Earlier this week, on a call hosted by People For the American Way, senior fellow Jamie Raskin discussed some of this term's most important Supreme Court cases in an exclusive conversation with members of our affiliate foundation's leadership networks: the African American Ministers Leadership Council, the Young Elected Officials Network, and Young People For. As the invitation stated:
In response to a national groundswell against racism, Congress passed the Voting Rights Act … Will the Supreme Court strike down the premier civil rights legislation of the twentieth century?
In response to a different type of groundswell, Congress passed the Defense of Marriage Act and California adopted Proposition 8. Will the Supreme Court protect the rights of gay and lesbian couples?
In response to a campus that didn't reflect diversity, the University of Texas adopted an affirmative action plan. Will the Supreme Court call that an unconstitutional act of racism?
Cases like these and so many others make it clear that the nation's courts matter. Struggles to adopt policies, for both good and evil, don't end when they're adopted by Congress, states, cities, universities, or businesses. The courts often get the last word.
And their decisions affect all of us profoundly.
Professor Raskin discussed these cases and answered questions from participants from around the country.
Protec[t] the unity and sanctity of the family, including the families of bi-national, same-sex couples, by reducing the family backlogs and keeping spouses, parents, and children together.
CHC has made a crucial commitment to ending discrimination against bi-national, same-sex couples who currently face an untenable immigration situation because the federal government fails to fully recognize their families. “One Nation” and legislation in Congress known as the Uniting American Families Act (UAFA) serve as meaningful steps toward keeping these families together. UAFA allows same-sex “permanent partners” to be united legally through the US immigration process, making them eligible for green cards and immigrant visas. To protect against abuse, UAFA imposes the same penalties for immigration fraud as those currently imposed on married heterosexual couples – and in some cases sets the bar higher for same-sex couples.
PFAW enthusiastically supports the “One Nation” commitment to LGBT equality.
It certainly puts the bill in a better light. It changes the background and it has an impact in moving the bill forward. The bill is developing more and more momentum.
Jo Deutsch, Federal Director for Freedom to Marry, explained why:
It shows a man going from point one — from his own questioning, to talking to family and friends, thinking about his own religious upbringing, from seeing people who are impacted by DOMA — and come to end of that journey and say he is for the freedom to marry. That piece acts as an umbrella over all of what is going on on Capitol Hill. ... Because if President Obama can do it and say he is for the freedom to marry, maybe I can do it too.
We also have new momentum for equality in the military context, first at DOJ, and now at the VA:
The court notice, [filed in Cardona v. Shinseki and] signed by VA General Counsel Will Gunn on behalf of VA Secretary Eric Shinseki, says VA will not fight Fifth Amendment claims based on equal protection under the law brought against DOMA.
The memo also says Shinseki believes DOMA should be subject to a “heightened scrutiny” standard, meaning it is up to defendants to prove the law is justifiable under the constitution, as opposed to the “rational basis” standard, which puts the burden on the law’s opponents to prove there is no rational reason for it to exist.
Unfortunately, much work – and anti-equality forces – remain.
Section 536 – Provide a “conscience” protection for chaplains and other personnel. Extending to marriage and any other belief regarding the “appropriate and inappropriate expression of human sexuality,” this language will have broad-based discriminatory impact, and it ignores that fact that the military and the First Amendment already provide adequate protections.
Section 537– Restrict the use of DOD property against performing same-sex marriage ceremonies. Though DOMA remains in place, there is no reason why facilities shouldn’t be available to same-sex couples whose marriages are recognized at the state level.
Click here for more information from the Servicemembers Legal Defense Network.
When FY13 Commerce, Justice, Science appropriations hit the House floor, Amendment 1096passed, which would withhold funds for any contravention of DOMA, based on the false belief that the government is (or will somehow in the future) start recognizing same-sex marriages. No marriages are being recognized. We’re still enforcing the law. Where’s the contravention?
(The Senate has yet to act on either of these proposals, and it remains to be seen what might later happen in conference. The Defense bill is also subject to a veto threat, based in part on Sections 536 and 537.)
And let’s not forget what Speaker Boehner said, that Republicans are “focused in on the economy,” as if equality is somehow a political distraction. Equality is an economic issue. Same-sex couples and LGBT families need and deserve the economic security that the freedom to marry would provide.
When I meet gay and lesbian couples, when I meet same-sex couples, and I see-- how caring they are, how much love they have in their hearts-- how they're takin' care of their kids. When I hear from them the pain they feel that somehow they are still considered-- less than full citizens when it comes to-- their legal rights-- then-- for me, I think it-- it just has tipped the scales in that direction.
It’s clear that, for the President, this isn’t just about couples getting married. It’s also about couples raising children with the sense of security that comes from family equality.
Just an hour after the big news broke, family equality was front and center at the New York Stock Exchange.
PFAW and the African American Ministers in Action Equal Justice Task Force have joined with Family Equality Council and a broad coalition to support a wonderful bill called the Every Child Deserves a Family Act, which would withhold a portion of federal funding from entities that discriminate in adoption and foster care placements based on the LGBT or marital status of prospective parents, or the LGBT status of the children involved. The Department of Health and Human Services (HHS) would provide technical assistance to all affected entities. The Government Accountability Office (GAO) would study compliance with the law and any continued discrimination.
Last night, the tide went out. North Carolinians voted 61% to 39% in favor of an anti-gay constitutional amendment that not only deals another blow to gay and lesbian couples in the state, who are already prohibited by law from marrying, but also endangers protections for all unmarried couples, including domestic violence protections and health insurance coverage.
Today’s announcement marks a proud day for our country and for the President. For those of us who have been working towards marriage equality for many years, the impact of having the support of the President of the United States is incredibly powerful. As President Obama made clear in his comments today, marriage equality for all people is an idea whose time has come. Despite setbacks like the results from North Carolina last night, it’s more obvious than ever that the momentum is on our side.
While we continue to fight to Dump DOMA and for LGBT equality broadly, please keep in mind how far we’ve come.
I know I am thinking about that now.
Eight years ago, as I was preparing to leave Ohio University, I said goodbye to one of my best friends. I remember writing to him in a card that I hoped our husbands would someday get to meet. That November – November 3 to be precise – I was on the phone with that same friend, who was heartbroken at what for many was a difficult (including OhioAmendment 1) election. Fast forward to his Facebook status this afternoon:
THANK YOU President Obama! Those of you who know [my partner and me]: we have such an incredibly strong, stable, loving relationship. Opening our relationship up to marriage does nothing but STRENGTHEN the institution!
If we keep working hard, who knows what tomorrow will bring for my friend and his partner – and for us all.
The plaintiffs, each legally married, want the armed services to recognize their families and seek the same family support and benefits for their same-sex spouses that the services and Department of Veterans Affairs provide to opposite-sex spouses.
[ . . . ]
Currently, federal law requires the military to ignore these marriages and, therefore, prevents it from providing vitally needed benefits to these legally married spouses, including housing; health care; surviving spouse benefits; the issuance of military identification cards; and morale, welfare, and recreational programs.
Then in March, Representative Jerrold Nadler and the other lead sponsors of the Respect for Marriage Act sent a letter to Speaker Boehner asking that he abandon his defense of DOMA.
At a time when families are struggling to make ends meet and asking Congress to focus on jobs, the economy, and federal spending, all Members should be concerned that taxpayers dollars are being used to pay costly legal fees to make arguments that lack adequate factual or legal support, in pursuit of a law that is not worthy of a defense.
This week brings word to the contrary – Speaker Boehner hasdirected the Bipartisan Legal Advisory Group, controlled 3-2 by Republicans, to seek intervention in McLaughlin.
The Servicemembers Legal Defense Network, who filed the suit, sent a strong message that the Speaker is hurting military families. Army veteran and Executive Director Aubrey Sarvis:
Speaker Boehner's request to defend this case in the wake of the ongoing harm done to military families by these discriminatory laws is reprehensible and callous. The Speaker has turned a deaf ear to the urgent pleas of CW2 Charlie Morgan and countless families like hers, who are living with the day-to-day realities of a military that has been forced to create two classes of service members . . . [His] politically motivated ongoing defense of these unjust laws is hurting military families. It's time to repeal DOMA and revise these antiquated laws that are preventing all military families from being treated with fairness and equality. There cannot be two classes of service members.
The families in today’s lawsuit meet every qualification for immigration benefits, with the sole exception that they happen to be lesbian or gay. Solely because of their sexual orientation, they have been singled out, under federal law, for discrimination and separation. That’s not only unconscionable; it is unconstitutional. We know DOMA cannot withstand careful review, and we know we will prevail on their behalf.
The Court has found that DOMA unconstitutionally discriminates against same-sex married couples.
In so doing, Judge White ruled in favor of Karen Golisnki, a Ninth Circuit staff attorney, who had sought the enrollment of her wife, Amy Cunninghis, in her existing family coverage health insurance plan with Blue Cross and Blue Shield. Now the spousal coveragecan be granted.
In compliance with that Order, OPM hereby withdraws any outstanding directive regarding the enrollment of Ms. Golinski’s wife, Amy C. Cunninghis, in her family health benefits plan. Please implement an expeditious enrollment of Ms. Cunninghis, pursuant to the Standard Form 2809 dated September 2, 2008 as supplemented by this letter and consistent with the Court’s Order of February 22, 2012.
Judge White’s ruling is consistent with previous rulings and marks yet another step forward in the fight for the freedom to marry. Though applying only to Karen and Amy, it’s a strong statement that legally married couples shouldn’t have to go to court in order to access healthcare. (Click here to learn about the backlash.)
It’s also the latest sign that conservatives in Congress have a tough road ahead in their political push to keep DOMA on the books. On Monday, Representative Jerrold Nadler and the other lead sponsors of the Respect for Marriage Act sent a letter to Speaker Boehner asking that he abandon his defense of DOMA.
At a time when families are struggling to make ends meet and asking Congress to focus on jobs, the economy, and federal spending, all Members should be concerned that taxpayers dollars are being used to pay costly legal fees to make arguments that lack adequate factual or legal support, in pursuit of a law that is not worthy of a defense.
I am confident that justice and fairness will prevail in the end. Our Nation is too noble and our sense of liberty too strong to tolerate injustice without end. I am heartened by the progress that we are seeing across the country. Public consciousness is evolving, and will reach the point at which discrimination based on sexual orientation becomes another sad relic of our past. I believe we will look back at these prejudices with disappointment and regret, just as we have at other points in our history. But the capacity of our Nation to evolve and progress is a defining characteristic of the American spirit. And the American people ultimately come to reject that which is fundamentally unfair and unjust.
Senator Leahy is the lead sponsor of the Uniting American Families Act, a bill that would allow same-sex “permanent partners” to be united legally through the US immigration process, making them eligible for green cards and immigrant visas. To protect against abuse, UAFA imposes the same penalties for immigration fraud as those currently imposed on married heterosexual couples – and in some cases sets the bar higher for same-sex couples.
Frances Herbert and Takako Ueda, two of Senator Leahy’s constituents, are legally married in Vermont. But Frances cannot sponsor Takako for immigration because they are not married under the eyes of the federal government. After over a decade together, DOMA repeal and, short of that, UAFA are the only ways to ensure that this loving couple is not torn apart or forced to live in a permanent state of uncertainty.
In other immigration news, US Customs and Border Protection is working to eliminate the discrimination faced by LGBT couples and families who currently aren’t recognized when they go through the customs line.
When you get a customs form, it clearly states, “only ONE written declaration per family is required.” An opposite-sex couple or a family led by an opposite-sex couple only has to fill out that single form. But if a same-sex couple or LGBT-led family goes through the line, they’re stopped, separated, and forced to fill out two forms.
In June 2011, Mihail – a naturalized U.S. citizen originally from Pakistan – and Scott entered the U.S. following a European trip. They filled out one customs form, “since it states that only one form is needed for each family,” said Mihail. The customs officer asked why they had only completed one form, and when they replied they were domestic partners registered in the state of California, the officer said, “The federal government doesn’t recognize that.”
“Scott and I met the qualifications on the customs form, including a shared address, yet the federal government refused to recognize us as a family,” said Lari. “After waiting years for citizenship because federal law would not allow Scott to sponsor me, we were then faced with the reality that, even after I naturalized, we were still not family in our government’s eyes."
Such demeaning treatment is hardly an appropriate way to welcome people back to America. New regulations have just been released that, following a series of reviews, will correct this inequity and eliminate the “double” standard. A coalition including Immigration Equality and Family Equality Council was instrumental in bringing about this change.
PFAW applauds their work and CBP’s recognition that “gay families [are] ‘real families,’ too.”
The Court has found that DOMA unconstitutionally discriminates against same-sex married couples.
In so doing, Judge White ruled in favor of Karen Golisnki, a Ninth Circuit staff attorney, who had sought the enrollment of her wife, Amy Cunninghis, in her existing family coverage health insurance plan with Blue Cross and Blue Shield. Now the spousal coveragecan be granted.
In compliance with that Order, OPM hereby withdraws any outstanding directive regarding the enrollment of Ms. Golinski’s wife, Amy C. Cunninghis, in her family health benefits plan. Please implement an expeditious enrollment of Ms. Cunninghis, pursuant to the Standard Form 2809 dated September 2, 2008 as supplemented by this letter and consistent with the Court’s Order of February 22, 2012.
Judge White’s ruling is consistent with previous rulings and marks yet another step forward in the fight for the freedom to marry. Though applying only to Karen and Amy, it’s a strong statement that legally married couples shouldn’t have to go to court in order to access healthcare. (Click here to learn about the backlash.)
It’s also the latest sign that conservatives in Congress have a tough road ahead in their political push to keep DOMA on the books. On Monday, Representative Jerrold Nadler and the other lead sponsors of the Respect for Marriage Act sent a letter to Speaker Boehner asking that he abandon his defense of DOMA.
At a time when families are struggling to make ends meet and asking Congress to focus on jobs, the economy, and federal spending, all Members should be concerned that taxpayers dollars are being used to pay costly legal fees to make arguments that lack adequate factual or legal support, in pursuit of a law that is not worthy of a defense.
I am confident that justice and fairness will prevail in the end. Our Nation is too noble and our sense of liberty too strong to tolerate injustice without end. I am heartened by the progress that we are seeing across the country. Public consciousness is evolving, and will reach the point at which discrimination based on sexual orientation becomes another sad relic of our past. I believe we will look back at these prejudices with disappointment and regret, just as we have at other points in our history. But the capacity of our Nation to evolve and progress is a defining characteristic of the American spirit. And the American people ultimately come to reject that which is fundamentally unfair and unjust.
Senator Leahy is the lead sponsor of the Uniting American Families Act, a bill that would allow same-sex “permanent partners” to be united legally through the US immigration process, making them eligible for green cards and immigrant visas. To protect against abuse, UAFA imposes the same penalties for immigration fraud as those currently imposed on married heterosexual couples – and in some cases sets the bar higher for same-sex couples.
Frances Herbert and Takako Ueda, two of Senator Leahy’s constituents, are legally married in Vermont. But Frances cannot sponsor Takako for immigration because they are not married under the eyes of the federal government. After over a decade together, DOMA repeal and, short of that, UAFA are the only ways to ensure that this loving couple is not torn apart or forced to live in a permanent state of uncertainty.
During the LA curtain call, director Rob Reiner brought David Boies, one of the attorneys in the case, up on stage. (1:59:19) I think Boies sums it up best.
We did put fear and prejudice on trial, and fear and prejudice lost.
PFAW had this to say (and this) following last month’s Ninth Circuit ruling:
Today’s ruling is a major victory for equality and for the thousands of California couples who saw their marriage rights disappear four years ago.
Proposition 8 hurt Californians. It took away the freedom of committed couples to legally marry, to raise children in security, to visit each other in the hospital and to provide for each other in old age. It hurt gay and lesbian Californians, and it hurt their friends and families. Proposition 8 wasn’t just unconstitutional – it was simply wrong.
I congratulate all the Californians who have regained their freedom to marry, and hope that that freedom will soon be extended to every American.
Indeed, we must keep working to ensure that marriage discrimination does not persist at the federal level. Please take a moment to add your name to PFAW's petition urging Congress to Dump DOMA and end this unconstitutional, discriminatory policy once and for all.
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