Don't Ask Don't Tell repeal is hanging by a thread. ENDA legislation has seemingly vanished forever into the event horizon of
a black hole the House Committee on Education and Labor. And there's virtually no prospect of progress this year on equal marriage rights in any of the 45 states that have not already legalized same-sex marriage.
Equal marriage rights was first won via state courts (MA, CT, CA, IA) and only later through representative democracy (VT, NH, ME, DC). It could be that history will repeat itself. The next big blows against discrimination may well be handed down by federal and state courts and not, as many were hoping and expecting, voted into law by an overwhelmingly Democratic Congress.
Below the cut, I list some of the important court cases currently being fought in the battle for equal rights, and discuss the DOMA and Proposition 8 challenges.
- A GLAD challenge to DOMA, Section 3 by same-sex married couples and widowers in Massachusetts and Connecticut
- Another DOMA challenge by the state of Massachusetts, brought by the state's Attorney General Martha Coakley on the basis of “states' rights”
- Court cases in Texas which will eventually decide whether gay couples married in other jurisdictions can divorce
- A challenge by the ACLU and others to New Jersey's civil unions law, claiming it has failed and demanding equal marriage rights
- Perry v Schwarzenegger, the Proposition 8 trial, challenging the constitutionality of California's amendment to prohibit same-sex marriage
- An appeal to various District court decisions in Washington D.C. that a referendum on equal marriage rights would violate the city's Human Rights Act, and thus is not allowable
- A case heard just days ago before the US Supreme Court from Washington State to decide whether signers of ballot initiatives have a right to not have their names and the information they provide on initiative petitions made public
- The Witt decision, theoretically imposing a higher standard on DADT dismissals in states that are part of the Ninth Circuit than elsewhere
- A Texas conundrum involving a transgendered individual who married a person of her current sex, but not his birth sex (got that?)
In my legally uninformed but otherwise staggeringly brilliant opinion, the cases with the greatest potential for far-reaching effects, and most likely to succeed, are those challenging DOMA, Section 3.
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the 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 a wife.
The GLAD case thus challenges the part of DOMA which denies federal benefits such as tax breaks and social security survivor benefits to validly married same-sex couples:
GLAD believes Section 3 of the law violates the federal government's promise of equal protection of the laws contained in the 5th Amendment of the United States Constitution. DOMA takes married couples and divides them into two groups — those who are respected and those who are effectively “unmarried” by operation of DOMA and are denied all federal legal protections and responsibilities. In GLAD's view, there is no adequate justification for the federal government's non-recognition of valid state marriages of same-sex couples.
DOMA Section 3 is also unprecedented because determinations of marital status are made by states and not the federal government. For the first time in our nation's history, this law requires the federal government to override a state's decision about who is married as to an entire class of marriages. DOMA Section 3 is a radical and unjustifiable departure from the division of power between the states and federal government.
Overall, DOMA Section 3 deprives tax-paying American families of the federally-created economic safety nets for married families, to the detriment of those couples and their children or other dependents. In addition, it creates a system of first and second class marriages, where some married persons receive all federal legal protections, but gay and lesbian married couples are denied them across the board, even while taking on the commitment and duties of their legal marriage vow.
Now imagine the case won and the Federal Government no longer the arbiter of who is married and who is not. It would be up to each state. Every gay couple that wanted to be married could now get 'federally' married by traveling to a state (or country) where gay marriage was legal and having the ceremony performed in that jurisdiction. With a marriage certificate in hand the federal government would have to treat such couples as married, even if the states they lived in did not.
Sure, it would still be a royal pain being married in the eyes of the Federal government and not in the eyes of the state where you lived. Lots of day-to-day issues are dealt with at a state level — such as hospital visitation rights, life-or-death medical decision making authority, and inheritance issues. But some real biggies — those with huge financial consequences — Federal tax status and social security benefits, will be established.
And just as important, once the Federal government has to recognize these marriages, the whole notion of a state not recognizing them will, I suspect, quickly become seen as ridiculous. Yes, there will be a some holdout states until the next stage of court challenges that finally recognize a constitutional right to marriage as in Loving vs. Virginia, but in the court of public opinion and with respect to social mores, the changeover should be swift.
My take is that this case and the other DOMA challenge, if victorious, have the like consequence of bringing down the whole societal edifice of discrimination against same-sex couples.
Unfortunately court cases take time. The GLAD case is only just starting. (In fact, it hasn't really started. The judge heard arguments a few days ago for summary judgement, but actual testimony hasn't begun.) And before it reaches the Supreme Court it will be years, quite possibly 2013 or later:.
Buseck said he thinks it's possible a decision could come down from a trial court in the summer, but more likely a ruling will be issued this fall.
Following the decision, Buseck said the case would likely go to the First Circuit Court of Appeals at the beginning of next year with a possible decision in Spring 2012. If the case were to go to the U.S. Supreme Court, it could go on the 2012 term and be decided in June 2013.
But if current DADT repeal and ENDA legislation doesn't make it through Congress this term, the November elections may derail any attempts at equal rights legislation until at least 2013 anyway.
What of the consequences of the Proposition 8 Trial? It's less likely to succeedin my opinion, but even if successful its effect may well be limited.
If the Supreme Court were to eventually strike down Proposition 8 because it was passed in animus (i.e., simply as a way to perpetrate hatred and discrimination against gay people, as the plaintiffs contend, along the lines of Romer vs. Evans) it would only affect California. With Proposition 8 voided, gay marriage would be legal once again in California, but while there would be reprecussions elsewhere, no other states would be directly affected and federal law would remain unchanged.
It is possible that the court would rule, as the plaintiffs demand in their complaint, that Proposition 8 “violates the Equal Protection Clauses of the Fourteenth Amendment”, and so, by implication, would any other state statute or amendment that forbids same-sex marriage. But such a broad ruling seems very unlikely given the current makeup of the Supreme Court, and that makeup is not likely to change for quite some time.
Just as we will are likely to get an initial decision in the DOMA cases soon, so to will we see a decision in the Prop 8 trial. Closing arguments will be heard in mid June, with a decision hopefully forthcoming before the end of the summer. And, again, followed by a long trip through the Court of Appeals on its way to the Supreme Court.
All of the cases listed above bear watching. Each of them will contribute, bit by bit, to eventual success in the battle for equality.
If this article proves popular, I will cover some of the others in detail in a second part.
Crossposted to Daily Kos, with a lively discussion.