Tag Archive for 'doma'

The Future of Same-Sex Marriage May Be up to the Supreme Court

The states have an enormous amount of leeway when it comes to marriage. On occasion, however, a state’s laws regarding marriage may be called into question, requiring a high authority to step in and offer a well-reasoned answer. For example, Virginia outlawed interracial marriages for many years, until someone challenged the law and eventually had it overturned in the landmark decision of Loving v. Virginia.

same-sex marriageAs coincidence would have it, Virginia has recently become the third state to ask the Supreme Court to weigh in on their gay marriage law. Joining Utah and Oklahoma, and undoubtedly more in the coming weeks, Virginia’s Attorney General is essentially asking the Supreme Court to answer one highly controversial question: do homosexual couples have a fundamental right to marriage?

The Supreme Court is under no obligation to hear any of the cases. Even if they do decide to weigh in, there is no real deadline facing the Court. Notwithstanding, the situation presents a daunting situation; nine unelected justices may ultimately be responsible for ending the most tumultuous debate in decades.

For proponents of gay rights, that may not be such a great thing.

Earlier this year, same-sex marriage made news when a California ballot initiative attempted to define marriage as between a man and a woman. Reviewed by the Supreme Court, the appeal was shot down on jurisdictional grounds. What that means is that the court never really, officially reached the merits of whether same-sex couples can marry, but rather simply said the people challenging it didn’t have a legal leg to stand on.

In another victory for supporters of same-sex marriage came about in 2013, when the same Court held the Defense of Marriage Act (DOMA), which defined marriage as between a man and a woman, is invalid, because the law offered no legitimate purpose that outweighed the discriminatory, damaging effect DOMA had on same-sex couples. The Court reasoned that “by seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.”

The initial inclination many may have is that the Court will make the same decision with respect to states. What makes this time different?

Unlike DOMA, which is a piece of congressional legislation, these laws are all unique to their respective state. As such, they are written differently, and may have provisions that could potentially satisfy the Court’s requirement for a legitimate purpose. Remember, DOMA was deemed to have no legitimate purpose, and, similar to bans on interracial marriage or same-sex marriage at a federal level, there also may not be any legitimate purpose of any of these states laws. However, and regardless of anyone’s personal beliefs, the devil is in the details with respect to statutory construction. With so many different state laws the Supreme Court will have to choose form, it’s possible they may make a ruling based on the best written – or most poorly written – law that appears before them.

Which leads to the next issue: variety. With the copious amount of appeals reaching the Supreme Court’s door, the justices will have the option of picking one (or potentially several) cases on which to base their ruling. While variety may be a good thing, as it ultimately gives the justices more freedom to pick the best case to support their legal reasoning, it’s also not such a great thing for that exact reason – if the Supreme Court wishes to limit the impact of the decision, they can. If they want the decision to have the broadest impact as possible, they can do that too.

So, for example, the Supreme Court may only decide on Virginia’s case based on the unique challenges Virginia is facing, and decline to hear the other cases. In doing so, they could indirectly have an impact on every same-sex couple, without actually ever having to reach a final decision on the merits.

Finally, justices are not keen on recognizing new rights. They may not necessarily have to with respect to gay marriage if they simply do not find a legitimate purpose in any of the state’s laws. What that does, however, is perpetuate and stretch out the same-sex marriage battle, making each challenge and each appeal it’s own little constitutional rule instead of one, overarching definitive rule. That will result in a patchwork of ideology, legal reasoning, and doctrinal law, and ultimately confuse the issue even further.

It is entirely possible none of this may happen. The court may decline to hear any case until there is more of split between circuits, and they may make another victory or offer a crushing defeat for same-sex marriages. As more states appeal, one thing becomes clear: they’ll have to do something, and whatever that something may be, it seems to have more potential to further promulgate and muddle same-sex rights than it does to clear things up.

What Same-Sex Marriage Could Mean for America’s Future

On Monday, a federal district judge struck down Oregon’s ban on same-sex marriage. A few states away, another federal judge ruled that Utah had to recognize over a thousand same-sex marriages that were certified before the Supreme Court halted the marriages. The next day, Pennsylvania followed Oregon and Utah in recognizing same-sex marriage. If the rulings stand, Oregon and Pennsylvania would be the 18th and 19th states to recognize same-sex marriages.

same-sex marriage americaAfter the Supreme Court struck down the Defense of Marriage Act (DOMA), the same-sex marriage bans began lining up like dominos. The rulings in Oregon and Pennsylvania are only the latest dominos to fall as a result of the Supreme Court’s decision. Opponents of same-sex marriage are preparing their fall-out bunkers, but I’m more concerned with the legal effects that arguments for same-sex marriage will have on the law.

1) The Possible Influence of Rogue Attorney Generals on Medical Marijuana, Immigration Reform, Etc.

Courts have played a strong role in the legalization of same-sex marriages, but that’s to be expected. Minorities often look to courts when defending their constitutional rights and courts have successfully championed minority rights in cases like Brown v. Board.

The government officials who are overstepping their role in same-sex marriage are not judges, but government lawyers. Oregon Attorney General Ellen Rosenblum and former California Attorney General Jerry Brown refused to defend their state’s marriage bans. During the DOMA case, federal Attorney General Eric Holder submitted a brief to the Supreme Court stating he agreed with same-sex couples who wanted DOMA overturned.

Same-sex marriage has created a world where voters and lawmakers are shut out of the courtroom by executive officials. The government attorneys who are suppose to defend the laws are refusing to do their jobs. As a result, California’s same-sex marriage ban was not heard by the Supreme Court and DOMA was overturned without any real opposition. Although the attorney generals may believe they are defending the Constitution, that’s for judges to decide.

If government lawyers refuse to defend the laws in court, no one else can defend the laws. This might be acceptable to liberals in same-sex marriage, but what about medical marijuana? What happens if government lawyers refuse to defend employee discrimination laws or immigration reform? Government lawyers who don’t do their jobs prevent judges from hearing both sides of a case. Although the government might lose anyway, the people who wanted those laws passed have a right to have their views represented.

2) How the Emphasis on Group Identity Could Affect Polygamy

Same-sex marriage is following the footsteps of the Civil Rights Movement. The arguments have focused on a group (race and sexual orientation) that has been treated differently by the government and the group seeks protection of the laws.

Over the next few years, Republican Christians will push for a group identity of their own. Opposition to same-sex marriage and Obamacare already focuses on how conservative Christians are being deprived of their rights. Although the religious arguments focus on free speech and exercise of religion right now, the success of same-sex marriage may cause Republican Christians to shift towards a more group focused argument. Of course, Christianity by itself cannot be protected like that, so religious employers in general may find themselves with stronger legal rights than before.

One interesting offshoot of the tension between sexual orientation and religion will be polygamy. Fundamentalist Mormons can draw on arguments from both same-sex marriage and religion to decriminalize polygamy. Politically, we may soon see religious conservatives and same-sex rights advocates work together to stop a possible push for polygamy.

DOMA Being Fought on One More Front: Veterans’ Court of Appeals

It seems that LGBT rights in the United States are advancing at a moderate but steady pace. Recently, New York legalized same-sex marriage, becoming the largest state to have done so, and one of the few to have done so through legislation, as opposed to court order. Even more significantly, it passed the State Senate, which had a Republican majority, which is another first.

Also, the repeal of the military’s “don’t ask, don’t tell” policy has taken full effect, and gays and lesbians are now free to serve in the military openly. It’s predicted by many people that this change alone will have a huge impact on advancing the cause of LGBT equality. First of all, by serving openly in the military, a huge swath of society will personally interact with gay men and lesbians, hopefully learning that they are no different from anyone else.

More importantly, however, allowing gays and lesbians to serve openly in the military will also thrust the inequalities they still face into broad daylight. There are many rights and benefits that the spouses of military personnel enjoy, such as on-base housing, health benefits, and others.

However, under the federal “Defense of Marriage Act” (DOMA), same-sex marriage is not recognized by the federal government, or any organ of it (including the military). This has led to a few veterans with same-sex partners suing the Department of Veterans’ affairs, arguing that their same-sex spouses should be entitled to the same benefits as any other military spouse.

Now that gays and lesbians can openly serve in the military, challenges like this are likely to increase in frequency and intensity, and it’s almost guaranteed that DOMA is going to go to the Supreme Court, which will have to rule on its constitutionality.

Now, the Supreme Court could easily hold DOMA to be unconstitutional without finding a constitutional right to same-sex marriage. This is because the federal government has typically deferred to the states on the issue of marriage – the federal government doesn’t perform marriages, individual states do, and the federal government recognizes any marriage that’s valid under the laws of any state. However, DOMA creates a major exception to that rule, barring the federal government from recognizing any same-sex marriage, even if it was performed by a state that allows such marriages.

So, it seems fairly likely that the Supreme Court will hold DOMA unconstitutional to the extent that it bars the federal government from recognizing same-sex marriages that are valid under state law. It doesn’t automatically follow from this that every state would be constitutionally-required to recognize same-sex marriage. Personally, I think it’s highly unlikely that the Supreme Court will find a right to same-sex marriage any time soon. But, I think it’s much more likely that they will overturn DOMA on equal protection grounds, requiring the federal government to recognize same-sex marriages performed under the laws of a U.S. state.

And, frankly, I think such a ruling cannot come soon enough. Now that the law acknowledges what most people have known for years – that gay men and women are just as capable of serving honorably in the military as anyone else – it seems ludicrous that another law would then deny them the legal and financial benefits enjoyed by every other soldier.

Although the current Supreme Court has tended to be very conservative on economic issues, it has actually been fairly progressive on social issues, including gay rights. This means that, for supporters of marriage equality, there is reason for hope.

Currently, however, same-sex marriage remains in a state of legal limbo. There is a patchwork of state laws on the issue of same-sex relationships. Some states provide full marriage rights to same-sex couples. Others (most, in fact) don’t provide any recognition for same-sex partnerships. Some provide alternative arrangements to marriage for same-sex couples, which provide most or all of the rights of marriage, but go under a different name.

However, under DOMA, the federal government does not recognize same-sex marriage. You would think that this isn’t much of a problem, since family law is traditionally the province of the states. But, there are thousands of federal rights and benefits that are associated with marriage, including the right to jointly file federal income taxes, spousal benefits for federal employees, and veterans’ benefits. This creates an incredibly confusing situation. And while the repeal or invalidation of DOMA would not create marriage equality across the country overnight, it would go a long way toward clarifying the legal situation of same-sex couples, and promoting equality.

New York on The Verge of Legalizing Same-Sex Marriage

It appear­s that New York’s legislature is on the verge of legalizing same-sex marriage. A vote on the issue may come as early as this week. So far, 30 state senators have confirmed that they will vote for the measure, which needs 32 votes to pass. Several state senators remain undecided, or have not made public how they intend to vote, so it seems pretty likely that at least two of them will land on the side of same-sex marriage.

If this happens, New York will become the sixth state, plus the District of Colombia, to legalize same-sex marriage. It will also be, by far, the most populous state in the U.S. to allow same-sex marriage (excluding California, which allowed same-sex marriage for several months, but no longer does). Currently, same-sex marriage is allowed in New Hampshire, Vermont, Massachusetts, Iowa, Connecticut, and the District of Colombia.

New York City Mayor Michael Bloomberg, a Republican, has been an outspoken supporter of same-sex marriage for a few years now. He has even offered to endorse any Republican member of the state legislature who votes to legalize same-sex marriage, regardless of their stance on any other issue. State governor Andrew Cuomo is also a strong supporter of same-sex marriage, and has pledged to sign the bill into law, if it passes.

As things stand now, it looks like same-sex marriage in New York is pretty much a sure thing (well, as sure as a thing can be in politics). I’ve made my personal views on same-sex marriage known in the past: I am 100% in favor of marriage equality. I’m also convinced that the tide is gradually turning in favor of same-sex marriage in the United States. A recent nationwide poll shows that a majority of Americans support allowing same-sex couples to get married.

Of course, it’s going to be a long time before same-sex marriage is legal everywhere in the U.S. This is because the United States has a strong tradition of federalism, meaning that individual states retain a good deal of sovereignty, while surrendering only limited powers (such as the power to coin money, conduct foreign relations, regulate commerce between the states, among others) to the federal government. In the U.S., virtually all aspects of family law, including the decision to recognize same-sex marriage, are relegated to the individual states. For that reason, it’s likely that there will be a patchwork of laws on the subject for the foreseeable future.

Furthermore, even if every state in the Union were to legalize same-sex marriage, there is a federal law that prohibits the federal government from recognizing same-sex marriages, or offering spousal benefits to the same-sex spouses of federal employees.

In 1996, Congress passed, and President Clinton signed, the Defense of Marriage Act (DOMA). It prohibits all federal agencies from recognizing same-sex marriages, even if they’re performed in states that do recognize them. Because the federal government does not actually perform marriages, it has typically deferred to the states on the matter: if a marriage is valid under state law, it is valid under federal law. DOMA creates a major exception to this general policy.

There are many, many different federal rights and benefits that are affected by marriage, including spousal benefits for federal employees (health insurance being a big one), the right of married couples to jointly file federal income taxes, and many others. Currently, every one of these benefits is unavailable to same-sex couples, even if they are married under the laws of their state.

Until this law is repealed, or held unconstitutional by a federal court, it’s unlikely that same-sex couples in the U.S. will get full marriage rights, on par in every way with the rights and benefits afforded to opposite-sex couples.

However, with the tide turning in favor of marriage equality, it’s becoming increasingly clear that marriage equality is now a matter of “when,” not “if.”

DOMA and California’s Proposition 8 (which banned same-sex marriage in that state) are both being challenged in federal courts. The government of California has declined to defend Proposition 8 in court, and the Obama Administration is refusing to defend DOMA in court.

Furthermore, with the repeal of the military’s “don’t ask, don’t tell” policy, social acceptance of gays and lesbians (along with support for equal rights for them) will only increase.

Marriage equality in the United States may be a way off, but I’m confident that’s it’s inevitable.