|AFER's Ted Olson and David Boies|
The American Foundation for Equal Rights – the group backing the constitutional challenge to Prop 8 – held a conference call with attorneys Ted Olson and David Boies on Wednesday to discuss the latest developments in the case of Perry v. Schwarzenegger.
The legal team filed a motion with the 9th Circuit Court of Appeals requesting that the court immediately lift it’s stay of the injunction against same sex couples getting married. The team noted that it’s been 202 days since District Court Judge Vaughn Walker’s ruling that Prop 8 is unconstitutional and very day that goes by – harm is done to same sex couples.
The team has also asked the California Supreme Court to expedite their response to whether the proponents of Prop 8 should have standing to defend the amendment in federal court. The state court indicated it could take up to a year to render that response. To emphasize the pressing urgency of time, AFER now has a count-down clock on its website noting the day, hours, minutes and seconds since District Court Judge Vaughn Walker declared Prop 8 unconstitutional.
“The whole point of our motion last week to the Supreme Court and our motion today to the 9th Circuit is to remind and state as forcibly as we can – that these are civil rights that are being infringed on in an every day basis.” Olson said.
Olson went on to note that the court can’t ask people to wait to get their constitutional rights. “If this was a question of children not going to the school or not being able to vote – it would be obvious that the courts would have to move swiftly on this.”
In a later conference call sponsored by the Courage Campaign – three same sex couples explained just how critical time is to them. The couples are part of the Courage Campaign’s incredible Testimony Project – which I strongly encourage you to check out.
Derence Kernek of Palm Springs said that his partner of 40 years – Ed- has Alzheimer’s Disease. Derence choked up explaining that Ed wants to “remember our uniting together and the commitment to our love.”
The AFER conference call came just minutes after Attorney General Eric Holder announced that the Justice Department will no longer defend the Defense of Marriage Act in federal court, they must continue to enforce it as a law until it is repealed or overturned by a court. Late Wednesday afternoon, California Sen. Dianne Feinstein said she intends to introduce a bill to repeal DOMA, which she has opposed since it was passed in 1996.
Olson told reporters that he thinks the DOJ decision will have an impact on how the Prop 8 case is considered in the federal court. The AFER lawyers said that since the US Attorney General now says that sexual orientation should warrant “heightened scrutiny” and that Section 3 of DOMA (defining marriage under federal law as “a legal union between one man and one woman”) is unconstitutional – the 9th Circuit should not allow Prop 8 to continue to be enforced while the legal process proceeds.
On the political front, if the stay on Prop 8 is lifted – in addition to the uproar over DOMA by the National Organization for Marriage and the Family Research Council – it bears watching to see if the socially conservative “traditional values” members of Congress – Republican and Democratic – resurrect the federal marriage amendment ban. While it may not get anywhere in this Congress – presumably blocked in the Senate if a bill passes the House – one might expect it to be used as a fundraising and get-out-the-vote tactic for the 2012 elections – where Democratic Senate seats are vulnerable, including that of Senate Majority Leader Harry Reid in Nevada and Sen. Ben Nelson in Nebraska. Right now, most politicos do not think an FMA proposal would get the required two-thirds vote in both chambers. But if it does and is sent to the states for ratification – an FMA might be closer to passing than expected. It would need approval by three-fifths of the states (38 of 50 states).
The Human Rights Campaign has a map with details of which states have Constitutional Amendments, and which states have laws defining marriage as between a man and a woman.
HRC says: States with constitutional amendments restricting marriage to one man and one woman. (29 states) Alabama (2006), Alaska (1998), Arizona (2008), Arkansas (2004), California (2008), Colorado, Florida (2008), Georgia (2004), Kansas (2005), Idaho (2006), Kentucky (2004), Louisiana (2004), Michigan (2004), Mississippi (2004), Missouri (2004), Montana (2004), Nebraska (2000), Nevada (2002), North Dakota (2004), Ohio (2004), Oklahoma (2004), Oregon (2004), South Carolina (2006), South Dakota (2006), Tennessee (2006), Texas (2005), Utah (2004), Virginia(2006) and Wisconsin (2006).
States with law restricting marriage to one man and one woman. (12 states) In addition to those listed above, Delaware, Hawaii, Illinois, Indiana, Maine, Maryland, Minnesota, North Carolina, Pennsylvania, Washington, West Virginia and Wyoming.
That means that already, there are 41 states that ban marriage equality. Additionally, according to HRC state legislative director Sarah Warbelow, the states at risk of having a constitutional amendment proposal pass thought their legislature in the next two years are Iowa, Indiana, Minnesota, North Carolina, and Pennsylvania and to a lesser extent New Hampshire and New Mexico are also at risk. Warbelow adds that “there is a serious risk of the New Hampshire legislature repealing the marriage equality law.”
“As far as the Federal Marriage Amendment, there are a clearly a number of members of Congress who will continue to be determined to discriminate against LGBT people but it’s unclear just when a federal constitutional amendment may be introduced,” HRC’s Paul Guequierre said in an email. “An increased anti-LGBT majority certainly increases the stakes of an amendment fight but as we did successfully in 2004 and 2006, we will work with tirelessly to fight any attempt use the constitution to discriminate.”
But with Republican right wingers already intent on defeating President Obama and taking back the Senate by any means necessary – it might be naïve not to think a federal marriage amendment could be part of the campaign tactics. And while today polls indicate that the trend is toward popular support for marriage equality – trends can change quickly. Indeed, one of the most moving moments during the Courage Campaign conference call was when Derence Kernek said that he and his beloved Ed discussed getting married in 2008 – but they never thought Prop 8 would pass.