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Marriage at the Supreme Court 2.0: Windsor, Perry, and Context — Part 2



This post is a continuation - to read the first part, click HERE.

In Part I of this post, we took Kenji Yoshino's invitation, sparked by his book, Speak Now, on Hollingsworth v. Perry, to take a look at the context for the upcoming Supreme Court marriage argument. We traced the key legal history back from 1972 and Baker v. Nelson to the passage of Defense of Marriage Act (DOMA). I have been arguing that a multi-pronged strategy was necessary to win marriage rights, but the step-by-step litigation strategy was the central mode of success. Let's pick up where we left off.

MarriageThe preemptive nature of DOMA was its most striking element. In 1996, there were no legally married gay couples in the states, and yet Congress still felt the need to discriminate against them and give states the right to ignore legal marriages just because the individuals are gay. It wasn't until 2004 when Massachusetts legalized marriage for gays that the effects of DOMA could actually be felt by a real live person. Between 1996 and 2004, advocates went to work in progressive states, mostly in the Northeast, to set the groundwork for marriage rights. After Massachusetts took the jump, 13 states passed constitutional bans on marriage equality. Others followed. But Massachusetts was joined by a handful of other states on the pro-equality side, including Connecticut, Vermont, Iowa, and New Hampshire. 

California was a unique case. In re Marriage Cases brought marriage equality to that state in 2008, but that freedom was famously taken away in Proposition 8. The denial of marriage rights in a state like California -- the progressive home of the Castro and West Hollywood (and countless other cities and towns gay Californians called home) -- felt particularly harsh. A group of activists, led by 4 pioneering plaintiffs and represented by an attorney "odd couple" of Ted Olson and David Boies, decided to challenge Prop 8 in federal court. 



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Marriage at the Supreme Court 2.0: Windsor, Perry, and Context — Part I


Speak NowKenji Yoshino, the Chief Justice Earl Warren Professor of Constitutional Law at NYU School of Law, has written an outstanding book: Speak Now: The Story of Hollingsworth v. PerryPerry was not the first marriage equality case. Nor, Professor Yoshino noted recently, did it create the most important legal precedent (that's Windsor). But Perry accomplished two essential functions, without which we would not be on the precipice of a nationwide marriage equality right: it launched marriage equality into the public conscience and used the unique environment of an adversarial trial to put our opponents' anti-gay arguments in stark relief. From there, the dominoes fell rapidly in our favor.

Less than one week away from oral argument at the Supreme Court in the most recent (and likely last) round of marriage equality cases, it is fitting to take Professor Yoshino's invitation to look back and understand the historical context that brought us here. For this retelling (and there are many possible retellings of the history of the marriage equality fight), I will connect the dots between some of the major legal precedents. Professor Yoshino's text is the seminal work on one of them -- Hollingsworth v. Perry. Let's see the bigger picture.

I will argue that although a multi-pronged strategy of growing public support, legislative action, and on-the-ground activism was important for marriage equality's success, without legal boldness and a courtroom strategy, much of the political work would not have mattered.

When, in the 1972 one-line order in Baker v. Nelson, the Supreme Court decided that the freedom to marry a person of the same sex did not raise any questions of federal law and, thus, could not be addressed in a federal court, the gay rights movement faced several options: give up on marriage, work state by state to amend marriage laws, or build the legal framework for a future federal fight on marriage equality. A non-monolithic movement, gay rights activists dabbled in each, but the latter was the most important.


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Why Indiana's Religious Liberty 'Fix' is No Fix At All: Legal Analysis


PenceWithin a week, voices of reason forced Indiana's Republican governor and legislature to back away from a law that would have allowed almost any private party to claim religious freedom when it wanted to discriminate against gays. But the "fix" signed into law on April 2 simply returns us to the status quo in a state where discrimination against gays is okay in all but 11 communities. To some extent, we should be happy we're back to where we started; Indiana's original "Religious Freedom Restoration Act" (RFRA) was a terrible, odious, discriminatory law. But we started at a place where being gay was grounds for denial of a slew of rights, so there's little cause for celebration.

The biggest "fix" is an amendment that would prevent individuals from using their supposed religious beliefs as defenses to discrimination claims. So, if a florist denies service to a same-sex couple wishing to get married, that florist cannot wield the sword of "religious freedom" to defeat the lawsuit. But it only applies to jurisdictions that actually ban discrimination on the basis of sexual orientation.

Consider two same-sex couples wishing to get married: one is in Bloomington, the other is in Goshen. Bloomington is one of 11 counties or municipalities in Indiana that have protections against antigay discrimination. So Bloomington's florists cannot deny service to Bloomington's gays. But Goshen's florists live in a town where there is no law against discriminating on the basis of sexual orientation. So the Indiana's RFRA fix offers no help for the gay couple from Goshen.

There are two take-aways from this series of events:

First, we have so much more to do. In Indiana, like many other states in the country, gay and lesbian Americans can be fired because of their sexual orientation. The "fix" to Indiana's RFRA doesn't change that. 

Second, elections matter. We wouldn't be playing these rearguard actions--namely, marshaling our forces to prevent terrible things from happening--if we got out to vote and elected our allies. We may not be able to achieve perfect equality overnight: that's not only an impossible goal, it may not even be a good strategy. But, at a minimum, when our progressive allies are in office, we have the opportunity to work (and work hard) for progress. Indiana, dominated by conservative Republicans, can only be places where we prevent the worst; we operate at the rearguard, not the vanguard, in these states.

Third, and perhaps most importantly, by electing to enact a partial "fix" to the state's RFRA rather than a wholesale repeal, the state kept a dangerous law on the books. As I discussed in my previous post on Indiana's RFRA, religious freedom laws, especially as interpreted by the courts, are bloated weapons of discrimination. Originally passed to prevent the state from interfering with religious minorities, these laws have become tools of oppression by privileging religious freedom over equality imperatives and having the expressive effect of suggesting that religious freedom trumps all. In a democratic society imbued with constitutional values of equality and fair treatment, religious freedom is just one of many values. RFRAs, therefore, open the door to discrimination.


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Ari Ezra Waldman is a professor of law and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently pursuingWhat his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.

What's Really In Indiana's Anti-Gay 'Religious Liberty' Bill: A Legal Analysis


Governor Mike Pence of Indiana has, along with a group of apologists on the right, gone to great lengths to assure the public that his state's right-to-discriminate law is no different than the federal Religious Freedom Restoration Act (RFRA). That is an odd position to take for several reasons.

PenceFirst, it's not true. There are obvious textual differences. Still, we have to be honest about the fact that through judicial interpretation, the federal RFRA has bloated to the point where it is nearing the explicit and astounding breadth of Indiana's version. So, maybe it's not the differences that we should be worried about.

Second, the words don't match the actions. While averring that Indiana's RFRA just copies its federal cousin, Governor Pence is also asking his state's legislature to amend the law to clarify that it is indeed no different than the federal RFRA. That begs the question: if it's already the same, why does it need to be fixed to make it the same.

And, third, it really misses the point. We shouldn't be satisfied with a state RFRA that is in fact identical to the current interpretation of the federal RFRA because we shouldn't be satisfied with the current interpretation of the federal RFRA. That people started to notice the problem when Indiana made its bigotry explicit is, in a sense, a silver lining. But the wolf has been hiding in sheep's clothing for some time.

So what's really in Indiana's right-to-discriminate law? That's what this column is about. But we will also see that it isn't so much the textual differences as much as the timing and boldness of Indiana's bigotry. Make no mistake: this law is about us, and it is about allowing individuals to discriminate against us on the pretextual and undemocratic basis of their personal religious beliefs. The law is animated by animus toward gays, dolled up in the language of religious freedom. And that's what makes it so dangerous.


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The Other SCOTUS Case We Should Care About



Healthcare.gov_aapiThere is another Supreme Court case that matters to the LGBT community. Last week, the justices met to hear arguments in King v. Burwell, and to decide, once again, the fate of the Affordable Care Act.

Health reform may not seem like an equality issue, but it is. We are more likely to benefit from the law because we’re more likely to be low-income, uninsured, and discriminated against in the health care system. But the Affordable Care Act is already working for our community by addressing these gaps: between 2013 and 2014, the uninsured rate for low- and middle-income LGBT people fell from 34 percent to 26 percent. And, of those who purchased coverage through the marketplace, 48 percent are paying less than $100/month in premiums. Although LGBT people are still disproportionately likely to be uninsured, the law is having a significant positive impact—just ask our friends Aurora in Houston or Robbie in Nashville.

So what is at issue in King v. Burwell? The petitioners—vocal opponents of the Affordable Care Act—claim that the Internal Revenue Service (IRS) misinterpreted a four-word phrase in the Affordable Care Act to incorrectly offer health insurance subsidies to eligible Americans in every state. They claim that subsidies should only be available to people purchasing coverage through a marketplace “established by the state.” Since 34 states are relying on the federal government to operate their marketplaces, the petitioners argue that subsidies should not be available in those states. If they succeed, millions of people—including an estimated three-quarters of a million LGBT people, according to data analyzed by the Center for American Progress and the Williams Institute—will lose access to financial assistance that can help them afford health insurance. As a result, a decision in King v. Burwell that eliminates these subsidies has the potential to wreak havoc on the lives of millions of newly insured Americans and destabilize state insurance markets across the country.

We’ll discuss the arguments, what to expect, and the impact of the decision AFTER THE JUMP...

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Marriage At the Supreme Court 2.0: The Cases



This article is one in a multipart series leading up to a future Supreme Court decision on marriage equality. The Court has granted review of four marriage cases from the Sixth Circuit and a decision may be handed down at the end of June. Between now and then, Towleroad will break down the cases step by step. Today's topic: The Cases.

Last time, we spoke about the importance of framing the case through the Questions Presented. I argued that despite some concern, the two questions posed in the Supreme Court's order do not indicate that the justices are looking for a way out. They are ready to rule. Before we discuss the substance on which the justices will rule, let's review the four cases that will decide the marriage equality question.


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