Judge rules part of federal Defense of Marriage Act unconstitutional

In two cases that could affect married same-sex couples in Iowa, federal Judge Joseph Tauro ruled Section 3 of the federal Defense of Marriage Act unconstitutional today, Lisa Keen reported for Bay Windows. Regarding Commonwealth of Massachusetts v. Health and Human Services,

Maura T. Healey, chief of the Massachusetts Attorney General’s Civil Rights Division, told Judge Tauro that Section 3 of DOMA — the section that limits the definition of marriage for federal benefits to straight couples — violates the state’s right under the federal constitution to sovereign authority to define and regulate the marital status of its residents. Healey called DOMA an “animus-based national marriage law” that intrudes on core state authority and “forces the state to discriminate against its own citizens.”

Christopher Hall, representing HHS, said Congress should be able to control the meaning of terms, such as “marriage,” used in its own statutes, and should be able to control how federal money is allocated for federal benefits provided to persons based on their marital status. Tauro essentially replied that the government’s power is not unlimited.

The other case was Gill v. Office of Personnel Management, brought by Gay & Lesbian Advocates & Defenders (GLAD):

GLAD attorney Mary Bonauto told Tauro that DOMA constitutes a “classic equal protection” violation, by taking one class of married people in Massachusetts and dividing it into two. One class, she noted, gets federal benefits, the other does not. Just as the federal government cannot take the word “person” and say it means only Caucasians or only women, said Bonauto, it should not be able to take the word “marriage” and say it means only heterosexual couples. Bonauto said the government has no reason to withhold the more than 1,000 federal benefits of marriage from same-sex couples, and noted that a House Judiciary Committee report “explicitly stated the purpose of DOMA was to express moral disapproval of homosexuality.”

Keen notes that the plaintiffs in both cases asked the judge to apply a strict scrutiny standard, which “requires the government to come up with a fairly significant reason for treating gay couples differently under the law.” Judge Tauro found that Section 3 of DOMA fails even a “rational basis” standard, which is easier for the government to satisfy.

If today’s rulings are upheld by the First Circuit U.S. Appeals court or the U.S. Supreme Court, hundreds of Iowa couples married since April 2009 may be able to receive federal benefits.

UPDATE: Andrew Cohen, CBS News Radio Chief Legal Analyst and Legal Editor, is going through the rulings. He notes Judge Tauro held that Congress has no interest in uniform definition of marriage rights and that the federal government should have left marriage policy to the states. In addition, the judge determined that “facts upon which DOMA was based [are] now obsolete or at least overshadowed by more recent science on same-sex marriage-childrearing.”

SECOND UPDATE: Speaking of marriage equality, NBC has opened up a wedding contest to same-sex couples. Initially only heterosexual couples were eligible to enter.

THIRD UPDATE: The Constitutional Law Prof blog summarized Judge Tauro’s legal reasoning and posted links to pdf files of both rulings.

FOURTH UPDATE: Adam Bink discusses the debate in LGBT circles on whether it would be better or worse for the U.S. Department of Justice to appeal this ruling.

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Poll shows majority of Iowans favor marriage equality

Research 2000’s latest Iowa poll for KCCI-TV contains good news for supporters of marriage equality. The survey asked, “Now that more than a year has gone by since the Iowa Supreme Court legalized same-sex marriage, do you favor or oppose marriage rights for same-sex couples?” 53 percent respondents said they favor those rights, 41 percent opposed them and 6 percent were unsure.

I haven’t seen the full poll results, showing support for same-sex marriage rights among men, women, Democrats, Republicans and independents. I will update this post with a link to the cross-tabs when I find them. Bryan English of the Iowa Family Policy Center told KCCI he didn’t think the poll was representative of Iowans’ views, but several other statewide polls have shown that the majority of Iowans are not eager to overturn marriage equality. As time passes, public acceptance should increase if the experience of Vermont and Massachusetts are guides.

The KCCI poll also found that 62 percent of respondents support legalizing medical marijuana in Iowa, 33 percent oppose doing so and 5 percent are unsure.

Getting back to the same-sex marriage issue, I give huge credit to the Libertarian candidate for Iowa governor, Eric Cooper. On Thursday he made the case for tolerance while speaking to the Ames Conservative Breakfast Club.

Here’s my rough transcript of the first part of this clip:

You know who the Pilgrims were? The Pilgrims were a group of people in England, and everybody in England hated their guts. And you know what they did? They came to America to live here. And the reason–they came here because we were the land of the free. We started the land of the free. That is, even if everyone in surrounding society hates your guts, in America as long as you’re not hurting other people and their property, you can live the way that you want, as long as you’re being peaceful.

To me, that’s the most American story there is. If you’re a peaceful person who’s not hurting other people, you get to live your life according to your cultural traditions. OK, well, guess what? There are some homosexuals in America today, and to me, they’re the Pilgrims, ok? Surrounding society doesn’t like ’em very much, but you know what? What America is, is you get to live the way that you want to live. And if their cultural tradition is that they can get married, I think that’s America, to allow them to follow that cultural tradition. No, I don’t think that’s [unintelligible] surrounding society as a whole, and I think if we’re gonna restrict that, we’re not America anymore, we’re England, ok? And we’re better than England, we’re America.

Now people say, “Well shouldn’t we be allowed to vote on marriage and what marriage means in the state of Iowa?” Well, yeah, legally, there are mechanisms by which a sufficiently large supermajority can persecute any minority they want. Yes, legally, we could all vote to persecute the Pilgrims if we wanted to and yeah, legally, we could all vote to say, you know, gay people shouldn’t be allowed to marry if we want to. But that’s not America anymore, ok?

Cooper’s a bit off on the history. The Pilgrims were far from laid-back and accepting of other people’s traditions. In fact, “New England Puritans, long viewed as a persecuted group in England, were the least tolerant of other faiths.” But I cut Cooper slack. He’s a neuroscientist, not a historian, and what he did took guts.

You’d expect a Libertarian addressing a Republican group to focus on likely areas of agreement: reducing taxes and the size of government. Instead of just preaching to the choir, Cooper challenged his audience to think about a charged issue differently. He had to know that most people at that breakfast club oppose what the Iowa Supreme Court did.

Post any thoughts on same-sex marriage in Iowa in this thread. The Des Moines Register reports that Iowa’s leading gay wedding planner may star in a television “docu-reality series” about his work. Beau Fodor created Gay Weddings With Panache soon after the Varnum v Brien decision was announced last year.

UPDATE: On Sunday the Des Moines Register published results from a Selzer and Co. Iowa poll of 501 likely Iowa Republican primary voters, which was in the field from June 1 through June 3. The survey included several questions about gay marriage. About 77 percent of likely GOP primary voters agreed that “Iowans should have a chance to vote on changing the constitution to specifically ban gay marriage,” but 20 percent disagreed with that statement. Meanwhile, only 50 percent of likely GOP primary voters agreed that “Iowans should vote to remove current Supreme Court justices from their office because of their decision on gay marriage.” About 45 percent disagreed with that statement. Regarding the statement, “Some Iowans have overreacted to this issue, and having gay marriage in Iowa is just not that big a deal,” 35 percent of likely Republican primary voters agreed, while 62 percent disagreed. I find those numbers encouraging.

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Iowa Department of Public Health having trouble with marriage equality

When some Republicans tried to convince county recorders not to issue marriage licenses to same-sex couples last April, Iowa Department of Public Health officials made clear that ignoring the Iowa Supreme Court’s Varnum v Brien ruling was not an option. Unfortunately, the IDPH has determined that marriage equality does not require equal treatment for married gay couples who become parents. Now IDPH Director Tom Newton has foolishly decided to fight a lawsuit brought by a married lesbian couple seeking to have the non-birthing spouse listed on their child’s birth certificate. Heather and Melissa Gartner sued senior IDPH officials on behalf of their daughter this week, having tried and failed to resolve the matter through administrative channels.

Based on advice from the Iowa Attorney General’s Office, the IDPH contends that the non-birthing spouse must complete the adoption process in order to be listed as the second parent on a child’s birth certificate, even if the child was born after the parents were legally married. I’m a big fan of Attorney General Tom Miller, but his office blew it on this one.  

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Marriage equality anniversary thread

One year ago today, the Iowa Supreme Court’s Varnum v Brien ruling went into effect. From April 27, 2009 through the end of last year, at least 1,783 same-sex couples received marriage licenses in Iowa. The real number is probably higher, because about 900 marriage licenses did not specify the gender of the couple involved. Despite a petition drive led by some Iowa Republicans and the Iowa Family Policy Center, not a single county recorder denied a marriage license to a same-sex couple.

Although all three Republican candidates for governor say they want to overturn the Varnum v Brien ruling, marriage equality is probably here to stay. Conservative groups are not urging voters to pass a ballot initiative calling for a constitutional convention, which would be the quickest path to amend the Iowa constitution. Bob Vander Plaats probably won’t win the Republican nomination for governor, much less the November election, and even if he did, his plan to halt gay marriage by executive order is a non-starter.

That leaves the self-styled defenders of traditional marriage one path: approving an amendment restricting marriage rights in two separately elected Iowa legislatures, then convincing a majority of Iowans to vote for that amendment (in November 2014 at the earliest).

Republicans have an outside shot at winning a majority in the Iowa House in 2010, but they have virtually no chance of taking back the Iowa Senate this year. Democrats currently hold a 32-18 majority in the upper chamber. A net gain of four or five seats is the best-case scenario for the GOP, and I consider a net gain of two or three seats much more likely. That leaves Senate Majority Leader Mike Gronstal in a position to block all efforts to bring a constitutional amendment on marriage to a floor vote during the 2011 and 2012 legislative sessions.

Gubernatorial candidate Rod Roberts claims he could force Democrats to allow a marriage vote. His plan is to veto all legislation, including the state budget, until the Iowa House and Senate have voted on a marriage amendment. I doubt a Republican could win that game of chicken even if Governor Chet Culver is defeated this November. Polling indicates that most Iowans are not eager to ban gay marriage and think the state legislature has more important things to do. Anyway, the most likely Republican nominee, Terry Branstad, has an incoherent position on gay marriage and probably would make only a token effort to get a constitutional amendment passed.

Share any thoughts about same-sex marriage in Iowa in this thread.

Speaking of civil rights, some reports indicate that the House of Representatives will vote this year to repeal the military’s “Don’t Ask, Don’t Tell” policy, which has ended far too many military careers. Click here to read a moving open letter to President Obama from an Air Force major who was discharged under Don’t Ask, Don’t Tell.

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Obama orders end to discrimination by hospitals

President Barack Obama has instructed the Health and Human Services department to develop new rules for hospitals that receive Medicare or Medicaid funding.

The memorandum from Obama to HHS Secretary Kathleen Sebelius, made public late Thursday night, orders new rules that would ensure hospitals “respect the rights of patients to designate visitors.”

Obama says the new rules should require that hospitals not deny visitation privileges on the basis of sexual orientation or gender identity.

“Every day, all across America, patients are denied the kindnesses and caring of a loved one at their sides whether in a sudden medical emergency or a prolonged hospital stay,” Obama says in the memo.

Affected, he said, are “gay and lesbian American who are often barred from the bedsides of the partners with whom they may have spent decades of their lives — unable to be there for the person they love, and unable to act as a legal surrogate if their partner is incapacitated.”

Cue conservatives to start whining about “special rights for homosexuals,” as if there is something extraordinary about visiting a loved one in the hospital or granting your life partner power of medical attorney. I’m glad the president took a stand on this issue.

I’m curious to see how the U.S. Conference of Catholic Bishops reacts to this executive order. I don’t know whether Catholic hospitals are more likely to have rules in place preventing visitation by gay or lesbian partners, but I would expect religious conservatives to complain about the government nullifying such rules. I wonder whether there is even grounds to challenge Obama’s order in court, if hospitals could demonstrate that their visitation bans are grounded in religious principles.  

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