Recently in Marriage Equality Category

Same Gender Marriage: The Good, the Bad and the Ugly - President Obama, North Carolina, and Politics

May 9, 2012, by

The people of North Carolina voted this week to amend their constitution to ban same-sex marriage. And the ban won with a surprisingly strong 61 to 39 percent, undermining North Carolina's image as a modern, progressive state. Very bad!

But, on a brighter note, the President of the United States, for the first time in history, declared his support for same-sex marriage. Better late than never, as this comes after years of waffling and talking about 'evolving views' on the subject. Still, something to celebrate.

The blogosphere is rife with speculation and second guessing - why did he do it, and what does it mean? How much is political, how much personal? Is this the result of pressure from gay marriage advocates and donors, Vice President Biden's recent statement that he is "comfortable" with gay marriage or something else?

Probably all of the above and more, and despite my many criticisms of President Obama's policies and positions, today I am proud of our president and the integrity and compassion he has shown in articulating his position and the rationale for it.

However, the president stressed that this is a personal position, and that he still supports the concept of states deciding the issue on their own. Yet, on Feb. 23, 2011, his administration, through a letter written by Attorney General Eric Holder, announced the administration's view that Section 3 of the Defense of Marriage Act was unconstitutional.

The letter analyzed how classifications based on sexual orientation should be assessed under the equal protection clause of the Fourteenth Amendment, stating that because of several factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. Under the equal protection clause, laws classifying people are subjected to one of three levels of scrutiny - rational basis, intermediate scrutiny like that applied to sex-based classifications, or strict scrutiny like that applied to race-based classifications.

With some level of heightened scrutiny applied to sexual orientation classifications, the decision that DOMA's definition of marriage was unconstitutional was quite clear. And that same level of scrutiny applied to sexual orientation classifications anywhere - at the federal, state and local, level, should similarly be deemed unconstitutional.

Therefore, Obama's current policy position is arguably (hopefully) more than mere personal opinion. If the administration were still defending DOMA and had taken no position on the level of scrutiny to be applied to sexual orientation classifications, then President Obama's statement could more easily be taken mean that he believes states have unfettered rights to legislate as they they wish on marriage.

But, that does not appear to be definitive. Rather, Obama's position is that (a) he personally supports same-sex marriage; (b) he believes as a policy matter that state, and not federal, law should define marriages, as it always has been in this country; and (b) he believes that there are federal constitutional limitations on those state decisions.

Two significant gay-rights cases--one challenging California's revocation of gay marriage, the other challenging the Defense of Marriage Act--are on their way toward the Supreme Court. President Obama's statement of support for gay marriage helps bring gay marriage into the mainstream and increases its legitimacy. The DOJ position regarding heightened scrutiny will surely benefit the parties in cases on gay marriage heading to the Supreme Court. And together they help forge a path toward full marriage equality.

I learned recently from a Collaborative colleague active in LGBT issues, that the term of choice is same-gender, rather than same-sex, marriage, because really, it's about gender, not about sex, so from here on that is the phrase I will use. And as a Collaborative family law attorney and mediator, I look forward to the day when marriages of any gender can marry (and divorce), all according to the same rules.

For more information, visit us at www.lornajaynes.com

Proposition 8 & DOMA - Marriage Equality in California

December 26, 2011, by

Proposition 8 - Perry v. Schwarzenegger
Following the holding of the California Supreme Court in May 2008 in the Perry v. Schwarzenegger case that state statutes limiting marriage to opposite-sex applicants violated the California Constitution, same sex couples flocked to California to marry. But in November of 2008, California voters adopted Proposition 8, a constitutional amendment that precluded same sex marriage. In response, couples denied marriage licenses filed several lawsuits challenging the validity of the amendment and arguing that Prop 8 violates the U.S. Constitutional guarantee of due process and equal protection.

On August 4, 2010, Judge Vaughn Walker announced his ruling in favor of the plaintiffs, overturning Proposition 8 based on the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution. Walker determined that California had no rational basis or vested interest in denying gays and lesbians marriage licenses, stating that:
"An initiative measure adopted by the voters deserves great respect. The considered views and opinions of even the most highly qualified scholars and experts seldom outweigh the determinations of the voters. When challenged, however, the voters' determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons. Conjecture, speculation and fears are not enough. Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view. The evidence demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval. As such, Proposition 8 is beyond the constitutional reach of the voters or their representatives."
Judge walker noted that Prop 8 was based on traditional notions of marriage and moral disapproval of homosexuality, and neither of those are a valid legal basis for discrimination. He also pointed out that gays and lesbians are the type of minority that strict scrutiny was designed to protect.

Proposition 8 supporters appealed to the US Court of Appeals for the Ninth Circuit which agreed to stay Judge Walker's ruling, pending the appeal. From Judge Walker's decision through November 2011 a series of appeals related to the standing made their way through the Ninth Circuit hierarchy and the California Supreme Court which held that non-governmental proponents of Proposition 8 have the legal standing to defend it, stating that "[I]n the past official proponents of initiative measures in California have uniformly been permitted to participate ... in numerous lawsuits in California courts challenging the validity of the initiative measure the proponents sponsored."

Any final decision by the Ninth Circuit panel may be reheard by an en banc court of 11 active judges, but only if a majority of all of the active judges in the Ninth Circuit vote to rehear it. If subsequently the United States Supreme Court grants review, the process may take years.

DOMA
In August 2008, Karen Golinski and her partner of 18 years, Amy Cunninghis, gathered with family and friends in the rotunda of San Francisco City Hall and exchanged wedding vows.

Golinski and Cunninghis wed before the California voters enacted Proposition 8 banning gay marriage, and their marriage remains legal in California. Golinski, a federal employee as staff attorney for the 9th U.S. Circuit Court of Appeals, then sought to add her spouse to her health plan. But federal agencies rejected her request, citing DOMA (Defense of Marriage Act) -- even though her boss, 9th Circuit Chief Judge Alex Kozinski, concluded she was entitled to the benefits. Golinski sued the government, arguing that DOMA discriminates against legally married same-sex couples by depriving them of the same rights, from health benefits to tax status, as heterosexual couples.

Although one could be forgiven for thinking that Attorney General Eric Holder does not actually exist given his complete failure to prosecute the white collar Wall Street criminals largely responsible for the financial crisis, he has shown some spine on this issue, claiming that the administration considers Section 3 of DOMA to be unconstitutional. Section 3 states that the federal government will not, for any federal purposes, recognize any same-sex marriage. Holder says the administration believes laws disfavoring persons based on sexual orientation should have to pass the most stringent judicial review--heightened scrutiny, and that the administration would argue so in two cases challenging DOMA in the 2nd Circuit.
What a long strange trip it's been. Both cases may be one of several to make its way to the U.S. Supreme Court on the issue of marriage equality.

Gay Marriage, Sister Wives, Polygamy, Contracts, Personal Freedom

December 1, 2011, by

I have long been a supporter of gay marriage and the rights of LGBT folks to have the same rights as the rest of us. However, I also think it is important to be flexible and open to new ideas and discussions any all controversial issues. Hence, more ideas on gay marriage and beyond.

As same-sex marriage becomes increasingly legal in various states, more companies require that their employees become legally married in order for their partners to qualify for health insurance. Currently, many of these same companies already provide domestic partner benefits for employees with same sex partner in states where cannot legally marry.

While this would appear to be what advocates of same-sex marriage want, there may also be unintended consequences. One obvious problem is that although the marriage may be recognized in a given state, it is not yet recognized by the federal government making marriage not a feasible choice for some couples and in so doing would deprive them of the health insurance benefits they previously enjoyed. It is important that when states legalize gay marriage, they also keep the domestic partnership option available at least until gay marriage is recognized by the federal government.

More importantly, however, even than maintaining the option of domestic partnerships, is to broaden the narrow terms of the debate. Conservatives want a narrow definition of marriage as only between one man and one woman. The LGBT movement has focused solely on marriage equality. Both are too limiting, since a fundamental problem with marriage is that it only comes in one size as a legal relationship. But as a personal relationship, marriage or its equivalents, is unique and personal and often sacred. Marriage, civil unions and the like, just as any contract or partnership agreement, should be as flexible as a business contract in enabling the participants to create an agreement that is tailored to their needs and circumstances and reflects their values and goals.

Therefore, the struggle for marriage equality should perhaps also include efforts to obtain legal recognition for a wider range of relationships, households and families, regardless of conjugal status. Marriage is not the only form of family or relationship worthy of legally and economically privileged status above others and by making marriage the goal, those who live in non-nuclear families are excluded. This might include blended families, unmarried couples, adult children living with and caring for their parents, grandparents living with and caring for their grandchildren, close friends or siblings in non-conjugal relationships serving as each other's primary support and caregivers.

This is reflected in the lawsuit of Kody Brown and his four wives from the reality TV show, Sister Wives, challenging the Utah polygamy law. Bigamy is a third-degree felony in Utah, and a person can be found guilty of bigamy through cohabitation, not just legal marriage contracts. The Browns', Jonathan Turley, attorney claims that the state is persecuting citizens for living their religious values and the lawsuit seeks to protect a person's right to be left alone. Prosecutors claim the family is committing a felony every night on television. Brown and his 'wives' are relying on the Supreme Court's 2003 decision in Lawrence v. Texas, 539 U.S. 558 (2003), holding that the state could not prosecute people for engaging in private, consensual sexual behavior - in that case, gay sex.

In Lawrence v. Texas the U.S. Supreme Court held, specifically, that "[t]his case does not involve minors, persons who might be injured or coerced, those who might not easily refuse consent, or public conduct or prostitution. It does involve two adults who, with full and mutual consent, engaged in sexual practices common to a homosexual lifestyle. Petitioners' right to liberty under the Due Process Clause gives them the full right to engage in private conduct without government intervention."

Similarly, the relationship between Brown and his wives appears that it does not (directly) involve minors or those who might be injured, a lack of consent or inappropriate public conduct, and would seemingly be entitled to engage in their private conduct without government intervention.

Gay Marriage, Polygamy, Contracts, Personal Freedom

August 31, 2011, by

I have long been a supporter of gay marriage and the rights of LGBT folks to have the same rights as the rest of us. However, I also think it is important to be flexible and open to new ideas and discussions any all controversial issues. Hence, more ideas on gay marriage and beyond.

As same-sex marriage becomes increasingly legal in various states, more companies require that their employees become legally married in order for their partners to qualify for health insurance. Currently, many of these same companies already provide domestic partner benefits for employees with same sex partner in states where cannot legally marry.

While this would appear to be what advocates of same-sex marriage want, there may also be unintended consequences. One obvious problem is that although the marriage may be recognized in a given state, it is not yet recognized by the federal government making marriage not a feasible choice for some couples and in so doing would deprive them of the health insurance benefits they previously enjoyed. It is important that when states legalize gay marriage, they also keep the domestic partnership option available at least until gay marriage is recognized by the federal government.
More importantly, however, even than maintaining the option of domestic partnerships, is to broaden the narrow terms of the debate. Conservatives want a narrow definition of marriage as only between one man and one woman. The LGBT movement has focused solely on marriage equality. Both are too limiting, since a fundamental problem with marriage is that it only comes in one size as a legal relationship. But as a personal relationship, marriage or its equivalents, is unique and personal and often sacred. Marriage, civil unions and the like, just as any contract or partnership agreement, should be as flexible as a business contract in enabling the participants to create an agreement that is tailored to their needs and circumstances and reflects their values and goals.
Therefore, the struggle for marriage equality should perhaps also include efforts to obtain legal recognition for a wider range of relationships, households and families, regardless of conjugal status. Marriage is not the only form of family or relationship worthy of legally and economically privileged status above others and by making marriage the goal, those who live in non-nuclear families are excluded. This might include blended families, unmarried couples, adult children living with and caring for their parents, grandparents living with and caring for their grandchildren, close friends or siblings in non-conjugal relationships serving as each other's primary support and caregivers.

This is reflected in the lawsuit of Kody Brown and his four wives from the reality TV show, Sister Wives, challenging the Utah polygamy law. Bigamy is a third-degree felony in Utah, and a person can be found guilty of bigamy through cohabitation, not just legal marriage contracts. The Browns' attorney, Jonathan Turley, claims that the state is persecuting citizens for living their religious values and the lawsuit seeks to protect a person's right to be left alone. Prosecutors claim the family is committing a felony every night on television. Brown and his 'wives' are relying on the Supreme Court's 2003 decision in Lawrence v. Texas, 539 U.S. 558 (2003), holding that the state could not prosecute people for engaging in private, consensual sexual behavior - in that case, gay sex.

In Lawrence v. Texas the Supreme Court held, specifically, that "[t]his case does not involve minors, persons who might be injured or coerced, those who might not easily refuse consent, or public conduct or prostitution. It does involve two adults who, with full and mutual consent, engaged in sexual practices common to a homosexual lifestyle. Petitioners' right to liberty under the Due Process Clause gives them the full right to engage in private conduct without government intervention."
Similarly, the relationship between Brown and his wives does not (directly) involve minors or those who might be injured, a lack of consent or inappropriate public conduct, and would seemingly be entitled to engage in their private conduct without government intervention.