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The Dawn of Nationwide Marriage Equality

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The victory will be sweet, but understanding how and why the prize was won makes it even sweeter.
by Brandon Wolf

2015 has already proven itself to be a memorable year for America’s LGBT community. The national outrage over Indiana’s proposed antigay legislation was both unexpected and unprecedented. The revelation by Olympic hero Bruce Jenner that “I am a transgender woman” left Americans with a lot to ponder. And the Supreme Court’s decision about national marriage equality, expected in late June, will probably make 2015 even more memorable.

Nationwide support for marriage equality rose to 61 percent in the most recent ABC/Washington Post poll. A Wall Street Journal/NBC poll taken in early May revealed that more Americans would prefer an openly gay presidential candidate than an evangelical candidate.

The marriage equality decision, expected to make same-sex marriage the law of the land, will be huge for both the LGBT community and the country as a whole. This is one of the times in history when a very long-standing steady state is disintegrating and a positive change is sweeping in—much like the effect of a logjam being broken up so that everything can flow downstream.

The Legal Basis for Marriage Equality

Marriage equality is not the result of “activist judges,” as our opposition will claim. It is firmly grounded in constitutional case law and societal evolution. The Supreme Court of the United States (SCOTUS) has taken 20 years to reach this point in civil-rights law.

The 14th Amendment to the U.S. Constitution contains equal-protection and due-process clauses that govern civil-rights rulings. In 1996’s Romer v. Evans, equal protection voided a Colorado bill that attempted to shut down any LGBT antidiscrimination legislation. In 2003’s Lawrence v. Texas, due process was used to decriminalize private homosexual sex. In 2013’s U.S. v. Windsor, due process and equal protection killed the federal portion of the Defense of Marriage Act (DOMA).

On April 28, SCOTUS heard oral arguments in Obergefell v. Hodges, the landmark marriage equality case that consolidates 17 cases and 32 plaintiffs from four states. The attorneys on both sides were asked to justify their positions on the issues of requiring states to license same-sex marriage, and to honor same-sex marriages performed in other states. Their justifications had to be based on the 14th Amendment’s equal-protection and due-process clauses.

Since 2004, the number of states with marriage equality has gone from zero to 37. Three states voted it in as a ballot item. Eight states approved it through their legislatures. Twenty-six states came on board through judicial rulings.

Equal Protection from Laws that Intrude on Citizens’ Lives

“Equal protection” is the means by which all Americans are protected from laws that intrude upon their freedoms, in violation of the Constitution.

Just because a law is passed by a legislative body does not guarantee that it is constitutional. Sometimes a law is the embodiment of unjust opinions held by the majority of elected officials who enacted it. The Constitution ensures that Americans have the right to challenge those laws through the judicial system.

The Constitution never mentions the word “marriage” or attempts to define it. For this reason, states began to enact legislation starting in the 1990s that defined marriage in their state as between a man and a woman.

While states do have the authority to set guidelines for marriage (regulating age, closeness of kin, waiting period, blood tests, etc.), these guidelines must serve a valid state interest. When no valid interest can be cited, the courts can then assume that the “state interest” is instead “animus,” or hostility. Most bans that prohibit same-sex marriage have been struck down because they are merely based on religious disapproval or political unpopularity, and serve no state interest.

Due Process Is Our Most Important Defense

“Due process” often leaves the layperson baffled. Although it is most often the rationale for decisions in favor of LGBT plaintiffs, its meaning still mystifies. The Constitution contains two types of due process—procedural and substantive—that lawyers often refer to without specifying which type they mean. Adding to the confusion, the 5th Amendment addresses due process in a federal context while the 14th Amendment addresses it in a state context.

Procedural due process ensures that legal proceedings, whether civil or criminal, are handled in a fair and impartial manner, so that the defendant understands what the process of justice is and is given adequate resources to deal with it. Such things as sufficient notice, reading one their rights, appointment of a defense attorney, and a fair and unbiased trial are parts of procedural due process.

Substantive due process protects citizens against majoritarian policy enactments that exceed the constitutional limits of government authority. Citizens may appeal to the judicial system for a “due process” of reviewing a law that they believe treats them unequally. In this legal process, the burden is placed upon the governmental body to prove that there is a compelling reason for the law to intrude into the plaintiff’s life and deny them basic rights.

Substantive due process is the most litigated and contentious part of the U.S. Constitution. It is no surprise that this is where the right to same-sex marriage is argued.

The Origin of Due Process

The United States Constitution is the supreme law of the land. The Constitution came into force in 1789, and has been amended 27 times. The first 10 amendments, known collectively as the Bill of Rights, offer specific protections of individual liberty and justice—and they place restrictions on the power of government.

The Constitution is interpreted and supplemented by a large body of constitutional case law. It is the first constitution of its kind in the world and, at just 4,400 words, is among the most concise. It has influenced the constitutions of numerous other nations.

The first 12 amendments were ratified between 1791 and 1804. The 13th, 14th, and 15th amendments dealt with slavery and were ratified between 1865 and 1870. The 13th abolished slavery, the 14th ensured the rights of free men, and the 15th gave former male slaves the right to vote.

The continual evolution of society is reflected in case law, which interprets the Constitution, defines it more specifically, and sets precedents for future rulings. New case law replaces case law that no longer reflects contemporary social norms and values of American society.

The 14th Amendment has become the focal point for ensuring that all minorities are treated equally. This is how most social change in America comes about, and it is the means by which marriage equality will become law.

Using the 14th Amendment to Challenge the Status Quo

The courts determine if a state’s interest in a law is valid or invalid by scrutinizing the law’s effect on a plaintiff or a group of plaintiffs. There are generally three levels of scrutiny—rational basis, intermediate, and strict.

When a law appears to affect only a particular group of citizens, courts tend to “suspect” that the state is targeting that group. A “suspect group” can be identified by one of more of the following traits:

  • A historical record of discrimination and prejudice, usually due to stereotypes.
  • Possessing an inherent trait.
  • Manifesting a characteristic that does not affect contributing meaningfully to society.
  • Powerlessness to protect themselves via the political process.

Conservatives tend to scoff at substantive due process as a magic chest that progressive jurists reach into whenever they feel something in society is unfair. But law analyst Timothy Sandefur summed up the importance of the Lawrence case in a 2012 essay entitled “Why Substantive Due Process Makes Sense”:

“The state outlawed private, consensual, homosexual conduct, not to protect the general public from harm, but simply to impose a burden on a disfavored minority. The law was the legal enforcement of private bias, with various moral interest groups trying to gain legal enforcement of their beliefs without having to give reasons for those beliefs other than saying, ‘we believe it.’”

The Obergefell Oral Arguments

On April 28, 2015, oral arguments in the Obergefell case were heard in the SCOTUS chamber and divided into two questions: should states issue marriage licenses to same-sex couples, and should states honor legal same-sex marriages from other states?

Making Their Cases Mary Bonauto (pictured) and Douglas Hallward-Driemeier (below, r) argued in favor of the same-sex couples in the SCOTUS marriage equality case, while John Bursch (below, l), who represented the defendants, argued for the marriage bans to be upheld.
Making Their Cases: Mary Bonauto (pictured) and Douglas Hallward-Driemeier (below, r) argued in favor of the same-sex couples in the SCOTUS marriage equality case, while John Bursch (below, l), who represented the defendants, argued for the marriage bans to be upheld.

Mary Bonauto, attorney for the plaintiffs, argued that marriage bans are unconstitutional. She offered that the bans relegate certain citizens to second-class status, and affect the children of gay couples who can see that their parents are not accorded the same dignity and privileges that heterosexual parents enjoy.

The conservative justices peppered her with questions—from asking why gay marriage is unknown in human history to why it wouldn’t lead to polygamy. She was asked why she felt that she had the right to redefine marriage, and to push the issue too fast for society to properly debate it.

Douglas Hallward-Driemeier.
Douglas Hallward-Driemeier

She replied that LGBTs had no desire to redefine marriage, but only to join the institution. She noted that pioneer activists Jack Baker and Mike McConnell had started the fight for marriage rights in 1970, and that 45 years was long enough to debate the issue.

John J. Bursch, a former solicitor general for Michigan, represented the defendants—the states of Michigan, Ohio, Tennessee, and Kentucky. He offered that the state’s only interest in marriage was to ensure that heterosexual parents will “bind” to their biological children. He then made the outrageous claim that same-sex married couples would cause biological parents to lose interest in their “binding” process. When Justices Breyer, Kagan, Sotomayor, and Ginsberg repeatedly questioned Bursch as to how allowing gay couples to marry could affect heterosexual couples, he kept repeating the same “bind parents to children” mantra.

John Bursch
John Bursch

The arguments in favor of recognizing legal marriages from other states centered on the damage LGBTs suffer when they move to a state that does not honor their marriage. In a mobile society, the effect of losing legal spousal rights is far-reaching. In effect, it gives states the power to “dissolve” a marriage.

The opposition’s main argument was that being forced to recognize marriages from another state would in effect allow another state to legislate its laws.

All Eyes on Justice Kennedy

Decision Time: The ruling on marriage equality now rests in the hands of these nine justices. Sitting (l–r): Clarence Thomas, Antonin Scalia, John G. Roberts Jr. (Chief Justice), Anthony M. Kennedy, and Ruth Bader Ginsburg. Standing (l–r): Sonia Sotomayor, Stephen G. Breyer, Samuel Alito Jr., and Elena Kagan.
Decision Time: The ruling on marriage equality now rests in the hands of these nine justices. Sitting (l–r): Clarence Thomas, Antonin Scalia, John G. Roberts Jr. (Chief Justice), Anthony M. Kennedy, and Ruth Bader Ginsburg. Standing (l–r): Sonia Sotomayor, Stephen G. Breyer, Samuel Alito Jr., and Elena Kagan.

It is widely assumed that Justices Ginsberg, Breyer, Sotomayor, and Kagan will decide that marriage bans are unconstitutional. Likewise, it is assumed that Justices Scalia, Alito, and Thomas will decide the bans are constitutional. Chief Justice Roberts will probably join them—leaving Justice Kennedy to be the deciding vote.

Seventy-eight-year-old Justice Anthony Kennedy, as always, keeps people guessing by asking pointed questions to both sides. But Kennedy has decided for the LGBT community in Romer, Lawrence, and Windsor, and wrote impassioned majority decisions for all three. Reviewing Kennedy’s own words offers some insight into his philosophies:

Romer v. Evans (1996): “We cannot accept the view that Amendment 2’s prohibition on specific legal protections does no more than deprive homosexuals of special rights. To the contrary, the amendment imposes a special disability upon those persons alone.”

Lawrence v. Texas (2003): “Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”

U.S. v. Windsor (2013): “The power the Constitution grants [to Congress] it also restrains.”

One SCOTUS reporter found Kennedy’s body language interesting. Kennedy was animated during the first question but bored and detached during the second. Did he already know he was going to swing the vote, and thus this question was moot?

The Possible Outcomes

Outcome 1: The court rules same-sex marriage bans are unconstitutional. The issue of recognition by other states becomes moot. Same-sex marriage becomes the law of the land.

Outcome 2: The court rules same-sex marriage bans can be imposed by individual states, but all out-of-state marriages must be recognized. The 26 states that have same-sex marriage as a result of judicial rulings would no longer have to issue marriage licenses. Court challenges would ensue as to the validity of the marriages already performed in those 26 states. Legal chaos would reign. In effect, this is a ruling (however clumsy) that legalizes national gay marriage. In order to marry, LGBTs would have to travel to one of the 11 states that either voted in gay marriage or had legislatures that removed their marriage bans.

Outcome 3: The court rules that same-sex marriage bans and the lack of recognition by other states is constitutional. As previously mentioned, legal chaos in 26 states would ensue. The LGBT community would be left with the task of changing 39 state laws, one by one.

Marriage Equality from a Global Perspective

In the final analysis, if we win this prize, it will be because our movement has always been about the most basic human value—love. The arc of the moral universe that Dr. Martin Luther King talked about will have finally bent toward justice for America’s LGBT community.

Legal recognition, however, does not equal social acceptance, as all minorities have come to realize. It will come down to one-on-one human interactions on a daily basis to achieve “moral equality.”

Nationwide marriage equality in America is huge—but at the same time, it is small. Over seven billion people inhabit our planet, living in 196 different countries—only 18 of which now allow same-sex marriage. Their combined population is 7 percent of the total world population. If America as a nation is added to the list, that number will rise to 12 percent.

That leaves 88 percent of the world’s population without the right to same-sex marriage—and 3.5 percent of the population living in the 10 countries that can impose the death penalty for homosexual conduct. Sadly, that arc of the moral universe still has a lot of bending toward justice left to do.

 


Religious Freedom Restoration Acts (RFRAs)

The Indiana RFRA that outraged America mirrored a federal bill and 19 state bills—but with one very troubling difference.

The federal bill was written to deal with issues of religious practice between the government and individuals—namely a Native-American Indian who was denied federal benefits when a drug test revealed the presence of peyote that is used in Native-American religious ceremonies. The law restored his benefits.

Nineteen states use this bill for disputes between the state and individuals. For example, if eminent domain will encroach on a religious institution’s property, the land can be protected.

But Indiana’s bill would have included disputes between individual citizens, thereby overriding any LGBT nondiscrimination laws. Daniel Williams, field organizer for Equality Texas, says, “It wasn’t just a slippery slope. It started at the bottom of the slope.”


 

The Public Face of Marriage Equality

Until Death Do Us Part: Jim Obergefell (left) and his partner, John Arthur, flew from their home state of Ohio (where marriage equality was banned) to Maryland so that the pair could legally marry before Arthur passed away from ALS.
Until Death Do Us Part: Jim Obergefell (left) and his partner, John Arthur, flew from their home state of Ohio (where marriage equality was banned) to Maryland so that the pair could legally marry before Arthur passed away from ALS. Photo: AP

The marriage equality case is titled Obergefell v. Hodges, because Jim Obergefell had the lowest docket number of the 32 plaintiffs. But his story is a moving tribute to the depth of same-sex love.

Obergefell was in a committed relationship for 20 years with his soul mate, John Arthur. In 2013, Arthur died of ALS, but not before they chartered a medical aircraft and were married after landing on a runway in Maryland. Their home state, Ohio, banned same-sex marriage.

After Arthur’s death, Obergefell filed suit to have the death certificate read “Married” and to list him as the surviving spouse. A federal district judge agreed. Ohio appealed, and the case ended up in the Supreme Court.

Brandon Wolf also writes about the Houston Pride marshals in this issue of OutSmart.

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Brandon Wolf

Brandon Wolf is a regular contributor to OutSmart Magazine.

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