The Gays Are Coming To Take Your Guns: Rational Inquiry Into Prop 8 And DOMA
“We are not endeavoring to chain the future, but to free the present. We are not forging fetters for our children, but we are breaking those our fathers made for us. We are the advocates of inquiry, of investigation and thought. This, of itself, is an admission that we are not perfectly satisfied with all our conclusions.” – Robert Ingersoll
FEAR AND FAIRNESS
As fallible human beings, we are typically guided by either fear or fairness.
Fairness is an inherently American concept that has animated and defined our country from inception. We care deeply about fundamental fairness. And what is it, really, but the demand to be treated equally; to be given the same opportunities to succeed or to fail in life, just as the next guy, regardless of race, color, creed, national origin, and yes, sexual orientation.
We want a fair shake. Fair play. A fair deal. We want these things for our family, friends and neighbors. Fairness is distinctly us. We maintain this sense where other cultures and countries do not. Ugandans, or Syrians, by way of example, do not have a sense of what is fair, mostly because they live “unfair” lives.
Unfairness, which Americans do not suffer gladly, inevitably leads to a tipping point.
But to get there, we must overcome our fears. Fear of the unknown. Fear of those different from our own selves. Fear of the minority. The unholy. Fear of death, taxes and Barack Obama.
We are a better country when we are fair. And an inferior one when we are not, when we live with lies or hypocrisy or grave injustices – see, recently, Iraq, Too Big To Fail, Lance Armstrong, Gitmo, Bernie Madoff.
When fear and fairness collide, it means that some great change has happened, or, is about to happen. It means that rational thought has prevailed.
For too long, the United States has been a follower where equality in marriage is concerned. We are beginning to look a little emperor-has-no-clothes(ish). The greatest nation on the planet cannot preserve that label if it continues to cast an entire segment of its people into Outer Darkness; if it continues to ignore the great Document upon which it was founded.
It is not good enough to ask of gays and lesbians to be satisfied, contented with civil unions or domestic partnerships. Domestic partnerships, in California, for example, may be the most expansive and inclusive laws on the books where same sex couples are concerned – with every “right, protection and responsibility” of marriage. Except, rights and responsibilities do not equal respect, dignity, social acceptance or self-worth. I doubt there is any proposal on record that goes a little something like “Will you civil union me?” How romantic. The word itself – marriage – carries with it the notion that two individuals are eternally joined. Committed. It means that they have what their neighbors have. What their parents have (or had). Marriage. Not just a “piece of paper”.
Heading into this week’s historic marriage hearings, it is vitally important that we understand: no new right, nor “special” one, is being sought for gays and lesbians so that they may marry. In his District Court ruling invalidating Prop 8, Judge Vaughn Walker wrote, “Plaintiffs are not seeking recognition of a new right, but access to the fundamental right to marry constitutionally guaranteed to all persons.”
From Respondents’ brief in The Supreme Court: “In more than a dozen cases over the last century, this Court has reaffirmed that the right to marry is ‘one of the liberties protected by the Due Process Clause’, ‘essential to the orderly pursuit of happiness by free men’, and ‘sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect’.” See, Loving v. Virginia (1967), M.L.B. v. S.L.J. (1996).
THE FUNDAMENTAL QUESTION
There is a central issue in both the Prop 8 and DOMA cases to be heard before the Supreme Court this week. That is, is there any legitimate government interest to be advanced in treating gay and lesbian citizens with disfavor by denying them the fundamental and constitutionally-guaranteed right to marry?
You will hear a lot of talk about what type of “scrutiny” the courts should apply to this class, or group, of people as it relates to the laws in question – “heightened”, “strict” or merely a “rational basis” – and whether some of the parties in each case have the “standing” to be there in the first place. This is all really nothing but background noise. What is, or should be at stake – in both cases – are the equal protection and due process guarantees of the Fifth Amendment (for Federal law), and the Fourteenth Amendment (State and Local law) to the United States Constitution.
From the Fifth Amendment:
“No person shall be deprived of life, liberty, or property, without due process of law”.
From the Fourteenth Amendment:
“No State shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”.
HOW WE STACK UP
These nations currently sanction full marriage equality (not civil unions or domestic partnerships – full and equal treatment under the law for all citizens): Argentina, Belgium, Canada, Denmark, Iceland, the Netherlands, Norway, Portugal, Spain, South Africa and Sweden.
Same-sex marriages in limited jurisdictions, states or municipalities: Brazil, Mexico and the United States (Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, and Washington and the District of Columbia).
Marriage equality currently pending or proposed: Andorra, Colombia, Finland, France, Germany, Luxembourg, Nepal, New Zealand, Taiwan, the United Kingdom and Uruguay.
THE ROAD TO SCOTUS
PROP 8: The case of California’s Proposition 8 ban on gay marriages, Hollingsworth v. Perry, is set for oral argument at 10AM on Tuesday, March 26th.
California has a very complicated and unique history with regard to same sex marriage. In 2000, voters approved Proposition 22, which states that only a marriage between a man and a woman is valid or recognized in California. In May, 2008, the California Supreme Court struck down Proposition 22, stating that it violated the equal protection clause of the State Constitution.
Prior to the 2008 ruling, in 2004, the charismatic Mayor of San Francisco, Gavin Newsom (now California’s Lieutenant Governor), ordered his City Hall to begin issuing marriage licenses to same-sex couples. Democrats, in particular, went bananas. It was an election year, after all. “Too much, too soon!” Post-election, Dems even had the temerity to blame Newsom for John Kerry’s incomprehensible loss to George W. Bush, citing the promotion of a divisive and unnecessary “wedge” issue. This faux outrage was a little like telling marchers in Selma in the 60’s: “well, slow down now – how about we do drinking fountains this year and save the buses for a few years down the road”.
Among the chief vocalists of displeasure with Newsom’s Bay Area Rabblerousing were Dianne Feinstein (Dianne Feinstein!) and Barney Frank (Barney Frank!). Wedding ceremonies were performed (totaling 4,000 marriages), with couples driving in from all over the country to get licenses. The California Supreme Court eventually ordered them stopped, and, voided all licenses.
Several lawsuits resulted, consolidated and known as In Re Marriage Cases, and, in 2005, San Francisco County Superior Court trial judge Richard Kramer deemed California’s 2000 ban (Proposition 22) unconstitutional. The In Re Marriage Cases wound their way to the California Supreme Court, where, in 2008, marriage was “found to be a fundamental right that may not be denied based on sexual orientation”. The relevant laws were struck down. Approximately one month after the ruling, marriage became legal for all in California.
In response, out of state groups comprised mostly of religious organizations like the Mormon and Catholic churches, and known right-wing hate groups such as Focus on the Family and National Organization for Marriage, launched a massive, 40 million dollar-plus fear campaign to amend California’s Constitution and ban same-sex marriages. This organized and filthy rich movement became known as the Proposition 8 ballot measure.
On November 4, 2008, on the same night that Barack Obama’s inspiring and hopeful campaign saw its fruition, Californians watched in dismay as Proposition 8, in their very blue state, passed by a margin of 52.5% to 47.5%, simultaneously changing the State Constitution and altering the playing field for nationwide ballot measures. Between June 17, 2008 and election night, 18,000 gay and lesbian couples were (and remain) legally married under California law prior to Proposition 8 going into effect as of November 5, 2008.
A challenge to Proposition 8’s validity was made, premised solely upon State law, and lead to a ruling by the State Supreme Court in May, 2009, this time upholding the measure based on the oddities of California’s very generous Constitutional amendment-by-ballot-box process run amok (over 500 Amendments to California’s state constitution have been instituted in this way). The Court, however, refused to invalidate the marriages that had occurred between June and November of 2008. The decision was not based on, and did not raise, any Federal constitutional questions.
At the same time, and shortly before the ruling on Proposition 8, a lesbian couple, Kristin Perry and Sandra Stier of Berkeley, and a gay couple, Jeffrey Zarrillo and Paul Katami of Burbank, who had all been denied marriage licenses because of Proposition 8, filed a Federal constitutional challenge to the ballot measure. It is worth noting, for those possibly unaware, that this is where attorneys David Boies and Ted Olson made an unprecedented alliance, agreeing to step into the fray with the aid of the American Foundation for Equal Rights (AFER). If Americans know only a handful of lawyers as household names, Boies and Olson would be two of them. Boies (a Democrat) and Olson (a Republican) were the front-men for their respective parties in the Bush v. Gore (2000) battle. Though Olson came out on top in that decision, their united front in the Prop 8 case brought instant national cred and has proved to be a game changer.
Arnold Schwarzenegger, then-Governor, and Jerry Brown, then-California Attorney General, refused to defend Prop 8 in Court, so proponents of the ballot measure sought and were granted leave to intervene as Defendants (referred to hereafter as “Proponents”). The County and City of San Francisco also intervened as an additional Plaintiff.
In August 2010, after a 12-day exhaustive bench trial with over 20 expert and non-expert witnesses, including historians, sociologists, psychologists, anthropologists, the Plaintiffs and others directly impacted by Proposition 8, and in a comprehensive written decision enumerating over 80 findings of fact, each one supported by unimpeachable evidence, U.S. District Judge Vaughn R. Walker struck down the provision, finding that it violated the United States Constitution’s guarantees of equal protection and due process.
In sum, Judge Walker concluded that his ruling did not create a new and free-standing right of same-sex marriage, as argued by the Proponents. Rather, he ruled that the existing institution of civil marriage had to be equally available, and could not be denied on the basis of sexual identity or orientation alone.
Judge Walker also concluded that the Proponents, having given up their primary ballot measure argument that same-sex marriage is harmful to children and to society in general – indeed, Proponents’ own experts could not articulate any cognizable “harm”, and, in fact, testified that, where children of same-sex couples were concerned, marriage helped to promote family stability and was better for the health and well-being of the children in the long run. Proponents were left with the hallow argument that somehow marriages between heterosexuals were just “better” than those between couples of the same sex. The following is taken directly from Judge Walker’s ruling:
“In the absence of a rational basis, what remains of Proponents’ case is an inference….that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples.”
The measure’s sponsors appealed Judge Walker’s decision to the Ninth Circuit Court of Appeals, leading to a divided decision in February of 2012, striking down Proposition 8. The Ninth Circuit did not, however, rule on whether same-sex couples had to be given equal marriage rights, since the California situation was uniquely one in which those couples had once been allowed to marry, and then had that right taken away — partly out of a moral or religious based disapproval of homosexuality. A considerably narrower decision than that of Judge Walker, the Ninth Circuit ruling cited the 1996 Supreme Court decision Romer v. Evans, which struck down a Colorado state constitutional amendment taking away from gays and lesbians any chance to obtain state or local laws to protect them from discrimination based on their sexual orientation. The decision of the Ninth Circuit is stayed, on hold, pending a ruling from the Supreme Court. In the meantime, gay and lesbian couples in California do not have the right to marry.
Throughout the course of the legal battle since Prop 8 passed, “evidence” presented by Proponents has simply failed to stand up upon examination. In fact, Proponents’ key expert witness during trial – the sole witness to testify as to a “rational basis” for Proposition 8 –announced in June of last year his support for marriage equality. David Blankenhorn, star expert for the Proposition 8 backers, penned an op/ed in The New York Times on June 22, 2012: “How My View On Gay Marriage Changed”.
When your own experts and witnesses abandon you, what’s left are basically the Brian Browns (National Organization For Marriage) and Tony Perkins’ (Family Research Council) of the world, who hold but one card; that is, the fear of their flocks. They’re coming for your children. These hate groups bank on the absence of rational thought from any difficult or hot button discussion. The NRA and gun manufacturers and lobbying groups, on parallel, deal in the same cynical and predatory way with their members and supporters. Imagine if they pooled their ignorance and fear-mongering (not to say that they are not): The gays are coming to take your guns.
Upwards of three dozen of these groups – like NOM and FRC – and including the Catholic Church Conference of Bishops – filed amicus briefs in support of Proposition 8 in advance of Tuesday’s hearing. Nothing much new: same-sex marriage would destroy the institution of “traditional” marriage; it would jeopardize our nation and the next generation of children. The very purpose of marriage — perpetuating the human race through childbearing — requires that marriage be reserved for those capable of natural procreation.
I have always thought the best retort to this archaic logic is: well, if procreation is the sole purpose of marriage, and if homosexuals are ruining marriage, then perhaps heterosexual couples could stop having gay babies? But seriously…..
What about childless couples or couples that choose not to have children? Hmmmph.
All amicus briefs filed can be found here. It’s at least worth a look to see if a group you may be affiliated with weighed in. Trust me, you’ll be surprised.
DOMA: The Federal Defense of Marriage Act (“DOMA”) case, United States v. Windsor, is set for a hearing at 10AM on Wednesday, March 27th.
The DOMA cases are much easier to distill down, yet no less tragic in their unfairness and consequences.
In 1993, the Hawaii State Supreme Court struck down a voter referendum prohibiting same-sex marriage as discriminatory. The religious right, convinced that Gaypocalypse was near, turned up their organized coalition of fear and zealotry, and, the race was on to amend the U.S. Constitution to forever ban same-sex marriage.
The end-result was the Defense of Marriage Act.
William Jefferson Clinton, in one of the most shameful acts by a U.S. President (let us not forget, he was also responsible for Don’t Ask, Don’t Tell), signed DOMA into law in 1996. It enshrined LGBT discrimination into law, on a Federal level.
According to Mr. Clinton’s recent Washington Post op/ed about-face, he did so as the theoretical lesser of two evils, given the then-political climate in Washington and the threat by numerous states to enact their own nearly-impossible to overturn constitutional barriers to “gay marriage”. There are numerous DOMA petitions pending from various district courts, but presumably a decision, if on the merits, in the Windsor case, will decide them all.
Edith Windsor first met her now deceased spouse, Dr. Thea Clara Spyer, in 1963. Over the course of more than four decades, Ms. Windsor and Dr. Spyer built a life together, settling down in New York, where they purchased a home on Long Island to spend their summers and maintained an apartment in Manhattan, each supporting one another’s career and caring for each other in sickness and through the difficult times every couple encounters. In 1977, Dr. Spyer was diagnosed with progressive, degenerative multiple scleroses – a chronic and debilitating disease that eventually leads to neurological damage and paralysis. As Dr. Spyer’s condition worsened, moving her from a cane to crutches to a wheelchair – Ms. Windsor never wavered in her commitment and, in fact, the couple seized the first opportunity to have their relationship recognized by the State of New York when, in 1993, they became the 80th couple to register as domestic partners in that states. In 2007, at the ages of seventy-seven and seventy-five, they were married in Canada, spending the last two years of Dr. Spyer’s life as a married couple. Their marriage was accorded the same respect by the State of New York as any other legally performed union from any other state. Upon her death, Dr. Spyer provided for her spouse in her will and made Ms. Windsor the executor of her estate. Dr. Spyer’s estate would normally have qualified for an unlimited marital exemption from Federal Estate Tax, but, here is where the legal tragedy really takes off and DOMA steps in.
Specifically, Section III of that law, which states:
“In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of various administrative bureaus and agencies of the United States, the word marriage means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or wife.”
Ms. Windsor was required, under Section III of DOMA, to pay a Federal estate tax of $363,053 (yet to be refunded) after inheriting property when her same-sex spouse died, and, Ms. Windsor was denied any and all Social Security death or survivor benefits, even though in each and every other respect she qualified as Dr. Spyer’s surviving spouse. See Windsor Brief here, Appendix A “Social Security Administration Notice of Reconsideration”.
Ms. Windsor successfully challenged the constitutionality of DOMA under the equal protection component of the Fifth Amendment first in the New York District Court and then the Second Circuit Court of Appeals. Section III of DOMA is at issue in all the petitions before the Supreme Court. It applies to more than 1,000 federal benefits routinely provided married couples of the same-sex – even incarcerated couples denied conjugal visits are not excluded. Just gay men and lesbians.
The constitutionality of DOMA’s ban on federal benefits for legally married same-sex couples is only part of what the Court is expected to hear. When the Court granted review of the government appeal in the Windsor case, it asked the parties to submit arguments on whether the Court has jurisdiction over an appeal by the government, when the government view prevailed in lower courts, and whether the House’s GOP leaders, via the Bipartisan Legal Advisory Group (also known as “BLAG”) have “standing”, or, the legal right to appeal, in the case. Indeed, a potentially fatal blow to any sweeping constitutional ruling on DOMA occurred with the January 24, 2013 filing of the brief by Court appointed amicus (literally, “friend of the Court”), Harvard Law Professor, Vickie Jackson. Ms. Jackson argues in her brief that the Supreme Court has no jurisdiction to hear the DOMA challenge from the Obama Administration – which abruptly reversed course in 2012 and stopped defending the law in the lower courts – and that the House Republicans lack standing. Ms. Jackson supports her arguments with quotes from a 1993 law review article by now Chief Justice John Roberts, entitled “Article III Limits on Statutory Standing”, which is a particularly troubling sign for those of us who would like to see a sweeping ruling declaring DOMA unconstitutional.
Recent polls suggest an about-face in public acceptance of and support for marriage equality both since DOMA was signed into law, and, since Proposition 8 passed. Same-sex marriage has gone from a wedge issue feared by even progressive-minded Democrats to commanding a plurality of support nationally. In California, a February 2013 poll indicated a voter approval for marriage equality by a 2-1 margin (61% approve, 32% disapprove). The most recent national poll, released a mere week ago and conducted by The Washington Post and ABC, shows support for same-sex marriage at 58%.
Stay with The Progressive Press for a Thursday re-cap of what actually happened in the Prop 8 and DOMA hearings this week. We’ll link to audio and hard transcripts and will do a little reading of the tea leaves to give a sense of where we believe the Court could be headed with their rulings. If you just can’t wait and would like a primer on the possibilities now, The New York Times published a great chart on Sunday discussing “How The Court Could Rule”. You may view it here.
EQUALITY: WORDS TO REMEMBER
“To accept your country without betraying it, you must love it for that which shows what it might become. America – this monument to the genius of ordinary men and women, this place where hope becomes capacity, this long, halting turn of the ‘no’ into the ‘yes’ – needs citizens who love it enough to re-imagine and remake it”. – Dr. Cornell West
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