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?

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.

US Congress passes Violence Against Women Act: Article via AFP

This article was first posted on Thursday, February 28, 2013 2:12:14 PM.  It gives a very good summary of how the Violence Against Women Act passed and why it took so long.

US Congress passes Violence Against Women Act (via AFP)

After months of partisan delay, the US Congress passed the Violence Against Women Act on Thursday, reauthorizing protections from domestic violence and sexual assault for millions of women. The bill — a reauthorization of legislation first enacted in 1994 but which includes new protections — passed…

About AFP: AFP is a global news agency delivering fast, in-depth coverage of the events shaping our world from wars and conflicts to politics, sports, entertainment and the latest breakthroughs in health, science and technology.

House Republicans Introduce Partisan VAWA that Fails to Protect ALL Victims

NOW Board Supporting VAWA 2-24-13 editedToday, I am presenting a guest blog by my dear friend and colleague Pat Reuss. Pat describes herself as “a longtime women’s rights activist pretending to be retired and currently serving as a policy adviser to NOW [National Organization for Women] and the National Task Force [to End Sexual and Domestic Violence Against Women].”

Pat has a history several decades-long advocating for a comprehensive Violence Against Women Act (VAWA). She first started working on this issue in the early 1990’s.  At that time, she worked as the policy director for what was then called the NOW Legal Defense and Education Fund (now known as Legal Momentum).  In that capacity, she worked very closely with then Senator, now Vice-President Joe Biden to write the first VAWA passed by Congress and signed into law in 1994.

This is Pat’s statement calling on anti-violence advocates to contact their representative in the US House of Representatives to vote for the comprehensive Senate-passed version to reauthorize VAWA:

The Republican’s version of VAWA, which substitutes the Senate’s inclusive, comprehensive version of S.47 for a bill that excludes effective protections for LGBT, immigrant, tribal and campus victims, will likely be on the House floor this Thursday.  The National Task Force [to End Sexual and Domestic Violence Against Women] (NTF) and NOW oppose this [House substitute] bill.  We need to call our Representatives and firmly ask them to vote against the House Republican Leader’s substitute VAWA and ask them to vote for the field-approved VAWA passed in the Senate.

Tomorrow [February 27], Representatives Issa (R-CA) and Cole (R-OK) will ask the Rules committee to allow them to offer an amendment to replace the House’s flawed tribal provisions with improved language that will provide effective, constitutionally sound protections for Native victims of domestic violence. Call your Representatives and ask them to tell House leadership to accept these amendments.

78 Senators from both parties and over 1,300 local, state and national professional and policy organizations support the Senate-passed bill as do law enforcement officials, health care professionals, community program and service providers, and the tens of millions of survivors and their families, friends and loved ones who rely on and have benefited from and used the services and resources provided by the 19-year-old law.

It must be noted that after months of tireless efforts by advocates working with the Republican leadership staff, there are some small but very important improvements in this substitute and the bill is not the punitive version of last year’s House bill. 

That said, the [House] Republican version of the bill  fails victims in a number of critical ways:

  • Fails to include the LGBT provisions from the Senate bill. 
  • Fails to include “stalking” among the list of crimes covered by the U visa (a critical law enforcement tool that encourages immigrant victims to assist with the investigation or prosecution of certain enumerated crimes); current law already includes domestic violence and sexual assault, among others, and the Senate bill’s inclusion of “stalking” recognizes the serious threat this crime poses to safety.
  • Provides non-tribal batterers with additional tools to manipulate the justice system, takes away existing protections for Native women by limiting existing tribal power to issue civil orders of protection against non-Native abusers, while weakening protections for Native women.
  • Contains harsh administrative penalties and hurdles for small struggling programs and an additional layer of bureaucracy through the office of the Attorney General.
  • Drops important provisions in the Senate bill that deal with improving campus safety and that work toward erasing the rape kit backlog.
  • Weakens protections for victims in public housing.

We must oppose this partisan substitute and pass the Senate version of VAWA.  201 Democrats are sponsors of H.R. 11, the House replica of the Senate bill as introduced. 19 Republican Representatives have asked the House Republican leaders to pass a bipartisan bill that “reaches all victims” and dozens more Republicans support some or all of the Senate provisions that are not included in the Republican VAWA imposter.

BIPARTISAN ACTION ITEM: Call your Democratic House members to ensure that they will oppose the Republican leadership’s substitute and support the “real” S. 47, the Senate passed bill.

Find out if your Republican Representative is one of the 19 who supports a bipartisan, inclusive VAWA and ask them step up and to oppose the Republican leader’s substitute and demand and support a vote on the Senate bill:

  1. Call or email the 19 (Poe R-TX and Ros-Lehtinen R-FL have added their names) who signed the letter to House leadership. See letter and signatories here. Names and contact information here.
  2. Call or email the 7 Members who voted against last years’ harmful, non-inclusive Republican VAWA.
  3. Call or write the 26 House members who have interest in one or some of the Senate’s inclusive provisions.

Update Wednesday evening February 26:

Thanks to your calls and emails and tweets (or however you interacted with your US Rep,), it looks like our push-back to stop the watered-down version of VAWA is starting to work.

A Politico.com report at 6:48 this evening (February 26) states that “House Republicans seem to be resigned that their version of the Violence Against Women Act is a loser with their own members and are likely to pass the Senate bill this week without changes.”

Let’s keep up the pressure. Call your Representative tomorrow and tell him/her to vote for the original Senate version of S.47.

This blog is a wonderful essay on abelism and how it affects one woman’s access to the the world and loving relationships. Like racism, sexism, and homophobia, this blog clearly speaks power to the truth on the intersection of all forms of discrimination and how it can personally affect someone. In this case, a queer, adopted, woman of color who has a physical disability. Through the lens of living in an ableist world, she describes how she has survived and thrived despite all of the isms she has experienced.
Thank you for your posting. I hear you and hope others do as well.

A Further Comment on Violence Against Women and Children on V-Day

I received a comment on LinkedIn this morning in response to my posting titled VAWA Passes Senate: One Step Toward Ending the Climate of Indifference Towards Violence Against Women.  My status statement said, “Feb 14 is V-Day. Rise to end indifference towards violence against women.”  A man in one of the groups I am a member of responded with a question:

So, please explain how we are being “indifferent” towards violence against women. There are laws against violent attacks on any human being – women included. Are these laws being ignored in cases where a woman is the victim?

I think not.

What we see here is another group who wishes to reap the benefits of victim status whether the facts bear them out or not. Beware of those who believe that they deserve special treatment – especially when that special treatment comes at the expense of others.

His question deserves a response.  Which I gave him within LinkedIn.  Since there are many others how might have a similar question but aren’t on LinkedIn, I’m commenting here as well.

The Violence Against Women Re-Authorization Act (VAWA S.47) does not call for special treatment of anyone. VAWA is calling on fair treatment of ALL victims of violence.

A climate of indifference is a climate where attacks against others – sexual assault, acquaintance or domestic violence, sexual harassment, and stalking– are ignored, covered up, or made light of. And in some instances, the climate of indifference is perpetuated when the alleged perpetrator is treated more lightly than someone else who may have committed the assault simply because of his status or affiliation.

That’s what has partially been happening with the Athletics program at Penn State University since 1994 and which helped lead to the situation of the child sexual assaults done by Jerry Sandusky. That’s part of what is happening in Steubenville, OH in the rape case where perpetrators made a video of themselves and others carrying a teenage girl from one house to another and raping her. That’s what led to the DC police refusing to take a police report last week from a friend of mine after a man exposed himself to her and masturbated because she didn’t stay with the man until the police came!

In addition, VAWA’s re-authorization has been delayed for over two years because some legislators – mostly Republican, including the majority of the US House of Representatives – are indifferent to the violence perpetrated on Native Americans, immigrants, and gays, lesbians, bisexual, and transgendered persons. This “indifference” towards violence against specific people is based solely on the victim’s status, is disparate treatment, and IMO is discriminatory.

Yes there are laws in place. Yet, until all victims are treated fairly and in a timely fashion, I will continue to call out people and communities for creating a climate of indifference that allows this to continue. All people need to live in safe communities and homes.

Ending this climate of indifference wherever it occurs is a start towards caring for our loved ones.  PASS VAWA NOW!

President Barack Obama’s Inauguration Speech: Standing for Equality

This morning, on the holiday celebration of Martin Luther King’s birthday, President Barack Obama was publicly sworn into office for his second term as President of the United States.  His inaugural speech was 2,095 words long. It covered many different issues from the role of government to freedom, poverty, the military, education, international interactions, and climate change.

Its over-arching message to me is that as a country and as individuals, we need come together to stand up for equality for all.

President John F. Kennedy, Jr. said something similar in his 1961 inaugural speech when he asked all Americans to help each other. He said then, “And so, my fellow Americans: ask not what your country can do for you—ask what you can do for your country.”

Martin Luther King expressed similar sentiments in his “I Have a Dream Speech” in 1963:

I have a dream that one day this nation will rise up and live out the true meaning of its creed: ‘We hold these truths to be self-evident, that all men are created equal.’

I have a dream that one day on the red hills of Georgia, the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood. I have a dream that one day even the state of Mississippi, a state sweltering with the heat of injustice, sweltering with the heat of oppression, will be transformed into an oasis of freedom and justice. I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character….I have a dream that one day, down in Alabama, with its vicious racists, with its governor having his lips dripping with the words of ‘interposition’ and ‘nullification’ — one day right there in Alabama little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers….I have a dream that one day every valley shall be exalted, and every hill and mountain shall be made low, the rough places will be made plain, and the crooked places will be made straight; ‘and the glory of the Lord shall be revealed and all flesh shall see it together.’

I hope that Barack Obama’s words resonate as well. In that vein, here is how I think he best spoke about equality for all. Maybe part of this will become part of the lexicon of great Presidential speeches in the future.

We, the people, declare today that the most evident of truths – that all of us are created equal – is the star that guides us still; just as it guided our forebears through Seneca Falls, and Selma, and Stonewall; just as it guided all those men and women, sung and unsung, who left footprints along this great Mall, to hear a preacher say that we cannot walk alone; to hear a King proclaim that our individual freedom is inextricably bound to the freedom of every soul on Earth.

It is now our generation’s task to carry on what those pioneers began. For our journey is not complete until our wives, our mothers, and daughters can earn a living equal to their efforts. Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law – for if we are truly created equal, then surely the love we commit to one another must be equal as well. Our journey is not complete until no citizen is forced to wait for hours to exercise the right to vote. Our journey is not complete until we find a better way to welcome the striving, hopeful immigrants who still see America as a land of opportunity; until bright young students and engineers are enlisted in our workforce rather than expelled from our country. Our journey is not complete until all our children, from the streets of Detroit to the hills of Appalachia to the quiet lanes of Newtown, know that they are cared for, and cherished, and always safe from harm.

Our journey is not complete until every one is equal, cared for, cherished, and safe from harm.  Thank you for your inspiring words, Mr. President. May all of usfrom you as leader of the US to each of us in our homes and communitieswork together  to create a better, more accepting country and world.