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Wednesday, May 15, 2013

Arthur Leonard on Oregon Marriage Ban and Minnesota passes gay marriage

May 18, 1970 Michael McConnell and Jack Baker married by Hennepin County Minnesota Justice of the Peace

PHOTO: May 18, 1970 Michael McConnell and Jack Baker were married by Hennepin County Minnesota Justice of the Peace. (See Ken Bronson, A Quest for Full Equality (2004), available online from Quatrefoil Library -- this was originally on a now dead Web site by Ken Bronson, "A Quest for Full Equality," self-published May 18, 2004, p. 6-7, 48 (PDF). (See my previous posts Gay marriage pioneer Jack Baker starts blog (confirmed) (4/4/12) and Life Magazine gay marriage 1971 (11/20/08))

Reverend Troy Perry of the Metropolitan Community Church conducting a same-sex marriage ceremony. Life Magazine Dec. 31, 1971, p. 70. PHOTO: Reverend Troy Perry of the Metropolitan Community Church conducting a same-sex marriage ceremony in 1971. Google photo collection from article "Homosexuals in revolt: The year that one liberation movement turned militant," Life Magazine, Dec. 31, 1971, p. 70. (See my previous posts Gay marriage pioneer Jack Baker starts blog (confirmed) (4/4/12), Life Magazine gay marriage 1971 (11/20/08))

The law school Professor Arthur Leonard is a nationally recognized expert on gay law. Here are some interesting things he recently wrote about Oregon's gay marriage ban and DOMA law:

In an April 24 decision, Judge Harry Pregerson, ruling on a claim brought by attorney Alison Clark, found that Oregon's Measure 36, the 2004 ballot initiative that bans recognition of same-sex marriages in that state, violates the 14th Amendment, and he made a similar finding regarding the 1996 federal Defense of Marriage Act's bar on federal recognition of such unions.

The federal government, Pregerson ruled, must recognize Clark's same-sex marriage, even though she and her spouse live in a state where that marriage might not be recognized.

Ninth Circuit judge's opinion found federal recognition must apply to married couples nationwide

A few weeks after Clark's marriage to Anna Campbell in British Columbia last June, she applied for spousal benefits. The Administrative Office of the Federal Courts rejected the application, citing DOMA, and also finding that the Clark-Campbell marriage is not valid in their home state of Oregon.

Clark filed a grievance, arguing that the federal benefit plan lists sexual orientation as a prohibited ground for discrimination and that her the Fifth Amendment equal protection and due process rights were also violated. Clark's complaint ended up before a committee Pregerson chairs, and his opinion is consistent with rulings in two prior Ninth Circuit cases presenting similar facts - though regarding 2008 California marriages and not ones from Canada.

"The only reason Clark was unable to make her spouse a beneficiary under the FEHB program was that, as a homosexual, she had a same-sex spouse," Pregerson wrote, in finding that the denial of benefits was sexual orientation discrimination at odds with the plan's provisions.

The judge next considered whether Oregon could refuse to recognize the marriage. Before Measure 36 was passed, he observed, "Oregon law did not expressly limit marriage as between a man and a woman," though state courts construed that limitation as existing. Measure 36 made the limitation explicit, and though Pregerson felt the amendment should be subjected to the most rigorous form of judicial scrutiny, he concluded that it would not even stand up to the most deferential form of review.

He noted that the 1996 Supreme Court ruling that struck down Colorado's Amendment 2, which barred jurisdictions there from enacting gay rights protections, found that "a classification treating homosexual individuals differently from heterosexual individuals cannot rationally be justified by the government's animus towards homosexuality... Here, Oregon does not state any reason for preventing same-sex couples from marrying." None of the purported state interests were "rationally related to prohibiting same-sex marriages," Pregerson found.

The judge made short work of arguments based on the need to encourage "responsible procreation" by heterosexuals, the superiority of opposite-sex couples in creating "stable and enduring families for raising children," and the wisdom of "proceeding with caution in changing a basic social institution."

Pregerson concluded, "I can see no objective that is rationally related to banning same-sex marriages, other than the objective of denigrating homosexual relationships" - something not permitted under the high court's 1996 Colorado ruling. The implication, though not explicitly stated by the judge, is that Clark and Campbell's marriage would be entitled to recognition in Oregon as a matter of equal protection.

Analyzing Clark's alternative due process claim, Pregerson applied strict judicial scrutiny to the Oregon Amendment since Supreme Court precedents hold that the right to marry is fundamental. Here again, though, he concluded that Measure 36 flunks even the more lenient rational basis test.

Based on his conclusion that Clark and Campbell have a valid marriage, Pregerson then found that the federal government cannot constitutionally deny Clark's application for spousal benefits.

None of the "three rationales" for DOMA's section 3 - the provision denying federal recognition - identified by Pregerson from the law's House legislative history provided sufficient justification, in his view. For example, regarding the argument that DOMA preserves scarce government resources, the judge noted that the Congressional Budget Office concluded the 1996 law does not save the federal government money. Government cost savings from recognizing same-sex families, the CBO found, outweigh possible tax revenue losses.

Even if there were a fiscal benefit from DOMA, he wrote, "there is no rational basis for distinguishing between same-sex couples and opposite-sex couples if the government's objective is to cut costs." He concludes that Section 3 is unconstitutional under both the equal protection and due process requirements of the Fifth Amendment.

Despite the Obama administration's conclusion in early 2011 that Section 3 is unconstitutional, it will continue to enforce DOMA until it is repealed or definitively overturned by the courts. Pregerson is not inclined to wait for such a clear-cut resolution. Instead, he ordered the government to submit Clark's benefits application to "the appropriate health insurance carrier." In addition, he would require the Administrative Office of the Federal Courts to process future applications "without regard to (1) the sex of a listed spouse and (2) whether a validly executed same-sex marriage is recognized by a state."

If the federal Office of Personnel Management "blocks this relief," Pregerson would alternatively order monetary relief for Clark - a solution that would prove more costly to the government.

Though Pregerson's ruling is only binding on the parties to this case, it tackles a question left hanging during the Supreme oral argument in New Yorker Edie Windsor's challenge to DOMA - whether the US Constitution would require the federal government to recognize legally-contracted marriages, regardless of where the married couple resides. This is a significant question because state marriage laws generally do not have residency requirements so many same-sex couples who live in states that do not authorize or recognize same-sex marriages have gone to other states - or Canada and elsewhere - to get married. Windsor's attorney, Roberta Kaplan, when asked about such a situation, responded her client was only asking for federal recognition in states that recognize the marriages. It is difficult, however, to see how a federal constitutional right could be "cabined" in this way, and it would be unfortunate if the Supreme Court were to strike down DOMA's Section 3 without addressing this question of broader application.

(Quoted from Arthur S. Leonard, "Fed Employee Grievance Ruling Dings DOMA, Oregon Marriage Ban," posted May 9, 2013)

Below are listed some more related links including some on the passage of gay marriage in the U.S. State of Minnesota that has special meaning for me because Minnesota was where Jack Baker was legally married in 1970 when the State law didn't specify gender, something which did not get specified until after he took his case to the U.S. Supreme Court and lost in 1972. I was at the University of Minnesota when Professor Allan Spear was still closeted, before he came out as gay and became a political leader. It is sad that Rachel Maddow on MSNBC has spent much air time talking about Allan Spear, but she has neglected mentioning much of anything about the Baker V. Nelson U.S. Supreme Court case that inspired the gay marriage movement.

I have previously written about my early contact with the gay activists Jack Baker and Allan Spear. Jack Baker's theatrical and uncompromising gay rights demands for gay marriage were strongly opposed by Allan Spear and Steve Endean who worked together in the Minnesota legislature to pass gay rights laws. (See previous posts Steve Endean vs. Jack Baker political methods (8/6/09), Life Magazine gay marriage 1971 (11/20/08) and Allan Spear, Minnesota Senator dies (10/17/08))

Allan Spear Minnesota Senator and gay activist circa 1996 PHOTO: Allan H. Spear Minnesota Senator and gay activist shown circa 1996. See previous posts Steve Endean vs. Jack Baker political methods (8/6/09) and Allan Spear, Minnesota Senator dies (10/17/08)

My strongest memory of Allan was when I became the student editor of a university engineering magazine that included him on the faculty board of directors. I was unprepared for Allan's tirade after I innocently proposed changing the ratio of advertising to editorial matter. Despite being a Minnesota academic, he yelled at me like the quintessential New York Jewish businessman who was bartering for more money. It certainly prepared me for the real business world.

See my previous posts: