LGBT issues

  • March 8, 2013

    by Jeremy Leaming

    It took him long enough to disown one of his more atrocious antigay actions he took as president, but Bill Clinton has finally called for the demise of the so-called Defense of Marriage Act.

    In a column for The Washington Post, Clinton writes, “On March 27, DOMA will come before the Supreme Court, and the justices will decide whether it is consistent with the principles of a nation that honors freedom, equality and justice above all, and is therefore constitutional. As the president who signed the act into law, I have come to believe that DOMA is contrary to those principles and, in fact incompatible with the Constitution.”

    There are two cases the U.S. Supreme Court will hear at the end of this month that raise constitutional issues surrounding marriage equality. In Hollingsworth v. Perry, the justices will consider whether California’s Proposition 8 subverted the equality rights of gay and lesbian couples, and in U.S. v. Windsor, the justices will weigh the constitutionality of a DOMA that bars the federal government from recognizing same-sex marriages, denying scores of federal benefits to couples who have been wed in states that recognize same-sex marriages.

    The Obama administration has lodged briefs in both cases with broad calls for equality. Scores of other organizations have lodged friend-of-the-courts briefs arguing for and against marriage equality. (SCOTUSblog provides access to all those briefs here and here.)

    The merits brief on behalf of Edith Windsor, the woman challenging the constitutionality of the DOMA provision, advances a resounding call for an end to federal discriminatory treatment of lesbian and gay couples.

    Under DOMA the brief notes that the “federal government regards gay couples as not married even if they are married under state law.” [Nine states and the District of Columbia recognize allow same-sex couples to wed.]

    “DOMA excludes married couples who are gay,” the merits brief continues, “from all the rights, privileges, and obligations that the federal government otherwise affords married couples. Ms. Windsor’s situation is representative. In addition to be being denied the ability to claim the estate tax deduction on behalf of her deceased spouse’s estate, she has also been denied the Social Security death benefit to which surviving spouses are normally entitled.”

    Beyond going through all the federal benefits gay couples are denied because of DOMA it also provides a history of the creation of the discriminatory law. It notes, for instance, that DOMA “sped through Congress in large part because of the strong views many members of Congress expressed at the time about the morality of being gay. During one day’s debate, a Representative declared homosexuality ‘is based on perversion, that it is based on lust.”


  • March 1, 2013

    by Jeremy Leaming

    California State Assembly Speaker John A. Pérez (D-Los Angeles) and 22 legal scholars are urging the U.S. Supreme Court to invalidate the discriminatory Proposition 8, saying it not only yanks constitutional rights from lesbians and gay men, but also prevents state lawmakers like Pérez from pushing for marriage equality legislation.

    In the friend-of-the-court brief lodged in Hollingsworth v. Perry, the speaker and law professors argue that until Proposition 8 came along the state recognized that gay couples should not be treated differently than opposite-sex couples.

    “Many gay couples in California are raising children. Many gay teenagers in California need a vision of the future in which they are full participants in the life of their families and communities. And many gay men and lesbians have a fundamental longing to know that as they pass through their days, their lives will not go unnoticed. The State recognizes these basic human feelings for heterosexuals, and before the passage of Proposition 8, the California Constitution protected gay people as well, recognizing their fundamental right to marry,” the brief states.

    But after enactment of Proposition 8, the brief continues, “voters eliminated more than the equal right to marry. Under principles of California law and current interpretations by the California Supreme Court, Proposition 8 eliminated the ability of those seeking equal marriage rights to avail themselves of any ability to pursue such rights through the political actions of their accountable elected representatives.”

    Pérez, in a press statement about the brief, said the constricting nature of the antigay law “deprives a historically disadvantaged group – a group of which I am a member – of access to traditional representation in a representative democracy. And the deprivation violates the Constitution.”

    And other California politicians would like to help advance equality. The Pérez brief notes that Edmund Brown and Kamala Harris “ran and won in 2010 on platforms supporting equal marriage rights and voting to oppose the continued effect of Proposition 8, neither of them can take action to end this case as the voters desire them to do.” Brown is the governor and Harris the attorney general.

    The Obama administration, though not a party in the case, filed a brief yesterday with the high court also calling for an end to Proposition 8 and for a broad approach to protecting equality. Some commentators say the Obama brief did not call for an end to all state laws that prevent marriage equality. Yet the brief did call for laws classifying the LGBT community to be subjected to heighted scrutiny. This means that if government, federal or state, bars a group of people from getting married, like lesbians and gay men, but allows their straight counterparts to wed, it should be prepared to overcome a heavy burden as to why equal protection should be flaunted. And As the San Francisco Chronicle’s Bob Egelko notes that “underlying rational – that laws discriminating against gays and lesbians must be struck down unless they serve some important government purpose – could, if adopted by the court, invalidate bans on same-sex marriage in all 41 states that have them.”

    The Pérez brief urges the high court, when addressing the “federal constitutional issues” in Hollingsworth, to “be mindful of the unique aspects of California law and the ways in which Proposition 8 has eliminated not just equal marriage rights formerly guaranteed by the state Constitution, but also the ability of gay men and lesbians in California to achieve marriage equality through the normal political process. If gay people can be denied access to representative government to achieve equal treatment with respect to an important status such as marriage, then in California, any other small, historically disadvantaged minority group can also be denied the right to representation with respect to seeking any other fundamental right.”

    Beyond advancing a profoundly compelling argument for equal protection, the brief reveals how Proposition 8 is fundamentally anti-democratic policy.  

  • February 28, 2013

    by Jeremy Leaming

    The Obama administration is weighing in on the constitutional challenge to California’s anti-gay initiative Proposition 8. And like it did in a separate case before the Supreme Court challenging the so-called Defense of Marriage Act, the administration is advancing a call for equality.

    The case, Hollingsworth v. Perry is from the U.S. Court of Appeals for the Ninth Circuit, which last year invalidated Proposition 8, in part, because it “served no purpose and no effect, other than to lessen the status and human dignity of gays and lesbians.”

    The Obama administration had no obligation to weigh in, but did so on the last day to lodge briefs with the high court.

    “California law provides to same-sex couples registered as domestic partners all the legal incidents of marriage, but it nonetheless denies them the designation of marriage allowed to their opposite-sex counterparts. Particularly in those circumstances, the exclusion of gay and lesbian couples from marriage does not substantially further any important government interest. Proposition 8 thus violates equal protection,” the administration’s brief states.

    SCOTUSblog’s Lyle Denniston says the administration’s brief “could be read to support a right to marriage equality in every state, but it did not endorse that idea explicitly.”

    Denniston continues, “What the brief endorsed is what has been called the ‘eight-state solution’ – that is, if a state already recognizes for same-sex couples all the privileges and benefits that married couples have (as in the eight states that do so through ‘civil unions’) those states must go the final step and allow those couples to get married. The argument is that it violates the Constitution’s guarantee of legal equality when both same-sex and opposite-sex couples are entitled to the same marital benefits, but only the opposite-sex couples can get married.”

    The administration’s brief nonetheless provides what could also be seen as a robust call for equality stretching from coast to coast. For example, the administration argues that laws classifying lesbians and gay men should be subject to “heightened scrutiny.”

    “For certain protected classes, however, heightened scrutiny enables courts to ascertain whether the government has employed the classification for a significant and proper purpose, and provides an enhanced measure of protection in circumstances where there is a greater danger that the classification results from impermissible prejudice or stereotypes. Because sexual orientation is a factor that ‘generally provides no sensible ground for different treatment,’ laws that classify based on sexual orientation should be subject to heightened scrutiny,” the brief states.

  • February 22, 2013

    by John Schachter

    While most Americans know that today, February 22, was George Washington’s birthday, not enough know that he shares this day with another late great American. Former Senator Edward M. Kennedy (D-Mass.) would have turned 81 today had he not tragically succumbed to brain cancer in August 2009. Fortunately his legacy lives on.

    On so many of the issues dominating the public debate today -- voting rights, educational opportunity, marriage equality and equal rights for all Americans – Kennedy was a leader and a force to be reckoned with. As the Supreme Court grapples with these issues and more, let us hope that Kennedy’s work will be neither forgotten nor for naught.

    In honor of Kennedy’s life and legacy, the Edward M. Kennedy Institute for the United States Senate was founded in Massachusetts following his death. The Institute “is dedicated to educating the public about our government, invigorating public discourse, encouraging participatory democracy, and inspiring the next generation of citizens and leaders to engage in the public square.” To commemorate his birthday, the Institute has posted a tribute video first shared at a celebration of Kennedy’s 77th birthday. It’s well worth a watch.

    Kennedy was a leading advocate of progressive ideals and also a friend to ACS. He was a major draw at a 2002 ACS national event and also authored an article for the summer 2008 volume of the Harvard Law & Policy Review (HLPR), the official journal of ACS, on the work of the Justice Department's Civil Rights Division.

    Ted Kennedy will be remembered for many things, for better or for worse. But his nearly five decades in the Senate left a record in many ways unparalleled in the history of the institution. And while he is no longer around to keep the work going, that doesn’t mean the work is done. As was often the case, no one could put it better than Kennedy himself: “For all those whose cares have been our concern, the work goes on, the cause endures, the hope still lives, and the dream shall never die.

  • February 21, 2013

    by Jeremy Leaming

    The U.S. Supreme Court will soon wade into the debate over the constitutionality of same-sex marriage, when it hears oral argument next month in two cases with potentially significant implications for marriage equality. (Hollingsworth v. Perry focuses on the constitutionality of California’s Proposition 8, which yanked marriage rights from lesbians and gay men, and in Windsor v. U.S. the justices will review an appellate court ruling that invalidated a major provision of DOMA as a violation of the Constitution’s equal protection clause.)  

    But some congressional lawmakers are not waiting around to hear from the high court. Two senators are advancing equality on another front – for military same-sex spouses, by ensuring LGBT military families receive some of the same benefits that their straight counterparts enjoy. (Yes, as noted here, efforts to advance significant legislation in Congress are almost futile. Conversely liberal lawmakers in Congress cannot or should not cower from a radical anti-government agenda pushed by an increasingly right-wing Republican Party.)

    The Charlie Morgan Military Spouses Equal Treatment Act of 2013 would “require the Department of Defense and Veterans Affairs to honor any marriage that has been recognized by a state and provide a number of key benefits to the spouses of all servicemembers." The legislation is sponsored by Sens. Kirsten Gillibrand (D-N.Y.) and Jeanne Shaheen (D-N.H.), and is named after National Guard Chief Warrant Officer Charlie Morgan who died of breast cancer earlier this month. Morgan’s wife, Karen, is not eligible for survivor benefits because the military does not recognize same-sex marriages.

    In a press statement about the measure, Sen. Gillibrand said it would be “an important step forward in achieving full equality for all of our men and women serving and fighting for our nation. Same-sex partners of military servicemembers should not be denied essential benefits because of who they are.”

    Sen. Shaheen said, “Charlie served on the front lines for our country, but because of her sexual orientation her family is wrongfully being denied many of the same benefits given to those who stood beside her. That is an unacceptable reality and I’m committed to doing all I can to make sure that no spouses, children and families are denied benefits they have earned and rightly deserve.”