marriage equality

  • 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.

  • July 31, 2012

    by Jeremy Leaming

    The blatantly discriminatory Defense of Marriage Act, a Clinton era law, is unconstitutional, says another federal court judge. The decision also marks another step forward for marriage equality, which is part of a much wider movement advancing equality for the LGBT community.

    As TPM reports, U.S. District Court Judge Vanessa L. Bryant, appointed to the bench by George W. Bush, said DOMA, recognizing only marriages between opposite-sex couples, violates “the equal protection principles incorporated in the Fifth Amendment to the Constitution.”

    In a lengthy opinion, Judge Bryant explored court precedent on the rights of lesbians and gay men, noting in part that a “long history of discrimination against homosexuals is widely acknowledged in American jurisprudence, including the United States Supreme Court jurisprudence. Many courts have concluded that homosexuals have suffered a long and significant history of purposeful discrimination.”

    “In sum,” Bryant continued, “the evidence in the record detailing the long history of anti-gay discrimination which evolved from conduct-based proscriptions to status or identity-based proscriptions perpetrated by federal, state and local governments as well as private parties amply demonstrates that homosexuals have suffered a long history of invidious discrimination. Moreover this conclusion is consistent with the majority of cases which have meaningfully considered the question and likewise held that homosexuals as a class have experienced a long history of discrimination.”

  • June 12, 2012

    by Jeremy Leaming

    It took an incredibly ridiculous amount of time, but 45 years ago today the U.S. Supreme Court finally got around to invalidating state laws that banned interracial marriage.

    The case, Loving v. Virginia decided on June 12, 1967, involved Mildred and Richard Loving who were married in the District of Columbia in 1958, and later prosecuted in Virginia by authorizes intent on enforcing the state’s racist laws against interracial marriage. The couple later moved to the District of Columbia and lodged a class action challenging Virginia’s anti-miscegenation laws as a violation of the Constitution’s liberty protections found in the Fourteenth Amendment.

    The case eventually reached the Supreme Court.

    Writing for the unanimous Court, Chief Justice Warren E. Burger rejected Virginia’s arguments that its laws did not subvert the Constitution. The state’s arguments are not worth reciting. Suffice it to say, those arguments were racist. The Warren Court easily found that Virginia’s laws were a serious affront to the Constitution’s liberty protections.

    “There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification,” Burger wrote. “The fact that Virginia prohibits only interracial marriage involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy.

    “We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.”