Thursday, July 15, 2010

Judicial Rulings Empower Gay America

by Norm Kent
This is an incredible moment in the history of gay rights for Americans.

The ‘Today’ show has allowed gay couples to enter its annual wedding contest. Okay, okay.

More seriously, a United States federal judge in Massachusetts ruled last Thursday that a law barring the federal government from recognizing same-sex marriage is unconstitutional.

The decision, outlined in SFGN this week by Lisa Keen on page ____, has incredible implications for gay Americans. Here is an attempt to briefly explain in simple terms what happened in court last week. Call it Law 101, and if you get through it, give yourself 3 academic credits.

First, Massachusetts has allowed same-sex couples to marry since 2004, and more than 15,000 have done so. The judge ruled Massachusetts had a right to do that. He ruled that since there is a part of the U.S. Constitution which declares that rights not explicitly granted to the federal government, or specifically denied to the states, belong to the states, Massachusetts had the power to do what it did; that it was a “right firmly entrenched to the province of the states.”

The judge found that there is nothing in the Constitution about marriage which gives the Congress the right to pre-empt what the states might do. Remember, that is what Congress did when they passed the ‘Defense of Marriage Act,’ which limited marriage rights to heterosexual couples only.

Ironically, the Obama administration’s Justice Department, since it represents the federal government, was obligated to defend the law, but it admittedly did so half heartedly, since Obama himself had called for its repeal during his campaign for the presidency. But that was only part one of this complex judicial ruling by US District Court Judge Joseph Tauro, and not necessarily the best thing for gay rights activists.

You see, if the judge ruled only that states have the final decision on gay rights marriages, then what about the 45 states that refuse to allow it? If those decisions are left solely to the states, gays throughout the country are going to have a long wait to gain the same legal rights as heterosexual couples. There was a second part to this Massachusetts case though and it had nothing to do with Matt Lauer or the Today Show.

The other case was brought by a group called the Gay and Lesbian Advocates and Defenders. They argued that the federal law passed by Congress, separate from any limitation it imposed on the states, denied individual citizens equal protection of the laws, because gay men and lesbians were being treated different than straight married couples.

These litigants noted that straight couples can receive federal tax benefits, social security survivors’ rights, and other financial rewards that LGBT partners can’t receive. This was a denial of fairness to one whole class of citizens, who should all be protected equally, they argued. Judge Tauro agreed, essentially concluding that there is no rational basis for treating same-sex couples differently than heterosexual couples.

Before we all get too excited, remember this was one district court judge at the first step of the judicial process. Above him are numerous appellate courts, and a few constitutional scholars with foreboding warnings. “What an amazing set of opinions,” said Jack M. Balkin, a professor at Yale Law School. “No chance they’ll be held up on appeal.” And that’s from a guy who supports same sex marriage. Yet, he has a good point. Over the years, many courts have held that marriage issues are not solely the rights of state government’s but also involve federal issues. So this battle is not over. It’s just beginning.

Separate and apart from all this in Massachusetts, the LGBT community is awaiting a decision from a gay man, Judge Vaugh Walker in San Francisco, on the legality of Proposition 8 in California, which seeks to affirm gay marriage rights. Whatever Judge Walker decides, regardless of how he rules, can also be appealed to higher courts. Of course, it will be, too. As the New York Times said in its editorial last week, and as any of us who have ever served on jury duty know, the “process of justice can take years.”

As gay men and women, we should be encouraged that we are moving in the right direction and empowered that courts are even addressing these issues. When gay Congressional candidates, the Victory Fund, or Lambda Legal come knocking on your door for support, remember those individuals and organizations are pushing the envelope for you today so your rights are protected tomorrow.

Meanwhile, back at the ‘Today Show’ Facebook page, thousands of posters had their say: "The Bible clearly states what marriage is and it also states these kind of acts between men and men and women with women are an abomination. God is not pleased and neither am I. What about my rights!!!"

Ultimately, our struggle also has to be won in the hearts and minds of America as well as in its courtrooms.