The court issued its decision against placing a stay on U.S. District Judge Michael McShane’s ruling against the state’s marriage ban without giving any justification for the determination.
“The application for stay presented to Justice Kennedy and by him referred to the Court is denied,” the notice states.
Two days before oral arguments in the case, NOM sought to enter into the Oregon marriage equality case as intervening party. McShane denied the ability of the group to take part in the case prior to his ruling.
Nonetheless, NOM sought a stay on the marriages from the Ninth Circuit Court of Appeals, which denied the request. After taking the request to the U.S. Supreme Court, a stay was once again denied.
James Esseks, director of the American Civil Liberties Union’s LGBT Project, said the decision is a victory for marriage equality across the nation.
â€śWith marriages continuing in Oregon, we have 44 percent of the country living in a freedom-to-marry state: same-sex couples are now part of marriage in America today,â€ť Esseks said. â€śAcross the country, more and more Americans are embracing the truth that their friends, family, and neighbors in same-sex couples deserve the protection and dignity that only come with marriage.â€ť
NOM had requested the stay from U.S. Associate Justice Anthony Kennedy, who is responsible for stay requests for the Ninth Circuit. Based on the notice, Kennedy apparently referred the matter to entire the court.
On Monday, Oregon Attorney General Ellen Rosenbaum filed a response to the request, saying NOM “failed to meet any of the criteria” it must establish to obtain a stay. John Eastman, chair and counsel for NOM, fired back in a reply brief, noting the high court already placed a stay on a similar ruling that granted same-sex marriage in Utah.
After the stay was denied, Eastman said in a statement the decision is still not final because the organization has appealed its request to intervene before the Ninth Circuit.
“Itâ€™s important to recognize that the Supreme Court has not decided the merits of the underlying issue,” Eastman said. “NOM has filed an appeal of the trial judgeâ€™s decision to prevent us from intervening in the case to defend Oregonâ€™s marriage amendment. That appeal is on track, with briefs due in the Ninth Circuit Court of Appeal in August and September, and oral argument sometime afterwards. We will continue to press this case because we believe that the people of Oregon are entitled to a vigorous defense of marriage, and because it is in the public interest to preserve marriage as the union of one man and one woman.â€ť
U.S. Attorney General Eric Holder is set to announce a new policy today aimed atÂ ensuring the Justice Department recognizes same-sex marriages under the law, the Washington Blade has learned.
HolderÂ is scheduled toÂ deliver the remarks at 7 p.m. during his speech at the Human Rights Campaign’s annual gala in New York CityÂ held at theÂ Waldorf Astoria.
According to excerpts from his prepared remarks, Holder is set to announce the Justice Department will issue a memorandum on Monday to outline the changes, which will bring the department into compliance with the Supreme Court’s decision against the Defense of Marriage Act.
Holder is prepared to make the announcement in the same speech in which he’s set to reflect on the 50th anniversary of Martin Luther King, Jr.’s “I Have a Dream” speech and passage of the Civil Rights Act of 1964.
“And yet, as all-important as the fight against racial discrimination was then, and remains today, know this: my commitment to confronting discrimination based on sexual orientation or gender identity runs just as deep,” Holder’s prepared remarks say. “Just like during the civil rights movement of the 1960s, the stakes involved in this generationâ€™s struggle for LGBT equality could not be higher.”
Each of the changes is related to the way the Justice Department handles recognition of married same-sex couples. They range from rights in civil and criminal cases, rights as inmates and access to benefits programs:
â€˘ The Justice Department will recognize that same-sex spouses of individuals involved in civil and criminal cases have the same legal rights as straight married couples, including the right to decline to give testimony that might incriminate a spouse.
This new rule applies in non-marriage equality states. The government won’t object to couples in same-sex marriages invoking this right if they marry in another state, but their current jurisdiction doesn’t recognize their union.
â€˘ In bankruptcy cases, the U.S. Trustee Program will take the position that same-sex married couples should be treated in the same manner as opposite-sex married couples. Consequently, same-sex married couples will be eligible to file for bankruptcy jointly; certain debts to same-sex spouses or former spouses will be excepted from discharge; and domestic support obligations should include debts, including alimony, owed to a former same-sex spouse.
â€˘ Federal inmates in same-sex marriages will be entitled to the same rights and privileges as inmates in opposite-sex marriages. These rights include spousal visitation; inmate furloughs to be present during a crisis involving a spouse; escorted trips to attend a spouseâ€™s funeral; correspondence with a spouse; and compassionate release or reduction in sentence if an inmateâ€™s spouse is incapacitated.
â€˘ The Justice Department will recognize same-sex couples for the purposes of a number of benefits programs it administers, such as the Radiation Exposure Compensation Program and the September 11th Victim Compensation Fund.
Also among these programs is the Public Safety Officersâ€™ Benefits Program, which provides death benefits to surviving spouses of public safety officers, such as law enforcement officers and firefighters, who suffer catastrophic or fatal injuries while on duty.
“When any law enforcement officer falls in the line of duty or is gravely injured, the federal government should stand by that heroâ€™s spouse â€“ no matter whether that spouse is straight or gay,” Holder’s prepared remarks say.
The new policy comes seven months after the U.S. Supreme Court decision against Section 3 of the Defense of Marriage Act, which prohibited federal recognition of same-sex marriage. Nothing in the excerpts of prepared remarks received by the Blade references DOMA, but a Justice Department official said the new changes are considered a step in the process to bring the Justice Department into compliance with the decision.
The Justice Department has coordinated the effort across the Obama administration to ensure married same-sex couples have the same rights and benefits under federal law as opposite sex couples in the wake of the DOMA decision. The various departments and agencies announced changes in policies since that time.
Chad Griffin, HRC president, praised Holder in a statement for changes he’s slated to announce within the Justice Department.
“This landmark announcement will change the lives of countless committed gay and lesbian couples for the better,” Griffin said. “While the immediate effect of these policy decisions is that all married gay couples will be treated equally under the law, the long-term effects are more profound. Today, our nation moves closer toward its ideals of equality and fairness for all.”
At least one of the changes that Holder is set to announce â€” the eligibility of married same-sex couples to file jointly for bankruptcy â€” was already the policy of the Justice Department. According to Reuters, following a ruling against DOMA by a bankruptcy court in Los Angeles, the Justice Department in 2011 elected to no longer dismiss bankruptcy petitions filed jointly by married same-sex debtors.
In his remarks, Holder is set invoke the memory of former U.S. Attorney General Robert Kennedy and his work in the civil rights movement as a reference point for the additional work the Justice Department is doing on LGBT rights.
“Then, as now, nothing less than our country’s commitment to the notion of equal protection under the law was on the line,” Holder’s prepared remarks say. “And so the Justice Departmentâ€™s role in confronting discrimination must be as aggressive today as it was in Robert Kennedy’s time.Â As Attorney General, I will not let this Department be simply a bystander during this important moment in history.”
Just last month, Holder announced the federal government would recognize the more than 1,300 same-sex marriages that took place in Utah following a district court ruling legalizing gay nuptials in the state â€” even though the state won’t recognize the unions now that the U.S. Supreme Court has placed a stay on the weddings.
HRC’s Griffin said the actions that Holder is preparing to undertake are right in line with Kennedy’s legacy as civil rights icon.
“Attorney General Holder continues to show incredible leadership, and this latest action cements his place in history alongside Robert F. Kennedy, another attorney general who crusaded for civil rights,” Griffin said.
Sen. Mark Warner (D-Va.) predicted Wednesday that the lingering issue of gay veterans being unable to receive benefits for their same-sex spouses in states without marriage equality would be a question for the next secretary of veterans affairs.
During a phone interview with the Washington Blade, Warner said the inability of veterans to receive same-sex benefits in certain states after the Supreme Court ruling against the Defense of Marriage Act was a violation of the principles of fairness.
“I still think we need to make sure if we’re talking about equality of rights, that ought to be around, marriage rights, civil rights, housing rights, employment rights,” Warner said.
Asked whether this issue should be a question for the secretary of veterans affairs, a position that is open following the resignation of Eric Shinseki, Warner replied, “I think this will be something that, I’m sure, will be raised with the next VA secretary.”
In June, Warner wrote to the Obama administration asking for an end to the practice of withholding veteransâ€™ home loans from married same-sex couples who live in non-marriage equality states like Virginia. The Department of Veterans Affairs has been withholding these benefits because 103(c) of Title 38, which governs veterans benefits, looks to place of residence, not the place of celebration, in determining whether a couple is married.
In his letter, Warner used the example of a Navy veteran who applied for a veteransâ€™ home loan in Virginia, but was denied equal benefits because the VA won’t count the income of her non-veteran spouse. The couple was married in Maryland, but the VA didn’t insure their loan request to buy a home in Fairfax County, Va., resulting in a much higher monthly mortgage payment for the couple.
Speaking with the Blade, Warner said the couple since that time has been able to secure the lower rate by going through a different agency after insufficient progress was made with the VA. Still, Warner said he would support a blanket policy change from the VA more in line with the Supreme Court’s ruling against DOMA.
Warner is currently facing re-election and running against former Republican National Committee chair Ed Gillespie for a second term representing Virginia in the U.S. Senate.
Asked how he thinks Gillespie would fare on LGBT issues if elected to represent Virginia in the U.S. Senate, Warner said he’s not familiar with his opponent’s position on those issues, but expressed skepticism based on Gillespie’s history in Republican politics.
“I do know that there seems to be kind of a cookie-cutter campaign approach coming from many of the Republican candidates this year that has not been as inclusive a message as I’ve got, or I think most folks realize is in the best interest of Virginia,” Warner said. “I’m not going to comment on him specifically other than the fact that he’ll be a double-down on gridlock since this a career paid-partisan, and I’m not sure that’s going to get us to a place where we actually get stuff done in the Senate.”
But Warner did forecast a dismal future for progress on LGBT rights in the Senate if Republicans take control of the chamber and Sen. Mitch McConnell (R-Ky.) or Sen. Jon Cornyn (R-Texas) is running the show.
“I think there would be more challenges,” Warner said. “I think this an issue, especially like on marriage equality, where the public has moved much quicker than the elected officials, and, again, I wouldn’t see the same kind of forward progress if the Senate would flip.”
Litigation against Virginia’s ban on same-sex marriage is progressing through the courts. The U.S. Fourth Circuit Court of Appeals is set to issue a ruling on the marriage equality case at any time.
Warner said he hasn’t been following the developments in that case, but took credit for recommending along with former Sen. Jim Webb the nomination of U.S. District Judge Arenda Wright Allen, who ruled against Virginia’s ban on same-sex marriage at the district court level.
“I’ve not followed the kind of weekly reports on the briefs and who’s writing amicus [briefs], but I think as you’ve seen all over the country, there clearly seems to be a growing majority if not unanimity,” Warner said. “This is an issue whose time has come.”
Warner endorsed same-sex marriage a little more than a year ago just before the Supreme Court heard arguments in the marriage cases. During his interview, Warner said he came to that support as a result of his three daughters who couldn’t understand his earlier position and said his endorsement built off earlier pro-LGBT actions.
“I fought against the amendment back in 2007, campaigned against it, gave money against it,” Warner said. “I think I had a record that was headed in that direction…I go back to the fact that our law treats people equally in terms of if you love someone, if you want to enter into a committed relationship.”
Warner’s name has been mentioned in some circles as a possible candidate for president in 2016. But the senator said he’s focused on his re-election in 2014, adding he thinks Hillary Clinton would be the “prohibitive favorite” should she run in the presidential race.
Asked whether he would pursue a run either for president or vice president, Warner maintained his focus is on winning re-election to his U.S. Senate seat.
“I’m running for re-election in 2014,” Warner said. “Good try.”
Not even a year has passed since the U.S. Supreme Court issued its landmark decisions against the Defense of Marriage Act and California’s Proposition 8, but a number of cases are already lining up that would enable the high court to make a nationwide ruling in favor of marriage equality.
At least four appellate courts are set to consider the issue this spring amid five district court decisions in favor of marriage equality in Utah, Oklahoma, Ohio, Kentucky and Virginia. Once the appellate courts make their decisions, they will likely be appealed this year to the Supreme Court, which would give justices the opportunity to make a final decision in 2015.
Although the Ohio ruling was limited to death certificates for married gay couples and the Kentucky ruling only provided recognition of out-of-state same-sex marriages, each of the rulings handed down since the DOMA decision were in favor of marriage equality. And in each ruling, justices invoked the decision against DOMA as part of their reasoning for determining state constitutional amendments against same-sex marriage violated the Constitution.
U.S. District Judge John Heyburn, an appointee of former President George H.W. Bush, noted last week in his decision that the words of the DOMA decision by U.S. Associate Justice Anthony Kennedy compels him to rule against Kentucky’s marriage laws.
“Ultimately, the focus of the Courtâ€™s attention must be upon Justice Kennedyâ€™s majority opinion in Windsor,” Heyburn said. “While Justice Kennedy did not address our specific issue, he did address many others closely related. His reasoning about the legitimacy of laws excluding recognition of same-sex marriages is instructive. For the reasons that follow, the Court concludes that Kentuckyâ€™s laws are unconstitutional.”
Ted Olson, the Republican half of the legal duo arguing against Virginia’s ban on same-sex marriage, during a conference call Friday noted the consistency with which district courts have struck down anti-gay marriage amendments in the aftermath of the DOMA decision.
“Federal courts are consistently, regularly now, affirming the right of gay and lesbian citizens to be a part of the population of the rest of our citizens with equal rights to the fundamental right of marriage,” Olson said.
The cases against same-sex marriage bans in Utah and Oklahoma are the furthest advanced of all the lawsuits seeking marriage equality. They’re before the U.S. Tenth Circuit Court of Appeals in Denver, where oral arguments are scheduled in Utah case for April 10 and the Oklahoma case for April 17. The National Center for Lesbian Rights has joined the law firm of Magleby & Greenwood, P.C., as counsel in the Utah case.
Just behind that lawsuit is the case seeking marriage equality in Nevada filed by Lambda Legal known as Sevcik v. Sandoval. After Nevada Attorney General Catherine Cortez Masto declared her intent to withdraw her brief in favor of the marriage ban, the U.S. Ninth Circuit Court of Appeals last week acceded to her request and pledged to proceed with the lawsuit on an expedited basis, although no date has been set for oral arguments.
The Ohio case has already been appealed to the U.S. Sixth Circuit Court of Appeals, which is also the destination of the Kentucky lawsuit. These cases are also in their early stages at the appellate level, and schedule hasn’t been determined.
And the court ruling against Virginia’s ban on same-sex marriage, the latest to come down from a federal court, will be headed to the U.S. Fourth Circuit of Appeals. Although Virginia Attorney General Mark Herring isn’t defending the ban against same-sex marriage in court, Olson said he sees no standing issue in the case and because county clerks are participating in the lawsuit, the state continues to enforce the law.
But according to Lambda Legal, a total of 52 marriage equality lawsuits are pending in 27 states, and any of the cases at district court level could soon join those at the appellate level.
A judge will likely render a decision soon in the other lawsuit seeking marriage equality in Virginia, which was filed by the American Civil Liberties Union and Lambda Legal. A judge in Michigan has set a trial for that state’s constitutional ban on same-sex marriage on Feb. 25, just as a trial has been set in the Pennsylvania case for June 9.
Given the sheer number of cases making their way through the courts, David Boies, the Democratic half of the legal duo in the Virginia lawsuit, said the Supreme Court would have no shortage of cases from which to choose by the time it begins its term in the fall.
“I think they will all get to the Supreme Court at about the same time,” Boies said. “The Supreme Court can decide to take them all and consolidate them, the Supreme Court can take one or more of the cases, but not all of then. I think that is something that will be determined by the Supreme Court, and, to some extent, by the timing of the court of appeals decision.”
It’s technically possible for the Supreme Court to take up this issue this term once those cases are appealed, which would mean a nationwide ruling by June.
Jon Davidson, legal director for Lambda Legal, nonetheless said it “seems extraordinarily unlikely” the litigation would play out in that way.
“Even if an appellate decision in one of these cases were issued by May, a certiorari petition likely would not get filed until the summer, and the Supreme Court wouldn’t act on that until October,” Davidson said. “It does not have to grant cert on the first, or, even any of these cases. Even if it does, there likely wouldn’t be a decision until the spring of 2015.”
One issue to watch as these cases make their way up is whether courts apply heightened scrutiny, or a greater assumption a law is unconstitutional, to their decisions on the marriage bans. Such a determination would designate gay people with a “quasi-suspect classification” and establish precedent making other laws related to sexual orientation less likely to stand up in court.
When it ruled on the DOMA case last year, the U.S. Second Circuit Court of Appeals already set a precedent for heightened scrutiny for laws related to sexual orientation, but every state in that jurisdiction â€” New York, Vermont and Connecticut â€” already has marriage equality.
More recently, the U.S. Ninth Circuit Court of Appeals applied heightened scrutiny in its decision for Smith Kline v. Abbott Laboratories, which determined that jurors cannot be excluded from a trial because of sexual orientation.
Because of the application of heightened scrutiny in that case, the Nevada attorney general stopped defending her state’s marriage ban. Further, expectations are high that courts in Oregon and Arizona, which lie within that jurisdiction, will strike down bans in those states.
It was speculated the Supreme Court took up the Edith Windsor’s challenge to DOMA as opposed to others because the Second Circuit applied heightened scrutiny on that decision, although the high court never explicitly addressed the issue of heightened scrutiny in its ultimate decision. Eyes will be on the Supreme Court to see if it will take up the Ninth Circuit marriage case among others to resolve the issue of heightened scrutiny in the next go-around with marriage equality.
Doug NeJaime, who’s gay and a law professor at University of California, Irvine, nonetheless said he doesn’t think the Supreme Court has interest in resolving this issue for laws related to sexual orientation.
“The Supreme Court in Windsor didn’t explicitly reach this question, even though the lower court had based its decision on heightened scrutiny,” NeJaime said. “Given that, it doesn’t seem the Court is particularly interested in resolving that question, and I don’t think it will do much to persuade the court to take or not take a case.”
Another question is the extent to which the Obama administration will participate in the pending lawsuits. The Justice Department helped litigate against DOMA as party in the lawsuit and assisted in the lawsuit against Prop 8 as a friend of the court, although in the latter case the administration filed a brief and took part in oral arguments only when the litigation reached the Supreme Court.
A number of LGBT advocates have said they’d welcome participation from the Obama administration in the marriage equality cases without making a full-throated call for assistance. On Friday, White House Press Secretary Jay Carney wouldn’t make a prediction on whether the administration will take part and deferred comment to the Justice Department, which hasn’t responded to the Blade’s request to comment.
The opportunity for the Justice Department to file a brief in the Nevada case before the Ninth Circuit has already passed, but another opportunity will come soon. The deadline for filing a friend-of-the-court brief before the Tenth Circuit in the Utah case is March 4.
Erik Olvera, spokesperson for the National Center for Lesbian Rights, echoed the sense of other advocates on the issue, saying a friend-of-the-court brief from the Obama administration would be “welcome” in the Utah case.
“We always welcome the Obama administration to express its views in cases concerning civil rights protected by the U.S. Constitution,” Olvera said.
BISMARCK, N.D. â€” Seven gay and lesbian couples on June 6 filed a federal lawsuit challenging North Dakotaâ€™s same-sex marriage ban.
The Associated Press reported the couples filed the lawsuit with the U.S. District Court in Fargo that challenges the stateâ€™s constitutional amendment that defines marriage as between a man and a woman and its refusal to recognize same-sex marriages legally performed in other states.
North Dakota had been the last state without gay nuptials in which same-sex couples had not filed a lawsuit seeking marriage rights since the U.S. Supreme Court last June struck down a portion of the Defense of Marriage Act.
The AP reported that Josh Newville, a Minneapolis lawyer, is representing the North Dakota couples. He filed a federal lawsuit last month on behalf of six same-sex couples in neighboring South Dakota who are seeking marriage rights in their state.
The progress from Stonewall to marriage equality in my lifetime is amazing. My accepting who I am mirrored the evolving LGBT movement. Coming of age at 21 in New York City, a gay man deep in the closet, hiding my sexual orientation to become a teacher. At 25, starting a political career and working for the most gay-friendly politician in the nation, the congresswoman who introduced the first ENDA bill in Congress, yet still deep in the closet.
Then moving to Washington, D.C. at 31, a city that just elected a mayor who credited the LGBT community and the Stein Democratic Club with making the difference in his election. Pride events were gaining in strength and visibility and my first in Dupont Circle had me hiding behind a tree to make sure my picture wouldnâ€™t end up in a newspaper. Then life started moving faster for me and the LGBT community. By the time I was 34, we were beginning to hear about AIDS and that coincided with my coming out to friends. Then began the process of my morphing into an LGBT activist joining in the fight against HIV/AIDS and openly participating in marches for LGBT rights, openly attending Pride events on a muddy field in Dupont, and being a regular at Rascals, the bar of the moment.
Over the ensuing years the organized LGBT community would get stronger and stand up for our rights and I would find that being â€śoutâ€ť still had its consequences. Being rejected for a job for being gay was one of them. As the community turned to more activism, my role in politics was becoming more identified with being gay. First becoming a columnist for the Washington Blade and then finding my picture on the front page of the Washington Post supporting a mayoral candidate and being identified as among other things a gay activist.
As the fight for marriage equality heated up in D.C., GLAA activist Rick Rosendall and I met at a little outdoor lunch place on 17th Street and set the plans in motion to form the Foundation for All DC Families, which begat the Campaign for All DC Families, which helped coordinate the fight for marriage equality in the District.
For so many who grew up in the Baby Boomer generation, life continues to hold many surprises. But even those of us involved in the fight for womenâ€™s rights and civil rights would never have believed the speed at which things are changing for the LGBT community.
The courts are moving at a much faster pace than anyone could have predicted even a year ago, striking down bans on gay marriage enacted by state legislatures. State constitutional amendments banning marriage equality are being declared unconstitutional by a raft of federal judges. From Oklahoma to Kentucky, Utah to Virginia, federal judges are saying that states must recognize these marriages. While the cases are being appealed there is a clear path for one or more of them to reach the Supreme Court in its next term. While they werenâ€™t ready to make a decision when they rejected the Prop 8 case in 2013, they will now probably have to decide the fate of marriage equality nationwide and determine whether it is constitutional to discriminate against gay and lesbian citizens.
Judge Arenda L. Wright Allen in her decision in Virginia added to the so-far unanimous group of federal judges who have thrown out these bans. Judge Allen quoted from Mildred Loving, who was at the center of the 1967 Supreme Court case that struck down laws banning interracial marriage. At the time that case was decided only 14 states had laws allowing interracial marriage and already there are 17 states and the District of Columbia that allow gay marriage. While people are hailing her decision she clearly had to be embarrassed when she had to amend her written opinion because she confused the U. S. Constitution with the Declaration of Independence. She isnâ€™t the first and wonâ€™t be the last to do that.
Clearly the time has come in our country for full equality. The decisions made by these federal judges have been based on the Supreme Courtâ€™s decision in Windsor. Then Attorney General Eric Holder announced â€śthe federal government would recognize legal same-sex marriages in federal matters including bankruptcies, prison visits and survivor benefits.â€ť He stated that, â€śIt is the [Justice Department's] policy to recognize lawful same-sex marriages as broadly as possible, to ensure equal treatment for all members of society regardless of sexual orientation.”
In what seems like lightning speed, the LGBT community is moving toward full civil and human rights.
The first time anyone asked me if I was disadvantaged to be raised by lesbian moms was in the first grade. A friend from my class asked what my mom and dad did for a living, and when I told him I had two moms, he told me that IÂ wasn’tÂ normal, that we were different.
Growing up, friends would ask questions like, â€śwho cooks?â€ť or, â€śwho works?â€ť trying to fit our puzzle piece where we justÂ couldn’t. To me, my family was different because I had three parents; aÂ step mom and two other moms; aÂ twin and two step brothers; the fact that my parents were gay never made me think of them as different, until those outside my family made a point of it.
ItÂ wasn’tÂ until my freshman year in high school that I finally saw how my family was â€śdifferent.â€ť
Elliott and I woke up early on Jan. 11, 2010, and put on our only suits. We shuffled into the back of Kris and Sandyâ€™s SUV and the four of us drove across the Bay Bridge to a Victorian home in San Francisco. There, we met with Chad Griffin, president of the American Foundation for Equal Rights, Paul Katami, and Jeff Zarrillo (who with my moms would be the plaintiffs in the Proposition 8 case). The five of them stepped outside to meet the press, and it was Jeff who said, â€śWeâ€™re all Americans who simply want to get married like everybody else.â€ť
In minutes, Elliott and I were on our way to the Federal District Courthouse. We were led through the back while our moms and a battalion of lawyers weaved their way between picket lines. It seemed that in no time Judge Walker was banging his gavel and the trialÂ began.
One of our lawyers, David Boies, called Jeff and then Paul. The opposing lawyer, Charles Cooper, cross-examined Paul, and then, Ted Olson, our other lawyer, asked Kris to take the stand.
After a few questions, Ted asked Kris what it felt like to be discriminated against. It was the first time I had ever heard any of my moms describe what it was like to face prejudice. She told Ted about growing up in the Central Valley of California and hiding who she was. She told him how she was teased and mocked as she grew up and how that blanket of constant hate had lowered the quality of her life. She also said she had never allowed herself to be truly happy and how sheÂ didn’tÂ want any kid to know what that felt like.
Looking around as Kris joined us again on the bench, I could see my brother, Sandy, and our friends in tears.
I had finally found my answer: Families like mine are no different than anyone elseâ€™s. We share the same love. Weâ€™re only different in that we felt the brunt of living under discriminatory laws.
When a family like mine is denied equal protection under the law, when society tells us that because you are a minority, you donâ€™t get the rights of the majority, it hurts. It validates hate against that minority. It teaches kids in states with same-sex marriage bans that your familyÂ isn’tÂ worthy of protection.
Perry v. HollingsworthÂ was appealed again and again until it reached the Supreme Court.Â My first trip to D.C. was much like that drive to San Francisco three years earlier. Elliott and I woke up early to stand in line outside the courthouse. We walked behind our parents to sit behind Ted Olson and David Boies. In the midst of Charles Cooperâ€™s oral argument, Justice Kennedy asked, â€śForty thousand children in California â€¦ that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, donâ€™t you think?â€ť Cooper responded saying there was noÂ evidence that children, my brothers and I, would benefit from Kris and Sandy being married.
Today the same question is being asked in court cases across the country that challenge state bans on marriage equality and likeÂ Perry v. HollingsworthÂ have the potential to bring the battle of universal marriage equality to the Supreme Court.
Four months after the Supreme Court oral arguments, the court lifted the ban on same-sex marriages in California and I got to know exactly what that benefit is. Take it from a son â€“I’veÂ never feltÂ prouder or more patriotic than when my moms were legally married one year ago on June 28. Every son and daughter in every state should have the right to feel that way.
Spencer M. Perry is the son of Kris Perry and Sandy Stier, plaintiffs in the Perry v. Hollingsworth case that overturned California’s ban on same-sex marriage. He studies economics and public policy at George Washington University.
Ever since the Supreme Court ruled against the Defense of Marriage Act last year, the Obama administration has been rolling out on a continual basis new federal benefits for married same-sex couples â€” but access to some benefits remains uncertain months after the decision.
While the administration has afforded a preponderance of the 1,138 federal benefits of marriage to same-sex couples, other benefits â€” including Social Security, veterans and family leave benefits â€” are still in limbo for those living in non-marriage equality states. For these benefits, federal policy looks to the place of residence, not the place of celebration, in determining whether a person is married.
The policy of the Obama administration has been to expand benefits to married same-sex couples to the furthest extend possible under the law following the court decision against DOMA. That position was formalized last week in a memo from U.S. Attorney General Eric Holder extending certain federal benefits under the purview of the Justice Department to married gay couples.
“It is the Department’s policy, to the extent federal law permits, to recognize lawful same-sex marriages as broadly as possible, and to recognize valid in the jurisdiction where the marriage was celebrated,” Holder writes.
Thus far, the administration has extended numerous benefits to married same-sex couples related to taxes, immigration, federal employee benefits, employer-provided pensions and, most recently, the ability to refuse to testify against a spouse in federal court â€” even if these couples live in non-marriage equality states. The Justice Department has also ceased enforcement of a provision in Title 38, which governs veterans benefits, that independently defines marriage in opposite-sex terms.
But things get dicier when it comes to other benefits where the law governing them looks to the state law where a couple resides, rather than the state law where the couple was married in determining whether a marriage is legitimate. Does the spirit of the Supreme Court ruling against DOMA mean that these portions of these laws should also not be enforced, or are they so far removed from the ruling they require a legislative fix?
One such issue is with Social Security benefits. Although the Social Security Administration is processing retirement and survivor benefits for same-sex couples living in marriage-equality states, for the time being, it’s placing applications on hold for married same-sex couples living in places that don’t their recognize their union.
Kia Anderson, a Social Security spokesperson, said work coordinated with the Justice Department is still underway to determine whether her agency can recognize these same-sex marriages for benefits purposes.
“We are working with the Department of Justice to develop and implement policy and processing instructions on this issue,” Anderson said. “However, we encourage people to apply right away for benefits, even if they aren’t sure they are eligible. Applying now will protect against the loss of any potential benefits.”
Yet another benefit on hold for married same-sex couples living in non-marriage equality states is veterans benefits, which include disability benefits, survivor benefits and joint burial at a veteranâ€™s cemetery for the spouses of former service members. As with Social Security law, a portion of veterans’ law, 103(c) of Title 38, looks to state of residence, not the state of celebration, to determine whether a couple is married.
Genevieve Billia, a spokesperson for the Department of Veterans Affairs, said her department is still reviewing the issue of these benefits with the Justice Department.
“VA is working closely with the Department of Justice to develop guidance to process cases involving same-sex spousal benefits, and to implement necessary changes swiftly and smoothly in order to deliver the best services to all our nationâ€™s veterans,” Billia said. “Our commitment to provide all veterans and their families with their earned care and benefits will continue to be our focus as VA implements the Supreme Courtâ€™s decision in Windsor, and the presidentâ€™s direction on Title 38.”
The continued enforcement of 103(c) of Title 38 to discriminate against gay couples has been a cause for concern for U.S. senators. Last month, seven senators â€” led by Sen. Mark Udall (D-Colo.) â€” called on the Obama administration to stop enforcing the law in a way that blocks gay veterans in same-sex marriages from receiving spousal benefits.
Stephen Peters, president of the American Military Partner Association, called the issue “a top concern” among veterans belonging to the LGBT military group.
“While we understand it takes time to review existing policies and laws in light of the Windsor decision, for the sake of our veterans and their families, our hope is that the administration will take swift action in extending full and equal VA benefits no matter what state the veteran and their family live in,” Peters said. “These veterans have earned these benefits and there is no valid reason why they should continue to be denied them.”
The American Military Partner Association has launched an online petition calling on Holder to stop enforcing U.S. code governing veterans benefits in a way that discriminates against same-sex couples. According to the organization, a little more than 1,000 people had signed the petition as of Wednesday.
Ian Thompson, legislative representative for the American Civil Liberties Union, expressed confidence the administration would be able to come to a conclusion on these issues as it has done with other benefits in the aftermath of the DOMA ruling.
“Federal agencies have moved with commendable speed to extend recognition to married same-sex couples, and to do so in a way that recognizes that these marriages donâ€™t dissolve when a couple crosses state lines,” Thompson said. “While more work remains, including with SSA and the VA, we are confident that these issues can be properly addressed.”
The Justice Department didn’t respond to the Blade’s request for comment on the pace with which these benefits are being rolled out or when these outstanding issues will be resolved.
Shin Inouye, a White House spokesperson, touted the administration’s work so far in implementing benefits as he acknowledged “some work remains.”
“Following the Supreme Courtâ€™s ruling in Windsor, the president directed the attorney general to work with the Cabinet to review federal law to ensure the decision and its implications for federal benefits and obligations are implemented swiftly and smoothly,” Inouye said. “That process is ongoing, and while some work remains, the administration has worked to affirm the principle that all couples who are legally married receive full and equal recognition, to the greatest extent possible under the law.”
Should the administration determine it must continue enforcing these laws, a legislative fix from Congress would be necessary to ensure these benefits can flow to gay couples. For the Social Security benefits, that would mean passage of the Social Security Equality Act, sponsored by Rep. Linda Sanchez in the House. For the veterans benefits, that would mean passage of the Charlie Morgan Act, sponsored by Sen. Jeanne Shaheen (D-N.H.) in the Senate.
The federal benefits of marriage across the board would be assured for married gay couples regardless of where they live after passage of the Respect for Marriage Act, which is sponsored by Rep. Jerrold Nadler (D-N.Y.) in the House and Sen. Dianne Feinstein (D-Calif.) in the Senate.
A Senate Judiciary Committee aide told the Blade last year that a Senate hearing was in the works for fall 2013 on the legislation. Although the hearing never took place, a Senate aide told the Blade plans are still underway for a hearing.
â€śChairman Leahy continues to push for timely and comprehensive implementation of the Windsor decision, including last weekâ€™s landmark announcement that the Justice Department will treat all lawfully married couples equally in federal legal matters,” the Leahy aide said. “Chairman Leahy is committed to taking discrimination out of our laws, and he is working to schedule a hearing and build support for the Respect for Marriage Act.”
Not all the outstanding issues in the aftermath of the DOMA ruling are related to law. Benefits are blocked from flowing to married same-sex couples in non-marriage equality states under the Family & Medical Leave Act not because of statute, but by regulation, which the administration could change at any time without action from Congress.
And that change is already taking place. Last last year, the Department of Labor announced it was changing the regulations for the Family & Medical Leave Act â€” along with regulations for a slew of other laws â€” to ensure those benefits flow to married same-sex couples living in non-marriage equality states. According to Thompson’s HR Compliance Expert, the change will be implemented in March.
Laura Fortman, principal deputy administrator of the Labor Department’s Wage & Hour Division, wrote about the proposed change in a little-noticed blog post at the time.
“No one should have to choose between succeeding at work and being a loving family caregiver,” Fortman said. “The FMLAâ€™s protections help ensure that people have the opportunity to be both and our proposed rulemaking is an important step in ensuring the law keeps up with the needs of all families in this country.”
Rea Carey, executive director of the National Gay & Lesbian Task Force, said her organization looks forward to the day when the DOMA decision is “fully implemented” by the federal government.
“Steady progress is being made and more is to come,” Carey said. “For example, we are working with the Department of Health and Human Services to ensure that health insurance plans offer coverage for same-sex spouses regardless of where they live. Big picture, we fully expect this landmark decision to continue to positively impact the lives of LGBT people and their families for years to come and in ways that we haven’t even imagined.”