The Obama administration has announced that it will no longer defend DOMA in court, where it is being challenged in federal court in several states.  This means that the Justice Department will no longer argue that the law is constitutional.  However, the law is still federal law and cannot be overturned simply because this administration refuses to defend it.  Therefore, it is still on the books as law until it is either ruled unconstitutional by the courts or it is repealed by the Congress.

But this is a step in the right direction.  It is the first step in ending this discriminatory law in the country that prides itself on freedom and tolerance.  I believe that this is going to be the Loving v. Virginia of our generation.  For those that are not lawyers, Loving v. Virginia is the Supreme Court case that allowed people of mix race to marry in this country.  In that decision, the Supreme Court wrote:

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

I believe that you can substitute the words race for sexual orientation and have it be as applicable and as powerful as its original meaning.

In 2007, Mildred Loving, the named party in the seminal Supreme Court case above, said the following:

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. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people’s civil rights.

I am still not a political person, but I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about.

The simple answer is no.

In order for a couple to get divorced in Massachusetts, they have to have lived here in the Commonwealth for 1 year prior to filing for a divorce OR the grounds for the divorce must have occurred in Massachusetts.  Simply put, it doesn’t matter where you get married, it matters where you live that determines where you get divorced.

So what does that mean for gay couples who are married yet live in a state that doesn’t recognize same-sex marriage?  Several things are possible.  They either can not get divorced or their state can be one of the few states that don’t allow same-sex marriage but will grant a same-sex divorce.  Their last option is for one of them to move to Massachusetts for 1 year and then file for divorce here.

This definitely places a tremendous burden on same-sex couples but as long as the Defense of Marriage Act is in place, states can continue to refuse divorces for same-sex couples despite another state legally recognizing their marriage.

Dan Savage presents his viewpoint on the state of gay adoption in America today by reframing the argument.  The issue is not “gay parents vs. straight parents.”  The issue should be whether it is better for a child to have parents at all vs. having no parents.

Gay people are allowed to foster children but not adopt them in some states.

“Every child deserves a mother and father.  It would be nice wouldn’t it if it did work out that way. But it’s not gonna work out that way.”

“Why are they in foster care? Because their gay parent abandoned, neglected and abused them? No. Because their straight parents abandoned, neglected and abused them.”

“Gay people don’t have children by accident…Every child that’s been adopted by a gay and lesbian couple is a wanted child.”

Therefore, I often ask myself the most basic question in my practice – what does being married mean or rather, what should it mean.

The bill did not pass.

You can read the proposed amendment here: http://rescuemarriage.org/2009/08/22/2010-california-protection-of-marriage-act/

I came across a paper by Jeffrey Lax and Justin Phillips, “Gay Rights in the States: Public Opinion and Policy Responsiveness,” published recently in the American Political Science Review.  Here is a chart from that paper illustrating the support for same-sex marriage by varying age groups (click to enlarge):

What this tells us is that in 15-20 years, when the more tolerant 18-29 yr olds become the average age group, same-sex couples will have equality.  This gives me hope but it sure is a long time to wait.

I think the tide is starting to turn in favor of equal rights and it makes me proud of our nation.

I’m reminded of Martin Niemoeller’s poem and how we should fight for equality even if it doesn’t directly affect us.

“They came first for the Communists, 
       and I didn’t speak up because I wasn’t a Communist.

Then they came for the Jews,
      and I didn’t speak up because I wasn’t a Jew.

Then they came for the trade unionists,
      and I didn’t speak up because I wasn’t a trade unionist.

Then they came for the Catholics,
      and I didn’t speak up because I was a Protestant.

Then they came for me,
      and by that time no one was left to speak up.” 

[warning: heavy legalese to follow]

One of the legal challenges that same-sex marriage supporters have is defining the gay community as a suspect class of people (e.g.: women and ethnic minorities).  A suspect class of people are ones that have defined traits that subject them to discrimination.  When the Supreme Court of the United States looks at an issue, they first look to see whether they’re dealing with a suspect class of people and also whether they’re dealing with a fundamental right.  Marriage is a fundamental right.  What’s unclear is whether same-sex marriage is a fundamental right.  If a same-sex marriage case ever made its way up to the Supreme Court, it could have the ability to dictate how individual states must treat same-sex marriage.  In effect, individual states would no longer be able to defined marriage.  This could either be a widespread victory for same-sex marriage supporters or it could also be a crushing defeat if the Supreme Court ruled the other way.

Today, the California Supreme Court ruled that Proposition 8 is legal and therefore there will be no more same-sex marriage in California.  But they also ruled that the approximately 18,000 same-sex marriages that were performed during the 5 months period was legal and will continue to be valid.

As I said, the trouble is defining gays and lesbians as a suspect class of people.  Now, with the California Court ruling, I believe proving gays and lesbians to be a suspect class of people is no longer necessary.  The California Court, by allowing the 18,000 same-sex marriages to exist, now created a subset of people in a group that has certain rights and all others who do not.  There is no rational basis for this distinction.  This is an Equal Protection violation of the United States Constitution.  I believe that the California Court, the same one who ruled in favor of same-sex marriage, actually knew what it was doing by removing the hurdle of showing a suspect class and instead have reclassified it as an Equal Protection issue.

Ultimately, I can’t tell the future and I don’t know whether the new challenge in California will be from the ballot box, the legislature or the courts.  I do know that the fight isn’t over in California.

There’s a lot of news from the same-sex and gay marriage front lately.  I just want to provide the facts here and see where this all goes.

Iowa gave gay couples the right to marry this month through their Supreme Court decision that struck down the laws against gay marriage.  Iowa will begin to allow same-sex marriages this month.  Opponents of the high court decision is already gearing up for a battle by getting support to pass a constitutional amendment (similar to what they did in California).  However, the fastest a constitutional amendment can be passed would be in 2012.  So the fight is not over in Iowa.

Vermont, the first state to offer same-sex civil unions, as of today, is the first state to allow same-sex marriage not through the courts but by a vote of the legislature.  This means that a constitutional amendment in Vermont to outlaw same-sex marriage is highly unlikely and gay marriage is here to stay in Vermont.

As of today, these states allow same-sex marriage: Massachusetts, Connecticut, Vermont and Iowa.