defense of marriage act

August 30, 2013

IRS Ruling a Victory for Married Same-Sex Couples Across the Country!

Thanks to the U.S. Department of the Treasury and the Internal Revenue Service for doing the right thing on August 29. Those of us who live in states, like Pennsylvania, that have their own version of the Defense of Marriage Act (or a constitutional ban in other states on same-sex marriage) will now, at last, have the full federal economic benefits and protections of marriage as long as you were married somewhere that recognizes your marriage. Meanwhile cases challenging state DOMA’s and constitutional bans in federal court on gay marriage need to go forward. The PA ACLU is leading such a case here in Pennsylvania; this groundswell of support for equality WILL succeed. And like in the Loving v. Virginia case, we will eventually have Freedom to Marry for all consenting adults regardless of sexual orientation.

Come Check out Our NEW Site!

Tara R. Pfeifer, WLP Staff Attorney

The Internal Revenue Service and the Treasury Department announced yesterday that the federal government will recognize the marriages of legally married same-sex couples for all federal tax purposes, regardless of where those couples reside.

This landmark ruling comes on the heels of the United States Supreme Court’s decision in U.S. v. Windsor in which the Court overturned a key provision (Section 3) of the Defense of Marriage Act.  Section 3 defined the terms “marriage” and “spouse” for purposes of federal law as pertaining only to legal unions between one man and one woman.  Yesterday’s announcement clarifies that when it comes to evaluating the federal tax status of same-sex married couples, it is the “place of celebration” – where the wedding took place – that controls, not the state where the couple resides.  Thus, same-sex couples that marry in one of the states where same-sex…

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August 14, 2013

Let’s Strengthen, Not Weaken Social Security

Social Security.  It’s been around for 78 years.  It’s a benefit that everyone (and their family members) who has worked in the United States is eligible to receive. You pay into the system when you are working and then when you retire or become disabled, you, your spouse, and your dependent children receive monthly benefits based on you earned income history.  Currently almost 58 million Americans receive $816 billion annually in Social Security benefits.  Most (70%) are retirees and their family members.  The rest are either disabled (19%) or are survivors (11%) of a deceased spouse or parent who would have otherwise qualified for Social Security.  We all like, expect, and will, if not already, depend upon Social Security to sustain our financial well-being and independence.

Dwight D. Eisenhower Supported Social Security

Yet it is under attack.  And has been for almost a decade.  Until 2005, both political parties fully supported Social Security.  President Dwight D. Eisenhower in a letter to his brother Edgar on November 8, 1954 said:

Should any political party attempt to abolish social security, unemployment insurance, and eliminate labor laws and farm programs, you would not hear of that party again in our political history. There is a tiny splinter group, of course, that believes you can do these things. Among them are H. L. Hunt (you possibly know his background), a few other Texas oil millionaires, and an occasional politician or business man from other areas. Their number is negligible and they are stupid.

This was right after he responded to a letter to a constituent shortly after signing a bill into law expanding Social Security.  In that letter dated September 30, 1954, President Eisenhower said:

The actual fact is that by and large the productivity of a national economy must [emphasis added], at any given time, support the people then living in the nation. This means that, roughly, the people from twenty to sixty bear the burden of supporting themselves, and in addition, support those from birth to twenty years of age, and those from sixty to eighty.

The Three-Legged Stool

At that point in our history, both sides of the aisle fully supported the idea of Social Security as the third leg of the financial stool (the other two legs being pensions and savings).

Over the years fewer and fewer people have had employment that contained a defined benefit pension.  And fewer people have retirement savings. People need all three legs.  With the other two legs being cut or chipped away at, Social Security remains potentially their only source of income should they retire or become disabled.

The Bush Administration Starts the Attacks on Social Security

The attacks on Social Security really started hard and heavy in 2005 when then President George W. Bush called for the privatization of Social Security and a redesign of Medicare that created the so-called “doughnut hole.”  I first started working on this issue that year, organizing a protest rally on the Penn State University-University Park Campus when Bush came to town to try to tell the Future Farmers of America that Social Security was a lost cause.

Over 500 people were at that protest.  Holding up signs like:

 

2005 Rally at Penn State University Protesting the Privatization of Social Security

Bush is Wrong! Ike was Right! Hands Off My Social Security: 2005 Rally at Penn State University Protesting the Privatization of Social Security

  • Hands Off My Social Security
  • Bush is WRONG!
  • Ike was RIGHT!
Sign at Protest that says: "No! No! No Social Security Privatization Fiddle"

2005 Rally at Penn State University Protesting the Privatization of Social Security

  •  No! No! No Social Security Privatization Fiddle and

 

Banner at 2005 PSU Protest saying: "Social Security: Don't Gamble with Our Future"

Don’t Gamble with Our Future: 2005 Rally at Penn State University Protesting the Privatization of Social Security

  • Social Security: Don’t Gamble with OUR Future (referring to privatizing and placing Social Security payments in the volatile stock market).

Organizations and individuals fought back and Social Security was not privatized but Medicare was compromised when the prescription drug benefits (Part D) were written into law in 2006. This hole forces individuals on Medicare in 2013 to pay 100% of their drug costs once  you reach their Medicare Part D plan’s initial coverage limit of $2,970 and ends when you spend a total of $4,750.

This was the opening gambit to destroy Social Security. These attacks are continuing to this day.  Now it is the Tea Party Republicans who are doing the attacking.  And if they succeed, women and people of color in particular will pay the penalty.

The Seven Principals to Strengthen Social Security

Rather than decimate our safety net that we all paid for and for which we are due, we should be strengthening rather than weakening Social Security. According to StrengthenSocialSecurity.org – a coalition of over 300 national and state organizations representing over 50 million Americans, there are seven principles to fully support and strengthen our Social Security system:

  1. Social Security did not cause the federal deficit; its benefits should not be cut to reduce the deficit.  And anyone who tells you Social Security is going broke is either misinformed or deliberately trying to mislead. The Social Security Trust Fund is viable through 2033.
  2. Social Security should not be privatized in whole or in part.  Unlike Wall St. and the stock market, Social Security is a reliable, risk free source of income. These benefits are guaranteed every month and are adjusted to the rise in the cost of living.
  3. Social Security should not be means-tested.
  4. Congress should act in the coming few years to close Social Security’s funding gap by requiring those who are most able to afford it to pay somewhat more. This means that the cap on payment into Social Security should be lifted for higher income individuals.
  5. Social Security’s retirement age, already scheduled to increase from 65 to 67, should not be raised further. Increasing the retirement age disproportionately affects low-income women. The life expectancy for low-income women has decreased over the last 25 years and they are more likely to have jobs that compromise their health. Increasing the retirement age would amount to a 15% benefit cut for low-income women workers.
  6. Social Security’s benefits should not be reduced, including [benefit-reducing] changes to the COLA or the benefit formula. Republican leaders want to impose a less accurate COLA formula – the chained-CPI. The current COLA (Cost of Living Alliance) formula is based on the Consumer Price Index (CPI) which estimates the price of stuff we need (like food) changes over time.  The chained-CPI assumes that when the prices of something goes up, people will automatically replace it for something cheaper (e.g., beef would be substituted with chicken and maybe even eventually with dog food); therefore the COLA can be calculated at a lower rising level.  That con only work for the short-term since in some cases (e.g., health care) there are no substitutes and for others (e.g., the food example), people either can’t or won’t go that far without compromising their lives. Over a 30-year retirement, that means that a person would be losing a full month’s worth of Social Security every year. For senior women who often don’t have extra savings or a pension, the gap between their regular expenses and what would be covered over time under a chained-CPI would be disastrous.
  7. Social Security’s benefits should be increased for those who are most disadvantaged. This would include low-income workers, LGBTQ families in states that don’t recognize same-sex marriages, college students whose working parent has died, and people who have to drop out of the workforce to provide caregiving to their family members.

Increasing the Benefits for the Most Disadvantaged

I’d like to look at this last principle in more depth by focusing on women and Social Security because women make up the combined majority of people in these four groups.  So, why should benefits for these four groups be increased?

Low Income Workers

Low Income workers are disproportionately made up of women and people of color. Living hand to mouth, this group of working-age people have little ability to build up any retirement savings.  So one leg of the stool is cut very short.  And unlike high-income workers who worked at a company with full benefits, they are less likely to have any retirement pension at all.  The second leg is also cut very short. As a result, nearly 80% of a low-income worker’s retirement income is made up entirely of Social Security benefits.  And because of the cutbacks in Medicare with the aforementioned doughnut hole, this group of retired people – mostly women who live longer – are further squeezed.  This group of retirees, rather than having their livelihood threatened by a chained-CPI reduction should, instead have and enhanced benefit by creating a Special Minimum amount of Social Security benefits for lifetime low-income earners.

In 2012, the National Organization for Women Foundation, the National Committee to Preserve Social Security and Medicare, and the Institute for Women’s Policy Research released a report called “Breaking the Social Security Glass Ceiling: A Proposal on How to Modernize Women’s Benefits.”  This report presents a proposal to enhance this baseline level of Social Security benefits for low-income workers. They suggest improving the Special Minimum Benefit by:

  • Increasing the benefit to equal 150 percent of the aged poverty level for workers with 30 years of credit;
  • Reducing the wages required to receive a year of credit toward the minimum benefit to the amount required for four Social Security credits;
  • Indexing future increases in the minimum benefit to growth in wages rather than the CPI;
  • Providing up to ten family service years of credit toward the computation of the benefit; and
  • Increasing the Supplemental Security Income (aka SSI) general income exclusion to $100 and adjust it in future years for inflation.

LGBTQ Families

In June, the US Supreme Court, in a case known as United States v. Windsor, overturned the federal Defense of Marriage Act. They declared that committed same-sex couples who have had their relationships legally recognized as marriage must receive all of the federal benefits, including Social Security, associated with legally-recognized marriages.

Same-sex couples, who live in states that don’t recognize their marriages, however are currently out of luck.  In the 37 states without marriage equality, same-sex couples and their families are considered legal strangers. A same-sex household with one wage earner forfeits $675 monthly, the equivalent of two months’ worth of groceries for two people.

The Glass Ceiling report makes the following proposal to address continuing discrimination in these 37 states that don’t recognize same-sex marriages:

  • Amend the Social Security Act to define “wife,” and “husband” so that they no longer rely on gender-specific pronouns;
  • Provide eligibility to spousal benefits to individuals who are members of same-sex marriages, domestic partnerships, civil unions, or any other such relationship as the states, by law, may prescribe;
  • Extend to the children of these relationships, benefits under the same terms and conditions as children of heterosexual couples; and
  • Directly address the issue of disparate state-based DOMA laws by declaring that all federal family eligibility determinations under Social Security be exempted from the provisions of state-based Defense of Marriage Acts.

College Students and their Parents

Up until 1981, students attending college whose working parent had died, become disabled, or retired were eligible for Social Security benefits under their parent’s Social Security until they reached the age of 22.  That year, all post-secondary benefits were eliminated.  Most of the recipients of this benefit were disproportionately children of parents in blue-collar jobs, African-Americans, and those with lower incomes than other college students.  As a result of this change in the law, single parents—again most often women—would often defer saving funds for their own retirement in order to assist their kids through college. This decision results either in a a lower level of retirement funds for his/her parent(s) and/or a reduced likelihood of the student attending college if the parent and child are unable to fund the student’s post-secondary education.

The Glass Ceiling report makes the following proposal to address this issue:

  • Reinstate benefits for children of disabled or deceased workers until age 22 when the child is attending a college or vocational school on a full-time basis.

Caregivers

In addition to the disparity in pay between men and women, one of the main reasons women’s Social Security benefits are lower on average than that of men is that they are more likely to take time off from work to care for children or elderly and sick adult family members (spouses, parents, in-laws, and other family members).  The Social Security Administration uses a calculation known as the “average Indexed Monthly earnings primary insurance amount” (aIMe PIa) to calculate the benefit levels of all beneficiaries. Because of the way that the Social Security Administration calculates the benefit level, any temporary interruption in one’s income can significantly reduce how much Social Security a person can receive.

This affects single women as well as married women since both can and do have children and do have other family members that may need some care. Currently the only way to compensate for this care-giving duty is to provide the caregiver a spousal add-on benefit. This unfair treatment of caregivers in the Social Security formula needs to be changed so that we can continue to care for our family members without jeopardizing the financial security of the caregiver.  The Glass Ceiling report also addresses this issue by recommending a change in the way the aIMe PIa is calculated:

  • Compute the AIME PIA by imputing an annual wage for each family service year so that total earnings for the year would equal 50 percent of that year’s average annual wage index. Family service years would be those in which an individual provides care to children under the age of six or to elderly or disabled family members. Up to five family service years could be granted to any worker.

These Improvements are Affordable: With Some Changes

We can pay for these improvements, and simultaneously ensure the solvency of our Social Security system for 75 years or more. Changes to how Social Security could be funded are well-known. We just need to do it!  The funds for these changes are available IF we:

  • Remove the cap on wages subject to the Social Security payroll tax.  Rather than capping employee, employers, and the self-employed person’s payroll taxes on the first  $113,700 of income, the law should be changed to entirely remove this cap and require millionaires and billionaires to pay the same rate as the rest of us.  This one change would provide most of the needed resources.  According to Virginia Reno and Joni Lavery of the National Academy of Social Insurance, “this option [by itself] would eliminate much of Social Security’s current actuarial deficit by producing revenue equal to about 2.17 percent of taxable payroll.”
  • Slowly increase the Social Security contribution rate by 1/20 of one percent over the next 20 years.  This option, according to Reno and Lavery “would provide revenue equal to 1.34 percent of taxable payroll.”
  • Treat all salary deductions like 401(K) plans.  Currently we pay Social Security and Medicare taxes on any retirement plan, such as a 401(K), a 403(b), or a 527 plan.  We do not pay these taxes on that portion of our salary we put aside to pay for any flexible spending account, such as a medical savings account.  If we were to  treat and tax flexible spending accounts just like our retirement plans, Reno and Lavery report that we would provide an about  an additional 0.48 percent of taxable payroll.

These three changes amount to 3.99% of payroll taxes and would fully close the current actuarial deficit (2.67 percent of payroll) according to Reno and Lavery.  The additional 1.32% would fund the proposals to strengthen Social Security as recommended in the Glass Ceiling report without hurting women, people of color, LGBTQ people, caregivers, college student, and low-income families.

The funds are there.  Let’s make it happen. Let’s strengthen, not weaken Social Security for everyone.

 

June 27, 2013

DOMA and LGBTQ Rights in PA

I just finished reading an article in PhillyNOW, a weekly blog that touts itself as an alternative to the mainstream press in Philadelphia to “bring you news and politics with an attitude, whether you like it or not.”  This article, in light of yesterday’s Supreme Court decision in UNITED STATES v. WINDSOR overturning the definition of marriage as described in Section 3 of the Defense of Marriage Act (DOMA), calls on the Democratic Party at both the state and national levels to “stand up on LGBT rights.”

I would go even further. Not only should Democrats step forward, but Republicans need to step of to the plate of equal access as well.

It doesn’t matter what party you belong to.

The Declaration of Independence says,

We hold these truths to be self-evident, that all men [sic] are created equal, that they are endowed … with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

The  5th amendment to the Constitution, in part says,

“No person…shall be deprived of life, liberty, or property, without due process of law…”

(FYI, It was this constitutional “due process” amendment that was used to overturn DOMA in yesterday’s majority opinion).

That means equality for all. Including in marriage and an end to hate and discrimination for all, gay or straight.

Our laws need to be changed here in Pennsylvania to live up to the Declaration of Independence and our Constitutional right to democracy and freedom for all. That includes, but are not limited to:

  1. revoking Pennsylvania’s DOMA law;
  2. passing marriage equality;
  3. adding sexual orientation and gender identity, as well as gender, disability, and ancestry (click here and here for current bills) back into PA’s hate crimes law;
  4. adding sexual orientation and gender identity (bill not yet introduced into the PA General Assembly) into PA’s Human Relations Act;
  5. passing the proposed the Pennsylvania Safe Schools (PASS) Act that focuses on bullying and harassment in public schools; and
  6. changing state inheritance tax laws to give the same exemptions to the tax that heterosexual couples have (as far as I can tell, there is no pending legislation in the PA General Assembly to do this).

Let’s do it sooner rather than later. Let’s come together.

May 13, 2013

Civil Rights Denied: PA’s Proposed Constitutional Same-Sex Marriage Ban

Logo of Freedomt to Marry, Inc.

“working to win the freedom to marry in more states, grow the national majority for marriage, and end federal marriage discrimination. ” http://www.freedomtomarry.org/pages/about-us

A couple of days ago I posted a blog about the dueling marriage equality and same-sex marriage ban bills recently introduced into the Pennsylvania General Assembly.  Today I thought I give a more detailed argument as to how discriminatory the same-sex marriage ban is to gays and straights alike.

As previously stated, on May 7, Pennsylvania State Representative Daryl Metcalfe (R-12 Butler County) introduced his legislation (HB 1349) to create a constitutional amendment defining marriage OR its “substantial equivalent” solely as a union between a man and a woman.  That bill would amend Article I of the Pennsylvania state Constitution – the Declaration of Rights section – to take rights away from unmarried couples in Pennsylvania, whether they are same-sex or heterosexual couples.  Here’s the constitutional amendment as written in HB 1349:

“Marriage is the legal union of only one man and one woman as husband and wife and no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized.”

Until the spring of 2012, 31 states across the country had created constitutional amendments to outlaw marriage or anything that looks like marriage between same-sex couples. The last successful attempt at this form of discrimination occurred by referendum in North Carolina in the spring of 2012; all other attempts since then to deny marriage equality have failed.

Marriage equality however has had many successes since then. Three states – Delaware, Rhode Island, and Washington – either passed a referendum OR legislation legalizing marriage equality following North Carolina’s referendum. One state – Minnesota—is expected to pass their marriage equality bill today; note, this is only 6 months after the voters in Minnesota by referendum killed their proposed same-sex marriage ban.  And one state – Colorado – passed legislation recognizing civil unions even though they have a constitutional ban on same-sex marriage.

Instead of moving forward, right-wing legislators would like to have Pennsylvania join the 31 other states that constitutionally ban-same sex marriages and/or other legal forms of relationships such as domestic partnerships and civil unions.  These Pennsylvanian legislators are making their fourth attack on same-sex couples and on unmarried people – gay or straight.  If HB 1349 passes, Pennsylvania for the first time in its history would enshrine and mandate discrimination into the state Constitution.

This amendment would take rights away from unmarried couples in Pennsylvania, whether they are same-sex or heterosexual couples.  The way this amendment is written would affect all unmarried couples, victims of domestic violence if they are not married to their abuser, and could threaten Pennsylvania’s anti-discrimination laws

Effect on All Unmarried Couples – Gay or Straight

Currently, Pennsylvania statute recognizes only marriages between one man and one woman.

Pennsylvania does not recognize either (1) same-sex marriages or (2) civil unions, domestic partnerships, or any other coupled-household status—whether entered into by same-sex or opposite-sex couples.  Those affected by this amendment would therefore, for example, include senior citizens who live together but are not married because of economic considerations, couples who believe they have a “common law marriage” (which is no longer recognized in Pennsylvania), and gay or straight couples who have any type of intimate relationship.

It could also threaten the lives of unmarried domestic violence victims and allow unmarried individuals to be discriminated against in housing, employment, and public accommodations.

Effect on Domestic Violence Victims

In 2004, Ohio passed their discriminatory anti-marriage constitutional amendment, which was quickly and unexpectedly used to deny protections to unmarried victims of domestic violence.  Here’s what happened.  Almost immediately, unmarried batterers argued that since they were not married, Ohio could not enforce their domestic violence law because that was treating their relationship with their partner as “equivalent to marriage.” The 2nd District Court of Appeals in Ohio agreed and ruled that the Ohio domestic violence law runs afoul of the “Defense of Marriage” amendment, passed by voters in 2004, and does not apply to “a person living as a spouse.”  As a result, unmarried defendants, who could have faced felony domestic violence charges, only faced misdemeanor assault charges.    It took several years for the Ohio Supreme Court to reverse this ruling.  In the interim, unmarried women were at the mercy of their batterers in several counties in Ohio.

The Ohio amendment is very similar to that of the one proposed for Pennsylvania.   In Ohio, by providing protection to “persons living as spouses,” the domestic violence statutes created a legal status for cohabiting relationships that is “equivalent to a marriage,” according to the appeals court. The appeals court decision in Ohio then denied protection from abuse to unmarried individuals – gay or straight – because the domestic violence law gave legal standing to an unconstitutional relationship – that of an unmarried couple. The courts argument overturning these domestic violence protections utilized similar language found in Pennsylvania’s HB 1439, which states that “no other legal union… or the substantial equivalent thereof shall be valid or recognized.”

We have no way of knowing how the courts would rule on a similar argument should this amendment pass and become part of Pennsylvania’s Constitution.  Who knows if Pennsylvania’s Supreme Court would protect the victim or allow batterers to circumvent Pennsylvania’s Protection From Abuse (PFA) law?  We need to protect all people from domestic violence and sexual assault.  Passage of this amendment could deny the protection offered by Pennsylvania’s domestic violence and protection from abuse laws; it could even risk the very lives of unmarried people–gay or straight–because this constitutional amendment denies the rights, privileges, and protections of law to people who are not legally married or who have a relationship that is “functionally equivalent” to traditional marriage.

Effects on Employment, Education, Housing, and Public Accommodations

It also looks like current and proposed employment, education, housing, and public accommodations anti-discrimination laws at both the state and local levels might be jeopardized for unmarried individuals.  Discrimination based on marital status and family responsibilities is unlawful under a variety of existing laws. With a few exceptions, under current state and federal law, people who experience this form of discrimination must fit their claims into an appropriate legal theory—as discrimination based on gender, a violation of family and medical leave laws, or another legal theory.  In addition, many municipalities throughout Pennsylvania have passed or are considering ordinances that would make it illegal to discriminate in employment, housing, and in some cases, public accommodations specifically based on sexual orientation, gender identity and marital status.   Will the state courts, the PA Human Relations Commission, or local Human Relations Commissions be able to enforce these laws if Pennsylvania’s constitution has been amended to require unmarried couples to be treated differently from married couples?  We do not know.  Passage of HB 1439 as a constitutional amendment could put all of these protections at risk since any person, company, or school could argue that their business is mandated to deny employment, hiring, and benefits to any person who is not married.

Civil Rights Denied, Reiterated

Last, but not least, exclusion, discrimination and inequality are not the principles this state was founded upon. This discriminatory “Marriage Protection Amendment” denies unmarried heterosexual, lesbian, gay, bisexual and transgender families the protections and fairness they deserve. Heterosexual married couples and their families are afforded more than 1,000 legal protections and economic benefits provided through state and federal law, benefits and protections that are currently inaccessible to unmarried couples.  Passage of this amendment would therefore subject same-sex couples and their families to exclusion, discrimination and inequality.

The proposed amendment could also take away existing legal protections for committed long-term couples and their children, such as second parent adoptions, cohabitation agreements, co-parenting agreements, wills, living wills, powers of attorney, etc., regardless of their sexual orientation.

Gay and lesbian Pennsylvanians are our neighbors, co-workers, friends, and family member.  They pay taxes.  LGBT people should not be bullied.  They deserve the same rights, protections, and responsibilities that all residents desire and have.

Let’s all work to stop this bill now!  So I’m once again recommending that you keep up-to-date on this horrible bill as well as other LGBTQ legislation at  Equality Pennsylvania’s website.

May 10, 2013

PA’s Dueling Marriage Equality and Gay Marriage Ban Bills

Logo of Freedomt to Marry, Inc.

“working to win the freedom to marry in more states, grow the national majority for marriage, and end federal marriage discrimination. ” http://www.freedomtomarry.org/pages/about-us

On April 15, Pennsylvania State Representative Mark Cohen (D-102 Philadelphia) introduced legislation (HB 1178) that would legalize civil unions and extend all state laws applicable to marriage to any civil union created anywhere and to any marriage performed and recognized outside of the state.  Less than one month later, on May 7, Pennsylvania State Representative Daryl Metcalfe (R-12 Butler County) introduced his legislation (HB 1349) to create a constitutional amendment defining marriage OR its “substantial equivalent” solely as a union between a man and a woman.

So we once again have a legislative dual going on in Pennsylvania between those that believe in equality for all and those that want to enshrine discrimination into the state Constitution.

Side 1: For Equality

What does Cohen’s bill do?  Very simply, it takes us on the path toward equality for lesbian and gays.  As Rep. Cohen says,

 “This bill would define a civil union as a union between two members of the same sex.  It would make all state laws applicable to marriage also applicable to a civil union.  The bill would also provide for reciprocity of civil unions performed legally in other states and the recognition of same sex marriage in other states as civil unions in Pennsylvania.”

Civil unions represent the middle-of-the-road compromise position between constitutionally banning and permitting gay marriages and have been embraced by both advocates for LGBT rights and a growing number of conservatives.

Nothing in this bill would require any religion or any clergyman to perform any ceremony uniting people in a civil union.  This legislation will merely offer committed gay couples the same legal rights that are bestowed upon married people without the status of marriage.”

I would prefer full marriage equality.  Just like all gay and straight couples in 10 states (plus Minnesota and Delaware if their legislatures pass their marriage equality bills as expected) already have.  And  just like the majority of people in Pennsylvania desire.

In a poll released on May 8 by Franklin and Marshal University, 54% of Pennsylvanians “generally” support while 41% “generally” oppose legalizing same-sex marriage.  In that same poll, 65% support passage of a state law that would allow same-sex couples to legally form civil unions that give them some, if not all, of the marriage rights given to heterosexual couples who marry.

This bill is a compromise.  It currently has 28 cosponsors and was referred to the House Judiciary Committee when it was introduced on April 15.

Side 2: For Discrimination

Meanwhile, Daryl Metcalfe has seen fit to once again try to enshrine discrimination into the state constitution.  It is a one-sentence amendment that has severe ramifications.  Here’s the constitutional amendment as written in HB 1349:

“Marriage is the legal union of only one man and one woman as husband and wife and no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized.”

Metcalfe justifies this discrimination by invoking partisan politics, a right-wing encroachment on the separation of church and state, and a denial of the protections given to us under the US Constitution:

Pennsylvania does not need to wait for the United States Supreme Court to rule on what natural law already declares as self-evident … Marriage is a sacred bond that can only be fulfilled by one man and one woman, as established by God. Final passage of my legislation will allow state lawmakers to exercise their rightful responsibility and obligation to uphold the rule of law and the will of the people.

The definition of marriage as ‘the union of one man and one woman,’ defended and upheld by this legislation, is the traditional definition of marriage that has been recognized and accepted throughout history and the world for centuries. Neither homosexual special interests gathered under the immoral umbrella of the ACLU, nor the Obama administration’s Department of Justice or any activist court should decide this critical issue for our Commonwealth.  House Bill 1349 is specifically written to empower Pennsylvania voters, and only Pennsylvania voters, with the authority to decide how marriage will be defined in the Keystone State.

News reports indicate that Metcalfe may be on the downside of this battle and that combined with the aforementioned Franklin and March poll, there is now less support for this discrimination.  According to the Philly Magazine,

His support system is fleeting. In the last session, the bill had 40 supporters, but today [May 8], according to a rep from [Rep] Brian Sims’ office, there are only 27. And this is the first time it’s been introduced with zero Democratic backers. To top it off, his bill’s lackluster show of support comes on the heels of yesterday’s announcement that a record number of legislators on both sides of the fence sponsor[ed] legislation that ban[s] discrimination against LGBT people in the workplace and housing and public accommodations [emphasis in original].

Discrimination and inequality are not the principles Pennsylvania was founded upon.

Discrimination and inequality are not the principles this state was founded upon. Metcalfe’s discriminatory amendment, in contrast to Cohen’s call for equality and respect for recognizing loving relationships, denies unmarried heterosexual, lesbian, gay, bisexual and transgender families the protections and fairness they deserve.

Heterosexual married couples and their families are afforded more than 1,000 legal protections and economic benefits provided through state and federal law, benefits and protections that are currently inaccessible to unmarried couples.  Passage of Metcalfe’s amendment would therefore subject same-sex couples and their families to exclusion, discrimination and inequality.

Gay and lesbian Pennsylvanians are our neighbors, co-workers, friends, and family member.  They pay taxes.  LGBT people should not be bullied.  They deserve the same rights, protections, and responsibilities that all residents desire and have.

If the US Supreme Court declares this summer that marriage is a right across the country just like they did in Loving v. Virginia in 1967 (see my earlier blogs here and here on this issue) then we won’t need this interim step of civil unions and Metcalfe’s bill will immediately become moot.  A great way, in my opinion to end this duel.  In Pennsylvania and across the country.

So, let’s hope that the US Supreme Court overturns Proposition 8 this summer under the equal protection and due process protections given to us under the US Constitution’s 14th amendment and therefore—like Loving v. Commonwealth of Virginia in 1967—protect marriage rights for everyone. If they stop short of that, then let’s hope and advocate for the passage of Representative Cohen’s civil union bill.

Meanwhile, to keep up-to-date on these dueling bills as well as other LGBTQ legislation, check out Equality Pennsylvania’s website.

March 28, 2013

The Tension Heard in SCOTUS Hearings on Marriage Equality

Logo of Freedomt to Marry, Inc.

“working to win the freedom to marry in more states, grow the national majority for marriage, and end federal marriage discrimination. ” http://www.freedomtomarry.org/pages/about-us

As a quick follow-up to my brush with history with the Loving v. Commonwealth of VA case and on interracial and same-sex marriage equality, I thought I’d provide some links to what happened this week in the US Supreme Court.

You can hear the oral arguments as well as read the transcript of the hearings on the Supreme Court’s website.

  • To hear or read the arguments in Hollingsworth v. Perry (the Prop 8 case) from Tuesday, March 26, click here.
  • To hear or read the arguments in United States v Windsor (the DOMA case) from Wednesday, March 27, click here.

And for some other commentary on the possible outcomes of these two cases, you might want to check out SCOTUS Blog.

The commentary I think is particularly good was written by Tom Goldstein. He gives a great summary of the tension between these two cases entitled “The Relationship between DOMA and Proposition 8.

Overturning DOMA argues that the federal government can’t deny benefits to individuals whenever a state has said that a same-sex couple has a civil right to marry (a 10th amendment states’ rights argument).  In contrast, overturning Proposition 8 is an argument for equal protection and due process (an 14th amendment anti-discrimination argument) and would therefore—like Loving v. Commonwealth of Virginia in 1967—trump states’ rights.

Based on this blog, I have two sets of questions.

  1. Will both amendments be upheld or will one trump the other? If one trumps the other, which one will “win out?” OR
  2. Will the Supreme Court just dodge this conflict by deciding not to decide?  i.e., Will they declare that they can’t rule on this case because the proponents arguing to uphold Proposition didn’t have “standing” or the right to bring the case in the first place?
March 26, 2013

Loving and Marriage Equality

Logo of Freedomt to Marry, Inc.

“working to win the freedom to marry in more states, grow the national majority for marriage, and end federal marriage discrimination. ” http://www.freedomtomarry.org/pages/about-us

Today at noon, the US Supreme Court wrapped up a hearing on the right of same-sex couples to marry.  The case is called Hollingsworth v. Perry. If broadly held in favor of the plaintiffs, it will prohibit states from denying lesbian and gay people the right to marry each other. If narrowly held, it would not affect cases outside California; it would only overturn Proposition 8 and allow gay and lesbian people within California to marry each other.

Tomorrow, the US Supreme Court will hear a case called Windsor v. United States. This case appeals the constitutionality of the federal Defense Of Marriage Act (DOMA). DOMA denies any benefit, such as tax deductions, for married couples who are not of the opposite sex.

Jointly, these cases are, IMO, about  fairness, equality, and family. What constitutes a family?  Is it right to deny a couple the rights, privileges, and responsibilities of marriage granted all other loving adults?  Does prejudice trump the protections of due process and equal protection clauses of the 14th amendment to the US Constitution?

These questions have come up before. There are a total of 14 previous marriage-equality cases that have reached the US Supreme Court. All of these cases have declared that marriage is a fundamental right for all.  The most famous case—and one that will be part of the argument for same-sex marriage in today’s case—is Loving v. Commonwealth of Virginia.

In 1967, Chief Justice Earl Warren, in an unanimous decision, overturned Virginia’s miscegenation law that bans marriage “solely on the basis of racial classifications [because it violates] the Equal Protection and Due Process Clauses of the Fourteenth Amendment.”

When you read further into the opinion you can see that it was prejudice that was the sole basis for Virginia’s (and 15 other states) laws banning interracial marriage. The argument that the state made for keeping the miscegenation law on the books was highlighted in the Court’s opinion. Chief Justice Warren quoted the judge who had sentenced Mildred and Richard Loving to either 1 year in jail or 25 years of exile from Virginia:

“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.”

Then Warren overturned the statute stating that there is no legal, “rational” basis to deny someone the constitutional right of marriage equally granted to all other heterosexual couples. And in one simple statement, he basically said that marriage is an issue of equality for all. He said,

“The freedom to marry has long been recognized as one of the vital personal rights [emphasis added] essential to the orderly pursuit of happiness by free men.” 

What happened after this decision?

Interracial Marriages

The result of this opinion was that all anti-miscegenation laws throughout the country became unenforceable. And in the case of Virginia, the state was ordered, among other things, to remove this law from their books. They did it kicking and screaming. It took them until 1971–four years after the Court’s decision–to finally comply.

And I was in the room when it happened. And as far as I can find, they made as sure as they could that the legislators’ prejudicial behavior wouldn’t appear in the history books.

I grew up in Virginia. During my senior year in high school, our Government Class took a trip to the Capitol in Richmond. It just happened to be the day that the legislature rescinded the law banning intermarriage between people of color and Caucasians. There were six of us in the class who wanted to see the vote occur. The guards at the entrance to the visitors’ gallery shut the doors and wouldn’t let anyone in. The six of us decided to question this action and held a sit-in in front of the doors. After much consternation on the part of the guards as to what to do with us, they finally opened the doors and let us in.

We then watched an all-white, male legislature grudgingly vote to rescind this law. In Virginia, the House voted using a board of red and green lights – red for a no vote and green for a yes vote. The question on the floor was basically, “Should we remove the two statutes in our code that prohibit and punish interracial marriages?” 

The speaker put the question to a vote. The board started lighting up. All but a couple of lights were red, meaning that they almost all wanted to keep this prejudiced law on the books. About 30 seconds prior to recording the vote, the speaker again said that he would be closing the vote and asked everyone once again to vote. Just before he closed the vote for the record, all but a couple of the red lights turned green. What got recorded was a grudging acknowledgement that loving someone and getting married is a right that could no longer be denied because of animus towards the couple.

Same-Sex Marriages

In the case of gay and lesbian couples, we once again have an issue of animus towards the freedom to marry in some but not all states. Thirty-nine states limit marriage to heterosexual couples only via statute or state constitutional amendment.

Ten states and three Native American tribes believe otherwise. The states supporting marriage equality are Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, Washington, and the District of Columbia. The tribes supporting marriage equality are the Coquille Tribe in Oregon, the Suquamish tribe in Washington, and the Little Traverse Bay Bands of Odawa Indians in Michigan.

New Mexico and Rhode Island recognize marriages that occur in other states and countries, but don’t allow them to be performed within the state.  And California, unless Proposition 8 is overturned, currently and will continue to recognize only the same-sex marriages that occurred between the May 2008 CA State Supreme Court’s decision legalizing same-sex marriage and the November 4, 2008 passage of Proposition 8.

Polls also tell a story as does Mildred Loving

At the time of the Loving decision, 80% of the country felt that it was wrong for interracial couple to marry. In 2011 (the most recent poll I could find), a record 86% of the public supported interracial marriage.

According to FreedomToMarry.org, popular opinion on gay marriage has also dramatically shifted in the last nine years. A poll addressing the issues being argued in the Proposition 8 case was released on March 18, 2013; it indicates that 58% of respondents support same-sex marriage; only 36% say they are opposed. A poll addressing the issues being argued in the DOMA case was released on March 7, 2013; it shows that 59% of respondents oppose the “denial of equal benefits and protections for legally married same-sex couples.”  And regardless of support for same-sex marriage in either federal or state law, even more people—83 percent—believe that there is a constitutional right to marriage (poll released on February 19, 2013).

I agree. And so did Mildred Loving in one of her few public statements on marriage equality. On the 40th anniversary of the Loving v. Commonwealth of Virginia decision (June 12, 2007), she linked the freedom to marry for same-sex couples to the freedom to marry for interracial couples:

I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry.

I am still not a political person, but I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness and the family that so many people, black or white, young or old, gay or straight, seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about.

Let’s listen to Mildred. Let’s listen to the public. Let’s stand up to the animus similar to that expressed by those all-white legislators in the 1971 Virginia General Assembly.

Like Chief Justice Warren and all of his colleagues did back in 1967, the current US Supreme court needs to stand for freedom, fairness, and the family.  They should  broadly rule for marriage equality as suggested by People for the American Way Foundation by supporting the freedom to marry for all. Overturn Prop 8, DOMA, and all the restrictive marriage laws across the country.

As Mildred said,

That’s what Loving, and loving, are all about.