Monday, February 24, 2014

Unfinished Business


Chelsea Clinton was wise when she said that LGBT rights are the unfinished business of the 21st Century. Attorney General Eric Holder, Jr. said “fighting for gay and lesbian rights is one of “the defining civil rights challenges of our times.”  LGBT rights are what civil rights for blacks were over fifty years ago.

Rapidly Growing Majority Steamrolling

While over 50% of the U.S. approves of same-sex marriage, this majority approval is not reflected.in states’ voting,  Pew Surveys show that more Democrats than Republicans vote for gay marriage as do adults under 35, as opposed to those over 60.

Windsor’s Case Used as Template in States’ Equality Campaigns

Since the Supreme Court of the United States struck down The Defense of Marriage Act that defined marriage as between a man and a woman last June, confusion has reigned. Lower court judges now cite Justice Kennedy’s basis for striking down bans on same-sex marriage.  The states that don’t have legalized marriage want the benefits that gay couples are receiving in the states where same-sex marriage is legal.

In the latter states, those benefits are supposed to be equal to heterosexual benefits regarding taxation (Edie Windsor made sure of that! }, military benefits, and  many more! Only seventeen states and the District of Columbia allow legal marriages, not counting the recent decisions, all stayed, from Oklahoma, Utah, and Virginia. There are 29 states, mostly in the South and Midwest that have constitutional bans on same-sex marriages. Talk about unfinished business!

Pandora’s Box

This has caused fury in those states,. The unwed gay couples want the same benefits as legally wed gay couples. Anthony M. Kennedy’s majority opinion in U.S. v. Windsor  extolls the central role of states in defining marriage . It would have been so much easier if the U.S. Supreme Court had extended benefits to all the states.  State by state, lawsuits have ensued all over the U.S. with equality lawyers such as the one that Edie Windsor employed or if you’re lucky, the famous team of David Boies and Ted Olsen who argued away Proposition 8 in California.

Chaos erupts because the laws change. I spoke to a lesbian couple whose marriage was recorded in The New York Times.  They married in Utah when it was legal, only to find there is now a stay on gay marriage in that state.  In Indiana, a conservative state controlled by Republicans, lawmakers pushed forward a constitutional amendment; in the end, the measure was changed, removing language some supporters considered essential.  This will probably result in delaying a statewide vote on marriage for at least two years. A federal judge in Kentucky last week ruled that his state must recognize same-sex marriage from other states.  

Gay couples have sued to overturn Colorado’s same-sex ban in state court.  Oregon has turned against its own marriage ban. Pennsylvania clerks were warned not to marry gay couples  In Pennsylvania, Governor Tom Corbett’s administration have urged a state judge ban on gay marriage by throwing out a lawsuit brought by more than twenty-four couples to challenge its constitutionality. Bruce Hanes, an elected country clerk in Pa. , disobeyed the state law when he decided to grant 174 licenses between the time when Windsor won her case last June and the state court’s order in September.  Virginia overturned the state ban as an infringement of states’ rights and vowed to take the issue to the Supreme Court.

A Solution in the Supreme Court

Maybe it would be simpler if the U.S. Supreme Court issued a uniform decree for all the states. What do you think?