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Tag: marriage

  • Legal limbo

    Legal limbo

    As gay couples in Wisconsin waited in legal limbo in mid-June, equality foes continued working to defend anti-gay amendments in the courts and marched on Washington.

    But those foes are caught in a losing streak. The march on Washington on June 19 fell flat, and there have been 21 consecutive court rulings for marriage equality since last summer, when the U.S. Supreme Court overturned a key provision in the anti-gay Defense of Marriage Act.

    On June 25, a federal judge struck down Indiana’s same-sex marriage ban as unconstitutional. The court clerk in Marion County, home to Indianapolis, began issuing marriage licenses to same-sex couples about an hour after the decision was announced.

    On the same day, the 10th Circuit Court of Appeals in Denver upheld a lower-court ruling that found Utah’s prohibition of same-sex marriage unconstitutional. The 3-2 ruling affects all states in the 10th Circuit: Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.

    But the appeals court immediately put a stay on marriages in those states pending a U.S. Supreme Court ruling.

    Just weeks before the June 25 rulings,  U.S. District Judge Barbara Crabb on June 6 found that Wisconsin’s constitutional amendment barring gay couples from marrying violates the 14th Amendment’s Due Process and Equal Protection clauses. Crabb didn’t issue a stay — requested before her ruling by Republican Attorney General J.B. Van Hollen — until June 13. So for six days in early June, same-sex couples applied for and obtained marriage licenses in 60 of the state’s 72 counties. At least 550 gay couples were married in Wisconsin.

    While the case is pending appeal with the 7th Circuit in Chicago, there’s uncertainty: For those with licenses who didn’t marry, should they wed? For those caught in the five-day waiting period, can they marry in another state? For those who married, what benefits, responsibilities or protections do they have?

    “I think the harder questions are like adoptions, the really hard issues,” said Carl Tobias, a professor at the University of Richmond School of Law. That’s why these stays are so gut-wrenching for people.”

    On June 16, Wisconsin’s congressional Democrats asked U.S. Attorney General Eric Holder to confirm, as he has done in similar situations in Utah and Michigan, that the federal government will recognize the marriages of Wisconsin gay couples and guarantee them:

    • The ability to sponsor a foreign spouse for legal residency.

    • Health, workers’ compensation, retirement and other benefits for the spouse of a federal employee.

    • Health benefits, spousal ID cards, housing allowances and on-base support services for the spouse of a military servicemember.

    • Joint income tax filings, as well as spousal exemptions of gifts, inheritances and the value of employer-provided spousal health coverage.

    • Unpaid family and medical leave to care for an ill spouse.

    • Spousal Social Security benefits.

    “Earlier this year, you made clear that couples who married in Utah and Michigan after federal judges struck down those states’ bans are entitled to full federal recognition,” the lawmakers wrote. “We are grateful for this tremendous leadership on behalf of fairness and equality. We ask that you similarly declare that those same-sex couples who married in Wisconsin since the June 6 decision are equally entitled to the federal benefits they deserve.”

    Meanwhile, the American Civil Liberties Union and the ACLU of Wisconsin, which filed the equality case on behalf of eight same-sex couples, was assessing the situation — preparing for the appeal and looking into whether additional lawsuits should be filed on behalf of couples left in limbo.

    In addition to the June 25 rulings, another marriage equality case was set for June 26 in Louisiana and a hearing was set for July 2 in a Florida case.

    And the 6th Circuit Court of Appeals will hear five cases from four states — Ohio, Michigan, Kentucky and Tennessee — in a single session in Cincinnati on Aug. 6.

    The Cincinnati court is the third federal appeals court to weigh recent challenges to state bans. The 4th Circuit in Virginia heard arguments in another case in May.

    Any one of them, or all, could reach the U.S. Supreme Court and bring a conclusive ruling on marriage equality.

    ‘A hateful handful’

    Leaders on the equality side fully expect the nine-member Court to eventually overturn the amendments and anti-gay marriage laws.

    And so do many leaders in conservative circles — from Newt Gingrich, who was House speaker when DOMA was enacted, to seven-term U.S. Sen. Orrin Hatch of Utah. In May, Hatch told a radio interviewer, “Let’s face it: Anybody who does not believe that gay marriage is going to be the law of the land just hasn’t been observing what’s going on.”

    Yet groups such as the National Organization for Marriage and the Family Research Council pledge to fight on for years against gay marriage the way the anti-choice movement has fought Roe v. Wade.

    NOM promoted the June 19 march as a “road to victory.”

    Co-sponsors of the event included FRC, the Roman Catholic Archdiocese of Philadelphia, the Washington Times newspaper, the Alliance Defending Freedom, Concerned Women for America and the Heritage Foundation.

    Speakers included what the Human Rights Campaign described as a “parade of horribles” — former U.S. Sen. Rick Santorum, former Arkansas Gov. Mike Huckabee, Catholic Archbishop Salvatore Cordileone, NOM president Brian Brown, Capital Tea Party Patriots co-founder Doug Mainwaring, a gay man who says gay marriage is “objective evil,” and ADF counsel Austin Nimocks.

    NOM also brought to the microphone Bishop Harry Jackson Jr., who has compared gay marriage to a satanic plot; Dr. Him Garlow, who has said gay marriage will lead to enslavement of those opposed to the unions; Heritage Foundation fellow Ryan Anderson, who has compared gays and lesbians to pedophiles; and the Rev. Bill Owens Sr., who has likened gay marriage to bestiality.

    Brown, in a statement to supporters before the march, claimed the Supreme Court “will be watching.”

    He also said, “A competition is won by those who take the field, not by those who sit on the sidelines. Friends, we need to take the field for marriage — and fight to win.”

    NOM’s critics, however, maintain the organization is now faking a movement — national polls show that strong opposition to marriage equality has dropped to 28 percent and only 40 percent of opponents of marriage equality would pay anything to stop its progress.

    The march proponents “are the proud leaders of a hateful handful, the last gasp of a reactionary rump,” said HRC’s Fred Sainz.

  • We can be heroes: In pursuit of equality in the courts

    Eight same-sex couples — with a team of lawyers — committed earlier this year to overturn Wisconsin’s constitutional amendment barring gays and lesbians from the freedom to marry in the state. Their fight continues, but already their pursuit of equality has resulted in the marriages of at least 555 same-sex couples in Wisconsin.

    “These families simply want the security and recognition that only marriage provides,” Larry Dupuis, legal director of the ACLU of Wisconsin, had said when he filed the equality case in Madison in February. “They have built their lives and raised children here. It is wrong for the state to treat these loving and committed couples as second-class citizens, and it is cruel to place them in a catch-22 where they can’t even travel elsewhere to obtain federal protections without their marriage being labeled a crime.”

    The couples’ attorneys, the state’s equal rights leaders and the gays and lesbians who hope to take marriage vows have heralded the couples — Charvonne Kemp and Marie Carlson, Judith Trampf and Katharina Heyning, Roy Badger and Garth Wangemann, Johannes Wallmann and Keith Borden, Salud Garcia and Pam Kleiss, Kami Young and Karina Willes, Bill Hurtubise and Dean Palmer — as heroes.

    “To be a plaintiff in a case like this, you have to put yourself out there and vow to see the fight through, maybe all the way to the Supreme Court,” said April Goodmann, a Waukesha resident who, when the case is settled for good, hopes to marry her longtime girlfriend. “These people are heroes, plain and simple. They are my heroes.”

    There are now hundreds of heroes serving as plaintiffs in more than 70 marriage equality cases pending in 31 states.

    And there’s a long history of heroes who, with the support of groups such as the ACLU and Lambda Legal, challenged laws and regulations, changing the lives of LGBT people in housing and schools, in the Armed Forces and on the job, at the marriage license bureau and in the privacy of their own bedrooms. Most of them have been plaintiffs, but some have been defendants.

    A look at just a handful of the many LGBT civil rights cases fought over the years and the legal activists involved in them:

    • Jamie Nabozny. For four years, Nabozny was subjected to anti-gay verbal and physical abuse by students at his school in Ashland, Wisconsin. Students urinated on him, pretended to rape him during class and, in one assault, kicked him so many times in the stomach that he required surgery. Nabozny sued the school district and won in a federal appeals court in Chicago, which said in 1996 that public schools are obligated to protect students from anti-gay abuse. Nabozny, represented by Lambda, also won back in Wisconsin, where a jury in 1996 also found school officials liable.

    • Richard G. Evans. Evans, an administrator in Denver, was the lead plaintiff in a lawsuit seeking to overturn Colorado’s Amendment 2, enacted by voters in 1992. The amendment barred governments in the state from enacting non-discrimination ordinances or policies that would protect gays. The state argued that Amendment 2 simply prohibited creating “special rights” for gays, but Evans et al., represented by the ACLU and Lambda Legal, argued the measure denied gays the right to participate in the political process. The U.S. Supreme Court, ruling in 1996, said the amendment did not satisfy the Equal Protection Clause. The majority opinion said, “The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence.”

    • John Geddes Lawrence and Tyron Garner. On Sept. 17, 1998, deputies in Harris County, Texas, were dispatched to an apartment expecting to deal with a “black male going crazy with a gun.” It was a false claim, called in to the police by a jealous man. At the apartment, two deputies said they saw Lawrence and Garner engaged in sexual activity. They arrested the men for “deviate sex.” The two pleaded no contest before a justice of the peace, then appealed in Texas Criminal Court. Their case, managed by Lambda Legal, reached the U.S. Supreme Court, which ruled in 2003 that sexual relationships between consenting adults are protected by the 14th Amendment.

    • Ninia Baerhr and Genora Dancel. The women became the lead plaintiffs in Baehr v. Miike, the landmark lawsuit seeking the freedom to marry in Hawaii in the 1990s. Though state lawmakers and voters erected barriers to the plaintiffs securing that right in the 1990s, their case launched the marriage equality movement and resulted, way back in 1993, in the first high court ruling for gay marriage. Today, Hawaii is an equality state.

    • Edith Windsor. Windsor is the widow of Thea Clary Spyer and the executor of Spyer’s estate. The women married in Canada in 2007, two years before Spyer’s death, and their marriage was legal in the state of New York. But until last summer, the marriage was not recognized by the federal government, which imposed $363,000 in taxes on the estate left to Windsor. Windsor’s lawsuit, brought by the ACLU, resulted in the U.S. Supreme Court overturning Section 3 in the Defense of Marriage Act and the full federal recognition of gay marriages.

    • Miguel Brashi. Braschi and Leslie Blanchard lived together for 10 years in a rent-controlled apartment in New York City, beginning in 1975. When Blanchard died in September 1986, the landlord threatened to evict Braschi, maintaining that he had no right to stay because Blanchard was the tenant of record. The 1989 case, Braschi v. Stahl, led the court to expand the definition of family in the city’s rent control regulations. The majority opinion said that protection against eviction “should not rest on fictitious legal distinctions or genetic history, but instead should find its foundation in the reality of family life.”