To Form a More Perfect Union: Marriage Equality News

Art Leonard: South Carolina Appeals Court Strikes Travel Restriction on Gay Dad's Visitation Rights

Link: Leonard Link
by Arthur S. Leonard

Finding that a family court judge had improperly allowed his disapproval of a father's homosexual "lifestyle" to influence a decision imposing a travel restriction when the father has visitation with his children, the South Carolina Court of Appeals struck down the restriction in the case of West v. West, in an unpublished opinion filed on December 14.   The opinion can be found on the court's website, and was the subject of a detailed report in the Dec. 24 issue of the South Carolina Lawyers Weekly. 

Lexington County Family Court Judge H. E. Bonnoitt, Jr., granted a divorce to Ernest and Mary West after they had lived separately for a year.  Mary received custody of their two children, with Ernest being granted visitation rights.  Judge Bonnoitt prohibited Ernest from travelling out of state with the children while exercising visitation rights, expressing fear that Ernest might expose them to his "homosexual paramour" who was living in Florida.

The Wests were married in 1992.   In 2002, Ernest's employer went bankrupt and he lost his job at the Columbia, South Carolina, location, but the employer offered Ernest a job in Dallas, Texas.  Ernest moved to Dallas, while Mary and the children remained in South Carolina.  After a year in Texas, Ernest moved to Miami, Florida, to take up a new job opportunity.  In the course of these moves, Ernest became involved in a gay relationship, but fearing that it would affect his contact with his children and disadvantage him in the divorce proceeding that Mary initiated in 2004, he denied the existence of what the court calls "the adulterous affair" until a week before the final hearing on his divorce.

The Court of Appeals' per curiam opinion comments that "in deciding to impose restrictions on Husband's visitation, the judge 'felt it necessary to impose specific restrictions related to the Husband's actions' because he did not condone Husband's alternative lifestyle.  The judge acknowledged the travel restriction was an 'unusual restriction... based on the Husband's self-indulgent and deviant lifestyle' but 'necessary to protect the morality of the children.'"

Judge Bonnoitt had written, "The Husband chose an inappropriate relationship over his marriage.  He admitted that he undertook a covenant with his wife and with a higher power which was broken.  Based on his willingness to break this covenant and pursue an adulterous relationship... his visitation should be confined to the State of South Carolina to protect the best interest of the minor children."  Bonnoitt reasoned that keeping visitation within the state would encourage compliance with the court's orders and that Ernest would be "less likely to be distracted by the pursuit of his other relationship, and as a result, the children are more likely to receive quality time with their father."  Bonnoitt also express concern that if the children were taken out of state, Ernest would be "more likely to expose the children to a harmful situation including exposure to his paramour who lives out of state."

On appeal, however, the court found there was no evidence "that Husband's conduct endangered or adversely affected the welfare of the children."  Although the guardian ad litem appointed to represent the children's interest in the divorce proceeding had "expressed concern with Husband's lack of candor concerning his sexuality," she had "found no evidence Husband had the children around any paramour or subjected the children to an alternative lifestyle."  Indeed, Ernest testified that he had no intention to introduce his children to his gay partner.

The appellate court concluded that "the judge improperly imposed a travel restriction on Husband's visitation with his children.  Absent any evidence that Husband's adulterous conduct endangered or adversely impacted the welfare of his children, we hold the judge impermissibly penalized Husband for his conduct and that it is not in the best interests of the children to uphold the travel restriction."

[jw]

Oregon: In defense of equality

Link: BlueOregon
by Karol Collymore

Excerpt:

On Friday, after a judge decided to block domestic partnerships from going into effect on January 2nd, I attended a small gathering with some GLBT friends. It was one of those times where I didn't know what to say, but wanted to find that perfect thing that would some how assuage the sad feelings of the crowd. I had no such jewels of knowledge. All I could say was that I was sorry, because I am, very sorry. Sorry you still can't add your partner's name to your children's birth certificate after 5 years. Sorry you can't trust that your parents won't take rights away from your partner if something terrible happens. Sorry about that insurance coverage. Oh, and I'm sorry you've been in love for 30 years and no one will validate you. I was talking to Roey Thorpe - former director of Basic Rights Oregon - about my need for a consise statement about this event and she said, "Well Karol, it's just mean." And we all had some cocktails.

And it is just mean. It's mean that people must stand helpless while forces out of their control decide what is right and what is wrong for their relationships. It was mean every other time through history when people were not allowed to be with the person they chose and it is still mean now. I have written many times here and tried to make as many correlations as I could to my own racial history, my own non-mainstream relationship, and to the responsibility we as good liberals have to support furthering equality for gays and lesbians. But now, I'm just mad, mad because there are more of "us" than there are of "them" and our voices need rise to ensure equality.

[…]

We all have a choice and a voice to ensure that this inequality does not happen any more in our state. Yes we can vote, we can write checks, but can we do more? I say yes. Straight GLBT allies, let us do more than what we do now. Join the GLBT community after work on Wednesday. They will be standing together in vigil at 5:30 pm at the Q Center. Together, straight and gay will join to say that any injustice will not stand and we no longer wait for change. 

The one thing that is missing in this fight you and me saying, "hey, this is mean."

[jw]

Art Leonard: Bowers v. Hardwick Proponent Stalls Oregon Partnership Law

Link: Leonard Link
by Arthur S. Leonard

[Reposted in full by permission.]

Excerpt:

A federal judge whose role in the Supreme Court's 1986 Bowers v. Hardwick decision, upholding the Georgia sodomy law, made him a controversial choice when he was appointed to the district court in Oregon by George W. Bush a few years ago, has issued an order to stop the Oregon Domestic Partnership Law from going into effect, pending a February hearing on a claim by the Alliance Defense Fund that Oregon officials wrongly disqualified enough signatures on referendum petitions to violate federal constitutional voting rights.  District Judge Michael W. Mosman apparently decided that the law, scheduled to go into effect this week, must be delayed to avoid irreparable injury to the voting rights of Oregonians who want to put the measure up for a referendum vote.

Judge Mosman was a law clerk for Justice Lewis F. Powell, the swing voter in the Bowers v. Hardwick case, during the fateful Supreme Court term of 1985-1986.  According to stories that circulated widely at the time of Mosman's court appointment a few years ago, Mosman wrote memos to Powell urging the justice to vote to uphold the Georgia sodomy law, in response to Powell's indication after the oral argument that he was leaning towards striking down the law.  Indeed, Powell had voted in the Court's conference after oral argument to strike the law, and Justice Harry Blackmun set to work on drafting a majority opinion for the Court.  Over the ensuing weekend, Chief Justice Warren Burger personally lobbied Powell to change his vote, and Mosman wrote memos to the same effect.  Within a few days, Powell had reconsidered and changed his vote, turning Blackmun's draft into a dissent.  Justice Byron White, who had begun work on a dissent, ended up writing the majority opinion.  Powell concurred, with a vacillating opinion implicitly suggesting that the case was trivial in light of the state of Georgia's contention that the law was not generally enforced, but that any significant prison sentence for consensual sodomy might raise 8th Amendment (cruel and unusual punishment) issues were such a case to come before the Court.  (In a speech at NYU Law School after his retirement from the Court, Powell named his vote in Bowers v. Hardwick as one he regretted, but reiterated that at the time he felt the case was trivial because Hardwick had not actually been prosecuted and sentence to jail.)  Bowers v. Hardwick stook as a precedent, blocking progress on gay rights in the federal courts, until it was overruled in 2003 in Lawrence v. Texas.  (Ironically, the author of the Court's opinion in Lawrence, Justice Anthony M. Kennedy, Jr., was appointed by President Ronald Reagan to Powell's seat upon that justice's retirement - poetic justice?)

Michael Mosman's role in the Bowers case made his appointment controversial in the gay community in Oregon, as Republican Senator Gordon Smith, who had recommended Mosman to the Justice Department, was generally seen as one of the handful of Republican senators who is not reflexively anti-gay and had even supported and voted in favor of some gay rights positions.  By contrast, Mosman was seen as a hard-right appointment.  Attempts were made during the confirmation process to assert that Mosman was not anti-gay and would not allow personal views to interfere with his judging.

The Oregon statute, enacted this past spring, is really a civil union law masquerading under the name of domestic partnership.  The legislature decided to follow the lead of California in creating a status for same-sex partners that was almost equal under state law with traditional marriage in terms of its legal rights and responsibilities, but to call it domestic partnership rather than civil union. 

Opponents of the law immediately started a campaign to petition for a referendum to repeal the law.  55,179 valid signatures from registered voters would be needed to put the repeal measure on the ballot and suspend the law from going into effect on January 1, pending the subsequent public vote.  Opponents submitted more than that number of signatures, but state officials, using a sampling method to determine the validity of signatures, concluded that the effort had fallen 116 signatures short.

According to newspaper reports out of Oregon over the past few days, Alliance Defense Fund argued to Judge Mosman that the method of validating signatures used by Oregon officials violated the federal constitutional rights of referendum supporters.  ADF rests its case on the argument that signing such a petition is akin to voting in the pantheon of fundamental constitutional rights.  Just as states may not disenfranchise individuals from voting without due process of law (i.e., by disenfranchising duly convicted felons, for example), ADF argues that Oregon may not disqualify the signatures of petition signers without giving the individuals involved an opportunity to contest the invalidating of their signatures.  Since Oregon officials do not verify every individual signature, but instead use a sampling method to determine the percentage of invalid signatures and then do the math to determine whether there are enough valid signatures, it is impractical - perhaps impossible - to give individual signatories from among the more than 55,000 whose names appear on the petitions, a chance to contest the invalidation of their signatures.  ADF appears to be arguing that this system violates the constitutional right to vote.

According to a Dec. 28 news report in a local Oregon newspaper, at the oral argument ADF produced a 9th Circuit decision from Idaho that had equated voters' rights with those who sign petitions in support of referendum efforts and that after recessing briefly to study the opinion, Mosman questioned the state's attorneys about the details of the signature validation process and commented, "The state action being challenged is the one that says a state agent can make a unilateral decision that those signatures don't match."  (The process involves visually matching signatures on petitions with signatures on file in voter registration records, and disqualifying signatures that don't appear to match, in addition, of course, of invalidating signatures of individuals whose names do not appear in the voter registration files.)  Mosman also noted that Oregon provides a process for absentee voters to challenge invalidation of their ballots, but no process for petition signers to do the same.

The newspaper reports did not identify the 9th Circuit decision that ADF submitted to the judge, and no opinion by Mosman appears on the court's website as of this writing.   But some quick research turned up Idaho Coalition for Bears v. Cenarruia, 342 F.3d 1073 (9th Cir. 2003), in which the court did say that ballot access rules were implicated in constitutional voting rights, such that rules having the effect of disadvantaging rural voters by comparison to urban voters in their ability to get a referendum on the ballot would violate that branch of Equal Protection doctrine concerned with government discrimination regarding fundamental rights.  This certainly suggests that the weight of constitutional doctrine supporting the right to vote extends to the process of petitioning for ballot placement. (It is perhaps noteworthy that both this decision and a subsequent 9th Circuit case challenging similar petition rules were brought by liberal interest groups whose attempts to get measure on the Idaho ballot had been unsuccessful.)

The temporary injunction prevents the DP law from going into effect until a February 1 hearing, and depending what Mosman decides at that hearing, perhaps permanently - unless the 9th Circuit and/or the Supreme Court reverses a permanent injunction on appeal.   Of course, since an injunction against the law going into effect would be based solely on alleged flaws in the process of verifying petition signatures, and not on the substantive constitutional merits of the legislation, the Oregon legislature could re-enact the measure in its next session, which would start the petition process going all over again....

[jw]

Andrew Sullivan: Huckabee On Gay Commitment

Link: The Daily Dish | The Atlantic
by Andrew Sullivan

[Reposted in full by permission.]

Here's his attempt to explain why he's not a bigot:

What one's sin is, means it's missing the mark. It's missing the bull's eye, the perfect point. I miss it every day; we all do. The perfection of God is seen in a marriage in which one man, one woman live together as a couple committed to each other as life partners. Now, even married couples don't do that perfectly, so sin is not some act of equating people with being murderers or rapists...

Now if you accept that gay people are involuntarily such - and Huckabee does not deny that in the interview - then what are we to do with our lives? The Catholic church has a theory of natural law that insists that all sexual acts be open to procreation. If you buy that, then most heteros are similarly damned most of the time - for the same reason that homos are damned all the time - unless we castrate ourselves. But Huckabee's church has no such theory, and allows contraception. So what is the argument against gay relationships here?

To get personal: My husband and I are "a couple committed to each other as life partners." But, according to Huckabee, unlike heterosexual couples, we are unable to be anything but sinners. Why exactly? Because we are gay. I can see no other argument here. Not only that but Huckabee would amend the very constitution to ensure that we can never have any legal protections as committed life-partners - making it part of the meaning of America that gay people are beneath heterosexuals as citizens and human beings. So it does not actually matter to Huckabee how we live our lives. We can be committed to one another or alone or promiscuous or anything in between. We are still inherently sinful in a way no heterosexual can be. Monogamy and commitment are no less evil than a a bathhouse in Huckabee's eyes - arguably more evil because we are challenging the notion that only heterosexuals are capable of the virtues of marriage. This is Huckabee's "truth". It's what Christians once said of Jews. It is the antithesis of the Gospels, where Jesus clearly and unequivocally preached solidarity with every human being and championed and embraced the socially marginalized as the inheritors of the kingdom of heaven. By further marginalizing gay people, by writing us out of any equal moral existence as sexual and emotional beings, Huckabee is actually attacking the message of Jesus, not affirming it.

[jw]

Indiana: Marriage ban faces pivotal year

Link: Indianapolis Star

Excerpt:

By the time the 2008 legislative session ends in March, one of those two fates awaits a proposed amendment to Indiana's Constitution that would ban same-sex marriages.

To amend the constitution, two consecutively elected legislatures must pass the measure. Voters must then approve it in a general election. The General Assembly passed the amendment in 2005 but has failed to do so since.

If lawmakers in both the House and Senate pass the amendment this session, voters would get their say in November. But if the amendment fails, the lengthy process would have to start over again.

Supporters of the proposed ban don't want to see that happen.

"This is an issue where the legislators need to remember that the people of Indiana need the opportunity to vote to protect marriage," said Eric Miller, founder of the conservative activist group Advance America. "We have to let the people decide."

[…]

On three occasions, the Senate has approved the amendment first and passed it on to the House. That, however, won't happen this session.

Sen. Brandt Hershman, R-Wheatfield, has sponsored the amendment in the Senate in past instances. Though he said he'd do so again this session, Hershman said it will be up to the House to pass the amendment first.

"I don't see a benefit in the Senate stating a view it has stated three times previously," Hershman said. "There is little use to move it forward if the House is simply going to block further consideration.

"I'm looking to the House to initiate the process this time around."

[…]

But Walter Botich, the legislative chair for Indiana Equality, a gay rights advocacy organization, said lawmakers have more urgent issues, namely a property-tax crisis, to sort out. His group opposes the amendment.

"We have more pressing issues to deal with this session, and property taxes are on everyone's minds," Botich said. "The issue no longer seems as important to most, I think."

A recent poll conducted for The Indianapolis Star and WTHR (Channel 13) supports that notion.

The November statewide survey showed that 49 percent of Hoosiers support the amendment, down from 56 percent in 2005.

"This (amendment) was a tool to turn out voters, but since then, the general public has wised up," Botich said. "They realize this isn't a pressing issue, it's made to divide people, and it's something that Indiana doesn't need."

[jw]

Spain: Spanish Protests Calls For Defence Of Family

Link: Javno.com

Excerpt:

Hundreds of thousands of Spaniards demonstrated in favour of the traditional family in the centre of Madrid on Sunday, in a show of force by Catholics in what is now one of the most liberal countries in Europe.

Organisers said more than one-and-a-half million people packed Colon Square and surrounding streets for the event, which was addressed by Pope Benedict in a live video link.

While they said they had no political motives, the huge demonstration came just over two months before general elections in which a Socialist government which has legalised gay marriage and made divorce easier bids for another term in office.

Under the shadow of Colon Square's huge Spanish flag and just a short walk from the gay bars of Madrid's Chueca district, families and churchgoers [bused] in from all over the country heard speakers call for the defence of the traditional family.

"Founded in the indissoluble union between man and woman, it is the place in which human life is sheltered and protected from its beginning until its natural end," said Pope Benedict.

Speakers attacked the government of Prime Minister Jose Luis Rodriguez Zapatero, who has an opinion poll lead of two percentage points over the strongly Catholic and conservative Popular Party ahead of the March 9 elections.

Spain was long one of Europe's most conservative countries, but has undergone a remarkable liberal transformation in the three decades since the death of former dictator General Francisco Franco.

[...]

[km]

OR: Candlelight vigils to replace gay-rights celebration

Link: willametteLive.com

Excerpt:

A federal judge has issued a temporary restraining order delaying the implementation of Oregon's new Domestic Partnership Law. The law would have given some spousal rights to same-sex couples.

In response Basic Rights Oregon has canceled its January 2 celebration at Portland's Gerding Theatre. Instead, Basic Rights Oregon, Portland's Q Center, and community leaders will hold a candlelight vigil to draw attention to the delay and the impact that it will have on some Oregon families. Basic Rights Oregon's Executive Director, Jeana Frazzini, called the judge's ruling "nothing short of an outrage."

[...]

To join the vigil, meet at Portland's Q Center, 69 SE Taylor Street in Portland on January 2 at 5:30 p.m.

Vigils are also replacing community celebrations in Bend, Ashland, Eugene and Corvallis. For more information, visit the Basic Rights Oregon Web site at basicrights.org.

[km]

CT: Already A Family, But Marriage Would Make It Complete

Link: Courant.com
by Susan Campbell

Excerpt:

Six-year-old Fernando came home from school recently with a slight fever, but here he is, running and jumping on the couch, without a smidgen of distress.

"I feel bad, but I am running," he says, happily, to his mother, Elizabeth Kerrigan, seated nearby.

"I know," she says wryly. "That's weird."

He'll wind down shortly, and rest in the arms of his mother, Joanne Mock, when she returns from their neighborhood school with his twin brother, Carlos.

[...]

Kerrigan and Mock are lead plaintiffs in a landmark marriage-equality case argued in front of the state Supreme Court last May. The woman and other same-sex couples are part of a lawsuit filed in 2004 by Gay & Lesbian Advocates & Defenders (GLAD) of Boston, after the couples were denied marriage licenses.

The court has yet to hand down a verdict, which Mock takes as a good sign. If the answer was no, wouldn't the justices have said so already? Mock thinks the court is simply looking for the right time to say yes.

At issue is whether marriage applies to all citizens, or if it's an institution reserved strictly for heterosexuals. The state of Connecticut currently offers civil unions — marriage lite — but civil unions don't go far enough, and separate is never equal. GLAD's attorney, Bennett H. Klein, says he's looking forward to the verdict, as are the people at Love Makes a Family, the state's marriage-equality organization. On verdict day, that group plans a press conference, a rally, and a party — the latter if the decision is the right one.

[...]

Meanwhile, some kids at the boys' school told them that girls can't marry girls, and boys can't marry boys. Who knows what started the conversation, but Carlos came home and asked: Was it true? The women tried to explain that in some states, mommies can marry mommies, and daddies can marry daddies, and Connecticut is about to decide.

"We will never lie to them," says Kerrigan.

Before the whirlwind that is twin boys, the couple had good careers, good friends, but there are only so many trips you can take to Martha's Vineyard or Lake Tahoe.

They wanted children, and so they adopted the boys from Guatemala six years ago. Their involvement in the case is not about making history — though the case will definitely do that. It's about offering their family the same rights and privileges enjoyed by their boys' classmates, whose parents are free to marry. It's about being a part of the whole, says Kerrigan, and joining their neighbors in a revered social institution.

Meanwhile, Carlos is trying to figure out what superhero he will be. He's got the red tights, the short blue pants, and the red shirt, but he still isn't sure what to call himself: Dot Man? Circle Man? He sticks his head around the corner and coyly asks: "Are you talking about love?"

Well, yes.

[km]

Opinion: NH:: For gay couples, a whole new world

Link: Concord Monitor
by Barbara R. Keshen

Excerpt:

On Jan. 1, same-sex couples [in New Hampshire] will be able to demonstrate their commitment to each other by entering into a legally sanctioned civil union. The state of New Hampshire will recognize this union and respect the bonds that it creates. In the course of two decades, our country has moved from criminalizing adult consensual sexual behavior to, if not embracing it, at least coming to terms with it. On this historic occasion, let's take a look back at the legal landscape we have traversed.

[...]

In Lawrence v. Texas the U.S. Supreme Court reviewed a Texas law that criminalized "deviate sexual intercourse" between consenting same sex adults. This time the court overturned the law. What had changed in just 17 years?

In his majority opinion Justice Anthony Kennedy demonstrated a much more nuanced understanding of the nature of same-sex relationships. He wrote that it was demeaning to characterize gay and lesbian relationships just in terms of sex acts. In sweeping language, he wrote: "Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct." The court based its decision solidly on the right to privacy.

[...]

However, the court drew a bright line against legitimizing homosexual relationships. The opinion stated that "adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons." In its reluctance to go that extra step, the court was encouraging closeted behavior and specifically denied homosexual couples "formal recognition."

It has taken bold action by the states, led by courageous gay couples, to finally open the closet doors. In Vermont, Connecticut, New Jersey and Massachusetts, gay couples have been able to formalize their relationships. New Hampshire now has joined them in granting the elusive and sought-after "formal recognition."

Some would say that it has been a long, slow road. To others the journey has been breathtakingly fast. New Hampshire is embracing its gay and lesbian sons and daughters and blessing them with the full panoply of rights and responsibilities it has granted their straight brothers and sisters. Uncork the champagne!

(Barbara R. Keshen is staff attorney for the New Hampshire Civil Liberties Union.)

[km]

Politics: From Iowa cornfields, a left-tilting tradition

Link: Los Angeles Times

Excerpt:

DES MOINES -- The two young men in neat oxford shirts stand on the shady front lawn and hug. Brand-new wedding bands gleam on their ring fingers. Cameras click. They are oblivious. Happy. And legally married.

"This is it," Sean Fritz told Tim McQuillan in August, after the rapid-fire ceremony in a Unitarian minister's yard here in the middle of middle America. "I love you."

As Iowans ponder whom to support in the Jan. 3 caucuses, their state is the first in the heartland to even consider legalizing same-sex marriage -- placing Iowa again in the vanguard and reminding the Democratic presidential hopefuls that progressives here help shape history.

Much of coastal blue-state America has long dismissed the Hawkeye State as it has the rest of "flyover country" -- all conservatives, cornfields and clapboard churches -- ignoring a succession of cultural and legal firsts and liberal politicians who made their way to Washington [D.C.].

[...]

[km]