Preparing for the Supreme Court’s Decisions on Prop 8 and DOMA

If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct…what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising 'the liberty protected by the Constitution?

~ Justice Antonin Scalia (This quote is taken from his minority dissent to Lawrence v. Texas when the court struck down sodomy laws)

First, America needs a civics lesson
Contrary to the National Organization for Marriage’s wishes and all others who were disappointed when California’s Proposition 8 was struck down, and feel abused, the people DO NOT get to decide what’s constitutional and what’s not. Fortunately, we live in a constitutional republic, not a pure democracy.  For in a pure democracy, if 51% of the people want to cut off the heads of the other 49%, for whatever reason, it would happen.  Our Constitution forbids majority coercion of the minority and in fact was created, in no small part, to protect the rights of the minority. So if, say, California passes a proposition that provides that “only marriage between a man and a woman is valid or recognized in California,” the fact that the majority of voters voted yes does not mean it passes constitutional muster.  The same holds true for DOMA. That’s why, for those who are opposed to marriage equality, DOMA is not enough and only a Constitutional amendment will do.

Ironically, if we were to let the people decide, as NOM would have it, the tide has turned and the majority of Californians and Americans are now in favor of same-sex marriage.  Given their favorable attitude toward LGBTs, when the Millennial generation assumes power, this will be a long forgotten era of American history.  Just as today when young people are told of Jim Crow and the struggle for Civil Rights, and they are mystified as how this could ever have been, so too will generations from now find it hard to believe that gay people couldn’t get married.

How DOMA and Prop 9 control the lives of LGBTs up to now
The federal Defense of Marriage Act effectively does two things. First, it defines marriage for federal purposes as between one man and one woman as husband and wife; and “spouse” refers only to a person of the opposite sex who is either husband or wife.  Second, it allows states the right to decline to recognize same-sex marriages that are legal in other states.

The federal General Accounting Office identified “1,049 federal statutory provisions classified to the United States Code in which benefits, rights, and privileges are contingent on marital status or in which marital status is a factor”. This shuts out LGBTs from all federal benefits accorded to opposite-sex couples, including income tax breaks, Social Security survivor’s benefits, and health care. The GAO upgraded the number of benefits to 1,139 in 2003.

In California, Proposition 8 is a constitutional amendment, passed in 2008, which said marriage defined as “only between a man and a woman is valid or recognized in California.” It overturned the California Supreme Court’s ruling that banning same-sex marriage is unconstitutional. There was a window from June 16 to November 5, 2009 when same-sex marriage was legal and these marriages continue to be legal and likely will not be affected by SCOTUS’s ruling.

Possible Supreme Court outcomes

Most court watchers count the possible outcomes as four or five, reducing the likely outcomes to three. They range in scope from total victory for marriage equality across the board, to the status quo remaining in place. We will look at each outcome from best to worst, at least in the eyes of supporters of same-sex marriage.

DOMA and Proposition 8 are both struck down
Marriage would become the legal right of every couple, regardless of sexual orientation. Although this is the least likely outcome, it is possible. It is, of course, the most desirable outcome for those of us working for marriage equality. The reality that no couple in America could be denied the full dignity and rights presently accorded only to opposite-sex couples would mean that LGBTs are no longer second-class citizens.
A narrow interpretation would restore same-sex marriage rights to California and confer federal marriage benefits to all legally married same-sex couples throughout America. It would not affect marriage bans in other states; they would remain intact.

DOMA struck down, but Prop 8 upheld
Legally married same-sex couples in California and elsewhere will begin receiving the 1,139 federal marriage benefits. However, same-sex marriage will not be legal in California as well as the other states with similar bans. Those Californians legally married in 2009 will most likely not have their marriages made null and void.

Prop 8 struck down, but DOMA upheld
With the demise of Prop 8, marriage equality will be reinstated in California, and may overturn similar bans in place in other states. However, legally married same-sex couples will be denied all federal rights and benefits related to marriage. Second-class citizenship will continue.

We may know the outcomes as soon as tomorrow.  When the decisions are made public, I will post a column on where we go from here.

(This post was adapted from my book, Marriage Equality: Why same-sex marriage is good for the church and nation found here: http://www.amazon.com/Marriage-Equality-Same-sex-marriage-church/dp/1484967127/ref=)

22 Reasons Why DOMA and Prop 8 Need to Be Declared Unconstitutional

And Same-sex Marriage Be Made Available Nationwide

1.   It's the right thing to do
2.   It will strengthen marriage all around
3.   LGBT families need the protection of legal marriage 
4.   LGBT partners need the protection of legal marriage
5.   LGBTs deserve the status of normal and worthy citizens that marriage bestows
6.   It will diminish the need for sham marriages and resultant divorces
7.   SCOTUS will be on the right side of history
8.   It’s inevitable; if not now it will happen eventually, so why wait?
9.   More orphaned children will find happy families
10. It resolves one more remaining justice issue in favor of equality
11. America can move on to other issues
12. We can retire right wing hypocrites who lecture us on morality
13. Maybe Maggie Galagher will go away?
14. Marriage is much more than about procreation, or, often, not about it at all
15. Republicans are even determined to make this a non-issue
16. I honors the Golden Rule
17. It in no way harms heterosexual marriage
18. Same-Sex Marriage Provides a More Stable Environment for Children of LGBT Couples
19. Love matters
20. "Separate but equal" was tried and failed
21. Did I say it’s the right thing to do?

And finally, so Associate Justice Antonin Scallia has to eat these words:

"If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct…what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising 'the liberty protected by the Constitution'”. [This quote is taken from his minority dissent to Lawrence v Texas when the court struck down sodomy laws.]

Yes, just "what justification could there possibly be", indeed?

Here's a little bit of what SCOTUS will hear today (from 

David Boies on "Meet the Press")

Okay, I cribbed this next list from StopGeek.com.  It's hilarious, and give us pause at our own shortsightedness.

Top Ten Reasons to Make Gay Marriage Illegal

01) Being gay is not natural. Real Americans always reject unnatural things like eyeglasses, polyester, and air conditioning.

02) Gay marriage will encourage people to be gay, in the same way that hanging around tall people will make you tall.

03) Legalizing gay marriage will open the door to all kinds of crazy behavior. People may even wish to marry their pets because a dog has legal standing and can sign a marriage contract.

04) Straight marriage has been around a long time and hasn’t changed at all like many of the principles on which this great country was founded; women are still property, blacks still can’t marry whites, and divorce is still illegal.

05) Straight marriage will be less meaningful if gay marriage were allowed; the sanctity of marriages like Britney Spears’ 55-hour just-for-fun marriage would be destroyed.

06) Straight marriages are valid because they produce children. Gay couples, infertile couples, and old people shouldn’t be allowed to marry because our orphanages aren’t full yet, and the world needs more children.

07) Obviously gay parents will raise gay children, since straight parents only raise straight children.

08) Gay marriage is not supported by religion. In a theocracy like ours, the values of one religion are imposed on the entire country. That’s why we have only one religion in America.

09) Children can never succeed without a male and a female role model at home. That’s why we as a society expressly forbid single parents to raise children.

10) Gay marriage will change the foundation of society; we could never adapt to new social norms. Just like we haven’t adapted to cars, the service-sector economy, or longer life spans.

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DOMA and Prop 8: A Lesson in Civics

With America's, and perhaps most of the world's, attention on the United States Supreme court this week, we will get an answer to a question that most Americans only vaguely understand:  "How can the vote of the majority be set aside?  The people have spoken, how can an unelected court go against public opinion, one enshrined in a majority vote?"  That, in a nutshell, is the basis of the frustration for those who conceived of and fought for California's Proposition 8.

Here's a recap of how the amendment  has fared.

Proposition 8 - which, for California only, defines marriage as between one man and one woman  - passed by 53% of California voters in 2008.  The United States District Court Judge Vaughn Walker overturned Proposition 8 on August 4, 2010, ruling that it violated both the Due Process and Equal Protection clauses of the United States Constitution. On February 7, 2012, in a 2–1 decision, a Ninth Circuit Court of Appeals panel affirmed Walker's decision declaring the Proposition 8 ban on same-sex marriage to be unconstitutional. On December 7, 2012, the Supreme Court granted the proponents' petition for certiorari, which will be heard on Tuesday March 26, 2013. The Supreme Court Justices are expected to issue their ruling pertaining to the constitutionality of Proposition 8 by late June 2013. The ruling by the US Supreme Court may set precedent not only in California, but nationally.

Prop 8 passed by a 4% majority only to have the Ninth Circuit Court of Appeals put it on hold.  The eventuality is strong that the US Supreme Court may make it null and void with the attendant possibility that prohibiting same-sex marriage may become unconstitutional in every state in the USA.

A blogger voiced his profound anger not long after its passing.  Here is a comment to it:

"Those are some mighty strong words and accusations you're tossing around based on the CA government (and law) following it's defined process for letting people participate in a democratic republic. What do you prefer - the CA supreme court tossing out the results of a vote presented to the entire state? That borders dangerously close to very non-democratic governmental ideas."

So, it's "non-democratic" for a court to toss out the majority's vote.  As a Californian of long standing, I bear witness to many conversations that suggest that this notion is wide spread. This commentator got one thing right, we are a democratic republic.  In a pure democracy, as the saying goes, 51% of the people could vote to cut off the heads of the 49% and it would be legal (and done!). This notion became encapsulated as "the tyranny of the majority."  Great thinkers from Plato to John Stuart Mill and Tocqueville warned us of this and provided several ways to insure that governments would not be capable of such mendacity. Two are enshrined in the U.S. Constitution: separation of powers and representative government.

This was not lost on the plaintiffs bringing the case to the Supreme Court. “If we've learned anything through this journey, it's that when the minority rights are being oppressed by a majority the court is supposed to step in, and some times it's not always popular for them to do so,” Jeff Zarrillo said. “We would expect the court to step in and right these wrongs." Exactly.  This is the proper recourse when minorities are pushed around by the majority.

The fact that we have a constitution at all is the most important defense against tyranny. The cry we hear so often, widely credited to John Adams, “We are a nation of laws and not of men,” is another way of saying, we are a constitutional republic.  Men and women don't tell us what to do, our Constitution does.  What is going on this week at SCOTUS is nothing more or less than laws deciding our fate.  (I am not so naive as to believe that the Court can be so objective as to rule out sentiment, prejudice, and other human considerations, but trust that they do their best to hold them at bay.)

This basic American value was clearly illustrated this weekend on "Meet the Press." Here's a snippet of host David Gregory's interview with David Boies, who is arguing the case against Prop 8 tomorrow.  Gregory  pointed out all the states that currently have bans on same-sex marriage and asked , "Aren't you effectively asking the Court to say, with one stroke of the pen, we're going to invalidate what those states have done?"

Replied Boies: "Every time the Supreme Court makes a constitutional decision, it’s making a decision that certain fundamental rights are too important to be left to the ballot box. We've done that with race, we've done that with women; we've done that with every discriminated class."

So the next time you hear someone say that "the courts have usurped the people's will" one more time, gently remind them that the very fact they do this is precisely because of "the will of the people."  It's called the Constitution of the United States.

Analysis of Supreme Court Hearings on Same-sex Marriage Issues

The Supreme Court is about to hear arguments on California's Prop 8 and DOMA.  Here is the breakdown on the current situation from The Pew Forum on Religion and Public Life.

High Court to Hear Same-Sex Marriage Cases
LEGAL REPORT March 20, 2013

The U.S. Supreme Court is about to hear oral arguments in a pair of potentially groundbreaking same-sex marriage cases. On March 26, the court will hear a challenge to California’s Proposition 8, a ballot measure approved by California voters in 2008 that amended the state’s constitution to ban same-sex marriage. On March 27, the court will hear a challenge to the federal Defense of Marriage Act (DOMA), the 1996 law that bars the federal government from recognizing same-sex marriage.

People have been fighting over same-sex marriage in courtrooms around the country for more than 20 years. Until recently, however, most of the action has taken place in state courts. The Supreme Court’s decision to take the DOMA case (United States v. Windsor) and the Proposition 8 case (Hollingsworth v. Perry) shifts the judicial focus from state to federal courts. It also raises the stakes: While state court rulings impact a particular state, federal cases involve federal constitutional principles that could apply nationwide, as discussed in a recent Pew Research Center legal analysis of the two cases.

While the Supreme Court has an opportunity in these cases to rule on core constitutional questions, that doesn’t mean it necessarily will. Indeed, the court could decide that the parties opposing same-sex marriage lack the right to defend Proposition 8 and DOMA in court (a legal concept known as “standing”). If standing is granted, it still is possible that the court will not address the broad constitutional question of whether same-sex couples have a right to marry under the U.S. Constitution and will choose instead to rule more narrowly in both cases.

The DOMA case (Windsor) does not directly address the question of whether the U.S. Constitution protects the right of same-sex couples to wed. The case involves a different constitutional question: Does the federal government’s treatment of gays and lesbians under DOMA discriminate against them in such a way as to violate their constitutional rights?

The Proposition 8 case (Perry) might offer a better vehicle for the court to address the core question of whether the U.S. Constitution guarantees same-sex couples the right to marry. That’s because it involves a decision by a state, California, to prohibit gays and lesbians from marrying. But even in this case, the court could strike down California’s ban on same-sex marriage without ruling on the broader constitutional question. Indeed, even if the court were to strike down Proposition 8 in Perry, some legal scholars believe it still might not use the case as a vehicle to rule broadly on the constitutionality of restrictions on same-sex marriage and instead might craft a narrower decision that allows most states to decide their own marriage policies.

The Perry Case  
How could the court strike down Proposition 8 and still give other states a free hand to set their own marriage policies? The answer lies in Proposition 8’s unique history. Proposition 8 was approved by California voters six months after the state’s highest court had ruled that gays and lesbians had the right to marry – and after thousands of same-sex couples took advantage of this ruling and got married. In an earlier lower court decision in this case, the 9th U.S. Circuit Court of Appeals ruled (PDF) that California cannot single out a minority group and remove an existing right (in this case, the pre-Proposition 8 right of same sex couples to marry) without the government first showing that it had a rational or legitimate basis for this discriminatory action – something the state of California failed to do, according to the court of appeals. 

If the Supreme Court upholds the 9th Circuit’s ruling, and uses the same legal rationale to do so, it would not undermine other states’ bans on same-sex marriage. A narrow decision of this sort would prevent only states that have already granted marital rights to gays and lesbians from subsequently taking them away. Of course, if the high court upholds Proposition 8, it will, by definition, have effectively ruled that the U.S. Constitution does not protect same-sex couples against state laws prohibiting them from marrying.

The Windsor Case  
While the Supreme Court could use Windsor to decide whether the U.S. Constitution grants same-sex couples the right to marry, many legal scholars believe the high court is more likely to focus on whether DOMA unconstitutionally discriminates against gays and lesbians, rather than on whether there is a right to same-sex marriage. Indeed, the 2nd U.S. Circuit Court of Appeals (PDF), in its earlier decision in Windsor striking down DOMA, ruled that the statute is unconstitutionally discriminatory.

The Big Picture  
Because same-sex marriage involves a contentious social issue, the arguments to the high court and its rulings in Perry and Windsor are expected to receive a tremendous amount of attention. Indeed, taken together, these decisions are almost certain to become the most important same-sex marriage rulings to date. Until now, the most significant same-sex marriage ruling occurred in 2003, when the Massachusetts Supreme Judicial Court (the state’s highest court) said that the state’s constitution granted gays and lesbians the right to marry. As a result of this decision, Massachusetts became the first state in the country to legalize same-sex marriage.

Since 2003, eight other states – Connecticut, Iowa, Maine, Maryland, New Hampshire, New York, Vermont and Washington State – as well as the District of Columbia have legalized same-sex marriage. Bills to legalize same-sex marriage currently are being considered in three additional states – Illinois,Rhode Island and Minnesota. By contrast, over the last two decades 30 states have added language to their constitutions banning same-sex marriage.

According to polling from the Pew Research Center, public attitudes toward same-sex marriage haveshifted markedly over the past decade. Polling conducted in 2003 found that most Americans (58%) were opposed to allowing gays and lesbians to marry legally, and just a third (33%) were in favor. A new survey by the Pew Research Center, conducted March 13-17, 2013, among 1,501 adults nationwide, confirms that these figures have flipped, with 49% supporting same-sex marriage and 44% opposed.

In recent years, many political leaders have voiced support for letting gays and lesbians marry legally. In May 2012, for instance, President Barack Obama declared that he supports same-sex marriage.Former President Bill Clinton, who signed DOMA into law in 1996, recently wrote an op-ed in The Washington Post urging the Supreme Court to overturn the law. And in a video released on March 18,former Secretary of State Hillary Clinton announced she supports same-sex marriage, both “personally and as a matter of policy and law.” 

Some Republicans also recently have come out in favor of same-sex marriage. In February, for example, a group of prominent Republicans (PDF), including former Utah Governor Jon Huntsman and former Deputy Secretary of Defense Paul Wolfowitz, signed a friend-of-the-court brief urging the Supreme Court to strike down Proposition 8. And Sen. Rob Portman (R-Ohio), who had co-sponsored the original DOMA bill when he served in the U.S. House of Representatives, also recently announced that he now supports same-sex marriage. In a March 15 op-ed in The Columbus Dispatch, Portman said he made his decision because one of his sons is gay and he “wants all three of his kids to lead happy, meaningful lives with the people they love.”  

This report was written by David Masci, Senior Researcher, Pew Research Center’s Forum on Religion & Public Life. 

Photo credit: iStockPhoto

The Last Respectable Prejudice

In a future post I will share the many great resources for following the latest news and commentary on same-sex marriage and related issues that are available online.  My hope is that they will inform your day as they do mine.  This blog, however, is not so much devoted to current events as it is to think about them.  So my posts are more like "think pieces" than news stories.  We need both and I have chosen to present commentary.

The Gay Rights Struggle Is the Moral Equivalent of the Civil Rights Struggle of the Last Century

Part 1

As for today's subject, I do not want to leave the impression that LGBTs have suffered and continue to suffer to the same degree as African Americans have.  There was no refuge in the safety of the closet for Blacks in America; they had no place to hide. Nor have LGBTs had to endure centuries of slavery.  On the whole, life in America has been relatively good for gays as compared to many other countries around the world, and certainly when compared to America's racial minorities.

Nevertheless, in the words of Byrne Fone, in Homophobia: A History: 

"Indeed, in modern Western society, where racism is disapproved, anti-Semitism is condemned, and misogyny has lost its legitimacy, homophobia remains, perhaps the last acceptable prejudice.”  

The fight for African American equality began in slavery, is embedded in the Declaration of Independence, ushered in the Civil War, was enshrined in the 14th Amendment, endured through Jim Crow, made huge gains in the 1950s and 60s, and finally was legally secured with the passing of the Civil Rights Bill of 1964 and the Voting Rights Bill of 1965.  A host of other legislation, both in Congress and in the states, dealt with issues from school bussing, interracial marriage, and other discriminatory practices.  Although prejudice endures, legal discrimination is markedly on the decline in America.

The fight for LGBT equality is more recent and follows a much less ascendant trajectory. Gays still can be fired for their sexual orientation without recourse in 29 states; transgenders, in 34.  Lynchings have all but ended in the South, but LGBT's lives are taken almost every day.  According to the Leadership Conference, in a report issued in 2010,

Reported hate crimes committed against individuals because of their sexual orientation increased in 2007 to 1,265, the highest level in five years. Of all hate crimes reported in 2007, the proportion committed against lesbian, gay, bisexual, and transgender (LGBT) individuals rose to 16.6 percent, also the highest level in five years. According to the FBI's HCSA reports, gay men and lesbians have consistently been the third most frequent target of hate violence over the past decade.

As early as the founding of Virginia, gay sex was a capital offence.  It wasn't until 2003 that sodomy laws were rendered unconstitutional by the Supreme Court in Lawrence v. Texas. The years in between made gay love go underground to survive, and many are still living in the closet to protect themselves.  

Racial slurs are not uttered in polite company these days, but gay slurs still are. You don't hear racist jokes much any more, but gay jokes are still fair game.  Where conservative Christians used to denigrate African Americans by teaching that God desires segregation and approves of slavery, they have largely repudiated those teachings.  But they are free to claim that "God hates homosexuality," and LGBTs are hell bound.  

In 1964, the Supreme Court struck down laws prohibiting interracial marriage, allowing African Americans the right to marry anyone they love.  Same-sex marriage is only legal in nine states, but Federal benefits are denied them with the passing of the Defense of Marriage Act.  If the Supreme Court does not make same-sex marriage a universal right in America, it will have to be won state by state and DOMA will have to be overturned.  

So the fight for gay rights parallels in many ways the fight for racial equality: legal restrictions that bar them from full access to rights given to others, societal contempt that often leads to violence, and laws that keep them from marrying, to name just a few.  These struggles are moral equivalents because of this one fact: LGBTs are as fully human and as entitled to live as equals with all Americans, just as we have finally realized about racial minorities.  More and more Americans are convinced that this is the case, with 58% now favoring equality across the board. If the Supreme Court feels the same way, all that will be left will be the same as when  racial minorities received full rights: we will have to discover that there should never have been such a fuss in the first place.

TOMORROW: Part 2, The Moral Implications That Follow from This Equivalency 

The following is a press release by the American Sociological Association sent yesterday. It should put to bed any remaining doubt that the academic community, the only body qualified to speak authoritatively on issues regarding scientific inquiry, is solidly behind same-sex marriage and gay normalcy in general. It speaks clearly for itself; I have no need to comment. Those who continue to foster contrary arguments do so from a position contrary to the facts. We will have to look to other motives to determine why.

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ASA Files Amicus Brief with U.S. Supreme Court in Same-Sex Marriage Cases

Research Shows Parents’ Sexual Orientation Has No Bearing on Children’s Well-Being

WASHINGTON, DC, February 28, 2013 — The American Sociological Association (ASA) weighed in on the gay marriage cases before the U.S. Supreme Court today, filing an amicus brief outlining social science research that shows “children fare just as well” when raised by same-sex or heterosexual parents.

“The results of our review are clear,” said ASA President Cecilia Ridgeway. “There is no evidence that children with parents in stable same-sex or opposite-sex relationships differ in terms of well-being. Indeed, the greater stability offered by marriage for same-sex as well as opposite-sex parents may be an asset for child well-being.”

Founded in 1905, the ASA has more than 14,000 members and a long history of presenting the consensus research findings of sociologists to American courts for their use in evaluating evidence and legal issues. In March, the U.S. Supreme Court is scheduled to hear cases on the Defense of Marriage Act (DOMA), which denies federal recognition of same-sex marriages already legalized under the law of several states, and Proposition 8, which revoked the right of same-sex couples to marry in California.

“An issue at the heart of these cases is whether family composition, per se, affects the well-being of children and thus, provides a justification for limiting the right to marry,” said Ridgeway, the Lucie Stern Professor of Social Sciences in the Sociology Department at Stanford University. “This core question is an empirical one and is the subject of a broad range of social science research. As a scientific body, ASA has a duty to provide the court with a systematic and balanced review of the evidence to assess what the consensus of scholarly research has shown.”

In their briefs to the court, the Bipartisan Legal Advisory Group of the U.S. House of Representatives, which is defending DOMA, the Hollingsworth Petitioners, which are defending Proposition 8, and their respective supporters assert that children fare better with opposite-sex parents than with same-sex parents.

“When the social science evidence is exhaustively examined—which the ASA has done—the facts demonstrate that children fare just as well when raised by same-sex parents,” states the ASA amicus brief. “Unsubstantiated fears regarding same-sex child rearing do not overcome these facts and do not justify upholding DOMA and Proposition 8.”

Wendy Diane Manning, Professor of Sociology, Director of the Center for Family & Demographic Research, and Co-Director of the National Center for Family and Marriage Research at Bowling Green State University, led ASA’s examination of the social science evidence. Cleary Gottlieb Steen & Hamilton LLP of New York City served as counsel to the ASA on the brief.

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The American Sociological Association (www.asanet.org), founded in 1905, is a non-profit membership association dedicated to serving sociologists in their work, advancing sociology as a science and profession, and promoting the contributions to and use of sociology by society.