DOMA

by Jeremy Leaming

Maryland lawmakers late today voted to join seven other states and the District of Columbia in legalizing same-sex marriage. The marriage equality measure, sponsored by Gov. Martin O’Malley (D), will now likely face voters, since religious rights special interests in the state have promised to work to drag the measure, the Civil Marriage Protection Act, before voters this fall.

One of the Senate’s leaders said the bill would end discrimination against same-sex couples and their families, and that it would not impact straight marriages. He said it was time to end state-sanctioned discrimination and allow gays and lesbians to wed. Another senator noted that this was not the first time the General Assembly had altered the civil right of marriage, noting that in the late 1960s it invalidated a ban on interracial marriage.

Following debate, which included many allusions to religion and “traditional” marriage, the Md. Senate passed the bill by a vote of 25 – 22. With the promise of O’Malley’s signature, likely to happen tomorrow, Maryland will become the eighth state to legalize same-sex marriage. The District of Columbia also recognizes same-sex marriage.  Like marriage equality laws in New York and Washington, the Maryland measure includes an exemption for houses of worship, meaning they will not be under a legal obligation to perform same-sex marriages or allow their facilities to be used for the marriages.

In an interview yesterday with one of the nation’s best gay reporters, Michelangelo Signorile, O’Malley (pictured) said he is confident a consensus has emerged in support of marriage equality. “There’s been an evolution in the broadest sense among the people of our state,” O’Malley said. He added that “people have come to realize that the way forward, among people of many different faiths, is always through the greater and broader respect for equal rights for all.”

UCLA law school professor Adam Winkler examines another major win for marriage equality in a piece for The Huffington Post. Winkler notes that earlier this week a federal judge appointed by President George W. Bush ruled that the so-called Defense of Marriage Act (DOMA) is unconstitutional.

by Jeremy Leaming

Beyond the most recent high-profile state legislative victories for marriage equality, there are “huge advancements that have been made in terms of [court] doctrine regarding sexual orientation law,” North Carolina University law school professor Holning S. Lau told ACSblog.

Lau, a panel participant at the ACS 10th Anniversary National Convention, said that until recently “there was virtually no precedent to be cited for the proposition that sexual orientation discrimination should be subject to heightened scrutiny -- this idea that sexual orientation is a suspect or quasi-suspect status. But over the past few years, we’ve seen a crystallization of jurisprudence to support that point. The high courts of California, Iowa, Connecticut, have all issued opinions saying that sexual orientation is either a quasi-suspect or suspect status."

He continued, “We saw the same conclusion reached in Perry v. Schwarzenegger [the 2010 federal court opinion invalidating California’s anti-gay marriage law, Proposition 8], in Eric Holder’s memo on DOMA [the federal anti-gay marriage law]. And that’s been huge, because prior to this burgeoning of jurisprudence on this point, a lot of courts concluded in the opposite direction.”

So while a few state legislatures, most dramatically, the New York legislature, have come through in favor of marriage equality, there is a slowly developing body of jurisprudence that looks promising for the advancement of equality for the LGBT community.

“We’ve seen the jurisprudence really reach a new point,” Lau said, “and there is good case law, persuasive case law, in many instances … case law that courts can make use of to support the idea that sexual orientation discrimination should be subject to heightened scrutiny.”

Earlier this month, Professor Scott Lemieux wrote, in a piece for The American Prospect, that the LGBT community must not forgo the courts in seeking full equality. All options must be used in securing equality, he wrote.

Watch video of Lau’s entire interview below or download it as a video podcast. The video is also available here.