Yesterday, the ACLU filed a lawsuit against Utah to force the state to continue recognizing the marriages of more than 1,000 same-sex couples who were legally married in the weeks after a federal court struck down Utah’s bans on allowing same-sex couples to marry. From the moment the federal court in Kitchen v. Herbert issued its decision on December 20, 2013, to the moment the Supreme Court issued a stay of the ruling on January 6, 2014 while the case is appealed, there was an outpouring of same-sex couples across the state who were finally able to express their love and commitment to each other through marriage and to protect their families through the protections and responsibilities that flow from being legally married.
After the Supreme Court stayed enforcement of the district court’s decision Utah’s governor has issued a directive ordering all state agencies to put the recognition of those marriages “on hold.” By terminating recognition of their marriages, the Governor’s directive effectively divorced over 1,000 couples in the eyes of the state, throwing their lives into disarray.
“We’re back at square one, with no idea what’s going to happen to us if one of us is hospitalized,” says Stacia. Her wife JoNell was treated much better when accompanying her during an emergency room visit after they were married than she was the time medical staff ignored and excluded JoNell during a previous hospitalization three years ago. “After 13 years together, we just want the security and peace of mind to know we can be there for each other in the hard times.”
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.
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.
A majority of the U.S. Supreme Court found a way to come together to advance equality. It comes on the ten-year anniversary of the high court’s landmark Lawrence v. Texas decision that invalidated state anti-sodomy laws targeting gay people.
In U.S. v. Windsor, the majority led by Justice Anthony Kennedy and joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, concluded that the federal government’s refusal to recognize legally married same-sex couples is unconstitutional.
In a 5-4 opinion in Hollingsworth v. Perry, the court dismissed on procedural grounds the challenge to court rulings that invalidated California's Proposition 8, meaning that couples in the Golden State can resume obtaining marriage licenses. The high court majority in Perry was made up of Chief Justice John Roberts Jr. and Justices Ginsburg, Breyer, Antonin Scalia and Kagan. The majority found that the supporters of Proposition 8, which yanked the right to marry from same-sex couples in California, did not have standing to challenge the law. As David Savage reports for the Los Angeles Times, state officials won’t defend the law, which they view as a violation of equal protection, so it essentially clears “the way … for same-sex marriages to resume in California.”
But both actions, however, follow the conservative majority’s decision to gut the Voting Rights Act, and a ruling potentially limiting the use of race-conscious admissions policies in higher education. Moreover, the high court also issued opinions this week making it significantly more difficult for workers to sue employers over harassment allegations. So while today’s demise of DOMA is certainly news worthy of great celebration, it hardly changes the fact that the Roberts Court is bent on advancing a right-wing, pro-corporate agenda.
In the DOMA case the majority did not find that there is constitutional right to same-sex marriage. The majority opinion was narrow, striking a provision of DOMA that it saw as infringing on due process and equality promises of the federal government. Noting the states’ historic and “significant responsibilities” for defining marriage, Kennedy said DOMA “departs” from the tradition with its sweeping scope. Citing Romer v. Evans, Kennedy wrote that discriminations “‘of an usual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.’” In this instance DOMA did not survive that type of scrutiny.
In this instance DOMA was denying the dignity of a same-sex marriage that had been recognized by the state of New York. The opinion authored by Kennedy included lofty language of the Fifth Amendment’s due process clause and DOMA’s purpose to deprive an “unpopular group” of liberty. Not surprisingly Kennedy’s opinion provoked a sharp dissent from Justice Scalia, who joined yesterday’s majority opinion usurping Congress’ constitutional authority to enforce the promises of the 14th and 15th Amendments through “appropriate legislation.”
“DOMA seeks to injure the very class New York seeks to protect,” Kennedy wrote. “By doing so it violates basic due process and equal protection principles applicable to the Federal Government.” Citing precedent, he continued, that the “Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group.”
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.”