LGBT issues

  • June 21, 2013

    by E. Sebastian Arduengo

    Since the rise of the tea party in 2010, conservative Republican Congressmen have come to Washington with the goal of dismantling government as we know it. In the last three years their biggest legislative accomplishment has been the sequester– a package of federal spending cuts that does very little to accomplish the tea partiers stated goal of reducing the federal deficit, but goes a long way towards gutting government programs millions of Americans depend on, like Head Start. At the 2013 ACS National Convention, Maryland Governor Martin O’Malley offered a contrasting vision of a government that met the constitutional directive of providing for the general welfare.

    O’Malley, who joked that he was far from the most accomplished jurist in his family (3 of his siblings are attorneys and his wife is a state court judge in Baltimore), told the audience that for all the questions facing Americans today, from creating jobs to making sure that greater freedom, opportunity, and justice are available for all, “a working and effective government is an indispensable and essential part of the answer.”

    The governor decried the fact that citizen engagement is down, and court rulings like Crawford v. Marion County Election Board, embolden states around the country to pass restrictive voting laws in the guise of preventing “voter fraud.” At the same time, Republican controlled state legislatures have perfected the subtle art of choosing constituents for conservative incumbents, resulting in unbending ideologues being sent to Congress. The result, as former Secretary of Labor Robert Reich recently put it is a “quiet closing of Washington,” A place with, “No jobs agenda. No budget. No grand bargain on the deficit. No background checks on guns. Nothing on climate change. No tax reform. No hike in the minimum wage. Nothing so far on immigration reform.”

    Gov. O’Malley contrasted the gridlock at the federal level to the progress being made in Maryland, where recognizing things like “equal rights, inclusion, diversity, an open society, respect for the dignity of every individual” are seen as making the state a “more innovative and creative place” that benefits all Marylanders.

  • June 19, 2013

    by Jeremy Leaming

    In a final discussion about marriage equality at the 2013 ACS National Convention, Paul M. Smith, a longtime Supreme Court litigant, discussed why he thinks in the long run marriage equality will win the day across the country.

    Smith (pictured) successfully argued before the Supreme Court against a Texas sodomy law resulting in the landmark Lawrence v. Texas opinion. That opinion, among at least one other high court opinion, has helped advance equality for the LGBT community. The two cases before the Supreme Court – Hollingsworth v. Perry and U.S. v. Windsor center squarely on the constitutionality of same-sex marriage. But in both cases the high court has ways to avoid going too far. In Perry, the case raising constitutional challenges to California’s Proposition 8 could be dismissed on standing grounds or it could be narrowly tailored to only affect that state. In Windsor, the justices could invalidate the so-called Defense of Marriage Act (DOMA) on federalism grounds and not address whether laws targeting LGBT persons for discriminatory treatment subvert the Constitution’s equal protection clause.

    Smith, a longtime proponent of equality, talked with me about why he thinks it may be appropriate for the high court to avoid a finding that would require all states to recognize same-sex marriages.

    Regarding Windsor, the case involving DOMA, Smith said his “expectation is that the Court will probably reach the merits in the DOMA case and hold it unconstitutional. It’s possible though that they there may not be five votes to hold it unconstitutional under the equal protection clause. Instead Justice Kennedy seemed to be interested more in federalism arguments. My own view about that is -- that would be fine. If the law goes away, the law goes away and a whole lot of happy couples will be able to be treated as fully married by their own federal government. And that would be huge progress.”

    He continued, “In terms of Perry, if I were a justice I would probably not decide all 50 states have to marry same-sex couples this year. The change that is happening in public opinion is so dramatic, the political changes that are sweeping the country are so dramatic that I think the Court is a part of that process; it played a great role in getting it started with the Lawrence decision and others. But they have ways of being a part of it without taking it all the way to the finish line. And I think they would prefer to do it that way, and I don’t tend to disagree with them. I know that many younger people who would think that is crazy; that there is no reason why the Court shouldn’t do what’s right, right now. And I certainly think that the right answer in the long run will be that there should be marriage equality mandated by the federal Constitution.”

    Smith and Mary Bonauto, of the Gay & Lesbian Advocates & Defenders (GLAD), provide more detail on federalism and marriage equality in this guest post. Watch the brief interview with Smith below or visit here.

  • June 19, 2013

    by Jeremy Leaming

    If the U.S. Supreme Court avoids a sweeping opinion in Hollingsworth v. Perry, the Proposition 8 case, Indiana University Maurer School of Law Professor Steve Sanders says he hopes civil rights groups will focus on protecting the rights of the thousands of legally married same-sex couples.

    During the 2013 ACS Convention, Sanders (pictured) spoke with me about Hollingsworth and U.S. v. Windsor, the case including constitutional challenges to the so-called Defense of Marriage Act.

    “It really did seem like the justices, both the conservatives and the liberals, were reaching for a way to avoid having to take on the central issues in those cases -- what do the equal protection clause and the due process clauses mean for gays and lesbians, what do they mean for marriage equality, Sanders said. “This many years after Loving v. Virginia, why are we still groping around in the dark as to what the contours are of the fundamental right to marry as provided in the Constitution.”

    He continued, “Assuming that the Court does not settle the meaning of marriage – same-sex marriage – for the entire country, assuming the Court doesn’t give us a substantive understanding of the meaning of equal protection or due process for same-sex couples in these cases, I have some thoughts about what the next wave of marriage equality litigation should look like.”

    Sanders says there are two components to marriage equality – the right of same-sex couples to wed and the right to stay married. There are already thousands of legally married same-sex couples and many of them move to other states, of which more than 30 ban same-sex marriage thereby voiding those marriages. “I think that’s a problem, I think that’s even more offensive than being prohibited from marrying the person you love. Those people have acquired vested rights and expectation interests in the ongoing nature of their marriages.”

    Sanders believes that once married those same-sex couples acquire a “liberty interest in the ongoing existence of that marriage that the state can’t take away. And if a state asserts interests in privileging heterosexual marriage those interests have to be weighed against the interests of a couple that is having something real and tangible taken away from them,” he said.

    That’s a problem, which Sanders says the national civil liberties and gay rights groups should address. Watch the full interview below or visit this link.

  • June 18, 2013

    by Jeremy Leaming

    As the U.S. Supreme Court prepares to issue opinions in two cases involving questions of marriage equality, San Francisco City Attorney Dennis Herrera talked with me about his office’s role in challenging discriminatory laws in California that resulted in the federal constitutional challenge to the state’s Proposition 8.

    In Hollingsworth v. Perry, the high court is considering constitutional challenges to Proposition 8, which bars California from recognizing same-sex marriages. The justices could avoid the constitutional questions if it were to dismiss the case on procedural grounds.

    Herrera (pictured) during the 2013 ACS National Convention discussed why the San Francisco Attorney’s Office so aggressively challenged the state’s laws discriminating against lesbians and gay men and why he does not favor an incremental approach to securing marriage equality.

    In the interview Herrera explains how his office helped spark the legal battle that eventually put Proposition 8 before the high court.

    “It has been an honor and privilege for our office to have been involved in what is the civil rights issue of our time,” Herrera said. “And we like to think that our involvement at least played some role in really moving the debate and contributing to the tremendous progress that we have seen, with incredible rapidity over the course of the last several years on the issue of marriage equality.”

    When asked whether the Supreme Court should avoid an opinion that would make all state bans on same-sex marriage constitutionally suspect, Herrera strongly supported an approach that would more quickly lead to marriage equality from coast to coast.

    “I do not think we should be in the position of abiding discrimination,” he said. “And I think we’ve been quite clear that we think everybody is entitled to equal protection under the law irrespective of sexual orientation.”  

    Herrera continued, “It’s about being on the right side of history, it’s about making sure that everybody is entitled to equal protection under the law. And I think that while there’s a political process going on it was a direct result of strong legal arguments and views that were made known. So I’m not one who, at least at this point, thinks that an incremental approach is something we need to follow. I think it’s time we deal with this issue once and for all.”

    Watch entire interview below or visit this link.

  • June 12, 2013

    by Jeremy Leaming

    Forty-six years ago the U.S. Supreme Court in a bold move for equality invalidated state laws banning interracial marriage.

    The case, Loving v. Virginia, centered on a Virginia law barring marriages between people of different races, but its outcome was sweeping, leaving similar laws constitutionally suspect. The law was challenged as a violation of the Constitution’s Equal Protection and Due Process Clauses. It involved an interracial couple, residents of Virginia, who married in the District of Columbia, which did not have a racist ban on marriage. When Mildred Jeter, an African-American woman, and Richard Loving, white, returned to Virgina they were eventually charged with and convicted of violating the law.

    The couple challenged the conviction, lost in the lower courts and the Supreme Court took the case for review.

    Writing for the majority, Chief Justice Earl Warren noted that Virginia was one of 16 states that prohibited such marriages. “Penalties for miscegenation arose as an incident to slavery, and have been common in Virginia since the colonial period.”

    The Warren majority, however, concluded that such laws could not comport with the Constitution’s promise of equality and due process under the law.

    “There can be no question but that Virginia’s miscegenation statutes rest solely upon distinctions drawn according to race,” Warren wrote. “The Statutes proscribe generally accepted conduct if engaged in by members of different races. Over the years, this Court has consistently repudiated '[d]istinctions between citizens solely because of their ancestry’ as being ‘odious to a free people whose institutions are founded upon the doctrine of equality.’ At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subject to the ‘most rigid scrutiny,’ and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate.”

    Warren continued, “There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification.”