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APPROVED Chair City and County of San Francisco HUMANRIGHTSCOMMISSION Theresa Sparks Executive Director COMMISSIONERS Edwin M. Lee Mayor Susan Belinda Christian APPROVED Chair Mark Kelleher Vice Chair Lesbian Gay Bisexual Transgender Advisory Committee October 21, 2014 Meeting Minutes Sheryl Evans Davis Michael Pappas Richard Pio Roda Michael Sweet Committee Members Present: Commissioner Pappas, Amos Lim, Alex Lazar, Bonnie Miluso, Diane Alcalá, Frank Lester, Jackson Bowman, Joseph Frislid, Fayaz Rajani, Larry Saxxon, Mitch Mayne, Mark Snyder, Monica Davis, Patrick Pablo, Stephen Downey, Tracy Garza and Vaughn Villaverde. Committee Members Absent: Joshua Jacobs, Mauro Sifuentes, Megan Rohrer and Scott Milagro-Fotré Staff Present: David Miree Guest/Community Members Present: Amy Whelan, Senior Staff Attorney, NCLR Order of Business 1. Meeting was called to order at 5:32pm. Roll was called; a quorum was established accordingly 2. Public Comments for Items not on the Agenda There was no public comment. 3. Approval of September 16 , 2014 Meeting Minutes – Action Item The minutes were unanimously approved. Regular Business 4. 7x7 Guest Presenter- Amy Whelan, Senior Staff Attorney, NCLR – Whelan will brief the “AC” Body on NCLR’s leadership and advocacy related to advancing Marriage Equality in 25 VAN NESS AVENUE, SUITE 800, SAN FRANCISCO, CA 94102 • TELEPHONE 415.252.2500 • FAX 415.431.5764 WEBSITE: www.sf-hrc.org the United States and will discuss the impact of recent court action fueling the potential ratification of this law by all 50 States Commissioner Pappas introduced Amy Whelan as an attorney with NCLR and former member of the LGBTAC. “AC” Chair Pappas noted that upon hearing about the on-going development of marriage equity cases across the nation in the media, he asked HRC staff (Miree) to reach out to Kate Kendall at NCLR and invite her to present on this topic before the “AC.” Due to a scheduling conflict Kate was not able to participate but she (Kate) did send another equally appropriate staff attorney in her stead, Amy Whelan to address the LGBTAC on NCLR’s leadership and advocacy related to advancing Marriage Equality in the United States and the impact of recent court action fueling the potential ratification of this law by all 50 States. Although as a former LGBTAC member Whelan was already quite familiar with a number of “AC” members, Pappas asked that members introduce themselves and to tell a little bit about their professional affiliations and work in the community. After the introduction Whelan provided the “AC” members with a map that highlights the current status of marriage equality in all 50 States as of the time of her presentation before the “AC” body . 25 VAN NESS AVENUE, SUITE 800, SAN FRANCISCO, CA 94102 • TELEPHONE 415.252.2500 • FAX 415.431.5764 WEBSITE: www.sf-hrc.org {Scriber’s note} In lieu of the “unkeyed” map that was provided in association to Whelan’s presentation, HRC staff has re-printed a map above that highlights the current status of marriage equality across the U.S. along with the associated key ( according to CNN as of updated 3:00 PM ET, Tue Oct 21, 2014) Whelan pointed out that the status of marriage equality across the nation has the potential of changing every day. However Whelan noted that is what the Supreme Court’s ruling(s) in the “Windsor” Case that served as the impetus for the change in same sex marriage laws in the U.S. Whelan explained that the “Windsor” ruling basically struck down the “Defense of Marriage Act (DOMA) and declared that the federal government could not refuse to recognize same sex marriages that were deemed legal on the State level. Whelan noted that “a reading” of Windsor ( as a rationale for states challenges) also indicated that States cannot refuse to recognize or marry same sex couples within their (State) borders. Whelan again spoke to the “ever-changing” status of marriage equality across the country and highlighted Wyoming as an example of one of the NCLR cases of which a court ruling came down as recent as the morning of this presentation now were allowing same sex couples to marry. Whelan then turned her attention to the States were the status of marriage equality was pending and talked about what might be their timeline toward the potential for allowing same sex marriage. Whelan spoke to the pride she has as a staff attorney for NCLR and the role the firm has played in the fight for marriage equity. However she wanted to emphasize that the firm’s main objective is that “nobody is left behind” in this challenge toward establishing marriage equality in all 50 States so that people in those states presently “banning” same sex marriage will have “access to this right..” NCLR is committed to fighting the fight until every individual may experience the benefit of marriage equality laws Attorney Whelan cited that the cluster of states still banning same sex marriage such as Florida, Georgia and Alabama, etc. were a part of the 11th Circuit Court of Appeals where NCLR currently has a case on appeal in Florida. Whelan noted that she anticipates a ruling from the 11th Circuit in the next 6-8 months. Relative to the Sixth Circuit which includes TN, OH, Mich, Kentucky, NCLR also has a case pending in TN. KY OH that have been fully briefed relative to striking down the current same sex marriage ban and if that decision to positive to marriage equality these states could experience marriage equality laws within weeks.to a couple of months ( also assuming its favorable.) In terms of the 8th Circuit, including the “Midwest States” such as ND, SD, NE, MI, AK Whelan noted that this “Circuit” is rather far bit behind in its review of challenges although NCLR has a couple of cases in this jurisdiction currently on the docket. There is one State case out of Arkansas who case has been appeal to the Supreme Court so that ruling could be decisive in the next few weeks. TX, LA, MI which are States in the 5th Circuit Court of Appeals. The pending case in TX has been fully briefed and will be argued in November. With the examination of the remaining states with cases pending, Whelan felt rather confident that a decision within all the Circuits is rather imminent but difficult to note if they will be favorable to the cause for marriage equality because these are historically some of the most “conservative” states in the country covered by the remaining Circuit Courts of Appeals. Whelan suggested that what is happening with the Supreme Court not reviewing many of these cases that have struck down the ban is because they are basically waiting for a ruling from a Circuit Court that upholds the marriage ban or argues States Rights that gay people do not have the right to marry. Whelan noted that she will go “out on a limb” and say that she does not believe a Circuit Court of Appeals will ever hand down such a ruling which serve to preclude the Supreme Court from actually ever having to entertain/hear such a patent question of the legality of allowing marriage equality for all persons. Whelan feel that the question of marriage equality before the remaining Circuits is a “bipartisan issue” explain that many of these judges have been appointed by Republican Presidents such as Nixon, Bush 1 25 VAN NESS AVENUE, SUITE 800, SAN FRANCISCO, CA 94102 • TELEPHONE 415.252.2500 • FAX 415.431.5764 WEBSITE: www.sf-hrc.org and 2 and that their ruling are reflective of siding on party lines. It seems to be quite evident that a higher number of Circuit Court Judges across the country realize that denying marriage equality for all people is an offense to their ( same-sex couples) constitutional rights. Whelan concluded that her presentation reflects an overview of the status of Marriage Equality across the U.S. However things are changing on a day to day basis relative to this issue. Whelan talked about the significance of the NCLR’s efforts in the 10th, 7th and 4th Circuits and how the firm felt good about their advocacy and hard work and was “prepared to aggressively argue for marriage equality before the Supreme Court but admittedly was also surprised when the Supreme Court choose not to hear any of those case in effect “staying” the Circuit Court’s rulings allowing marriage equality. Whelan clarified a salient point as to why she believes that that the Supreme Court might not ever hear the issue of marriage equality. The Attorney noted that the Supreme Court ‘ “threshold/ standard’ in reviewing cases is usually centered on ruling on a question of law that might be the source of conflict between the circuit courts. Going back to Whelan’s earlier “pronouncement” she feels rather strongly that it is rather unlikely that a Circuit Court is going to rule that gay people don’t have the right to marry hence this alleviates any “conflict” amongst the Circuit Courts upon which the Supreme Court will have to review the legality of the ruling or rule against one court over another. Attorney Whelan did voice the potential for a “backlash” effect if for an example the “liberal” Justices who are currently in the majority on the Supreme Court left and they seats were replaced by more “conservative” Justices who could in turn argue that “Windsor” did not apply or chose to interpreter the “Windsor Case” differently in support of a States Rights to uphold the ban in subsequent case review could certainly be a definitive “game changer.” Hence Whelan believes it’s more prudent on the Liberal Supreme Court to make a definitive ruling now to avoid the possibility of this happening in any subsequent case involving marriage equality or a State’s right to ban same sex marriage.
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