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2014 The rF eedom to Marry: Politics and Law in 2014 and Beyond Ari Ezra Waldman New York Law School

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Recommended Citation Human Rights, Vol. 40, Issue 2 (July 2014), pp. 19-22

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Use QR Code reader to send PDF to your smartphone or tablet device The Freedom to Marry: Politics and Law in 2014 and Beyond By Ari Ezra Waldman

une 26, 2013, was “marriage Court chose to hear their case along- transgender (LGBT) Americans in day” at the Supreme Court. On side the challenge to California’s the awkward position of needing Jthat day, the Court held the Proposition 8. That we channeled to know what state they’re in before (DOMA) extra special attention to the Court knowing if they are equal under the unconstitutional. This was one day that day seems unsurprising. law. It also leaves equality open to after a different majority rejected Then came the decisions. continuous attack as we move from the appeal in Hollingsworth v. Perry, The Court punted in Perry, state to state. Therefore, a national the challenge to California’s Prop relying on lack of standing and litigation strategy, with Windsor at 8, ending that state’s ive-year aber- refusing to address the underlying its core, will be essential to our ulti- ration from marriage equality. A constitutional issue of the legality mate victory. status update reporting the DOMA of sexual orientation–based mar- news on ScotusBlog’s eponymous riage discrimination. But although State Constitutional Litigation Facebook page got 1,119 “likes.” only a narrow majority declared A decade ago, many of the suc- The website’s live blog had thou- DOMA Section 3 unconstitu- cessful marriage equality lawsuits sands of participants and, even tional, Justice Anthony Kennedy’s focused on state constitutions. before 9:00 a.m., was overlowing decision in United States v. Wind- Baehr v. Lewin (later recaptioned with questions in the queue. For a sor has inspired an avalanche of Baehr v. Miike) concluded that day, at least, the focus of the gay federal litigation from Utah to Hawaii’s constitution required that rights movement was squarely on New Jersey and from Virginia to marriage discrimination pass strict the U.S. Supreme Court. Texas to do what Perry was sup- scrutiny. Baker v. Vermont held that That singular focus was the result posed to have done: overturn bans denying marriage licenses to gays of several factors: DOMA, a federal on marriage equality. Windsor— and lesbians violated Vermont’s law that denied federal recognition not Perry—is blazing the path common beneits clause. And, to lawful same-sex marriages in the toward the freedom to marry in of course, Goodridge v. Depart- states, required a federal solution, the states. Post-Windsor decisions ment of Health mandated marriage whether legislative repeal or judicial in New Jersey, New Mexico, Ohio, equality under Massachusetts’s vacation. By 2012, the latter looked Utah, Oklahoma, Texas, Michi- constitution. Later, Connecticut more likely. A repeal act failed to gan, Idaho, Arkansas, Oregon, and and Iowa would afirm equal- gain much traction in Congress while Pennsylvania suggest that the path ity through their own state courts several lawsuits were successfully chal- may start outside of Washington, and under their own constitu- lenging DOMA’s constitutionality in D.C., but may eventually lead back tions. This generation of marriage the federal courts. at to the Supreme Court. cases had to be state based; some the Gay and Lesbian Advocates and I would like to argue that the of them were iled before Lawrence Defenders challenged DOMA on extraordinary strides forward in the v. Texas—namely, when Bowers v. behalf of Nancy Gill in Massachu- marriage equality ight, in particu- Hardwick was still good law. Bow- setts and won the irst district court lar, and the gay rights movement, ers not only gave conservatives case to strike down the law. Lambda in general, are the products of a license to discriminate against Legal’s Tara Borelli won a sweep- multipronged strategy of over- gays, but also made the federal ing victory in California on behalf of whelming force: in state courts courts hostile places for gay rights, Karen Golinski. , a and state capitals, in federal courts in general. Plus, marriage equality partner at New York’s Paul Weiss Rif- and in Washington. One unfortu- in the federal courts was suppos- kind Warton & Garrison, LLP, and nate byproduct of that strategy is edly hampered by Baker v. Nelson, James Esseks, director of the ACLU that it temporarily requires piece- a 1971 Minnesota gay marriage LGBT Project, challenged DOMA on meal progress on the road to victory, case rejected by the Supreme Court behalf of Edie Windsor. The Supreme leaving lesbian, gay, bisexual, and for lack of a federal question.

Vol. 40, No. 2 19 humanrights But the Court’s decision in Windsor gave state-based marriage equality litigation a radically new look. Before Windsor, successful suits challenging marriage discrimination in Massachusetts, Connecticut, and Iowa included the same basic argument: Taking similarly situated individuals—those who want to marry the person they love—and treating them differently based on their sexual orientations violated equal protection guaranteed by state constitutions. Windsor helped state advocates make that argument under state law in two ways. First, the case made it easier to

challenge the separate-and-unequal mAges institution of civil unions. Windsor Peg Welch, center left, and her wife Delma Welch gather with others AP I

said that legally married same-sex by at a gay marriage rally in Harrisburg, Pa. couples have to be granted access hoto to the multitude of federal beneits P that attend marriage; the case turned “skim milk marriages” into real ones. became the 17th marriage equality movement that requires pub- But those in civil unions or domes- state after a unanimous decision by lic education, engagement on the tic partnerships are not, technically, its supreme court in December 2013. ground, and changing hearts and “married.” They fall outside of New Mexico never explicitly banned minds. You cannot achieve those Windsor’s orbit of fairness. As such, gays from marrying; rather, it had goals while remaining cloistered the inherent injustice of the separate- layered marriage laws that, taken inside a courtroom, federal or and-unequal unions were put into together, made same-sex marriage state. And yet, pursuing a legisla- stark relief and it allowed advocates, impossible. The plaintiffs in New tive strategy to achieve marriage like those in New Jersey, to argue Mexico argued that they are just like equality at the state level raises the that the state constitution’s guaran- opposite-sex couples: committed, in specter of political horse trading tee of equality demanded including love, and desirous of the state recog- and hollow victories. gays and lesbians in the institution of nition and beneits associated with Many of our victories have been marriage. Civil unions, despite their marriage. They, therefore, should be in the legislative sphere, but at state extensive attendant state beneits, treated equally. The state supreme capitals, not in Washington, D.C., would never be equal to marriage, court agreed and cited Windsor as Delaware, Hawaii, Illinois, Minne- especially now that, after Windsor, evidence of that inherent equality sota, New Hampshire, New York, same-sex marriages—and mar- under the law. Windsor may not have Rhode Island, and Washington riages alone—received all the same explicitly decided the issue of the State ushered in eras of marriage beneits as opposite-sex marriages. constitutionality of state marriage equality through legislative vote. This argument could have applied discrimination, but it was a state- Two of those were afirmed by to the other states that permitted ment of LGBT equality and dignity statewide plebiscites, which is how gays and lesbians to enter into civil and it eviscerated the remaining Maine joined the club. unions but denied them the honor- arguments that advocates of dis- Take, for example, what hap- iic of marriage. But, as we have seen, crimination had been using. As such, pened in Illinois. That state’s the marriage ights in those states— it has become the strongest weapon governor signed a marriage equal- Oregon, Nevada, Colorado, and in any LGBT advocate’s arsenal. ity bill in November 2013, but it Wisconsin—are part of the lood of had not yet taken effect when, on post-Windsor federal cases. State Political Activism February 21, 2014, a federal judge Second, the substance of Justice State-based litigation is only part declared the state’s ban on gays Kennedy’s Windsor opinion gave of the story. The push for mar- marrying unconstitutional. So the all other state-based litigation a leg riage equality is not a strictly freedom to marry in Illinois is the up. Consider New Mexico, which legal quest; it is a broader social product of combined legislative and

humanrights 20 Vol. 40, No. 2 litigation strategies. A coalition of These religious exemptions are of latitude and have widely different LGBT groups, led by James Bennett doughnut holes that allow homo- rights under the law. As of this writ- of Lambda Legal, brought Illinois phobes to deny rights to gays and ing, the freedom to marry covers from marriage discrimination to lesbians for pretextual and offen- nearly 45 percent of the American civil unions to marriage. Lambda, sive reasons, reasons that reject basic population (19 states and the Dis- which had been planning a mar- and long-settled principles of fair- trict of Columbia, but not including riage lawsuit when the civil unions ness, equality, and the common states where the orders striking debate was raging, selected a diverse good. And we cannot accept them down the bans have been stayed). group of plaintiffs that represented just to get a gay rights bill passed. The line separating the equal from the disparate socioeconomic, racial, Already, marriage equality advocates the unequal means the differ- and geographic elements of the encouraged allies in the New Jersey ence between having joint parental state. This allowed the plaintiffs to legislature to table a bill that would rights over an adopted child or, at become the chief spokespersons have enshrined that state’s court- law, having one parent be no closer and advocates when the legislature mandated freedom to marry because to that child than a babysitter. It took up a marriage equality bill. the religious exemption was too means the difference between sitting They met with lawmakers of both broad. Many advocates also balked by your ailing partner in a hospital parties in small, closed-door meet- at the large religious exemption in and being forced apart at the most ings, but also told their story to a the Employment Non-Discrimi- crucial of moments because hospi- wider audience, starring in com- nation Act that passed the Senate tal rooms are for families only. And mercial advertisements. They took last year. If we let these exemptions it means the difference between hav- a page from the movement’s post- grow, our victories could be a mile ing the right to bury your loved one 2008 playbook and spoke about wide, but barely an inch deep. and being banned from his funeral. love, commitment, responsibility, This is not to suggest that state- and togetherness, rather than eso- by-state political activism should Federal Litigation and teric concepts of rights and equal shut down because of the risk, espe- the Impact of United States treatment. Advocates also used the cially once we reach the Deep South. v. Windsor marriage lawsuit as a stick in the The symbiotic relationship between The lurry of federal marriage liti- carrot-and-stick negotiations over a state-based activism and a litigation gation will erase these devastating legislative response. And they won. strategy is evidence from states like divisions. And Windsor is the heart To win the legislative victory, Illinois, Oregon, and Colorado, all of of that strategy. In Ohio, a fed- though, they had to hold the line which had boots on the ground that eral judge issued a narrow decision on the proposed religious exemp- helped soften the political landscape declaring that state’s constitutional tions to the law. This brings us to when the federal judges handed amendment banning same-sex mar- the real danger of a state-based down their marriage equality orders. riage was unconstitutional as it legislative approach. Religious Indeed, political mobilization is applied to death certiicates. Windsor exemptions to marriage equality essential if we want to create a grow- was a deciding factor in that deci- legislation permit religious institu- ing, stable, and permanent majority sion. Again citing Windsor, a federal tions, however deined, to continue of LGBT allies. And there is move- court in Utah brought marriage to discriminate against gay couples ment on marriage freedom even in equality to that most conservative if such behavior is in line with their the most conservative of states: A of states and let several thousand particular interpretation of their recent poll out of South Carolina couples marry before a stay from the religious scripture. Some of these suggests that opposition to mar- Supreme Court stopped them. In exemptions are eminently reason- riage freedom dropped 17 points in January and February 2014, federal able: A Catholic Church should not two years, with a corresponding rise judges in Oklahoma and Virginia, be forced by the state to perform in support. The 2013 version of this respectively, declared those states’ and recognize a same-sex marriage snippet of the Dixie electorate is still bans on same-sex marriage unconsti- if its doctrine opposes it. No one nowhere near majority support for tutional. Both decisions are stayed; wants that. Others are miles north LGBT equality (only 39 percent are both decisions relied on Windsor. of dangerous: Certain proposed in support), but the poll, if accurate, In Michigan, where a bench trial “conscience clauses” would allow a evidences a major shift in a deeply was delayed pending the Supreme county clerk in a marriage equality conservative state. Court’s decisions in Perry and Wind- state to refuse to issue a marriage But, as it stands, this country sor, a district court judge threw out license to a same-sex couple if the is divided in two. Two loving and a ban on same-sex marriage with idea of same-sex marriage offends committed couples can be separated conclusions of law indebted almost him or her personally. by a road, a river, or an invisible line entirely to Windsor. In Arkansas,

Vol. 40, No. 2 21 humanrights Circuit Judge Christopher Piazza marriage discrimination, that pre- the American public supports the cited or mentioned Windsor 13 times venting gays from marrying actually freedom to marry. Conservative pol- in a 13-page order. Idaho’s Chief harms children and does violence to iticians are ceding that marriage Magistrate Judge Candy Wagahoff family cohesion, that the extraordi- equality is an obvious eventuality, Dale used Windsor 45 times. Wind- nary step of denying marriage rights and young Republicans are vastly sor was cited 25 times by Oregon and beneits may be evidence of the pro-equality. Our many legal vic- District Judge Michael McShane antigay animus of its proponents, and tories, all of which are indebted to and nearly as many times by Judge that marriage discrimination does Windsor, validate and legitimize mar- John Jones of Pennsylvania. irreparable harm to the stabilizing riage for all couples, gay or straight. The numbers are indeed dra- force of the family, to name just a few Windsor, therefore, has done some- matic—not to mention the 70 pending of Windsor’s substantive contribu- thing remarkable: It has made lawsuits covering all but one state tions. Indeed, Windsor was so strong opposition to marriage equality (as of this writing) and all of them a statement on the invalidity of gay nothing short of irrational. relying on Windsor, the 1,509 citing marriage bans that Nevada, faced Winning a national right to references to the case, and the 12-case with the prospect of defending its ban marry, then, is taking us through the post-Windsor marriage equality win- in a post-Windsor world, decided to federal courts. There is even a chance ning streak. But the numbers paint give up rather than tilt at windmills. we may not need the Supreme Court only part of the picture. Windsor’s Increasingly, these federal cases to step in. Our post-Windsor win- most remarkable and lasting contri- will be the only way to continue the ning streak shows no sign of abating bution is its substance. While scholars marriage equality winning streak. and we had favorable hearings at the parse Justice Kennedy’s Windsor deci- Political realities in countless conser- Tenth and Fourth Circuits in April sion and discuss its signiicance, its vative states mean that after so many and May 2014. Other marriage cases innovations, and its missing pieces, victories in 2012 and 2013, the list are winding their way through the the lower federal courts are giving us of viable pro-equality legislatures is remaining circuits except the First answers: Windsor is having an impact wearing frighteningly thin. But hon- and the Second, two jurisdictions far beyond the narrow conines of est judges of all political stripes are with full marriage equality already. DOMA and those already legally in abundance. The equality and due Within a year, each remaining cir- married same-sex couples who sought process principles at the heart of the cuit court could issue a decision access the myriad federal beneits that freedom to marry for gay couples afirming the unconstitutionality of attend marriage. To judges in Virginia, are so evident, so clear, and so part marriage discrimination, leaving no Oklahoma, Utah, Arkansas, Idaho, of our constitutional tradition that circuit split for the Supreme Court Oregon, and Pennsylvania, Windsor liberal and conservative judges alike to resolve. Our step-by-step prog- was a clear statement of equality: If are lining up to outdo each other ress will be piecemeal and halting for the federal government has to treat all as they toss antigay marriage bans a time, but it will still be progress— marriages, gay or straight, the same, onto the ash heap of history. Some small comfort to those who live there could be no legitimate rationale judges, like the openly gay Judge beyond the boundaries of equality— for treating the individuals in those McShane, added personal touches to as we inch closer to a conclusion, marriages, gay or straight, any differ- their orders. Judge McShane recalled like a liberating army chipping away ently. To the Ninth Circuit, Windsor the indecencies, big and small, of the as it closes in on the capital. Our went even further. In patent law-cum- and hate he experienced movement is racing through the fed- gay rights case involving the cost of both as a young man and as an adult eral courts, toppling barriers in the HIV medications, the Ninth Circuit and hoped that his and his colleagues’ states along the way. This has made went so far as to hold that Windsor decisions on marriage equality would 2014 and beyond the years of the now requires heightened scrutiny for nudge the scales even further toward falling dominoes. state actions that discriminate on the tolerance and acceptance. Judge basis of sexual orientation. Wind- McShane’s political opposite, Judge Ari Ezra Waldman is associate pro- sor has been cited for the principle Jones of Pennsylvania, may have fessor of law at New York Law that all gay persons are entitled to been a Republican appointee and an School, the Paul F. Lazarsfeld Fel- equal dignity, that any ostensible state avowed conservative, but his decision low and Ph.D. candidate in sociology interest in encouraging opposite-sex was actually more sweeping. at , and the legal couples to marry is unrelated to ban- And the domino-like effect of editor at Towleroad, award-winning ning gays from the institution, that these decisions impacts hearts and LGBT news and politics blog. He can the erroneous view that one-man-one- minds of the American public, be reached at [email protected] woman households are “optimal” for as well. The latest national poll- and you can follow him on Twitter at child rearing cannot justify antigay ing data shows that 57 percent of @ariezrawaldman.

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