Huffington Post – Marriage Equality’s Giant Leap Forward

Marriage Equality’s Giant Leap Forward
Posted: 06/26/2013 8:19 pm

Today, my marriage to my wife did not change one iota. Our marriage does not need “protecting” or “defending” by anyone — it is exactly the same today as it was yesterday. Tomorrow, it will remain the same. Contrary to the claims of opponents, the Supreme Court’s landmark rulings on the two cases before it involving the rights of gay people to get married has had and will have no effect whatsoever upon my marriage.

That may sound like a strange place to begin the celebration over the Supreme Court’s rulings in Hollingsworth v. Perry and United States v. Windsor, but it’s a key point if only because it has been used as such an erroneous argument in favor of banning marriage equality. No heterosexual’s right to marry the person of their choice is any different now than it was yesterday — proving the opposition wrong on one of their main arguments (consider the name of the federal law, for proof of this: “Defense Of Marriage Act”). But the whole argument over marriage equality is so personal, I thought I’d start with my own personal take on it: the sun will rise tomorrow, I will be married to the same wonderful woman, and nothing will have changed. Nothing.

However, for a whole lot of gay couples, life will have gotten one whale of a lot better. Today’s Supreme Court rulings are a giant leap forward along the path to fully equal rights. The federal government will now recognize marriages which their states recognize, and the barriers to equal treatment under federal law have disintegrated for good. That is indeed something to celebrate. Which is why I’m going to stop using the term “gay marriage” ever again in my writing. There is no “same-sex” and “opposite-sex” marriage anymore. There is just marriage, period. From now on, the phrase I’ll be using is “marriage equality,” because we’re all now equal under federal law — as we should be under state law, as well.

After the initial euphoria wears off a bit, though, the question will remain where we go from here. Because the battle’s not over yet. The Supreme Court, as I’ve been predicting, did not issue the total Loving v. Virginia victory that gay rights supporters were truly hoping for. Gay marriage was not defined today as a basic and inherent (or “unalienable”) right under federal law. Such a ruling would have overturned laws in almost three-fourths of the states and mandated marriage equality in all 50 states. The Supreme Court obviously didn’t want to move that fast.

This is not to say that they won’t get there eventually. But it’s going to take some time and it’s going to take some work, on both the political and legal fronts. Legally, U.S. v. Windsor struck down Section 3 of the Defense Of Marriage Act — the part which defines in all federal law that “marriage” only means one-man-one-woman, period. But Section 2 of the law wasn’t affected by today’s ruling, and is still federal law. This section reads:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

Quite plainly, this section legalizes “separate but equal” treatment of marriage. It is discrimination writ into federal law. It will be challenged in court. The core of this challenge will reference the relevant passage from the United States Constitution. Article IV, Section 1 reads, in full:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Article IV, Section 2 begins with:

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

Section 1 allows Congress to set the rules for how states treat official records from other states. Congress has done so in Section 2 of DOMA. However, they have done so in order to deny rights, quite obviously. So this is where the constitutional battle will be joined in the next big marriage equality case. This case will be the equivalent of Loving v. Virginia, which declared all state laws banning interracial marriage unconstitutional.

Say (to use a favorite phrase of the marriage equality opponents) Adam and Steve get married in California. Steve then gets a great job in Austin, and they move. Sadly, they decide to divorce. But Texas doesn’t recognize their marriage as being legal, so it refuses to allow them to file divorce papers. Adam and Steve v. Texas will then travel upwards through the state and federal court systems until it reaches the United States Supreme Court.

This is all going to take a number of years. The real question in this (fictional, for now) case is how will the Obama Department of Justice react? Will it refuse to defend Section 2 of DOMA in court at all? What will that eventually mean? The Supreme Court today ruled one section of DOMA unconstitutional even though Obama refused to defend it, so it’ll probably eventually get heard and decided by the high court, but questions of “standing” may allow the court to put off such a sweeping decision until they feel ready to take the final step towards marriage equality. Proposition 8 passed in 2008, remember, so Adam and Steve v. Texas at the Supreme Court may be anywhere from five to ten years away.

That’s a long time to wait, but things won’t be frozen in stone in the meantime. Instead, the focus will shift to the political realm. The good news is that, in politics, the tide has turned in a big way. I confidently predicted earlier this year that the tipping point had been reached on marriage equality, and that we would now be moving forward and not backward. To put this another way, Democrats are about to start confidently winning the “culture wars,” after almost a quarter-century of losing badly on this front.

When the state of Hawai’i indicated it might actually allow gay people to marry, the conservative backlash was ferocious. For two decades, they successfully put anti-marriage-equality measures on the ballot in every state they could. Up until last November, all of these ballot initiatives won. But in 2012, marriage equality won at the ballot box for the first time, in multiple states. Conservatives have been so successful in their own efforts that now they don’t have any states left to pass more initiatives — once you’ve banned something, there is no reason to ban it again, after all. At the high-water mark, three-fourths of the states had anti-marriage-equality laws on the books. But this is the tide which has turned — and we’re never going back. In fact, the number of states allowing full marriage equality is only going to grow.

This isn’t to suggest that it’ll be an easy fight in each state. Every ballot initiative or proposition isn’t going to win the first time around, either. But the entire dynamic has changed. What used to be a very potent “wedge” issue on the Right is now going to become an equally-potent wedge issue for the Left. Think about it: the Left will now pick and choose the states where referenda battles will be fought. The Left will now benefit from having the issue on the ballot. Even if it doesn’t pass, the Left will likely boost their voter turnout (especially among young voters) in states which are voting on the issue.

That is an enormous sea-change, and it’s why I made the “tipping point” prediction earlier in the year. The political calculus is changing — fast. President Obama became the first person to run for president while supporting marriage equality. In his second election, of course — in his first, neither he nor his biggest Democratic contender could bring themselves to support marriage equality (for fear of losing votes, assumably). But Obama didn’t just mark the first time a Democratic presidential candidate fully supported marriage equality, he also marked the last time any Democratic nominee will run against marriage equality. There simply is no turning back, at least in the Democratic Party. Even a few Republican office-holders are now seeing the light.

So while we all wait for the perfect test case to come along which will toss anti-marriage-equality laws on to the same ashcan of history that contains “separate but equal” and the word “miscegenation,” there will be political work to do and victories to achieve. Hollingsworth v. Perry and United States v. Windsor are going to be rallying cries for full marriage equality for a few years to come, but in the end the case that future history students learn about may in fact be whatever Adam and Steve v. Texas case the court has in its near future. But the only way the Supreme Court is ever going to issue a Loving v. Virginia ruling to strike down what remains of DOMA is if the entire country is clearly and irrevocably politically ready for such a momentous decision. And that means more states changing their laws in the meantime.

The good news is that, from this point forward, we’re going to be winning more victories than the opponents of marriage equality. A lot more victories, in fact. And winning them will have the added amusement of turning a wedge issue which has been used against Democrats for decades against Republicans. Call it icing on the wedding cake.

[Program Note: Because marriage equality is such a personal subject, I began writing today by reviewing what I had previously written on the subject over the last seven years. But I didn’t want to clutter up the article above with a bunch of self-referential links. So instead, I’m providing them here in a bunch, if anyone’s interested in reading about my own evolution on the subject. The very first blog post I ever wrote, almost exactly seven years ago, used the term “gay marriage” in its third sentence. Since then (in chronological order), I have revisited the subject of marriage equality many times, most notably when I came out in favor of polygamy, polyandry, polygyny, or polyamory (take your choice) as the next marriage equality issue of our time, quite seriously asking the question: “If you support gay marriage, could you also support polygamy? If so, why? If not, why not?” When the Proposition 8 case first began to move, I mistakenly predicted that it would indeed be a sweeping win for marriage equality, back in 2010. Last year, I began making the observation that Democrats were set up to begin winning the culture wars. By the end of the year, after the two cases had been taken up by the Supreme Court, I was cautioning that the DOMA case was much more likely to get a ruling with a sweeping impact than the Proposition 8 case. In March of this year, I predicted that America had indeed reached a tipping point on marriage equality from which there would be no return. The same week, I wrote of my own personal evolution on gay rights in general, and how as recently as 2005 I was wrong on reading the politics of it being a good issue for Democrats. In the last few months, I wrote again about how the Republican wedge issues were losing their edges, and how I was cautiously optimistic about the rulings the Supreme Court announced today. Not surprisingly, the closer we got to today’s ruling, the better my predictions got as to what was going to happen. I join with all marriage equality supporters across the land in celebrating today’s victories, and optimistically look forward to fighting the good fight in state after state until we achieve true marriage equality across the land for everyone!]

Queerty – Facebook Is Filing Marriage-Equality Amicus Brief With Supreme Court

Facebook Is Filing Marriage-Equality Amicus Brief With Supreme Court

A note on LGBTQ@Facebook reveals that the social-media giant will be filing a brief this week in opposition to the Defense of Marriage Act and Proposition 8, both of which are before the Supreme Court in March:

This week, Facebook is proudly joining hundreds of businesses in submitting briefs to the U.S. Supreme Court supporting same-sex marriage. The briefs explain to the Court how the Defense of Marriage Act and California’s Proposition 8 discriminate against employees in same-sex marriages and create undue burdens on companies and employees.
We’ll post links to both filings on the LGBTQ@Facebook page when they are available.
That’s a status update we can get behind!
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ON: FEB 26, 2013



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Huffington Post – Marriage Equality, State Power and the Bible

Marriage Equality, State Power and the Bible
Posted: 06/21/2012 11:27 am

President Obama’s recent statement that he supports marriage equality along with the federal appeals court’s recent decisions that Prop 8 and the federal Defense of Marriage Act are unconstitutional appear to be gains for the gay and lesbian community. But neither the president nor the courts stated that gays and lesbians have a fundamental right to marry — something that the U.S. Supreme Court says exists for heterosexual couples. Rather, both cited a state’s power to regulate domestic relations within its borders. That’s a problem. Once marriage equality is put to a vote — as it was recently in North Carolina and will be again in Washington, Minnesota and Maryland — the churches become lobbyist and the Bible becomes the foundation for oppression.

I know because I am a cradle Catholic. I attended 12 years of parochial school, played the organ for Mass throughout my childhood and briefly contemplated joining the convent. Five of my nine siblings were married in our childhood parish church, the same church where the funeral masses for my parents and my sister were celebrated.

I am also a lesbian who is in a committed, loving relationship with a woman. I have no illusion that I will be married in the same church as my siblings. I know that the local parish priest would — and legally could — refuse to marry me. While I don’t agree with the Catholic Church’s position on homosexuality or marriage equality, I also don’t much care to debate it. Theologians have taken a variety of positions on the issue. But the church’s position on marriage should have nothing to do with the state’s decision to legalize my union and give me access to the myriad of government benefits associated with marriage.

Whether the church should grant me the sacrament of marriage is quite a different question from whether the government should legally recognize my marriage. The Catholic Church has always had restrictions on who could marry. It won’t sanction a marriage between two individuals in which one or both are divorced, yet the government will allow those same individuals to marry. The church has restrictions on certain inter-faith unions, yet the government doesn’t even ask about religious beliefs when issuing a marriage license. The church prohibits adultery, yet the government rescinded similar laws condemning such conduct decades ago. And we all know how the church feels about contraception, yet anyone can walk into a local drugstore and purchase a condom without government reproach. The government’s position on these issues does not interfere with the church’s ability to preach that they are immoral. Nor should the church’s position on these issues dictate the government’s legislative agenda.

We should all be troubled when our government leaders cite their religious beliefs and the Bible to deny people access to basic rights and government benefits. Oppressors have often used religion and the Bible to justify their conduct. The Bible was used to support slavery. Jefferson Davis, the president of the Confederacy, declared that slavery was established by decree of God, that it was sanctioned in the Bible, and that it had existed in all ages. Sound familiar? God was cited as the source for the prohibition of interracial marriage. In Loving v. Virginia, the trial court judge upheld Virginia’s miscegenation laws because God never intended the races to mix. That, too, has a familiar ring. The Bible has been used to support the proposition that women are inferior to men. In the Book of Leviticus, the same book often cited for God’s condemnation of homosexuality, women are literally valued less than men. Congress attempted to correct this inequity with the Lily Ledbetter Fair Pay Act.

Whether a particular church or an interpretation of the Bible declares something to be “immoral” should be a basis for a sermon from the pulpit, not a basis of our nation’s laws. And nothing in the marriage equality laws prevents any church from refusing to marry me or from standing before the congregation on Sunday declaring that my marriage is immoral. Yet the Catholic Church wants to imbed its beliefs in the nation’s law to restrict my freedom, to deny me access to the more than 1,000 federal and state benefits associated with marriage. How does my access to inheritance rights affect any church? How does my ability to file a joint tax return interfere with religious freedom? How does my ability to obtain Social Security benefits upon my spouse’s death undermine the institution of marriage? Can someone explain that to me? And can you do it without citing the Bible as the justification?

Jackie Gardina is a Professor of Law at Vermont Law School. She will be teaching at Santa Clara University Law School next year.