In orders issued about one minute ago, the Supreme Court has decided to hear both the Prop 8 and the Defense of Marriage Act case. I’m surprised they took Prop 8. More soon, as I get details on the details!
This is an exceptionally wise column by Tom Goldstein on today’s SCOTUSblog, as the Supremes consider which of the same-sex marriage cases to take.
The takeaway line:
The striking feature of these cases – not present in any others I have ever seen – is that that they would have been decided by the Justices’ predecessors one way and would be decided by the Justices’ successors another way.
Isn’t that just obviously right? In the 1970s, in fact, we know it’s true, because the Court dismissed a case challenging same-sex couples’ exclusion from marriage for want of “a substantial federal question.” That was about 40 years ago.
And 40 years from now, do even marriage equality’s most virulent opponents really believe (wheel in the polygraph machine!) that LGBT folks won’t be recognized, at long last, as full citizens — with the right to marry as a vital part of that citizen package?
My latest piece for Slate, just posted, is called “No to Nuptials” (I actually came up with the headline; blame me if you don’t love it. But of course you will.)
I interviewed some folks in Illinois who have just taken advantage of the nation’s first-ever civil union for opposite-sex couples law; their reasons for choosing civil unions over marriage are fascinating.
Please read, like, and…comment over at Slate.
My last column is kind of an angry one.
Once again, I’m compelled to write about the collision of religious beliefs and civil rights, and – as has become typical – the tension arises in a case involving marriage equality.
As this story details, the town clerk in the small village of Ledyard, New York, has unilaterally decided that she won’t issue marriage licenses to same-sex couples. So she now requires that all couples (gay and straight) make an appointment for her deputy (who seems to work part-time) to do the job that she’d previously done.
On the surface, this accommodation might look reasonable. The woman gets to honor her own religious beliefs, and now all couples are being treated equally. Everyone has to wait for an appointment. And in general, I support creative means of conflict resolution as long as they neither stigmatize a legally protected class nor cause undue inconvenience. If, say, there were several clerks working different lines in a large city and one objected to issuing marriage licenses to same-gender couples, an unobtrusive switch of clerks would bother no one.
Beyond that kind of practical accommodation, though, allowing this kind of refusal would be a terrible mistake, and one that would sets very dangerous precedent. Consider this example:
State A passes a marriage equality law. The Attorney General’s religious beliefs are offended by the bill, and he decides that all marriage licenses issued to same-sex couples are without legal force. Of course, such an AG would likely be swiftly fired, or in any event overruled by a court. But until that happened, one might expect him to argue that he simply “couldn’t” do otherwise, as same-sex marriages were against God’s law.
But God’s law – whatever it might be in this case, and there’s no clear agreement among religions on this or any other issue – is beside the point. The AG has a civil law responsibility that he’s failing to discharge.
Much further down on the government food chain, the Ledyard clerk, one Rose Marie Belforti, is doing much the same thing. The similarity can be hard to see, because her refusal to comply with the law – unlike the AG’s – can be sidestepped. But in both cases, we have a public official deciding for themselves when and whether to recognize a law of general application. The AG wouldn’t be able to stay in office were he to insist on his own, law-defying interpretation of what God’s law requires; and the result should be no different here. If Belforti couldn’t figure out a way to do this behind the scenes, too bad for her.
And the consequences of allowing religious beliefs to interfere with clear civic responsibilities can’t be limited to the issue of same-sex marriage licenses. What if a clerk didn’t want to marry two people who’d been divorced? Who’d had sex before marriage? And what would those defending Ms. Belforti say about a judge who granted men, but not women, a unilateral divorce because of his belief that that Sharia law required that interpretation?
We expect judges to follow the prevailing law. We have the right to expect clerks to do the same.
I could respect Ms. Belforti if, like several other clerks with religious objections to same-sex marriages, she resigned from her job. But I have nothing but contempt for the rhetoric being put forward by the likes of Maggie Gallagher and Robbie George. Read this article, which details how the pair is trying to turn back marriage equality by appealing openly to the idea that religion should take precedence over equality. Gallagher likens New York state’s insistence on having its laws followed in the clerk cases to the dictates of Caesar, “forgetting” that the democratically elected legislature passed the marriage equality law. But the reference to this dictator is a way of making her point about the supposed religious persecutions.
George, co-author of the much-downloaded, but intellectually dishonest, article “What is Marriage?,” continues to rail against schools that teach about the existence of (let alone the positive results linked to) families headed by gay and lesbian parents. It’s just too bad for parents who don’t want their children “indoctrinated” into this world, he says.
Worse, he “loathes” the “bad faith” of our “strategy” of demonizing people like Belforti by deploying the “weapons” of anti-discrimination law. But to insist that validly enacted laws, like New York’s, be interpreted in a way that favors no religion over another is only to follow the rules of democracy itself. George and Gallagher are so sure of their own (rigidly Catholic) version of God that they fail to understand that the best way to respect religion is to insist on its separation from the civil, legal sphere.
For once religion is allowed to set the rules, there’s no guarantee that the faith chosen will be one either of them would endorse. It might even be Muslim.
I can’t end this column without a last goodbye to my faithful readers (some of whom I know by user name; others of whom simply read without weighing in). I’d love for you to follow me over to my own site, Word in Edgewise, where I promise to keep up the fight. (And I might soon be blogging for another site; you’ll have to go to WiE to find out if and where.) I hope to see some of you tonight! And a fond farewell to JV and JW. Thanks to both of you. Excelsior!
John Culhane is Professor of Law and Director of the Health Law Institute at Widener University School of Law. He has edited and contributed to a book on “hot” legal and social issues, and just taped a show for The American Law Journal on the legal rights of unmarried cohabitants (gay and straight). It will be available for viewing on this website by late October. Follow him on Facebook and Twitter.
Who’s hiding now?
A couple of recent developments – one seismic, the other not so much – point to a tidal shift in the battle for LGBT equality and dignity.
The biggie, of course, is the long-overdue interment of Don’t Ask, Don’t Tell. You’d have to be made of a certain kind of dense mineral not to be moved by the stories that we’re hearing of soldiers who can now go about their jobs without fear of being outed, then ousted. And the squawking of those on the hard-right who’d threatened to get repeal undone are dying away like the gasps of an almost-extinct species.
Yet the repeal creates problems more complex than the one it solved. Once these gay and lesbian (but not transgendered) soldiers stand revealed in the fullness of their identity, it’s also going to become almost immediately apparent that they’re still not equal. While they now are allowed to exist, their relationships are not, because these soldier are not considered legally married for federal purposes.
So all the benefits that straight servicemembers take for granted – including housing for their families and spousal death benefits – aren’t available to same-sex couples. Because of the Defense of Marriage Act (“DOMA”) that’s true even if the couple is considered legally married in their state of residence.
This glaring inequality has the potential to do some serious damage to the anti-equality forces. Soldiers not only enjoy tremendous respect, but they live in such stifling proximity to each other that these inequities can’t be missed. In short order, this new set of stories – told now not by ex-soldiers, or by soldiers concealing their identities, but by open and proud service members – will create a compelling narrative that should accelerate the momentum toward the repeal of DOMA.
Equality and openness beget more of the same.
This could finish even better than you’d think it might. Because members of the military are constantly on the move, and often overseas, it won’t do to have their marriages recognized some of the time (when they’re in states that allow same-sex marriages) but not always (when they’re anywhere else). So the move to pass something like the Respect for Marriage Act (“RMA”) will also gain steam. Under that proposed bill, once you’re legally married in any state that allows it, you’d be forever deemed married for federal purposes. While the RMA still won’t force states to recognize marriages from other states, the pressure on them to do so will increase dramatically.
No other approach makes sense for the military – it would be a logistical nightmare for the government (and the same-sex couples) to move in and out of legal marriage as they changed location. This is already a problem with same-sex marriages under state law: try dissolving your Massachusetts marriage in Texas, for example.
But the military setting brings the problem into sharp relief.
So the reality of our lives, as we push further and more boldly into the open, has created irresistible pressure for equality. Look no further than recent polling data on marriage equality for evidence that the message is getting through.
And that brings me to the second development, which is a sort of flip side. As our openness and equality become an increasingly tight and strong braid, our opponents find themselves on the defensive. That’s not a good place to be when you have no good arguments for your position.
So, once again, we had the Prop 8 opponents trying – but failing – to keep the videotape of the trial from being made public. (An appeal has been filed, of course.) And a couple of weeks ago, the lawyers working for the House of Representative on the DOMA case politely refused to consent to the videotaping of oral arguments before the federal appellate court. They gave no reason for their refusal, but let me suggest one:
They know their arguments are neither sympathetic nor compelling.
The more they say, the worse – the meaner, frankly – they seem. David Boies, one of the attorneys on the Prop 8 challenge, said it succinctly: “The witness stand is a lonely place to lie.” (Watch the video, especially around the 3:00 mark. Boies is devastating.) Indeed, the Prop 8 defenders’ witnesses were such a disaster that the release of the videotapes would be a huge boon for our side. Better to keep it – and all opposition arguments – under wraps. I’d be begging for the same result were I the lawyer representing them.
Who’s hiding now?
John Culhane is stepping up the pace of his own blogging at wordinedgewise.org as his work on this site rockets toward its conclusion next week. You can also follow him on Slate, Twitter (@johnculhane), or through his legal scholarship. He’s also working on a book about civil unions, and invites your stories.
It’s been about a year and a half since 365gay editor Jay Vanasco emailed me, and invited me to write something for this site about the absurd goings-on in Virginia. (You might or might not remember that the Governor, Bob McDonnell, and the A.G., Ken Cucinelli were in a race to the bottom on LGBT rights.)
I had been blogging on the issue over on my own site, WordinEdgewise.org, and Jay thought that 365gay readers might be interested in what I had to say from the legal and political perspectives.
So that same night, I sat down and wrote what would turn out to be the first of my now more than 70(!) columns for this site. For reasons having only to do with my own compulsive nature, I haven’t missed a single week since that first column back in March 2010. I owe Jay a deep debt for giving me this platform. (Thanks, too, to James Withers for his tech help and for the “reality check” his pieces reliably provide. And to John Corvino for reaching out to me as a fellow columnist.)
And why would I ever want to miss a week? Many of the columns have triggered some of the most thoughtful and moving comments that you’ll read anywhere. As regular readers know, I often weigh in with my responses to readers – even, or perhaps especially, when they strongly disagree with me. I’ve tried to listen, and have found myself changing my views in response to many of the compelling responses that I read.
Moving from my own blog to 365gay opened me up to a much larger, and involved, audience.
My columns were the better for your input. While it’s hazardous to mention any of the commenters by name (for fear of leaving some valuable contributors out), that won’t stop me from mentioning a few of the most astute and compelling of the lot: Gerry Fisher, Alexander Fisher-levesque, Morgan, KaninZ, Janine Norberg, Lee Dorsey, Truth be Told, Keith Elston, Wayne M., deletethis, TigerTzu, and michaelandfred. (Apologies to the many I’ve missed.)
Some of these comments are so lengthy, well-informed and compelling that I found myself wondering why I was the one writing the pieces. And even the ones that weren’t as, um, civil, were a useful reminder of the pain and the emotion that many in our multiple, overlapping communities feel. Thanks to all of you, whether you commented or not.
Well, as you know, this particular ride is coming to an end. What’s next? Well, first: To quote a famous Monty Python line: “I’m not quite dead yet.” Since the site is going to be around until September 30 – a Friday, as it happens – I have at least two more columns after this one. So next week, it’s back to the events of the day.
After that? I’m still thinking about whether I want to seek out another regular, column-writing commitment to a site not my own. On the one hand, this has been a good gig for me. I’ve been forced into a schedule and focuses me on a subject (in this case, LGBT rights) where there’s an audience that has a similar focus.
On the other hand, I’ve learned that this kind of focus can be limiting. Before I migrated over here, I was blogging relentlessly at WordinEdgewise, on all manner of topics. In addition to LGBT rights, I wrote about: abortion, public health law, politics, racism, tort law, compensation for disaster victims, science, philosophy, human rights, theater, comic books, popular music, fiction, poetry, non-fiction works, tennis, swimming, and deviled egg servers. (If you’re interested in a particular topic, go to the left side of this page and scroll through Topics/Categories.) In other words, like most people I have lots of interests – not just in LGBT issues, although everything I write is surely informed by my perspective as a (fairly privileged) gay man.
And from my start date, in January 2009, until I started here, I was churning out five or so substantial (by blog standards) pieces each week. (At one point, David was referring to me as Bloggy Bloggenstein.) Many of these generated substantial internet buzz, especially my back-and-forth with Andrew Sullivan over abortion and my angry take on the Obama Administration’s initial defense of DOMA.
Under no circumstances could I have kept up that pace. I have a full-time job and a family with two young kids. (Most of my blogging went on between 10 p.m. and midnight.) But starting the weekly column and then, shortly thereafter, writing the first of several pieces for Slate, really did take my energy away from my own blog. Most recently, it’s existed primarily as a link to my other pieces.
But this has been a trade-off. Now I can seek some sort of balance in the topics I write about, and in the amount of writing I do. Since I only write for Slate occasionally, I’ll have some time to dig back into the joy of my own blog, and to explore a fuller range of topics.
I would love it if some of you would follow me over there. My short-term promise to you is that I will continue to write about the LGBT issues that matter to us, at least once a week. But I will also be posting on a range of other topics, as they grab my interest and as I have time. In general, I’m expecting to post at least one or two additional times per week. And, by the time they turn out the lights here at 365gay, I expect to have completed the redesign of my own site, in part to make clearer the broad categories of each post.
But for now, please wander over there if you have the chance and the inclination. I’d love to continue this conversation beyond the next two weeks. Look for something about Michele Bachmann and the HPV controversy early next week. (Teaser: She must be stopped.)
Let’s continue our conversation.
John Culhane will soon step up the blogging at wordinedgewise.org. He is working on a book on civil unions, and invites married, civilly united and domestically partnered couples to contact him at firstname.lastname@example.org; the book will feature our life stories.
Sorry for the WiE radio silence lately; I’ve been occupied with the start of school (my kids’ and my own) and some time-consuming projects.
Here’s the link to this week’s 365gay column; it’s a round-up of a few recent developments that, I think, bode well for LGBT couples.
There won’t be too many more columns, and then I’ll figure out my next writing move. Likely, the posting on this site will pick up.
Three recent developments on the LGBT relationship front have sparked my interest. Let’s do a quick round-up:
(1) On Tuesday, the California Supreme Court heard oral argument on a part of the Prop 8 appeal that only lawyers can love: whether the “official proponents” of this vile ballot measure have standing to appeal the state’s loss in the trial court.
As you might (but probably don’t) recall, the federal court of appeals for the Ninth Circuit, which is hearing the appeal, asked the California Supreme Court to weigh in with its opinion as to whether state law allows the proponents standing in this kind of case.
Based on the questions asked during the argument, it seemed clear that the court’s going to hold that the proponents do indeed have standing. If the federal court agrees (as it’s likely to do), then we’ll get to the merits of the case. This could actually happen quite quickly, as judicial appeals go. State law requires the California court to issue its ruling within 90 days, and the Ninth Circuit could move quickly after that. So a ruling on both standing and the merits could come as soon as six months from now.
Then there will likely be appeals to the full court (for what’s called an “en banc” hearing), and from there to…the Supreme Court.
Setting aside the legal complexities of the standing issue, I have two observations: First, the proponents are having trouble establishing standing because they can’t show that they’ll be harmed in any way if Prop 8 is declared unconstitutional. This problem mirrors the broader issue with marriage equality: it’s only those of us fenced out of it who are harmed, not those who already have the right.
Second, on balance I’d prefer for the courts to find standing here. A victory on the merits is more satisfying, and also more decisive. And if we lose at the Supreme Court level (which I think is about an even bet), that defeat would not cause the marriages of same-sex couples in states that already recognize them to be voided. We’d just have to continue working at the state level, in both legislatures and the courts (which can read their own state constitutions more broadly than the U.S. version).
Yes, I know we can keep trying to get this done in the U.S. Congress, but I’m not that Pollyannish – at least for the foreseeable future.
(2) Speaking of the U.S. Constitution and that same Ninth Circuit: That court has just found that a change to an Arizona law that had the effect of denying health benefits to state-employed same-sex couples violates the constitutional guarantee of equal protection. The state had formerly extended health benefits to domestic partners, but after the voters amended the state’s constitution to bar same-sex marriages, the term “domestic partner” was eliminated as a class of eligible beneficiaries. The effect is that one would have to be legally married for one’s spouse to receive health benefits– and of course same-sex couples don’t have that option.
The court’s ruling is only a temporary injunction for now, but it’s still an important win. By issuing the injunction, the court found that the same-sex coupled plaintiffs are likely to succeed on the merits of their suit and that they would suffer “irreparable harm” were the law allowed to take effect.
What does this say about Gov. Janet Brawer’s “sign from God” that she should approve the bill?
So good work can be done with equal protection no matter what the Supreme Court decides on the marriage issue; but it will be harder if the Court’s language and reasoning are overly broad. I don’t expect that to happen, though.
(3) On the practical, problem-solving front, we have the finalization of federal rules which will greatly expand our rights to visit our partners and spouses in health care facilities. If the facility receives any federal funding (which almost all do, thanks to Medicare and Medicaid), they must allow the patient to designate his or her own emergency contact.
This is a great advance for same-sex couples, but not only for us. It recognizes reality over status, and furthers the autonomy of all patients. Once again, the Obama Administration – despite its mixed record of success on our signature goals of ENDA, DOMA, and DADT – has shown a great capacity for practical problem-solving.
John Culhane has written a chapter about marriage equality in Reconsidering Law and Policy Debates: A Public Health Perspective; he is also the editor of the volume.
Sometimes I feel like we’re fighting the wrong battle – even when it’s a battle I myself have fought.
The issue of employer-provided health insurance for our partners was recently addressed in a story appearing in the University of Virginia’s newspaper, the Cavalier Daily (and that was linked to this site). The University doesn’t provide health benefits to the same-sex partners of its employees, although it does make them available to the spouses of married couples.
A spokesperson for the University said that state law prohibits the school, which is state-funded, from granting such benefits. (Virginia, as you might remember from my first column on this site, isn’t exactly a friendly place when it comes to LGBT rights.) This statement probably isn’t accurate; state schools have a great deal of autonomy, and the school might well be able to grant the benefits absent a specific law that would prevent them from doing so.
Even if the school wanted to avoid incurring the wrath of the state’s right-wing governor (whose propensity for outrageous assaults on GLBT rights is exceeded only by his willingness to back down when the political costs are too high) and legislature, it could easily sidestep the problem. Here’s how the University of Michigan did so: it simply created a new category of benefit-eligible employees (“otherwise qualified”). If anything, the task was harder in Michigan because of a state supreme court ruling that read the state’s marriage anti-equality amendment to prohibit any government entity from recognizing the status of domestic partnership.
In short, the University of Virginia could allow the benefits, if the will to do so were there.
And the current policy has a cost of its own. First, partnered LGBT employees feel they’re being treated unfairly. The Cavalier article quotes a professor Ellen Bass, who has concluded that it’s cost her “thousands of dollars to be a gay person” at the University – in part because neither her son nor her partner are covered by her health insurance.
Second, for every person like Bass, there are doubtless many others who might pass over the University, which is an otherwise prestigious and desirable employer, in favor of other schools with more enlightened policies. Those who have such choices are likely the most qualified of the applicant pool.
This issue should be easy.
Health benefits are a valuable and, for many, vital part of compensation. Eight years ago, I went to my law school’s dean to make this case. Within a year-and-a-half (light speed by university standards), it was done. The university had no answer to the dean’s argument that, by providing benefits to straight couples but not gay ones, they were fostering an unfair wage disparity.
But is it really that simple? Not if we start from a different place: Why do employers offer (much less pay for) health insurance in the first place? It wasn’t always thus; during World War II, employers came up with the idea as a way to get around the wage freeze that was then in place. And then the practice just…stuck. To make the pot even sweeter, many employers now offer benefits to the families and spouses of their employees, too. But this only creates a wage disparity between employees. The single worker realizes less of a benefit than the one with a family.
Granting benefits to same-sex partners doesn’t solve this problem; it only addresses one small part of it. Someone needs to come up with a better idea; like, oh, I don’t know…single-payer, universal health coverage?
That’s not going to happen any time soon. So we continue to skirmish over the extent of coverage in an accidental system. We have only this hand to play, but should remember that the goal is to get as many people covered as possible – no matter what kind of relationships they’re in.
John Culhane is a Professor of Law, a contributing writer for Slate Magazine, and a blogger. He is the editor of “Reconsidering Law and Policy Debates,” and contributed the chapter on marriage equality.