This week the Supreme Court ruled on the two same-sex marriage cases, Hollingsworth v. Perry and Windsor v. United States.
Hollingsworth v. Perry
The issue in Perry was that a group of private citizens wanted to step into the shoes of the state and defend the legality of Proposition 8 under the California constitution.
The Court had to decide at the outset was whether this group could step into the shoes of the state to pursue the claim. They ruled that the group had no right to do that.
The way the court split here was interesting. Kennedy and Sotomayor both dissented, along with Thomas and Alito. These four Justices would have heard the case on the merits. I predict that the subsequent decision on the merits would have fallen out exactly the same way as the decision in Windsor given that pretty much the same issues are at stake, but the world will never know.
The big argument against granting standing is that the right to sue only belongs to the state, and private individuals or groups can’t step in where the state has declined.
The dissent was focused around the way the California initiative system is set up, because the whole point of that system is to give voters more control over the way their state is run. This is a reasonable thing to discuss, but more direct voter control over the legislative process doesn’t necessarily mean that individual voters should have the power to step in for the state in court. Maybe if Californians pass a proposition that allows them to do that, a different outcome would be warranted in a future case.
And that’s that for Perry. I have never liked this case. The original filing seemed sloppy, and I have long been concerned that issues with the filing could have far-reaching consequences if handled poorly before the Supreme Court. I am also happy to have the standing issue cleared up, because the tyranny of the majority is one of the things our justice system is supposed to be a check on.
Windsor v. United States
This is the more direct challenge to DOMA, the Clinton-era carve-out to the Full Faith and Credit Clause passed in the 1990s in response to the first challenges to laws preventing same-sex couples from marrying. Clinton followed this particular gem up by running ads on conservative talk radio about how he was the candidate who stood up to the homosexual lobby. But hey, Reagan was happy to let us all die of AIDS, so I guess it was a step up?
Back to the analysis.
In Windsor, the issue is focused around estate tax. Ms. Windsor and her partner, New York residents, married in Canada. New York at that time recognized same-sex marriages performed in other jurisdictions. The federal government did not. When Ms. Windsor’s partner died, she left Ms. Windsor a significant chunk of cash. Since the federal government did not recognize their marriage, the IRS came calling and demanded their money. I’m not looking at the figures, but from my recollection of tax class and two seconds of research on Wikipedia my guess is she inherited more than $750,000 and probably more than $1,000,000.
This case makes clear that marriage rights are focused around property issues, and that the people who will benefit the most from marriage are people who already have money and property. It is true that Ms. Windsor’s marriage was treated differently because she and her partner were a same-sex couple. It’s also true that this is a shit-ton of money and my sympathy for rich people who don’t want to pay taxes is close to nil. But, all rich people should be treated the same without regard to sexual orientation.
The holding in Windsor is based on Fifth Amendment violations of due process and equal protection. Fifth, not Fourteenth, because this is a case about the action of the federal government, not a state government. The essence of the argument is that Ms. Windsor is being treated differently from someone with an opposite-sex spouse in a way that is costing her money and that’s not fair to her or to other people who are similarly situated. The holding also asserts that there is no reason for DOMA to exist other than to hurt same-sex couples, and that normally everyone just goes with state definitions of marriage. Including states where you can marry your cousin or a minor, neither of which have been banned from recognition at a federal level.
Kennedy’s majority opinion is quite sensitive to the extent of the damage that a law set up to discriminate can do and spends some time talking about the negative impact on children of having their government place a lower value on their family. Kennedy has been the author of a number of other significant gay rights decisions, including Lawrence v. Texas, which stated that consensual sexual behavior between adults cannot be criminalized (adopting former Justice Stevens’ dissent in Bowers v. Hardwick), and Romer v. Evans, which stated that a right to discriminate cannot be enshrined in the law. I think the holding in Windsor v. United States is the logical extension of these two decisions – consenting adults can have whatever relationships they want, and the law cannot be written to treat them differently. This is a very basic construction of rights as belonging to anyone who could possibly be eligible for them, because this isn’t some kind of Animal Farm society where some citizens are more equal than others.
Scalia seems to agree with me that this decision is the logical outcome of Lawrence and Romer, but he’s not happy about it. Scalia constructs rights as existing within a hierarchical system to reward whatever the valued behavior is – here it’s being able to present the appearance of “traditional sexual morality”, but he also doesn’t like when women can make decisions about our bodies. Overall this is the same issue: people controlling their own sexuality and making decisions he doesn’t approve of. Scalia believes there is a rational basis for laws of this kind, and that since gender-based discrimination and discrimination based on sexual orientation are not subject to a higher standard of review the law should stay in place.
(Note: generally laws that treat men and women differently get intermediate scrutiny, but Scalia doesn’t agree with that either.)
Roberts’ dissent is basically “quit calling us haters, we’re not haters” and then gets into how it’s okay to pass laws like this for uniformity and stability, and that the real question is whether this is an okay way for the federal government to handle that different states do things differently.
What the two cases have in common
The holdings in both cases are primarily about the states’ rights to define marriage, and whether the federal government’s interference with that right via DOMA is unconstitutional.
What happens next?
Traditionally marriages are afforded full faith and credit and treated in accordance with the law of the place of the celebration. So if you marry your 14 year old cousin in a state that allows that, and then you move to a state that doesn’t allow that, the state you move to will still recognize your marriage. Here the federal government recognizes all same-sex marriages, but state governments may not. This is going to create some interesting conflicts, by which I mean things are still going to be shitty for a lot of us. I think it’s likely that we’ll see challenges to state laws and constitutions banning same-sex marriage over the next few years.
I always end up answering a page and a half of questions about gay marriage litigation and I’d love if I could pre-empt that but it’s already too late. So here are some notes about the current cases in front of the Supreme Court.
There are two cases.
The Prop 8 case, Hollingsworth v. Perry, is about two issues. First, whether the plaintiffs have standing to bring the case, and second, whether the equal protection clause of the 14th Amendment prevents California from limiting marriage to one man and one woman.
What should have happened: the plaintiffs’ claim for standing is really thin. The state of California declined to pursue this case, and the people pursuing it can’t show that they’ve suffered any injury from same-sex marriages in California. Their best argument is that they’re standing in for the state and residents of California, and I honestly do not know why the California Supreme Court let them do this.
What this would mean: if the case is dismissed for lack of standing, it means the constitutional issue won’t be addressed. That would also mean we’re back to the decision Judge Walker made ages ago, invalidating Prop 8.
Hey, wait, won’t that mean the Supreme Court is avoiding the issue? Yes. The Supreme Court does that. Making rulings about the Constitution is tricky business and it’s good to be extremely careful about setting precedents, because we don’t know what’s going to happen in the future. Generally speaking, if a case makes it up to the Supreme Court, and the Justices find that they can decline the issue because a lower court dealt with it adequately, they do that. If they find that there is a state law that takes care of the issue in question, they go with that. If they find some other way to settle things, they take it. This is okay. A lot of people feel like they should swoop in like some poorly-designed superhero team and right all the wrongs with the power of the Equal Protection Clause, but a lot of this is about avoiding trouble in the future and what a pain in the ass it is to overturn a bad decision.
Also, here it would mean the bad guys lose. Cool.
Prediction: dismissed for lack of standing, 5-4, Kennedy, Kagan, Breyer, Ginsburg, and Sotomayor for the majority; Scalia, Alito, Thomas, and Roberts dissenting, with a truly embarrassing rant from Scalia about the traditional value of hating queers.
Maybe Roberts will turn around and do the right thing, who knows. He might be stepping up to challenge Kennedy for the position of most powerful person in the country, I mean, swing vote.
Now the other case, U.S. v. Windsor.
Issues: First, whether Clause 3 of DOMA violates the Fifth Amendment’s equal protection clause. Second, whether the Executive Branch agreeing with the lower court that DOMA is unconstitutional means that the Supreme Court doesn’t have jurisdiction to hear the case because that wraps it all up. Third, whether Boehner’s group of whiny conservatives has standing to step in where the President has already declined.
What the case is actually about: Edie Windsor had to pay a substantial estate tax on her inheritance from her wife, and if their marriage had been recognized like straight people’s marriages, she wouldn’t have had to. On the one hand, this is clearly unfair. On the other hand, I have very little sympathy for rich people having to pay taxes. Solution: let’s recognize everyone’s marriage and tax rich people like mad! Who’s asking me for a solution: not even the three readers of my blog. Oh well, on with the analysis.
What Clause 3 of DOMA says:
Section 3. Definition of marriage. 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.
Why this violates the equal protection clause of the Fifth Amendment: it’s a deprivation of property without due process. Ms. Windsor is being denied the right to inherit her wife’s estate because she and her wife were both women. At the time of her wife’s death, the state of New York recognized same sex marriages from other jurisdictions. Ms. Windsor and her wife had gotten married in Canada, because Canada is ahead of us on this one and anyone who can pay a six-figure estate tax can easily afford a trip to Toronto.
Wait, what’s the difference between equal protection under the Fifth Amendment versus equal protection under the Fourteenth Amendment? What a great question! I’m so glad you’re paying so much attention.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Fourteenth Amendment, equal protection clause:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Yep, pretty similar. Essentially, the Fifth Amendment here is because the issue is about what the federal government is doing, and the Fourteenth Amendment in the other case is because the issue is about what a state is doing. The Bill of Rights was about protecting citizens from the federal government, and the Fourteenth Amendment was part of giving states the smackdown in the post-civil war reconstruction, along with the Thirteenth Amendment, which says you can’t have slaves, and the Fifteenth Amendment, which says voting can’t be restricted by race.
My prediction: 5-4 in favor of Ms. Windsor, Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan in favor, Kennedy writes the majority opinion as he did in Romer v. Evans and Lawrence v. Texas. Scalia, Thomas, Alito, and Roberts in dissent.
As an aside, I think that Romer is actually the precedent most on point: you cannot enshrine in the law a right to discriminate, from the case on Colorado’s Amendment 2. Other people think the big case is Lawrence v. Texas, which says you can’t criminalize consensual sex between adults, but I don’t think that matters because this isn’t about hot action, it’s about cash.
What’s the president’s opinion got to do with it? So far on this case, the New York District Court ruled that even under rational basis review, section 3 of DOMA is unconstitutional and Ms. Windsor should get her money back. The President and the Executive Branch generally have agreed that DOMA is unconstitutional, and are declining to support it. The Supreme Court has to decide whether the combination of these two things, a lower court ruling and the official Executive Branch opinion, mean that that settles things.
My prediction: I think these two things don’t mean it’s settled. The Supreme Court doesn’t generally think it’s good to rule that they have to keep their fingers out of the pie. I’m thinking about the cases on the military tribunals in Guantanamo, and how President Bush tried to knit things up so that there was no recourse for people being held there, no appeal, no habeas corpus. The Court ruling that they couldn’t touch certain things could lead to some ugly abuses of power by the Executive Branch. I don’t have a prediction on the vote here: this could easily be a unanimous decision. The conservative Justices may not like gay people very much, but they are rightly concerned with the balance of power between the branches of government.
What’s John Boehner got to do with it? When the President declined to defend DOMA, Boehner turned orange, cried, and got together a bipartisan group of haters to stand together against the horror of gay people getting the benefits their tax dollars pay for. His group is trying to do the same thing that the proponents of Prop 8 are trying to do, and gain standing in the name of the federal government.
My prediction is that this has got a better shot than the Prop 8 plaintiffs had because Boehner’s group is a chunk of the Legislative Branch. I’m guessing there’s an appropriate procedure for this that they didn’t follow, though. No prediction on the vote, but even if they do have standing I don’t think this will be outcome determinative.
Final analysis: DOMA is on its way out. It’s possible that the Court will decline to decide Windsor in some creative way, but the tide has shifted on this enough that I think they want to wrap this up. It’s clear what most of the Justices are doing. Scalia, Thomas, and Alito are rabidly anti-gay and will hold that DOMA withstands heightened scrutiny but isn’t entitled to more than rational basis review. Kagan, Sotomayor, Breyer, and Ginsburg think gay people are real citizens and will move to kill DOMA as a violation of equal protection. Kennedy is tending toward the liberals and has a decent history of supporting gay rights. Roberts tends toward the conservatives in general, but has asked some decent questions.
If I’m wrong: There are plenty of other ways to challenge DOMA, and there are even more ways to improve the lives of LGBT folks in the US and worldwide, very few of which depend on what a court says.
I hate election year. I hate watching everyone get hyped up over bullshit when they should be paying attention to real shit all the time. I actually don’t hate how much everyone fights, but I hate it in contrast with the “oh it’s okay it’s just politics” huggy shit that goes afterward when people decide it’s okay to hang out with people who don’t care about other people’s civil rights or the environment or whatever. I hate the fights on the left between the democrats and those of us who are further left, and the vote strategizing, and the arguments about who’s obligated to do what. I hate the fights on the right because it reminds me yet again how horrible everyone is and that “I hate women and homos, let’s kill” is still a viable campaign strategy.
Most of all, I hate the total lack of options and the shitty candidates and their fakeass smiles and willingness to do horrible stuff to us all.
I am cynical about the presidential race in any year. My former veterinarian put it best when I walked in with my old lady cat Samantha many years ago when she said, “So, which millionaire do you like for president?”
Generally I think that’s a good assessment: the candidates are two rich asshole straight guys with horrible foreign policy ideas and no concern for what most of us go through every day. However, in a system where there are effectively two choices and the electoral college standing in the way of a real popular vote, I am very practical minded about this because I live in a swing state and because I ultimately am only hopeful about one issue:
Which asshole millionaire is going to appoint better judges to the Supreme Court and the federal judiciary?
Ginsburg, Breyer, Scalia, and Kennedy are all in their 70s. Ginsburg has gone two rounds with cancer, and last time it was in her pancreas. The next president will appoint probably at least two Justices, and it could be more – it could easily be all four of them, and any of the others could have a health event at any time or simply decide to retire. Obama has given us Kagan and Sotomayor, who I think are okay. Romney will go for conservative ideologues in the mold of Scalia and Alito. Scalia writes opinions where he talks about the homosexual agenda, and Alito is a fascist who okayed a strip search on a ten year old. Right now, we have four good Justices and sometimes Kennedy is reasonable but you can’t count on him.
Scalia, Thomas, Alito, and Roberts would be happy to overturn Roe v. Wade, and that would be the first of many liberties to go as we head right back into the Lochner era. They just need a fifth vote, and Romney would be happy to give it to them.
I do not have a high opinion of Obama, but I live in a swing state and I’ve already lived under Romney’s shitty governance and don’t want any more of it, not least because I think he’s a sociopath. I’m not going to dis anyone whose conscience does not allow them to vote for Obama and will in fact continue to defend this position as I think voting your conscience is awesome and even when you vote for Elvis that’s absolutely your right as an American. But for me, I fear a court of Alitos like I fear little else.
I seem to have missed Pride this year due to work issues. I have mixed feelings about this, since on the one hand I want to celebrate the rise of the LGBT rights movement, increased visibility, and community building, and on the other Pride has been for most of my life not these things at all but rather an event focused around celebrating assimilation into marriage, church groups, and corporate jobs.
Stonewall was a riot, where New York queers rose against the police and said let us drink in our own bar. It was not a wedding, it was not a corporate promotion to convince potential consumers that it was okay with taking their money, it was not a church service. Pride is not a time for us to be good citizens who blend in perfectly with white suburban straight people. Some of us do that every day, and some of us can never do it, and some of us who could don’t want to. It is not a time to promote corporate branding or for asshole politicians to sweet-talk us about the last time they screwed us over, telling us how sorry they are about that and how they’ll never do it again if we just give them more money.
It is a weekend set aside for us to be ourselves and to celebrate our sexuality publicly, to enjoy each other’s fabulous company, to let it all hang out in ways that we so often can’t.
It is not a time to button up so that we can be more family-friendly, for a more conservative and less inclusive definition of “family”. It’s okay to bring your kids if you want to, but it’s not okay to complain that the leather daddies and drag queens make them ask questions you don’t want to answer.
At its core, I see Pride as an anti-authoritarian event, or at the very least an event where we should not be subject to intrusion from authoritarian organizations, not expected to assimilate to traditional norms, not expected to smile and keep silent about our pasts.
This does not really go with church groups or other authoritarian organizations. Given the history so many of us have with abuse from churches, I have doubts that church groups are appropriate to Pride at all. Every year at Pride I voice my discomfort with this and every year people try to say that it’s different because the churches that come to Pride are accepting! as though that means something. I was kicked out of one of the big “accepting” churches from my hometown because I am queer, and they march in the parade every year. Acceptance is thin, it’s premised on cultural heterosexist authority and the perceived right to see us as other, to exclude us, to debate our humanity and value to the larger community rather than taking it for granted. Straight people rest assured their church will not question their right to be in the space, to be seen as families, to be who they are openly, and that they debate these same things for us shows how little “acceptance” means. For those church groups who are actually cool, that’s awesome. But most of what I see is straight people and self-hating queers who want to congratulate themselves on how progressive they are while not creating any real change, people who talk about acceptance and mean it only for those of us who are capable of blending in so we are totally indistinct and invisible.
There’s no pride to be had in this.
Similarly, it’s nice that corporations have figured out that our money spends the same way as everyone else’s, but perhaps wooing us at times other than Pride would be appropriate. I’ll give a shout out to JC Penney here, with their mother’s day and father’s day ads. Good job! Now do an add with two women of color please. However, I’m also going to slam down hard on the beer companies: my community has a long history of trouble with alcoholism because bars were one of the only places we were allowed to exist and because our lives are often very stressful, and while I vastly prefer drunken antics to being accosted by yet another signature-gatherer on the latest useless marriage vote, both the assimilationist politics of the marriage movement and the beer companies’ interest in keeping us in thrall to their product make me sad about going to an event that used to make me so happy.
This is not pride either, though I think it’s closer than with church groups.
Politicians who want to court our vote can do so the rest of the year in public, rather than at Pride where only we will see them. The desire to woo our vote at Pride and then denounce us as necessary but distasteful allies the rest of the time is something I’ve seen a little too often.
This is the image of pride without the actuality, gay-friendliness for a payoff. I love seeing politicians at Pride when they’re there to be at Pride. I hate it when they’re there to campaign. Go to the State Fair and tell everyone how gay-friendly you are if you mean it so much.
I wish I could be more excited about Pride. I was really psyched about going when I was a teenager, a weekend when I could be in queer space and not be threatened for refusing straight conservative modes of dress and behavior. Now I feel alienated from the whole event for the same reasons I have always loved being queer: I do not want to get married and go to church and work for a corporation and spend my time drinking, getting excited about when TV shows a gay character that they don’t mangle horribly, trying to pretend that gay republicans just have a different view, trying to keep up with the Joneses and their conspicuous consumption. I do not want this same repressive life packaged with rainbows and stamped with the heteropatriarchal seal of acceptance, an acceptance premised on fitting into the dominant cultural model and not making a fuss about the racism or classism inherent to that model or even just that it doesn’t work for some of us. Pride is the last place we should ever be complacent, the last place we should ever accept the status quo, the last place we should decline to ask questions or pretend things are okay when really they’re not.
I have been following with some frustration the proposed amendment to the Minnesota state constitution to define marriage as between one man and one woman. This has been difficult not just because it’s yet another piece of discriminatory legislation, but because I know a number of people who are volunteering on the campaign against it and many more who are really worked up about it and I feel that this is not the best use of time set aside for LGBT-rights activism.
From a purely practical standpoint, this amendment will change nothing. If it passes, it will change nothing. If it fails, it will change nothing. Same-sex marriage is not currently recognized in Minnesota, and it will not be recognized after this vote. What will change the situation in Minnesota is the fall of DOMA and recognition of federal marriage rights.
In the meantime, there are a lot of other issues we could be working on that would have a real effect on Minnesotans, such as pushing for inclusive curriculum in schools, including sex ed; working to restore MinnesotaCare; supporting organizations that work with homeless queer and trans youth; supporting CeCe McDonald (her sentencing is in just a few weeks, please pack the courtroom and show her some love); getting Michelle Bachmann out of office – the list goes on. I despise ineffective activism like I despise few other things, and I think that a necessary part of effective activism is to always be in the process of reassessing what your goals are and how best to achieve them. This necessarily includes an awareness of the people and organizations you choose to work with.
For me, part of the essence of queerness is to have the option to live your life outside the bounds of heteronormativity, to not be forced to conform to straight standards or adopt straight cultural institutions. I think people should be able to get married if they want to, but I don’t support using marriage to further stigmatize those queers who aren’t interested in the white heteropatriarchal ideal, 2.5 kids and a house in the suburbs with matching SUVs parked in the garage, homogeneity and fear of those other queers, you know, the bad ones who don’t want to fit in. I want to create a future where we define ourselves on our own terms rather than being measured by straight standards, and that means that a focus on acceptance is necessarily misplaced: I do not need your acceptance, because the idea that I do is premised on the idea that I am less valid and need permission to exist.
It is therefore disturbing to me that so many of the people who are working on this campaign are straight or invested in straight privilege and not involved in other LGBT rights activism. I appreciate my allies and friends, but I do not need straight-privileged people to tell me what is good for the rest of us. It is also very creepy to have straight-privileged people only get hyped about queer rights when the explicit goal is assimilation.
When I raise critiques about this, my alleged allies decry me for not being supportive as though by not burning my time on this I’m acting against my own interests. They insist that I don’t know what I’m talking about, even though I am queer and a law school graduate and have been out and followed queer politics closely for over 20 years. The undercurrent is always that straight people know best and I should be grateful for their help, that this will somehow be a big initial step as though gay rights work was invented by HRC and the marriage movement. What’s worse is hearing straight criticisms of queer visibility that steps out of line with the goals of marriage as not making the right impression, as though straight people should determine how we present ourselves. It’s the same thing I hear every year around Pride: if you want to earn our respect, you should stop acting that way in public.
It always means the same thing: stop being yourself, who you are is not okay. We will tell you who to be.
Imagine having your rights and humanity debated in public your whole life, and the people who claim they are your allies declining to step forward on a thousand occasions when you need them, instead waiting until it is to their benefit and then expecting you to be excited.
I keep running into various stories about porn or erotica for women and I’m briefly interested and then realize that it’s for straight women.
Can you imagine hearing about a piece of lesbian erotica making headlines as a fantastic pop culture hit for women?
Yeah, me neither.