National Call In: The Future of Same-Sex Marriage
The National LGBT Bar Association held a conference call today to discuss the many court and legislative battles the gay and lesbian community has won recently, and also to look at the future of the same-sex marriage movement. Executive Director D'Arcy Kemnitz (pictured left) moderated the call and was joined by Jennifer Pizer, Senior Counsel and Director of the National Marriage Project at Lambda Legal, and Mary Bonauto, Civil Rights Project Director at Gay & Lesbian Advocates & Defenders (GLAD).
Among the topics discussed were California's Proposition 8, the recent victories in Vermont, Maine, and Iowa, Washington D.C., the status of efforts in New Hampshire and New York, and GLAD's current federal court Defense of Marriage Act (DOMA) challenge.
UPDATE: A copy of the recording is now available at the National LGBT Bar Association website. You may scroll to the bottom of this post for a link to the approximately 1-hour long audio, or read some highlights of the issues that were discussed:
Proposition 8
Jennifer Pizer of Lambda Legal opened with a discussion about California's Proposition 8 and Strauss v. Horton, the case to overturn Proposition 8. Pizer indicated that the California Supreme Court appeared to be persuaded by the argument that Californians should be able to rely on the court's previous ruling in In re Marriage Cases. She said, "we have a fair degree of confidence that our arguments were heard and understood," but ultimately expressed uncertainty about how the court will rule.
Pizer also discussed how the other recent court battles, most notably Iowa, would impact the California court. She explained that Iowa's unanimous vote in favor of marriage equality in Varnum v. Brien and their discussion about the judiciary's role in the process is likely percolating in the minds of California's justices and may affect their ruling. The court's decision is due by June 3, 2009.
Pizer also explored the possible implications of losing the Proposition 8 challenge, including the effect it may have on California's initiative process. A decision upholding Proposition 8 would mean that it “may be possible to raise a majority vote to target a [minority] group” in other ways, including weakening nondiscrimination laws.
Pizer also commented on the fate of the marriages performed in California prior to the passage of Proposition 8, saying that while it was impossible to predict what the court would decide, she believed it is "highly unlikely that the court will deem the marriages void." She also addressed the issue of California couples that had married in another jurisdiction like Massachusetts or Canada, commenting that anyone who had entered into a valid, legal marriage before the passage of Proposition 8 should have those marriages recognized by the state. The same is true, Pizer said, of out-of-state couples who wed in California and reside in states like New York that recognize marriages but do not perform them.
In talking about what would come next, Pizer expressed a commitment to education and expanding common understanding of LGBT people. She also hopes counter the lies and fear-mongering tactics opponents have used, including claims that marriage equality would impact religious freedoms or require the teaching of homosexuality in schools. "If the court disappoints us," Pizer explained, "the next step would be taking the issue back to the ballot" when voters will hopefully be more educated on the issue. She emphasized that community groups in California will play a large role in helping to change minds, and that Proposition 8 passed by only 600,000 votes in a state of 38 million, meaning advocates must only influence 300,000 people to win the vote next time around.
Ultimately, Pizer noted that the "community has been mobilized in an incredibly exciting way," pointing to the national reaction to the Proposition 8 vote. She said that recent polls, particularly the April 30 Washington Post-ABC News poll — showing nationally that 49% support marriage equality and 53% believe their state should recognize valid marriages of other states, with only 46% opposed — were a "dramatic marker of progress" and a "measure of steady positive nationwide" support.
New England
Mary Bonauto of Gay & Lesbian Advocates & Defenders (GLAD) spoke about the various recent victories in New England, addressing first the historic victory in Vermont when the state approved the country's first Civil Union law. She noted that in November of 2000, Democrats lost control of the state House due to, many believed, the party's role in passing Civil Union legislation.
In contrast, Bonauto explained, only 3 years later, Massachusetts legislators who voted in favor of same-sex marriage experienced a 100% reelection rate, an outcome she said was important in showing that law makers can vote in favor of same-sex marriage without sacrificing their political careers. Supporting efforts to reelect those who voted for marriage equality in Vermont, Maine, and New Hampshire will be important to ensure that legislative victories continue across the country.
Bonauto also spoke briefly about the Public Accommodations Amendment, an addition I have recently been critical of, but that Bonauto said was vital in winning the veto override in Vermont. The amendment was a last minute addition to the marriage statute that provided that religious organizations would not be required to perform marriage ceremonies for unions they disapproved of. These amendments have been appearing in marriage legislation across the country, which may possibly be garnering greater support for marriage bills.
Bonauto also addressed New Hampshire, whose House and Senate recently passed a marriage equality bill that has yet to be presented to the state's governor. Past efforts had been focused on passing a Transgender-Inclusive Nondiscrimination Law that ultimately failed due to the ubiquitous "bathroom issue". Efforts are now focused on convincing Governor John Lynch to sign the marriage bill when it is presented to him. She promised that if Lynch does not sign the bill that the issue would be presented to him once again in two years.
Maine's vote was also discussed, with Bonauto sharing an uplifting anecdote about the House debates. She contrasted the 1997 DOMA hearing, in which outspoken opponents of marriage equality vastly outnumbered gay and lesbian advocates. In the Maine hearings, Bonauto explained, supporters outnumbered opponents 4-1. She quoted one legislator as saying that it was the "best public hearing ever in the state of Maine" and referenced Representative Sirosis who, despite being the deacon of a church that "[does] not agree with the homosexual lifestyle" supported same-sex marriage because he believed it will "make Maine a better state." Bonauto cautioned that marriage opponents were already collecting signatures for a November referendum to challenge the law, and emphasized that winning at the ballot would be important to "show the right ring that they are stoppable."
She also said, referencing the fear ads that ran in California preceding Proposition 8, that “it's a lot harder to lie in Maine [than in California] about what’s happening in Massachusetts" and expressed confidence that Maine voters would not be mislead by the scare tactics.
Defense of Marriage Act (DOMA)
Bonauto then turned her discussion to GLAD's March 3 challenge of DOMA in a District Court in Boston. She explained that the suit is attacking §3 of DOMA, codified as 1 USC §7, which sets a federal definition for the words 'marriage' and 'spouse'. She explained that there is no adequate justification for DOMA's division of legally married individuals into two discrete classes, one of which is denied all of the federal rights of marriage.
She explained that DOMA is an unprecedented action, and that the federal government has "never before overridden a state's determination that a class of marriages is valid." GLAD made three requests in their as-applied Equal Protection challenge, asking for: (1) the ability for same-sex married partners of federal employees to obtain retirement and other employment benefits; (2) the ability for couples to file as "married, filing jointly" on income tax returns — referencing one of the plaintiffs who has been forced to pay over $25,000 in extra income taxes due to her inability to file jointly with her spouse; and (3) the ability to receive Social Security benefits, including survivorship and spousal benefits — referencing another plaintiff whose deceased partner was the primary earner of their household, and who stood to gain an additional $700 a month in survivorship benefits if their marriage were recognized federally.
Bonauto reinforced that her suit was a very narrow case that focused on DOMA's unconstitutionality as applied to the couples who are a part of the suit. She hopes, though, that the case will result in positive precedent that other couples may use to make their own DOMA challenges.
The Future
Pizer and Bonauto commented on the future of federal marriage litigation, saying that they acknowledge that federal courts are packed with conservative jurists, and that it is necessary to carefully and cautiously pick which issues will be raised and when. Pizer emphasized the need for all LGBT groups nationwide to work together and to "think carefully before taking an issue related to marriage to federal courts" because it may be too early or too broad and ultimately set the movement back. She made reference to Lawrence v. Texas, the case that struck down state anti-sodomy laws, and said that they waited to take the issue to federal courts until after they had already won a number of state victories and were confident that a federal challenge would succeed.
Bonauto also spoke about Maine, emphasizing the importance in beating a referendum to overturn the state's marriage law if it appears in November. She expressed that she "[has] no doubt that we will be completely out-funded" by opponents, and pointed to television ads that had appeared a week before the state Senate Judiciary Committee had even held their vote. It is vital to obtain more resources, but Bonauto expressed confidence that defeating a referendum would be doable.
Finally, the pair turned to efforts that community activists and individuals could make, explaining that "the work we have to do is helping our friends, neighbors, and co-workers to see who we are and get comfortable with us, and see our common humanity." They said that this work had to be done regardless of what happens in courts or legislatures. Ensuring that people see us as normal individuals and as average families is the responsibility of every LGBT person, and will play a key role in same-sex marriage acceptance across the nation.
The conference call was uplifting, and reinforced that our LGBT leaders are still working hard to ensure that we all enjoy full equality under the law. I am very pleased to have been a part of the discussion, and look forward to Lambda Legal and GLAD's ongoing efforts.
A recording of Jennifer Pizer and Mary Bonauto's conversation is available on The National LGBT Bar Association website [.wav]. The audio is approximately one hour long.
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