Marriage Advocates Work Toward Nationwide Ruling

by Matthew S. Bajko
Sunday Sep 1, 2013

Marriage equality advocates can see an end goal - having a nationwide ruling upholding the right of same-sex couples to wed - on the horizon. But it will take several years, and more victories at the state level, to arrive at that point.

So was the message during a plenary session last week at the National Lesbian and Gay Journalists Association's annual convention, held this year in Boston. The panel focused on the aftermaths of the U.S. Supreme Court's decision in June overturning Section 3 of the Defense of Marriage Act, which had prevented the federal government from recognizing state sanctioned same-sex marriages.

Noting there are already seven marriage equality cases that have been filed in federal courts since the highest court's decision in U.S. v. Windsor, with more likely, Gay and Lesbian Advocates and Defenders legal director Gary Buseck predicted there would be dueling rulings at the circuit court level that will force the U.S. Supreme Court to reconcile the conflicting decisions.

"What we are talking about is where is this all moving? It is definitely going back to the U.S. Supreme Court," said Buseck.

The Windsor decision left standing the part of DOMA that says states are not required to recognize same-sex marriages performed in other states. And in the case dealing with the constitutionality of California's Proposition 8, the voter-approved ban against gay nuptials, the U.S. Supreme Court opted not to issue a sweeping ruling overturning state laws outlawing same-sex marriage.

Rather, basing its decision on a question of standing, the justices punted the Hollingsworth v. Perry case back to the federal appellate court for the 9th Circuit. The circuit court then lifted its injunction against a federal district court ruling that found Prop 8 to be unconstitutional, paving the way for same-sex marriages to resume in the Golden State June 28.

Since the Perry case only applied to California's anti-gay law, left standing were the so-called mini DOMAs enacted by other states that outlaw same-sex weddings. There are now federal lawsuits pending in Kentucky, North Carolina, Virginia, Pennsylvania, Nevada, and Arkansas seeking the right to marry.

"We are now in this world post-Section 3 where there is this patchwork of married and unmarried couples," said Buseck, noting that a couple's marital status is dependent on the state they happen to reside in or are visiting.

The conundrum same-sex couples are facing prompted BuzzFeed reporter Chris Geidner, who moderated the panel, to ask when the U.S. Supreme Court will issue a decision on same-sex marriage as sweeping as its ruling in Loving v. Virginia. That landmark 1967 decision created a national right to interracial marriage.

"It is sort of chicken and egg like with the Supreme Court. Some justices want to put the genie back in the bottle and let the states figure it out," responded Amy Howe, the editor of SCOTUSblog, which reports on the court. "The question is if you can put the genie back in the bottle. These are real people with real lives who don't want to put their legal issues on hold."

Part of the reticence for the court to declare marriage is a constitutional right, suggested Howe, is due to what happened after the court ruled that a woman has a right to an abortion in its 1973 decision in Roe v. Wade. It did not stop the debate over the issue or legislative actions to curtail access to abortions, which rages on to this day.

For some justices, particularly liberal justice Ruth Bader Ginsburg, the court's Roe ruling had the effect of stopping the momentum for abortion rights, noted Howe. She added that moderate Justice Anthony Kennedy, seen as a key vote in gay rights cases, "wants a Loving-like decision" regarding marriage equality "but doesn't want it to happen for a while."

At the time of Loving, 34 states had already allowed interracial marriages but just 30 percent of Americans supported such unions. Today, just 13 states plus the District of Columbia have legalized same-sex marriage, though polling shows that majorities of Americans now back marriage equality.

"Unless some miracle happens," said Marc Solomon, Freedom to Marry's national campaign director, "we won't have 34 states by 2016."

That year is when the U.S. Supreme Court could return to the issue of same-sex marriage.

Realistically, within three years a majority of Americans could be living in a freedom to marry state, predicted Solomon. Efforts are already under way to secure marriage rights in a number of statehouses, such as Hawaii, Illinois, and New Jersey.

Another tactic is repealing state bans on same-sex marriage at the ballot box. In coming years such battles are likely to be waged in Oregon, Indiana, Arizona, Ohio, Michigan, Nevada, and Colorado.

It is conceivable that support for marriage equality could be at 60 percent nationwide by 2016. Groups like Freedom to Marry are working to grow public support ahead of the next Supreme Court case.

When the justices again tackle the issue, "We want them to say very clearly that America is ready for a 50-state solution," Solomon said.

Equality California Executive Director John O'Connor, speaking at a Sacramento fundraiser for the statewide LGBT advocacy group's political action committee held Thursday, August 22, said marriage equality advocates need to heed the lesson learned from the abortion battles spawned by the Roe v. Wade ruling.

Just as those who oppose abortion have not stopped with laws to prevent the procedure despite the court's decision, so to will anti-gay groups continue to wage legal and legislative attacks against same-sex couples' right to wed.

"They will not stop trying to do us harm," said O'Connor in explaining why it remains critical to elect LGBT lawmakers to state legislatures who can fight for equality. "The LGBT community must remain vigilant and keep its eye on the ball. We will always need political power."

LGBT Youth, Trans Issues Focus in CA

With marriage equality now secure in the Golden State, EQCA's focus moving forward will increasingly be on LGBT youth and transgender issues, predicted O'Connor.

"The epidemic of youth suicide is as pressing, if not more pressing, than gay marriage in my opinion," he said.

He pointed to the "disproportionate numbers" of LGBT foster care youth, and the higher rates of drug use and homelessness among LGBT youth in general, as several areas of focus EQCA plans to address legislatively in coming years.

The increasing numbers of LGBT seniors, many of whom return to the closet out of fear of being harassed at nursing homes and senior living facilities, is another area of focus for EQCA, said O'Connor.

Despite the advances the LGBT community has made in California, there remains low cultural competency about issues impacting LGBT people, "particularly the T," said O'Connor, throughout the state. Addressing the specific needs of transgender people, added O'Connor, will be an "ongoing priority" for EQCA.

"There are a whole range of issues that will emerge for years to come," he said.

Full disclosure: EQCA asked this reporter to talk about the LGBT candidates seeking state legislative seats in 2014 at the Sacramento event

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