LGBT issues

  • July 31, 2013
    Guest Post

    by Steve Sanders, associate professor, Maurer School of Law, Indiana University Bloomington.  

    The federal court decision last week ordering Ohio to honor a same-sex marriage that had been performed in Maryland was a legal landmark – the first federal decision to hold that, even if a state is hostile toward creating same-sex marriages, it may still be required to recognize such unions from other states.  The opinion relied on a reading of the Supreme Court’s Defense of Marriage Act (DOMA) decision that was probably too simplistic, and it failed to provide a robust and persuasive constitutional explanation for the distinction between recognizing existing marriages and actually creating new ones.  (Later in this post, I’ll suggest a better analysis.)  Still, the decision signals the opening of a new front in marriage equality litigation, a development I have previously suggested is overdue.  

    The case involved two Cincinnati men, James Obergefell and John Arthur.  Arthur is dying of Lou Gehrig’s Disease, and the couple wanted his Ohio death certificate to list his status as “married,” with Obergefell as his surviving spouse.   In early July the couple flew to Maryland in a specially equipped medical jet, were married in the plane as it sat on a tarmac, and returned home the same day.

  • July 1, 2013
    Guest Post

    by Senator Terri Bonoff, (DFL – Minnetonka), Minnesota State Senate. Sen. Bonoff is chairperson of the Higher Education and Workforce Development Committee.

    I was a proud co-author of the Minnesota Marriage Equality Law that recently passed in our legislative session that ended May 21. As many know, the law will take effect on August 1, 2013. August 1, is my birthday. On my 50th birthday the University Avenue bridge fell, making my birthday bittersweet in the years following. While I am a “holiday” gal, love to celebrate, sharing the day with those who lost so much has made the day also marked by sorrow.

    I am pleased to mark my forthcoming birthday, with something to celebrate - marriage equality. As a Democrat from a western suburban district that leans Republican, I am truly a swing voter in every way. I not only represent swing voters I am fiercely independent myself - my votes on fiscal matters often line up with my colleagues on the other side. Yet on matters of social justice, I am clear where I stand. It is because of this that I believe I was asked to be a co-author. I told my community during the campaign that I would not vote to raise their income taxes, but I would vote to support marriage equality. I did not say, “Don’t vote for the constitutional amendment because it is not necessary - our laws dictate that only one man and one woman can marry.” Instead I said, “I am for marriage equality, and you?” There was no confusion in my community about where I stood -- I put it in newspaper surveys, on my website and spoke of it in debates.

  • June 27, 2013
    Guest Post

    by Deirdre M. Bowen, Associate Professor of Law, Seattle University School of Law

    Without a doubt, the Supreme Court’s ruling in United States v.Windsor No. 12-307 (June 26, 2013) offers immense hope for same-sex couples, at least for those who reside in states that allow same-sex couples to marry.

    The Supreme Court affirmed a Second Circuit opinion that determined Section 3 of the Defense of Marriage Act (“DOMA”), which defines marriage as the union of a man and a woman, is unconstitutional as applied to New York resident Edith Windsor, the widow and executor of her wife’s estate. What is remarkable, however, is how the Supreme Court essentially ignored the Second Circuit’s rationale and developed its own.

    The Second Circuit laid out a clear Equal Protection analysis of DOMA. In doing so, it bumped up the tier of scrutiny from rational basis, which the Southern District of New York Court applied, in favor of intermediate analysis, based on its finding that lesbians and gay men were a quasi-suspect class. Specifically, the Second Circuit found, after engaging in a four-part factor analysis, that gay people have been the target of discrimination and mistreatment in public and private spheres in the United States, and this triggered an intermediate level of scrutiny. The Second Circuit then evaluated the reasons that the Bipartisan Legal Advisory Group (“BLAG”) offered to determine whether these reasons were substantially related to an important government interest. In this task, the Second Circuit determined that BLAG had failed to demonstrate persuasive set of rationales.

  • June 26, 2013

    by Jeremy Leaming

    Beyond providing victory for equality, today’s Supreme Court opinion striking an integral provision of the so-called Defense of Marriage Act sent Justice Antonin Scalia into a fitful and contradictory rage.

    Though Scalia joined the majority opinion of Shelby County v. Holder, which invalidated a congressional action, usurping Congress’ constitutional authority to enforce the 14th and 15th Amendments, today he railed against the majority for invalidating Sec. 3 of DOMA, which unlike the Voting Rights Act, worked to discriminate against a certain group of people -- lesbians and gay men. So yesterday, Scalia joined his right-wing colleagues in gutting a landmark federal law aimed at preventing discrimination, while today he lodged an over-the-top dissent against striking down a provision of a blatantly discriminatory federal law. And he did so, as TPM’s Sahil Kapur notes, in fiery fashion – rather like he did in dissenting in Lawrence v. Texas issued 10 years ago today invalidating a state law discriminating against lesbians and gay men.

    According to Scalia, the majority in U.S. v. Windsor led by Justice Anthony Kennedy provided a “jaw-dropping” expansion of judicial review. “It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and every-where ‘primary’ in its role,” Scalia fumed.

    He didn’t stop there, adding the Constitution’s framers would not recognize the “black-robed supremacy that today’s majority finds so attractive.”

    Scalia, after grousing at great length, that the majority should not have decided the case, went on to provide his “view of the merits.”

    And his views on lesbians and gay men and laws that discriminate against them have not moved in 10 years.

  • June 26, 2013
    Guest Post

    by Suzanne Goldberg, Professor of Law at Columbia Law School. Professor Goldberg was counsel of record on an  amicus brief in support of the respondents in Hollingsworth v. Perry and was among the counsel on an amicus brief in support of the respondents in United States v. Windsor. This piece is a cross-post from SCOTUSblog.

    The Court’s decisions in Windsor and Perry – the first major gay rights rulings in a decade – are a one-two punch to the nation’s most prominent antigay laws.  Today, the Court has brought an end to the damage wrought by the federal Defense of Marriage Act on countless same-sex couples throughout the United States and left in place Proposition 8’s invalidation by the federal district court.

    Neither decision is surprising but both are gratifying.  And both reinforce the dramatic shift in the Court’s approach to gay rights – and to gay people.  Just over a generation ago, in the Court’s 1986 Bowers v. Hardwick ruling, the Court held that it was “at best facetious” that a gay person would have a constitutional right to sexual intimacy in his apartment.  Today, Justice Kennedy, in his Windsor opinion, writes that DOMA’s burden “demeans” same-sex couples and “humiliates tens of thousands of children now being raised by same-sex couples.”

    Put simply, it was almost unimaginable, when the gay rights movement took hold in the 1970s, or even as legal victories started to mount in the 1980s and 1990s, that the nation’s highest Court would find that a federal law unconstitutionally interfered with the “equal dignity of same-sex marriages.”

    Yet reaching this conclusion was not a constitutional stretch.  Relying on a forty-year old opinion striking down Congress’s discrimination against hippies (Department of Agriculture v. Moreno), the Court had little difficulty finding illegitimate stigma in DOMA’s “unusual deviation from the usual tradition” of the federal government accepting state definitions of marriage, as it struck down DOMA’s section 3, which prohibited the federal government from recognizing same-sex couples’ marriages.

    Ironically, the very first time the Court recognized that this equality guarantee protected gay people came in 1996 (Romer v. Evans, which struck down Colorado’s antigay amendment) – the same year of DOMA’s passage.  In essence, then, even when DOMA first arrived, the Court’s equality jurisprudence contained the seeds of its demise.