Friday, July 8, 2011

Equality update/FAQ

In the wake of New York's landmark decision, and based on conversations around the blogs, I thought I would give you an update on marriage equality battles.

Will married gay couples from NY be recognized elsewhere?
  • No state will be required to recognize marriages performed in New York. Like my marriage in CA, or same sex marriages from MA, the marriages in NY will be legally invisible in over 30 states. This is thanks to section 2 of DOMA (the defense of marriage act) which states explicitly that no state has to recognize a gay couple.

But I thought that DOMA was overturned by the Department of Justice
  • No. The DoJ is not defending DOMA in court, but it remains the law of the land and is still enforced. There are at least 6 DOMA cases pending in different circuits of the federal courts. These have all challenged section 3, which forbids the federal government from recognizing legally married gay couples, like me. DOMA was already found unconstitutional in the 1st circuit, but that's being appealed. Unless and until it gets to the Supreme Court (SCOTUS), however, individual decisions will only affect the states within that federal court circuit. 

  • There is a bill that would repeal DOMA being put forward in Congress ("Respect for Marriage Act"), which led to a moving hearing on July 20. Despite that, it is unlikely to go very far because of Republican opposition.

How does this relate to the Prop8 case?
  • The Prop8 case addresses the right to marry, NOT whether it will be recognized (as in the DOMA cases). Briefly: In California in 2008, the State Supreme Court found for marriage equality (and overturned Prop22, which had made a law forbidding it). However, 8 months later, Prop8 was approved by the voters, this time amending the state Constitution to forbid equal marriage. The State Court agreed that the voters had that right under the state Constitution, but determined that aside from the name "marriage," gay couples should have all the rights of marriage. It also determined that the 18,000 couples married in the "summer of love" were still legally married.

  • A case was then brought in federal court arguing that Prop8 violated the US Constitution. Judge Vaughn Walker agreed. That case was appealed to the 9th circuit, where there are two issues to determine. The first issue is whether or not the appellants (the supporters of Prop8) have standing to appeal. Confusingly, this turns on an issue of state law regarding propositions, so the 9th circuit has asked the State Supreme Court to advise them. (The state court will hear the argument in the fall). The second issue, assuming they have standing, is whether the decision was sound. Ultimately, either or both of these issues will be appealed all the way to the US Supreme Court (SCOTUS).

  • Meanwhile, in a side-show typical of the whole case, the Prop8 supporters filed a different argument against Republican-appointed Judge Vaughn Walker, who in a delicious bit of irony, is gay. Their claim that this rendered him unable to judge impartially was dismissed by the court. Naturally, they are going to  appeal.

Is New York the first legislature to support marriage equality?
  • No. New Hampshire, Vermont, Connecticut, Maine, and California legislatures all passed equality. In Maine, it was overturned by voter referendum, and in California, then-Gov Schwarzeneggar declined to sign it.

What about the voters?
  • If you had asked the electorate in Alabama in 1960 whether they supported civil rights, probably the schools would have remained segregated. Sadly, in no case where equality has been left to the voters, have they passed it. Upcoming  elections in 2012 will include Minnesota and North Carolina, and possibly Maine where they will try to repeal the referendum that overturned equality. Right now it looks unlikely that we will go to the ballot in CA next year.

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