By Jacob Combs
Tomorrow, February 21, marks a big deadline in the Prop 8 case that those of us who have been counting the days since the 9th Circuit’s decision have been eagerly anticipating: the last day that the proponents of Prop 8 can file a petition for rehearing with the 9th Circuit. The proponents have 14 days from the initial decision to do so, meaning that if they do not request an en banc review of the February 7 decision with a larger panel of the appeals court, the 3-judge panel’s ruling will be the last word at this level of appeal.
At this point, there’s no reason to speculate whether or not the proponents will actually file for a rehearing tomorrow, as they may be waiting until the last moment to do so. One question that is probably on many minds though is what happens to the stay depending on the proponents’ actions tomorrow.
In its ruling on February 7, the 9th Circuit wrote that the mandate (that is, the official notice of the decision) will not go into effect until 7 days after the deadline for a rehearing petition expires, or 7 days after a rehearing is denied. What that means is that the 9th Circuit’s stay on Judge Walker’s ruling striking down Proposition 8 will be lifted 7 days after tomorrow’s deadline (February 28), should the proponents choose not to file for rehearing. If the proponents do file for a rehearing, the stay is automatically extended until that rehearing is either denied or it is accepted and then ruled on, both of which could take some time.
Even if the proponents do not file for a rehearing tomorrow, however, it’s important to note that it is only the 3-judge panel’s initial stay that will expire on the 28th. Regardless of what they do tomorrow, the proponents have a full 90 days following the decision to seek Supreme Court review. Should they choose not to petition for rehearing, the proponents could still request an extension of the stay from the 9th Circuit pending Supreme Court review. Should that request be denied, they could petition the Supreme Court. Justice Kennedy, who is responsible for petitions from the 9th Circuit, could then either grant a stay on his own or refer it to the full court.
Tomorrow is certainly an important day no matter how the proponents of Prop 8 decide to act, because it gives us insight into their strategy moving forward. Nonetheless, it is too soon to say when marriages could resume in California.
February 20, 2012
By Jacob Combs
The Washington Post reports that the Maryland Senate plans to take quick action on the marriage equality bill that passed the House of Delegates last week. From the Post:
A Maryland Senate committee could vote on same-sex marriage as early as Tuesday, setting the stage for the legislation to get to Gov. Martin O’Malley’s desk by the end of the week.
Sen. Brian E. Frosh (D-Montgomery), chairman of the Judicial Proceedings Committee, said in an interview Sunday that his panel will vote “quickly”on the gay nuptials bill that narrowly cleared the House of Delegates on Friday night.
A vote Tuesday would allow the bill sponsored by O’Malley (D) to be passed on the Senate floor this week, Frosh said. If there are delays, he expects a full Senate vote by early next week.
Last year, 25 Senators voted in favor of marriage equality. This year, opponents could attempt to filibuster the legislation, which would take 29 votes to break or, like last year, Senate President Thomas Mike Miller could head off a filibuster despite the fact that he personally opposes the bill.
February 20, 2012
By Jacob Combs
Yesterday, just like he promised to, New Jersey Gov. Chris Christie vetoed the marriage equality bill that passed the state legislature earlier this week.
Along with his veto, Christie has called for a referendum on the issue in November while simultaneously issuing insert-foot-here arguments suggesting that African-American civil rights leaders would have been “happy” to have a referendum on their rights. While the governor has accused Democrats in the New Jersey Legislature of political theater, the truth is that either both sides of the issue in New Jersey are guilty of that charge, or neither are.
Supporters of the bill are taking a long-term strategy towards bringing marriage equality to the Garden State with a plan to gain enough support by 2014 to override the governor’s veto with a 2/3 vote in both houses of the legislature. Assembly Democrats have stated that they would have had two more votes in favor of marriage equality if two Republican members who were on vacation had taken part in Thursday’s vote. That means supporters will have to court 10 more votes in the Assembly and three more in the Senate to override the veto.
Christie’s calculus on the issue is not difficult to ascertain. As Steven Goldstein, Chair of Garden State Equality, said in a statement:
[Christie] won’t veto the bill because he’s anti-gay. He’ll veto the bill because the 2016 South Carolina Republican Presidential primary electorate is anti-gay. And if I get flooded with letters now from Charleston, so be it.
But despite Gov. Christie’s perhaps wise political choice regarding his future career, his veto threat may in fact be an dereliction of the duty pertaining to his current career. As Tobias Wolff, Professor of Law at the University of Pennsylvania, astutely pointed out in an e-mail to Prop8TrialTracker.com’s Adam Bink:
The New Jersey Supreme Court decided, unanimously, that same-sex couples are entitled to fully equal treatment under the New Jersey Constitution. Experience has demonstrated that civil unions fail to provide that fully equal treatment. In enacting a marriage equality bill, the New Jersey legislature is fulfilling a constitutional mandate from the State’s highest court.
The case that Professor Wolff is referring to is Lewis v. Harris, a 2006 decision by the New Jersey Supreme Court that gay and lesbian couples in the state were entitled to the same equal protection as heterosexual couples. In its ruling, the court stated:
We have decided that our State Constitution guarantees that every statutory right and benefit conferred to heterosexual couples through civil marriage must be made available to committed same-sex couples. Now the Legislature must determine whether to alter the long accepted definition of marriage.
This week, the Legislature did just that, determining that keeping the term ‘marriage’ from gay and lesbian couples is an unfair burden on those couples’ relationships. In 2008, a Civil Union Review Commission comprised of clergy, lawyers, lawmakers and marriage equality activists unanimously recommended that New Jersey provide marriages to same-sex couples, saying that “civil unions will not be recognized by the general public as the equivalent of marriage in New Jersey.”
By vetoing the marriage equality bill that the New Jersey legislature passed this week, Gov. Christie has expressly reneged on his constitutional responsibility to confer “every statutory right and benefit” to same-sex couples, and he has thwarted the power of the Legislature, provided by the state’s Supreme Court in 2006, to make the decision to provide the equal rights that Lewis mandated.
With his conditional veto, Christie is clearly trying to have it both ways on the issue of marriage equality. In his statement, the governor said, “I have been just as adamant that same-sex couples in a civil union deserve the very same rights and benefits enjoyed by married couples — as well as the strict enforcement of those rights and benefits.” He also called for creating an ombudsman position that would look into complaints lodged by couples that they have been discriminated against despite having entered into civil unions.
But as Judge Stephen Reinhardt so eloquently put it in his ruling striking down California’s Proposition 8 at the 9th Circuit, it is impossible to claim that gay and lesbian couples in civil unions deserve “the very same rights and benefits” as couples in marriages, while simultaneously arguing that they do not have the right to the term ‘marriage.’ The math here is not complex: either gay couples have all the same rights as straight couples, or they have all the same rights minus one–the right to call their unions what they really are.
Gov. Christie’s veto is not merely a matter of personal choice or a difference of opinion. It is one man, disagreeing with other two branches of government in his state, making a conscious decision to withhold equal protection from a class of its citizens.
February 18, 2012
By Adam Bink
Updated on 2/18 to reflect the correct vote count. As in New Jersey, the button of a legislator in support of the bill did not work during voting.
A remarkable week for equality. Just now, the Maryland House of Delegates passed legislation legalizing marriage equality for same-sex couples, 72-67. Many may remember the House of Delegates did not take up the bill last year after it was clear it would not have sufficient support to pass.
The bill now proceeds to the Senate, where a modified version did pass last year, then onto Gov. O’Malley’s desk where he is expected to sign it. It’s also likely opponent would take the issue to the ballot, paving the way for 5 ballot questions on marriage equality this year if, as expected, opponents of equality in Washington State do the same.
If you want to follow full coverage of the debate and amendments, the Washington Blade has been following it the last few days.
February 17, 2012
By Jacob Combs
Delegate John Doyle, a Democrat, has introduced a bill in the West Virginia House to provide gay and lesbian couples with the same legal rights and protections as their heterosexual counterparts. The AP reports:
Delegate John Doyle says he introduced the bill Thursday to start a conversation about family equality. The Jefferson County Democrat says that gay and lesbian couples should have the same safety net to deal with the death of a parent or the loss of a job as married couples.
Fairness WV, which advocates on behalf of the gay, lesbian and transgender community, says this is the first time a civil union bill has been introduced in the West Virginia Legislature.
Doyle also sponsored a bill that would prohibit workplace and housing discrimination based on sexual orientation. That bill has not advanced since it was introduced.
February 17, 2012
By Jacob Combs
As we wrote earlier today, the Maryland House of Delegates began debate on a proposed marriage equality bill. There hasn’t been too much news out of the state today in terms of the bill, but here are some of today’s updates from Maryland (culled from these three articles).
- The marriage equality bill was originally supposed to be taken up this morning, though it was later delayed until a special afternoon session. In the afternoon session, the House passed one amendment to the bill, and then recessed until tomorrow at 12:00 p.m.
- The amendment that passed was sponsored by Delegate Wade Kach, a Republican, who announced that he would support the legislation if his proposal to move the effective date on the bill from October to January was accepted. Kach wants a voter referendum on the issue, and believes moving back the effective date will make it more possible to get the measure on the ballot.
- A full vote on the bill could occur tomorrow; however, no vote has been definitively scheduled as of yet. Additional amendments to the bill will be considered starting at noon.
- Two Democratic delegates, John Olszewski and Pam Beidle, joined Del. Kach today in announcing they would vote yes on the bill.
- Del. Veronica Turner, a confirmed yes vote, was taken to the emergency room today in what was described as a “serious” condition. She will have emergency surgery tomorrow and will not be present for a vote, should it occur.
- Supporters of the legislation are still lobbying to garner more yes votes for the bill.
- According to Maryland law, opponents of marriage equality would need to collect 55,736 signatures by June 30 to place the bill on the November ballot.
Check back tomorrow for more updates on the day’s debate as well as a possible vote!
February 16, 2012
