Same love, changing legal landscape
Our ability to love, to nurture one another and our families hasn’t changed over the past year, but the legal landscape in which our love and commitment reside continues to change day by day.
A year ago on Valentine’s Day, same-sex couples had the freedom to marry in 9 U.S. states, plus Washington D.C. Yet because Section 3 of the discriminatory Defense of Marriage Act (DOMA) still stood, all loving, committed unions of same-sex couples went unrecognized by the federal government.
This Valentine’s Day, much has changed for the better. Same-sex couples have the freedom to marry in 17 U.S. states. Over 1300 legal marriage licenses were issued to same-sex couples in Utah during the short period when it was the 18th marriage equality state. (A stay on further marriages is in effect pending appeals.)
Since Section 3 of DOMA was found unconstitutional by the U.S. Supreme Court last June, married same-sex couples in equality states, including Vermont, are eligible for the same federal benefits and protections as married opposite-sex couples. Married same-sex couples who reside in non-equality states have expanding access to federal benefits as the Obama administration, in the words of Attorney General Eric Holder, “strives to ensure that same-sex marriages receive the same privileges, protections, and rights as opposite-sex marriages.”
In the first month and a half of 2014 alone, a dizzying number of promising court cases have emerged and are proceeding. In addition, a number of court decisions and actions by state officials point to the rapid tilt toward the freedom to marry. A recent poll shows that even in non-equality states a majority of voters now support marriage equality; an even larger majority of voters believe marriage equality is inevitable.
Equal protection: Early 2014 highlights
In January, a U.S. District Judge found that Oklahoma’s ban on allowing same-sex couples the freedom to marry is unconstitutional. While the ruling has been stayed pending appeals, Judge Terence Kern’s decision couldn’t be more fundamental. He writes: “Equal protection is at the very heart of our legal system and central to our consent to be governed.”
In Virginia, not one, but two marriage equality cases are moving forward. Furthermore, the state’s newly-elected governor and attorney general are both on the side of equality. Attorney General Mark Herring has refused to defend his state’s discriminatory ban in court, saying, "As attorney general, I cannot and will not defend laws that violate Virginians' rights. The commonwealth will be siding with the plaintiffs in this case and with every other Virginia couple whose right to marry is being denied."
On February 4th, a federal judge heard opening arguments in one of the two Virginia cases. In a statement, David Boies, co-counsel with Ted Olson on behalf of the plaintiffs, said: "The United States Supreme Court has stated fourteen times that the freedom to marry is one of the most fundamental rights — if not the most fundamental right — of all Americans." Given the essential place of Loving v. Virginia in the history of equal marriage, how fitting that Virginia has once again taken center stage.
Late on February 13th, in what for gay couples in Virginia must be the best Valentine’s Day present imaginable, Federal District Judge Arenda L. Wright Allen struck down as unconstitutional the state’s ban that prohibits same-sex couples from marrying. Judge Wright Allen opens her ruling with a quote from Mildred Loving:
Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don't think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the "wrong kind of person" for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry.
Judge Wright Allen’s decision concludes with a quote from Abraham Lincoln about fairness and freedom, which she then paraphrases in light of today’s struggle to read:
The men and women, and the children too, whose voices join in noble harmony with Plaintiffs today, also ask for fairness, and fairness only. This, so far as it is in this Court's power, they and all others shall have.
Though Judge Wright Allen’s decision, like the Oklahoma decision, is stayed pending appeals, the strength of it is not only a wonderful Valentine’s Day gift but a sign of the future.
To read Judge Wright Allen’s full ruling, click here.
Other cases are going forward in almost too many states to count, including Wisconsin, Missouri, Louisiana, Texas, Florida, West Virginia, Michigan, Ohio, and Alabama.
The ACLU is fighting on behalf of the married same-sex couples in Utah whose marriages have been put “on hold” by the state, arguing that the families of legally married gay couples shouldn’t be left vulnerable as the appeals process plays out. U.S. Attorney General Holder has made it clear that the federal government will recognize these 1300-plus marriages, as have Attorneys General in several states, including Maryland, Delaware, Maine, and Washington. Responding to Vermont Freedom to Marry’s inquiry, our Attorney General William Sorrell has also affirmed that the state of Vermont will recognize as valid the marriages of same-sex couples in Utah.
Just this week, Nevada’s Attorney General Catherine Cortez Masto moved to the right side of history by announcing that, after “thoughtful review and analysis,” she wished to withdraw her office’s defense of the state’s discriminatory ban, finding their own arguments “unsustainable.” This is encouraging news for the expedited appeal before the 9th Circuit Court.
On Wednesday, a federal judge in Kentucky ruled that Kentucky’s ban on recognizing the legal marriages of same-sex couples from other states is unconstitutional. On the same day, a unanimous Idaho Supreme Court decision paved the way for crucial second-parent adoption by unmarried same-sex couples. The dominoes keeping falling!
Despite and because of this amazing forward momentum, opponents of LGBT civil rights are intensifying their efforts to turn back the clocks. Bills that seek to allow religious-based discrimination against LGBT citizens are on the table in Kansas, Tennessee, and other conservative states. Equality opponents in Indiana tried to get a discriminatory marriage ban before voters, never mind court rulings finding such bans unconstitutional. Alabama Chief Justice Roy Moore has launched a personal campaign aimed at amending the U.S. Constitution to permanently ban marriage equality.
While some state attorneys general have moved to the right side of history, others have not: this month, eleven state attorneys general signed a brief defending Nevada’s unfair marriage ban. U.S. Senator Ted Cruz has just introduced a bill to prohibit married same-sex couples living in non-equality states from receiving any federal benefits. In other parts of the world, many of our LGBT brothers and sisters not only lack basic equality but are the targets of horrific violence and abuse, often at the hands of their own governments. We must not forget them. At the same time, other countries are progressing: the Scottish Parliament recently overwhelmingly passed an equal marriage bill. Fittingly, a brilliant rainbow appeared over Parliament just before the vote was taken.
Behind each struggle for justice: Love
Behind each of these court cases, each legislative push forward, each instance of standing up for justice and against brutality, there is one essential uniting element: love. Love between romantic partners and spouses, between families, friends and neighbors, between fellow human beings.
VFM wishes you and those you love a Happy Valentine’s Day. As we continue to join together for equality that doesn’t depend on where you live, may the strength of this love be met with greater justice.