marriage equality

  • 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 13, 2013
    Guest Post

    by Adam Winkler, Professor of Law, UCLA School of Law

    June is every Supreme Court watcher's favorite time of year. There are always several important, potentially landmark, rulings to be handed down. This year, there are four major cases sure to make headlines: Fisher v. University of Texas on the constitutionality of race-based admission preferences; Shelby County v. Holder on the continued viability of a key provision of the Voting Rights Act; U.S. v. Windsor on the Defense of Marriage Act; and Hollingsworth v. Perry on California's ban on same-sex marriage. While no one knows exactly how the Court will rule on these controversies -- and last term's Obamacare decision reminds us that surprises are always possible -- there seems to be a good chance they will follow a distinctive pattern.

    The conservative justices will be bold and assertive, while the liberal justices will be hesitant and incremental.

    Instead of constrained, the conservative justices appear ready to declare an end to a half-century of law providing benefits for racial minorities who've suffered a long history of discrimination. In the Voting Rights Act case, the five most conservative justices on the Court -- Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito -- signaled their willingness to strike down or effectively nullify one of the most important and effective civil rights laws ever enacted. While other parts of the Voting Rights Act will remain intact, voiding Section 5, which requires pre-clearance of changes to voting rules by jurisdictions with a documented history of racial discrimination in voting, will be a severe blow to civil rights. Section 5 is a valuable prophylactic rule that does far more to prevent discrimination than the VRA's other central provision, Section 2, which directly outlaws discriminatory voting practices. Section 2 is an ex-post remedy and requires the challenger to satisfy a difficult burden of proof to win. Section 5 stopped the discrimination before it could occur. While the conservative wing of the Court may stop short of invalidating Section 5 entirely, they might just declare unconstitutional the formula used to determine which jurisdictions are covered. That would seem to be a narrow, incremental ruling but it would have the same practical result as invalidating Section 5. Given the growingly fierce GOP opposition to Section 5 and the general inability of Congress to pass anything of significance, there's almost no chance Congress will adopt a new formula.  Section 5 might remain "on the books" but it would be essentially a dead-letter.

  • 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.”

  • May 7, 2013

    by Jeremy Leaming

    As the U.S. Supreme Court tries to figure out how it will handle California’s anti-equality law, Proposition 8, and the federal government’s equally noxious Defense of Marriage Act, a number of progressive-leaning states are moving forward on expanding liberty.

    Last week Rhode Island become the 10th state to enact legislation allowing same-sex couples to wed and it appears Minnesota and Delaware may be closely following suit. Before the Rhode Island legislature gave final approval of the marriage equality measure R.I. Gov. Lincoln D. Chafee (I), celebrated the impending law, saying, “We will be open for business, and we will once again affirm our legacy as a place that is tolerant and appreciative of diversity.”

    The Minnesota House has scheduled a vote for this week on a marriage equality bill, the Pioneer Press reports. The newspaper reports that the House speaker has determined he has the requisite votes to pass the measure and send it to the Senate, where its leaders say they are confident they have the votes to approve it. Gov. Mark Dayton said he would sign the marriage equality bill into law.  

    Delaware lawmakers are also on the verge of advancing equality. The state House has already passed a bill recognizing same-sex marriage and the Senate, the Associated Press reports, is preparing to vote today on the measure. The AP also notes the state’s Democratic Gov. Jack Markell has “promised to sign the measure ….”

    While marriage equality is hardly the capstone of LGBT equality, it is nonetheless an important part of the efforts to achieve equality under the law. (In this post, it’s noted that federal lawmakers are pushing other measures to protect LGBT people in the workforce and LGBT military families.)

    The states moving to end discrimination against same-sex couples – at least in the arena of granting marriage licenses and state benefits that come with legally recognized unions – provide a strong argument for federalism. That is, many argue – including some pro-equality individuals and groups – that states are moving along to recognize same-sex marriage and there is no reason for the Supreme Court to upset the process by, say, finding that states refusing to recognize same-sex marriage are violating the equal rights of lesbians and gay couples.