marriage equality

  • December 7, 2012

    by Jeremy Leaming

    As widely expected the U.S. Supreme Court will wade into the battle for marriage equality announcing today it would consider the constitutionality of state and federal bars against same-sex marriage.

    The New York Times’ Adam Liptak noted that the Court’s docket now includes a lot of cases centering on “the meaning of equality ….” The high court’s docket already includes cases involving race-conscious university admissions policies and an integral enforcement provision of the Voting Rights Act.

    The high court will review a decision striking California’s Proposition 8, which yanked marriage equality rights from lesbians and gay men in the state, and an opinion from a federal appeals court that invalidated a provision of the so-called Defense of Marriage Act.

    Earlier this year, the U.S. Court of Appeals for the Ninth Circuit ruled that California’s Proposition 8 “served no purpose and no effect, other than to lessen the status and human dignity of gays and lesbians.” Writing for the majority, Judge Stephen Reinhardt said, “Proposition 8 worked a singular and limited change to the California Constitution: it stripped same-sex couples of the right to have their committed relationships recognized by the State with the designation of ‘marriage,’ which the state constitution had previously guaranteed them, while leaving in place all their other rights and responsibilities as partners – rights and responsibilities that are identical of those married spouses and form an integral part of the marriage relationship.”

    The high court also said it would review U.S. v. Windsor, a case out of the Second Circuit. Earlier in the fall, the U.S. Court of Appeals for the Second Circuit invalidated a provision of the so-called Defense of Marriage Act, a law enacted by the Clinton administration. The Obama administration announced earlier in its first term that it would stop defending DOMA in court. The Bipartisan Legal Advisory Group of the U.S. House of Representatives intervened to help defend DOMA.

  • November 30, 2012

    by Jeremy Leaming

    It’s hard to say why marriage matters, why it is different, Edie Windsor says in an ACLU video documenting her struggle to overcome the federal government’s discriminatory treatment of same-sex marriages. But, she continued, marriage is different and does matter. “It has to do with our dignity,” being able to be who we are openly, she said.

    “It was a love affair that kept on and on and on,” Windsor said in describing her deep, loving and lasting connection to Thea Spyer. The couple, more than 40 years into their relationship and after Spyer received a dire diagnosis related to multiple sclerosis, were married in Canada. When Spyer died in 2007, Windsor was required to pay inheritance taxes since the federal government because of the Clinton era law, the so-called Defense of Marriage Act, does not recognize same-sex marriages. With the help of the American Civil Liberties Union, Edie lodged a lawsuit against DOMA arguing, in part, that it violates the Constitution’s equal protection clause.

    In the fall, the U.S. Court of Appeals for the Second Circuit ruled in favor of Windsor, concluding that DOMA does violate the equal protection rights of lesbians and gay men. Edie’s case, Windsor v. U.S. is one of several the Supreme Court could take for review this term. The justices met in a private conference Nov. 30 where the marriage equality cases could have been considered. SCOTUSblog’s Lyle Denniston reported earlier today that the justices “took no action” on any of the same-sex marriage cases that have wended their way through the federal courts. Denniston notes that nothing has “ruled out the possibility that some actions on same-sex marriage could be announced” on Monday. Or it could be, Denniston continues, that the high court will need more than one conference meeting to “decide how to proceed” on handling the marriage equality cases.

  • November 27, 2012
    Guest Post

    By Suzanne B. Goldberg, Herbert and Doris Wechsler Clinical Professor of Law; Co-Director, Center for Gender & Sexuality Law; and Director, Sexuality and Gender Law Clinic, Columbia Law School


    While marriage equality supporters have been giving thanks for the recent ballot box victories and the Second Circuit’s Windsor v. U.S. decision, the most recent Defense of Marriage strike-down by a federal court in mid-October, the law-focused among us are also looking ahead to the next big question: What will the U.S. Supreme Court do on Nov. 30, when it is scheduled to decide on the marriage-related cert petitions pending before it?

    Notably, Windsor is now looking, to many, like the leading candidate among cert-worthy marriage cases and, for marriage equality advocates, a particularly promising one for at least three reasons. 

    Perhaps most importantly, Windsor presents a powerful – and personal – story of DOMA’s discriminatory effects on lesbian and gay married couples. Edie Windsor and Thea Clara Spyer were together for 42 years, from the early 1960s through Speyer’s death in 2009, two years after the couple married in Toronto, in a relationship so committed and moving that it became the subject of a widely acclaimed documentary, Edie and Thea. Yet because of DOMA, the United States refused to recognize their relationship and, when Thea died, sent Edie a $300,000+ tax bill that would have been $0 had the government acknowledged their marriage.

  • November 7, 2012

    by Jeremy Leaming

    The Dish headline called it the “single biggest night for gay rights in electoral history.” And it’s hard to mess with that assessment. Voters in Maryland, Maine, Washington and Minnesota voted in favor of marriage equality.

    But beyond those ballot measure victories, Andrew Sullivan reports that gay men and lesbians made up five percent of the electorate, the vast majority of them supporting Obama, “the first president to support marriage equality, and who mentioned gays by name for the first time in the history of victory speeches.”

    Then of course, there was the election of Tammy Baldwin to the U.S. Senate, the first openly gay person to serve in that chamber.

    But Sullivan’s post provides plenty of detail of the efforts to defeat the equality measures, including the funding and work of the National Organization for Marriage, a religious right outfit that strives to scuttle marriage equality by employing tired tactics of demonization. NOM says its mission is “to protect marriage and the faith communities that sustain it.” Sullivan highlights a piece from Adam Serwer reporting that NOM “believed that putting forth black and Latino spokespeople, they could discredit the idea of same-sex marriage as a civil rights cause and drive a wedge between two typically Democratic constituencies…".

    In Maryland Serwer concluded NOM’s strategy appeared rather wobbly.

    Indeed, Chad Griffin, president of the Human Rights Coalition, said part of the success in Maryland involved creating partnerships with other civil liberties groups, such as the NAACP, clergy and businesses, The Washington Post reported.

  • October 18, 2012

    by Jeremy Leaming

    In helping to advance equality, a second federal appeals court today invalidated on equal protection grounds the so-called Defense of Marriage Act.

    A three-judge panel of the U.S. Court of Appeals for the Second Circuit found a provision of the act a violation of the Constitution’s equal protection clause. In May, the U.S. Court of Appeals for the First Circuit also invalidated DOMA as a violation of the equal protection clause. Sec. 3 of DOMA states that the federal government only recognizes marriages between men and women.

    In Windsor v. U.S., the Second Circuit panel took a different route to invalidating Sec. 3 of DOMA, saying it could not survive “intermediate scrutiny,” meaning the discriminatory treatment of Sec. 3 of DOMA must surive a stricter test of whether a law violates constitutional rights. The government in this case had the burden of explaining why a grouping of people – lesbians and gay men – for discriminatory treatment did not violate the Constitution’s equal protection clause.

    In this matter Edith “Edie” Windsor and her partner Thea Spyer were married in Canada in 2007. The married couple lived in New York and when Spyer died in 2009, Edie was forced to pay taxes on Spyer’s estate, something she would not have had to do if her marriage were treated by the government like straight couples’ marriages.

    “The class affected by Section 3 of DOMA is composed entirely of persons of the same sex who have married each other,” and same-sex couples like Windsor and her partner  “are the population most visible to the law, and they are foremost in mind when reviewing DOMA’s constitutionality,” the appeals court ruled.