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Standing Up to Attempts to Take Down Marriage Equality.

In North Carolina this week, anti-LGBTQ extremists tried to do the unthinkable. They introduced House Bill 780, also known as the “Uphold Historical Marriage Act” in an attempt to turn back the clock and, once again, whip up anti-LGBTQ sentiment. The bill directly challenges the Supreme Court’s 2015 marriage equality ruling in Obergefell v. Hodges by seeking to nullify same-sex couples’ marriages.  

North Carolina Governor Roy Cooper weighed in yesterday: “This bill is wrong. We need more LGBT protections, not fewer.” And Republican House Speaker Tim Moore noted that he intends for this bill never to see the light of day, that it will not be debated. And it will not be voted on.

But before these elected leaders took a stand, when news of this proposed legislation was first being broadly covered by media, NCLR received questions from LGBTQ people both inside and outside North Carolina about what to expect and whether states have the ability to undermine Obergefell. In the midst of an administration that has stirred so much conflict and division, and has taken steps to rollback protections for LGBTQ people, we understand these concerns. And we are committed to continuing to take a stand for you and your families. Here’s a link to a helpful legal analysis about the future of Obergefell written by my friend and colleague at NCLR Shannon Price Minter that we shared after the 2016 election: “Now That Trump Has Been Elected, Can Our Marriage Be Undone?”

Since 1977, the National Center for Lesbian Rights has fought to protect and strengthen the rights of LGBTQ families. And that commitment was never clearer than in our work as a key part of the legal team that secured marriage equality. And in our work every day to protect those rights despite extremist factions that seek to undermine and chip away at these protections.

Please continue to stand with us in our work to oppose legislation across the country that seeks to undermine Obergefell. Although this Supreme Court case is settled law, some state officials falsely state that Obergefell does not require states to treat married same-sex couples equally and are attempting to pass laws in support of that notion. Last month, NCLR filed a petition for writ of certiorari, an official request that a case be heard before the U.S. Supreme Court, on a recent Arkansas Supreme Court decision holding that Obergefell does not require states to treat same-sex parents equally with regard to the issuance of birth certificates for their children. We also recently filed a brief in the Texas Supreme Court, opposing arguments by Texas state officials that Obergefell does not require governments to pay equal employment benefits to same-sex spouses.

At NCLR, we know that we must remain vigilant. Our courts matter, and the judges appointed to preside over those courts matter too. (Read our recent piece in The Advocate, “7th Circuit Victory for Lesbian Worker Shows Why Judges Matter.”) That’s why NCLR’s Washington, D.C. office is on the ground every day educating Congressional staffers, working with other national leaders to fight for a fair and objective Supreme Court, and making sure that your concerns are being heard at the highest levels.

We’re here for you.

If you have legal questions or hear about anything similar happening in your state, call the NCLR Helpline at 1.800.528.6257.

Stay strong,

Kate

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NCLR Analysis: Latest on LGBT Cases at the Supreme Court—What to Expect and When

As was widely expected, the Supreme Court today declined to take any action on three important cases involving the rights of same-sex couples, including the challenge to California’ Proposition 8 and one of several challenges to the so-called Defense of Marriage Act (DOMA).  (See my Huffington Post blog post for a preview of the Court’s LGBT cases this term.) At this point, we still do not have any information about whether the Court will take any of these cases, or whether it will let the lower court decisions stand.

Instead, the Court will decide later this fall whether to take these three cases, as well as three additional DOMA challenges on its fall docket.  Although the Court could announce whether it will take the Prop 8 case or any of the other cases on almost any Monday in the coming weeks, many believe that it will postpone all of these LGBT equality cases until the parties have finished filing their briefs in latest-filed of the DOMA cases, so that it can consider all of the cases at the same time.  If that prediction holds true, then based on the current schedule (which can change depending on when the parties choose to file their papers), the LGBT cases would not be considered until the Court’s November 20 conference at the earliest.

One other point to keep in mind is that the Court can reschedule cases multiple times.  So just because one of the cases that were originally on the September 24 conference agenda is rescheduled for say, the Friday, October 26 conference, that does not necessarily mean we will have an answer from the Court on Monday, October 29.  The Court could decide to postpone the case again.

For more information, see our FAQ.

Read Chris Stoll’s Huffington Post piece: LGBT Rights Take Center Stage at the Supreme Court.

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An NAACP Announcement for Equality

Here at NCLR, we know that LGBT people of color face some of the greatest injustices our movement strives to address. Racial and economic oppression mean that LGBT people of color are often poorer, have worse health outcomes, and are more vulnerable to hate crimes than their white counterparts. LGBT youth of color face harsh and unfair discipline in schools.

This weekend, the nation’s leading civil rights organization made it clear that they too understand that reality.

On Saturday, the NAACP announced their official support for marriage equality. The organization’s Board of Directors—a pantheon of influential policy-makers, business leaders, clergy, and civil rights luminaries—voted to take yet another stand for equality in their long and historic legacy of championing civil rights.

The truth is, the NAACP has been our ally in this fight for years now. Back in 2009, the NAACP’s then-Chairman, Julian Bond, gave a rousing speech at the National Equality March in Washington, DC. He had this to say:

“We know that good things can come, and they don’t come to those who wait—but they come to those who agitate. Forty-six years ago, I was in another march, at the other end of this mall. Marching with me then were a quarter of a million others—white and black and brown, women and men, gay and straight. And standing at the podium, at the feet of the statue of Abraham Lincoln, right beside Martin Luther King Jr., was the gay man who brought us all here that day, who organized the march, Bayard Rustin. It doesn’t matter the rational—religious, cultural, pseudoscientific—no people of good will should oppose marriage equality. When my neighbor enjoys protection from discrimination, he or she becomes my ally in defending the rights we all share.”

Today at NCLR, we’re celebrating this historic announcement. Black leaders have been among our staunchest defenders in fight after fight for full equality, and, with this weekend’s historic announcement, that partnership got a little stronger.

Likewise, as LGBT advocates, we must be allies ourselves. We must recognize that racial justice is an LGBT issue both because of its importance to LGBT people of color and because of its centrality in the broader fight for equality in which we are all engaged. When we join with others to stand up for the dignity and equality of all people, we are immeasurably stronger. We salute the NAACP for its historic leadership and for once again blazing a trail that will make it easier for many others to follow.

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A Key Step Forward in Maryland

By Liz Seaton
NCLR State Policy Director

Words cannot describe how I felt, sitting in the gallery at the Maryland State House as we won Governor Martin O’Malley’s Civil Marriage Equality Act by a vote of 72-67 on Friday.  Several of the lawyers were cloistered for a couple of days in preparation for what we thought would be dozens of hostile amendments, but in the end there were only about a half-dozen, and all were defeated, leading to the vote for final passage.

We watched from the State House gallery as the delegates prepared to vote. Those who sat with me included lobbyist friends who have worked to end discrimination in Maryland for 15 years or more, the lead plaintiff couple Gita and Lisa from the Maryland state constitutional case a few years ago, current and past executive directors of Equality Maryland,  couples still seeking the freedom to marry, ministers who want to marry same-sex couples in their own congregations with a state license to do so, and allies galore. Many delegates who spoke on the House eloquently voiced their support equality under the law for same-sex couples and our children. Others struggled to defend their votes against the measure – votes that I believe will be viewed as bigoted in the history books. Love, commitment and caring prevailed.

When the vote was won, we jumped to our feet and cheered, with hugs and kisses all around. Few had a dry eye.

Then we went downstairs to thank the delegates as they emerged from voting. The loudest cheers were for our seven openly gay and lesbian delegates – Environmental Matters Committee Chair Maggie McIntosh, Del. Luke Clippinger, Del. Bonnie Cullison, Del. Anne Kaiser,  Del. Heather Mizeur, Del. Peter Murphy and Del. Mary Washington.  Most were weeping with happiness.  Then Speaker Michael Busch emerged to acclaim and spoke from the heart.  Governor O’Malley swept down the marble stairs from his offices, and the crowd went wild.  There was quite a celebration at a local tavern near the State House that night!

This is one step – but a key one – on the path to win marriage all out in Maryland.  We need a Senate vote next – a strong one like last year – and that is scheduled for this week.  Then there will be the formal signing by the Governor.  Everyone expects our opponents to gather signatures in an attempt to put it on the ballot and take away the win before a single loving and committed couple can marry.  If that happens, we will need all the help we can get here.

But for now, we celebrate and prepare to take it on, step by step.

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Update on Marriage Equality Fight in Maryland

By Liz Seaton
NCLR State Policy Director

Today I am back in Annapolis for the House of Delegates floor debate over the marriage equality bill in Maryland. A joint committee passed it two days ago, and now it’s on the floor. I’m there to help our champion legislators evaluate and deal with proposed amendments to the bill.  The Senate passed a marriage equality bill last year, so the House is where we expect the biggest challenge.  The papers here have been reporting that the vote is close, which matches what I am being told by Annapolis insiders.

Last Friday, testimony on the bill in the joint session of the Judiciary and Government Oversight Committees lasted for 11 hours.  Some opponents of the bill suggested civil unions as an alternative to marriage. But none did so in a way that indicated that they cared about same-sex couples and their families in any real way, so that suggestion went nowhere.   Sodom and Gomorrah were not even mentioned until about the fifth hour.   I am pleased to report that we – the Marylanders for Marriage Equality Coalition and all those who came to testify at our request – outlasted the bigots by a solid hour.  By the end, the chair called a dozen opponents one by one to come forward, but only had two had the fortitude to stay until 11 p.m.    Those of us who stayed to be “the closers” and who testified in the last hour leading up to midnight included me, an attorney from the Family Equality Council, the executive director of the National Black Justice Coalition, the executive director of Equality Maryland, a few ministers, a mom who testified about being a biracial mom with a lesbian daughter, and, perhaps most compellingly,  several lesbian and gay men talking about loving and wanting to marry their partners in Maryland.  Several staff from the Human Rights Campaign were there working away until the final minutes, too.

To cap off the day, Governor O’Malley appeared near midnight to thank those who had stayed to testify.  His Chief Legislative Officer, Joe Bryce, stayed through the entire hearing.   Later that night, as I sat at the bar of a local hotel in Annapolis withanother advocate,  a straight couple bought us a second round of drinks, telling us to keep up the good work until the bill is won.  That was super nice—and a sign of the growing public support for basic equality in Maryland.

That is my update today as we’re at the House floor.  Fingers crossed!

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NCLR Analysis: Ninth Circuit Decision Keeps the Focus on California

In a long-awaited decision, a three-judge panel of the Ninth Circuit Court of Appeals ruled today that Proposition 8, the 2008 ballot measure that stripped the right to marry from same-sex couples in California, is unconstitutional. Judge Stephen R. Reinhardt authored the majority decision, which was joined by Judge Michael Daly Hawkins. The third judge, N. Randy Smith, dissented.

The majority affirmed the August 2010 ruling by retired United States District Judge Vaughn R. Walker—but on a different legal basis. After a 12-day trial, Judge Walker ruled that Prop 8 is unconstitutional because it deprives same-sex couples of the fundamental right to marry and discriminates against them based on their sexual orientation. In its ruling today, the Ninth Circuit held that it was not reaching or ruling on either of those issues—which would apply to every state that prevents same-sex couples from marrying.

Instead, the court focused on the unique history of Prop 8. California is the only state that first recognized that same-sex couples have an equal right to marry and then permitted a majority of voters to take that right away. The court closely based its ruling on those unprecedented facts, explaining: “Proposition 8 singles out same-sex couples for unequal treatment by taking away from them alone the right to marry, and this action amounts to a distinct constitutional violation because the Equal Protection Clause protects minority groups from being targeted for the deprivation of an existing right without a legitimate reason.”

The court reasoned that there is a constitutionally significant difference between refusing to extend a right to a group in the first place and withdrawing a right that has already been extended. “Withdrawing from a disfavored group the right to obtain a designation with significant societal consequences is different from declining to extend that designation in the first place … .” While both are harmful, the court noted there is something particularly pointed, harmful, and invidious about stripping away an existing right.  “The action of changing something suggests a more deliberate purpose than does the inaction of leaving it as it is.”

The court also discussed the serious injury inflicted on same-sex couples by being excluded from an institution with so much personal and social significance. As the court put it, “marriage is the name that society gives to the relationship that matters most between two adults. A rose by any other name may smell as sweet, but to the couple desiring to enter into a committed lifelong relationship, a marriage by the name of ‘registered domestic partnership’ does not.”

The court ruled that when the voters enacted Prop 8 in 2008, they did so not for any substantive reason, but rather simply to preserve the esteemed institution of marriage only for heterosexual people. Although some supporters of Prop 8 argued that its purpose was to promote parenting by heterosexual parents, Prop 8 did not change the substance of California law dealing with same-sex couples or parents in any way—other than preventing them from enjoying the benefits of being married.  Both before and after Prop 8, California law provides that same-sex parents must be given exactly the same rights, responsibilities, and protections as heterosexual parents.  As the court noted, “Proposition 8 had absolutely no effect on the ability of same-sex couples to become parents or the manner in which children are raised in California … and in no way modified the state’s laws governing parentage.”   

Judge Smith’s dissent acknowledged that those supporting Prop 8 assume that permitting same-sex couples to marry would devalue the institution of marriage in the eyes of straight people who disapprove of gay people. Remarkably, however, despite acknowledging that Prop 8 rests on anti-gay animus and “private biases,” Judge Smith concluded that “a measure is [not] invalid under rational basis review simply because the means by which its purpose is accomplished rests on such biases.” This may be the first time a federal judge has voted to affirm an anti-gay marriage law despite acknowledging that it is rooted in irrational bias. That even a judge who voted to uphold Prop 8 conceded that it was based in part on hostility toward gay people speaks volumes about the success of LGBT advocates in exposing the lies and stereotypes that underlie Prop 8 and similar measures.

Judge Reinhardt’s careful, tightly reasoned opinion puts the plaintiffs in the strongest possible position as the supporters of Prop 8 consider their next steps.  The Prop 8 supporters can now ask a larger panel of Ninth Circuit judges to reconsider the decision, or they can go directly to the Supreme Court and ask the justices to consider the case. In the meantime, California same-sex couples who want to get married will need to keep waiting. The Ninth Circuit panel decided to temporarily keep its decision from going into effect, and it is likely the Prop 8 supporters will ask for that temporary hold to continue while they decide on their next move after losing their appeal.

Given the reasoning of the Ninth Circuit’s decision and its focus on the specific circumstances that led to the enactment of Prop 8 in California, it may be a tall order for the supporters of Prop 8 to persuade the Supreme Court to take the case.  The Supreme Court normally only accepts cases when different federal appellate courts have reached opposite conclusions on the same legal issues, or where a decision has broad national implications.  The Ninth Circuit’s California-focused decision presents neither of those circumstances.  Unless the Supreme Court breaks with its own tradition and intervenes in the case, it’s possible that wedding bells will be ringing in California again before the end of the year.

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In Annapolis Today, Where Governor O’Malley’s Marriage Bill Is Being Heard

By Liz Seaton
NCLR State Policy Director

I head over to Annapolis, MD today to testify in favor of marriage equality in the Senate Judicial Proceedings Committee.

A little history and perspective on Maryland, where I live, and our struggle here for the freedom marry. I first testified in favor of a marriage equality bill in the Maryland State House in 1999, when progressive state legislators introduced a proactive marriage bill to counter a proposed state DOMA bill. With losses on DOMAs in so many states, legislative allies wanted to give same-sex couples the opportunity to testify in favor of a positive measure, to give same-sex couples and their children a chance to talk about why the freedom to marry was important to them. Many did, and that was important, but there was not a significant groundswell of families stepping forward at that time because 12 years ago the marriage bill stood zero chance of passage. At the time, I headed up what is now Equality Maryland.

Priority one for us on the marriage front was to beat back DOMA, to hold Maryland open for a day when we could fight hard for marriage equality AND seriously hope to win it. I testified that one reason that no matter what one’s views were on marriage for same-sex couples, a DOMA bill to block recognition of out-of-state marriages simply was not needed because, unfortunately for our families, at that moment in time there was nowhere in our country – indeed the world – where same-sex couples were permitted to marry. What a different world we live in today! That testimony was an agonizing moment that I recall perfectly, but Maryland never did adopt a DOMA law, one of a handful around the country that refused to do so.

Since then, in this state we have achieved three victories specifically to protect same-sex couples—a limited domestic partner law, domestic partner benefits for state employees’ families, and a favorable marriage recognition opinion issued by Maryland Attorney General Doug Gansler in 2010. Families have begun to receive the protections that they need and many people are working hard to see that opinion fully implemented in all aspects of the law.

If you follow marriage equality news, you know that 2011 was the first serious push for marriage equality in the legislature here. The bill passed the state senate but reportedly was a few votes short in the House of Delegates and was pulled—pointing to the need for a fresh, potent strategy and a more powerful champion. More people got in the game, using lessons from successful marriage equality efforts in Washington, D.C. and New York. A broad coalition was formed, Marylanders for Marriage Equality, of which NCLR is a member organization.

And a new champion was found, whose passion for this issue is clear.

Governor Martin O’Malley has stepped up to lead the fight for marriage equality.

The Civil Marriage Protection Act, Senate Bill 241, is an Administration Bill, meaning the Governor is the lead sponsor. With him co-sponsoring the measure are 20 State Senators, including Senator Jamie Raskin, who is not only my state senator but also was one of my law professors and Senator Rich Madaleno, a long-time dear friend who is also openly gay. Many of the Senate co-sponsors have a history in Maryland of championing various measures to protect LGBT people from discrimination and to beat back hateful and discriminatory measures.

The language of the bill is very simple. It takes what was Family Law 2-201 that read: Only a marriage between a man and a woman is valid in this state.” And changes it to read “Only a marriage between two individuals who are not otherwise prohibited from marrying is valid in this state.” The bill then lists the close relatives that an individual cannot marry. The bill also includes a religious exemption. Importantly, that exemption specifically does not apply where state or federal funds are received for a program or service being supplied by a religiously-affiliated organization.

Leading off the testimony tomorrow will be Governor O’Malley. I’m told that next up will be A.G. Doug Gansler and Joseph Bryce, Chief Legislative Officer to the governor. The testimony will be long and strong in favor of marriage equality, and by agreement of the lawyers’ cadre, I’ll be batting later on in the line-up as a strategic matter.

My testimony will include several lawyerly points about equality under the law, the protections available through marriage, the fact that many states and countries permit same-sex couples to marry. It will also include this:

Marriage Is About Family, My Dad Knew That

I am a Maryland resident who has lived in this state for 22 years, and I share a home in with my spouse, Pat, and our 11 year old daughter Ryan. Pat and I married in Ontario, Canada in 2003 when we planned to be there on vacation with my parents. I am extremely glad we did, because we lost my Dad three years ago. If we had waited to marry in Maryland, he would have missed it. He wanted to see his beloved granddaughter Ryan become the child of married parents, like he and my Mom. He was extremely proud of our family, and he loved Pat and Ryan very much. Initially, my Dad was trying to figure out if we had kids if that made him a grandfather (or not), because we were not able to marry. He was a lifelong Republican and to him, marriage meant family. The denial of freedom to marry meant something too, a brand of inferiority on some families. He understood that perfectly, and what it meant when Pat and I could final marry two decades after we began living together. Hanging up in our home is the collage my Dad made and framed from pictures he took of us on our wedding day. And somewhere in our pile of family pictures are the ones Pat took of him to send to me when she took her turn and flew to Wisconsin to sleep on a cot in his hospital room for a week in the year he lay dying. Love, commitment, mutual responsibility between generations, a lifetime of caring. Family. For so many, that is what SB 241 is all about.

I will talk about the fact that I know several lesbian and gay couples who have refused to marry elsewhere, because they are determined to marry in their home state of Maryland. I have not quite finished writing my testimony – and I also will need to prepare to counter the ridiculous things our opponents are likely to say – but I will likely close with something like this:

Make a difference in the lives of Maryland families, same-sex couples and their children, and put Maryland on right side of history. Vote in favor of Senate Bill 241 and urge your colleagues in the House of Delegates to do the same.

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In Maryland, Lies Will Not Stop Passage of Laws To Protect Transgender People

By Liz Seaton
NCLR State Policy Director

All of us who have worked long and hard for equality under the law for lesbian, gay, bisexual and transgender people know how strangely eager some people are to twist and distort the truth about us and our lives. Their ultimate goal? To dissuade public officials from passing laws to end discrimination.  I won’t even dignify the ugliest things they say by repeating them, but you know what I am talking about. Our opponents also make sweeping claims about what terrible things will happen if laws are changed to protect us from the bias and discrimination of others.  Often their assertions are rhetorical, but sometimes they are so direct they can be squarely disproved.

And that is exactly what happened in Maryland last week, where a police chief caught anti-lgbt activists lying, and news of same went public in The Baltimore Sun.

It all started because Baltimore County Bill No. 3-12 was introduced in early 2012 by Councilmembers Quirk, Almond, Bevins and Oliver.  This bill is a basic civil rights ordinance that, if passed, will bar discrimination on the basis of gender identity and expression and sexual orientation in housing, employment, education, and places of public accommodation or financing.  It will add these categories, clearly defined, to a list of protected classes that already exist in the county code. Bill No. 3-12 is similar to ordinances already in place in Montgomery County, Baltimore City, and Howard County.  It is a precursor to a statewide bill anticipated this session that will propose to ban discrimination against transgender people; that bill would mirror legal protections already in place on the basis of other protected characteristics, including sexual orientation.

In their zeal to oppose this proposed ordinance, a few women went too far, well beyond the truth.  Religious political extremist Ruth Jacobs stated: “It opens up the bathroom to men … who may be a pedophile who may use the law to nefarious advantage.”  Anita Schatz followed Jacobs’ lead and posted this on Facebook to encourage people opposed to the proposed Baltimore County ordinance to come testify against it:  “Since Montgomery County passed a similar bill, there have been 4 rapes by men, dressing as women lying in wait for their victims in ladies rooms.” (By the way, Schatz lists her employer as Congressman Andy Harris, a Republican representing Maryland’s District 1). Another opponent forwarded the Facebook post to Gender Right Maryland in a jab that backfired—Gender Rights Maryland forwarded Schatz’ specific allegation to officials in Montgomery County.

On January 17, two things happened.

An initial hearing was held on the ordinance, with several people testifying about the very real problems of discrimination that transgender people face.  Others, including Ms. Schatz, appeared to testify against the measure, attempting to create restroom hysteria.

Thankfully, the very same day, Montgomery County Police Chief Tom Manger wrote directly to lead ordinance sponsor Councilmember Tom Quirk.  His letter read:

Dear Councilmember Quirk:

I am writing to clarify information that has been brought to my attention alleged sexual assaults in Montgomery County.  It was brought to my attention that there is an allegation stating that since the Transgender Law was passed in our county we have experienced four (4) rapes by men dressing as women and lying in wait for their victims in ladies restrooms.

The Transgender Bill was passed by the Montgomery County Council on Tuesday, November 13, 2007, and it became law shortly thereafter.  Since this law has been in effect, we have had no reported rapes committed in restrooms by men dressed in women’s clothing.

Please do not hesitate to contact me if you have any additional questions.

Sincerely,

J. Thomas Manger

[Montgomery County] Chief of Police

The next day, the Baltimore Sun picked up the story about Schatz’ lie.

As we lawyers like to say, “Asked and answered.”

But it didn’t stop there.  Here, for those interested in how the story spun out, is a video of Keith Olberman naming Ruth Jacobs one of the “Worst Persons” and calling her an “idiot” for her arguments attacking trans people with regard to bathrooms in Baltimore County, Maryland.

What’s next?  Ideally we keep on track to pass the laws LGBT people need.  A full hearing on the Baltimore County ordinance will be held on February 14, 2012, where we are optimistic that accurate information will be presented and hold sway and that credible evidence will be demanded to substantiate allegations made by those who sound Schatz-ish.

In partnership with Gender Rights Maryland, PFLAG and many other national, state and local groups, I will be there for the National Center for Lesbian Rights to testify that the American Bar Association, the American Medical Association and the American Psychological Association all support the passage of laws to protect transgender people as well as lesbian, gay and bisexual people from discrimination.   I will be substantiating my oral testimony with copies of the statements from all of these associations stapled to my written copy to distribute to all councilmembers.

Later this legislative session in Annapolis, senators and delegates will have a chance to vote on a statewide bill to ban discrimination based on gender identity, a measure that is still-needed and more than a decade overdue.

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NCLR Analysis: Got Married in Canada? Don’t Panic, But Protect Your Relationship

Yesterday, the thousands of American same-sex couples who have married in Canada since 2003 woke up to some shocking news:  The Canadian government had decided that all marriages of non-Canadian same-sex couples were invalid.

As details have emerged, it’s become clear that the reality is far less dramatic than early reports made it out to be.

First, let’s put to rest some misconceptions about what happened. Contrary to what some news reports have said, the Canadian government did not invalidate the marriages of the more than 5,000 non-resident couples who have married in that country.  It did not secretly divorce them or pass any law that affects them.  Couples who married in Canada are still married, and they have exactly the same rights and obligations today as the day they said “I do.”

Here is what actually happened. A non-Canadian couple recently filed for divorce in Toronto.  In that divorce case, a single lawyer for the Canadian government filed a legal brief on Wednesday arguing that the marriages of certain non-resident same-sex couples are not valid. Specifically, the lawyer argued that if the couple’s home country would not permit them to marry, they are not eligible to marry in Canada.

It is not clear whether Prime Minister Stephen Harper or Justice Minister Rob Nicholson approved, or even knew about, the filing of this brief. The government has quickly backtracked, with Justice Minister Nicholson promising to take steps to clarify the law to make sure that non-resident couples who married in Canada may also divorce there.

More importantly, the filing of a legal brief by a government lawyer does not by itself have any legal force. In Canada, just like the United States, the courts, not the government, decide what the law is. There is every reason to believe that Canada’s courts will reject the argument being made by the government lawyer and grant this couple their Toronto divorce. In fact, it appears that no one has ever before argued that non-resident marriages are invalid during the entire eight years that same-sex couples have had the freedom to marry in Canada.

So if you are a non-Canadian couple who got married in Canada, there’s no need to panic. You are still married. There’s absolutely no reason to think your marriage will end without your consent.  Not now, not ever.

At the same time, there are several steps that all U.S. same-sex couples can and should take to protect their relationships. These are steps that every couple should consider, no matter whether they are married or not, and no matter whether they married in the United States or another country.

The sad reality for U.S couples is that recognition of same-sex relationships varies widely from state to state.  Even if a couple has made the ultimate commitment and gotten married in Canada or a state that offers same-sex couples the freedom to marry, their home state may still treat them as legal strangers, refusing to recognize their marriage for any reason. If you are living in one of these states (or even just traveling there), your marriage certificate may be a legally meaningless piece of paper. This can lead to tragic consequences. Imagine being denied the right to see your spouse in the hospital because the state doesn’t recognize your marriage, or losing the home you shared together on the death of a partner who is not recognized as your legal spouse.

Because even a legal marriage is often no guarantee of protection, it is essential for every same-sex couple to have legal documents to make sure that their relationship is respected.  At a minimum, every couple needs wills, durable powers of attorney for healthcare (also called a “healthcare proxy”), and durable powers of attorney for financial decisions. For more information about these documents, see NCLR’s publication Lifelines: Documents to Protect You and Your Family.

Couples with children should have additional documents to make sure that their wishes concerning their children’s care and custody are respected in the event a parent dies or becomes disabled.  In addition, same-sex couples who are raising children together should obtain adoptions or legal parentage decrees to ensure that both spouses are legally recognized as parents.

Finally, it may be appropriate for some same-sex couples who have already married in Canada, the U.S., or any other country to marry or register as domestic partners in their state of residence.  Although many states that have comprehensive domestic partnership laws also have laws requiring out-of-state marriages of same-sex couples to be treated as domestic partnerships, in practice many people are unaware of these laws, and married same-sex couples often encounter resistance to legal recognition of their relationships.

If you run into any difficulties with recognition of your marriage or domestic partnership, or if you have more questions, please see our Legal Help & Resources section.

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NCLR Analysis: Oral Argument in Proposition 8 Appeal Sets the Stage for Ninth Circuit Ruling

Today, the U.S. Court of Appeals for the Ninth Circuit heard oral arguments on two issues in Perry v. Brown, the federal court challenge to Proposition 8. In that case, two same-sex couples are challenging Prop 8, the 2008 ballot measure that stripped the right to marry from same-sex couples in California.  Following a historic trial that took place in January 2010, now-retired Chief District Judge Vaughn Walker ruled that Prop 8 is unconstitutional. That ruling has been on hold while the proponents of Prop 8 appeal Judge Walker’s ruling.

Since their devastating loss at trial, the proponents have tried their best to distract attention from the fact that Prop 8 is a blatantly unconstitutional measure that was passed through a campaign that relied on fear, deception and stereotyping of gay men and lesbians. Today’s arguments involved two of those diversionary tactics by the proponents of Prop 8.

First up was their never-ending campaign to prevent the public from viewing the official video recording of the trial. Earlier this year, the couples who are challenging Prop 8 filed a motion seeking to unseal the videos.  The City and County of San Francisco and media coalition members, including the Los Angeles Times, CNN, The New York Times, FOX News, NBC News, and The Associated Press, joined the plaintiffs in asking the court to release the videos. In September, Chief Judge James Ware of the U.S. District Court in San Francisco ordered the public release of the videos, saying that public access to trials and court records are “[f]oremost among the aspects of the federal judicial system that foster public confidence in the fairness and integrity of the process.”

The second half of today’s hearing concerned the proponents’ outrageous and offensive efforts to convince the courts to throw out Judge Walker’s decision striking down Prop 8 because he is gay and in a long-term relationship. Judge Ware, who was assigned the case after Judge Walker’s retirement, denied the proponents’ request in June, writing that “the presumption that Judge Walker, by virtue of being in a same-sex relationship, had a desire to be married that rendered him incapable of making an impartial decision, is as warrantless as the presumption that a female judge is incapable of being impartial in a case in which women seek legal relief.” The Prop 8 proponents appealed both of Judge Ware’s rulings to the Ninth Circuit.

Today’s arguments were heard by the same panel of judges that is presiding over the appeal from Chief Judge Walker’s decision striking down Prop 8, Ninth Circuit Judges Stephen Reinhardt, Michael Daly Hawkins, and N. Randy Smith.  In the first portion of the arguments, attorneys for the Prop 8 proponents argued that releasing the trial videos—a public record of a public trial—might result in their witnesses being threatened or intimidated. They persisted in these assertions even though the trial has been over for nearly two years, transcripts of the trial are freely available on the Internet, and the trial transcripts have even been used to stage a full-length video reenactment of the trial, which is also available on the Internet. The judges were dismissive of the proponents’ arguments, noting that one of the two experts supporting Prop 8 had specifically denied any fears of harassment and the other had testified about a technical legal point that was not likely to elicit strong feelings.

But the judges also seemed troubled by possibility that Judge Walker had assured the parties that the videotape would not be publicly released. Therese Stewart, who appeared on behalf of the City and County of San Francisco, urged that Judge Walker promised only that the videotape would not be broadcast while the trial was proceeding—not that it would be sealed for all time. Despite Stewart’s spirited defense, the judges continued to raise concerns that the Prop 8 proponents did not have fair notice that the videotape might eventually be made public.

In contrast, the judges appeared skeptical of the Prop 8 proponents’ argument that Judge Walker was biased and his decision should be invalidated because of his sexual orientation and relationship status.   Appearing for the plaintiff couples, David Boies challenged that argument aggressively, noting that the very same claims of bias were used to try to keep women and people of color from deciding discrimination claims. The judges also focused on the apparent contradiction in the Prop 8 proponents’ argument—if (as the proponents claim) a judge in a same-sex relationship has an improper direct interest in the outcome of a case about the right to marry, then a judge in a heterosexual marriage would have an improper direct interest as well, based on the proponents’ claim that permitting gay couples to marry devalues the marriages of heterosexual couples.

Based on today’s arguments, it is difficult to gauge how the Ninth Circuit will rule on releasing the videotape. The trial record in this case is an irreplaceable historical record of a pivotal moment in the movement for LGBT equality. It will be disappointing if the court keeps the trial video locked away from the public and out of the hands of historians, scholars and educators. In contrast, the court seems likely to uphold Judge Ware’s ruling that Judge Walker had no duty to recuse himself. The judges seemed persuaded that Judge Ware’s decision was entitled to deference and that there was no compelling reason for the appeals court to overturn it.

It’s no wonder that the Prop 8 proponents are doing everything they can to distract attention from the real issues in the Perry case and to hide the trial from public view. The proponents were given every opportunity to come forward at trial with any good reason to uphold Prop 8’s treatment of same-sex couples as second-class citizens. They came up empty, so they decided to change the subject. Today, the Ninth Circuit appeared to see through at least part of their smokescreen. Regardless of how they rule on releasing the trial video, the judges seem ready to move ahead and decide whether Judge Walker’s decision should be upheld on its merits. They did not seem at all inclined to throw out Judge Walker’s detailed and carefully reasoned opinion on the basis of unfounded personal attacks on the integrity of the judicial process.

Today’s arguments should be the last court hearing before the Ninth Circuit panel issues its written decision on the two matters it considered today. In addition, the court previously announced that no further arguments will be held before the panel decides the central issue in the case: whether to uphold Judge Walker’s ruling striking down Prop 8.  While there is no set time for the court to rule, it is likely to issue its decisions on all of these matters relatively soon, possibly as early as January.

Shannon Minter is the Legal Director for the National Center for Lesbian Rights; and Christopher Stoll is a Senior Staff Attorney for the National Center for Lesbian Rights.