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Judicial
One of America's main guarantees of freedom, and one part of our system of "checks and balances," is an independent judiciary: judges who do their job of assuring constitutional and legal equality and justice for all, rather than just rubberstamping whatever politicians or the passions of the moment might dictate. Attacks on judges and the courts for doing their job are nothing new — going back to the denunciations of "activists judges" and billboards demanding the impeachment of the Supreme Court justices who ruled in favor of equlity in cases such as Brown v. Board of Education. Every American, gay or non-gay, is entitled to their day in court. Numerous organizations across the country are representing same-sex couples and their families in order to secure marriage to protect all families.
Use the key resources below to learn more about the landmark and current cases in this fight for fairness.
FROM EVAN WOLFSON:
The court got it right
Evan Wolfson writes, "Last week, the highest court in our nation's biggest state got it right: Excluding loving committed couples from marriage harms them and their families and helps no one. Exclusion also violates the constitution's command of equality for all. American values of fairness and inclusion really do matter and apply to gay and non-gay people alike."
BLOG: Loving equality
Evan Wolfson and civil rights attorney Bernard S. Cohen, who argued the Loving's case, write together about Loving v. Virginia as a milestone in racial equality, an important vindication of marriage as a cherished civil right, and a testament to the importance of fighting for equality, rather than sitting by silently, indifferently, or complacently in the face of cruel exclusion.
Stay in the fight: The court stumbled, but the movement for justice continues
Evan Wolfson critiques the Washington state high court's decision in 2006 where the court stumbled to provide marriage equality with a sharply divided 5-4 ruling and concludes the movement for justice must go on.
The freedom to marry: Keep dancing
Following the New York state high court's disappointing decision perpetuating discrimination in marriage, Evan Wolfson notes, "The silver lining to the New York State high court's poorly argued ruling in favor of marriage discrimination is, well, that it's poorly argued. If we make our case for equality directly to our fellow Americans, we'll win."
Happy, but not satisfied
Evan Wolfson, executive director of Freedom to Marry and author of Why Marriage Matters, speaks with Newsweek's Debra Rosenberg about the unanimous NJ Supreme Court decision, the upcoming election, and the work ahead to win the freedom to marry.
The un-American attacks on so-called activist judges (pdf)
The American judicial system plays a crucial role in our system of checks and balances. Find out why the disingenuous attacks on our judges and courts cannot be allowed to continue.
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WHERE YOU CAN GO TO GET INVOLVED OR LEARN MORE:
Celebrating the Freedom to Marry on the 40th Anniversary of Loving v. Virginia
Our page commemorates the Loving celebration in June 2007 which was co-sponsored by civil rights organizations from across the country to honor the freedom to marry as a civil right, featuring a rare public statement by Mrs. Mildred Loving (a plaintiff in the historic Loving v. VirginiaSupreme court case which ended racial discrmination in marriage) supporting the freedom to marry for all Americans.
National Center for Lesbian Rights: Marriage
The National Center for Lesbian Rights (NCLR) is a national legal organization committed to advancing the civil and human rights of lesbian, gay, bisexual, and transgender people and their families through litigation, public policy advocacy, and public education. NCLR is lead counsel on behalf of same-sex couples in the California marriage case, which is currently before the California Supreme Court.
Lambda Legal's Cases Lambda Legal lists their Landmark Cases which include marriage-related cases, and their current docket of cases which include the following marriage cases:
- (Amicus) Kerrigan v. State of Connecticut
- Varnum v. Brien in Iowa
- In re Marriage Cases in California
American Civil Liberties Union's LGBT Project
Since the first marriage lawsuit for same-sex couples in 1972, the ACLU has been at the forefront of both legal and public education efforts to secure marriage for same-sex couples and win legal recognition for LGBT relationships.
Gay and Lesbian Advocates and Defender's Marriage-Related Cases
Gay & Lesbian Advocates & Defenders (GLAD) is New England's leading legal rights organization dedicated to ending discrimination based on sexual orientation, HIV status and gender identity and expression. GLAD is involved in pending marriage-related cases.
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LEGISLATIVE STATUS OF GAY AND LESBIAN FAMILIES IN THE U.S.:
Freedom to Marry Legislative Maps
View and/or download United States maps tracking proposed legislation concerning marriage throughout our nation. Also, find maps showing the current status of protections for same-sex couples in our country and historical views of past marriage struggles.
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THE NUMBERS: POLLING & STATISTICS:
- On May 5, 1993, Hawaii's highest court was the first ever to rule that excluding same-sex couples from marriage was discrimination. The case was sent back to trial and the decision was reaffirmed in 1996, but the judge stayed enforcement due to the state's appeal of the Hawaii Supreme Court. The appeal won out the following year after an anti-marriage state constitutional amendment was passed in Hawaii. The state legislature responded by passing the first ever 'Repicrocal Beneficiaries' law giving some protections to same-sex couples.
- In Baker v. State of Vermont which was decided on December 20, 1999, the Vermont Supreme Court ruled that same-sex couples are entitled to the same rights as different-sex married couples. Following this ruling, the legislature fell short of equality and created the first civil unions law.
- The Supreme Judicial Court of Massachusetts ruled on November 18th, 2003 that it was unconstitutional to discriminate against gay and lesbian couples in marriage and required marriage be extended to same-sex couples.
- On October 2006, the New Jersey Supreme Court unanimously ruled same-sex couples deserve the same rights and responsibilities of marriage, but failed to require full equality in marriage. This led to the NJ legislature passing a civil unions law.
- On May 15, 2008, the California Supreme Court ruled in In Re: Marriage Cases to uphold the freedom to marry in California and determined that "limiting the designation of marriage to a union 'between a man and a woman' is unconstitutional and must be stricken from the statute, and that the remaining statutory language must be understood as making the designation of marriage available both to opposite-sex and same-sex couples." At the same time, an anti-marriage initiative which qualified for the November 2008 ballot is proposing to take away equality and fairness in California and write marriage discrimination into the state constitution.
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PUBLICATIONS:
Martinez v. County of Monroe—NY Court Affirms Same-Sex Couples' Marriages from Elsewhere (pdf)
In a unanimous decision, a New York appellate court ruled that marriages of same-sex couples entered into outside of New York must be recognized. The case, filed by the New York Civil Liberties Union, is the first appellate court decision in the state and the first known decision in the country to hold that a valid same-sex marriage must be recognized here. While it is good and right that marriage should be honored, not destabilized, New Yorkers should not have to leave their home to get married.
Responding to Claims of Judicial Tyranny (pdf)
The Task Force provides an argument against 'judicial tyranny.'
And Justice For All? Litigation, Politics, and the State of Marriage Equality Today
In this ACS Issue Brief, Professor Goldberg examines the current state of marriage equality litigation, and argues that eight arguments commonly adopted by proponents of marriage discrimination are legally flawed.
Challenging Claims of Judicial Tyranny:
Testimony to the United States Senate Judiciary Committee (pdf)
Sean Cahill from the Task Force provides testimony to the U.s. Senate Judiciary Committee concerning Bush's statements about 'activist judges' following the Massachusetts marriage decision, and how these statements are a threat to the American judicial system.
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NEWS:
Politicians and church leaders back marriage equality in Iowa
The fight for equality continues in the heart of rural America this week, as the Iowa Supreme Court considers a lawsuit brought by six same-sex couples denied marriage licences in the state. Senior attorneys from Lambda Legal, joined by former Iowa solicitor general Dennis Johnson, will argue that denying marriage to same-sex couples violates the equal protection and due process guarantees in the state's Constitution…At least 17 briefs will be filed with the Iowa Supreme Court by a wide array of local and national organizations and individuals on behalf of the six same-sex couples and their families. Supporters include doctors, social workers, scientists, historians and more than 200 clergymen and other faith leaders.
OPINION: Marriage Decision: Not Activism
After noting the milestone Perez v. Sharp decision by the California Supreme Court to be the first state to strike down race discrimination in marriage in 1948, Jon B. Eisenberg responds to various judges questions about the role of the court in the pending California Supreme Court case on marriage saying, “For the courts to decide such constitutional questions is not judicial activism — it is their job. And the time is now in the Marriage Cases — not 10 years from now, not a hundred years from now — because now is the time when the question has been properly put to the California Supreme Court.”
Around the Country, High Courts Follow California’s Lead
The CA Supreme Court is the most influential state court in the nation, clearly making the outcome of the marriage equality case very important to the entire nation. At the marriage hearing, Chief Justice George quoted repeatedly from a 1948 decision of his court, Perez v. Sharp — the first state high court decision to strike down a law banning interracial marriage. Over the next two decades, the rest of the nation followed it, culminating in a similar ruling by the United States Supreme Court in 1967.
Court Likely to Rule in Favor of the Freedom to Marry
Former Berkeley City Attorney Manuela Albuquerque is sure the California Supreme Court will invalidate the marriage law's exclusion of same-sex couples from marriage as a violation of the California Constitution, and presents a lay person's guide to the gay marriage cases' legal terrain and the import of the justices' questions.
Need to End Exclusion from Marriage Gains Notice in State Court
On the way home from work in Rochester, Patricia Martinez stopped at a liquor store and bought a small bottle of Champagne to celebrate her marriage to another woman. The wedding took place in Canada nearly four years ago, but it wasn't until Feb. 1 that a New York appellate court declared it valid in the state... Last week in Manhattan, a State Supreme Court justice, ruling in a divorce proceeding, recognized the Canadian marriage of two New York City women. Advocates for marriage say the two court decisions last month granting reciprocity in New York to marriages of same-sex couples in other jurisdictions simply underline what most people would consider common sense.
Interpreting a Landmark Ruling As Big Step Toward Marriage Equality
When a New York appellate court ruled that out-of-state marriages between same-sex couples were legal there, it marked a major step in the establishing of marriage equality in this country. But the victory, while certainly another step in the right direction, was maddeningly ironic: New York gays and lesbians who want to get married still can’t do so in their home state--which will, however, recognize them if done elsewhere.
Over 500 watch historic hearing on live video
In all, more than 500 people flocked to San Francisco's Civic Center on Tuesday to watch the state Supreme Court hearing on the freedom to marry via live video feeds that were piped into a library, a law school and a basement conference room in the courthouse because the courtroom was filled to capacity.
Exclusion From Marriage Is at Heart of California Case
For almost four hours on Tuesday, the California Supreme Court heard arguments in the most important marriage case since Massachusetts’s highest court allowed gay and lesbian couples to marry there more than four years ago. But it took only 15 minutes for Justice Carlos R. Moreno to identify the central question. “Doesn’t this just boil down to the use of the m-word — marriage?” he asked…Lawyers for the same-sex couples seeking the right to marry said that marriage was a unique expression of love and commitment and that calling their unions anything else was a form of second-class citizenship.
Rally backs marriage equality ruling
About 75 people gathered downtown Monday to protest Monroe County officials' decision to appeal a court ruling requiring New York state to recognize marriages of same-sex couples performed outside the state. "Everyone deserves to be treated equally and fairly under the law," said Todd Plank, who helped organize the rally at noon outside the County Office Building, 37 W. Main St.
EDITORIAL: A Victory for Marriage Equality
The Times editorial staff says a N.Y. appeals court ruling in favor of recognizing out-of-state marriages of gay and lesbian couples is "...important progress toward changing laws and attitudes that deprive gay people of equal rights and deny the dignity of New York’s many gay families. They should be able to live, marry and raise children with the same respect and the same rights as anyone else.
State Court Recognizes Marriages From Elsewhere
A New York appellate court ruled Friday that valid out-of-state marriages of same-sex couples must be legally recognized in New York, just as the law recognizes those of heterosexual couples solemnized elsewhere. Lawyers for both sides said the ruling applied to all public and private employers in the state. While it is good and right that marriage should be honored, not destabilized, New Yorkers should not have to leave their home to get married. Read the decision (pdf).
BLOG: New York Appellate Court Orders Recognition of Same-Sex Couple’s Canadian Marriage
Prof. Arthur S. Leonard analyzes the New York court decision requiring recognition of marriages from out of state.
Iowa Politicos Sue to Overturn Marriage Equality Ruling
Five Republican lawmakers in Iowa have filed court documents urging the state supreme court to overturn a Polk County judge's decision that struck down a marriage discrimination law.
Fischer: Let Iowa judges do jobs, decide marriage equality cases
Whether or not you agree with the decision, Judge Hanson issued a multi-page, well-written opinion based on testimony, expert opinion and constitutional analysis. That's exactly what judges should do. Those who disagree with the decision appealed to the Iowa Supreme Court. That is their right. Let the process move forward as it should, and let the Iowa Supreme Court make its own independent review.
OPINION: Marriages, Civil Unions Collide In Court
A pending decision by the Connecticut Supreme Court will determine whether Connecticut must recognize same-sex marriage. California's highest court will address the same issue later in the year. Although these cases look similar to other lawsuits around the country, they could mark the beginning of a much more complicated stage in the shaping of laws concerning same-sex couples.
OPINION: MD's highest court rules against marriage equality: Why, in this area, litigation still matters
Despite the existence of pro- or anti-freedom to marry laws in nearly every state, litigation is still very relevant. This article provides a rundown of how it can be relevant in various states.
Non-gay ally sues over anti-gay marriage amendment in WI
The first lawsuit attacking the anti-gay marriage ban in Wisconsin was mostly dismissed by a Dane County judge Wednesday. The judge says the man cannot sue because he is not gay and has not been harmed by the amendment. "I think every citizen in the state has standing on this issue, including me," William McConkey said. "I was asked would I have done this if I didn't get have a gay daughter. Probably not. I'd still be outraged, but I wouldn't have put myself through this. But I'm fighting for my kid."
Marriage victory in IA district court
This article provides a good summary of the Iowa decision. From a legal perspective, the critical portion of the opinion is the judge's explanation of why the record compels the conclusion that the state's anti-gay Defense of Marriage Act (DOMA) is unconstitutional. He accepts the argument that the relevant issue under the state Constitution from a due process perspective is not whether 'gay marriage' is a fundamental right, but rather whether same-sex couples have the right to marry, since the right to marry is in itself a fundamental right.
Marriage ripe for decision in 2 courts
All eyes now are on the highest courts in California and Connecticut, where decisions are eminent on whether civil unions and domestic partnerships are adequate substitutes for matrimony.
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MULTIMEDIA:
VIDEO: Supreme Court oral arguments on same sex marriage case
Monday, May 14, when Senior Attorney Ben Klein appeared before the Connecticut Supreme Court in Kerrigan & Mock v. Connecticut Dept. of Public Health. The case challenges Connecticut's exclusion of lesbian and gay couples from full marriage equality. After two and a half years, the eight plaintiff couples in the case finally have their day in court.
VIDEO: Oral arguments in MD
Video archive of oral arguments in the case of Frank Conaway et al. v. Gitanjali Deane et al. in the Court of Appeals of Maryland regarding the question: Does Maryland law prohibit the marriage of two persons of the same gender?
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May 22, 2008
Evan Wolfson writes, "Last week, the highest court in our nation's biggest state got it right: Excluding loving committed couples from marriage harms them and their families and helps no one. Exclusion also violates the constitution's command of equality for all. American values of fairness and inclusion really do matter and apply to gay and non-gay people alike." [link]
Huffington Post
June 12, 2007
Evan Wolfson and civil rights attorney Bernard S. Cohen, who argued the Loving's case, write together about Loving v. Virginia as a milestone in racial equality, an important vindication of marriage as a cherished civil right, and a testament to the importance of fighting for equality, rather than sitting by silently, indifferently, or complacently in the face of cruel exclusion. [link]
In a powerful, closely reasoned 63-pp. decision in Lambda Legal's historic lawsuit released on August 30, 2007, an Iowa trial court struck down the exclusion of same-sex couples from marriage. The court found that the denial of marriage harms couples and their kids, while helping no one and serving no legitimate government interest. The ruling is a victory for families and fairness in America's heartland. Read the Iowa decision here (pdf)
November 15, 2006
In this ACS Issue Brief, Professor Goldberg examines the current state of marriage equality litigation, and argues that eight arguments commonly adopted by proponents of marriage discrimination are legally flawed. [link]
