Untangling Same-Sex Marriage: Step 4, Don’t Give Up the Fight

So we’ve washed and rinsed and conditioned and then repeated the whole process and now we are at our final step: the big untangle. For those of you who do not have *the hair*, you might not realize that the big untangle remains just as tough as it was at the beginning even though we’ve attempted to make it easier in our first two steps.

(Side note, when I was little my dad used to have to brush my hair because it was too knotted and tangled and messy for me to be able to do it by myself.  If he didn’t do it, we’d have to have our neighbor (a hairdresser) come over and cut the knots out of my hair. The whole process overwhelmed my mother, who to this day just marvels at my hair unable to do/say anything constructive. In this overextended metaphor, my mother is the American public, my father is all of the lawyers from GLAD, Lamda Legal, HRC, etc., and my neighbor is Massachusetts, CT, DC, IA - all the states who got fed up at the untangling process, said “eff this” and just made same-sex marriage happen.)

Scrutinizing DOMA

Get excited. We’re finally going to look at Section 3 of DOMA to determine if it’s constitutional. Are you ready? Leggo.

The Section 3 definition of marriage as being only between one man and one woman is problematic under the Equal Protection Clause (which provides that all laws should apply equally to everyone). Under this definition, all of the laws that deal with marriage on the federal level aren’t being applied equally to homosexual and heterosexual persons because homosexual persons don’t have the right to get married.

Because Section 3 applies to the federal government only it overrides a state’s determinaiton that a same-sex couple is married and says that they are not married for purposes of all federal laws and programs.  So, all federal departments and agencies will disrespect the valid state-licensed marriages of same sex couples but not other married couples. As a result, only married same-sex couples are denied all of the rights, protections and responsibilities associated with marriage at the federal level.

Keep in mind that the federal government doesn’t license marriages – states do, but there are many federal programs that take state-granted marital status into account in determining eligibility and extent of coverage. In fact, there are at least 1,138 federal laws in which marital status is a factor. Section 3 of DOMA prevents legally married same-sex couples from accessing benefits that legally married different sex couples get at the federal level.

We’re dividing same-sex and different-sex into two different groups. Separate treatment. Problem. Totally unfair.

But what’s that saying? Life’s not fair. Yeah, truth. Life’s not fair and just because people are being treated differently doesn’t make a law unconstitutional.

And this where the levels of scrutiny come in.  If the Court were to use a rational basis level of review, they’d be signaling that they think that sexual orientation shouldn’t be a protected classification and that any justification that can be given for DOMA would work to prove the law Constitutional, even if that justification is lame.

But, if the court were to use intermediate scrutiny, they’d be telling us that sexual orientation is similar to gender and should be sorta protected. Any law that treats people differently based on sexual orientation would be subject to a heightened level of judicial review.  Supporters of that law would have to point to an important government interest that is being served by the law and would have to prove that the law is substantially related to serving that interest.

In this case, supporters of DOMA tell us that the government interests being supported by DOMA are: (1) defending and nurturing the institution of traditional, heterosexual marriage; (2) defending traditional notions of morality; (3) protecting state sovereignty and democratic self-governance; and (4) preserving scarce government resources.

And guess what? These justifications don’t work. Repealing Section 3 of DOMA would actually save money, there’s case law  that tells us that it’s not the job of the Court to determine the morality of the nation, the federal government doesn’t traditionally get involved in the institution of marriage because it’s left up to the states, and wait one hot minute here… um #3?

DOMA actually prevents state sovereignty and democratic self-governance because you’re not letting states that recognize same-sex marriage get their marriages recognized at the federal level. Even if DOMA were to be repealed, other states would still be able to define marriage at the state level.

Because all of the justifications for DOMA are poor, if not completely invalid, it’s likely DOMA would not survive under an intermediate scrutiny analysis. We saw that happen today in the 1st Circuit Court of Appeals and it’s happened previously in federal district court in California.

And that means it might just happen at the Supreme Court level.

Don’t Give Up the Fight

Because it hasn’t gotten to the Supreme Court yet.  Remember, the Supreme Court only hears cases they want to hear and they haven’t taken this case yet. Until the Supreme Court takes a look at DOMA, nothing else really matters at the federal level.

The First Circuit decision only applies to states in that circuit – only the Supreme Court has the power to determine that DOMA is unconstitutional for the nation. And Barack Obama’s support of the repeal is nice, but he’s not a Justice. And AG Holder saying strict scrutiny should be used for sexual orientation is awesome… but it’s not legal precedent.

What does this all mean? It means the fight goes on. So get up, stand up. Stand up for your rights. Don’t give up the fight.

Related articles

• Untangling Same-Sex Marriage: Step 2 – Try a Leave in Conditioner (feministlawprof.wordpress.com)
• Untangling Same-Sex Marriage: Seems Harder than Untangling my Hair (feministlawprof.wordpress.com)
• US District Court Out Of Oakland Declares DOMA Unconstitutional (lezgetreal.com)
• Boston court: US gay marriage law unconstitutional (heraldonline.com)

Untangling Same-Sex Marriage, Step 3: Repeat

When we left off, we had discussed the interaction between state and federal law and the levels of review. In the interest of really hammering home my points, I’m going to kinda, sorta, maybe repeat myself a little here.

That’s ok though. Lather, rinse, repeat, right? We’re on repeat now.

Deciding Constitutionality

Remember that DOMA is broken up into three different sections.  Currently, challenges to the constitutionality of DOMA focus on Section 3 which reads “In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word `marriage’ means only a legal union between one man and one woman as husband and wife, and the word `spouse’ refers only to a person of the opposite sex who is a husband or a wife.”

When we try to figure out if a law is constitutional, we look to see if it works under all of the different parts of the federal Constitution. In this case, DOMA feels unfair, right? Persons who want to marry someone of the same sex are being treated differently than persons who want to marry someone of a different sex.  And treating people differently isn’t allowed under a provision of our Constitution called the Equal Protection Clause.

The Equal Protection Clause is found in the 14th Amendment and says that “no state shall deny to any person within its jurisdiction the equal protection of the laws.” Over the years, the Supreme Court has fleshed out what this means in a variety of different cases but the easiest way to remember what the EPC stands for is to look back at the famous line from Brown v. Board of Education – “separate but equal is inherently unequal”.

Level of Review

In our last installment, I talked about the three different levels of scrutiny used to determine constitutionality.  Historically, the Supreme Court has used the lowest level of review when laws are based on sexual orientation. This means that those laws are usually found to be constitutional.

This is important because the Court is generally bound by prior precedent – meaning they’ll have to use rational basis review when determining whether DOMA is constitutional, unless they can come up with a really good reason not to.

And that really good reason seems to be that sexual orientation is similar to gender, in that it is a quasi-suspect classification. As such, laws based on sexual orientation will be subject to a heightened level of review – the middle, intermediate scrutiny level of review. And as a result it will be just a little bit harder for that law to be found constitutional.

And that’s where we’re headed. To our final determination – is this law constitutional?

Not all who wander are lost

Hello, lovers.  I am in the midst of completing the final installment of Untangling Same-Sex Marriage but wanted to write a quick blog looking for advice from you! So help me out here.

This summer, my mother and I are planning a mother/daughter road trip to Seneca Falls, New York – the site of the Seneca Falls Convention where the Declaration of Sentiments was written. She floated the idea to me after reading a novel that talked about the suffragettes work – “Hun, did you know about this Seneca Falls Convention? It sounds like something you’d be interested in. LETS GO ON A ROADTRIP.”

Now, I’m a lucky lady. My mom and I get along great… as long as we don’t spend too much time together. But the ride from Boston to Seneca Falls looks like it’ll be about 6-7 hours. Sitting together. In a car. Just me and my mom. With all of the typical mother daughter triggers waiting to be pulled. I know you can picture it.

Her innocent “do you want an elastic for your hair?” because of the wind turns into “your hair looks terrible down, put it back!” My “can you check the GPS for me?” turns into “MOTHER. YOU HAVE NO SENSE OF DIRECTION.” It could get dicey.

And this is why I need your help. We need to have a rockin’ playlist. And we need to have some stops along the route that will be worthwhile.

Playlist

I’m partial to classic rock. My mother has an interest in Rihanna and Beyonce. Help me craft a happy medium. If you fail, I will be forced to sing her the Blessed Union of Souls song “Light in Your Eyes” repeatedly like I used to do on road trips when I was younger. Don’t let this happen.

Pit Stops

I’m looking at a pretty straightforward route that goes from Boston to Seneca Falls, passing through Albany and Utica.  It looks like it’s just MA and NY that we’ll be heading through. Any pit stop suggestions are welcome.

I’m interested in anything related to civil rights, 60′s and 70′s rock, and Americana. My mother likes gardens, quilts, and anything kitschy.

Help us out!

Land of the Free. Because of the Brave.

I may not always agree with the decisions made by our government. I may not always support our military occupations of foreign countries. I may kick and scream and fight lots of the political manuevers being made on a daily basis.

But I will always support our troops. Thank you for giving your time, your strength, and sometimes your lives to make sure that people like me can continue to have a voice.

Hello, Good Morning. Everybody (should know) who the truth is.

Once upon a time there was a young, blissfully unaware woman who finished the bar exam and started a new and exciting job at a health care policy think tank.  In the months before the passage of national health care reform, she happily researched legislative policy and naively embarked on her new cause du jour thinking to herself “Isn’t it great that women’s rights aren’t being trampled anymore? That I can teach feminism and women’s rights almost like history in my Intro to Gender Studies class?”

What. A. Putz.  I look back on that girl with a bit of melancholic sympathy.  Her hair was cut too short, so she looked like the airwalk symbol. Her world was too small because she spent an entire summer holed up in a library studying only bar exam materials. She couldn’t see the big picture.

Today, that poor, sweet, naive little girl has grown her hair out (thank godzilla) and watched the world explode. And she now sees that she was being pretty dumb. Because women’s rights, especially in connection with health care, are being trampled at an alarming rate still. And that even if she gives a historical perspective in her intro class, pretty scary and horrifying stuff is happening right now.

Because in 2011, legislators in all fifty states introduced provisions related to reproductive rights. The War on Women is real. Wake up.

Hope Floats

Happy Harvey Milk Day!

Without hope, the us’s give up.  I know that you cannot live on hope alone, but without it life is not worth living.

Let’s not forget his words, especially now.

 

Let’s Talk About Sex, Baby

For real – let’s spend some time talking about sex because I’ve been getting the feeling that we don’t talk about it enough.

Yesterday, while I was simultaneously texting two different women information about Plan B, using condoms, and other birth control methods I started wondering why so many people, both women and men, come to me for advice about practicing safe sex. Part of me would like to think that people view me as some sort of sex goddess, but I’m pretty certain it’s because people view me as that lady who is always talking about access to birth control and the legislation that affects that access.

Just casually lecturing on contraceptives in someone’s living room. Seriously.

If you’ve been watching the news, or even checking out your facebook , you might know that there is a whole lot of hubbub surrounding access to birth control, sex-education, and policing sexual norms. Which, at first glance, seems kind of weird since its 2012… but looking back at almost all of my recent conversations about sex and contraceptives, it’s not all that shocking.

We live in a culture that sells sex – heterosexual, misogynistic sex. Just look at the phenomenon that is Fifty Shades of Grey - a novel that explores a heterosexual, BDSM relationship where the virgin female submits to the experienced and wealthy older man, signing a contract giving up her free will to him.

Sure, we’re talking about sex more as a result of the book… but we’re talking about a sexual relationship that simply solidifies the old norms we’re used to: Man = owner | Woman = object. And that message doesn’t just come from the media or pop culture, it comes from our government too.

You see, in the past our government has taken an almost paternalistic role, creating legislation that was meant to define morals for the country. Laws were enforced and upheld because the courts believed that it was the job of the government to establish sexual norms for citizens. Think about Griswold v. CT where the Supreme Court told us that only married people had a right to access contraceptives. In that decision, our government was basically telling us that only married persons should be having sex. (The right to access contraceptives was later extended to single persons in Eisenstadt v. Baird in 1972).

And morals legislation is still being enacted and funded today.

Look at the government’s approach to teen sex. Last month, the Department of Health and Human Services added an abstinence-only education curriculum to the list of 28 evidence-based pregnancy prevention programs that the Obama administration will fund. In fact, curriculums that teach abstinence as the singular method of birth control retained a $55 million budget in 2012, a full third of the $176 million available during President George W. Bush’s last year in office. This seems to indicate that the government continues its paternalistic role – indicating that since teens should not be having sex, they don’t need to be educated about safe-sex practices.

Or think about the government’s approach to homosexual sex.  Anti-sodomy statutes are still on the books in Idaho, Utah, Michigan, Virginia, North Carolina, South Carolina, Florida, Alabama, Mississippi, Louisiana, Montana, Kansas, Oklahoma, and Texas even though a 2003 Supreme Court decision declared anti-sodomy statutes unconstitutional. It should be noted that anti-sodomy statutes don’t just apply to homosexual sex – they are meant to bar all non-procreative sex.

If we pair our media’s views of sex (woman as objects/vessels waiting to be filled) and our government’s view of sex (no one should have it unless they are adult, married, and straight) it’s no wonder that people have no idea where to get real information on sex.

But I’m here to help.

The realest, most important thing you need to know about sex is that it’s entirely your choice – whether or not you want to be having sex, what type of sex you want to engage in, who your partners will be… it’s all your choice. Trust your mind and your body.

The other thing you really need to know is how to protect yourself. Safe sex is the only sex you should be having – would you bungee jump without a bungee? No… it’s not safe. For accurate and comprehensive information on all of your birth control options, check out Planned Parenthood’s handy guide to contraceptives.

And that’s it. Talking about sex wasn’t so scary or scandalous, was it?

What do you think the approach to sex and sexuality is here in the US? Elsewhere? What do you think of access to contraceptives issues? Morals legislation? 

Untangling Same-Sex Marriage: Step 2 – Try a Leave in Conditioner

Hello, lovers! I know I have been neglecting you but it was the end of the semester and contrary to popular belief I do not just chuck students’ papers up a flight of stairs and assign grades according to what stair each paper lands on.  Instead, I grade like this:

When we left off, we were talking about the interaction between federal and state law, the Full Faith and Credit Clause, and the Defense of Marriage Act. We begrudgingly decided that North Carolina’s Amendment 1 was valid under federal law because of DOMA, but had some questions about whether or not DOMA was constitutional under the Full Faith and Credit Clause of the federal Constitution. So that’s where I’ll pick up today – who figures out if a law is Constitutional? And how do they figure that out?:

Deciding the Constitutionality of a Law

Our federal Constitution is a pretty old document that has lasted a long time. One of the biggest reasons our Constitution still works today is that it’s incredibly vague. I mean sure there are some provisions that are very specific (ex.: NO ALCOHOL!… oh wait, YES ALCOHOL!) but most of them are open to interpretation. And it’s the judicial branch’s job to interpret the Constitution(s) and all of the laws.

System of Checks and Balances -Because the US is supposed to work as a system of checks and balances, all of our laws are pawed at by all three branches.  The Legislative Branch (Congress… you know, those people who are always on C-SPAN, usually talking about incredibly boring things) gets to write the laws, then the Executive Branch (Oh whatup Obams) gets to enforce them, and the Judicial Branch (Supreme Court… judges, robes, sit for life) reviews the laws.

View of Capitol Hill from the U.S. Supreme Court Česky: Pohled na Kapitol z budovy Nejvyššího soudu Spojených států (Photo credit: Wikipedia)

Judicial Review – The judicial branch gets to review the laws under Marbury v. Madison, an incredibly old case. This becomes a big deal when we think about the fact that the members of the Supreme Court are chosen by the President and then get to keep their jobs as justices for as long as they want. They are the leave-in conditioner of our government.

Now that you’ve been reminded of your old US civics lessons, we’ll start to figure out what happens when Congress passes and the President enacts a law that feels wrong.  How does a law get declared “unconstitutional” by the Supreme Court?

Federal Question/Power to Choose – Being a Justice on the Supreme Court is a pretty sweet gig.  You get to keep your job for as long as you want it AND you get to choose which cases you want to hear. The Supreme Court only hears a limited number of cases each year and in order to even be in the running the issue generally has to involve some sort of “federal question” which usually means we’re asking whether a state or federal law works and is valid under the federal Constitution.

Levels of Review -Once the Supreme Court decides to hear a case, they are bound by prior decisions made by the Court and the Constitution.  But remember, the Constitution is really vague so the Supreme Court has historically been able to interpret provisions of the Constitution in a bunch of different ways and it’s up to the current sitting members of the Court to stick to those old interpretations unless they have a really good reason for changing their minds.

In past cases, the Supreme Court has laid out levels of judicial review to be used when determining the constitutionality of a law:

• Rational Basis – lowest level of review. Use it for your general, everyday laws that don’t have suspect classifications.
• Intermediate Scrutiny – middle of the road level of review.  Use it for laws that have “quasi-suspect” classification. (What is quasi-suspect? Maybe gender… maybe marital status?)
• Strict Scrutiny - highest level of review. Use it for laws with “suspect” classifications, like race… and maybe sexual orientation.

You might be wondering why these levels of review are important. They’re kind of a big deal because it’s hard for laws to survive a strict scrutiny analysis and it’s usally pretty easy for laws to survive a rational basis analysis.

Making the Decision -The Supreme Court will hear a case and lets everyone chime in with their thoughts. Then they deliberate. Then they write a decision and usually tell us if a law works. If the law is deemed Constitutional, there’s pretty much nothing else that can be done. I mean, you can riot. If the law is deemed unconstitutional, then laws enacted pursuant to that law might also be deemed unconstitutional.

But it’s important to keep in mind that the decision belongs to the Supreme Court. Not to the President. Not Congress. So, Obama supporting same-sex marriage is awesome… but he’s not the deciding vote. And Congress writing and passing DOMA is lamesauce that invalidates the love and committment of people across the US… but they just wrote the law and the Supreme Court gets to review it.

And that’s that.  Next time, we’ll finally answer the big question (Is DOMA Constitutional), but until then, answer me this: Do you think the Supreme Court is given too much power? What about the fact that they sit for life? Don’t leave in conditioners make you nervous?

Untangling Same-Sex Marriage: Seems Harder than Untangling my Hair

The last few days have certainly been a whirlwind of emotions. On Tuesday night, while trying to catch up on The Killing (seriously, watch it), I cried into my mug of wine watching the Twitter machine spit out the sad news that North Carolina voters passed Amendment 1, amending their state Constitution to include the following language: “Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State.”

Then on Wednesday, while I hid in my office trying not to think about how cruel and stupid those NC voters were, I was bombarded with texts and messages telling me that Obama released a statement supporting gay marriage.  This time, I cried into my Venti Skinny Vanilla Latte and ridiculous pile of papers that need to find homes.

And last night, after hashing out some of these emotions and various thoughts about the implications of North Carolina’s amendment and Obama’s statement with the absolutely fabulous Women and Gender Studies Department, I finally stopped crying and started thinking about what all of this means.

The Thinking Man sculpture at Musée Rodin in Paris (Photo credit: Wikipedia)

I’m going to break it down for you, FeministLawProf style, but first, I’d be remiss if I didn’t share the words of a good friend and smart lady. To a lot of us, this whole “gay marriage” brouhaha is seems to be bordering on insanity and I think my Manhattan gal-pal hit the nail on the head when she said:

“Sometimes I think I have some sort of deeply ingrained liberalism having been raised in Boston and living most of my adult life in New York city and therefore generally being surrounded by like-minded people that share my outlook on these things.  And then I think no… This isn’t about being liberal. It’s being human. It’s about two people loving each other so much that they want to commit their lives to one another. And if they happen to be lucky enough to have found that, they should be able to be together spiritually and legally.”

I’d love to end this blog there. But that wouldn’t do justice to how complex this simple concept of love and committment has become as a result of our system of laws here in the U.S. So get ready, there’s some legal stuff comin’ at ya – in a couple different posts. Today we’re going to cover the first prong of the legal chaos that is the state of marriage, starting with:

The Interaction Between Federal and State Law

Constitutions – There are 51 Constitutions in the United States.  But, the Federal Constitution is the supreme law of the land. Why? Because when our founding daddios wrote it, they said so. What this means is that every single state in the United States has to give its citizens at least the rights granted by the Federal Constitution. They can choose to give more rights or play with the rights that the federal Constitution gives, but our Federal Constitution will always have the last word.

Ok. So, we’ve got the Federal Constitution and then every state has their own Constitution, wherein they can outline the rights state citizens have.  Some states even give extra rights to their citizens, but every state  has to at least give the rights granted by the federal Constitution. But different states have different laws – like in New Hampshire, you can get your driver’s license at 15.5 years, but in Massachusetts you have to wait until you are 16.5. But those 15.5 year olds can drive in to Massachusetts and their drivers’ licenses will still be valid… why?

Full Faith and Credit Clause - Because of the Full Faith and Credit Clause.  This is a part of the federal Constitution that says that states have to respect the public acts, records, and proceedings of other states. So Massachusetts has to say ok to those 15.5 year old NH drivers.

So if states have to respect the public acts, records, and proceedings of other states… shouldn’t that mean that say… North Carolina has to respect a same-sex marriage that is valid and legally recognized in Massachusetts? Sigh. This is where things get tricky.

The Defense of Marriage Act (DOMA) – Many years ago, Bill Clinton made a really big mistake. It wasn’t Monica. It was DOMA.  In 1996, he signed DOMA into law, effectively destroying the Full Faith and Credit Clause as it applied to marriage.  DOMA granted individual states the right to IGNORE any public act, record, or judicial proceeding having to do with marriages from another state. What this means is that a valid marriage license from Massachusetts could be considered invalid in say, North Carolina, under DOMA.

In addition, DOMA also stated that the word “marriage” under basically any federal law or ruling means a “legal union between one man and one woman.”

Finally, DOMA also had a provision that would allow states to amend their state Constitutions to define marriage as between a man and a woman.

Impact of DOMA on Fed and State Law – This is where the wild rumpus starts. Under DOMA, North Carolina has a right to amend its Constitution to define marriage as between a man and a woman.  And under DOMA, North Carolina can choose to ignore marriages from other states. So technically, even though it pains me to say this, North Carolina was completely ok in amending their constitution under the DOMA legislation.

But the big question is, Is DOMA Constitutional? Does it work under the Federal Constitution?

What do you think?  Does it violate the Full Faith and Credit Clause?

We’ll jump into those questions and what Obama’s statement supporting same-sex marriage, Holder’s announcement to no longer defend DOMA, and society’s changing views of marriage next time… until then, what do you think about DOMA and NC’s decision?

Julia Gulia and the War on Women

I get a lot of emails from Barack Obama and his campaign staff.  An endless supply of emails letting me know about every minute aspect of Obama’s campaign and also a whole bunch of emails asking me to sign birthday cards – for Joe Biden, for Michelle… it’s getting a little ridiculous.  So I’ve actually stopped reading them. *Gasp!*

Which is probably why I missed the campaign’s release of a new website, The Life of Julia, chronicaling the life of a white, middle class woman under Obama vs. her life under Romney. The website does a good job of comparing Obama and Romney’s policies and highlighting the scary fact that the “War on Women” isn’t just about birth control.

In fact, Romney wants to slash funding for lots of important programs that benefit women – from early childhood programs, to health insurance for young adults, to funding for schools and neighborhoods.

Check out the website and let me know what you think. Does it do a good job of highlighting the work Obama has done, like Nadine mentions in the comment section below? Or is it a flop, as suggested by Mitt Romney when he asks: “What does it say about a president’s policies when he has to use a cartoon character rather than real people to justify his record?”