Since I last published an entry on this blog, many changes have occurred in the USA relative to the recognition of gay marriage and the ongoing struggle for full social and legal acceptance and treatment of gay persons by heterosexual Americans. The obscene military policy (and underlying federal legislation) known as "Don't Ask, Don't Tell" (DADT) has been repealed, and gay Americans may now join the armed forces without having to hide their sexual orientation for fear of being "separated" (kicked out). Gay marriage has spread from the recognition of six states (and the District of Columbia) when I last posted an entry to this blog in 2010 to 16 states (and the District of Columbia).at the present time. The percentage of Americans who approve of gay marriage has soared to an extent which most gay activists did not think would or could ever occur. While much work remains to be done, particularly with regards to the passage of the Employment Non-Discrimination Act (ENDA), so much has happened legislatively and socially since 2010 that it is sometimes difficult for me to comprehend the nature of the American psyche. A brief recapitulation follows:
In
December of 2010, a Congressional bill to repeal DADT was enacted. This
bill stipulated that DADT would end when the President, the Chairman of the
Joint Chiefs of Staff, and the Secretary of Defense certified that repeal of
this measure would not harm military readiness. A 60 day waiting period
would then follow before the DADT policy and underlying legislation in the
United States Code (U.S.C.) would be repealed. On July 6, 2011, a federal
appeals court prohibited further enforcement of DADT, and on July 22, 2011,
President Barack Obama, Defense Secretary Leon Panetta, and Chairman of the
Joint Chiefs Admiral Mike Mullen sent the certification to Congress. This
certification set the end of DADT for September 20, 2011.
This
marked a massive shift in the attitudes of both public opinion and senior
legislators since DADT first went into effect on February 28, 1994. I
clearly remember coverage of Congressional passage of DADT on C-SPAN, during
the course of which the degree of rancor, bitterness, homophobia, and outright
hatred of gay persons was on display. Gay men in particular were
demonized as disease-ridden and totally lacking in moral restraint.
Legislator after legislator testified that permitting gay persons to
serve in the armed forces would result in the collapse of unit cohesion, the
degradation of morale, and polarization of attitudes within combat units.
Much of the testimony focused on the notion that gay men and lesbians
would stare at the naked bodies of heterosexual men and women in the showers
and under other closely confined quarters where privacy is almost totally
lacking (such as on submarines).
The
irony here was blatant. Under DADT, heterosexual service members would
have no idea whether or which gay service members were lusting after them (in
their imaginations). Consequently, everybody would
become suspect in the eyes of the more paranoid heterosexual service members.
Many eligible heterosexual men and women who would otherwise have chosen
to enlist in the armed forces changed their minds in the knowledge that gay
service members would also be serving (sub rosa). The DADT "compromise"
satisfied nobody -- following its passage, the number of service members
separated from the armed forces actually increased substantially.
One single statement to the effect that a service member was gay was
sufficient to trigger separation proceedings; furthermore, this ban on such
statements extended to persons who were not in the military at all.
Theoretically, parents could have been subpoenaed to testify as to
whether or not their sons or daughters had ever stated that they were gay.
The premises
on which DADT rested also blamed bad behavior on the part of heterosexual
service members on the presence of gay service members -- the inability of
heterosexual service members to behave themselves in the presence of gay
service members was implicitly blamed on the gay service members.
Federal
District Judge Eugene Nickerson of the Eastern District of New York issued two
thorough and lengthy opinions striking down DADT, on First Amendment and
Equal Protection grounds. Unfortunately, his opinions were reversed by a
panel of judges on the US Court of Appeals for the Second Circuit, who held
that deference to the military was more compelling than the meritorious
holdings of judge Nickerson.
The
demise of DADT was on the cards long before the 2011 decision. As
attitudes towards gay Americans changed throughout the population (both
civilian and military), DADT became to be seen as anachronistic and detrimental
to recruitment, retention, and the reputation of the armed forces.
The
other area in which the right of gay Americans to be treated as equals was far
more contentious. This struggle, of course, pertained to gay marriage.
In 2010, only six states permitted gay marriage. California
permitted gay marriage for a brief period of time following a landmark ruling
by the California Supreme Court (in re Marriage Cases, 43
Cal.4th 757 (2008)). Unfortunately, the people of the state voted at the
ballot box six months later to amend the California constitution to prohibit
gay marriage; by then, roughly 18,000 gay couples had tied the marry.knot.
This constitutional amendment was commonly referred to as Proposition 8.
A subsequent decision (Strauss v. Horton 46 Cal.4th
364, 93 Cal.Rptr.3d 591, 207 P.3d 48)) upheld these 18,000 marriages but
declared Proposition 8 to be constitutional. Following the enactment of
Proposition 8, gay couples living in California could still enter into civil
unions, which provided all of the state benefits of marriage following
Proposition 8, but they could no longer marry; civil unions provide all of the
incidents of marriage, but not the designation of marriage.
At this
point, a lawsuit was filed in federal district court by attorneys David Boies
and Ted Olson, who had previously opposed each other in the notorious Bush
v. Gore, 531 U.S. 98 (2000) decision pertaining to the
Presidential election of 2000. Governor Arnold Schwarzenegger and
Attorney General Jerry Brown both refused to defend the case, stating that they
believed that Proposition 8 violated the Equal Protection Clause of the
Fourteenth Amendment. Chief Federal District Judge for the Northern
District of California Vaughn Walker was assigned to the case and
granted intervenor status to two groups -- ProtectMarriage.com and a rival group,
the Campaign for California Families.
Judge
Walker, in an exhaustive opinion running into 136 pages, held that Proposition
8 violated the right of gay persons to marry on both Due Process and Equal
Protection grounds. This decision was appealed to the US Court of Appeals
for the Ninth Circuit, which upheld the district court decision, but on
narrower grounds. The Ninth Circuit also stayed its decision until the US
Supreme Court decided the case after granting certiorari.
The US
Supreme Court held, in Hollingsworth v. Perry, 370 U.S. ___
(2013) (as the case was now known) that the defendant-intervenors lacked
standing to appeal the decision to the Ninth Circuit. Chief Judge Roberts
delivered the majority opinion, with Associate Justice Anthony Kennedy writing
for the dissent. This was a narrow decision, with a five to four vote in
favor of denying intervenor status to the two groups involved. Since the
defendant-intervenors lacked standing to appeal Judge Walker's decision, the
Ninth Circuit lifted its stay on its decision to uphold Judge Walker's
decision, leaving only the federal district court judge's decision to the
effect that Proposition 8 was unconstitutional. This permitted gay
couples to start marrying once again, and this started happening again shortly
after Hollingsworth was handed down by the US Supreme
Court on June 26, 2013.
Another gay rights case was heard and decided in the same term as Hollingsworth. The case in question was US v. Windsor, 370 U.S. ___ (2013), and it had ramifications much more serious than Hollingsworth. This case had nationwide implications, because it invalidated a Congressional act which forbade the recognition of gay marriages by the federal government, even if those marriages were solemnized in states where gay marriage was permitted.
On
September 21, 1996, Congress passed a bill known as the Defense of Marriage Act (DOMA). This was in
response to rulings by the Hawaii Supreme Court that gay persons living in that
state should be permitted to marry in the absence of a compelling state
interest to the contrary (see Baehr v. Lewin, 74
Haw. 645, 852 P.2d 44. May 5, 1993). Congress reasoned that if Hawaii
legalized gay marriage, the other 49 states would also have to recognize gay
marriages solemnized in Hawaii. This was due to a provision in the US
Constitution referred to as the Full Faith and Credit Clause (see Article IV,
Section 1 of the Constitution for the text of this Clause).
Section
2 of DOMA guarantees that no state shall be forced to recognize gay marriages
performed in states where such marriages are legal. This is intended to
head off the possibility of gay couples marrying in Hawaii (or any other state
which legalized gay marriages) and then moving to states where gay marriages
are not recognized, and demanding to be treated as married in those
states. Section 2 of DOMA remains in effect (for the time being), but
Section 3 of DOMA has been gutted.
Section
3 of DOMA stated that the federal government would not recognize gay marriages
performed in states which solemnized or recognized gay marriage. This was
perhaps the cruelest provision of DOMA, because although married gay couples in
states which recognize gay marriages received all the incidents of marriage at
the state level, they were denied more than 1,100 federal benefits, privileges,
responsibilities, and grants at the federal level. For example, the
bereaved spouse in a marriage which has terminated due to the death of the
other spouse is entitled to Social Security Survivor benefits. Married
heterosexual couples may file joint or single tax returns. Veterans’
benefits are paid to surviving spouses. But none of these advantages and
privileges were available to gay married couples, despite the fact that their
marriage were solemnized in accordance with the requisite procedures in their
home states.
This
state of affairs soon ended due to the courage and determination of a feisty
and determined elderly woman named Edith Windsor. Windsor and her spouse,
Thea Spyer, were married in Ontario, Canada, in 2007 (gay marriage is
recognized in Canada); they had been in a romantic relationship for more than
40 years. They moved to New York in 2009; at that time, New York
recognized gay marriages performed in jurisdictions where such marriages were
legal (New York itself legalized gay marriage shortly thereafter).
Windsor filed an application for exemption from estate taxes, which are not
taxed under federal law when an estate is granted to a surviving spouse (Spyer
had left everything to Windsor). Windsor paid the Internal Revenue
Service $363,053 in estate taxes, and then sought a refund from the IRS as a
surviving spouse. The IRS refused to grant her this refund, citing
Section 3 of DOMA, which forbade the US government from recognizing the
validity of gay marriages performed in jurisdictions where such marriages are
recognized or legalized.
Windsor
filed suit against the US government in federal district court in New York
City. While this lawsuit was pending, the Attorney General of the United
States notified the Speaker of the House of Representatives that the Department
of Justice would no longer defend the constitutionality of Section 3. The
President and the Attorney General had both reached the conclusion that Section
3 violated the Fifth Amendment’s equal protection component (see Bolling v. Sharpe, 347
U.S. 497 (1954); Fisher v. University
of Texas at Austin, 11-345 (2013) (slip op.)), and
refused to defend Section 3 from constitutional attack. In response
to this move, the Bipartisan Legal Advisory Group (BLAG) of the House of
Representatives voted to intervene in the litigation to defend the
constitutionality of Section 3.
On
June 6, 2012, the trial judge ruled in favor of Windsor, holding that Section 3
violated the equal protection component of the Fifth Amendment’s Due Process
Clause; the court ordered the IRS to pay the refund. BLAG took an appeal
to the US Court of Appeals for the Second Circuit, which affirmed the district
court’s judgment on October 18, 2012.
BLAG
and the US Department of Justice appealed to the US Supreme Court, which
granted certiorari and heard oral arguments on March 27, 2013. On June
26, 2013, the US Supreme Court struck down Section 3 as “a deprivation of the
liberty of the person protected by the Fifth Amendment.” The decision was
five to four, with Associate Justice Anthony Kennedy delivering the majority
opinion. His opinion contained sweeping elements of equal protection, due
process, and federalism, and he wrote about the manner in which Section 3
deprived gay married couples of the dignity afforded heterosexual married
couples.
The
Court wrote:
“DOMA's principal effect is
to identify a subset of state-sanctioned marriages and make them unequal. The
principal purpose is to impose inequality, not for other reasons like
governmental efficiency... By this dynamic DOMA undermines both the public and
private significance of state-sanctioned same-sex marriages; for it tells those
couples, and all the world, that their otherwise valid marriages are unworthy
of federal recognition. This places same-sex couples in an unstable position of
being in a second-tier marriage. The differentiation demeans the couple, whose
moral and sexual choices the Constitution protects ... and whose
relationship the State has sought to dignify. And it humiliates tens of
thousands of children now being raised by same-sex couples. The law in question
makes it even more difficult for the children to understand the integrity and
closeness of their own family and its concord with other families in their
community and in their daily lives.
Under DOMA, same-sex married
couples have their lives burdened, by reason of government decree, in visible
and public ways. By its great reach, DOMA touches many aspects of married and
family life, from the mundane to the profound. It prevents same-sex married
couples from obtaining government healthcare benefits they would otherwise
receive.... It deprives them of the Bankruptcy Code's special protections for
domestic-support obligations.... It forces them to follow a complicated
procedure to file their state and federal taxes jointly... It prohibits them
from being buried together in veterans' cemeteries.
For certain married couples,
DOMA's unequal effects are even more serious. The federal penal code makes it a
crime to "assaul[t], kidna[p], or murde[r] ... a member of the immediate
family" of "a United States official, a United States judge, [or] a
Federal law enforcement officer,"... with the intent to influence or
retaliate against that official.... Although a "spouse" qualifies as
a member of the officer's "immediate family,"... DOMA makes this
protection inapplicable to same-sex spouses.
The
federal statute is invalid, for no legitimate purpose overcomes the purpose and
effect to disparage and to injure those whom the State, by its marriage laws,
sought to protect in personhood and dignity. 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.”
Antonin
Scalia wrote a dissenting opinion in which he claimed that the US Supreme Court
had no jurisdiction to hear the case because Windsor’s injury had been
redressed by the district court and the US Court of Appeals for the Second
Circuit. He wrote an embittered and rancorous opinion in which he
declared that the majority Justices had, through their opinion, resorted to
calling opponents of same-sex marriage "enemies of the human
race." He went further, stating that “[a]s far as this Court is
concerned, no one should be fooled; it is just a matter of listening and
waiting for the other shoe.
By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms will every challenger to a state law restricting marriage to its traditional definition."
This
type of hyperbole and resort to grotesque misstatements about the majority
opinion are typical of Scalia’s jurisprudence. Nowhere did the majority
refer to opponents of gay marriage as “enemies of the human race.”
Nowhere did the majority refer to opponents of gay marriage as
"enem[ies] of human decency." When defeated, Scalia has a habit
of attempting to use the English language as though it is an alchemist's stone,
capable of transmuting a losing argument into a victory.
As a
result of Windsor’s victory, married gay couples now enjoy more than 1,100
rights, benefits, privileges, and responsibilities previously unavailable to
them under federal law. A flurry of legal activity has occurred since Windsor was
decided, with several other states being ordered by state court judges to
legalize gay marriage (e.g. New Jersey) and other states legalizing gay
marriage through actions of the state legislatures concerned (e.g. Illinois).
Gay couples who marry in states which recognize gay marriage now enjoy all of the incidents of marriage, as well as the designation of marriage. Gay couples who live in states which do not recognize or solemnize gay marriage now enjoy all of the federal benefits of marriage, but not the state benefits of marriage.
In 2010, only six states and the District of Columbia had legalized gay marriage. As of the time of writing, 16 states and the District of Columbia have legalized gay marriage, with several states appearing poised to do the same. As an example, the New Mexico Supreme Court is poised to rule on this issue in the near future.
Opponents of gay marriage are still pressing for a US Constitutional amendment to define marriage as a legal relationship between one man and one woman. However, three quarters of the states are required to ratify a proposed US Constitutional amendment, meaning that opponents of gay marriage would have to secure the disapproval of 37 states for such an amendment to be ratified. Only 13 states would have to approve of gay marriage in order to defeat the passage of such an amendment. Given that 16 states (and the District of Columbia) have already legalized gay marriage, and given that a flurry of litigation and the passage of additional gay marriage statutes is likely to result in the legalization of gay marriage in even more states, this is a dead issue.
Organizations
such as the misnamed National Organization for Marriage, which is
rabidly anti-gay, are dedicated to trying to sweep back the tide with bucket
and broom. They have lost. They just don't know it yet.
Scalia
was right – and for that, we should all be thankful!
PHILIP CHANDLER