A quiet earthquake for marriage equality

When from out of the blue
And without any guide,
You know what your decision is....
Which is not to decide
          "On the Steps of the Palace", Stephen Sondheim

The Supreme Court today denied certiori to seven different cases involving marriage equality.  By denying cert, the court essentially says that the decisions from the lower courts stand.  This may be because those lower courts all agreed with each other, and have been falling all over themselves to find for equality.  Without a disagreement between the lower courts, there's not a conflict that requires the Supreme Court to solve.  This suits the Court, which prefers to let trends get hammered out by the states before taking a step.  

So this decision not to decide brings marriage to Virginia, Indiana, Wisconsin, Oklahoma, and Utah.

I know, Utah.  Right?  (After what they did to us in CA it's hard not to enjoy this....)

But wait, there's more! 

The decisions came from the 4th, 7th, and 10th circuit courts of appeal, which means that other states that still have bans in those circuits are also affected, giving a total of 11.  

• 4th: Virginia , West Virginia, North Carolina, and South Carolina.
• 7th:Wisconsin, Indiana 
• 10th: Utah, Oklahoma, Wyoming, Colorado, and Kansas as well.

THinkProgress gives us the map.  Potentially 30 states will have equality, and 60% of the population.

It is possible (or even likely) that one of the remaining circuits will uphold a marriage ban, as those circuits tend to have more conservative judges.  And that may be the case that the Supreme Court eventually takes.

As always, the most detailed information can be found at Scotusblog.

Update: Waiting in Virginia

Never let it be said that state elections "don't matter". In Virginia, which has such a harsh anti-gay policy that I call it the State of Hate, there has been a complete change since the election of Democratic Governor and Attorney General. They are marriage equality supporters for one. However, the AG is defending the law as it stands. So far, the 4th Circuit has found against the marriage ban, and refused to stay their order further. The marriage opponents have appealed to SCOTUS for a stay. THe AG agrees, because he doesn't want the on-again off-again spectacle of Utah or other states.

The 4th circuit falls under the responsibilities of Chief Justice John Roberts. It's widely assumed that he will continue the stay, since the Supremes also stayed the marriages in Utah. We'll know today. In any case, we'll almost certainly be seeing the Court take up marriage equality in their next session (starts in October).

Update: and, as expected, the stay is granted. No marriages in Virginia this week.

A new DOMA case

On Friday, a new DOMA case began: Golinski v OPM. I've told you previously about the ongoing effort of Karen Golinski, an employee of the Ninth Circuit court of appeals, to get medical coverage for her wife. (The Ninth Circuit is hearing the Prop8 appeal.)

Chief Judge Kozinski, who heard Golinski's employee grievance, agreed, because the Ninth does not allow discrimination on the basis of orientation. But the Office of Personnel Management refused to comply because of DOMA. (It's a great irony that OPM is headed by John Berry, the highest ranking gay appointed by President Obama.)

Now, Ms Golinski is suing OPM in US District Court. The Advocate reports,

Part of Lambda's argument against OPM in this case is that DOMA is unconstitutional, specifically because it discriminates based on sex and sexual orientation and it infringes on the right to privacy. Lambda is arguing that the U.S. Supreme Court's decision in Lawrence v. Texas, which in 2003 overturned laws against sodomy, set a precedent for the federal government respecting one's familial relationships.

Lambda Legal also plans to tell district court judge Jeffrey White that he need not find DOMA unconstitutional to rule that Golinski's spouse is entitled to health insurance. "OPM, under the authority of President Obama, is part of the Executive Branch of the federal government, and lacks authority to override internal personnel decisions made by the Judicial Branch as it works to end discrimination against lesbian and gay court employees," says a press release from Lambda Legal.

It's worth reminding you that OPM has already been sued twice on DOMA: First in Gill v OPM. In this case, a legally married Massachusetts resident sued for a federal work benefit for her wife. Federal Judge Joseph Tauro found that the clause of DOMA that prevents federal recognition of legal same sex marriages was unconstitutional. Obama's Department of Justice is appealing the ruling. (The appeal is necessary if it is to extend beyond Massachusetts--it has to get into the Circuit courts of appeal and up to the SCOTUS).

The second case, currently pending, is Pederson v OPM, which challenges state and private entities that rely on DOMA to deny benefits to married same sex couples.

Now we can add Golinski v. OPM. As always, I will follow these here..

Picture from the Advocate

New DOMA cases (Video Sunday)

More info

New DOMA suits expand issues beyond previous case

From MetroWeekly:

At first glance, the lawsuit looks similar to the Gill v. Office of Personnel Management lawsuit that resulted in a successful trial court ruling in July.

The lawsuit expands upon Gill, though, in a particularly significant way -- reaching to state and private corporation discriminatory treatment resulting from DOMA.

In Gill, only federal programs and federal government-provided benefits were questioned -- from Social Security to passports to taxes. In today's lawsuit, Pedersen v. Office of Personnel Management, state and private entities' actions are brought into the lawsuit.

The actions are challenged not because of discretionary decisions made by the state or private entities, but instead because of those programs' adherence to federal laws and regulations. An example comes from Count IV of the complaint, Janet Geller and Joanne Marquis v. Timothy F. Geithner and Douglas H. Shulman:

Under existing [Internal Revenue Code] statutes and regulations as well as New Hampshire state law, Jo would receive a medical subsidy spousal benefit from the [New Hampshire Retirement System] to help pay for her legal spouse Jan’s private health insurance premiums, but for DOMA, 1 U.S.C. § 7, which prohibits the NHRS as a tax-qualified plan from providing the benefit to an otherwise qualified retiree’s spouse if that spouse is of the same sex.

With regards to private companies, GLAD's lawsuit details the actions taken by Bayer Corporation against Gerald V. Passaro II, the widower of Thomas M. Buckholz. Buckholz had been an employee of Bayer for more than 20 years. From the lawsuit:

Under the terms of the Bayer [Corporation Pension] Plan, and in compliance with applicable federal law, where a Participant, like Thomas Buckholz, who has vested and has a nonforfeitable right to benefits under the Bayer Plan, dies prior to his annuity start date, the Participant's surviving spouse shall be paid a Preretirement Survivor Annuity. (Bayer Plan, §5.6(a)).

As a result of the application of DOMA, 1 U.S.C. § 7, through ERISA and the Internal Revenue Code, Jerry has been denied the vested qualified preretirement survivor annuity (QPSA) available to all spouses of vested participants in defined benefit pension plans in the equivalent situation as Jerry finds himself today even though he is legally Tom's surviving spouse under Connecticut law.

Two more suits against DOMA

As you may (or may not) recall, two cases from Massachusetts went to federal court earlier this year challenging DOMA, on the grounds that legally married Massachusetts couples were deprived of federal benefits solely on the basis of their sexual orientation. Federal Judge Joseph Tauro found that Section 3 of DOMA was unconstitutional. The Department of Justice is appealing.

There are now two new DOMA cases, from other states in the Northeast where marriage equality exists, and where legally married couples are treated unequally simply because they are same sex. From the NY Times:

Joanne Pedersen tried to add her spouse to her federal health insurance on Monday. She was rejected. Again.

The problem is that while Ms. Pedersen is legally married to Ann Meitzen under Connecticut law, federal law does not recognize same-sex unions. So a health insurance matter that is all but automatic for most married people is not allowed for them under federal law…..
…..
Taken together, said Mary Bonauto, the director of the Civil Rights Project for the Gay and Lesbian Advocates and Defenders, the cases show same-sex couples “are falling through the safety net other people count on.” ….

“If we were heterosexual, we wouldn’t be talking today, because we would have the benefits,” Ms. Pedersen said. “I would just like the federal government to recognize our marriage as just as real as everybody else’s.”

And from Metroweekly:

The Gay and Lesbian Advocates and Defenders (GLAD) plans to file a lawsuit in Connecticut challenging DOMA’s Section 3, which defines "marriage" and "spouse" in federal law as being limited only to opposite-sex couples. The plaintiffs are to include couples from several New England states with marriage equality, including Connecticut, New Hampshire and Vermont.

Meanwhile, in New York City, the American Civil Liberties Union and the law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP plan to file a lawsuit on behalf of Edith Windsor, the widow of Thea Spyer. Windsor was forced to pay a $350,000 estate bill because of the federal government’s refusal to recognize Windsor's marriage to Spyer…..

"I have an 81-year-old client, and $350,000 is a hell of a lot of money -- a huge amount of money that she paid in violation of the Constitution," [Attorney Roberta] Kaplan said. "My client had to pay the government, and she wants her money back…."

….[Kaplan] said, "What I do think is true is that in this case the Department of Justice is going to have a very hard time coming up with a reason to give a judge in the Southern District of New York why Edie and Thea should be treated differently than if they were Edie and Theo."

Edie and Thea were the subject of a film.