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The "Gill" Question
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By Chris Geidner, who is on the Executive Board of the Columbus Lawyer Chapter of ACS and blogs at Law Dork, 2.0. You also can follow him at chrisgeidner on Twitter.
As the White House gears up for the confirmation hearings for President Obama's first Supreme Court nominee, it has become clear that the topic of marriage equality (a.k.a., same-sex marriage) will be front and center. Cornell Law professor William Jacobson even suggested in a lengthy article in Sunday's edition of The Washington Post that same-sex marriage could outperform abortion as the "flash point" of this summer's main event.
In light of the weekly and even daily developments across the country on marriage equality in the few short months since the President took office, it's easy to see how such a topic could dominate discussion. It's not the past developments, though, that are prompting the focus.
Most recent developments, in fact, appear to defuse conservatives' cries about "activist courts." Save for the Iowa Supreme Court's decision in April, in which the court vigorously defended against claims of judicial activism, most of the current state court battles -- from California to Wisconsin -- are procedural challenges -- not broad, equal protection or due process challenges. What’s more, most of the marriage developments -- from Vermont to Maine to D.C. to New Hampshire -- have come from lawmakers -- not courts. Further still, there has been a concerted effort and great success at chipping away at religious objections by recognizing broad religious exemptions in civil marriage laws in Connecticut and Maine and -- soon -- New Hampshire.
So, with all of that, why is there such a focus on the thoughts of one potential U.S. Supreme Court justice on marriage equality?
The answer, despite the failure of The Washington Post to mention it in its Sunday article, is simple: Gill, et al. v. Office of Personnel Management, et al.
The case, brought in the U.S. District Court for the District of Massachusetts on March 3 by the Gay & Lesbian Advocates & Defenders (GLAD), requests that the Court "[d]eclare DOMA, 1 U.S.C. § 7, unconstitutional as applied to the plaintiffs."
The Defense of Marriage Act (DOMA) was passed by Congress in 1996 and signed into law by President Bill Clinton. The law contains two main provisions, only one of which is challenged in Gill. It challenges the part of the law that defines "marriage" and "spouse" in all federal law -- including "any ruling, regulation, or interpretation" of an agency or department -- as always and only referring to marriages between one man and one woman. The unchallenged portion abrogates the Full Faith and Credit Clause and allows states to refuse to recognize same-sex marriages performed in other states.
The federal definition is particularly problematic as more and more states begin to allow same-sex couples to marry. Just one simple example: A couple's taxes, filed jointly at the state level, cannot be filed jointly with the IRS. The Gill lawsuit puts it as thus:
Because DOMA, 1 U.S.C. § 7, as applied by the IRS, requires this disparity of treatment with regard to the federal income tax filing of [a same-sex couple married legally in Massachusetts], it creates a classification that treats similarly-situated individuals differently without justification in excess of Congressional authority in violation of the right of equal protection secured by the Fifth Amendment of the Constitution of the United States
This -- this case, this paragraph -- is the filed, pending-in-court issue that has Sens. Hatch and Sessions and other social conservatives at the ready. This is a case that could take off from Justice O'Connor's equal protection opinion in Lawrence v. Texas and render federal marriage discrimination unconstitutional. All of those thousand-plus federal benefits of marriage identified by the Government Accountability Office would then be available to those gay and lesbian couples who chose to marry in states where they can do so.
This case, though, truly is not all that expansive of a marriage equality case. The Full Faith and Credit Clause abrogation would remain in effect. Even a successful result, therefore, would not be the type of case that the counsel for the anti-marriage equality Alliance Defense Fund, in describing his fears of an activist court, called "a Roe v. Wade trump card."
This case instead focuses on the uniqueness of the federal definition of marriage found in DOMA, because -- prior to DOMA -- "the United States has consistently deferred to the sovereignty of the States when the marital status of an individual has been used" to determine federal benefits. Apply that history to the resulting disparity between legally married straight couples and gay couples, and it's not too hard to imagine a court ruling of the type sought by GLAD.
Make no mistake, though, this case (not to mention the prospect of others like it) is front and center in any marriage discussion of Obama's nominee. In a few years, this case could be heard by the Supreme Court and -- if Congress has not yet acted to remove this anomaly from federal law -- President Obama's nominee could be pivotal in framing an equality argument that wins over a majority of the justices on the high court.
As such, it should not only be social conservatives who try to glean what they can from a potential nominee's answers. All those who support fairness and equality should be watching to see whether President Obama's eventual nominee would see the inequality at the heart of DOMA's federal marriage definition.
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Gay marriage... whats wrong with it. Whats worng with two guys or two girls getting married. It the same as a guy and girl getting married. My brother is gay and if he wants to marry a guy then I will make sure he gets the same rights to marry as a straight couple. I am bisexual and i am engaged to a girl. If i want to marry her then by god I will and I wont be stopped.
I am not gay but a don't have a problem with people who are. Our Founding Fathers wrote in the Constitution that as are first amendment right we had the freedom of religion. Well where is that? The biggest argument people have against same sex marriage is that it is against God. Well isn't that going against the Constitution that this country is so firmly built off of? The Constitution talks about the belief of equality for all, so how could our country say it believes in something and not be doing it? Lets say that you are opposing same sex marriage and lets also say that the WHOLE world is gay and you are the only one who is not. What if the bible said that it was wrong to be straight? Would you think it was too? And if you just said yes then you are lying because it was the way you were born and you can't change that. There are people that say homosexuals can change but saying something like that is like saying people can change there skin. And do you think that the people that do change because they have so many mental and maybe even physical scars are really happy? It may seem like I am asking a lot of questions and I am but there is just so much to think about. Like what if someone told you that you could not marry the person you love? How would you feel? Well imagine what these people are dealing with every day? Do you remember that dark time when Hitler was killing all of those innocent people in concentration camps, and the US with the help of other country stood up and stopped him? But we did almost the same thing with the Japaneses and locked them up just because of their race. Oh and we cannot forget Marten Luther King and what he stood for and all the blacks that died. Well I guess what I am trying to say is that we haven't really changed. Millions of innocent people died because of stupid theories that other people have and they still are. People are dieing just because of there sexuality. Notes how I keep saying, “People,” because that's what they are just like you and me. And if you looked at the Constitution you would see that it starts with the preamble and if you looked at how that starts you would see, “We the PEOPLE of the United States.”
i dont understand the hate....i dont get it...i must addmit history does repeat it self, we have seen this battle before. hate because some one is diffrent well i have news for u every one is diffrent. before it was illeagle for a white to get married to an african...now we see it all the time, yes we still have bigots we will always have them, but to u my friends, all i want is to see people happy. by saying a man cant marry a man or a woman cant marry a woman u are saying they cant be happy. who are you to say that? who gave u the right to say my little brother who is beautiful and smart and loving cant be with some one who loves him and makes him happy? i am 21 and in a opp. sex relationship. he makes me happy. my little brother should be able to feel this with out the hate. america is the land of the free...we need to remember that... we pride ourselves on freedome, yet all i see is fat bald white men saying that the "bible" says no..... freedome....i want freedome from everything religion, sex, life. where is ur freedome? tell me where the freedome is? we built this nation on the belife of freedome and i feel that feelings and ways of thinking need to be restored. Lests get back to basics America..lets get back to freedome..
im not gay; but i support the gay pride !!!!!!!!!
why all the hate? Let me just mention to all you out there who are against gay marriage. Just imagine for a second if you were a different race, which some of you may be. Can you control that aspect? No you cannot. It is all the same with gay and lesbians. We are born this way, we do choose to act on it because we only want to be ourselves. Imagine again, What if you loved someone with all your heart, but she or he had blonde hair? The current law was abiding that you cannot marry them because of that one aspect that makes them special. This is the same feelings we feel as gays. It hurts so badly when you love someone with all your heart and soul, but cannot do anything about the laws. Try to set apart your religious beliefs. God never wanted there to be contention among us, only to love and be created equal, so let's start that. WE all can be happy if we come together and stop the discrimination. Please, it hurts to be not apart of this world!!
My name is Jerry Graham, i'm 27 years old and I live in Florida. Florida is one of the most discriminating states towards gay people. I lay in bed at night falling asleep next to my partner Tony thinking about how I want to marry him one day, but I realize I can never ask my partner, whom I love, "Will you marry me?" I see billboards, and signs all over Orlando, Fl. advertising for Divorce for $99.00. We as Americans can deny a person the right to marry, because a marriage is between a man and woman, and we must protect the meaning of marriage and not allow same-sex couple to marry, but we advertise for divorce like it doesn't mean anything. If everyone is all up in arms about this then why don't we make divorce illegal. You may laugh, but ask yourself this question: Do I believe in gay marriage?" If no, then why wouldn't you choose yes for making divorce illegal because your argument is over protect marriage, right, Or are you just a hypocritic. We must protect the meaning of marriage. "Till Death Do Us Part!" A line from the "religious ceremony" for two people to be married, but 49% of all marriage end in divorce. It's not about money, it's not about love, ITS ABOUT FREEDOM, RESPECT, and most of all "WE are all created equals"! Thank you. GAY RIGHTS ALL THE WAY!
Hi, i'm liz. I'm 16 years old and i've been with a girl for the past two years. before that all my realtionships were with guys. We are planning on getting married after we finish high school and move onto college. I think its ridiculous that i'll have to go miles away just to do this. Love is love. I've been with both genders and the truth is being with her makes me feel safer and she understands me and we are in love. and some people who want to be ignorant about it are stupid. its my life so dont conern yourself. its my own choice on who i love and what gender they are. i'm going to live my life with her, marry her, and we will eventually get kids. and i'll be happy no matter on who puts me down about it.
I am doing a debate for being against this topic. And what I have learned so far is really ... weird. I am not against gay marriage but a lot of what people are saying like "Once gay marriage is completely legalized, marriage will be watered down to the point of legalizing polygamy too." its kind of true. Because its morally wrong. And the saying for the United States is "In God We Trust" and if this country trusts in God then why let this sin be legal? Would it be okay for people to kill others? Should we make a law for it to be okay? Answer that for me.
Right now I am planning my sisters wedding, she is marrying a girl. It is so difficult to plan this, we have to go 11 hours away from our home just so that she can marry the love of her life. I know how much they both care for each other and it is so unfair that they are getting put through all of this. They do plan on having kids and I know they will both be amazing parents. Just because they are gay does not make them any different than any other couple, and I do not think they should be faced with all of this crap. Love is love, and thats all there is to it.
Okay, so why is it that everyone is being SO hipocyrtical? I mean one second you're totally all about gay rights but when suddenly two homosexuals want to get married you're totally against it? Plese people just open you're eyes! Look around you, at the people you love and care for, we're all the same, the only thing that seperates people in this world are ourselves. We think that the human race has to be a certain way, well we don't! Weather you're gay, black, white, aisain, religious, non-religious it doesn't matter we are ALL alike. You just have to open your eyes to see the person you're looking at.
Once gay marriage is completely legalized, marriage will be watered down to the point of legalizing polygamy too. Before we know it, some delusional individual will be crying to marry an object. Marriage should be separated into two things: Marriage and Legal Unification
that way, the sectarian individuals can have their marriages(a unification of man and woman under god)
and everybody else can have their legal unifications(still have a similar ceremony, government benefits, etc)
but "Marriage" was not meant for anything else than man and woman
plain and simple
I think that gay marriage is not a big deal! Im totally for gays,its not like their going around killing people! And i hate it when people say "Its against the bible" We as regular people sin every day anyway,and people also say "thats not the way god wanted it to be" well god didnt gives us clothes either so should we wear them?So if your against gays thats fine,but why do we have to make fun of them?God also said that all men are equal,so we should all treat each other the same.If anything we should leave it up to the gays to decide,marriage is about love not gender.Im 13 years old and for gay marriage FTW.<3
Kait NJ<3
what is wrong with gay marriage people just let us get marriage that what i think
I guess what i want to say is that people who discriminate on the gay race is completly stupid. Gay couples have never done any thing to the opposite sex. i think that every one should have a chance to be happy weather they are gay or straight.
OKA so this is the deal gay marriage is fine... yes marriage is about love and if you dont like gay marriage thats fine its not your life your not living it. thats my point its not your life so get over it!!! its like saying marriage between boy and girl is wrong too. please just let it go not your life your not gonna live it so stop hazing and harassing gays!!! gays and straights are all beautiful. until people realize it life will remain a living hell. get over it! Go gays! my cousin is gay you gotta learn to live. i was so happy when i found out so whoO! peace!
I really dont get why people make such a big deal about gay marriage, marriage is about love and passion, if two gay people love each other they should be able to marry it shouldnt be up to the church or anyone else. Why are two straight people that hate each other aloud to get married but two gay people who love each other cant i dont get it.
i believe it is wrong to take away rights that everyone else can have,what happened to equality? And isn't a man and woman marriage viewed that way by the church? With the times our government should be more tolerant by now. Separation of church and state! If it's not what you quite believe it doesn't matter because we are all equal!
For those that say we only want financial benefits.
I've been in a extremely loving, monogamous, long distance relationship for 6.5yrs. I'm in the USA and he's in Singapore. The distance is horrible. Most people would give up, I'll never let go. Why should I be denied the right to marry and bring lover over like any straight person has the legal right to do.
Our gov must recognize all marriages from other countries so the best route may be to get married in like Canada and force our gov to recognize it. Since a gay marriage in Canada is exactly the same as straight our gov cannot deny one without denying the other.
Gay Marriage is nothing to be ashammed of. I am proud to have had a gay uncle and i loved him and his husband all the same. So stand up for what you believe in and dont back down. Love is nothing anyone can hide no matter what you are or who you believe in..
<3ReayganSue
age: 15
GAY PRIDE!!!!!!!!!!!!!!!!!!!
I think gay marriage should be legal. I'm 16 years old and I am in my high school's Advanced Placement U.S. History program; now correct me if I'm wrong but isn't this country based on the fact that everyone is created equal? Thats what my instructor says. Why is it that everyone is so afraid of the word "gay"... How is it hurting us heterosexuals if gay people want to get married? There aren't a limited amount of marriage liscences out there. Oh, and don't try and pull the whole "Marriage is a sacred institution between a man and a woman!" bull crap on me because in america we turn marriage into a game with shows like The Bachelor. Also what about the people IN THE BIBLE who had multiple wives?.. speaking of the bible, I am very aware that homosexuality is a sin and it says so in Laviticus, but it also says that no sin is greater then the other and goes on to say the a disobedient child should be stoned to death (the same fate assigned to the gays) but now days nobody translates that literally anymore. I mean c'mon are we really gonna drag 6 year olds outside and beat them to death for not picking up thier rooms?.. But by all means lets discriminate against gays... I don't it. God loves everyone... Let gays marry.
If gays are commenting that the Bible has no relevance, why is getting married so important? If you do not believe the religion is relevant at all, why bother to undertake a religious ceremony binding two people? Does it matter whether the government recognizes your marriage? Just because the marriage is not allowed DOES NOT mean you cannot live together and enjoy the same things as a straight couple. The only difference is money. Maybe that is why you want legal recognition - tax cuts. But really, if you do not recognize the religion giving you the marriage which gives you the tax cuts, why should the religion which gives you marriage, which the government recognizes. recognize your marriage? Your entire argument is simply that you want money, not that you are limited in your ability to live and share life with a partner- gay or straight.
Gay marriage should be allowed world wide.It is not fair that the staights get more oppertunity than the gays. It really does not prove anything by giving more oppertunity to the staights than gays. It is just like the time when men had more power than women. Now men and women have equal rights. Why can't it be that way with marriage. We are all human in every way except we like the same sex that is all that is diffrent.We are people of this nation and we should all have equal rights. No matter our race,gender,religon,or sexual oriantation. We all should be given equal rights. Now and days it is hard for teenagers or adults to come out to people cause they are scared to be judged by others. I don't think that is right. People get picked and bullied cause how kids are raised by their parents about how it is a sin to be gay. It is not a sin the bible was written by hetrosexual's that was afraid of something they didn't understand. People raise their kids to bully gay kids and then they end up going to jail for gay bashing or killing a gay teen. Thats usually how wars get started cause people fight against other people who are diffrent. I thought we were trying to stop war from happening but it happens everyday. Look around you go to evey state day and night and you will see fights drive bys and gang bangs. Innocent people get hurt cause of this. I think everyone is equal.
I'm 27 and the 15 year old and the 17 year old are rite why can't I marry my partner! To me gay marraige should be decided by gay people and not a bunch of straight people. That makes no sense in no way do they benifit from making that decision but to further show that there is still unjustice! It's hard to say we live in the land for the free . . . if your not gay that is. I should have every rite to marry as the next straight couple.
I hope That one day we will all be free. If there are those who do not approve of gay marraige here is a word of advise. . . .DON"T GET ONE . .leave it to us gay to make that choice ! Thank you .... Alfredo Malave NY
i agree with the 15 year old.I'm 17 and while I'm not a legal adult i care about these types of things.The world needs to see things in a different perspective than the way the bible intended.The bible is just a guideline to follow.Its not a RULE BOOK! Just because the bible says this or that,doesn't mean WE have to do the same!times have changed and so have rules.it used to be bad for interracial marriages to happen,but we're LONG over that! All that matters is that two people love each other enough to share equal rights like those of a married straight couple.The US will open its eyes and allow gay marriage like Canada.This is like the Civil rights act all over again,we WILL succeed and show the world wrong! united we can solve this!There's nothing we can't beat if we just stay UNITED!
Hi , how are you all doing ,are gay still allow to marry i want to know if i marry some one in hawaii that from another country but is here will that person have to go back.is the same a man and woman there .
why is gay marriage so bad? Like really the only thing I think is wrong is peoples views on things. Yes I think it should be allowed. Not only that but what ever happend to being a free person. Having laws against gay marriage is stupid. I am 15 and may not know everything but I do have a very strong opinion. If you are saying that gays should not get married because they can't raise a child you are saying that a single parent isn't doing a good job either. Thier has to be two parents. Well in a gay marriage their is. Just because they are the same sex should not matter on how they do things as ling as it is by everyone elses rules. By everyone elses I mean the same right that everyother family has. If you were one of the people being taken of rights because of who you like then what would you do? What would you say? Do you see whats going on here? I do. People only want to think what they have been tought growing up. You have been told to keep an open mind right, well this is definately one of those this to think about. If this keeps getting to be one of those things that is no no no no, then we are going to end up tarring our society apart. We all live in one world and we should be able get through something as small as this.
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