April DeBoer and Jayne Rowse, a lesbian couple seeking marriage equality, will have to wait a little longer as Judge Friedman decided not to issue an opinion in the DeBoer case until after the United States Supreme Court has decided both the California Prop 8 and Windsor (DOMA challenge) cases. Friedman felt those decisions may be instructive to him in deciding this case. This means no decision until at least the end of June 2013.
“All children deserve the security and legal protection of two parents, regardless of their sexual orientation and marital status. To deny them that is both discriminatory and unconstitutional. Adoption decisions should be based on what is in the best interests of children above all else”, said Affirmations’ Executive Director, Dave Garcia.
Garcia added, “We remain hopeful that the United States Supreme Court will decide in favor of marriage equality and strike down the Defense of Marriage Act this year and that Judge Friedman will also issue a decision that allows April and Jayne to jointly adopt their children.”
Affirmations, along with several other Michigan LGBT organizations, submitted an amicus brief in support of DeBoer and Rowse, indicating that these moms have a right to adopt, regardless of whether or not Friedman were to strike down Michigan’s constitutional amendment denying gay couples the right to marry.
“It’s time for Michigan to ensure there is a positive environment for all children to prosper. We as a community need to continue to show judges that Michiganders are ready to take a stand against anti-equality laws by establishing human rights ordinances that include anti-discrimination protections in communities across the state,” said Garcia.
Affirmations is metro Detroit’s community center for lesbian, gay, bisexual & transgender (LGBT) people and their allies. Open since 1989 and located in Ferndale, a suburb of Detroit, Affirmations provides a welcoming space where people of all sexual orientations, gender identities and expressions, and cultures can find support and unconditional acceptance, and where they can learn, grow, socialize, and have fun.
Originally published on The Seattle Lesbian.
By Judge Anne Levinson (Ret.) and David Ward
In the next few months, the U.S. Supreme Court will decide on two major cases involving marriage for same-sex couples. The Court will hear oral arguments on March 26 and 27, with decisions expected by late June.
Many have asked how these cases could affect LGBT couples in Washington and across the country.To help understand what’s at stake, we’ve provided a short summary of the two cases and the potential changes they could bring. Because the two cases raise different issues, a favorable ruling in one case doesn’t guarantee a positive ruling in the other.
The DOMA case
On March 27, the Court will hear United States v. Windsor, a case challenging the so-called “Defense of Marriage Act” (DOMA), passed by Congress in 1996. This case challenges section 3 of DOMA, the provision that prohibits the federal government from recognizing marriages of same-sex couples. Section 3 states that, for purposes of all federal laws and programs, “the word ‘marriage’ means only the legal union of a man and a woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”
Windsor argues that DOMA is unconstitutional because it requires that married same-sex couples be treated differently than married different-sex couples. This causes real harm to legally married same-sex couples and their families. Federal law provides more than 1,000 rights and responsibilities to married couples. So if a couple is not recognized as married by the federal government, they are denied all of these. For instance, DOMA denies Social Security survivor benefits if one spouse dies, denies pensions to the surviving spouses of federal employees, prevents spouses from taking Family Medical Leave to care for one another during serious illness, prohibits the opportunity to sponsor a spouse for citizenship if he or she is not a U.S. citizen, denies military spouses support and benefits ranging from housing to notification at time of death, and costs thousands of dollars for families when spouses cannot file federal taxes as a married couple.
Edie Windsor, the plaintiff in the case before the Court, provides a perfect example of how DOMA treats same-sex couples unfairly. Under federal law, a spouse is supposed to be able to leave her assets, including the family home, to the other spouse without incurring any federal taxes. Edie and her spouse Thea Speyer shared a life together for more than 40 years, from the early 1960s through Speyer’s death in 2009, two years after the couple married in Toronto. Yet after Thea died of multiple sclerosis, Windsor, 83, was forced to pay more than $363,000 in federal estate tax because under DOMA their marriage is not recognized. If not for DOMA, Windsor would not have been taxed at all.
The DOMA case is extremely important to couples in Washington and the other eight states (and D.C.) that have extended marriage equality to lesbian and gay couples. If the case is successful, it means that married same-sex couples in each of these states will no longer only have the same rights and responsibilities as different-sex couples under state law, but also under federal law.
It is important to keep in mind that in this DOMA case, the plaintiffs are already married and are simply asking the Supreme Court to require that the federal government respect their marriages for purposes of all federal statutes and programs. The Court is not being asked to find that all states must allow same-sex couples to marry or that all states must recognize marriages of same-sex couples performed in other states. But a victory would be a major step forward for marriage equality and would bring immediate and significant benefits to couples in Washington and the other states that have marriage equality.
The Prop 8 case
On March 26, the Supreme Court will also hear a case challenging Proposition 8, which California voters narrowly approved in 2008, adding an amendment to the state constitution to prohibit same-sex couples from marrying. This case (Hollingsworth v. Perry) argues that Prop 8 violates the United States Constitution’s guarantee of equal protection to all citizens. In contrast to the Windsor case, here the plaintiffs are not married and argue that the Constitution requires the state to allow same-sex couples to marry.
Judge Anne Levinson (Ret.)
The Prop 8 case has been winding through the courts for several years. Notably, California’s Governor and Attorney General have both refused to defend Prop 8 in court because they agree the law passed by the voters is unconstitutional. As a result, the law has been defended by those who sponsored Prop 8.
Following a historic trial, federal judge Vaughn Walker issued a sweeping ruling in 2011 which held that Prop 8 was unconstitutional. Last year, an appellate court agreed that the law violated the Constitution; however, the appellate court based its ruling on a relatively narrow reason that may not apply outside of California. Noting that California had allowed same-sex couples to marry for several months before Prop 8 passed in 2008, the appeals court held that once a state allows same-sex couples to marry, it cannot take the freedom to marry away unless it has a rational basis to do so.
Because the appeals’ court ruling was so narrow and so specific to California, some observers were surprised that the Supreme Court agreed to hear the case. But now that the Court has taken the case, there are many different ways that it could be resolved. Here are a few possibilities:
- The Court could find that the private organizations defending Proposition 8 lacked the legal authority (called “standing”) to appeal Judge Walker’s decision. If that happened, marriage for same-sex couples would likely become legal again throughout California. However, the ruling would not apply to other states.
- The Court could follow the narrow reasoning of the appeals court, and hold that once a state allows same-sex couples to marry, it cannot irrationally take that right away. As with the first possibility, this ruling would permit same-sex couples to marry in California, but would not apply to any other state.
- The Court could issue a very broad ruling and hold that it is unconstitutional for states to deny marriage to same-sex couples — period. If that happened, every state in the country would have to extend marriage to lesbian and gay couples.
- On the flip side, the Court could hold that the equal protection clause of the U.S. Constitution does not require California or any other state to allow same-sex couples to marry. Such a ruling would be a significant setback in the fight for marriage equality. It would not only be a loss for lesbian and gay couples in California, but it would prevent LGBT couples in every other state from bringing similar constitutional challenges to marriage bans.
Some also believe the Court may have taken this case in order to rule on what level of review should apply to cases involving laws alleged to discriminate based on sexual orientation — whether Prop 8’s defenders need offer a only a “rational basis” or must have a “compelling reason” for prohibiting marriages of same-sex couples. We will have to wait until June to know for sure which of these issues the Supreme Court will address and how it will rule.
A win in the Windsor case would mean that the federal government has to respect marriages of same-sex couples, but would not require any states to allow same-sex couples to marry. A win in the Prop 8 case would at a minimum require California to start allowing same-sex couples to marry again, and could affect either some other states or even all states that do not currently allow same-sex couples to marry.
The victories for marriage equality at the ballot box last November in Washington, Maine, Maryland, and Minnesota were important in expanding the landscape where marriage of same-sex couples is allowed as the Court is reviewing these cases. But there are still 41 states that prohibit lesbian and gay couples from marrying. So while we are waiting for the Supreme Court to rule, let’s make sure to do all we can to help those in other states move forward toward marriage equality.
Judge Anne Levinson (Ret.) is one of Washington State’s first out LGBT public officials and has been involved in many LGBT and civic issues. David Ward is Legal & Legislative Counsel for Legal Voice, (formerly the Northwest Women’s Law Center), which works to ensure that all women and girls and LGBT Washingtonians have fundamental rights to equal treatment and to be free from discrimination.
Originally published on The Seattle Lesbian.
By: Brandy Black
Today it has been announced that California’s proposition 8 has been ruled unconstitutional. There will be a small gathering in West Hollywood to celebrate this great day!
By: Matthew Nathan
I could hear the anxiety in Adrian’s voice as soon as I answered the phone.
“I just got my birth certificate from Spain,” he said. “They’ve amended it to say we’re married.”
We’re all about shattering stereotypes. Even though half my bloodline is so New England WASP that I practically bleed maple syrup, I’m the one with the more stereotypically Mediterranean disposition (okay, maybe because the other side is Jewish, which is Mediterranean, at least in ultimate origin). I’m louder, I curse at cars, and often yell at the TV when Republicans come on, which scares the dog and makes him fart. Meanwhile, Adrian was born close enough to the Mediterranean itself to toss olive pits in the waves, but drives like my grandmother and internalizes much of what upsets him. Which is why, when he’s visibly agitated, I pay attention. I also try not to yell at Michele Bachmann on TV because it makes the room smell bad.
“The immigration attorneys have already told me to put ‘single’ on all the forms. What do I do now?”
Two years ago, as same-sex couples all across California rushed to the altar (or city hall or the house of that guy down the street who got certified to perform marriages on the internet) before Prop 8 slammed the window shut again, Adrian and I married in his hometown of Alicante. We weren’t expecting the California Supreme Court to rule when it did; in fact, we had been planning the wedding for more than a year. About 15 of our friends and family made the trek from the States in spite of the worst airfares and exchange rate in years, and we were also joined by 45 of his family members and friends from Spain. Spain became, in 2005, the third country (after the Netherlands and Belgium) to legalize marriage for same-sex couples, and the vast majority of the population didn’t blink when the law changed. Still, we were worried about the legality of our marriage back home.
The California Legislature took care of that for us in 2009, passing a law stating that any same-sex couple married out-of-state would be recognized, as long as you married before voters approved Prop 8. That means, as far as the state is concerned, we have all the rights of any married couple – aside from the ones we lose because we live with my mom. But that’s a topic for another post.
Unfortunately, what we need most is federal recognition. We’re what’s called a “bi-national couple,” meaning we didn’t have the sense to fall in love with someone of the same nationality. For a straight couple, this isn’t much of an inconvenience – the whole process, from green card to citizenship, is expedited. For gay and lesbian couples – not so much. Adrian is fortunate that his employer, a major L.A. university, is sponsoring him – but we have to foot the bill. Since he’s single according to the federal government and therefore I can’t sponsor him as the Yank he’s married to, the bill amounts to thousands of dollars in fees both to attorneys and the government (part of the reason we live with my mom… again, a topic for another post).
For the past year, Adrian has filled out form after form and dutifully listed his marital status as ‘single,’ however insulting it felt. We have no idea why the registro civil, the equivalent to a stateside hall of records, noted our marriage on his birth certificate, but there it was: a reminder that our perfectly average lives are anything but controversial in some corners of the world.
I told him to refrain from panicking until he spoke with his attorneys. And lo! -the solution they came up with was one beloved by the legal profession everywhere: footnotes. The line for marital status now read “married*” (with an asterisk). Yes, the application now stated that, while he may indeed be married in, among other places, the Netherlands, Belgium, Spain, Canada, Massachusetts, and even California – we’re really not asking the federal government to recognize us so that, you know, we can live together as a couple. So off the forms went in a certified envelope with me and our seven years together as a footnote.
Really, though, we realize we’re exceptionally lucky. Many of the estimated 36,000 bi-national couples face deportation or move overseas to avoid it. Others live with their non-American partner here illegally, virtually in hiding. A bill languishing before Congress, the Uniting American Families Act, would help, but any action will come too late for us.
And if all else fails, my Spanish is good and it’s not like moving to Spain would be a hardship.
Photographs By: Tracy J. Thomas
You can view more of Tracy’s photos at Tracy J. Thomas Photography
By: Tracy J. Thomas
I sat on my couch yesterday nursing a bad head cold as I followed a live blog that fed directly from the Federal Courthouse in San Francisco. The closing arguments for Perry et al. v Schwarzenegger et al. were finally being heard by Judge Vaughn Walker following a three-week trial held earlier this year. The Plaintiffs’ aim in this case was to overturn voter-approved Proposition 8 which invalidated the California Supreme Court’s ruling that allowed same-sex marriage in the State.
I was moved to follow this trial for a multitude of reasons. The first being my deep love of Constitutional law which was embedded in my soul by my 8th grade Civics teacher, Mrs. Herman. Since that class, I had always harbored the secret dream of becoming a judge and was encouraged by my mother’s insistence that I could out argue any lawyer on this earth. I ultimately took the LSAT, applied to several law schools though never committed, became a Paralegal and worked for multiple attorneys in various disciplines. Over time I came to realize that law was just not the perfect fit for me and moved on to pursue my more artistic passions. The second motivator for me for following this trial so closely is far more personal in nature. It is a motivation in the purest sense: love.
The push to get Proposition 8 placed on the ballot and passed was backed by a somewhat shady group who feared that gay marriage would threaten the sanctity of heterosexual marriage in our country. This group behind the push, the Mormon Church, vehemently denied a role in the Prop 8 campaign until recently being fined for political malfeasance. The Church failed to report $36,928 of contributions to the Yes on 8 campaign. Prior to the election, when questioned by ABC-San Francisco about their involvement in the Prop 8 campaign, Don Eaton, spokesman for the Mormon Church stated, “The Church of Jesus Christ of Latter-Day Saints put zero money in this” –arrogant lies that were later exposed by the truth that the Mormon Church was deeply embedded in this campaign to stop gay marriage to the tune of more than half of the $45 million that funded the Yes on 8 campaign. In addition to these embarrassing realities, the Church’s front organization, National Organization for Marriage (NOM), is being investigated for money laundering and failing to file required campaign reports in the state of Maine for the state’s Question 1 campaign which took away the right of gays to be married in Maine. It is also believed that they have been involved with 30 other state same-sex marriage battles.
But I digress. This post is not meant simply to bash the Mormon Church, its blatant lies, hypocrisy, and seedy underhanded attempts to derail yet another equality movement in this country, nor is it to speak directly to its history of prejudice. Furthermore, I am not about to touch on its historically poor treatment of women, of African-Americans, its history of [gasp] polygamous marriage and sexual abuse through the act of marrying off its own young female children to men for the sake of “procreative” intercourse.
No, the focus of this article is to touch on the reason the Prop 8 trial came about in the first place. The defenders of Prop 8 have a fear. A deeply embedded, irrational, and unfounded fear. Their fear is based in the belief that marriage should be preserved for procreation only and is the sole means to provide children with that perfect model of a mother and a father, of male and female. And of course we all know that heterosexual marriages in this country are perfect incubators of ethical behavior in children. What with the high percentage of alcoholism, wife abuse, child sexual abuse, extramarital affairs, and divorce in our country, why would anyone think otherwise? I don’t know about you, but I would much rather have had two mothers than the father I had to put up with in my “traditional family”. But that is a different blog post altogether.
As argued in the trial, Charles Cooper for the Prop 8 defense exhibited skewed logic when he insisted “the marital relationship is fundamental to the existence and survival of the race. Without the marital relationship, your honor, society would come to an end.” So, in essence, Mr. Cooper, allowing gay people the right to marry other gay people will destroy heterosexual marriage and in effect wipe out all of society? Really? Something tells me heterosexuals have already played a far more prevalent role in undermining the sanctity of marriage prior to a single gay couple ever stating a marriage vow in our country. No worries, there are plenty of heterosexual people still having babies out-of-wedlock [gasp] and through in-vitro fertilization without a known partner [double gasp] who will continue to supply a steady stream of additional plebes. The sole purpose of these births will be to repopulate our doomed society when all the heterosexuals marriages suddenly dissolve in this country after same-sex marriage is deemed legal and as a result wipes out any hope of “responsible procreation”. I know, the whole thing is silly, isn’t it?
Let the truth be known. The Yes on 8 campaign propaganda prior to the vote never once mentioned the preservation of responsible procreation as a reason to deny same-sex marriage. That would have been laughable by the majority of consenting adult voters, most of whom have probably had “irresponsible procreation” at some point in their lives outside of marriage, heterosexual or otherwise. No, the brochures and voters guides chose instead to touch on a nerve that has a way of springing each one of us into action, no matter what our sexuality. It has to do with our children. The Prop 8 campaign turned and twisted reality and once again played on unfounded fears in order to garner votes. Our children needed to be protected from these scary gay people who were out to recruit them. If gays were allowed to be married, then our children would view it as being “okay to be gay.” Gasp! But gays are not okay…there is something inherently “wrong” with them. Isn’t there?
Hmmmm…take a whiff of the past for a second (the not-so-long-ago past may I remind you) and imagine if you will, what interracial marriage might do to our children and to our race, er um, I mean our society, if it were allowed to occur in our country?! Funny thing, the defense in this trial never once brought up the argument of gay marriage having any negative influence on our children in court. Most likely because they knew beyond a reasonable doubt, it would be massacred as discriminatory animus. It would scream homosexuals are a “suspect class” and the plaintiffs would have a field day with shouts of “blatant discrimination!” They chose instead to lean heavily on the heterosexual tradition of marriage based on the importance of “responsible vs. irresponsible procreation.” So, they chose to beat a dead horse instead, I suppose…
The plaintiffs’ attorney, Conservative Republican Ted Olson [wait, a Conservative Republican arguing for gay marriage, you say?], argued the case not from a premise of unfounded fear, but instead on the basis of its Constitutionality. “The Supreme Court has said that: Marriage is the most important relation in life. Now that is being withheld from the plaintiffs. It is the foundation of society. It is essential to the orderly pursuit of happiness. It’s a right of privacy older than the Bill of Rights and older than our political parties. One of the liberties protected by the Due Process Clause. A right of intimacy to the degree of being sacred. And a liberty right equally available to a person in a homosexual relationship as to heterosexual persons. Marriage, the Supreme Court has said again and again, is a component of liberty, privacy, association, spirituality, and autonomy. It is a right possessed by persons of different races, by persons in prison, and by individuals who are delinquent in paying child support. It is the right of individuals, not an indulgence dispensed by the State of California, or any state, to favored classes of citizens which could easily be withdrawn if the state were to change its mind about procreation. In other words, it is a right belonging to Californians, to persons. It is not a right belonging to the State of California. Heterosexual persons can marry the person of their choice. If they are a child molester, if they are a wife beater, if they are in prison for 15 murders, they can marry the person of their choice if they are heterosexual.”
Because they have a fundamental right to do so based on our Constitution. Yet in reality, homosexuals are treated differently in this respect and are not allowed to take part in that basic fundamental right, which does in essence make them a “suspect class”. This is nothing less than discrimination.
The State is taking away a fundamental Constitutional right that was never in its history based on procreation alone…nor was that fundamental right ever meant to discriminate against a group of people (“suspect class”) feared by a few in a select class who chose to spin unfounded non-truths into the hearts and minds of voters in order to keep this group separated from the inalienable right to marry.
To me the argument should alone be based on love. But pardon me for being so foolish to think that love would ever have anything to do with marriage in the first place.
Tracy J. Thomas is a photographer & writer living in Northern California. All the pictures in this article were taken by Tracy. You can see more of her photographs and writing at Tracy J. Thomas Photography & Design.
From The New York Times
By: Adam Liptak
In a San Francisco courtroom two weeks ago, a prominent lawyer opposed to same-sex marriage made a concession that could mark a turning point in the legal wars over the purpose and meaning of marriage.
The lawyer, Charles J. Cooper, has studied the matter deeply, and his erudite briefs are steeped in history. He cannot have been blindsided by the question Judge Vaughn R. Walker asked him: What would be the harm of permitting gay men and lesbians to marry?
“Your honor, my answer is: I don’t know,” Mr. Cooper said. “I don’t know.”
A couple of hours later, Judge Walker denied Mr. Cooper’s motion to dismiss a lawsuit seeking to establish a constitutional right to same-sex marriage. The concession and the ruling that followed it have transformed a federal lawsuit that had been viewed with suspicion by many gay rights advocates into something with the scent of promise.
The suit, filed in May by Theodore B. Olson and David Boies, made the bold claim that California’s voters violated the federal Constitution last year when they overrode a decision of the state’s Supreme Court allowing same-sex marriages.
The suit was, gay rights advocates said then, the wrong claim in the wrong court in the wrong state at the wrong time. There was wariness about Mr. Olson, a former solicitor general in the Bush administration, and there was frustration about what some viewed as his meddling in a carefully plotted and methodical strategy focused on state-by-state litigation and lobbying.
Those objections are waning. The ship has sailed, said Kenji Yoshino, a law professor at New York University, and gay rights advocates “need to focus on getting it to the right destination.” He added that Judge Walker’s refusal to dismiss the case “was a major victory for Olson and Boies.”
In the courtroom, Mr. Cooper’s arguments seemed to fall of their own weight. The government should be allowed to favor opposite-sex marriages, Mr. Cooper said, in order “to channel naturally procreative sexual activity between men and women into stable, enduring unions.”
Judge Walker appeared puzzled. “The last marriage that I performed,” the judge said, “involved a groom who was 95, and the bride was 83. I did not demand that they prove that they intended to engage in procreative activity. Now, was I missing something?”
Mr. Cooper said no.
“And I might say it was a very happy relationship,” Judge Walker said.
“I rejoice to hear that,” Mr. Cooper responded, returning to his theme that only procreation matters.
Later in the argument, Mr. Olson added his own observation. “My mother was married three years ago,” he said. “And she, at the time, was 87 and married someone who was the same age.”
Still, it is one thing to persuade Judge Walker. The ultimate destination of Mr. Olson’s suit is the Supreme Court, and it is hardly clear that he will be able to convince five justices to see things his way. Andrew Koppelman, a law professor at Northwestern and the author of “Same Sex, Different States: When Same-Sex Marriages Cross State Lines,” said Mr. Olson would have trouble attracting votes from the current justices. Asked how many justices Mr. Olson could count on, Professor Koppelman said, “I have trouble getting to one.”
It is not obvious that even the more liberal justices will want a piece of this fight. Justice Ruth Bader Ginsburg, for instance, has long said that Roe v. Wade, the 1973 decision that identified a constitutional right to abortion, went too far too fast and might have been counterproductive.
“The court bit off more than it could chew,” Justice Ginsburg said of the case in remarks at Princeton last year.
In a new book called “The Will of the People,” Barry Friedman, a law professor at New York University, argued that the Supreme Court was quite responsive to public opinion in constitutional cases.
When the court found no constitutional problem with a Georgia law that made homosexual sex a crime in Bowers v. Hardwick in 1986, two-thirds of Americans supported such laws. By 2003, when the court overruled Bowers and struck down a similar law in Lawrence v. Texas, public support had dropped to about a third.
This was, Professor Friedman wrote, “a screamingly evident case of the court’s running right along the tracks of public opinion.”
Mr. Olson’s problem, then, is that he may reach the Supreme Court too soon. Public support for same-sex marriage is gaining ground, particularly among younger people. But a majority of Americans remains opposed to the practice.
At the argument, Judge Walker seemed to share this concern. “Aren’t you just getting ahead of yourself by asserting this claim under the federal constitutional provisions?” the judge asked.
Mr. Olson responded by comparing his case to Loving v. Virginia, the 1967 Supreme Court decision that held bans on interracial marriage to be unconstitutional. But 34 states permitted interracial marriage when Loving was decided. Only six states permit same-sex marriages.
The Loving decision, moreover, came almost two decades after the California Supreme Court struck down a state law banning interracial marriage in 1948 in Perez v. Sharp. The California Supreme Court’s same-sex marriage decision is a little more than a year old, and it has been repudiated by the state’s voters.
At the argument in San Francisco, the two sides did agree on one point. “The name ‘marriage’ means a lot,” Mr. Cooper said. “It does have, by virtue of its ancient and venerable heritage, an imprimatur that is special.”
Judge Walker has scheduled a trial in the case for January. He wants to hear about the history and purpose of marriage and the consequences of allowing same-sex couples to marry. And he has hinted that he may allow the proceedings to be televised.
“We should buckle our seatbelts,” Professor Yoshino said. “A comprehensive vetting of the empirical issues by a judicial tribunal is welcome and long overdue. Walker’s trial bids fair to be a trial in an almost scientific sense of the word.”
NEW YORK TIMES
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