In DC, progress toward marriage equality comes amid anti-equality setbacks

By now you’ve likely watched (or heard about) the ABC News interview with President Obama in which he affirmed his support for family equality and the freedom to marry of same-sex couples.

The President gave us new momentum for passing the Respective for Marriage Act and dumping DOMA. Representative Jerrold Nadler (D-NY08), the bill’s sponsor:

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.

Before the House Armed Services Committee passed its FY13 Defense Authorization bill, it adopted two amendments that purport to “defend” DOMA.

  • 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 1096 passed, 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.

If you haven’t yet, now is the time to add your name to PFAW's petition urging Congress to Dump DOMA and end this unconstitutional, discriminatory policy once and for all.

PFAW

President Obama recognizes LGBT families

By now you’ve likely watched (or heard about) the ABC News interview with President Obama in which he affirmed his support for the freedom to marry of same-sex couples.

The President said that his daughters, and their friends with same-sex couples as parents, helped his views to evolve.

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The President also said:

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.

Our friends at Family Equality Council rang yesterday’s closing bell in celebration of International Family Equality Day.

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.

So after you add your name to PFAW's petition urging Congress to Dump DOMA and end this unconstitutional, discriminatory policy once and for all, take a few minutes and call your Representative and Senators in support of the Every Child Deserves a Family Act. It’s H.R. 1681 in the House and S. 1770 in the Senate.

Click here for more from PFAW.

PFAW

Every Child Deserves a Family

Successful parenting is not dependent on sexual orientation or gender identity. Laws and policies that discriminate against otherwise qualified LGBT parents are failing the half million children in the foster care system, 120,000 of whom are eligible for adoption. We should be giving these children more places to turn, instead of needlessly and cruelly closing the door to safe, loving homes. They deserve care and permanency with their best interests at heart, not placements that forsake them for ideology or political gain.

Representative Pete Stark (H.R. 1681) and Senator Kirsten Gillibrand (S. 1770) have sought to address the discrimination with the Every Child Deserves a Family Act. PFAW sent this letter as part of an ongoing letter-a-day campaign supporting the legislation with 21 groups and counting.

The tide is turning, but more progress must be made. S. 1770 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.

Ultimately, this is about increasing the number of loving, safe, and permanent homes, and decreasing the number of youths at risk for poverty, homelessness, incarceration, and early parenthood. All children deserve far better than that. And S. 1770 deserves your consideration.

Representative Gerry Connolly is among our most recent House supporters. He signed on saying that he wanted to “counteract” “odious, reactionary legislation” on track for passage in his home state of Virginia.

In an exclusive interview with the Washington Blade, Rep. Gerry Connolly (D-Va.) said he’ll co-sponsor the Every Child Deserves a Family Act, which would restrict federal funds for states that allow for discrimination in adoption based on LGBT status.

“I think on the merits it’s a good idea,” Connolly said. “Bringing children into a loving home is the object here, and that’s irrespective of the sexual orientation of the adults in that home. Can they provide a climate of love and protection and nurturing? That’s what children need.”

[ . . . ]

Connolly announces his support for the federal bill as the Republican-controlled Virginia Legislature has approved anti-gay legislation that would allow private adoption agencies to discriminate in placements conflicting with their religious or moral beliefs, including on the basis of sexual orientation. The bill is on its way to the desk of Gov. Bob McDonnell, who’s indicated he’ll sign the measure.

Adoption and foster care discrimination has gone on long enough. And Representative Connolly is right: the legislative attacks in Virginia cannot go unanswered. Do as he did and support the Every Child Deserves a Family Act.

PFAW

A Religious Exemption From the Rule of Law

As originally written and introduced, the marriage bill that recently failed to pass in Maryland was very straightforward, simply removing the restriction that limits marriage to opposite-sex couples. Other laws in the state would have remained unchanged. However, a number of equality opponents expressed concern that some people would have to recognize the civil marriages of same-sex couples in violation of their sincerely held religious beliefs. Therefore, they introduced a variety of "conscience clause" amendments.

These amendments tell us a great deal about their supporters' real agenda, and it has nothing to do with a principled stand for religious liberty. The amendments did things like provide:

  • that a public school teacher not be required to teach materials that promote same-sex marriage if the content of the materials violates their sincerely held religious beliefs.
  • that a religious entity (or any nonprofit organization operated or controlled by one) need not provide adoption, foster care, or social services if providing the services would violate the entity's religious beliefs.
  • that a government employee (like a clerk or judge) not be required to perform a civil marriage ceremony if performance of the ceremony would violate their sincerely held religious beliefs.

The common phrasing – violating someone's religious beliefs, as opposed to violating their First Amendment rights – is extremely important. It makes it sound like people's constitutional Free Exercise rights are being protected. But in Maryland and elsewhere, that is not the case: Provisions like these do not codify existing First Amendment rights to the free exercise of religion.

Neutral laws of general applicability that infringe on a person's religious beliefs have been upheld as not violating a person's First Amendment rights. For instance, in the 1990 Employment Division v. Smith case, the Supreme Court upheld Oregon's right to deny unemployment benefits to a person who had been fired for violating the state's anti-drugs laws (specifically, smoking peyote), even though the person smoked peyote as part of his religion.

In that case, with Justice Scalia writing for the majority, the Court ruled that the First Amendment does not allow a person to cite their own religious beliefs as a reason not to obey generally applicable laws. "To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself."

Anti-discrimination laws have long required people to do things that may not be consistent with their religious faith. For instance, an election worker who believes God commanded the sexes to remain separate in public cannot force men and women to vote in different rooms. A white innkeeper who believes that God commands segregation must nevertheless open his inn to all races. An employer who believes God commanded women to defer to men cannot refuse to make women supervisors.

So opponents of marriage equality certainly aren't acting to protect anyone's constitutional right to religious liberty. What they are demanding is a religious exemption from laws they don't like.

As if that wasn't bad enough, it's only those who share their particular religious beliefs who they deem worthy of this special right.

Since the marriage equality bill in Maryland failed to pass, have these self-styled stalwarts of religious liberty insisted that the amendments they proposed be made into law anyway, as general religious liberty protections not targeting gay people as a class?

They have not.

Perhaps what drives them is animus toward gays and lesbians. Or perhaps it's an arrogant certainty that their religious beliefs and no one else's should be protected by law.

Whatever it is, it certainly is not a principled fidelity to religious liberty.

We faced a similar issue more than forty years ago, when people with religious opposition to interracial marriages found themselves in a society that no longer prohibited such marriages. Indeed, as the Virginia trial court judge wrote when convicting Richard and Mildred Loving of violating the state's prohibition of interracial marriage:

"Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix."

After Loving v. Virginia, our nation did not empower that judge or any other public official to opt out of performing his duty to marry eligible couples simply because he personally opposed interracial marriages on religious grounds. Nor did we empower public school teachers to "opt out" of teaching students that such couples exist. No different standard should be applied with respect to gay couples.

PFAW