It is 6:30am PST on Monday June 24. Today, again, we are waiting with bated breath for the decisions from SCOTUS (“Supreme Court Of The United States,” for the uninitiated) on the Windsor and Perry cases. They may be announced today at 7am PST (10am Eastern). Or they may be announced later this week on Thursday or another date added by the court.
Here is how I’m watching:
I have one browser window open to http://www.scotusblog.com/. It is a live up to the second blog posted from the gallery of the Supreme Court on the decisions as they are announced.
I have another browser window open to http://www.supremecourt.gov/. Within seconds of the blog announcing an opinion is being released today I can hit reload and a link to an electronic version of the decision will be posted there.
Here is the blog post I wrote last Thursday about how it feels to wait for this: https://tobyshome.wordpress.com/2013/06/20/supreme-court-ruling-on-marriage-it-could-be-today/
Enjoy the excitement and watch with me!!!
- Supreme Court Ruling on Marriage – It Could Be Today (tobyshome.wordpress.com)
This morning at 6:30am Pacific time we might find out the SCOTUS rulings on DOMA (Windsor v. ) and Prop 8 (Perry v.) … or not. I just woke up from a dream that I overslept, and when I’d awoken everyone else knew. I walked out into the street and tried to tell from the parades in the street what the ruling was. They weren’t celebratory. They weren’t devastated. They were hopeful. And that’s how I realized (in the dream) that all we knew at 6:30am was that we would find out that day. But we might really know the answer at 6:30am.
It’s 4:15. My dream woke me up at 3:45am and I finally realized only blogging about the marriage cases would get me back to sleep. Waiting for these rulings is not doing wonders for my sleep. Honestly, neither is the fact that I had a job interview yesterday, my house is going on the market this week, and I have to respond to some questions about my 2011 taxes in the next 7 days. There’s other stuff too. Kid’s health insurance issues. The usual stuff people have to deal with in life. I guess that’s the point, isn’t it? All of us have to deal with supporting our families, surviving the housing crisis, paying taxes, getting health care for our kids. But only those of us with same-sex spouses have to ALSO worry about whether our marriages will be validated under state and/or federal law, which, by the way, also affects our jobs, housing, taxes, and kids’ health care, among other things.
It’s been a long ten years.
On July 19, 2003 I married my wife. Beautiful ceremony. You should have been there. But we only got a few rights under California Registered Domestic Partnership. That pissed me off enough to get active. I hadn’t been that active before, not in marriage equality. Not until I fell in love with the woman of my dreams and realized we were getting the short end of the stick compared to if, say, I had fallen in love with and married the man of my dreams. I’m bisexual, it could have happened. But it didn’t. The person of my dreams was a woman. So everything was that much harder.
The Defense of Marriage Act (DOMA) had been passed by Congress in 1996, keeping the US government or other states from being required to recognize any same-sex marriage that a state might allow. Not too long after our wedding Massachusetts became the first state to allow same-sex marriage. I’m from Boston. Unfortunately my wife was not about to move to Massachusetts. Something about shoveling snow. It’s not just that you can’t “take California out of the girl.” You really can’t take the girl out of California.
Fast forward 10 years. The California legislature had passed marriage bills several times only to have them vetoed by the governor. The California supreme court had ruled for marriage equality, thousands of couples got legally married (including my wife and me, on our 5 year anniversary), and then the voters passed Proposition 8 which forbid any more marriages while leaving those that already occurred legally intact. Not that our neighbors believed that. They all insisted that since Prop 8 had passed we weren’t really married. Not the law, but definitely the perception of many of our neighbors.
You can see where I’m going with this. Not only are Nine Very Important People about to decide whether the Federal Government has to treat my family as a real family, they are also about to decide whether the rest of California will believe our marriage really exists. And more importantly whether other same-sex couples will be allowed to marry legally in California. I really like going to weddings, and this could be a busy summer for weddings. Or not.
The possible outcomes are many. You can read more about them here: http://www.scotusblog.com/case-files/cases/hollingsworth-v-perry/ and http://www.scotusblog.com/case-files/cases/windsor-v-united-states-2/
It’s after 5:30am. The sun is up, a little. In less than an hour the Supreme Court may announce that DOMA is unconstitutional and the Federal Government has to recognize my valid state marriage. It may announce that California isn’t allowed to grant the right to marry and then take it away on the discriminatory basis of a person’s sexual orientation or gender. It may very well say that they aren’t in the business of deciding these things and dismiss based on standing or as “improvidently granted.” If a decision comes today I will be at the Sacramento news conference at the LGBT Center and the rally on the on the west steps of the Capitol at 6pm: https://www.facebook.com/events/598575030160877/
Or it may not announce today. The Supreme Court may stay silent another day. And then we will wait until next Monday 6/24, or next Thursday 6/27. In which case I will go work on my house some more, and deal with the taxes, and spend time with my family… wondering if the decision will bring joy or tears. Hopefully I’ll be able to get some sleep.
I could have written a lot about the court, the precedents, and the possible legal outcomes. I’ve done so before. I will do so again. But when these cases wake me up in the middle of the night they come down to family, and being treated fairly instead of feeling bullied by the law, and whether today will bring joy or tears, parades of devastation or celebration … or possibly just more confusion.
- No Prop 8/DOMA Supreme Court Decisions–Watch Continues on Thursday (blogs.kqed.org)
- How can same-sex marriage not be gender-based classification?
- Why LGBT groups prefer DOMA be held Sexual Orientation (not Gender) Discrimination
p.s. It’s 7:18am Pacific… the court announced 3 opinions. None are the marriage cases. No more decisions today. It’s time to go get some sleep… or drink a lot of caffeine and get busy with my day… I’m not sure which.
In my first legal blog post “How can same-sex marriage not be gender-based classification?” I explained why I believe the should hold that DOMA is gender-based discrimination (rather than discrimination on the basis of ) and therefore unconstitutional. If you made it to the end of that article (I know some of you lay-persons gave up on the legalese and nodded off) you will have seen that I promised to continue this discussion by addressing why LGBT groups don’t want lawyers and judges to use the gender-based classification argument in challenging DOMA.
One of the great advantages, and also the great tragedies, of graduating from law school is that I gained the ability to really and truly argue two opposing sides of the same argument. Ok, maybe some of you were on the high school debate team and got the same ability without accumulating mounds of student loan debt. I wasn’t on a high school debate team. I’ve always been very opinionated, and could only argue MY side of an argument. I’m still opinionated, but if it’s logical and can be supported by the facts and the law, I can argue the other side.
MY side of the argument, let’s be clear, is that the Supreme Court should hold that DOMA is gender-based discrimination. It’s logical. It’s winnable. It’s supported by existing precedent.
But very smart and ethical people in the LGBT community, even some of the people who I used in the bedtime story about the four bisexual couples in my other blog on the subject, feel very strongly that Marriage Equality should be fought and won as discrimination on the basis of sexual-orientation. My paper argues specifically for sex discrimination as a winning argument against DOMA and other marriage bans, rather than a general all purpose argument against all anti-gay laws.
My argument has a BIG flaw that I will freely admit: it does NOTHING to help pass protections like ENDA and address other discrimination that truly is discrimination ONLY on the basis of sexual orientation. Such as: “you are gay, so you are fired.” Here is why:
As of today, April 2013, the US Supreme Court has not decided whether discrimination on the basis of sexual orientation should get ANY kind of heightened scrutiny. Level of scrutiny is about how closely the court looks at the law in deciding if it is constitutional.
All laws discriminate. If you are poor, for instance, you pay lower taxes than if you are rich. That is a because of federal law that discriminates on the basis of wealth. Wealth is a “non-protected status” (as opposed to race, which is “suspect” and gender which is “quasi-suspect”). When a law discriminates against someone on the basis of a non-protected status it is analyzed under “rational basis scrutiny“. Under rational basis, a law only has to be rationally related to a legitimate governmental purpose in order to be constitutional.
What usually fails the rational basis test? Animus. In City of Cleburne v. Cleburne Living Center the Supreme Court held that a law that discriminated against persons on the basis of their membership in a class of persons based on developmental disability, a non-protected status, was nonetheless unconstitutional because it was based solely on irrational prejudice against the “mentally retarded” (an offensive term but the one in use at the time). The Supreme Court made a similar ruling in Romer v. Evans, holding that the sole purpose of Colorado’s Amendment 2 was irrational prejudice against gays and lesbians (and bisexuals, but the court didn’t include us in the ruling, even though the law did include us in the discrimination).
So far the Supreme Court has never decided that discrimination on the basis of sexual orientation requires “heightened scrutiny” or that lesbians, gays, and bisexuals (LGB) are a “suspect” or “quasi-suspect class“. The hope is that the marriage cases will be the time for that to change.
There is hope for the sexual orientation argument in the trend in state supreme court cases towards defining LGB people as a suspect class, or at least applying heightened scrutiny to discrimination against them in spite of not being a traditionally suspect class such as race. A broad reading of Romer shows the Colorado Supreme Court held sexual orientation must be subject to strict scrutiny under the equal protection clause, a test the amendment failed. In Evans v. Romer (the state case that became Romer v. Evans when taken to the US Supreme Court) the Colorado Supreme Court held state constitutional amendment to remove all protections for lesbian, gay, and bisexual people must be subject to strict scrutiny.
Although the U.S. Supreme Court affirmed the judgment in Romer under rational basis, it never specifically disaffirmed the applicability of strict scrutiny, saying the amendment “fails, indeed defies, even this conventional inquiry,” referring to the easiest test, that of rational basis. This implied, to me and some other scholars, that Amendment 2 might have been decided under a higher level of scrutiny, but the court didn’t have to go as far as setting a higher level of scrutiny because the law failed even under the lowest level. Additionally, the US Attorney General recently stated “that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny” than mere rational basis.
MARRIAGE IS ALL ABOUT US; ORIENTATION IS ALL ABOUT ME –
My argument for holding DOMA as sex discrimination is based on my understanding, as a bisexual, that I am not being discriminated against based on my orientation. There are no check boxes on the marriage application for “gay,” “bisexual,” or “straight.” I could legally marry a man. It does not demean my existence as a bisexual person to marry a man. Marriage, however, is not about just ME. It is about US. My wife and I. Two women in love. My gender classification, in relation to her gender classification, is where the discrimination lies.
But that is not the end of the story. Arguing for the other side of the debate team: it DOES demean me as a bisexual to not give me the choice to legally marry a man or a woman. “The essence of the right to marry is freedom to join in marriage with the person of one’s choice.” (Perez) And so DOMA IS discrimination on the basis of my sexual orientation. It is even more clearly discrimination on the basis of sexual orientation to people who ONLY want to marry a person of the same sex: gay men and lesbian women (the only people who the courts or the marriage equality organizations ever talk about, by the way). But DOMA is also demeaning to bisexual, transgender, and intersex people because it takes away our freedom of choice. It is discriminatory on the basis of sex AND gender AND orientation.
THE RISK –
The problem with arguing sexual orientation discrimination against DOMA in the Windsor case currently before the Court is that we still have no idea what level of scrutiny the US Supreme Court will settle on, and up to this point it has only been willing to decide sexual orientation cases under rational basis. The same risk exists in any state Supreme Court that has not yet decided what level of scrutiny to apply.
The answer of level of scrutiny for sex discrimination, however, is well settled law and combined with the determination in Loving that statutes punishing a person of one race for marrying a person of a different race are in fact race discrimination, it follows that punishing a person of one sex for marrying a person of the same sex is in fact sex discrimination. Therefore the question of “what is the standard of review” for statutes burdening marriage between members of the same sex should be easy to answer. The standard of review in Federal Court is intermediate scrutiny based on sex discrimination.
Even if we lose the gamble shooting for a higher level of scrutiny, there is the fallback argument that a statute fails even rational basis because it is not rationally related to any legitimate government end and thus fails to meet even the rational basis test, because the real interest served by the statute is animus against LGBT people. All laws not determined to be infringing on a fundamental right or classifying based on a suspect or quasi-suspect group are subject to rational basis review. Some laws are so irrational or absurd on their face it is clear they can be motivated by nothing other than animus or prejudice against a group. The danger of relying on a rational basis test is that it is too easy to find some rational basis supporting a statute. In the case of marriage laws there are factors other than animus, such as sincerely held beliefs that procreation is the purpose of marriage, and only one factor need be found a rationally related legitimate interest to allow the law to stand.
However, if the Court DOES decide that LGBT people are a group that has been subjected to a history of invidious discrimination and therefore laws that classify on the basis of sexual orientation should be subjected to heightened (intermediate or strict) scrutiny, that is a VERY BIG WIN. Because the next time a case comes up where a person is discriminated against on the basis of sexual orientation (i.e. “you are gay so you are fired”) the previously decided case will be precedent supporting finding the act or statute unlawful.
So what’s the best thing to do? Hope for both. Hope the court finds gender-based discrimination (because it is winnable) and orientation-based discrimination (because it is a bigger win for LGBT people), and wait and see what happens.
What do I think the court will decide?
Seriously? This is not a fortune telling column. I have no idea.
For more on this topic, read my paper: “Bisexual Marriage”: A Sex Discrimination Argument for Heightened Scrutiny of Same-Sex Marriage Bans …particularly if you want to find out more details about how the Loving v. Virginia interracial marriage decision addresses the fact that DOMA affects men and women equally and how Justice Scalia’s dissent in Lawrence v. Texas made the case for arguing a sex discrimination claim against DOMA and other marriage bans (topics on which I might write additional blog posts).
 In Re Marriage Cases, 183 P.3d at 440 (California Supreme Court held discrimination on the basis of sexual orientation subject to strict scrutiny when invalidating law disallowing same-sex marriage as violating equal protection under state constitution); Evans v. Romer, 854 P.2d 1270 (Colo. 1993) (Colorado Supreme Court held state constitutional amendment to remove all protections for LGB people subject to strict scrutiny).
 Louis Michael Seidman, Romer’s Radicalism: The Unexpected Revival of Warren Court Activism, 1996 Sup. Ct. Rev. 67 (1996).
 Although the U.S. Supreme Court affirmed the judgment on different rationale than that of the state supreme court, it never specifically disaffirmed the applicability of strict scrutiny, saying the amendment “fails, indeed defies, even this conventional inquiry,” referring to the easiest test, that of rational basis. Romer, 517 U.S. at 632 (emphasis added).
 Statement of the Attorney General on Litigation Involving the Defense of Marriage Act, Department of Justice, Office of Public Affairs, (February 23, 2011) http://www.justice.gov/opa/pr/2011/February/11-ag-222.html
 United States v. Virginia, 518 U.S. at 519.
 Romer 517 U.S. at 631.
 Romer, 517 U.S. at 632; Cleburne 473 U.S. at 448-49.
 For instance see Standhardt v. Superior Court of Ariz., 206 Ariz. 276, 287 (Ariz. Ct. App. 2003) (holding “the reasonableness of the link between opposite-sex marriage, procreation, and child-rearing.”)
- How can same-sex marriage not be gender-based classification? (tobyshome.wordpress.com)
Justice Kennedy… you know, that Justice who is known to be the swing vote on whose shoulders seems to rest most social justice issues that make it to the Supreme Court? Well, he asked a very pertinent question in the Perry oral arguments (on page 13):
JUSTICE KENNEDY: “Do you believe this can be treated as a gender-based classification?…It’s a difficult question that I’ve been trying to wrestle with it.”
It’s a not-so-difficult but very important question I’ve been trying to wrestle with, too. Mostly I’ve been wrestling to get anyone to listen to my arguments.
In a legal paper I wrote I stated that gender-based discrimination is the best way to argue against DOMA & Prop 8 since 1) all Equal Protection claims must be decided under either heightened scrutiny or rational basis, 2) gender-based classifications already receive heightened scrutiny, and 3) banning same-sex marriage is gender-based discrimination which is unconstitutional when decided under heightened scrutiny. But I argued my case by comparing bisexual people in same-sex and different-sex marriages. Apparently this confused all the gay and straight people.
To explain the legal argument in a little bit more depth:
1) Equal Protection claims are decided under either heightened (strict or intermediate) scrutiny or rational basis. Decisions based on heightened scrutiny are most likely to find a law unconstitutional. Decisions under rational basis are least likely find a law unconstitutional.
2) Gender-based classifications already receive intermediate scrutiny, unlike sexual-orientation classifications which are either undecided or rational basis depending on who you talk to. No decision needs to be made about what level of scrutiny to apply if decided as gender-based discrimination, and under intermediate scrutiny DOMA and Prop 8 are more likely to be found unconstitutional than under rational basis.
3) By comparing bisexual people in same-sex marriages to bisexuals in different-sex marriages it is easy to show that DOMA or Prop 8 “treats persons in similar situations differently on the basis of sex,” not on the basis of sexual orientation. Treating people in similar situations differently on the basis of a classification is the legal measure of violating “equal protection” of the laws.
Ok, so maybe it IS a difficult question to wrestle with. There are a few things to explain and a few connections to make. But it doesn’t seem so difficult to answer. The answer, by the way, is YES. Defining civil marriage in the CA or US Constitution as “one man and one woman” is gender-based classification. And Justice Kennedy wouldn’t have asked the question if he didn’t think that the answer might be “yes”.
So what did Cooper, the attorney for the Prop 8 proponents, have to say in response to Kennedy’s question?
MR. COOPER: “We do not think it is properly viewed as a gender-based classification. Virtually every appellate court, State and Federal, with one exception, Hawaii, in a superseded opinion, has agreed that it is not a gender-based classification, but I guess it is gender-based in the sense that marriage itself is a gendered institution, a gendered term, and so in the same way that fatherhood is gendered [or] motherhood is gendered, it’s gendered in that sense.”
So… is Cooper saying it is gender-based or it isn’t?
First, the Hawaii case Cooper cites is Baehr. Baehr was the first successful marriage case and the only case in which a state supreme court found an anti-same-sex marriage statute unconstitutional on the basis of sex discrimination. Baehr is the reason Congress created DOMA.”Oh no! The gays are marrying! Run for your lives!”
It’s a good thing Cooper said “virtually” or I would have been screaming out loud at him in the Starbucks in which I listened to the oral arguments… more than I already was. In Iowa’s Varnum case the District Court also held on the basis of sex discrimination, but the Iowa state supreme court rejected that argument and found the statute unconstitutional on the basis of sexual orientation. Ok, so in Varnum it wasn’t an appellate court, it was a District Court, I know. But still… Any excuse to rail at Cooper a little bit and make a fool of myself in Starbucks.
So Cooper admits marriage is gendered, and therefore Prop 8 is gendered, but says virtually every court has agreed that disallowing same-sex marriage is not gender-based classification. Every court, that is, except the highest court in the land – the “one ring to rule them all” – the court with the right to overrule all the others: The Supreme Court. Deciding Perry (“the Prop 8 case”) and Windsor (“the DOMA case”) as I write this. …I really hope one of them reads this. If there is a God, someone will forward this blog to one of Kennedy’s clerks, and that clerk will be someone who understands what a bisexual is, and therefore why this argument makes sense.
The argument which starts with a bedtime story…
THE STORY –
Once upon a time there were four couples, similar in every way but one. They were all raising children, but none of the children were the biological offspring of both parents. They all had the same sexual-orientation. They all lived in and were legally married in California. Two of the couples consisted of spouses of different sexes, and those couples were treated as married by the federal government. The other two couples consisted of spouses of the same sex, and those couples were denied the rights and responsibilities of marriage by the federal government under the Defense of Marriage Act (DOMA).
Chris and Ted are both male and both bisexual. They have one child, a son who is the biological offspring of Ted via a gestational surrogate and a separate egg donor. Both fathers were put on their son’s birth certificate at the hospital. The two were legally married in California prior to Prop 8 being passed. Chris and Ted have no federal marriage rights under DOMA.
Toby and Jean are both female and both bisexual. They have one child, a daughter who is the biological offspring of Toby, via a known donor. Jean adopted their daughter as soon as California’s RDP stepparent adoption laws went into effect. The couple was married in California on July 19, 2008. Toby and Jean have no federal marriage rights.
Bryan and Kathleen are a male bisexual and a female bisexual. They were married on Dec 31st 2002. They received a full year of federal tax benefits for the one day in 2002 that they were married. They are raising Kathleen’s niece and nephew as kinship guardians. They are not interested in procreating together. Both are politically active in the bisexual community. Bryan and Kathleen are able to take advantage of over 1,100 federal benefits of their California marriage.
Thomas and Gunilla are a male bisexual and a female bisexual, married in the state of California. They are raising two teenage daughters, both the biological offspring of Gunilla from a prior marriage. They are not interested in procreating together. Both are highly visible bisexual activists. They have been discriminated against as bisexuals in custody determinations. In spite of their very visible sexual orientation they are able to get full federal marriage rights.
THE ARGUMENT –
“Bisexual marriage” is perfect for advancing a sex discrimination argument because it allows us to compare persons of identical sexual orientation and see that the marriage laws are unconstitutional because they treat persons in similar situations differently on the basis of sex. This allows the argument to focus on sex discrimination rather than sexual orientation discrimination.
There are three primary ways the courts have addressed the marriage issue: strict scrutiny under a substantive due process fundamental right, some form of heightened scrutiny under equal protection based on sexual orientation, and the rational basis test. The due process fundamental right to marriage argument is based on the tenet that “the right to marry means little if it does not include the right to marry the person of one’s choice.” Some courts, however, have held that there is no fundamental right to “gay marriage,” which they see as a completely different institution from “marriage”. Fundamental rights tend to be found if grounded in history, and although there is historical support for a right to marriage, there is no such history for same-sex marriage. Equal protection, on the other hand, tends to allow for rights which have historically been denied, and is therefore a more winnable claim. The problem with arguing equal protection based on sexual orientation is that the Supreme Court has yet to settle on a level of scrutiny. So far the Supreme Court has only been willing to apply rational basis to anti-gay laws. The problem with relying on rational basis is that it is a test that is so easy to pass that the state interest must be something as irrational as “animus” in order to fail. It’s not worth the risk.
Arguing equal protection based on sex discrimination is best because our jurisprudence has already clearly established that if a law treats persons in similar situations differently on the basis of sex, that law cannot pass constitutional muster unless it passes intermediate scrutiny. Sex is a quasi-suspect classification under existing law. Stripping away the differences in sexual orientation and focusing on DOMA (or Prop 8, or any other “mini-DOMA”) strengthens the sex discrimination argument. This allows the Court to avoid deciding whether sexual orientation is suspect and focus simply on whether the law treats persons in similar situations differently on the basis of sex, and whether that classification is substantially related to an important government interest. This is an argument that is more inclusive of bisexuals and also much more likely to result in a win for marriage equality.
For more on this topic, read my paper: “Bisexual Marriage”: A Sex Discrimination Argument for Heightened Scrutiny of Same-Sex Marriage Bans …particularly if you want to find out more details about how the Loving v. Virginia interracial marriage decision addresses the fact that DOMA affects men and women equally, why LGBT groups don’t want us to use the gender-based classification argument, and how Justice Scalia’s dissent in Lawrence v. Texas made the case for arguing a sex discrimination claim against DOMA and other marriage bans (topics on which I might write additional blog posts).
 “[T]he essence of the right to marry is freedom to join in marriage with the person of one’s choice”. Perez v. Sharp, 198 P.2d 17, 21 (Cal. 1948). See also Goodridge v. Dept of Public Health, 798 N.E.2d 941, 958 (Mass. 2003); Loving v. Virginia, 388 U.S. 1, 12 (1967).
 “The Due Process Clause looks backward and considers relevant whether an existing or time-honored convention… is violated by the practice in question.” Justin Reinheimer, Same-Sex Marriage Through the Equal Protection Clause: A Gender-Conscious Analysis, 21 Berkeley J. Gender L. & Just. 213, 227-228 (2006).
 “However, the Equal Protection Clause looks forward, serving to invalidate practices that were [once] widespread… The two clauses there operate along different tracks … [the Equal Protection Clause] does not safeguard traditions; it protects against traditions, however long-standing and deeply rooted.” Id.
 “[N]either [Iowa] nor the United States Supreme Court has decided which level of scrutiny applies to legislative classifications based on sexual orientation.” Varnum, 763 N.W.2d at 885-886.
 See City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 441 (1985). See also Romer v. Evans, 517 U.S. 620 (1996).
 United States v. Virginia, 518 U.S. 515, 519 (1996).
 The government interests argued in creating DOMA included: (1) advancing the interests of defending and nurturing the institution of traditional heterosexual marriage, (2) defending traditional notions of morality, (3) protecting state sovereignty and democratic self governance, and (4) preserving scarce government resources. House Report on DOMA, 1 U.S.C. § 7, H.R. Rep. No.104-664. H.R. 3396; cited in Complaint in Gill v. Office of Pers. Mgmt., March 3, 2009.