marriage equality

  • March 22, 2013
    Guest Post

    by Eric J. Segall, Professor of Law, Georgia State University College of Law. Professor Segall is author of Supreme Myths: Why the Supreme Court is not a Court and its Justices are not Judges. This post is part of an ACSblog symposium on Hollingsworth v. Perry and U.S. v. Windsor.

    Progressives and liberals in favor of same sex marriage need to be careful what they wish for when the Court decides the Defense of Marriage Act (DOMA) and Proposition 8 cases later this term. It would be easy to argue that the Court should overturn DOMA and invalidate Proposition 8 on the grounds that governmental classifications based on sexual orientation require heightened scrutiny, and neither California nor the federal government can satisfy that standard. The problem with the Court imposing a national rule, however, may be a serious backlash against the decision resulting in long term pain for everyone on the left. The lessons of Roe v. Wade might be instructive.

    In the years preceding Roe, there was a popular momentum flowing through the states to make the right to choose a bit easier but legislative efforts to secure the right were blocked by the efforts of a strong and well-funded Catholic minority. There is a similar momentum now (albeit only recently) on the issue of same-sex marriage. The Court’s decision in Roe, however, not only slowed the momentum but created a significant backlash though not in the traditional way most people think. In ground breaking work, Professors Reva Siegel and Linda Greenhouse have suggested that, when it comes to the right to choose, women truly are better off today than they would have been without Roe, and that the case for backlash after Roe is overstated. They may be right when it comes to the right to choose, but they did not purport to ask another related but equally important question. Although the backlash on abortion specifically may be overstated, the use of the Court’s decision in Roe by right wing groups on issues other than abortion has been a major problem for the left. The rise of the New Right in the 1970’s led by Jerry Falwell and Phyllis Schaffly, the emergence of brash, young,  and conservative anti-choice republicans  and judges in the 1980’s, and the difficulty of confirming liberal judges in the Senate, can in significant part be traced to the criticism of the Court’s decision in Roe. As Cass Sunstein has argued, the rise of the Moral Majority was certainly assisted by opposition to Roe. Meanwhile, as far as the long-term effectiveness of Roe is concerned, not only does the case currently hang by the thread of Justice Kennedy’s robes, but in many states between the two coasts poor women still have an enormously difficult time securing safe, affordable abortions. This is not to say that the Court erred in Roe, but it is a fair question whether the backlash to the decision across a broad range of important issues was worth the somewhat limited abortion rights gained by the decision.

  • March 21, 2013
    Guest Post

    by Kevin M. Cathcart, Executive Director, Lambda Legal. Cathcart’s piece is a part of Lambda Legal’s blog roundtable, “From Sex to Marriage: How We Got From Lawrence v. Texas to the Cases Against DOMA and Prop. 8.” The roundtable will include commentary from Paul M. Smith, an ACS Board Member, and the attorney who argued Lawrence before the Supreme Court. See ACSblog’s symposium on Hollingsworth v. Perry and U.S. v. Windsor.

    It might be hard for some to imagine, given the rapid pace of our progress, but as recently as 10 years ago, lesbian and gay Americans in many states were considered criminals in the eyes of the law—simply for having sex with someone of the same gender.

    And the discrimination went far beyond criminal law. Parents were denied custody of their children. Qualified workers were turned down from jobs. Prospective tenants were refused housing. All because of archaic and discriminatory laws that targeted and criminalized same-sex intimacy in 13 states.

    But in 2003, one Supreme Court decision changed everything. After decades of fighting against sodomy laws, Lambda Legal’s historic victory in Lawrence v. Texas opened a new path toward LGBT equality. For the first time, the Court established that lesbian and gay men share the same fundamental right to private intimacy with another adult that heterosexuals have.  

  • March 19, 2013
    Guest Post

    by Brian Moulton, Legal Director, Human Rights Campaign. This post is part of an ACSblog symposium on Hollingsworth v. Perry and U.S. v. Windsor.

    Alongside the core due process and equal protection considerations about marriage equality before the Supreme Court in Windsor v. United States and Hollingsworth v. Perry is a question that could have broader ramifications in the movement for lesbian, gay, bisexual and transgender equality – whether laws that discriminate based on sexual orientation should be subject to some form of heightened judicial scrutiny. 

    To date, the Supreme Court has not directly addressed the question of whether heightened scrutiny should apply to laws that discriminate against gays and lesbians. While many of the U.S. Courts of Appeal have done so, and answered in the negative, those precedents were almost universally dependent on the Court’s decision in Bowers v. Hardwick upholding the constitutionality of sodomy laws, a decision that was repudiated nearly a decade ago in Lawrence v. Texas, leaving those precedents standing on the shakiest of ground. It is no wonder then that, in one of the first post-Lawrence cases to consider the issue, the Second Circuit in Windsor concluded that heightened scrutiny should indeed apply to sexual orientation-based classifications.   

    In its heightened scrutiny analysis, the Court has typically looked at whether the group defined by the classification in question has experienced a history of discrimination and whether that classifying characteristic is relevant to an individual’s ability to contribute to society. The Court has sometimes considered two additional factors: whether that defining characteristic is immutable, and whether the group is politically vulnerable.    

  • 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 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.”