Breaking News: Marriage Equality Coming to New Jersey

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.

CBS New York in Trenton:

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.

New Jersey = 14th state!


Matthew Shepard calls upon us to Imagine

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that has indeed seen tremendous progress. 2009: The Shepard-Byrd hate crimes law passes. 2010: Don't Ask, Don't Tell is repealed. 2011: The military begins to implement a new culture of inclusion. 2012: The Supreme Court accepts two marriage cases. 2013: DOMA and Prop 8 rulings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.

Think. Share. Act.


Windsor's Echoes in New Jersey

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.

PFAW Foundation

Scalia Claims Courts "Invent New Minorities"

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.

PFAW Foundation

Dumping DOMA: The Next Step

As Miranda pointed out yesterday:

[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 champions on the Hill agree. Not long after the Supreme Court issued its ruling, Representative Nadler and Senator Feinstein reintroduced the Respect for Marriage Act, H.R. 2523/S. 1236.

Representative Nadler:

We salute today’s ruling. It is a tremendously important victory, but it is also a call to all of us to finish the job by passing the Respect for Marriage Act.

Senator Feinstein:

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.

For example:

[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.

PFAW is a strong supporter of the Respect for Marriage Coalition and applauds Representative Nadler, Senator Feinstein, and their 200 bipartisan cosponsors for taking swift action to dump DOMA.


Supreme Court Dumps PART of DOMA

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.

While our work continues, today’s decision represents a historic turning point for equality.  DOMA will no longer tear apart binational couples. It will no longer impose a “gay tax” on legally married same-sex couples. It will no longer deny benefits to same-sex spouses of federal employees. It will no longer deny gay and lesbian veterans benefits for their spouses.

The story of Edith Windsor, the plaintiff who brought DOMA to the Supreme Court, and Thea Spyer, her late wife and partner of 40 years, illustrates what this decision will mean to so many Americans:


DOMA Decision Slices Right Wing Talking Point on Referendums

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.

PFAW Foundation

For LGBT Seniors Fighting DOMA is About Economic Survival

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.


Inside the Supreme Court, Bearing Witness to History

My morning routine yesterday wasn’t very remarkable. The alarm went off with its standard annoying noise, my shower was cold (as is usual in a house of 16 interns fighting for precious little warm water), and breakfast was unquestionably mediocre. But just a block away from my bowl of cereal and skim milk, I knew that in an ornate chamber nine individuals would be considering something truly historic.

Growing up gay in a small, conservative town in southeast Texas, I oftentimes felt disconnected from the issues and events of the wider world. For as long as I can remember, I have had the drive to know, to understand, and to be a part of something much larger than my small beginnings. The cases before the Supreme Court are a perfect example of this. Marriage equality is something that not only affects me personally, but is regarded as one of the defining civil rights issues of my generation. Being in DC during this event was truly a stroke of good fortune and I couldn’t pass on the opportunity to be a part of history.

I headed to the steps of the Supreme Court, foolishly thinking that no one would be in line at such an early hour of the morning. How wrong I was. Spanning the length of the sidewalk were some 200+ people waiting for one of the coveted seats in the Supreme Court chamber. My chance of being a part of history, it seemed, looked uncertain. As I worked my way to the end of the line, one woman in the crowd turned to me and said “Don’t get your hopes up for getting a seat.” Luckily, I’m not used to taking advice from strangers, so I soldiered on. At the end of the line, an older lesbian couple from Ohio greeted me and chided my decision not to bring a jacket. Being from Texas, I’m not used to needing any sort of warm clothing in the month of March. Guess I still have a lot to learn about living in DC.

The first 60 or 70 individuals in line, I was told, would be able to sit through the entirety of the oral arguments. The rest of us who were lucky enough to receive a ticket would be rotated into the back portion of the audience seating. After what seemed like ages in the cold and wind, I managed to reach the front of the line and secure a ticket to sit and listen to a brief three-minute portion of the oral arguments in United States v. Windsor. Better to witness a small part of history than none at all!

After securing all of my belongings into a locker inside the building, we were placed in another line to await our seating assignments. The nervous excitement and uncertainty from the crowd was palpable. For myself and for others in the line, this case, challenging the federal Defense of Marriage Act (DOMA), had the potential to make a real and lasting influence on our lives. How often do you get the chance to witness your own future in the making?

Luckily, I was given a great seat that had an unobstructed view of the proceedings. During the three minutes I was in the room, Paul Clement, the lawyer defending DOMA on behalf of the so-called Bipartisan Legal Advisory Group, was being questioned by Justices Kennedy and Ginsburg, both of whom seemed critical of DOMA’s constitutionality. Commentators and legal analysts have all pointed to Justice Kennedy as the deciding swing vote on the DOMA case, and I couldn’t help but focus on him during much of my preciously brief time in the room. It’s an odd feeling, looking into the face of someone who has the power to make such a difference in your life. As I looked at him and the other justices, I wondered if they knew how much was riding on the case before them. How many future “I do”s would continue to be treated as second-class? Justice Ginsburg summed up current law in a humorous and relevant way: "There are two kinds of marriage: full marriage and the skim-milk marriage."As you can probably tell, I’m not a fan of skim milk in my marriage or my breakfast cereal. I, and millions of other LGBT Americans including Edie Windsor, don’t want watered down rights. I left the courtroom hopeful that at least five of those nine justices would see that this is no different from the “separate but equal” arguments of the past.

As DOMA and Proposition 8 begin to fade back into the recesses of the American public’s attention, I continue to remind myself that legal recognition for same-sex couples is just one piece in the enormous puzzle for equality. While TIME Magazine’s newest cover declares "Gay Marriage Already Won," the sad reality is that LGBT Americans continue to be treated as second-class citizens on a host of issues. Today, in 29 states (including my home state of Texas), you can be legally fired from your job just for living your life openly gay. In 34 states, you can be fired for your gender identity. And for thousands of binational same-sex couples and undocumented LGBT immigrants, the threat of deportation remains a daily source of fear and isolation. These issues may not get the media coverage or viral appeal that marriage equality does, but they nonetheless affect the lives and livelihoods of our friends, families, and neighbors in real ways. Let’s not forget that.

The road to “a more perfect union” will be a long and difficult one. But no matter what happens, I will hold these words of Dr. Martin Luther King, Jr. close to my heart: “The arc of the moral universe is long, but it bends towards justice.” I’m doing my best to make sure that becomes reality sooner rather than later.


Rallying for Marriage Equality – Day Two

Yesterday, PFAW staff and members rallied at the Supreme Court for marriage equality. Today we returned to the Court for Day Two with United For Marriage.

It was indeed a big day for the PFAW family, as one of our own, Minister Leslie Watson Malachi, delivered remarks. Her “Stay in Hope” speech offered a powerful vision of not only of hope but also of unity.

As an African American woman, on behalf of the Equal Justice Task Force of African American Ministers In Action, Hope says the enemy is a liar when they say African Americans and lesbian, gay, bisexual, and transgender (LGBT) people are two separate - even hostile – communities, for “no weapon shall be forged against us” and no wedge can be driven between those who know oppression, discrimination, denial of basic civil and human rights. Hope connects the civil rights movement to the gay rights movement, the yesterday to today, the hopeful to the hopeless.

We all have different stories to tell, but the struggle for equality remains, and we should fight together – we are fighting together.

Minister Malachi was among a stellar roster of speakers today, including an appearance from Representative Xavier Becerra (D-CA34), not clad in business attire as a member of Congress, but “suited up” in jeans as a father whose young daughter, Natalia, knew that she wanted to be there to witness history and asked him to join her.

In 1996, I voted against the Defense of Marriage Act (DOMA). Today, I stood on the steps of the U.S. Supreme Court to witness history, and I say this as a proud father, Latino, and Catholic... the time for equality is now.

Natalia is further testament to the fact that young people have paved the way for the American majority that now supports marriage equality.

What has stood out most for me from this experience is seeing the real people behind these cases. Yesterday, I waited at the Court until attorneys David Boies and Ted Olson walked down those famous steps with the Proposition 8 plaintiffs, Kristin Perry and Sandra Stier, and Paul Katami and Jeffrey Zarrillo. Today, I watched as Edie Windsor, at 83 years old, made that same walk, to loud cheers and applause and chants of “Edie! Edie!” In return, we all got a wave and a kiss blown our way.

To Edie and the others I say, Sophia Petrillo has your back.

We all have your back.