Tag Archives: marriage equality

After Illinois, Look West for the Next Same-Sex Marriage Battles

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Celebrations at the Chicago Pride Parade in June 2013. Today, Illinois becomes the 16th state (plus Washington, D.C.) to legalize same-sex marriage.

When Illinois Governor Pat Quinn signs a same-sex marriage bill into law today, the Land of Lincoln will officially become the 16th state to grant recognition to same-sex spouses, just one week after Hawaii.

2013 has been a banner year for gay rights activists–in addition to the Supreme Court decisions striking down the federal Defense Of Marriage Act and permitting same-sex marriage in California, the movement has seen the legalization of same-sex marriage almost double at the state level. Nearly one year ago, when the Supreme Court first agreed to hear United States v. Windsor and Hollingsworth v. Perry, only nine states and the District of Columbia recognized same-sex marriage.

Of course, their work is still far from done. After Illinois, the focus will turn west toward New Mexico and Oregon.

Traditionally, states have legalized same-sex marriage through one of three ways: by referendum, through the state legislature, or via a ruling from the state’s judiciary.

New Mexico, the only state that has neither a constitution nor a state law explicitly addressing same-sex marriage, could become the 17th state to legalize such unions, thanks to the third route. Because of the state law’s silence on the matter, eight out of thirty-three counties began issuing marriage licenses to gay and lesbian couples after the Windsor and Hollingsworth rulings–eventually prompting all thirty-three New Mexico county clerks to ask the state supreme court for clarification on the constitutionality of same-sex marriage. The New Mexico Supreme Court heard oral argument in October 2013 and is expected to hand down a decision by the end of this year.

If the New Mexico Supreme Court rules in favor of legalizing same-sex marriage, the state will join Massachusetts, Connecticut, Iowa, California and New Jersey as having decided the issue through a judicial ruling.

Meanwhile, advocates in Oregon are planning to overturn the state constitution’s ban on same-sex marriage through a referendum. The coalition Oregon United For Marriage is in the process of collecting the 116,284 signatures required by next July in order to place the question on the ballot in November 2014. If it succeeds (as of today, it needs only 1,204 more names), there’s cause for optimism: a December 2012 poll showed that 54% of Oregon voters would support marriage equality, versus 40% who would vote against it. Though gay and lesbian couples cannot be legally married in Oregon just yet, the state announced in October 2013 that it would start recognizing valid same-sex marriages from other states.

Should a same-sex marriage initiative pass in Oregon, the state will join Washington, Maine and Maryland as having settled the issue by popular vote.

The Human Rights Campaign anticipates that 40% of Americans will live in a state with marriage equality by the end of 2014.

DOMA likely to fall, but how much further will Kennedy go?

Edie Arrives in Court

Edith Windsor, the 83-year-old plaintiff challenging the Defense of Marriage Act, arrives at Court with attorney Roberta Kaplan. Picture by Chip Somodevilla/Getty Images, found via ABC News.

Justice Anthony Kennedy had a choice to make this morning. In deciding the fate of the Defense of Marriage Act, should he go with a theory of federalism that emphasizes respect for states’ rights, or a wider-ranging theory of equality that might result in heightened legal protections for gays and lesbians across the United States?

Kennedy picked the former route and clung tightly to it today in a 110-minute oral argument for United States v. Windsor that put the swing Justice on firmer jurisprudential ground than yesterday’s Proposition 8 case. While the facts of Hollingsworth v. Perry pitted states’ rights and equal protection for gays directly against one another, leaving Kennedy confused as to which of a variety of unpalatable options he should choose, the legal issues in the Windsor case presented no such conflict. Rather, the state’s voters and the law’s challengers aligned in Windsor, where they merely asked the federal government to respect nine states’ decisions to recognize same-sex marriages. Here, the principles of federalism and equal protection both point to the unconstitutionality of DOMA.

Assuming that the Court doesn’t decide the case based on standing grounds, Justice Kennedy seemed perfectly content on Wednesday to limit any eventual ruling to the first question about states’ rights. He repeatedly reminded Paul Clement–the attorney tasked by the House of Representatives to argue in support of DOMA, since the Obama administration refused to defend it–that the right to define marriage (and the rest of family law) is “the essence of the State police power.” Kennedy also expressed concern over the sheer number of federal benefits provided based on marital status–1,100 and counting–noting that this means “the Federal government is intertwined with the citizens’ day-to-day life,” interfering with the state’s traditional “prerogative.”

Despite earlier rulings on gay rights cases that indicated a willingness to extend heightened judicial protections to gays and lesbians under the Fourteenth Amendment–an equality-based argument that would have far greater reach and be far more potent against discriminatory laws than a states’ rights takedown of DOMA–Kennedy appeared very hesitant to reconsider equal protection principles today (an issue on which he had also shown confusion at the Proposition 8 discussion yesterday). Several times during the oral argument, a fellow Justice or attorney would bring up Fourteenth Amendment considerations, and Kennedy would immediately steer them back to the federalism issues.

Sensing that its crucial fifth vote was reluctant to revisit arguments about equality, the liberal wing of the Court was happy to run with Kennedy’s line of thinking and echoed many of his concerns in follow-up questions. (One of the many perks of being a swing justice must be getting to set the tone for the oral argument and watching the rest of your colleagues follow along.) Justice Sotomayor asserted that the states, and not the federal government, control the institution of marriage, Kagan made reference to “historic State prerogatives,” and Ginsburg reiterated Kennedy’s sentiment that DOMA touches “every aspect of life” in a “pervasive” manner.

Kennedy’s hesitation notwithstanding, Justice Kagan in particular seemed intent on exploring heightened legal protection for gays and exposing DOMA as outdated legislation impermissibly based on animus. At one point, she dismantled Paul Clement’s arguments about legitimate government purposes for DOMA–he’d insisted that the federal government passed the law for purposes of uniformity across the states–by reading to him the 1996 House Report that clearly states that DOMA sprang from “moral disapproval” of homosexuality. While this rationale was once constitutional, basing discriminatory laws on disapproval toward a particular group has since been prohibited in 2003’s Lawrence v. Texas, the majority opinion for which was authored by–you guessed it–Anthony Kennedy himself. Clement was forced to backpedal and say that while some legislators may have had “improper motives” for DOMA, not all 84 of the Senators who voted for the law bore animus toward gays and lesbians.

Just as the liberal justices tailored their questions toward Kennedy’s views, the conservative Justices, led by Chief Justice John Roberts and Justice Scalia, tried to assuage Kennedy’s concerns by pressing Solicitor General Donald Verrilli, Jr. and Edie Windsor’s lawyer, Roberta Kaplan, on states’ rights. Roberts repeatedly asked both parties if there was truly a federalism problem–a bit of a trap for Verrilli in particular, who as the representative of the United States federal government has no interest in ceding too much power to the states–and became audibly annoyed whenever Kaplan or Verrilli attempted to tie their answers to an equal protection argument. While Roberts and Scalia tried to compel the DOMA challengers to say that federal overreach was not really an issue here, Justice Alito brought up the practical point that a DOMA defeat would mean that gay couples could be treated differently whenever they moved across state lines–and therefore, that the equal protection problem is ultimately unavoidable.

Of course, Justice Alito is spot on here. Regardless of how Anthony Kennedy decides to decide this case, marriage equality is spreading throughout the United States, and the Supreme Court will eventually have to decide what level of judicial protection gays and lesbians deserve. As the swing vote firmly in control of the wheel, however, Kennedy has the luxury of slowing down the train if he wants to, and it looks like he’s going to do just that in the name of federalism. It won’t be as big of a step as many had hoped for, but come June we will likely be one tiny step closer to a more perfect union.

The permanent Republican victory

Frank Rich cautions against premature liberal gloating of coming triumphs, demographic or otherwise:

What’s more, the right thinks long-term, and if you look at the long-term, the whole ugly “fiscal cliff” standoff was a win-win for conservatives, no matter what their passing defeats in this week’s deal. The more Washington looks dysfunctional, the more it sows dissatisfaction with the very idea of a Federal government. Yes, Democrats and the White House can argue that polls show that the Republicans would be getting most of the blameif Congress couldn’t reach agreement on the “fiscal cliff.” But that’s short-term liberal wishful thinking. Long-term, this intractable dispute has undermined Americans’ faith in government, period, and the voters’ plague-on-all-your-houses view of Washington is overall a resounding ideological win for a party that wants to dismantle government, the GOP. The conservative movement is no more dead after its 2012 defeat than it was after the Goldwater debacle of 1964.

Silver lining? Social issues, at least, seem to be a winning hand for the Dems:

John Roberts is as political a Chief Justice as I’ve seen — political in the sense of wanting to be well-regarded by mainstream public opinion and posterity. He’s no Scalia-Thomas-Bork right-wing bull in the china shop. Much as I welcomed his upholding of Obamacare, his logic was so tortured that I shared the view of conservative critics that he was holding a finger to the wind and cynically trying to be on the right side of history. His remarks about  the nation’s fiscal impasse are content-free and gratuitous — and irrelevant to his constitutional role — but they do reflect his own desire to maintain a noble public image. It was, one might say, a Howard Schulz PR move. If nothing else, this Chief Justice’s continued obsession with his own profile may bode well for the future of same-sex marriage: Hard to imagine that Roberts will thwart a civil rights breakthrough now enthusiastically supported by an overwhelming majority of the young and even not-so-young Americans who will write the history of the Roberts Court.

Marriage equality and the Supreme Court

David Cole reminds us that the upcoming Supreme Court cases on same-sex marriage are important, but nevertheless remain just a part of a much longer, inevitable march towards full marriage equality:

Whatever the Court does will affect gay marriage only in the short term. The political tide has turned decisively in the direction of marriage equality, and nothing the Court does can stop it. Polls show that two-thirds of Americans today support recognition of gay marriage or civil unions for gay couples, and young people favor marriage equality by especially large margins. In the 2012 elections, marriage equality proponents prevailed in all four states where gay marriage was on the ballot, and President Obama’s announcement in May that he had (finally) decided to support gay marriage appears to have cost him no votes. The statistician Nate Silver has predicted, based on state-by-state demographic poll results, that by 2016, the only states that do not have a solid majority in favor of gay marriage will be in the Deep South, and that by 2024, a majority will support gay marriage even in Mississippi, which he predicts will be the longest hold-out. Gay marriage is an inevitability.

But if the Court’s decisions in the gay marriage cases may not have lasting consequences for gay marriage, they are likely to have historic significance for the legacy of the Roberts Court. If it upholds the laws at issue, its decisions will almost certainly come to be viewed as the Plessy v. Ferguson of the twenty-first century, defending and reinforcing a deeply discriminatory practice without good constitutional reason. If, by contrast, the Court rules, as it should, that marriage equality is constitutionally required, its decisions will be celebrated in the history books alongside Brown v. Board of Education. Which side would you want to be on?

Supreme Court to Hear Prop 8, DOMA case

Photo by: J. Emilio Flores for the New York Times
Photo by: J. Emilio Flores for the New York Times

SCOTUSblog is reporting that the Supreme Court has granted certiorari to both Hollingsworth v. Perry, the California Proposition 8 case, and United States v. Windsor, a Defense of Marriage Act challenge. The Court will hear arguments in the two cases when it reconvenes in 2013.

Lyle Denniston has a preliminary breakdown of the order on SCOTUSblog’s live blog:

Prop. 8 is granted on the petition question — whether 14th Am. bars Calif. from defining marriage in traditional way. Plus an added question: Whether the backers of Prop.. 8 have standing in the case under Art. III.

[With regards to United States v. Windsor]: In addition to the petition question — whether Sec. 3 of DOMA violates equal protection under 5th Amendment, there are two other questions: does the fact that government agreed with the [Second Circuit] decision deprive the Court of jurisdiction to hear and decide the case, and whether BLAG (House GOP leaders) has Art. III standing in this case.

There is a good deal of complexity in the marriage orders, but the bottom line is this: the Court has offered to rule on Prop. 8 and on DOMA Section 3, but it also has given itself a way not to decide either case. That probably depends upon how eager the Justices are to get to the merits; if they are having trouble getting to 5 [justices] on the merits, they may just opt out through one of the procedural devices they have offered up as potentials.

More coverage of this development can be found here, here, here and here.

Almost There: Supreme Court to Decide Whether to Hear DOMA, Prop 8 Cases

Karen Golinski, a federal employee in California, and her wife Amy Cunninghis.  Golinski is one of the plaintiffs challenging the Defense of Marriage Act. (Photograph by Jim Wilson/The New York Times.)

Tomorrow, the Supreme Court is expected to decide whether to hear a same-sex marriage case this term. While the Court has an array of petitions to choose from–five Defense of Marriage Act (DOMA) cases, the California Proposition 8 challenge, and an Arizona state benefits case are all on deck–it looks likely that at least one DOMA case will get the nod if it does tackle the issue. (And not just because Justice Ruth Bader Ginsburg predicted it would earlier this year.) The Proposition 8 case, Hollingsworth v. Perry, may be flashier, but it concerns a constitutional amendment that affects only same-sex marriages in California. On the other hand, DOMA creates a conflict between the federal government and any state that recognizes same-sex marriage, a group that has now grown to nine (plus the District of Columbia) and counting. As the number of legally married gay couples continues to climb, it is in the interests of the Supreme Court to decide DOMA’s constitutionality sooner rather than later.

Should the Court hear a DOMA challenge, what will be at stake for both sides? The five DOMA cases all arise from a dispute between state and federal definitions of marriage, which has been steadily brewing since the 1996 passage of the Defense of Marriage Act. While family law has traditionally been left to the states, Section 3 of DOMA defines “marriage” for federal purposes as a legal union between one woman and one man, and a “spouse” as an opposite-sex husband or wife. In the places that have recognized marriages between two women or two men, however, same-sex spouses find themselves caught in a strange limbo where they are legally married in the eyes of the state but not in the eyes of the federal government. They receive all the state benefits and privileges that marriage affords, but DOMA prevents them from enjoying the many federal benefits of marriage* that their heterosexual counterparts receive, including Social Security survivors’ benefits, joint income tax filings, shorter green card waiting times for non-citizen spouses, freedom from estate taxes on a deceased spouse’s assets, and family coverage on federal employer health insurance plans.

The DOMA challengers from Massachusetts (Gill v. Office of Personnel Management, Massachusetts v. U.S. Department of Health and Human Services), New York (Windsor v. United States), Connecticut (Pedersen v. Office of Personnel Management) and California (Golinski v. Office of Personnel Management) are a sympathetic bunch. They include a federal government employee wishing to enroll her family in her health insurance plan, a senior hit with over $300,000 in federal estate taxes for an inheritance left by her wife, and a veteran denied Family Medical Leave Act time off to take a sick spouse to medical treatments. The challengers argue that the differential treatment between opposite-sex and same-sex married couples violates the Equal Protection Clause, and that the federal government impinges on states’ rights by refusing to recognize same-sex marriage where states have chosen to legalize it. In all five cases, the federal appellate circuit courts agreed with them. On the other hand, the supporters of DOMA maintain that the federal government has a right to its own definition of marriage for the purposes of federal funding and programs, and that DOMA merely reaffirms what the executive and judiciary branches have always believed: namely, that marriage can only be between a “traditional male-female couple.”

Less work for Eric Holder. (Photograph by Brendan Smialowski, AFP/Getty Images)

Adding a wrinkle to this scenario is the fact that the executive branch has actually been doing everything in its power to get the judiciary to step in and resolve the issue in favor of the anti-DOMA side. In February 2011, the Obama administration announced that the Department of Justice would no longer defend DOMA in legal challenges, including the five cases before the Supreme Court now, because it believed Section 3 to be unconstitutional. (The Bipartisan Legal Advisory Group from the House of Representatives now defends DOMA in court.) At the same time, the administration signaled its intention to keep enforcing the law (by continuing to reject federal benefits applications from same-sex married couples) until either Congress repealed the law or the Supreme Court decided its constitutionality. While this may seem counterintuitive, this bifurcated method of enforcing but not defending a federal law ensured that all five cases had a chance to keep moving through the federal appeals system and reach the Supreme Court. Granting the plaintiffs their benefits in the middle of a case would have removed their immediate cause for complaint and mooted their lawsuits before an appellate court could find the underlying law unconstitutional. Keeping the plaintiffs’ injury alive, however, kept the cases in play. Now that they have reached the certiorari stage, the DOJ has explicitly asked the Supreme Court to take at least one case and provide a definitive ruling on the constitutionality of Section 3.

The 2010 Census found that 42,000 same-sex couple households resided in states with same-sex marriage.  That figure doesn’t even include the thousands more in Maine, Maryland and Washington, the three states that legalized same-sex marriage this month. Thanks to the bottom-up, state-by-state legalization approach that marriage equality proponents have been using, nearly one-fifth of the states now allow gay and lesbian couples to marry. The more states that join, the higher the number of couples adversely affected by DOMA will be, and the more challenges we will see in the federal courts. Expect the Supreme Court to accept at least one DOMA petition, and expect the arguments to focus not only on equal protection but also on federalism and states’ rights. I’ll be back next time to talk about the Court’s track record on gay rights and the likely concerns of our resident swing vote, Justice Anthony Kennedy.

* In January 2004, the United States General Accounting Office counted 1,138 provisions in federal statutes in which “marital status is a factor in determining or receiving benefits, rights and privileges.”

Victoria Kwan holds a J.D. from Columbia Law School in New York and has just completed a clerkship with a judge in Anchorage, Alaska. She tweets as @nerdmeetsboy and will continue to post here on legal issues.

Where are we going with marriage equality?

E.J. Graff lauds the victories of November 6th, but cautions readers not to expect a cascade of triumphs all at once:

Meanwhile, I’m sure you’ve been wondering: What comes next? Will the forces of marriage equality race off to every ballot box in America, ready to undo the injustice of those previous 32 votes?

Um, no. Changing laws by referendum is expensive. It’s risky. It’s exhausting. According to HRC, the four marriage campaigns placed more than 4 million phone calls and knocked on more than half a million doors; that added up to one-on-one conversations with more than one million voters. More than 30,000 people volunteered for one of the campaigns; more than 110,000 people donated. The pro-equality side raised $32.7 million, almost three times as much as the anti-equality side’s $11.3 million. (By the way, the biggest donors for the marriage equality side were HRC at $5,046,552 and Freedom to Marry at $3,156,216, which was roughly equal to the money donated by the National Organization for Marriage at $5,246,660, the Catholic Church at $1,297,229 and the Knights of Columbus at $662,287. Outside donors – like Jeff Bezos, Michael Bloomberg, Bill and Melinda Gates, and hundreds of small donors – voted with their wallets for my freedom to marry.)

chickfila

A quote and a photo to hail the start of the weekend

From yesterday’s Le Monde:

Je viens d’acheter du poulet et ma voiture sent l’odeur de la liberté.

This was spoken by “Steve” during an interview with Mike Huckabee, just after eating at Chick-Fil-A to protest the backlash against the food chain for its president’s stance against same-sex marriage.

And on a completely unrelated note, here is your weekend picture, taken today at Zaitunay Bay in Beirut.

More on same-sex marriage and Romney’s high school “pranks”

I’m having trouble embedding Daily Show videos, so just take a look at this link to see Jon Stewart saying pretty much exactly what I’d mentioned — but in a much funnier and more sarcastic way —  about how far we’ve come in our national conversation.

Secondly, it turns out that the military did not spontaneously combust or cease to exist or explode into a million pieces due to the repeal of “Don’t Ask, Don’t Tell” after all:

WASHINGTON, May 10, 2012 – A new report shows the repeal of the “Don’t Ask, Don’t Tell” law is being implemented successfully in the military, Defense Secretary Leon E. Panetta said during a news conference today.

The repeal of the law banning gay and lesbian people from open military service took effect Sept. 20, 2011. The secretary said he received the report on repeal implementation yesterday, and it shows repeal is going “very well” and according to the department’s plans.

“It’s not impacting on morale. It’s not impacting on unit cohesion. It is not impacting on readiness,” he said.

Panetta said he credits military leaders for effective repeal planning.

“Very frankly, my view is that the military has kind of moved beyond it,” he said. “It’s become part and parcel of what they’ve accepted within the military.”

During the same conference, Army Gen. Martin E. Dempsey, chairman of the Joint Chiefs of Staff, said he has not seen “any negative effect on good order and discipline” resulting from the repeal.

In response to a reporter’s question of what the military had been afraid of in allowing open service, the chairman said, “We didn’t know.”

Meanwhile, Jonathan Chait at New York expresses some caution (which is different than entirely ignoring it) as to Mitt Romney’s bullying high-school self:

The best way to assess a candidate is not to plumb his youth for clues to his character but to look at his positions and public record. The problem is that this is a harder exercise with Romney than almost any other national politician. He has had to run in such divergent atmospheres, and has thus had to present himself in such wildly different ways at different times, that his record becomes almost useless. There is hardly a stance Romney has taken that he has not negated at one point or another. This makes the fraught task of trying to pin down his true character more urgent, though not any easier.

My cautious, provisional take is that this portrait of the youthful Romney does suggest a man who grew up taking for granted the comforts of wealth and prestige. I don’t blame him for accepting the anti-gay assumptions of his era. The story does give the sense of a man who lacks a natural sense of compassion for the weak. His prankery seems to have invariably singled out the vulnerable — the gay classmate, the nearly blind teacher, the nervous day student racing back to campus. It’s entirely possible to grow out of that youthful mentality — to learn to step out of your own perspective, to develop an appreciation for the difficulties faced by those not born with Romney’s many blessings. I’m just not sure he ever has.

The Republican reaction to Obama on same-sex marriage

Yesterday, I was rendered nearly speechless (nearly; come on, you didn’t really expect actual speechlessness from me, did you?) with pleasure at President Obama’s long-awaited and extremely tardy announcement of the end of his “evolution” on same-sex marriage. (Granted, this was a completely manufactured and artificial “evolution,” since he supported gay marriage as long ago as 1996 and only changed it when he became more politically prominent — but an “evolution” nonetheless, in the same Orwellian tradition of linguistic manipulation that helped make such ludicrous things possible as “enhanced interrogation techniques” being something other than torture. OK, I’m getting way off on a tangent now. Back to Planet Earth.)

Anyway, the point is that I was extremely happy — giddy, even — over the President’s remarks. But what makes me almost happier, in a less viscerally affecting way but in a calmer and more long-term perspective, is the virtual absence of strong public opposition to this. It’s incredible how muted the response has been. It really is hard to believe how far the country has moved on this in recent years. In 2004, President Bush was campaigning on his support of a constitutional amendment to ban gay marriage nationally. Eight years later, a sitting President just announced his support for same-sex marriage, and Republicans don’t even dare to mount a serious rebuttal. This lack of a response is, to me, even more newsworthy than the announcement itself. As the New York Times noted:

Conservative social activists and groups that oppose same-sex marriage have been vocal in their disdain for Mr. Obama’s announcement. And advisers to Mr. Romney said in television interviews on Thursday that he would campaign on the issue of his opposition to same-sex marriage.

“Sure. I think it’s an important issue for people and it engenders strong feelings on both sides,” Ed Gillespie, a senior adviser to Mr. Romney, said on MSNBC’s “Daily Rundown.” “I think it’s important to be respectful in how we talk about our differences, but the fact is that’s a significant difference in November.”

But Republican officials on Capitol Hill seemed eager to shift the conversation away from the social issue and back to blaming the nation’s economic struggles on Mr. Obama’s policies.

The House speaker, John A. Boehner of Ohio, repeatedly deflected questions about Mr. Obama’s new position on same-sex marriage at his weekly news conference. He said he believed that marriage should be limited to “one man and one woman” and then quickly flicked back to the economy.

This is notable. Same-sex marriage has, quite suddenly, become a topic that Republicans are gradually realizing they don’t want to be seen publicly and vigorously opposing. They’d rather talk about just about anything else. And that is a good sign.