Gay Couples Law Blog : Atlanta Same Sex Family Law and Estate Planning Commentary : Gideon Alper : Gay Law, Domestic Partnerships

The Maryland attorney general today said that the state should recognize gay marriages performed in other states. Here's the text [PDF] of the attorney general's opinion.

This would make Maryland and New York the only states that don't allow gay marriage themselves, but do recognize ones from states where gay marriage is legal.

But be careful what you read about this. The Lambda Legal press release, for example, says that Maryland has now joined New York in recognizing out of state gay marriages, but the attorney general's opinion has made no new law.

In fact, the opinion suggests three ways Maryland could implement this recognition:

Such marriages may be recognized in several ways. First, legislation enacted by the General Assembly could provide for recognition of out-of-state same-sex marriages generally, or for particular purposes. Second, in the absence of legislation, the Court of Appeals, applying common law choice-of-law principles, could decide that such marriages will be recognized in Maryland, either generally or in particular circumstances. Finally, a State agency may also address the recognition of out-of-state marriages on particular matters within that agency's jurisdiction, so long as the agency's action is consistent with any relevant statutes and court decisions, including federal laws that may govern the agency's activities.

I also found interesting the attorney general's list of how the marital status of gay couples married in a different state is important to the Maryland government. He said:

1. The couple could move to Maryland for employment.
2. They might take a vacation in Maryland or stop there while traveling to another state.
3. They might live in Maryland, go to another state to get married, and then return.
4. Without ever stepping foot in Maryland, their marital status might be legally significant for other people that do live there.

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A lot of times people assume that all conservatives are against gay rights and all liberals are for them.

A federal gay marriage case is risky, they say, because the Supreme Court has a conservative majority. Or, as they said before, Maine voters will uphold gay marriage because it's such a liberal state. Turned out that wasn't the case.

Political ideologies don't necessarily predict support for gay rights, as last week's Adar v. Smith  decision shows. The Fifth Circuit Court of Appeals, arguably the most conservative circuit after the Fourth, said that Louisiana must recognize the New York same-sex adoption of a Louisiana child even though Louisiana does not itself grant same-sex adoptions.

Conservatives tend to put precedent over public policy, and that's what the court did here. While Louisiana might have its own public policy reasons for not allowing gay adoptions, the court said that the full faith and credit clause requires the state to recognize out-of-state ones.

That's why gay rights cases relying on more conservatives arguments are more promising than ones that rely on public policy reasons. Take, for example, Gill v. OPM, the Massachusetts case asserting that marriage rights should be left up to the states, a typical conservative argument.

Especially if the Supreme Court keeps its historically conservative bent, arguments like these may have the most success in recognizing more rights for same sex couples.

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The Fifth Circuit Court of Appeals ruled today that Louisiana has to recognize the New York same-sex adoption of a Louisiana child even though Louisiana does not itself grant same-sex adoptions.

Last October I talked about Adar v. Smith, the Fifth Circuit case where a couple that went to New York to legally adopt a baby born in Louisiana couldn't get an updated birth certificate from Louisiana. Back then, Louisiana said it didn't have to recognize adoptions from other states that it wouldn't perform itself.

The Court today said otherwise. Here's a PDF of the unanimous opinion in favor of the gay couple.

Why is This Case Important?

Because it's about how the full faith and credit clause applies to gay rights. The full faith and credit clause is the part of the U.S. Constitution that makes one state recognize the judgments of another state.

Sound familiar? You often hear about how states that don't allow gay marriage should have to recognize gay marriages from states that do. Instead, states without gay marriage give a similar argument to the one Louisiana gave in Adar v. Smith--that they shouldn't have to recognize marriages that they themselves would not allow.

What Did the Court Say?

Here's why the Fifth Circuit said the full faith and credit clause makes Louisiana recognize the New York same sex adoption:

• First, it recognized that the Supreme Court has said that there are no "public policy exceptions" to the clause.
• Second, it disagreed with Louisiana's argument that adoption decrees are more like a statute than a judgment. Louisiana said that because the New York adoption decree represents New York public policy created by New York statutes, recognizing the adoption would be replacing Louisiana's policy with New York's.
• Instead, the court said that the birth certificate is required because it recognizes what New York has already done (the recognition required by the clause). It does not have to reflect would Louisiana would do on its own.

So what does this mean for gay marriage?

Not much. While the court says that domestic-law judgments must be given full faith and credit by other states, a marriage is not a judgment. Further, what gay marriage faces that gay adoption doesn't face is DOMA, a federal allow that says specifically that states don't have to recognize gay marriages from other states. Unless DOMA is repealed or is ruled to be unconstitutional, marriages from gay marriage states probably won't get recognized elsewhere.

Be sure to read the press release from Lambda Legal, which represented the two men.

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States Where Gay Marriage Is Allowed:

• Massachusetts (2004)
• Connecticut (2008)
• Iowa (2009)
• Vermont (2009)
• New Hampshire (2010)

Special Places:

• Washington, D.C. (Coming March 2010)
• California (only if the marriage happened before Proposition 8 was passed)

States Where Gay Marriages From Other Places Are Recognized:

• New York
• California (only if the marriage happened before Proposition 8 was passed)

For a more graphical representation of all this information, check out this interactive map by the Wall Street Journal.

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Gay people make up 1-4% of the population in most cities, but are more concentrated [PDF] in metropolitan areas.

Professor Gary Gates of the UCLA Williams Institute compiled the following data [PDF] in 2006 for major cities:

Highest Number of Same Sex Couples:

1. New York, NY: 47,000
2. Los Angeles, CA: 12,000
3. Chicago, IL: 10,000

Highest Concentration of Gay People:

1. San Francisco, CA: 15.4%
2. Seattle, WA: 12.9%
3. Atlanta, GA: 12.8%

Lowest Concentration of Gay People:

1. Detroit, MI: 1.5%
2. Richmond, VA: 3.4%
3. Cleveland, OH and Memphis, TN: 3.5%

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With the 2010 Census coming up, it's good to know the most recent data on the number of same sex couples in the United States. Here's the information from the 2000 Census:

• Total Number of Gay Couples: 594,391
• Number of People in a Couple: 1.2 Million
• State With the Most Couples: California (92,138)
• State With the Least Couples: North Dakota (703)
• Highest Concentration of Gay Couple (% of all couples): Washington, D.C. (1.29%)
• Lowest Concentration of Gay Couples (% of all couples): North and South Dakota (.22%)

Keep in mind that the 2000 census did not count gay marriages directly, so the data is based on how people reported their household. It counted households with 2 members of the same sex that are unrelated. It'll be interesting to see how much these numbers have changed in ten years.

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The Georgia and Utah governors both proclaimed this week as Marriage Week, citing the benefits that marriage brings society.

However, they excluded gay couples from proclamations. For example, the Georgia governor referred to "the relationship between a husband and a wife." The Utah governor instead talked about the binding of "men and women together in a network of affection, mutual aid, and obligation."

Neither Georgia nor Utah recognize gay marriage, so it made sense for them to leave out gay couples from the proclamations. Still, using gender neutral terms instead could have had the same effect without specifically excluding gay couples from recognition.

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A couple people asked me this week what the latest data is on public support for gay marriage. The last poll taken was an NBC News/Wall Street Journal poll conducted from October 22-25 of 2009.

People were asked, ""Do you favor or oppose allowing gay and lesbian couples to enter into same-sex marriages?"

The results:

• Strongly Favor: 26%
• Somewhat Favor: 15%

• Somewhat Oppose: 9%
• Strongly Oppose: 40%

• Depends: 3%
• Unsure: 7%

Check out my earlier post for more gay marriage facts and statistics.

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News broke earlier this week that Chief U.S. District Judge Vaughn Walker, who presided over the Proposition 8 trial, is gay. David Lat over at Above the Law asked whether it matters:

It does.

It's true that the judge had to be either gay or straight--and bias from either orientation would have threatened to color his judgment in crafting the trial record. Just like in any case, it's the judge's job to minimize personal biases.

Still, even if the judge's ruling doesn't affect the ruling in this particular case, it might alter how the public will view the trial. And one of the most important aspects of this trial was publicizing the effect of marriage discrimination and the lack of evidence in how gay marriage harms straight marriage.

That's why the debate surrounding the YouTube broadcasting was such a big deal--public opinion of gay marriage was at stake.

Said one commenter on Above the Law,

The judge is gay? That’s a lose-lose situation for the gay marriage people. If he rules it unconstitutional, opponents will say it’s a biased outcome. If he rules it constitutional, opponents will say ‘even a gay judge doesn’t think your position is valid.

In this way, the Proposition 8 trial now risks lowering, or leaving the same, public support for gay marriage where before it may have increased it.

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Some people ask how it could be constitutional to ban gay marriage when its clearly discriminatory. The answer is that whether a law is constitutional or not doesn't depend on whether or not it discriminates. Instead, it's all about whether the government has a good enough reason for making the law.

For example, often times courts say that affirmative action laws (such as public school policies) are constitutional even though they discriminate. In those cases, courts say that the government has a good enough reason (correcting effects of past discrimination) to discriminate. Certainly, affirmative action negatively affects those races not benefited by the rules, but the laws are nevertheless legal.

That's why in the California Proposition 8 trial, the fight isn't about whether the the law discriminates or even whether the law hurts gay couples wanting to get married. Instead, it's about whether California has a good enough reason to have the law.

What does "good enough" mean?

It depends. There's 3 versions of "good enough" that the district court can use. Which of these the court should use is one of the things that the lawyers argue about. Auto-straddle, a blog covering lesbian legal issues, explains:

With strict scrutiny, Prop 8 lawyers have to demonstrate that the law is narrowly tailored to further a compelling governmental purpose.

With intermediate scrutiny, Prop 8 lawyers have to demonstrate that the law is substantially related to an important governmental purpose.

With just rational basis, [Prop 8 lawyers have] to demonstrate that the law is rationally related to any legitimate governmental purpose.

Strict scrutiny is the hardest one to show, while rational basis is the easiest.

What's a governmental purpose?

Let's take the argument that the reason to ban gay marriage is to promote families that can naturally procreate. If the court chooses the "strict scrutiny" version of "good enough," then lawyers supporting the gay marriage ban would need to show two things:

1. Proposition 8 does very little else except promote naturally procreating families and also actually does promote these kind of families (narrowly tailored)
2. Promoting naturally procreating families is a compelling governmental purpose.

But if the court chooses the "rational basis" version, then the side against gay marriage only needs to show the following:

1. Proposition 8 is rationally related to promoting naturally procreating families. So, it wouldn't have to actually be effective and it could have lots of side effects. They'd just need to make some rational argument that it's related.
2. Promoting naturally procreating families is a legitimate governmental purpose. Note the difference here: the purpose only has to be legitimate--it doesn't have to be a particularly good purpose, and especially not a compelling one.

Putting It All Together

First the court needs to decide which version of "good enough" to use. Once it does, it'll look at each reason for having the gay marriage ban and determine whether it meets that definition of "good enough."

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No matter which way the judge rules in the California Proposition 8 trial, the case will almost certainly be appealed to the 9th Circuit Court of Appeals, and then the Supreme Court.

How would the Supreme Court rule? It's hard to predict because historic political majorities of the Court wouldn't apply.

It's not so simple as dividing up the Court into conservatives and liberals. First let's look at the traditional conservative majority. Usually it falls into two camps:

• Libertarians: "People can do whatever they want--as long as it doesn't cost anything, we don't care."
• Traditional right: "If it's not moral, you can't do it."

When it comes to gay marriage, these two camps will disagree. Libiterians will say that as long as gay couples getting married doesn't cost anything and doesn't affect other people, then it's fine.  But the traditional right won't like gay marriage because they don't think it's moral.

But the historic liberal side doesn't apply to the gay marriage debate either:

• Traditional left: "The government can't restrict personal freedom."
• Liberal subgroup: "The government should prevent people from harming themselves through laws and regulation."

The traditional left will support gay marriage, because they see marriage as a personal freedom and don't think the government should interfere. But a subgroup of liberals will support banning gay marriage if there's any reason that it's bad for society. Or, they'll want to ban gay marriage if they think gay sex is particularly risky (an argument that has much rarer than it was during the AIDS crisis).

So predicting how the Supreme Court would rule on gay marriage isn't as simple as counting the number of conservatives and liberals on the Court. A perfect example lies in the lead attorney for the side in the trial supporting gay marriage: Ted Olsen, a traditional conservative and President Bush's former solicitor general. See his article in a recent Newsweek about the conservative case for gay marriage.

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Statistics and facts for same sex marriage can be hard to find. Gay marriage is in the news a lot, but a lot of people just want unbiased information before deciding how they feel about it.

Here's what you need to know:

Support for Gay Marriage

Latest statistics:

• 41% support gay marriage
• 49% oppose it.
• 10% say it depends or are unsure.

Historical trend of increasing support:

• Public support for gay marriage has increased about 1% annually over the last two decades.
• Statisticians predict a majority of Americans will support gay marriage by 2012.

Marriage Laws

Where Gay Marriage is Legal:

• Massachusetts (2004)
• Connecticut (2008)
• Iowa (2009)
• Vermont (2009)
• New Hampshire (2010)
• Washington, D.C. (Coming in March 2010)

Where Gay Marriage From Other Places is Recognized:

• New York
• California (but only if you got married before Proposition 8 passed)

Demographics

The most recent census did not count gay marriages directly, so the following are estimates based on how people reported their household. It counts households with 2 members of the same sex that are unrelated.

• Total Number of Gay Couples: 594,391
• Number of People in a Couple: 1.2 Million
• State With the Most Couples: California (92,138)
• State With the Least Couples: North Dakota (703)
• Highest Concentration of Gay Couple (% of all couples): Washington, D.C. (1.29%)
• Lowest Concentration of Gay Couples (% of all couples): North and South Dakota (.22%)

Gay people make up 1-4% of the population in most cities, but are more concentrated [PDF] in metropolitan areas.

Highest Number of Same Sex Couples:

1. New York, NY: 47,000
2. Los Angeles, CA: 12,000
3. Chicago, IL: 10,000

Highest Concentration of Gay People:

1. San Francisco, CA: 15.4%
2. Seattle, WA: 12.9%
3. Atlanta, GA: 12.8%

Lowest Concentration of Gay People:

1. Detroit, MI: 1.5%
2. Richmond, VA: 3.4%
3. Cleveland, OH and Memphis, TN: 3.5%

Resources

State by State Map of Gay Marriage Laws. The Wall Street Journal compiled information from the Human Rights Campaign, the National Conference of State Legislatures, and other sources, to compile a user-friendly interactive map.

Text of State Constitutional Amendments Targeting Same-Sex Marriage. If you're one of those people who wants to read the laws themselves to see how exactly gay marriage is outlawed, check out this collection put together by Lambda Legal.

Year 2000 Census Information on Same Sex Households. Expect these numbers to increase in 2010 more than other types of families. The 2010 census will be the first to let gay couples report as married.

Want More Info?

Subscribe to the blog or become a fan on facebook!

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The Perry v. Schwarzenegger trial was going to be recorded and uploaded to YouTube, but the Supreme Court temporarily prevented that until Wednesday so that it can consider the issue in more depth. Once it does, how will it rule?

To begin with, Judge Walker no longer wants to upload recorded videos of the trial to YouTube; instead, he wants to have a link to the videos placed directly on the court's website.

It comes down to who's supposed to make public broadcasting rules for the federal courts:

• The side wanting to prevent broadcasting of the trial says it should be the U.S. Judicial Conference, which writes the general policies for federal courts.

• The side wanting to allow broadcasting says it should be the Ninth Circuit Judicial Council, which makes policy for the Ninth Circuit, where the trial is being held.

Lyle Denniston suggested over at SCOTUSblog, which tracks Supreme Court developments, that the Supreme Court might even decide that it shouldn't meddle into the trial procedures of federal district courts:

This exchange apparently signals that, when the Supreme Court further considers the issue, it may have to decide the legal status of the Judicial Conference policy, as compared to that of the Ninth Circuit’s Judicial Council, which has authorized the TV “pilot project” to apply to the Prop. 8 trial. And the Justices may also have to consider the scope of their own “supervisory power” over a question of trial procedure in the federal District Courts.

Both sides filed briefs with the Court last night and this morning, so I expect a ruling by tomorrow.

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I've gotten a couple of emails asking where to get just an unbiased summary, but not a full transcript, of what happened at the Perry trial yesterday. This makes sense, as a lot people are busy and don't have time to read full transcript, but still want an unbiased recap.

Shannon Minter, Legal Director of the National Center for Lesbian Rights, provided just that at Pam's House Blend. Here's an excerpt:

From the first moment to the closing bell, Judge Walker moved the proceedings forward at a rapid clip. It was a great day for our side, spiced with some intriguing hints from Judge Walker about how he may be viewing some of the key legal issues in the case. Photo of NCLR's Legal Director Shannon MinterTed Olson and San Francisco Deputy City Attorney Therese Stewart gave eloquent opening statements. Both plaintiff couples presented emotional and moving testimony during their examinations and cross-examinations. And by the end of the day, the plaintiff's first expert witness (the distinguished American history scholar, Professor Nancy Cott) had made significant headway through her testimony, showing that that marriage has never been universally defined as a union of one man and one woman, and that religion has never had any bearing on the legality of a marriage.

Head over to Pam's House Blend for the full summary.

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Although I'll be covering the Perry v. Schwarzenneger trial here, check out these other great resources for commentary and trial recaps:

Proposition 8 and the Right to Marry. A law librarian with over 20 years experience, Michael Ginsborg has blogged on the topic since 2008 and always links to the best posts and news around the internet concerning gay marriage rights and California's Proposition 8.

Law Dork. Chris Geidner's insights on LGBT legal developments are always spot on. He helpfully provides links to trial transcripts and court orders as well.

Prop 8 Trial Tracker. A project by the Courage Campaign, a California marriage equality group, this blog is run by by longtime bloggers Robert Cruickshank and Julia Rosen. Check out their recent post that goes over the names and players in the trial.

Pam's House Blend. While definitely a political site, multiple contributors and readers insure that breaking news is always reported here very quickly. If you want to be the first to read about recent developments, this is the place to go. In fact, they've just added a few things to their blog to make finding breaking news about the trial even easier.

Wall Street Journal Law Blog. If you're looking for in depth legal analysis of the trial, you can't beat the WSJ Law Blog. Don't expect a post on the trial more often than once a day, but do expect for it to be engaging and to come with insightful comments by readers.

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The Supreme Court this morning temporarily stopped the uploading of the Perry v. Schwarzenegger trial to YouTube. The trial will still begin today--it just won't be broadcasted or recorded.

Defenders of the Proposition 8 ban had said that the broadcasting shouldn't be allowed because it would intimidate witnesses at the trial. The Supreme Court said that it needs time to consider the arguments before making deciding whether the court hearing the case should be allowed to upload videos of the trial. Until it makes that decision, the court won't be allowed to.

If you were looking forward to watching the trial on YouTube, don't be discouraged. The Supreme Court's order temporarily stopping the broadcasting doesn't mean that the Court will ultimately disallow it. However, it does mean that the first few days of the trial will be unavailable. Because the Supreme Court's order includes prohibiting cameras in the court room, it's not possible that videos of the trial during this temporarily ban could be uploaded later.

I'll be dissapointed if the Court does decide later that the California federal district court hearing the case can't be recorded and uploaded. The YouTube broadcast would have been a step forward not just for federal gay marriage litigation, but for transparency of our country's judicial process overall.

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Ted Olsen, the famous conservative lawyer for the gay couples in Perry v. Schwarzenegger, laid out what he called the "conservative argument for gay marriage" in this past weekend's Newsweek.

Because conservatives often say that allowing gay marriage would require an activist interpretation of the Constitution, Olsen spent time spelling out why it would not.

The Argument

Olson said that marriage is a Constitutional right:

The United States Supreme Court has repeatedly held that marriage is one of the most fundamental rights that we have as Americans under our Constitution. It is an expression of our desire to create a social partnership, to live and share life's joys and burdens with the person we love, and to form a lasting bond and a social identity. The Supreme Court has said that marriage is a part of the Constitution's protections of liberty, privacy, freedom of association, and spiritual identification. In short, the right to marry helps us to define ourselves and our place in a community. Without it, there can be no true equality under the law.

While the Court traditionally has considered marriage in terms of heterosexual relationships, Olsen said that "the underlying rights and liberties that marriage embodies are not in any way confined to heterosexuals."

So Is That It?

No. Even though the Constitution guarantees equal protection under the law, both state and federal governments are allowed to deny equal protection if they have legitimate reasons for doing so. So what it comes down to is whether the federal government (and California, in regards to Proposition 8) has legitimate reasons for denying equal marriage rights to gay couples.

But Olsen said that the reasons that gay marriage opponents usually give are not legitimate:

• It's tradition. "Simply because something has always been done a certain way does not mean that it must always remain that way. Otherwise we would still have segregated schools and debtors' prisons."

• States need to encourage procreation. "Preventing lesbians and gays from marrying does not cause more heterosexuals to marry and conceive more children. Likewise, allowing gays and lesbians to marry someone of the same sex will not discourage heterosexuals from marrying a person of the opposite sex."

• It threatens the institution of marriage. "I have yet to meet anyone who can explain to me what this means. In what way would allowing same-sex partners to marry diminish the marriages of heterosexual couples?"

Not Everyone Agrees

Despite Olson's argument, some people say that marriage should still be left to the states. So even if a state doesn't have legitimate reasons for disallowing gay marriage, that doesn't mean that the federal government has to . Jonathan Adler, a professor at Case Western Law School, agreed with Olson that marriage would benefit gay families, but said:

I remain deeply skeptical of the constitutional argument.  I am unconvinced the equal protection clause requires states to recognize same-sex marriages, though I believe the federal government should recognize any marriage recognized under state law.

In other words, just because the federal government should recognize gay marriages performed by particular states doesn't mean it has to make all the states recognize them too.

This brings us to Perry v. Schwarzenegger, where defenders of Proposition 8 ban will try to show that California has legitimate reasons for unequal treatment.

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With all the attention yesterday about how Perry v. Schwarzenegger will be the first non-criminal federal trial publicly broadcasted (and on YouTube), it's smart to take some time to go over some basics.

Who's Challenging the Ban?

Perry: Perry is the last name of Kristin Perry, who was denied a marriage license with her partner Sandra Steir. The two join Paul Katami and Jeffrey Zarrillo, who were also denied a license. The court uses the name "Perry" to refer to all four of them. They're challenging Proposition 8, which bans gay marriage, in federal court because they say it violates the U.S. Constitution.

Famous Lawyers: Representing the people challenging the gay marriage ban are two famous lawyers, former U.S. Solicitor General Theodore Olson and trial lawyer David Boies. You may have heard of them--they represented President Bush and Al Gore in the 2000 Supreme Court case that ended up deciding the presidential election.

Who's Defending the Ban?

Schwarzenegger: Although the case name says it's versus Governor Schwarzenegger, the governor isn't actually defending Proposition 8. He said he's neutral. Moreover, the California attorney general agreed that the law should be struck down.

Instead, a bunch of religious and conservative groups have gotten together to defend the ban in the governor's place. The main lawyer for this side is Charles Cooper.

What's a Bench Trial?

A bench trial is mostly just like a jury trial, except that it's in front of a judge. On one hand, this means that the trial might seem more boring, because the lawyers won't have to ham it up for a jury. On the other hand, the lawyers do know that the trial will be made public, so maybe they'll try to make it interesting. The bench trial starts this Monday, January 11th.

What's Each Side Trying to Prove?

In general, the Constitution says that states can't make discriminatory laws unless there's a good enough reason. So Perry's lawyers will try to prove that there isn't a good enough reason for the marriage discrimination, while the lawyers on the other side will try to show why there is.

That's why they're having the bench trial. The trial will first determine what the effects of gay marriage are, such as the effects on children of gay parents and the effects of gay marriage on heterosexual marriages in general. If it finds that gay marriage has negative social effects, the court may decide that the state trying to prevent those effects by banning it is a good enough reason.

What's at Stake?

Because the case is in federal court and is about whether a state gay marriage ban violates the U.S. Constitution, the case could eventually be appealed the the U.S. Supreme Court. If the Supreme Court hears the case, then its decision could affect all state marriage bans, not just California's.

For more information, keep up with the court's special website for the case, or check back here.

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Most changes in gay rights are made in the courts. But none of the federal court cases about gay rights has ever been publicly broadcasted.

Until now. The trial of Perry v. Schwarzenegger, the high profile federal case challenging the constitutionality of California's Proposition 8 ban on gay marriage, will be videotaped and uploaded to YouTube for the world to watch.

Chief U.S. District Judge Vaughn Walker's decision to share the trial via YouTube is important for several reasons:

• Court staff, not a media company, will be controlling the cameras. Media companies had asked the judge for broadcast rights, but the judge preferred this way because it lets the court control the cameras.

• People can watch the trial whenever they want. Most people are busy during the day and don't have time to sit and watch a trial on TV. Also, a lot of times trials have boring parts, and you can't fast forward through a live broadcast. Having the trial on YouTube lets people watch the trial when they have time to, and they can stick to the interesting parts.

• It will be the first non-criminal federal trial ever publicly broadcasted. The Ninth Circuit approved public broadcasting late last year, anticipating that the gay marriage trial would be a great case to try it out.

• It makes the judicial process more transparent. Judge Walker already started this, creating a separate website about the case and setting up a special email announcement list for case updates.

• It sparks online discussion. When a trial is broadcasted on TV, you can't link to it. You can't share a video of it on facebook. Your comments about it are heard by your coworkers and family, not by millions of internet users.

The bench trial begins next week.

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Many times when a law is passed it doesn’t take effect until later on. That’s the case with two laws granting more rights to California gay couples that the state passed last year: (1) the Marriage Recognition and Family Protection Act and (2) the LGBT Domestic Violence Programs Expansion Bill.

Dana Rudolph over at Mombian, a blog centered on LGBT parents, explained what the two laws do:

The Marriage Recognition and Family Protection Act, which states that same-sex couples married in any state or nation anytime before the passage of Proposition 8 must be recognized as married spouses in California. The new statute also confirms that same-sex couples married outside of California after November 5, 2008, must be given all of the rights, protections and responsibilities of married spouses under California law, with the sole exception of the designation of “marriage.”

The LGBT Domestic Violence Programs Expansion Bill, which expands access for LGBT service providers to a state fund within the California Emergency Management Agency, which supports LGBT-specific domestic violence programs across the state. The new law also allows for more than four organizations to apply for programmatic funding each fiscal cycle and eliminates the requirement for providers to offer shelter – impediments to many smaller LGBT organizations.

Hats off to Equality California for also summarizing the laws.

Because there’s so many gay couples living in California, the first law in particular grants substantially more rights. Same sex couples living in California that were married elsewhere, at any time, will be treated as married spouses by the state.

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Mexico City legalized gay marriage late last year, becoming the city in Latin America to do so.

Lots of gay couples near Canada already go there to get married. I expect same sex couples in southwestern states to head to Mexico for the same reason. But will their Mexico gay marriage be legally recognized when they come back?

It depends on where they live. If they're from one of the six jurisdictions that allow gay marriage--Iowa, New Hampshire, Connecticut, Massachusetts, Vermont, D.C.--then their marriage from Mexico will be recognized. But if they're from one of those places, they probably aren't going to trek to Mexico to get married anyway.

The only other places that will recognize a gay marriage from Mexico City are California and New York, both of which passed laws last year to recognize same sex marriages from other jurisdictions.

New Yorkers live pretty far from Mexico, so I don't expect to see many of them head down to Mexico just to get married, especially when they live next door to three states that where they could do the same.

For Californians, on the other hand, Mexico City legalizing gay marriage means there's now a relatively easy way to get gay marriage rights. The combination of Mexico City's new gay marriage law and California's new recognition law means that all a gay couple in California has to do to get marriage rights is take a day trip to Mexico. Mexico City lets U.S. residents get married there as long as they bring the right paperwork.

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I like science fiction. One of my favorite TV shows was the remake of Battlestar Galactica, which ended last year. Launching this month is a prequel series to the show, called Caprica, in which gay marriages will be common.

Even though it's science fiction, a TV show featuring gay marriages as normal would be unheard of just a few years ago. I encourage all you fellow science fiction fans to give the show a look when it premiers on January 22.

Thanks to Scott at Gay Marriage Watch for pointing this out.

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Although the New Hampshire legislature legalized gay marriage last year, in 2009, the law didn't actually take effect until today. Gay couples were using the new law to get married as early as this morning, as Kris Alingod of All Headline News reported earlier.

Be sure to wish an extra happy new years to your gay friends and family from the state.

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Here's the conclusion of the top 10 stories of 2009 in gay couples law. Despite the political setbacks towards the end of the year, it's hard to complain when 3 states that didn't allow gay marriage now do.

5. California Supreme Court Upholds Proposition 8

Most of the legal battle surrounding Proposition 8, the voter referendum that overturned California gay marriage, happened in 2008. But it ended this year when the Supreme Court upheld the referendum. Still, Governor Schwarzenegger did sign a bill recognizing the marriages of gay couples from before Proposition 8 was approved.

4. Washington Passes Everything-But-Marriage Law, Citizens Affirm Through Referendum 71

If all that happened was that the state legislature passed Bill 5688, granting domestic partners in the state the rights of married couples, this story would still have made the list. But who can forget the Referendum 71 legal war, making national news with battles over whether the referendum could be blocked, whether signatories could be revealed, whether the signatures were even valid, and whether its wording was too confusing. But at the end of the day, state voters approved the referendum, letting the domestic partnership law stand.

3. Wisconsin Passes Domestic Partnership Law Despite Constitutional Ban on Gay Marriage

This state’s passage of a domestic partnership law was particularly important because the state’s constitution bans same-sex marriage. It showed how a state legislature could work against a constitutional ban on gay marriage to still provide gay couples with legal rights enjoyed by married couples. This is important, because many states have such a ban in place. The legislature had to provide fewer rights to gay couples than it wanted to prevent domestic partnerships from looking too much like gay marriages, which the state constitution bans. As a result, Wisconsin gay couples don’t get everything-but-marriage, but they still have more than they did before.

2. Maine Passes Same Sex Marriage Law, Voters Overturn It

Back in May, it looked like Maine would be the 6th state to allow gay marriage. This would have been the first state to legalize gay marriage through the legislature instead of through the courts. But state voters said otherwise. Just like every other time gay marriage has been put up to a popular vote, they approved a referendum that overturned the law.

1. Iowa, New Hampshire, and Vermont Legalize Gay Marriage

While the same sex marriage law in New Hampshire won’t actually take effect until the new year, gay couples in Iowa and Vermont can get married today. The addition of three states to the list of those allowing gay marriage makes 2009, despite setbacks in other states, overall a very good year for legal rights of gay couples.

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A lot happened in 2009 in gay couples law. Both on a state and national level, the year brought many changes, good and bad, for same sex relationships. Here's Part 1 of my list of the top 10 stories from 2009. 

10. Obama Extends Some Health Care, Other Benefits to Domestic Partners of Federal Employees

Under fire for not doing anything for the gay voting bloc that supported his election, Obama finally made his first overture by extending some benefits to federal employees. Still, the move was mostly political and didn’t substantially affect federal employee rights. For that, stay tuned next year on the Domestic Partnership Benefits and Obligations Act, which just got voted out of committee in Congress. 

9. Congress Amends the Hate Crimes Act to Include Sexual Orientation as Protected Class

While not specifically affecting gay couples rights, the amendment nevertheless was the first federal law that granted, instead of took away, gay rights. The move showed that Congress might further expand gay rights and eventually repeal DOMA. 

8. Colorado and Nevada Pass Limited Domestic Partnership Laws

Nevada became the 17th to recognize domestic partnerships. While it's not entirely everything-but-marriage, (the state doesn't make employers provide benefits to the domestic partners of employees, for example), the law does give domestic partners most of the benefits of legal spouses in the state. The legislature had to override the governor's veto to get the law through. Colorado, on the other hand, passed an even more limited law, granting gay couples some estate planning benefits. 

7. New York Senate Rejects Gay Marriage

Both the New York state assembly and the governor said gay couples should be able to get married. But in December the state senate said no. As New York has one of the highest gay populations in the country, gay marriage there would have been almost as important as marriage in California. 

6. D.C. Council Votes to Legalize Gay Marriages and Recognize Ones From Other States

Lots of people in D.C. are from somewhere else. That made the D.C. out-of-state gay marriage recognition law passed in May more important than those kind of laws usually are. But not content to let other jurisdictions have all the fun, the D.C. Council voted to legalize gay may marriages performed in the district too. We won’t see the outcome of this second law until next year after opponents of same sex marriage sue to block it.

Check back tomorrow for the top 5.

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The Washington D.C. Council voted yesterday to legalize gay marriage in the District. In D.C., laws passed by the council have to be approved by Congress before becoming law. Once the D.C. mayor signs the bill, both Congress and the president must vote to block the bill within 30 days--otherwise it's automatically approved. Here's the full text of the bill [PDF], entitled the Religious Freedom and Civil Marriage Equality Amendment Act of 2009. 

This requirement for Congressional approval might give the D.C. gay marriage law more staying power than state laws. In some states, residents can put a measure on a ballot and vote to overturn a gay marriage law passed by their state legislators. If that happens, as it did in Maine, no further legislative approval would be needed.

Some organizations will sue to allow D.C. residents to vote on the gay marriage law, an effort that the governing council rejected before. Even if they win their lawsuit and vote to overturn the new law, Congress would still have the right to reject that overturning. This difference makes it harder for people against gay marriage to overturn the law.

Nevertheless, Congress will not stay liberal forever. Once conservatives are back in power, they will be free to overturn the D.C. gay marriage law without regard to the D.C. Council. Already the top Republican on the Congressional subcommittee overseeing the District has said that Republicans will work to block and eventually overturn the new law.

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Folks who live in Maine might be thinking about getting married in Canada after their state voted down a law that would have allowed gay marriage. In fact, many U.S. gay residents go to Canada to take advantage of laws that have allowed gay marriage since 2005.

But they better hope they stay together. It's hard for same sex couples to get divorced after getting married in Canada.

While couples can easily go to Canada for a weekend and get married, the country has more strict requirements when its comes to divorce. The Canadian Divorce Act says that for a couple to get divorced in Canada, one person must have lived in the country for at least a year just before the divorce. Not surprisingly, people may not want to move to Canada for a year just so they can get divorced.

But staying home has its own problems. The reason a gay couple goes to Canada to get married in the first place is usually because their own state doesn't allow gay marriage. But if it doesn't allow gay marriage, it probably won't allow gay divorce either. So Maine residents who now go to Canada to get married, for example, won't be able to get divorced back in their home state.

Barbara Findlay, a family lawyer in Vancouver, summarized the situation in the latest issue of Lawyers Weekly:

So unless they happen to be very wealthy and have nothing better to do with their time than to hang out in Canada for a year, they really can’t get a divorce here. In other words, they are stuck in a divorce catch-22.

Couples married in Canada aren't completely out of luck because they can still go to one of the few states that allows gay marriage and divorce. But these states often have their own additional rules. Massachusetts, for example, also has a 1 year residency requirement similar to Canada's.

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Gay marriage statistics are hard to find. That's because the U.S. Census, the primary tracker of demographics, has never counted them. In fact, gay couples who reported as married on the 2000 census were changed to unmarried by the Census Bureau.

That will change next year. Erik Fowle reports on the San Diego News Network:

Next April, when gay couples record themselves as being married, or as unmarried partners to persons of the same sex, their original answers will be retained. The 2010 Census marks an unprecedented level of accuracy with regard to measuring the true number of same-sex couples in the United States.

The published statistics will probably increase legal protections for gay couples because they'll change from a vague demographic to a countable one. For example, politicians could better estimate the effect of allowing gay couples to adopt children.

Yet the gay marriage statistics that come from the Census next year will likely be inflated. Statisticians expect many gay couples who can't get married in their own states to report as married even if they're not. Unlike in 2000, where gay marriage wasn't offered anywhere, in 2010 couples can get married in another state. Therefore, the 2010 Census will still record them as married even if they live in a state without it.

The inflated statistics could make legislatures think that there's more married gay couples than they're actually are. However, if the statistics are inflated because unmarried couples feel it's not worth it to get married out of state, then the statistics could still reflect the overall demand for laws allowing gay marriage.

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Video conferencing and remote connection technologies could make it easier for same sex couples who live in states that don't allow gay marriage to get married in states that do.

Professors Adam Candeub and Mae Kuykendall, who run the E-Marriage Project over at Michigan State Law School, said in an article that couples shouldn't have to physically be in a state to get married under its laws. Instead, they should be allowed to use remote connection technologies to get married by proxy.

The professors note that states let out-of-state residents use their laws all the time. For example, people can form businesses in other states or write provisions that make another state's law govern a contract.

Even with marriage, states have previously let people get married without actually being there. A press release about the article explains:

The couple's physical presence within the particular state authorizing their marriage has never been a requirement the states must impose in order to marry couples. Couples have for centuries married by proxy, mail, and telephone. The military has for many years recognized such marriages as legal for purposes of spousal allowances and death benefits.

Would these marriages be recognized in the couples home state? Probably not, unless there's already a law recognizing out of state gay marriage.

But statistics show that same sex couples in states without gay marriage are willing to take advantage of states that do. For example, since Iowa legalized gay marriage, almost half of same sex marriages there have been for out-of-state residents.

Yet sometimes it's too inconvenient for a couple to get married under another state's laws. If states with gay marriage passed the laws suggested by the E-Marriage Project, then a couple in a state without gay marriage could more easily get an official stamp on their relationship, even if it's just symbolic.

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Remember when Dallas Judge Tena Callahan struck down the Texas gay marriage ban earlier this month?

Unfortunately, because she gave an oral decision, no  written decision was available to see what motivated the judge to rule the way she did.

But last week the judge spoke at a democratic organizitaiton dinner and explained her reasoning. John Wright of the Dallas Voice reported what she said:

“I was sitting at my dining room table and I was thinking, I’ve got to make this decision, I’ve got to rip this Band-Aid off and I’ve got to make this decision,” Callahan said, adding that she wasn’t struggling with the constitutional principle behind the ruling, but with the backlash she was sure to face.

“My dad always used to tell me that a billion people can believe in a bad idea, and it’s still a bad idea. And that man taught me to have the courage of my convictions and to do what’s right

— it’s always the right time to do the right thing. And as I’m sitting there and all this is going through my head, I’m looking at the back of this bag, and I went, ‘Oh my God, I just got my answer.’

“‘Let us have faith that right makes might,’” Callahan said, reading from the back of the bag, “and in that faith, let us to the end dare to do our duty as we understand it. — Abraham Lincoln.”

“I do my duty,” Callahan said. “That’s what you elected me to do.”
As Callahan concluded her brief remarks, fellow members of Stonewall Democrats of Dallas gave her a standing ovation, just as they had when she took the microphone.

The judge said that she wasn't allowed to talk about the specifics of the case. Still, she stressed that the purpose of the constitution is to protect minorities: "It’s not there to protect the majority. In a democracy, majority rules. Who needs the silly constitution when you’re ruling?"

While Judge Callahan's comments about the constitution may appeal to some, her ruling will still almost certainly be reversed on appeal.

Thanks to Michelle O'Neil, a Dallas family law attorney, for the tip.

[Photo credit: JOHN WRIGHT/Dallas Voice]

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Last Thursday, while everyone else was watching a balloon, Keith Bardwell, a Louisiana justice of the peace, was refusing to give a marriage license to an interracial couple or to officiate their wedding ceremony because he didn't "believe in mixing the races that way."

The official's decision and subsequent justification triggered a nasty response across the internet over the weekend:

• "The denial of personal bigotry reaches epic proportions." -Nationally recognized political commentator, Pam Spaulding.
• "It is an example of the ugly bigotry that divided our country for too long." -Louisiana Senator Mary Landrieu.
• "Disciplinary action should be taken immediately." Governor Bobby Jindal.

But when it comes to gay marriage, officials deny marriage licenses based on their own personal beliefs without accompanying media attention. Several state and municipal laws let officials who don't "believe in mixing the genders that way" refuse to give gay couples marriage licenses or to perform their wedding ceremonies.

Upcoming bills to allow gay marriage are particularly likely to include these provisions to help the laws pass. Without them, many state lawmakers won't vote for the laws because of people like Thomas Messner from the conservative Heritage Foundation, who warns that

those who support the tradi­tional understanding of marriage will be subject to even greater civil liability under nondiscrimination laws that prohibit private discrimination based on sexual orientation, marital status, and gender.

Take, for example, the recently introduced bill [PDF] that would legalize gay marriage in Washington, D.C. It lets officials refuse marriage licenses to gay couples based on their own religious beliefs: "No official. . .shall be required to solemnize any marriage in violation of his or her right to the free exercise of religion."

Public criticism of the Louisiana official may reduce these religious objections to gay marriage licenses.

Remember that Loving v. Virginia, the unanimous Supreme Court decision that ended outlaw of interracial marriage in the U.S., was a product of the Civil Rights Movement. The Court said that the civil rights of interracial couples trumped the first amendment freedoms of licensing officials. Just as denying interracial marriage licenses for religious reasons was disallowed then, gay rights organizations could argue that denying gay marriage licenses for religious reasons should be similarly disallowed now.

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Governor Schwarzenegger last night signed a law that makes California recognize gay marriages performed out of state.

All same sex couples married out of state at any time will have all the rights of married straight couples in the state. But the law tries to play it both ways when it comes to what to call these relationships.

Couples married before November 5, 2008 (the day Proposition 8 banned gay marriage in the state): they'll called spouses and their relationships will be called "marriages."

Couples married after November 5, 2008: they won't be called spouses and their relationship will be called "domestic partnerships."

What a mess!

Dan Smith reported this morning in the Sacramento Bee why the law treats out of state marriages differently based on when they took place:

In a signing message, Schwarzenegger said California will not recognize the couples as married but will "provide the same legal protections that would otherwise be available to couples that enter into civil unions or domestic partnerships out-of-state. In short, this measure honors the will of the People in enacting Proposition 8 while providing important protections to those unions legally entered into in other states."

Gay marriage law is already hard to understand because different states plus the federal government have differing laws covering same sex relationships. California's law now means that same sex couples may not even be governed the same within a single state.

Names are legally significant when it comes to same sex relationship rights. Don't be surprised if the set of rights that a California gay couple married out of state has depends on whether their relationship is actually called a marriage.

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Surprise!

A judge in the conservative heartland of Texas struck down yesterday the state's constitutional ban on gay marriage.

But it's actually not so surprising. The judge, Tena Callahan of the 302nd Family District Court, is a Democrat, elected in 2006. Her decision doesn't represent a shift in cowboy thinking--rather, it's just the product of a recent left-leaning election.

And it won't mean anything for Texans. Michelle O'Neil, a Dallas attorney with over 18 years of family law experience, helps put things in perspective:

[T]he Dallas Court of Appeals is considered to be one of the most conservative courts in the State. Dominated by nine republican justices who are elected over a five county region consisting not only of Democrat-leaning Dallas County, but also uber-conservative Collin County and Grayson, Hunt, Rockwall and Kaufman counties. Likewise, the Texas Supreme Court is made up of justices mostly appointed by either Governor Perry or Bush and it is largely considered to be one of the most conservative groups of justices on the Court ever.

Although many will consider this ruling to be a win for the GLBT sector, based on the level of conservatism of the justices in line to hear this case, it is extremely doubtful that this ruling will last very long.

Because the case will be appealed, the Texas constitutional ban on gay marriage isn't going away anytime soon.

But while the opinion won't help gay couples in Texas, it still has two important effects:

1. Spotlights the issue.

The 302nd Family District Court of Texas does not nationally influence the law on gay marriage. Nevertheless, in less than 24 hours after the decision, national mainstream media outlets have covered the story, including the Associate Press, Reuters, and the Wall Street Journal. Evidence suggests that the more people talk about gay marriage, the more support it gets.

2. Shows a new way to challenge gay marriage bans.

Most states, like Texas, ban gay marriage. Lawsuits in these states challenging the bans outright usually fail.

But the Dallas case was unique because the person bringing the suit argued not for the right to get married, but for the right to get divorced. The judge ruled on a jurisdictional issue. She said that because the full faith and credit clause gives her court "jurisdiction to hear a suit for divorce filed by persons legally married in another jurisdiction," the state ban on gay marriage that disallows her court from doing so must  violate the U.S. Constitution's equal protection clause.

Because gay marriage laws will change mostly on a state level, creative challenges to these laws give states with less conservative appellate courts more avenues to allow same sex marriage. Just as the Wisconsin legislature tried to work around their state's constitutional ban, sometimes all a judge needs is a plausible legal justification for invalidating a discriminatory law.

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In 2010, for the first time, the U.S. Census will count same sex marriages, publishing the number the following year.

The Washington Post discussed on Sunday why the published numbers will be important for gay rights advocates:

Particularly at the state and local levels, gay advocacy groups say census data on income for same-sex couples will show the need for more protections against job discrimination. Statistics on households with children will help them challenge laws limiting gay adoptions and legal guardianship. With raw numbers to illustrate the need, it will be easier to demand services, they say.

Yet the number of married gay couples will probably include many couples that aren't actually married. That's because same sex couples in states where marriage is unavailable will likely call themselves married anyway.

No states allowed gay marriage back in 2000. Yet almost half of all same sex couples identified in the 2000 census as married. The 2000 census even offered an "unmarried partner" option," but so many couples checked the spouses box regardless.

Similarly, the 2007 American Community Survey, a smaller operation of the U.S. census, reported over 300,000 same sex marriages, although only around 10,000 gay couples had actually been legally married, all in Massachusetts.

Therefore, as the Post article notes, in the 2010 census, "demographers expect hundreds of thousands to report they are spouses -- even though legal same-sex weddings in the United States number in the tens of thousands."

This may just be an unexpected result the general unavailability of same sex marriage. Perhaps gay couples that want to, but cannot, get married nevertheless self identify as spouses to say, "We're not married, but we would be if we could."

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When it comes to out of state recognition of same sex relationships, names are important. Laws that recognize out of state "gay marriage" do not necessarily also recognize "civil unions" and "domestic partnerships."

Even when these unions and partnerships give gay couples everything but marriage in name, they are still at risk of non-recognition from other states because they are called something else.

Joanna Grossman, a law professor at Hofstra Law School, explains what can happen with out of state recognition laws:

Even within the few jurisdictions that do or may recognize same-sex marriages, many same-sex couples will find themselves unprotected. New York's broad pro-recognition stance, for example, does not apply to other statuses like civil unions.

As a result, New York granted recognition of a Canadian gay marriage, but denied recognition of a Vermont civil union. The fact that Vermont civil unions provide the same rights as marriage does didn't matter because the relationship was not called a "marriage."

Even in Washington, D.C., the most recent place to pass a recognition law, civil unions and domestic partnerships from one of the many states that offer them will probably not be recognized.

These conflicts over names show that providing gay couples with the same rights as married couples, but not the marriage name, does not really give them the same benefits. Married opposite-sex couples have no problems with out of state recognition. But gay couples in an "everything but marriage" domestic partnership or civil union may have to leave their rights at home.

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