one. Lawmakers last year passed a bill to recognize it, but Christie vetoed it.

The governor, who is considered a possible presidential candidate for 2016, said the change was so big that citizens should be able to vote on it — a notion rejected by most of the state's leading gay rights advocates.

Last month, a coalition of state and national gay rights groups announced a new concerted political campaign aimed at persuading lawmakers to override Christie's veto by January.

Thirteen states now recognize gay marriage.

Copyright 2013 The Associated Press.

August 4, 2013