Tag Archives: same-sex marriage

BBA Continues Advocacy for Marriage Equality

It’s gratifying when the BBA has an opportunity to throw our support behind issues related to civil rights and civil liberties, both fundamental to our mission as a community of lawyers.  This week the BBA joins as amici in two cases currently before the United States Supreme Court — Dennis Hollingsworth, et al. v. Kristin M. Perry and United States v. Windsor.  Simply put, the Perry and Windsor briefs argue that sexual orientation classifications warrant heightened scrutiny under the Equal Protection Clause.

Heightened scrutiny is essential when the affected minority lacks the political power to defend itself from the majority’s prejudices through the normal democratic process. As the amicus brief in Perry notes, heightened scrutiny is “warranted to ensure that historical prejudice and antipathy are not masked by after –the- fact rationalizations.”

Perry challenges California’s Proposition 8, a gay marriage ban approved by a 2008 ballot initiative.  From June 2008 until November 2008 when Proposition 8 passed, same-sex couples were allowed to marry in California.  Proposition 8 took away that right.  Same-sex couples in California sued to overturn Proposition 8, and a federal judge ultimately found Proposition 8 unconstitutional. When the United States Court of Appeals for the Ninth Circuit affirmed the judge’s decision, gay marriage opponents attempted to revive Proposition 8 in the Supreme Court.

Windsor challenges Section 3 of the Defense of Marriage Act (DOMA) which defines marriage as “a legal union between one man and one woman as husband and wife,” and also defines a spouse as “a person of the opposite sex who is a husband or a wife.”

The BBA works to advocate for access to justice for all, including the right of all persons to equality under law.  The BBA has been a leader when it comes to the rights of same-sex couples.  Whether we use the phrase marriage equality or same-sex marriage we are talking about the equal treatment of same-sex couples.   In October 2002, the BBA filed a brief in Goodridge v. Department of Public Health, arguing that denying marriage licenses to same-sex couples in Massachusetts violated the state constitution.  Three years later, in January 2005, the BBA filed another brief in Cote-Whiteacre v. Dept. of Pub Health.  To better understand our involvement with this important issue check out our past blogs.

The issue of whether DOMA is unconstitutional now lies in the hands of the US Supreme Court.  We urge the Court to strike down this discriminatory act. Stay tuned…we will report back once arguments in both cases have been heard.  Arguments in Perry begin March 26 and arguments in Windsor begin March 27.


– Kathleen Joyce
Director of Government Relations
Boston Bar Association
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Nationwide Victories for Same-Sex Marriage

Amen!  We are at last seeing the changing tide of public opinion on same-sex marriage across the country.  This became especially evident last week on Election Day.  Four states considered ballot questions regarding same-sex marriage.  Equality and common sense prevailed when Maine, Maryland and Washington became the first states to legalize same-sex marriage by popular vote through a ballot initiative.  There was more to celebrate when Minnesota voters defeated a ballot question that would have defined marriage as between a man and a woman.

Before the 2012 election, same-sex marriage had appeared on ballots in 32 different states and was defeated all 32 times.  In Massachusetts we are ahead of the curve.  After all, it was almost ten years ago that Massachusetts became the first state to legally recognize same-sex marriages.  There are now ten U.S. jurisdictions in which same-sex marriage is legal – nine states and the District of Columbia.

Fortunately attitudes about same-sex marriage are shifting across the country.  In May, the First Circuit Court of Appeals ruled that the federal Defense of Marriage Act (DOMA) violates the Constitution.  We’re still hoping that the Supreme Court will take this issue up this year.

Earlier this week, the Boston Bar Association honored the Massachusetts Office of the Attorney General and Gay & Lesbian Advocates & Defenders (GLAD) with its third annual Beacon Award for Diversity and Inclusion at the Liberty Hotel. The award recognizes these two organizations for their efforts challenging the constitutionality of DOMA in two parallel cases in the First Circuit.  The award was created to highlight exceptional leadership in creating a lasting impact and forging a new path towards a more diverse and inclusive legal profession and society in Greater Boston.

There is still work to be done in ensuring equality for all citizens, but this week’s Beacon Award event gave us the opportunity to pause and celebrate the outstanding work of those championing and to reflect on just how far we’ve come.

We await the Supreme Court’s decision of whether (or when) to take up the two federal cases challenging DOMA and we hope that the Supreme Court was listening when the people spoke on Election Day.

-Kathleen Joyce
Government Relations Director
Boston Bar Association
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SCOTUS Fall 2012 Starting Lineup

Amid much anticipation, the United States Supreme Court opened its 2012-2013 term on October 1st.  At the Boston Bar Association (BBA), we are watching three specific cases with great interest in their impact on civil rights and equality.

Fisher vs. the University of Texas is scheduled for oral arguments on Wednesday, October 10th.  The issue at hand in the Fisher case is the diversification of student bodies in higher education.  However, the impact of the decision in this case will be far reaching – with the potential to derail whatever progress is being made in advancing diversity in the legal profession.

Fisher challenges the Court’s 2003 ruling in Grutter v. Bollinger a case challenging the affirmative action policies at the University of Michigan Law School.   Our amicus brief in Grutter supported the position that race-based criteria in admissions decisions pass constitutional muster.

We fervently believe that race-conscious policies promote more diverse student bodies, which lead to more racially representative legal communities.   This determined our position when we filed an amicus brief this summer in Fisher. If the Court chooses to overturn the constitutionality of race-based admissions policies, the impact on the higher education landscape will be devastating, not just in Texas but throughout the country.

This particular brief was drafted for the Boston Bar Association by Bingham McCutchen on a pro bono basis. Thank you again to the Bingham team –Jon Albano, Deena El-Mallawany and Caleb Schillinger.

Meanwhile we can only hope that the Court will take up another civil rights issue presented in MA v. U.S. DHHS and Gill v. OPM.  These two cases –one filed by Gay & Lesbian Advocates & Defenders (GLAD) and the other by the Massachusetts Attorney General’s office – challenge the constitutionality of the federal Defense of Marriage Act (DOMA).  DOMA bars the federal government from recognizing same-sex spouses for any federal purpose.

Last winter, the BBA joined an amicus brief drafted by GLAD and the Massachusetts Attorney General’s Office challenging the constitutionality of DOMA.  DOMA presents a challenge to our civil rights, posing a significant threat to fundamental concepts of fairness and equality.

Civil marriage – which allows a couple to seek a license to marry – should not be confused with religious wedding ceremonies that may take place in churches, mosques or synagogues.  As a matter of equality under the law, the BBA supports civil marriage for same sex couples. The BBA filed an amicus brief in the landmark case Goodridge v. Department of Public Health, which led to the legalization of same-sex marriage in Massachusetts.

We celebrated when theU.S. Court of Appeals for the First Circuit in Boston struck down the section of DOMA that denies federal benefits to same-sex couples married in states that have legalized such unions.   We will celebrate again at the 3rd Annual Beacon Award for Diversity and Inclusion ceremony on November 13th when we honor GLAD and the Attorney General’s Office for their work in this area.

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Still Proud to Be First!

Recently, New York became the latest state to legalize same-sex marriage when Governor Andrew Cuomo signed the Marriage Equality Act into law in June.  A 62-member Senate had approved the bill by a vote of 33-29.  The bill officially took effect July 24th, which marked 30 days since Governor Cuomo signed it into law.

However, this monumental decision by the New York State Assembly did not come without a fight. Lawmaker Daniel O’Donnell, the first openly gay member of the New York State Assembly, introduced a same-sex marriage bill in 2007, which was approved by the Assembly three times in five years, but subsequently rejected by the Senate each time. The final push towards legalization came with a switch in the opinion of four of the New York representatives (three Democrats and one Republican).  Some of the representatives admitted that they were swayed by the public opinion in their districts while others revealed a change in their moral stance on the issue.

Following the Supreme Judicial Court’s 2004 ruling in Goodridge v. Department of Public Health, Massachusetts became the first state to legalize same-sex marriage. The Boston Bar Association filed an amicus brief in support of the plaintiffs in the case, seven same-sex couples who argued that Massachusetts law subjected them to discrimination by denying them the right to obtain civil marriage licenses.   When the Massachusetts law officially took effect on May 17, 2004, we became the sixth jurisdiction in the world to legalize same-sex marriage after the Netherlands, Belgium, Ontario, British Colombia, and Quebec.  Since then, several U.S. jurisdictions (Connecticut, the District of Columbia, Iowa, New Hampshire, Vermont, and now New York) have joined Massachusetts in enacting similar measures to legalize same-sex marriage.

President Obama’s 2011 decision to direct the Justice Department to stop defending the Defense of Marriage Act (DOMA) against lawsuits challenging its constitutionality marked a significant shift in the political atmosphere surrounding the issue. There are currently two cases challenging the constitutionality of DOMA in the First Circuit: Commonwealth of Massachusetts v. U.S. Dept. of Health and Human Services and Gill v. Office of Personnel Management.

The BBA takes pride in its record of supporting equal rights and universal access to justice as the issue of same-sex marriage progresses.  We will continue to monitor same-sex marriage issues throughout Massachusetts and in Washington.

-Michael Bouton

Government Relations Department

Boston Bar Association

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