Continuing the unbroken record of marriage equality wins since last year’s Supreme Court ruling against DOMA in the Windsor case, today a federal judge ruled unconstitutional Kentucky’s ban on marriage for same-sex couples.
The judge has stayed the ruling for now, meaning that Kentucky couples can’t immediately begin marrying. But the decision is a significant victory for LGBT families in the Bluegrass State, where activists have fought courageously for equal rights for many years. Congratulations, Kentucky!
Today a state circuit judge in Arkansas ruled in favor of the freedom to marry, the latest in a unanimous wave of favorable rulings from more than a dozen state and federal judges across the country in recent months. Judge Piazza held that there is no good reason for discriminating against couples and their loved ones just because they are gay. With nearly 70 marriage cases now making their way through the courts, and five federal appellate courts now hearing arguments and soon to rule, today's decision out of Arkansas underscores that all of America is ready for the freedom to marry.
One notable Southerner helping to lead the way is Congressman John Lewis, who for more than fifty years has championed the causes of civil rights and was one of only eighty-one members of the House and Senate who voted against the Defense of Marriage Act.
Late last month came word that State Superior Court Judge Mary C. Jacobson had ruled that New Jersey was no longer in compliance with its state constitutional requirement of Equal Protection, following the US Supreme Court's ruling against DOMA, and must extend full marriage to same-sex couples.
Just moments ago we heard that the New Jersey Supreme Court has refused to stay that ruling – meaning that marriage equality comes to New Jersey at 12:01 am this Monday, October 21.
Same-sex marriages will begin within days in New Jersey after the state’s highest court ruled unanimously Friday to uphold a lower-court order that gay weddings must start Monday and to deny a delay that was sought by Gov. Chris Christie’s administration.
“The state has advanced a number of arguments, but none of them overcome this reality: Same-sex couples who cannot marry are not treated equally under the law today,” the court ruled. “The harm to them is real, not abstract or speculative.”
The fight for marriage equality in New Jersey is by no means over. Oral arguments in the underlying appeal are scheduled for January, and there are many unanswered questions as to how and for how long marriage will be available to all New Jerseyans.
But Monday morning will still bring a great step toward progress.
Fifteen years ago today, on October 7, 1998, Aaron Kreifels found Matthew Shepard clinging to life in a field outside Laramie, Wyoming. Unfortunately, Shepard lost that battle five days later. What resulted was a rallying cry for the LGBT equality movement. It's a movement that has indeed seen tremendous progress. 2009: The Shepard-Byrd hate crimes law passes. 2010: Don't Ask, Don't Tell is repealed. 2011: The military begins to implement a new culture of inclusion. 2012: The Supreme Court accepts two marriage cases. 2013: DOMA and Prop 8 rulings significantly advance marriage equality. But it's also a movement that has more to achieve. So not only do we remember Matthew Shepard this week, but we pledge anew to honor his unfilled potential and how his silenced voice – how all those silenced by hate – calls upon us to Imagine.
This afternoon, a trial court in New Jersey ruled that the state is required under the state constitution to extend full marriage to same-sex couples. This is an appropriate and predictable outcome of the Supreme Court's decision in June striking down Section 3 of the misnamed Defense of Marriage Act.
In 2006, the New Jersey Supreme Court ruled that the state had to treat same-sex couples and opposite-sex couples equally under the law. But it left it to the legislature to determine if civil unions would fit the bill, and that's the route the legislature took. As long as same-sex couples were restricted by DOMA from enjoying the 1000+ federal rights and responsibilities that go along with marriage, one could argue that New Jersey could offer civil unions and still comply with that 2006 ruling.
But the Supreme Court's decision in Windsor changed everything. Now, Section 3 of DOMA is no more. So for a same-sex couple in New Jersey, it makes an enormous difference whether you have a civil union or a full marriage. So today's ruling by a state trial court makes perfect sense. As the court noted:
The ineligibility of same-sex couples for federal benefits is currently harming same-sex couples in New Jersey in a wide range of contexts: civil union partners who are federal employees living in New Jersey are ineligible for marital rights with regard to the federal pension system, all civil union partners who are employees working for businesses to which the Family and Medical Leave Act applies may not rely on its statutory protections for spouses, and civil union couples may not access the federal tax benefits that married couples enjoy. And if the trend of federal agencies deeming civil union partners ineligible for benefits continues, plaintiffs will suffer even more, while their opposite-sex New Jersey counterparts continue to receive federal marital benefits for no reason other than the label placed upon their relationships by the State.
So New Jersey, by denying marriage equality, is no longer in compliance with its state constitutional requirement of Equal Protection.
We do not yet know if New Jersey will appeal the decision and try to stop the state's march toward equality.
Justice Antonin Scalia is making headlines again, this time for a speech to the Federalist Society in Montana yesterday. According to the AP, Scalia was discussing the Constitution's Equal Protection guarantee, which protects those who are unpopular from legislation specifically targeting them for harm.
In an apparent reference to the court's recent decisions on gay marriage and benefits for same-sex couples, Scalia said it is not the function of the courts to create exceptions outside the Constitution unless a majority of people agree with them.
Of course, no one is saying that the courts should be creating exceptions outside the Constitution. The disagreement is over what is "outside the Constitution," and Scalia apparently thinks "equal protection" doesn't apply to everyone.
"It's not up to the courts to invent new minorities that get special protections," Scalia told a packed hotel ballroom in southwestern Montana.
Minorities like gays and lesbians don't need the court to create us – we're already here, along with everyone else. And when laws are passed signaling out a group for harsh treatment, as DOMA did, it is the legislature that is "inventing minorities" that get "special" treatment. What the Court is doing is eliminating the invidious classification, as the Constitution requires.
[T]he effort to overturn DOMA is not over. While Section 3 was the law’s most damaging provision, DOMA’s Section 2, which says that states don’t have to recognize same-sex marriages performed in other states, still stands.
Though Section 3 exists no more, PFAW will continue working to formally take DOMA off the books and repeal Section 2.
Our legislation is necessary because inequities in the administration of more than 1,100 federal laws affected by DOMA—including social security and veterans benefits—will still need to be fixed. It is time Congress strike this discriminatory law once and for all.
[T]he Social Security Act provides Survivors’ Benefits – which are critical for families after a spouse dies – based on the law of the state where the deceased spouse was domiciled at the time of death.
So, a married couple could live together for 40 years, contribute equally to the system, and then be stripped of what they have earned – just because they moved to another state for medical reasons before one spouse passed. That’s just not right.
Veterans benefits are based on the law of the state where the parties resided at the time of the marriage, or when the right to benefits accrued.
So, different veterans benefits might be granted or denied, depending on where a couple lived at different times, without any rhyme or reason. That’s not fair to former servicemembers who may have moved around as part of their military service.
The Supreme Court today ruled that the core section of the so-called Defense of Marriage Act violates the Constitution’s guarantee of equal protection under the law. DOMA’s Section 3, which the Court vacated, prevented the federal government from recognizing same-sex marriages performed in the states, thereby hitting legally married gay and lesbian couples with extra taxes and depriving them of a slew of federal protections.
People For the American Way Foundation president Michael Keegan said of the Supreme Court’s ruling: “Today’s DOMA ruling is a profound step forward for loving, committed same-sex couples across the country. The decision is premised on the plain fact that there is no good reason for the government to recognize some legally married couples while discriminating against others.”
PFAW launched a campaign to “Dump DOMA” in 2008. Since then, our petition calling on Congress to repeal the discriminatory law has gathered 230,000 signatures.
But the effort to overturn DOMA is not over. While Section 3 was the law’s most damaging provision, DOMA’s Section 2, which says that states don’t have to recognize same-sex marriages performed in other states, still stands. We will continue to work to overturn the remainder of DOMA and ensure that all gay and lesbian Americans have the right to marriage, no matter which state they make their home.
Today's 5-4 Supreme Court decision striking down DOMA devastates one of the Far Right's most ridiculous talking points: that state legislatures behave anti-democratically when they pass marriage equality legislation without a statewide referendum.
Here are a couple of choice quotes from Justice Kennedy's majority opinion:
After a statewide deliberative process that enabled its citizens to discuss and weigh arguments for and against same-sex marriage, New York acted to enlarge the definition of marriage to correct what its citizens and elected representatives perceived to be an injustice that they had not earlier known or understood. (page 14)
In acting first to recognize and then to allow same-sex marriages, New York was responding to the initiative of those who [sought] a voice in shaping the destiny of their own times. These actions were without doubt a proper exercise of its sovereign authority within our federal system, all in the way that the Framers of the Constitution intended. (page 19, internal quotes and citations removed)
The idea that marriage equality legislation adopted without a referendum is anti-democratic was always a ridiculous sign of desperation. But it is nice to see it countered in today's DOMA decision.
For the elderly, the fight against DOMA often isn’t only a question of receiving federal recognition for a marriage – it’s also a question of basic economic survival. At “The Harms of Marriage Discrimination: Older Same-Sex Couples and DOMA”, a panel organized by Freedom to Marry and Services and Advocacy for GLBT Elders (SAGE), advocates, experts, and seniors alike testified to DOMA’s particular burden on lesbian, gay, bisexual, and transgender seniors:
While still working, relying on a same-sex spouse’s health insurance results in their benefits being treated as taxable income, while opposite-sex couples’ benefits come tax-free.
LGBT seniors cannot receive retirement benefits based on a spouse's earning record. Normally, Social Security entitles one to 50% of a spouse's benefits while both are alive, a benefit which stacks as "dual entitlement" if both spouses have worked.
The same 50% rule usually applies to disability benefits received in the case of a disabled spouse, but LGBT seniors are excluded from this as well.
Surviving LGBT widows and widowers receive neither Social Security’s lump-sum death benefit nor its survivor benefit based on a deceased spouse’s earnings.
Asset transfers to surviving spouses are subject to the federal estate tax when it comes to LGBT seniors, instead of being 100% exempt as for opposite-sex couples.
In sum, while working LGBT families pay into Social Security their entire lives just like everybody else, they are entitled neither to shelter upon retirement nor to security upon death or disability. The loss of all the above benefits – shared healthcare, retirement and survivor benefits – comes to an average loss per year of $40,000. Add to that an average $1.1 million per LGBT couple paid in federal estate taxes, and a major cause of the economic struggles faced by many LGBT seniors becomes clear.
Add again the unquantifiable emotional burdens of discrimination, and the answer is even clearer: DOMA must be dumped. Now.