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Is Marriage Equality Almost Here? Six Possible Outcomes of the DOMA and Prop 8 Cases

11:11 am in Uncategorized by RH Reality Check

Written by Jessica Mason Pieklo for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

The Defense of Marriage Act

A Rainbow flag

There are several different possible outcomes of upcoming Supreme Court decisions.

In 2007 Edie Windsor married Thea Spyer after already being together for 40 years. When Spyer died, in 2009, their home state of New York recognized marriage equality, but because of the Defense of Marriage Act (DOMA), the federal law that defines marriage as a union between one man and one woman, the federal government did not. As a result, Windsor was faced with paying more than $363,000 in federal estate taxes because Spyer had left her estate to Windsor. Had the federal government recognized their marriage and given it the same status as opposite-sex married couples in the state, Windsor would not have to pay any estate taxes.

But it didn’t, and Windsor sued, arguing DOMA violates Equal Protection protections and seeking a refund in her estate tax bill. In October 2012 the Second Circuit Court of Appeals ruled DOMA was unconstitutional. In that decision, the court for the first time held that when government passes laws that discriminate against gay and lesbian individuals those laws will be presumed unconstitutional and that the must have a compelling reason to justify that discrimination.

The Supreme Court now has to answer those two questions: Is Section 3 of DOMA (the part of the law that defines marriage) constitutional, and do gay and lesbian individuals qualify as a protected class for purposes constitutional protections? There are three ways the Court could answer those questions.

1. DOMA Is Unconstitutional

Equality advocates are hoping for a ruling from the Supreme Court that would broadly declare DOMA unconstitutional. Should the Supreme Court strike DOMA in its entirety, then same-sex couples who receive marriage licenses in the 12 states and District of Columbia that recognize same-sex marriages will enjoy the benefits of more than 1,000 federal laws, benefits, programs, and protections that currently favor opposite-sex marriages. A ruling declaring DOMA unconstitutional would likely have no impact on marriage equality bans though.

If the Court does rule DOMA unconstitutional, it could do so via several different analytical tracts. First, the Supreme Court could issue a sweeping ruling under the equal protection clause of the 14th Amendment to the U.S. Constitution. Historically the courts have applied the equal protection clause to protect against the government unfairly infringing on the rights of specific groups and to ensure that certain fundamental rights such as marriage receive heightened legal protection. Advocates have argued that DOMA violates the 14th Amendment both because it targets a specific group of people for unequal treatment and because it affects the fundamental right to marriage.

If the Supreme Court relies on the 14th Amendment to strike DOMA and rule that LGBTQ individuals make up a class that should receive heightened protections because their history of being discriminated against, then the ruling could reach beyond invalidating DOMA and would mean that any law — state or federal — that treats gay or lesbian individuals differently based on their status as gay or lesbian would likely be struck down. That kind of broad ruling is not very likely though, especially given the conservative majority on the Court. But that doesn’t mean hope is lost. The Court doesn’t have to decide the issue of gay and lesbian people as a protected class to strike down DOMA. The Court could rule that because DOMA does not serve legitimate governmental interests it is unconstitutional. Typically, evidence of animosity toward a particular group and the desire to impose a set of morals on the public are not considered by the courts legitimate reasons for the government to pass a law. If ever a law fit that example, it’s DOMA.

There is one other way the Court could find DOMA unconstitutional, and that is through some variation of a “states’ rights” or federalism argument. During oral arguments Justice Anthony Kennedy seemed very concerned with whether or not the federal government had any role in defining marriage to begin with. According to this reasoning, Congress never had the authority to pass DOMA in the first place since it is an attempt to regulate what is traditionally considered within the power and regulation of the states.

The states’ rights theory is not likely to get a majority of votes, but it could be a way for the conservatives on the court to strike DOMA without advancing LGTBQ equality beyond the issue of marriage like a broad 14th Amendment ruling would. But such a decision would be a short-term win, as conservatives have argued federalism concerns invalidate the majority of the social safety net programs. Should the Roberts Court give conservatives broad legal reasoning to support that theory then we can expect to see a host of new legal challenges to everything from Social Security benefits to Medicare and Title X programs.

2. DOMA Is Constitutional

As hard as it is to imagine, the Court could find Section 3 of DOMA constitutional. Should that happen, then those legally married same-sex couples in the 12 states and Washington, D.C., that recognize marriage equality will continue to face systematic discrimination and be denied equal protection under the law as well as access to federal benefits related to more than 1,000 federal laws and programs.

3. SCOTUS Punts on the Merits of the Case Read the rest of this entry →

Griswold v. Connecticut and the Evolution of Personal Privacy Rights

8:16 am in Uncategorized by RH Reality Check

Written by Jessica Mason Pieklo for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

Birth control pills

How the fight for contraceptive freedom & LGBTQ rights sheds light on privacy protections.

Over the past three years, more than 60 lawsuits have been filed in federal court challenging the Affordable Care Act contraceptive coverage benefit. These legal challenges are based on a central theme of today’s conservative movement, which argues contraception is immoral, and that the Supreme Court decision preventing states from criminalizing birth control was wrongly decided. That’s where things stand on the 48th anniversary of Griswold v. Connecticut.

Why now? Why is the right gunning so hard to take down Griswold and gut individuals’ rights to privacy that include keeping the government out of their most intimate decisions? And what has changed legally, to bring this issue to a boil now? As it turns out, the answer has very little to do with contraception and more to do with same-sex marriage. At its core, the legal foundation of personal privacy rights rests in the institution of marriage and family. As older definitions of “traditional families” give way to more expansive realities, including same-sex partnerships, single-parenting, co-parenting, and myriad family arrangements today, conservatives must face a stark legal reality: Without drastically changing the way the courts define issues that once were simply matters of privacy, they will have lost the culture wars. It’s now or never.

The Supreme Court first laid the foundation for an individual right to privacy early in the 20th century in Lochner v. New York, a case that has become synonymous with activist judges looking for any means to support and expand corporate, monied interests. In Lochner the majority relied on the reference to “liberty” in the 14th Amendment’s Due Process Clause to support striking down a New York state law that restricted the number of hours bakers could work each week. The 14th Amendment states that no person “shall be deprived of life, liberty or property, without due process of law.” According to the court majority, the law was an unconstitutional violation of an individual’s privacy rights because the Due Process Clause implicitly guarantees citizens the “fundamental” right to enter into employment arrangements free from state intrusion in this “liberty” interest.

From Lochner, privacy rights more clearly became associated with the home and traditional, patriarchal constructions of family. In Pierce v. Society of Sisters (1925), the court ruled that an Oregon law banning all private education violated the Due Process Clause because it directed how parents may educate their children, infringing upon parents’ fundamental right to rear their children as they see fit. The majority opinion in Pierce lists a series of other privacy rights guaranteed by the Due Process Clause, including “the right of the individual … to marry, establish a home and bring up children … and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”

But it wasn’t until 40 years later, in Griswold, that the Supreme Court turned its attention to whether the Constitution implicitly contains fundamental privacy guarantees that are not dependent on the Due Process Clause. Writing for the majority, Justice William O. Douglas departed from the Lochner line of privacy reasoning and held that a right to privacy exists not because of a specific constitutional provision but rather because it flows from several provisions relating to privacy, to create “penumbras”, or shadows, in which “zones of privacy” exist. Within these zones, the court explained, are other rights, including the right of married couples to determine whether or not to have children.

Two years later the court would again reach the issue of privacy rights in Loving v. Virginia, the famous case that challenged a Virginia law banning interracial marriage. In a unanimous decision, the court ruled the Virginia law violated the 14th Amendment’s Equal Protection Clause, which guarantees all citizens equal protection under the law and thus prohibits the government from discriminating on the basis of race. The court could have stopped there with its analysis, but it didn’t. Instead, it pushed further, moving beyond the obvious issues of racial discrimination to hold that the right to marry is itself protected by the Constitution. By the end of the 1960s, and with the civil rights and anti-war movements smoldering in the background, the Supreme Court’s jurisprudence showed both a slow acceptance of racial equality and a preference for the traditional construction of marriage and family.

Griswold v. Connecticut may have recognized a right of married couples to use contraception, but it wasn’t until March of 1972 in Eisenstadt v. Baird that the Court recognized a corresponding privacy right to use contraception for individuals. “If the right of privacy means anything,” Justice William Brennan wrote, “it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” The following year, the court famously extended these individual privacy rights even further when, in Roe v. Wade, it established a constitutional right to choose abortion grounded in an individual right to privacy and this legally recognized zone of intimacy that inherently surrounds issues of reproduction but that was no longer immediately anchored in the constructs of traditional marriage.

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TV Recognizes the “Modern Family”—Why Not Governments?

1:54 pm in Uncategorized by RH Reality Check

Written by Marianne Møllman for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

Modern Family title

The definition of family shown on television is far more progressive than the one understood by US law.

I don’t watch Modern Family, the prime-time sitcom depicting “non-traditional” — e.g., same-sex, interracial, and inter-generational — couples. Still, I’m struck by how fast family realities change and how slowly laws and societal perceptions about what’s “right” reflect those changes.

The couples depicted in Modern Family were surely seen by society at large as more unusual in 2009, when the show first aired, than even just five years later. Today, the U.S. Supreme Court is considering two cases that might pave the way for federal benefits for same-sex couples, the number of interracial marriages is steadily growing, and the combination of reproductive technologies, longer life-spans, and the normalization of serial monogamy has taken age somewhat out of the equation when it comes to forming a family.

Even so, real-life individuals in same-sex couples, or those who live with someone of a different race or generation from themselves, often face daily struggles to protect their families from legal uncertainty and publicly articulated disgust. Depending on where we live, our intimate lives and families may be subject to criminal sanctions, unequal legal protections, scrutiny, shaming, and belittling.

Often, the protection of our families in law — while welcome — does not mean we are immune to community shaming and violence. In Latin America, for example, a wave of new marriage equality laws has not yet had an impact on pervasive community violence against LGBTI individuals. And though it is more than 45 years since the Supreme Court invalidated the prohibition of interracial marriage in Loving v. Virginia, prejudices against interracial couples — in particular where one of the partners is Black — are expressed frequently in social media and in some cases result in discrimination.

This tug-of-war between perceptions, laws, and reality expresses itself clearly where courts have to decide to what extent legislators get to put their own — or their constituents’ — prejudices before principles of equality and facts about child welfare.

This week, the European Court on Human Rights issued a ruling in one such case. The court held that Austria had violated human rights by denying two lesbian women a proper evaluation of their adoption petition. One of the women had petitioned to adopt the biological son of her female partner, a child they both had been parenting since infancy.

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Affirmative Action, Marriage Equality, and Voting Rights: A Look at the New Supreme Court Term

10:33 am in Uncategorized by RH Reality Check

Written by Jessica Mason Pieklo for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

Last year’s historic decisions upholding the constitutionality of the Affordable Care Act and striking as unconstitutional most of Arizona’s “papers please” immigration law set the tone for what promises to be an even more exciting and historic 2012-2103 term at the high court.

The term, which begins today, Monday, October 1, already promises a handful of marquee cases, including a direct challenge to affirmative action in the case of Fisher v. University of Texas. In 2003, the Supreme Court ruled in two separate but parallel cases — Grutter v. Bollinger and Gratz v. Bollinger — that universities have a compelling interest in creating a diverse student body and that they may consider race as one factor, among many, in deciding which students to admit. In 2005, after those cases were decided and in an effort to increase diversity of its student body, the University of Texas adopted an admissions program that was modeled in part on the Michigan program the Supreme Court had upheld in those decisions and as a supplement to its Ten Percent Plan — which automatically admitted the top 10 percent of each high school graduating class. The shift was based on the assumption that, de facto, most Texas schools are still segregated.

Abigail Fisher, a white student who was not in the top ten percent of her class, was denied admission to the school and challenged the policy by arguing that the court erred in looking at race as a factor in her admission decision. Now the Roberts Court will decide the case, a fact that makes many affirmative-action defenders anxious since the Chief Justice is on record as opposing any kind of policy that is not “race neutral” across the board.

The other sure-thing case before the Court is Kiobel v. Royal Dutch Petroleum, a case the Court will hear on the first day of arguments. In that case the Court will consider whether Congress intended the Alien Tort Statute, a law that says non-citizens can sue American corporations in American courts for conduct of those corporations abroad, to also hold American corporations accountable for human rights abuses committed abroad. The Kiobel challenge gets to the very heart of the law by questioning whether individuals who suffered severe human rights abuses abroad can sue those responsible for the abuses in the United States or whether those individuals are stuck with the laws and jurisdiction of where the abuses took place. If there’s been one consistent theme from the Roberts Court it is the expansion of corporate rights at the expense of individual rights and Kiobel looks to be another case that may cement that theme at a time when corporate accountability abroad is needed now more than ever.

There are two other big issues likely to come before the Court this term: marriage equality and a challenge to the Voting Rights Act. The question is how they get before the Court because that answer will tell a lot about how the Court will likely rule.

E.J. Graff has a great overview on the various challenges to the Defense of Marriage Act (DOMA) working their way up to the Court, as well as the challenge to California’s Prop 8. Which case the Court decides to hear will make all the difference in outcome, because Supreme Court law all depends on the way an issue is framed. There are five challenges to DOMA from which the Court could chose; each are limited in their scope and framing and each places the issue of same-sex marriage in the context of federal power. Specifically, the DOMA challenges ask: Does the federal government have the right to pick and choose which state marriages it recognizes without violating the equal protection guarantees of the Constitution?

In many ways that’s an easier question to frame for a conservative-leaning court than the question at the heart of the Proposition 8 challenge: Do same-sex couples have a fundamental right to marry under the Constitution? The Roberts Court has been outright hostile to the idea of any kind of fundamental rights, and would undoubtedly see this as an expansion of constitutional access, something the most strident of its justices have made a career trying to prevent. If the Court decides to hear Perry v. Brown in an effort to answer this question it could spell bad news for marriage equality.

Similar to marriage equality the Court has several avenues to attack the constitutionality of the Voting Rights Act (VRA). First is the possibility of the Court agreeing to review Shelby County v. Holder, a case where the Department of Justice objected to changes in Alabama voting law on which the DOJ has since backed off, or through several other challenges to the VRA in the appellate courts from Florida and Texas.

Each of the possible challenges question Section 5 of the VRA which requires the federal government to “pre-clear” any changes to election laws in certain jurisdictions with a history of racial discrimination. In an earlier voting rights challenge Chief Justice Roberts questioned the constitutionality of Section 5 but did not rule on it outright. This term may give him a chance to strike one of the most important achievements of the modern civil rights statutes.

There are a handful of other important questions the Court will also answer with regard to the rights of criminal defendants, and with a future challenge to Roe v. Wade only a year or two away at most, history may look at the Roberts Court as the conservative response to the great progressive days of the Warren Court. At least that’s how it is shaping up right now.

North Carolina: Marriage Rights (but Not Equal Rights) on the May 8th Ballot

11:51 am in Uncategorized by RH Reality Check

Written by Susanna J. Smith for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.<

North Carolina polls are open for early voting in the primary election, and the rights of unmarried couples are being put to a public referendum.

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I voted against North Carolina’s Amendment One, which seeks to amend the state constitution “to provide that marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in th[e] state.”

A recent Pew poll shows that nationally support for gay marriage is higher than ever —47 percent of Americans in favor of it; 43 percent opposing — but North Carolinians have tended to be less progressive on the issue. When Amendment One was introduced last September, public opinion polls reported that only 31 percent of North Carolinians were in favor of legalizing gay marriage, and 61 percent favored keeping it illegal.

The fate of the amendment to ban civil unions and gay marriage will be decided on May 8th, the official primary election day. Already at least one lawmaker, who played a critical role in getting the amendment on the ballot, has changed his mind about supporting it.

State Representative James Crawford was one of ten Democrats who supported putting the measure on the ballot. He has since said publicly he will vote against the amendment, it goes too far, amid impassioned outcries from constituents in the gay community.

Public opinion on the amendment is also changing, and advocates seeking to prevent the amendment’s passage are gaining ground. A new poll released last week shows:

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Right-wing Focus on the Family’s Chilling New Agenda on “Marriage Defense”

8:51 am in Uncategorized by RH Reality Check

Written by Vyckie Garrison of No Longer Quivering for RHRealityCheck.org – News, commentary and community for reproductive health and justice.

So ~ the “refocus” of FOTF is shifting away from opposing same-sex marriage and instead focusing on making it more difficult to obtain a divorce.

Does anyone else think this is scary? … and I was seriously pissed when I read Jim Daly’s remark, “… so it’s not just ‘we don’t like each other any more.’” WTF? What woman is ever so flippant about divorce?

Truthfully ~ filing for divorce for me did mean a major step down financially ~ my income and assets took a huge hit ~ and we actually were already living close to poverty level before the divorce. BUT ~ IT WAS SO TOTALLY WORTH IT!!!!!! I’ll take poverty over abuse any day.

If FOTF and similar “pro-family” organizations succeed in reducing the Christian divorce rate to 5% ~ that’s going to represent a huge increase in misery for a lot of Christian wives who are already seriously oppressed in their “traditional” marriages ~ with husband as patriarchal head of the home and wife as subservient “helpmeet.”

These women do not need divorce to be more difficult ~ it’s already almost impossible to leave an abusive marriage when it’s supposedly God’s will and the domineering man is simply fulfilling his biblical role as head of the home.

Daly’s thinking is that by reducing the divorce rate among Christians and holding up the ”Biblical family” as the key to marriage “success,” the secular world will have to admit that God’s way is truly the best way ~ and somehow, that’s supposed to convince gays to repent of their deviancy, I guess.  Ugh.  As though the only reason gay people are gay is because they’ve never seen a long-lasting heterosexual marriage. … Read more

When the Politics of Hate Comes Home: A Lesbian Couple Grapples with How Politics Affects Their Critically-Ill Child

6:36 am in Uncategorized by RH Reality Check

Written by Jaime Jenett for RHRealityCheck.org – News, commentary and community for reproductive health and justice.

This commentary is part of a Mama’s Day series by Strong Families, published in partnership with RH Reality Check in our Mother’s Day 2011 series.  Follow Strong Families on Facebook and Twitter.

As Mother’s Day approaches I have been thinking a lot about what life is like as a non-biological lesbian mother of a child with severe medical issues.   Before my wife Laura gave birth to our son Simon, gay marriage was mostly a political issue for me. On principal I wanted me and all other queer people to have the same rights and privileges as straight people.  However, when Simon was born in 2008, and especially when he got critically ill and spent 4 months in the hospital, policies designed to prevent same sex families from having legal protections took on a whole new meaning for me.

I realized that in another state, as his non-biological mother, I could very easily have been denied leave from my job when he got sick.  In another state, I wouldn’t be allowed to adopt him. I could have been denied access to visit him in the hospital by hospital staff.  When Laura was forced to quit her job to take care of him, they could both have been without health insurance because they wouldn’t be legally linked to me.  I realized, on a really visceral level, just how cruel and destructive these types of policies are and what they’re really about.

I’m not hung up on the issue of marriage versus domestic partnership versus civil union. What I am stuck on is this category of policy, that says same sex couples are inferior and do not deserve the same recognition under the eyes of the law.  I could totally survive if gay marriage doesn’t fully pass in California. It feels like a luxury.  We are very, very lucky to live in a state that offers quite a few legal benefits to same sex couples.  But the Prop 8 campaign reinforced for me how many people really do harbor animosity towards families like mine and that they’re trying (somewhat successfully) to shape policies that hurt us.

I walk past this house 3-4 times a week, and every time I see that sticker it hurts.  I can tell they have children by the toys in the yard and their huge passenger van. I can tell that they’re Christian by their Catholic radio sticker.  And I can tell that they have some feelings about queer people.  So I did the best think I could think of.  I wrote them a letter introducing myself and left it in their mailbox.

Here it is:

Hello,

You don’t know me but I walk past your house 3-4 days a week on my break from work. Every time, I’m struck by your “Yes on Prop 8” sticker. I’m guessing this may not be your intention, but every time I see your sticker, it feels like someone is standing in my face, yelling “I hate you and I hate your family.” I wanted to let you know what kind of an impact it has.

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