Why ‘Gay Marriage’ Is Dead but the Battle Just Became Much Bigger
“Gay marriage,” as a term, is dead, and we should all stop using it. Ditto for “same-sex marriage.” As of Friday, June 26, with the majority decision in Obergefell v. Hodges, the Supreme Court ruled that marriage is a right for all Americans and there aren’t two different kinds. Generations will grow up calling marriage, whether between two men, two women or a man and a woman, the same thing: marriage. That’s a great and amazing effect of the ruling, and the implications are enormous for young people, who won’t see any delineation in the future.
But this is also where things get very complicated and even dangerous, and where we have to pay attention more than ever. When anti-equality conservatives can’t blatantly use bigotry or even name a group they’re targeting because of a profound cultural shift in favor of acceptance, they resort to the dog whistle. And we’ve seen this time and again around issues of race and gender as voting rights, affirmative action, and pay equity are attacked using coded language, while the more naked bigotry still plays out on the streets in the form of violence that coded language and symbols often still embolden.
“Religious liberty” is one term we’ve seen enemies of equality trotting out as code for the supposed threat of LGBT rights. I watched them testing it out over the past several years at gatherings like the Conservative Political Action Conference and the Values Voters Summit. It will be a mantra moving forward, and they’ll surely come up with more.
I’ve seen too many self-assured articles in recent days claiming that the battles over abortion rights and even gun rights can’t be compared to the battle over gay marriage in discussing how things will proceed. Marriage as a right for gays, these arguments contend, will end as a debate, because opponents can’t claim that a right of another is infringed upon by it, or that there’s any harm to anyone else, as they do with abortion (pointing to the fetus or the woman herself) or gun rights (pointing to gun owners).
But I’ve found these arguments to be naïve and, more so, apples-and-oranges comparisons, particularly when they imply that the battle over LGBT rights and acceptance itself is finished while the battle over women’s rights continues. Yes, marriage as a right itself cannot be chipped away at or restricted in the way abortion has been. That’s true even though we’re seeing judges and clerks resisting marriage equality in these first days after the ruling. Every couple — gay, lesbian, bisexual or straight — must be able to marry after the high court’s ruling, and this will work its way out. States and localities that have resisted are already falling in line.
But just because gays and lesbians have the right to marry, does that mean that a particular county clerk or judge must perform it if it offends his or her religious convictions, and if that couple could go to some other clerk who would officiate over their wedding? A few weeks ago North Carolina legislators said “no” and passed a billoverriding the governor’s veto, allowing public officials to opt out of performing certain marriages based on their religious beliefs. The law doesn’t mention gays or gay marriage, but it allows discrimination based on “sincerely held religious objection.” Sure, this can’t apply to federally and state-protected groups, such as people of certain faiths or races, but LGBT people are not a protected group, federally or in the state of North Carolina, so the question is open. On the same day Michigan’s GOP governor signed a law allowing state-funded adoption agencies to turn away gay couples — who now have the right to marry in the state — based on the agencies’ religious beliefs. Again, the law doesn’t name gays and lesbians as a group, but clearly it was meant to apply to them, especially since it can’t apply to other protected groups, and gays and lesbians aren’t protected in Michigan.
And how do gays and lesbians actually get those protections in the 29 states where they don’t have them, even in pro-gay localities in those states where they might find support, since there are no federal protections? Well, Arkansas, for one, made that pretty difficult, passing a law last spring that anti-gay forces saw as a model, a law that doesn’t allow cities or towns to pass anti-discrimination ordinances protecting any group that doesn’t already have statewide protections. Again, the law doesn’t single out gays as a group; it uses wording that could allow it to stand up in court. These are the ways that anti-gay conservatives will continue to attempt to inhibit or restrict LGBT rights. And I’m sure they’re crafting others right now.
Justice Kennedy’s powerfully written majority decision in Obergefell, like those decisions he’s written in the past that support gay rights, doesn’t make it clear just how far-reaching the marriage decision is with regard to other rights, even as it talks much about dignity and equal protection under the law. As constitutional scholar Adam Winkler and others have noted, the court did not use “heightened scrutiny,” the highest standard with regard to discrimination, in its decision, though doing so would have done much to insure that cases that seek to sanction anti-LGBT discrimination aren’t even brought to court. Kennedy’s decision will likely be interpreted in a variety of ways by lower court judges, including those who want to allow for discrimination in the name of “religious liberty.”
The Hobby Lobby decision, which Kennedy joined, should give us all pause, as the court is far from abandoning the notion that discrimination based on religion is allowable. As Paul Waldman noted, Kennedy, in his marriage equality decision, referenced religious liberty, again with words that are open to interpretation:
[I]t must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.
That means the rights of gay, lesbian, bisexual and transgender people beyond marriage will continue to be fought in the courts — including back at the Supreme Court, where we hope Justice Kennedy, if he hasn’t been replaced by a more conservative justice appointed by a Republican president, will be clearer on the issue, and in the state legislatures and Congress.
And we’ve got to stop the apples-and-oranges comparisons between abortion rights and LGBT rights. Abortion is just one among many rights that women have obtained, but one that is and has been in contention for a long time, as is pay equity, rape culture and others. But issues like suffrage or anti-discrimination protections for women are not. It’s unlikely that we’ll see any attempt to take away the vote for women anytime soon, just as it’s unlikely that marriage equality will ever go away now that it’s here. The fact is that women and minorities have secured some rights that are here to stay — different for each group — while other rights are still elusive or being stripped away. There is always a backlash to equality, and it could last a very long time, as bigotry doesn’t die easily. Like every group, LGBT people have to remain vigilant.
Michelangelo Signorile’s new book, It’s Not Over: Getting Beyond Tolerance, Defeating Homophobia, and Winning True Equality, is published by Houghton Mifflin Harcourt.
Source: The Huffington Post Blog, “Why ‘Gay Marriage’ Is Dead but the Battle Just Became Much Bigger,” by Michelangelo Signorile, Gay Voices Editor-at-Large, Posted: 07/07/2015 12:47 pm EDT | Updated: 2 hours ago
High court to hear gay marriage cases in April
WASHINGTON (AP) – Setting the stage for a potentially historic ruling, the Supreme Court says it will decide whether same-sex couples nationwide have a right to marry under the Constitution.
The justices said Friday they will review an appellate ruling that upheld bans on same-sex unions in four states.
The case will be argued in April and a decision is expected by late June.
Kentucky, Michigan, Ohio and Tennessee are among the 14 states where gay and lesbian couples are not allowed to marry.
The number of states that permit same-sex marriage has nearly doubled in three months as a result of federal and state court rulings. The justices’ decision last October to turn away same-sex marriage appeals allowed some of those rulings to take effect. Florida last week became the 36th state to issue marriage licenses to same-sex couples.
The court is extending the time it usually allots for argument from an hour to two-and-a-half hours. The justices will consider two related questions. The first is whether the Constitution requires states to issue marriage licenses to same-sex couples. The other is whether states must recognize same-sex marriages performed elsewhere.
The appeals before the court come from gay and lesbian plaintiffs in Kentucky, Michigan, Ohio and Tennessee. The federal appeals court that oversees those four states upheld their same-sex marriage bans in November, reversing pro-gay rights rulings of federal judges in all four states.
Ten other states also prohibit such unions. In Arkansas, Mississippi, Missouri, South Dakota and Texas, judges have struck down anti-gay marriage laws, but they remain in effect pending appeals. In Missouri, same-sex couples can marry in St. Louis and Kansas City only.
Louisiana is the only other state that has seen its gay marriage ban upheld by a federal judge. There have been no rulings on lawsuits in Alabama, Georgia, Nebraska and North Dakota.
Source: The Associated Press (AP), “High court to hear gay marriage cases in April,” by Mark Sherman,Jan 16 2015
Winning the battle | Local gay couples tie knot after long wait for equality
Marriage equality has been decades in the making for local same-sex couples, but when it came to Colorado in October, they met the news with surprise and excitement.
The U.S. Supreme Court declined to hear appeals on same-sex marriage bans in five states Oct. 6, opening the door to gay marriage in Colorado.
Across the country, the scales seem to be tipping in favor of marriage equality. Same-sex marriage is legal in more than 30 states with judges striking down bans in Mississippi and Arkansas at the end of November.
In Texas, the county clerk for the San Antonio area said he was ready to start issuing licenses Wednesday, pending a decision by the judge for the western district of the state, according to the San Antonio Express-News.
The national trend toward equality for gay couples is one locals appreciate.
“I think we’re winning the battle little by little,” said Patrick Valentine, who legally married his partner Oct. 8.
In May 2013, civil unions for same-sex couples became legal across Colorado.
“It was a step up, and it was good. It was not the same as getting married,” said Chris Gonzalez, who married her partner of 16 years in October.
Gonzalez and her wife, Nancy Fritz, went to the La Plata County Clerk & Recorder’s Office to get the paperwork for their marriage license Oct. 22. But when they entered the building, they got so excited at the prospect of finally being married that they signed the paperwork on the spot. It felt like a miracle, they said.
“We didn’t think we would ever see it,” Fritz said.
Durango residents Anita Blanchard and Diane McMullin said they have been married in their hearts for 21 years and signed the legal paperwork Oct. 9 to make it official in the eyes of the state. After decades of commitment, they were happy to have the same legal protections as straight couples.
“It has been a hard road when you look back on it,” McMullin said.
She realized that she was different as a child and later feared being kicked out of a rental home or losing her job because of her orientation.
It wasn’t until 1991, when she was in her early 50s, that she felt truly comfortable being open with everyone about her orientation.
“That’s a long time to hide something,” McMullin said.
The next year, she fought a state constitutional amendment, which would have prevented people in the lesbian, gay, bisexual and transgender community from claiming they were discriminated against, among other things.
Blanchard and McMullin said they were heartened when the amendment failed in La Plata County. The law passed statewide, but was later blocked by the courts.
They have long felt at home here. Even in the 1970s, Blanchard felt as though she had found allies in Durango.
Other local couples had very different personal journeys. Gonzalez and Fritz realized that they were gay after failed marriages.
For Gonzalez, it was simple.
“I would never marry a man again,” she said.
Fritz had an epiphany at a Parents, Families and Friends of Lesbians and Gays meeting. She decided to go after her daughter came out as a lesbian. Sitting there seeing a loving lesbian couple, something changed within her.
Two years later, she met Gonzalez, and the connection seemed natural.
“We understand each other better because we’re both women,” she said.
Valentine, who has been with his husband, Lawrence Broadway, for 15 years, had a similar experience. Until he was 50, he tried to live what he thought was an upstanding heterosexual life and worked at a major corporation.
“There was no place to come out without being ostracized,” he said.
When he came out, he found life far more refreshing. Now, years later, he sees the country shifting toward enshrining full equality.
“It’s time for everyone to have a share at a piece of the happiness pie,” he said.
Source: The Durango Herald, “Winning the battle | Local gay couples tie knot after long wait for equality,” By Mary Shinn Herald staff writer, Article Last Updated: Monday, December 08, 2014 10:34pm
Marriage Equality Poised to Reach South Carolina Thursday
Today the Fourth Circuit Court of Appeals declined South Carolina’s request to stay marriage equality in the state pending appeal of the district court decision striking down the state’s ban.
Last week, U.S. District Judge Richard Mark Gergel ruled against South Carolina’s constitutional amendment banning marriage equality, making the Palmetto State the latest to see such a ban struck down in court since the U.S. Supreme Court handed down its historic marriage rulings last June. In Condon v. Haley, Lambda Legal and private attorneys sued the state on behalf of same-sex couples who argue that South Carolina’s ban on marriage equality violates the U.S. Constitution. In his ruling, Judge Gergel cited the Fourth Circuit Court of Appeals’ ruling in Bostic v. Shaeffer, in which the federal appeals court struck down Virginia’s ban on marriage for same-sex couples. The Fourth Circuit ruling in Bostic is binding precedent on South Carolina.
Gallup puts support for marriage equality at 55 percent – an astonishing 15 points increase from just 5 years ago – with other polls showing support at even higher margins. And support for same-sex marriage rights continues to grow in virtually every demographic group. According to ABC News / Washington Post, 77 percent of adults under age 30 favor marriage equality. 40 percent of Republicans – an all-time high and jump of 16 points in under two years – now support marriage for gay and lesbian couples, while the number of Catholics supporting marriage has grown to 62 percent,according to the New York Times. These numbers continue to grow, with no indication that support will slow down.
Marriage equality could begin the state as early as this week.
Source: HRC Blog, “Marriage Equality Poised to Reach South Carolina Thursday,” November 18, 2014 by Maureen McCarty, HRC Associate Director of Digital Media
Tennessee Plaintiffs Appeal Sixth Circuit Ruling to the U.S. Supreme Court
Today National Center for Lesbian Rights (NCLR), attorneys Abby Rubenfeld, Maureen Holland, and Regina Lambert, and the law firms of Sherrard & Roe PLC and Ropes & Gray LLP requested the Supreme Court of the United States hear their case.
The Sixth Circuit Court of Appeals overturned lower court rulings that struck down state marriage bans in Kentucky, Michigan, Ohio and Tennessee. This was the first time a federal appeals court ruled against marriage equality after four other federal appeals courts upheld district court rulings that the bans are unconstitutional.
“The court of appeals’ holding not only denies recognition to petitioners’ own marriages and families, but also establishes a “checkerboard” nation in which same-sex couples’ marriages are dissolved and reestablished as they travel across the country,” the plaintiff couples stated in the request. “That is the antithesis of the stability that marriage is supposed to afford.”
Earlier today, Lambda Legal, the ACLU and private firm Gerhardstein & Branch also petitioned the Supreme Court of the United States for a writ of certiorari, the formal request that the Court review its cases challenging Ohio’s constitutional ban on marriage equality.
Source: HRC Blog, “Tennessee Plaintiffs Appeal Sixth Circuit Ruling to the U.S. Supreme Court,” November 14, 2014 by Maureen McCarty, HRC Associate Director of Digital Media
Federal Judge Blocks Kansas’s Ban on Marriage Equality
BREAKING: With the stay lifted, same-sex couples in Kansas can begin applying for marriage licenses immediately. (November 12, 5:45 p.m. EST)
[On November 4, 2014], U.S. District Judge Daniel Crabtree issued a preliminary injunction in Marie v. Moser, ordering Kansas to stop enforcing its discriminatory ban on marriage for same-sex couples. Judge Crabtree granted the state’s request for a stay, so no marriages will begin until 5:00pm CST on November 11.
Kansas was the only remaining state within the jurisdiction of the Tenth Circuit Court of Appeals, which ruled earlier this year that bans on marriage equality violate the U.S. Constitution. Those rulings were allowed to stand when the Supreme Court of the United States declined to hear the cases on appeal, paving the way for marriage equality to become law in all states within the Tenth Circuit where marriage bans were still in effect – Colorado, Wyoming and now, Kansas.
“Kansas’ same-sex marriage ban does not differ in any meaningful respect from the Utah and Oklahoma laws the Tenth Circuit found unconstitutional,” Judge Crabtree writes. “Because Tenth Circuit precedent is binding on this Court, Kitchen and Bishop dictate the result here.”
The state now has the option to appeal today’s order to the Tenth Circuit, which has already ruled such marriage bans unconstitutional.
With Kansas, 33 states will have marriage equality. Congratulations to the plaintiff couples, the ACLU and all those working to secure marriage equality nationwide in America!
Source: HRC Blog, “Federal Judge Blocks Kansas’s Ban on Marriage Equality,” November 4, 2014 by Charlie Joughin
BREAKING: Missouri Judge Rules for Marriage Equality
Denying Missouri’s gay couples the opportunity to marry is unconstitutional, a judge ruled this afternoon.
As a result, St. Louis Circuit Judge Rex Burlison said in his decision, marriage licenses can be issued throughout Missouri beginning today.
“The Court finds and declares that any same sex couple that satisfies all the requirements for marriage under Missouri law, other than being of different sexes, is legally entitled to a marriage license,” Burlison wrote.
He said that the Missouri Constitution violates the Equal Protection Clause and Due Process Clause of the 14th Amendment to the U.S. Constitution.
Burlison’s ruling comes more than four months after four couples were married at St. Louis City Hall, even though there is a 10-year-old state constitutional amendment defining marriage as between one man and one woman.
The act of defiance, choreographed with the support of Mayor Francis Slay and then-Recorder of Deeds Sharon Carpenter, led Attorney General Chris Koster to file an injunction preventing more marriage licenses from being issued to same-sex couples.
It’s the second major victory in the state for same-sex marriage. Last month, a Kansas City judge ruled that marriages of Missouri gay couples wed in states or countries where such relationships are legally recognized must be honored by their home state. The decision by Circuit Judge J. Dale Youngs was the first by any judge affirming same-sex marriage in Missouri. That ruling affected more than 5,400 Missouri couples.
In both cases, an attorney from Koster’s office defended the state constitution. Koster supports same-sex marriage but said he has a legal responsibility to defend Missouri law. However, after losing the Kansas City case, Koster declined to appeal, saying the state is obligated to honor contracts entered into other states.
“Missouri’s future will be one of inclusion not exclusion,” Koster said. It was not immediately clear, however, whether Koster would appeal today’s ruling. Gay rights advocates expect Koster will ask the Missouri Supreme Court to make a final ruling.
“This is a positive move forward for loving same-sex couples in the City of St. Louis,” said Jeffrey Mittman, executive director of the American Civil Liberties Union of Missouri. “It is also a win for families throughout Missouri as another discriminatory obstacle is lowered.”
St. Louis City Counselor Winston Calvert said issuing the four marriage licenses in June “pushed the envelope on behalf of families throughout the State of Missouri who now can enjoy the dignity, stability, and security of a legal marriage.”
In arguments before Burlison on Sept. 29, Calvert told the judge that marriage is a fundamental right of all citizens, but the constitutional amendment “categorically denies that right to an entire class of people.”
The landscape of same-sex marriage has changed dramatically since June 2013. That’s when the U.S. Supreme Court struck down a key part of the Defense of Marriage Act. That ruling allowed gay couples who live in states where their marriages are legally recognized to receive the same federal benefits as married opposite-sex couples.
Then last month, the Supreme Court rejected appeals from five states seeking to preserve their bans. There are now 32 states plus the District of Columbia that issue marriage licenses to same-sex couples.
Marc Solomon, national campaign director for Freedom to Marry, said Burlison’s ruling “is very much consistent with the way judges have been ruling around the country since the Supreme Court took up the issue.”
The ruling today marks 49 successful challenges to same-sex marriage laws across the country, compared to three losses, Solomon said.
“There has just been incredible momentum,” he said.
On Wednesday afternoon, St. Louis Recorder of Deeds Jennifer Florida began issuing marriage licenses to same-sex couples. Lilly Leyh and Sadie Pierce were first in line.
“Hi. I would like to buy a marriage,” Pierce said to a cashier at the recorder’s office.
Leyh and Pierce said they knew the judge had the case under consideration. When they heard about the ruling they rushed to St. Louis City Hall to get a license. Leyh, 25, and Pierce, 27, met while studying at Washington University.
“We were really hoping this would happen,” Leyh said.
The normally staid and quiet recorder’s office took on a celebratory tone as more couples arrived on late Wednesday afternoon. A banner reading “First in Marriage” and “#ShowMeMarriage” was hung on an office wall this afternoon. Mayor Francis Slay appeared alongside several other well-wishers to congratulate them.
“We acted because it was the right thing to do,” said Slay, who has gay siblings. “Cities are strengthened by their families. I want St. Louis to be the sort of diverse and open place in which all families – gay and straight – choose to live, be creative, and build businesses. This is a human rights issue, a quality of life issue, and an economics issue. Judge Burlison certainly got it right.”
Florida said issuing marriage licenses to gay couples was a moment she had been anticipating.
“We’ve been given the green light to begin issuing marriage licenses so all can marry the person they love.”
Judge rules against Kansas same-sex marriage ban
As voters headed to the polls for Election 2014, a federal judge on Tuesday ruled against the ban on same-sex marriage in Kansas.
In a 38-page decision, U.S. District Judge Daniel Crabtree, an Obama appointee, issued a preliminary injunction against the enforcement on Kansas law prohibiting of marriage rights for same-sex couples. The injunction is warranted, Crabtree writes, because of legal precedent and because state officials defending the law haven’t made a sufficient case they would prevail in court.
“Because Kansas’ constitution and statutes indeed do what Kitchen forbids, the Court concludes that Kansas’ same-sex marriage ban violates the Fourteenth Amendment to the Constitution,” Crabtree writes. “Accordingly, the Court grants plaintiffs’ request for preliminary relief and enters the injunction described at the end of this Order.”
A temporary stay was included as part of the decision, so same-sex couples won’t be able to in Kansas until 5 pm Central Time on Nov. 11, unless defendants sooner inform the court they won’t seek an appeal before the U.S. Tenth Circuit Court of Appeals.
The litigation filed before the court was filed by the American Civil Liberties Union of Kansas to compel the circuit to confirm to judicial precedent enacted the Tenth Circuit rulings against same-sex marriage bans in Utah and Oklahoma, which lie within the same circuit as Kansas.
According to the Williams Institute at the University of California, Los Angeles, the ruling opens to door to marriage for an an estimated 4,009 cohabiting same-sex couples in Kansas. An estimated 22 percent of these couples are raising nearly 1,750 children in their homes.
The decision comes on the heels of a hearing on Friday on the matter of issuing a preliminary injunction in the case. According to the Associated Press, the state urged the judge not to block the state from enforcing the ban until a decision from the Kansas Supreme Court, which is scheduled to hold hearings on a related case on Nov. 6, but the ACLU maintained further delay would harm same-sex couples in Kansas. At the conclusion of the hearing, Crabtree said he would decide whether to issue a preliminary injunction in the case “as quickly as we can.”
Kansas prohibition on marriage rights for same-sex couples, known as Kansas Proposed Amendment 1, was ratified at the ballot as part of the state constitution by 70 percent of the vote. Gov. Sam Brownback and Attorney General Derek Schmidt defended the law in court against litigation and campaigned on those efforts ahead of Election Day in Kansas.
Source: Washington Blade, “Judge rules against Kansas same-sex marriage ban,” by Chris Johnson | November 4, 2014
Obama: ‘I Think The Equal Protection Clause Does Guarantee Same-Sex Marriage’ In All States
President Barack Obama seems to have changed his tune on gay marriage, telling The New Yorker’s Jeffrey Toobin he believes same-sex couples in all 50 states should be allowed to marry under the equal protection clause of the Constitution.
Obama first publicly backed gay marriage in May 2012, but noted he thought the issue should be left to the states. Speaking with Toobin for the Oct. 27 issue of The New Yorker, Obama said the best Supreme Court decision since he took office was the recent rejection of gay marriage appeals from five states, a move the president said is “a consequential and powerful signal of the changes that have taken place in society and that the law is having to catch up.”
While Obama said the high court “was not quite ready” to “indicate an equal-protection right across the board,” he personally believes same-sex marriage is protected under that clause. From The New Yorker:
Obama opposed marriage equality until May of 2012. He told me that he now believes the Constitution requires all states to allow same-sex marriage, an argument that his Administration has not yet made before the Supreme Court. “Ultimately, I think the Equal Protection Clause does guarantee same-sex marriage in all fifty states,” he said. “But, as you know, courts have always been strategic. There have been times where the stars were aligned and the Court, like a thunderbolt, issues a ruling like Brown v. Board of Education, but that’s pretty rare. And, given the direction of society, for the Court to have allowed the process to play out the way it has may make the shift less controversial and more lasting.
“The bulk of my nominees, twenty years ago or even ten years ago, would have been considered very much centrists, well within the mainstream of American jurisprudence, not particularly fire-breathing or ideologically driven,” Obama went on. “So the fact that now Democratic appointees and Republican appointees tend to vote differently on issues really has more to do with the shift in the Republican Party and in the nature of Republican-appointed jurists … Democrats haven’t moved from where they were.”
The federal government has extended federal benefits to same-sex married couples in states where gay marriage has been legalized, most recently giving benefits to those in the five states where the gay marriage appeals were rejected.
Read Toobin’s entire piece on Obama at The New Yorker.
Source: The Huffington Post, “Obama: ‘I Think The Equal Protection Clause Does Guarantee Same-Sex Marriage’ In All States,” By Paige Lavender, Posted: 10/20/2014 9:22 am EDT Updated: 4 hours ago