News analysis by Ryan Gierach, West Hollywood, California
To us in West Hollywood, where so much of this began, it look as though the gay movement’s piñata has finally broken.
It was 1985 when John Heilman introduced the first domestic partner registry in the nation, a simple form that made “official before the city’s eyes” a same-sex couple’s commitment to one another. Its import was soon tested during the crucible of AIDS and the deaths of so many partners.
Today, nearly 30 years later, gay and lesbian Americans have achieved legal equality, discrimination protection and relief from oppressive elements in several areas of law.
One year ago the Supreme Court decided to make no ruling in California’s Proposition 8 and struck down a key provisions Defense of Marriage Act (DOMA).
Before that ruling, including California, 13 states and the District of Columbia had authorized gay marriage.
Since then, the anti-gay forces have lost a string of 17 straight rulings in which judges have argued the high court’s decision in U.S. vs Windsor means that discrimination in marriage is discrimination period.
The opponents of marriage equality have won, well, no court cases. In fact, the people who have been arguing their cases are finding that their children want to get married – to their same-sex partners.
Not even Dick Cheney can be so cruel (although his other daughter seems infinitely capable of that level of cruelty) as to un-friend his own daughter.
According to Freedom To Marry, 19 states – CA, CT, DE, HI, IA, IL, ME, MD, MA, MN, NH, NJ, NM, NY, OR, PA (just a few weeks ago), RI, VT, and WA – plus Washington, D.C. – now have the freedom to marry for same-sex couples.
In an additional twelve states, judges have issued rulings in favor of the freedom to marry, with many of these rulings now stayed as they proceed to appellate courts.
In AR, ID, IN, MI, OK, TX, UT, VA and WI judges have struck down marriage bans, and in KY, OH, and TN, judges have issued more limited pro-marriage rulings. The 12 mentioned here would bring the total of American states to 31.
Three states offer broad protections short of marriage. CO allows civil union, while NV offers broad domestic partnership. WI has more limited domestic partnership. Colorado, Wisconsin and Nevada could increase the total to 34 states, all in the East, West, Midwest and Mountain states.
Because of the size of the states and the urban areas inside them in which gay populations reside, a record number of Americans live in states that recognize relationships between same-sex couples:
- Nearly 44% of the U.S. population lives in a state with the freedom to marry for same-sex couples.
- Over 46% of the U.S. population lives in a state with either marriage or a broad legal status such as civil union or domestic partnership.
- Over 48% of the U.S. population lives in a state that provides some form of protections for gay couples.
Now the 10th Circuit Court of Appeals rules (last Wednesday) that Utah’s ban on gay marriage was unconstitutional, becoming the first appellate court in the country to find a constitutional right for same-sex couples to marry.
“We hold that the Fourteenth Amendment protects the fundamental right to marry, establish a family, raise children, and enjoy the full protection of a state’s marital laws,” Judge Carlos F. Lucero wrote in the decision for a three-judge panel.
“A state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union.”
The ruling affirms U.S. District Judge Robert Shelby’s December decision that Utah’s ban on same-sex marriage, which was adopted by the voters in 2004 as a constitutional amendment, violated the U.S. Constitution’s equal protection clause.
The 10th Circuit ruling, as have all other federal rulings since last year, invoked the Supreme Court’s landmark 2013 decision to strike down a portion of the Defense of Marriage Act which prohibited federal recognition of legal same-sex marriage.
That same day, in Indiana, a federal judge ruled that Indiana’s ban on gay marriage is unconstitutional, immediately allowing same-sex couples across the state to receive marriage licenses.
The state is fighting the ruling hard, and a stay on marriages has been granted it, but legal observers at Pew say, “it’s inevitably coming to Indiana.”
Gov. Mike Pence, a steadfast advocate of one-man, one-woman marriage supports the appeal and “Indiana’s right to define the institution of marriage for the residents of our state,” his spokeswoman Kara Brooks said in a statement.
The marriage quality issue is not the only front on which the gay movement is making strides.
U.S. Supreme Court decided not to review last year’s decision of the United States Court of Appeals for the Ninth Circuit upholding California’s Senate Bill 1172, which bans therapy designed to “cure gay people” of their homosexuality.
The author of that law, Sen. Ted Lieu, D-Redondo Beach, now running for US Congress man for the 33rd district being vacated by Henry Waxman, authored the first-in-the-nation law that prohibits mental health professionals and therapists from engaging in so-called ‘conversion therapy,’ which was the baseless attempt to change the sexual orientation of lesbian, gay, bisexual or transgender children.
At least eight states have copied Sen. Lieu’s legislation and New Jersey recently enacted a similar law. Sen. Lieu released a statement the day of the decision:
“The Supreme Court has cement shut any possible opening to allow further psychological child abuse in California. The Court’s refusal to accept the appeal of extreme ideological therapists who practice the quackery of gay conversion therapy is a victory for child welfare, science and basic humane principles.
“Those who oppose letting children be what they were born to be can no longer claim that the law infringes the free speech rights of therapists who wish to engage in these dangerous and long-discredited practices,” said Sen. Lieu.
Nearly simultaneously, the White House announced this week it would make good on a campaign promise to ban discrimination by federal contractors on the basis of sexual orientation or gender identity with an executive order.
With the recent Supreme Court ruling in the Hobby Lobby case, though, activists warn the administration not to offer wide religious exemptions. ENDA’s religious protections are already strong; its current exemption for religious organization are broader than that in the 1964 Civil Rights Act, a fact that has engendered resentment from LGBT groups.
A broad exemption, warned Lambda Legal senior counsel Jen Pizer, could, “set a very damaging precedent.” Not only would it “permit discrimination,” she says, “it would be a broad message to the public that discrimination against LGBT people is not deserving of the same robust prohibition that is in place with respect to other kinds of discrimination.”
Republican Senator Orrin Hatch of Utah urged in a statement that any executive order, however, “must include the same religious protections” as exist in the Senate-passed Employment Non-Discrimination Act (ENDA), so that “one of our nation’s fundamental freedoms—religious freedom—is still upheld.”
The hard right thought it excoriated the administration for the order whenTony Perkins of the Family Research Council said in an E mail statement, “The President’s order implementing part of the Employment Non-Discrimination Act (ENDA) — once considered ’too radical’ even for his own party — forces government contractors and subcontractors to hire gays, lesbians, transvestites, and transsexuals — regardless of their legally protected morals.”
All the while, efforts on the important fringes address issues such as anti-gay legislation in foreign countries were made.
During last week’s hearing on the State and Foreign Operations Appropriation’s Bill, Rep. Adam Schiff (D-CA) offered an amendment urging the State Department to prioritize LGBT rights around the world. Schiff’s amendment provided that:
As the United States continues making progress towards ending discrimination towards lesbian, gay, bisexual, and transgender (LGBT) people here at home, we must stand fast against assaults on the basic human rights of LGBT individuals and their families, friends, and associates around the world, including increasing pressure on foreign governments to refrain from enacting anti-LGBT laws, and to repeal existing discriminatory laws.
The amendment failed, but the Chair agreed to work with Rep. Schiff to include mutually agreed upon language upholding LGBT rights in the final appropriations bill. Rep. Schiff responded,
“In the face of an expanding array of anti-LGBT laws being proposed or enacted from Africa to Eastern Europe and beyond, the United States must be more proactive in countering this discriminatory trend around the world.
“Even as we make progress towards equality at home, we cannot stand idly by while other nations criminalize and threaten members of the LGBT community with the death penalty or life imprisonment for simply being who they are.”