Ari Ezra Waldman Hub




1,300+ Same-Sex Marriages 'On Hold' in Utah. Now What Happens? Are They Valid?

BY ARI EZRA WALDMAN

1389143459000-XXX-USL-UTAH-03Marriage equality is on hold in Utah, even though it should not be. Slightly more than 1300 couples, like the couple to the right, married in Utah's equality window. The anti-gay leaders of this conservative state are on course to fight for discrimination all the way to the Supreme Court. That course began yesterday. Utah's Republican Governor Gary Herbert put recognition of those marriages on hold: his state agencies will not recognize the marriages until there has been a final disposition of the case. This entire situation demands we ask several questions: What of the 1300-odd marriages performed in Utah's equality window? Are they valid? Will they be undone if marriage discrimination is upheld? Should the state recognize them as married? Will the federal government recognize them as married.

These are real-world, Main Street concerns. The turn of the calendar to 2014 brings tax questions. Plus, uncertainty as to the legal status of a marriage could delay family planning, relocation, and employment decisions, to say nothing of the stress, anxiety, and associated depression that can result from living in a state of limbo.

The problem is that this limbo was foisted upon loving, committed couples by conservatives hell bent on discriminating against gays for no other stated reason than to maintain the status quo. This really puts the injustice of the stay and the appeal into stark relief.

At the end of the day, the marriages should be valid, at the state and federal level, regardless of what ultimately happens with this particular case.

I discuss why, AFTER THE JUMP...

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Why There Should Be No Stay of Marriage Equality in Utah

BY ARI EZRA WALDMAN

131223-utah-gay-marriage-hmed-10a.380;380;7;70;0Gays and lesbians have been free to marry in Utah -- yes, Utah -- for two weeks. Judge Richard Shelby, who was appointed by President Obama at the behest of Utah's arch-conservative Republican senators, cited the Supreme Court's decision in United States v. Windsor when he said that the Constitution's guarantee of equal "dignity" for gays and lesbians requires the state to recognize their love. Since the decision was handed down, hundreds of gay couples, including Natalie Dicou, left, and her partner, Nicole Christensen, have gotten married.

Now, the State -- the home of the Mormon Church, Prop 8's principal benefactor -- wants those marriages to stop. After failing to ask for a stay during the course of the case before Judge Shelby, after messing up its request after the fact, and after ultimately losing before the Tenth Circuit, the State has one last hope to delay equality: Justice Sonia Sotomayor.

There are many problems with the State's request. Let's set aside for the moment the fact that the conservative leaders of Utah's state government want to deny the very existence of our love. Set aside the injustice of anti-gay marriage discrimination, in general, and focus on the stay itself.

The standard for a stay in federal court is demonstrating "irreparable harm." Where is the harm in letting gays continue to marry?

AFTER THE JUMP, I discuss the problems with the stay argument in more detail.

Continue reading "Why There Should Be No Stay of Marriage Equality in Utah" »


New Mexico Supreme Court's Marriage Equality Decision: An Analysis

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BY ARI EZRA WALDMAN

New Mexico became the 17th marriage equality state today when the state's supreme court declared marriage discrimination unconstitutional. It was a unanimous ruling and one that was based on legal concepts with which we should all be familiar: equal protection, intermediate scrutiny, state interests, and "responsible procreation".

NMFLAGRegular readers of Towleroad's law column already know the basics: The constitution--in this case, a state constitution--guarantees equal protection of the law. Denying marriage licenses to certain individuals simply because of their sex or sexual orientation is unequal treatment that the state has to justify. Because the LGBT community has long been a victim of institutionalized and insidious discrimination, the state has a high burden to meet, a burden we call "intermediate scrutiny." The supposed justification that restricting marriage to opposite sex couples prevents accidental children out of wedlock is no justification for discrimination because marriage has never had anything to do with raising children. Because the state cannot meets its burden, the discrimination is unconstitutional. Gays can marry.

It is remarkable that this legal narrative has become so simple, so obvious, so matter-of-fact that we can summarize it in a paragraph and move on. Ten years ago, it was a theory a few of us deeply believed in. But it has become as airtight a legal doctrine as any I know. Today's decision from the New Mexico Supreme Court reinforces that view. It also highlights the impact the Supreme Court's recent DOMA decision (Windsor v. United States) will have on the next generation of marriage cases.

Follow me AFTER THE JUMP for a more detailed analysis.

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The Supreme Court Will Rule on Obamacare's Contraception Requirement. Here's Why You Should Care.

By ARI EZRA WALDMAN

131002191139-tsr-moos-obamacare-sign-up-glitches-00000812-story-topLast week, the U.S. Supreme Court agreed to hear two cases challenging the Affordable Care Act. The last time that happened, the Court determined by a bare 5-4 majority that the so-called individual mandate, the requirement that everyone has to buy health insurance or pay a tax, was constitutional. Next year, the Court will consider whether corporations can refuse to provide insurance plans that include contraception if doing so would violate the religious beliefs of those corporations' owners.

This matters, not just to those of us in need of health care and not just to those of us who work for companies run by religious people. It matters to all LGBT Americans because the scope of this particular religious exemption could affect the scopes of other religious exemptions.

The cases -- Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius -- will determine the breadth of the religious exemption from Obamacare. Unfortunately, the pretext of religious freedom has gained much traction of late in justifying continued discrimination. And this Court's conservative majority has set itself up to strike a blow against equality.

AFTER THE JUMP, I will construct the argument I expect the Court's conservatives will use to expand the religious exemption. I will show how that argument is deeply flawed. And then I will show how dangerous it is for the LGBT community.

Continue reading "The Supreme Court Will Rule on Obamacare's Contraception Requirement. Here's Why You Should Care." »


Marriage Equality Comes to Hawaii: #TBT and 20 Years of Marriage History

By ARI EZRA WALDMAN

It's appropriate that today is #tbt (Throw-back Thursday) because this week, marriage equality came to Hawai'i, the state where it all began, where the this long (and increasingly successful) fight for the freedom to marry we are in right now started.

BaehrOf course, that's not entirely true. The fight for the freedom to marry for the LGBT community began decades and decades ago, in small living rooms in New York and secret coffee shops in San Francisco and in the minds of a few forward-thinking law students. In the late 1960s, a gay couple asked for a marriage license in Minnesota; the Minnesota Supreme Court said no. The U.S. Supreme Court had no objection. That was a case called Baker v. Nelson and it ended in 1971, over 40 years ago! Jack Baker's and Michael McConnell's losing effort was the first salvo in the first generation of marriage cases.

The current generation of marriage cases began in Hawai'i when three same-sex couples, including Ninia Baehr and Genora Dancel (pictured, right), asked the Hawai'i Department of Health for a marriage license, arguing that they met every state requirement for marriage except for the mere fact that each person loved someone of the same sex.

What happened next was remarkable.

Follow me AFTER THE JUMP to get the rest of the story and see how what happened in Hawai'i brought us to where we are today.

Continue reading "Marriage Equality Comes to Hawaii: #TBT and 20 Years of Marriage History" »


ENDA's Problems and Potential

By ARI EZRA WALDMAN

The Employment Non-Discrimination Act (ENDA), which would protect millions of Americans from being fired from their jobs simply because of their sexuality, will likely pass the United States Senate soon. A small handful of Republicans (Sens. Collins, Hatch, Heller, Portman, Ayotte, Kirk, and Toomey) joined every Democrat and Democratic-aligned Independent to overcome a Republican filibuster that would have prevented the Senate from even discussing the bill. The bill will most likely never pass the Republican-controlled House.

EqualityThe discussion on ENDA now turns to the law's religious exemptions. I wrote previously about the dangers of those exemptions: they are gaping holes in equality that threaten to make equality meaningless if left unchecked. Controversy surrounding those exemptions occupied nearly an entire hour of discussion during the "ENDA Situation Room," an expert roundtable streamed live here on Towleroad, hosted by leading ENDA advocate and Freedom to Work Founder Tico Almeida and co-hosted by New York Law School. What to do about proposed exemptions is dividing leaders of the gay community, pitting Lambda Legal and Human Rights Campaign advocates on different paths.

Not all religious exemptions to equality laws are bad; no one wants to force a church or synagogue to do something that its liturgy tells it not to. But a cavalier approach to these exemptions could be very bad. The ENDA religious exemption debate is not, counterintuitively, just about exemptions to ENDA's application. It is about future judicial interpretations of ENDA. It's about every future LGBT equality law. It is about accepting that LGBT equality is some special category of equality that unnecessarily gets a shorter reach, like swiss cheese with extra holes. It is about elevating and changing an unrelated right to an antagonist of equality. And every religious exemption that we let slide weakens our position on all of these issues in the next fight.

Continued AFTER THE JUMP.

Continue reading "ENDA's Problems and Potential" »


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