LGBT issues

  • May 6, 2015
    Guest Post

    by Julie Nice, Herbst Foundation Professor of Law and Dean’s Circle Scholar, University of San Francisco School of Law

    *This post is part of ACSblog’s symposium on the consolidated marriage equality cases before the Supreme Court.

    Whatever Justice Kennedy decides on the question of whether states can ban same-sex marriage, the name Obergefell will mark this landmark moment in constitutional history.  That’s fitting because the remarkable story of undying love between James Obergefell and his late husband, John Arthur, is truly what the battle for marriage equality is about.              

    The Obergefell story is about two men determined to marry before one of them succumbed to the ruthless disease that was taking his life.  It’s a story about a medical plane transporting two men to a wedding on a tarmac in a state that would recognize their same-sex marriage.  It’s a story about the pain of the indignity suffered when their home state refused to recognize their love and their marriage on that ultimate of legal documents, the death certificate.  It’s a story about seeking “that same ennoblement” bestowed on heterosexual couples.

    It’s also a story all-too-familiar within my own family.  My sister Suzanne Nice and her partner, Maureen Martin, devoted themselves to the life they built together and sustained for over thirty years.  Through the beauty of their quiet harmony, they provided an inspiring model of loving commitment to all of us in their circle of family and friends.  Maureen died early in 2014, just months before Illinois began recognizing same-sex marriage.

    When Maureen’s death suddenly appeared imminent, we furiously attempted to obtain a medical exemption from Cook County officials to authorize their marriage ahead of the announced date upon which Illinois would begin recognizing same-sex marriages.  But the bureaucratic requirements were impossible to meet given Maureen’s deteriorating condition, and time ran out far too quickly.  I sat in the funeral home with Suzanne, alongside Maureen’s brother and sister, barely able to endure bearing witness to my sister’s pain as she was forced to acquiesce to a death certificate listing Maureen as single and never married.

    As my mind listened to the Justices sparring with the lawyers about the constitutionality of denying same-sex marriage, my heart was with Suzanne and Maureen, James and John, and the countless other devoted same-sex couples who have suffered a similar denial of dignity.

  • May 6, 2015
    Guest Post

    by Camilla Taylor, Counsel and Marriage Project National Director, Lambda Legal. Ms. Taylor is a member of the Advisory Board the Chicago Lawyer Chapter.

    *This post is part of ACSblog’s symposium on the consolidated marriage equality cases before the Supreme Court.

    As the four legal teams representing same-sex couples from Ohio, Kentucky, Tennessee and Michigan left the Supreme Court after oral argument in Obergefell v. Hodges, we felt overwhelmed by the significance of the moment.  The Supreme Court is now poised in our combined cases to decide whether the Constitution guarantees same-sex couples the freedom to marry.  Many of us had worked toward this day for well over a decade or longer.

    A victory in Obergefell would be transformative. Our 

    struggle for the freedom to marry has always been about far more than marital protections; at its essence, our struggle is nothing less than a demand for formal recognition of our common humanity and of the legitimacy of all families.  A win for same-sex couples and their children will breathe new life into our country’s promise of liberty and equality.  Children of same-sex couples will be able to grow up free of government-imposed stigma, and with pride in themselves and in their families.  Lesbian and gay youth will be able to hold their heads higher, secure in the knowledge that they may form families worthy of equal respect in the eyes of their government.

    However, while a victory in Obergefell would be historic, it would not be the end, even for our marriage work.  A movement to secure civil rights is never finished by a Supreme Court ruling, no matter how important that ruling may be.

    As we have seen after past marriage court victories, states determined to discriminate do not simply give up.  Instead, for example, they fight to deny the children of same-sex spouses two-parent birth certificates.  Same-sex spouses who were precluded from marrying until recently, or whose marriages were denied recognition as a result of discriminatory state marriage bans, may still have to fight for crucial marital protections subject to a relationship duration requirement (such as social security benefits for a surviving spouse, which accrue only to those who were married for more than nine months under state law).

  • May 1, 2015

    by Paul Guequierre

    Earlier this week the Supreme Court heard oral arguments in Obergefell v. Hodges, the consolidated marriage equality cases. It is a critical case in the fight for equal rights for LGBT Americans and the nation now waits to hear if marriage equality will soon be the law of the land (my prediction is it will be).

    The Supreme Court finally decided to take a marriage equality case after declining several when the U.S. Court of Appeals for the Sixth Circuit ruled a marriage ban constitutional. This was the circuit split we had all been waiting for. But before the Sixth Circuit ruling, every other marriage ban before a federal court had been knocked down. The U.S. Court of Appeals for the Ninth Circuit was no exception, striking down three separate marriage bans last year and making marriage equality a reality throughout the circuit. Yet there is one governor who is pulling a Roy Moore.

    After a lesbian couple filed a lawsuit after being denied a marriage license, Guam Attorney General Elizabeth Barrett-Anderson last month issued an opinion that the territory should follow the rulings of the Ninth Circuit (which it falls under) and should immediately start issuing marriage licenses to same-sex couples. Seems like an open and closed issue, right? Enter Republican governor Eddie Calvo.

    Calvo ordered the Public Health Department, the territory agency responsible for issuing marriage licenses, to hold tight. Until his legal team has the chance to do its own legal research, no marriage licenses will be issued to same-sex couples. And he continues to punt. He has asked for the legislature to take up the issue, but he has not said he wouldn’t veto a marriage equality bill. He has asked for a public referendum, putting the rights of a minority up to the will of the majority, not to mention engaging in a costly endeavor only weeks or months before the Supreme Court rules on the issue once and for all.  

    So what are loving and committed same-sex couples on the island supposed to do? It would appear they have two options, simply wait or travel to a marriage equality state (by the way the distance a couple would have to travel to get married is 3,950 miles).

    Governor Calvo is defying the Ninth Circuit. He is stalling. When the marriage equality story is written – and it will be soon – Governor Calvo will be on the wrong side of history. Biba Guam and Hafa Adai, marriage equality. 

  • April 30, 2015
    Guest Post

    by Suzanne B. Goldberg, professor and director of the Center for Gender & Sexuality Law, Columbia Law School

    *This post is part of ACSblog’s symposium on the consolidated marriage equality cases before the Supreme Court.  It originally appeared in the National Law Journal.

    Love and commitment have nothing to do with marriage.  So said the state of Michigan to the U.S. Supreme Court in Obergefell v. Hodges on Tuesday while defending its ban on marriage for same-sex couples.  Instead, marriage’s purpose as a civil status is to ensure adults take responsibility for their biological children, according to Michigan’s lawyer.

    The difficulty for Michigan and the three other states seeking to preserve “defense of marriage” laws ― Kentucky, Ohio and Tennessee ― is that this procreation-focused definition of marriage is fundamentally unbelievable.  Many people ― including gays and lesbians ― understand marriage to have “nobility and . . . sacredness,” as Justice Anthony Kennedy observed during the argument in Obergefell and its companion cases.  Many states likewise recognize that marriage “enhance[es] the dignity of both parties,” Kennedy added.

    The procreation-focused argument also makes no sense against the backdrop of the states’ marriage laws.  There is no childbearing litmus test for people seeking to marry, as Justice Ginsburg pointed out.  Nor do states restrict marriage to couples seeking to have children biologically rather than by adoption.  And no state, Justice Stephen Breyer noted, favors biological children over adoptive children.  Importantly, the state’s argument that marriage provides the “glue” needed to keep parents connected to their children also fails to explain why gay couples are excluded from marriage.  As Justice Elena Kagan said, “It's hard to see how permitting same-sex marriage discourages people from being bonded with their biological children.”

  • April 29, 2015
    Guest Post

    by Erwin Chemerinsky, Dean of the School of Law, Distinguished Professor of Law, and the Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    *This post is part of ACSblog’s symposium on the consolidated marriage equality cases before the Supreme Court.

    Nothing in the almost two and a half hours of oral arguments altered my prediction that at the end of June 2015 the Supreme Court will hold that state laws prohibiting same-sex marriage deny equal protection to gays and lesbians. The only question is whether it will be 5-4 or 6-3 to declare unconstitutional laws prohibiting marriage equality and whether the opinion will be written by Chief Justice John Roberts or Justice Anthony Kennedy.

    Why the certainty of this prediction? To begin with, the states that are defending their bans on same-sex marriage – Kentucky, Michigan, Ohio, and Tennessee –failed to articulate any legitimate justification for their laws. In reality, the laws prohibiting same-sex marriage stem from a moral condemnation of homosexuality, but the Supreme Court has been explicit that it will not accept such a justification for laws discriminating against gays and lesbians.

    So the states are trying to defend their laws by stressing tradition and the historic definition of marriage as being between a man and a woman. But a tradition of discrimination is not an acceptable reason in the courts for continuing to discriminate. In 1967, in Loving v. Virginia, the Supreme Court declared unconstitutional a state law that prohibited interracial marriage. Such laws had existed throughout American history, even in California until the 1940s. But the Court rightly gave no deference to this tradition and rejected the argument that the definition of marriage should be left to the political process.

    The primary argument made by the states is that marriage is linked to procreation and that only opposite sex couples can procreate without artificial assistance. Michigan, for example, declares in its brief:   “Separating marriage from procreation dramatically changes the state’s interest in the institution. . . .  It is the state’s interest to encourage opposite-sex couples to enter into a permanent, exclusive union within which to have and raise children that motivates state marriage laws.”