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Gay Marriage in America -- A Comparison between 2003 and 2014

Updated on February 20, 2014

Gay Marriage and its Progress in America -- 2003 to 2014

Since the writer 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 The outdated and morally indefensible military policy (and underlying federal legislation) known as "Don't Ask, Don't Tell" (DADT) has been repealed, and gay Americans may now join the armed forces without having to hide their sexual orientation for fear of being "separated" (kicked out).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 recognition in six states (and the District of Columbia) when the writer last posted an entry to this blog in 2010 to 17 states (and the District of Columbia) at the present time. The percentage of Americans who approve of gay marriage recently rose to an extent which most gay activists did not think would or could ever occur. At the present time, more than 50% of Americans approve of gay marriage; this level was first attained in 2010. 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 the writer 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period would then follow before the DADT policy and underlying legislation in the United States Code (U.S.C.) would be repealed.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 seismic shift in the attitudes of both public opinion and lawmakers since DADT first went into effect on February 28, 1994. The writer 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 full and ugly 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 service members were gay, and thus presumably lusting after them (in reality or in their imaginations). Consequently, everybody 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 made by a service member to the effect that that 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 extraordinarily thorough and lengthy opinions striking down DADT, on First Amendment and Equal Protection grounds. Unfortunately, his opinions were reversed by a panel of judges of the US Court of Appeals for the Second Circuit, which held that deference to the military’s concerns was a more compelling governmental interest than the meritorious holdings of Judge Nickerson.

The demise of DADT was predicted 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 roughly six months following a landmark ruling handed down 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 entered into gay marriages. 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 and incidents of marriage, 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 state, declaring publicly that they believed that Proposition 8 violated the Equal Protection Clause of the Fourteenth Amendment of the US Constitution. Chief Federal District Judge for the Northern District of California Vaughn Walker was assigned to the case and granted intervenor status to two groups – 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 (invoking Romer v. Evans, 517 U.S. 620 (1996) in much of its affirmation). The Ninth Circuit also stayed its decision until the US Supreme Court could decide the case after granting certiorari.

The US Supreme Court held, in Hollingsworth v. Perry, 370 U.S. ___ (2013) (as the case was then known) that the defendant-intervenors lacked standing to appeal the decision to the Ninth Circuit, asserting that a state actor such as the state attorney general or the governor was required on behalf of the state to defend Proposition 8. Chief Justice John 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 had in turn lacked standing to take the appeal from Judge Walker’s opinion. The Ninth Circuit therefore vacated its stay on Judge Walker's opinion, leaving intact only this federal district judge’s holding to the effect that Proposition 8 was unconstitutional. This permitted gay couples to resume marrying, and this started happening again shortly after Hollingsworth was handed down by the US Supreme Court on June 26, 2013.

It is important to note that Hollingsworth was decided only on procedural grounds, and not on the constitutional issues of due process and equal protection raised in the lawsuit. The Court expressed no opinion relative to the merits of the case. Although gay couples are now marrying again in the state of California, this is not because the Court declared that they have a fundamental right to do so; it is because Judge Walker’s opinion has effectively been reinstated. The writer knows of no other case in which gay marriage litigation has terminated at the federal district court level.

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 far reaching than those of 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 marriages were 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 asserts that no state shall be forced to recognize gay marriages performed in states where such marriages are deemed legal. This was 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 then 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. Bereaved spouses also receive exemption from paying federal estate taxes. 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 marriages were solemnized in accordance with the requisite procedures of their home states.

This cruel provision met its demise 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).

Following the death of her spouse, 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 (IRS) $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 equal protection component of the Fifth Amendment’s Due Process Clause (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 Manhattan 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 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 deeply divided decision was decided on a five to four vote, 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.”

Justice Antonin Scalia wrote an angry 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 by the US Court of Appeals for the Second Circuit, and that the US government had declined to defend the statute. He then proceeded to reach the merits of the case, writing 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 well every challenger to a state law restricting marriage to its traditional definition… I have heard such "bald, unreasoned disclaimer[s]" before. Lawrence, 539 U.S., at 604, 123 S.Ct. 2472. When the Court declared a constitutional right to homosexual sodomy [sic], we were assured that the case had nothing, nothing at all to do with "whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Id., at 578, 123 S.Ct. 2472. Now we are told that DOMA is invalid because it "demeans the couple, whose moral and sexual choices the Constitution protects," ante, at 2694 — with an accompanying citation of Lawrence. It takes real cheek for today's majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here — when what has preceded that assurance is a lecture on how superior the majority's moral judgment in favor of same-sex marriage is to the Congress's hateful moral judgment against it. I promise you this: The only thing that will "confine" the Court's holding is its sense of what it can get away with. "

This type of hyperbole and resort to grotesque misstatements about the majority opinion are typical of Scalia’s jurisprudence. Note his usage of the term “homosexual sodomy,” which has been deemed by most courts to be pejorative and degrading, and has been scrubbed by many courts throughout the nation in favor of terminology such as “intimate same-sex sexual activity.” 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 supreme 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).

Recently, the governor of Virginia, Mark Herring, announced that he would not defend that state’s ban against gay marriage in a lawsuit which had already been filed. This aroused fury amongst conservatives; the previous governor had been a staunch opponent of marriage equality.

On February 13, Federal District Judge Arenda L. Wright Allen handed down an opinion striking down Virginia’s ban of gay marriages, overturning a state constitutional amendment as well as state statutes. Her opinion declared these measures to be violative of both the Due Process and Equal Protection Clauses of the Fourteenth Amendment; she stayed her opinion pending resolution before the US Court of Appeals for the Fourth Circuit, which legal scholars believe will uphold her judgment.

Gay couples who marry in states which recognize gay marriage now enjoy all of the incidents of marriage (at both the state and federal levels) 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. Furthermore, both US Attorney General Eric Holder and President Obama have declared that married gay couples can still receive these federal benefits if they marry in states which recognize marriage equality, and then move to states which do not recognize marriage equality.

In 2010, only six states and the District of Columbia had legalized gay marriage. As of the time of writing, 17 states and the District of Columbia have legalized gay marriage, with several states appearing poised to do the same. Several recent cases are currently awaiting appeal before various US Court of Appeals. Federal District Judges in Oklahoma, Utah, Virginia, Kentucky, and other jurisdictions have overturned state statutes and constitutional amendments to force those states to recognize gay marriages, and numerous lawsuits have been filed before other Federal District Judges, seeking recognition of gay marriage (examples of such jurisdictions include Idaho, South Carolina, and North Carolina).

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 approval 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 17 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 (NOM), which is rabidly anti-gay and which is trying to prevent gay marriage from spreading, are dedicated to trying to sweep back the tide with bucket and broom, just as King Canute demonstrated to his men could not be done on royal command. Members of NOM have already lost. They just don't know it yet, or are too pained to admit it.

Justice Scalia was right – and for that, we should all be thankful.



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