"United States v. Windsor" lawsuit succeeds in having part of
DOMA law ruled unconstitutional by the U.S. Supreme Court
Human Rights Campaign issues goal.
Some reactions to the U.S. Supreme Court's ruling
on the federal Defense of Marriage Act.
The acronym "SSM" refers to "same-sex marriage."
The acronym "DOMA" refers to the Defense of Marriage Act
"SCOTUS" refers to the Supreme Court of the United States
The Human Rights Campaign (HRC) goal and its feasibility:
The HRC is one of the largest national organizations promoting equal rights to the lesbian, gay, bisexual, transgender and transsexual community (LGBT). Chad Griffin, its president, announced in the Utah Pride Center in Salt Lake City, UT that his organization's goal is:
"... to legalize same-sex marriage nationwide within five years."
He also said:
"We won't stop fighting until every barrier falls, until full equality reaches every single person in every corner of this great country." 11
Mid-2018 might be an impossible goal because so many states have not only passed laws to prohibit same-sex marriage, but have also amended their constitutions to prevent their legislatures and courts from acting to legalize SSM. It can take up to six years to amend a state constitution so that the Legislature becomes free to amend the state's marriage law and allow SSMs.
As of mid-2013,:
- There are 51 political jurisdictions in the U.S.: 50 states and the District of Columbia.
- 29 states have modified their constitution to prohibit SSM. They are mostly in the South and Midwest.
- 14 jurisdictions, including California, currently allow SSM: 13 states and the District of Columbia.
- About 30% of the U.S. population resides in a jurisdiction that allows SSM.
That would seem to leave 8 states, including Hawaii, Illinois, Michigan, and New Jersey, which could make SSMs possible through an act of its Legislature. But many, if not most, of these states lack at least one of the three prerequisites normally required to amend their marriage act:
- Democratic control of the state House,
- Democratic control of the state Senate, and
- a Democratic governor.
New York is the only state that has ever been able to legalize SSM while one of legislative bodies was under Republican control.
In the latter half of the 20th century, the situation in the U.S. with respect to interracial marriage resembled that of same-sex marriage today. During the early 1960's, 41 states had anti-miscegenation laws that prohibited interracial marriage. By 1967, 16 states still prohibited interracial marriage. Also in 1967, the U.S. Supreme Court acted to declare all such laws unconstitutional by ruling in the famous case Loving v. Virginia.
One unknown factor that would have a profound effect on achieving the HRC goal is the future makeup of the U.S. Supreme Court. It is generally acknowledged that every Justice appointed to the court to replace a Justice who has retired or died over the past two decades has been more conservative than their predecessor. If this pattern were reversed, then the HRC goal could come much sooner.
Reactions to the ruling:
- President Barack Obama praised the ruling, referring to the DOMA law as it was written as:
"... discrimination enshrined in law. It treated loving, committed gay and lesbian couples as a separate and lesser class of people. ... The Supreme Court has righted that wrong, and our country is better off for it." 1
He also said:
"We are a people who declared that we are all created equal — and the love we commit to one another must be equal as well." 1
- According to NBC News:
"The two rulings, released minutes apart, were greeted by jubilant cheers outside the Supreme Court, where crowds of gay-marriage supporters waved rainbow banners and flags bearing symbols of equality, and at City Hall in San Francisco." 2
- Brian Brown of the National Organization for Marriage -- the main national group opposing marriage for same-sex couples -- was asked what he thought about the dissent in the DOMA case by Justice Scalia. Scalia predicte that the ruling would pave the way for state laws banning SSM to be struck down. Brown responded:
"Well, I don't think that that is inevitable. What Justice Scalia is pointing to is the absolute travesty of Kennedy's decision in the DOMA case, which really is incoherent. He doesn't even lay out the basis of what his legal reasoning is." 10
- Chad Griffen of the Human Rights Campaign -- one of the main national groups promoting marriage equality -- said:
"American values really did win. ... Now that DOMA has been erased from the books thanks to that historic decision, [for] those [same-sex] couples across the country who are legally married, their relationships and their families will be recognized as such."
"We'll fight this battle on all fronts. ... We'll fight at the ballot box where there are opportunities, we'll fight at the state legislature, and ultimately this will come back to our federal courts." 10
- Nancy Pelosi referred to the famous quote by Martin Luther King, Jr.:
"Today, the Supreme Court bent the arc of history once again toward justice, discarding the defenseless DOMA into the dustbin of history. 9
- Mike Huckabee sent an email titled: "5 People In Robes Are Not Bigger Than God." The five people to whom he is referring are the five Justices on the Supreme Court of the United States (SCOTUS) who voted to legalize same-sex marriage in California and to repeal the DOMA bill. His email said:
"My immediate thoughts on the SCOTUS ruling that determined that same sex marriage is okay: 'Jesus wept'. Five people in robes said they are bigger than the voters of California and Congress combined. And bigger than God. May He forgive us all." 3
Bishop Edward Slattery, of the Roman Catholic Diocese of Tulsa, OK said:
"Marriage is not a societal construct, but is rather an institution given by God and written in the laws of nature, established at the creation of the world. With this in mind, no government power has the authority or ability to redefine the essence of marriage."
- The Baptist General Convention of Oklahoma said:
"We take heart knowing that no government body can redefine what God Himself created in marriage as one man and one woman." 1
- Sean Raftery, writing for PolicyMic, thoughtfully described reactions to the Court ruling:
"... the country is extraordinarily polarized on the issue, and many statements of disapproval regarding the ruling have been made. ... Those who don’t agree with the court are not doing so on any sort of constitutional basis. They’re doing so due to their own personal beliefs, and the idea that those beliefs should be reflected in the law. Even as it decided that the Defense of Marriage Act was partially unconstitutional, United States v. Windsor proves that nobody cares about enforcing the Constitution anymore.
The public, when expressing its opinion, made few if any comments about whether or not the law was a violation of the Fourteenth Amendment. Opinion was generally divided between the gay community and its allies, who wanted equal recognition, and the pro-DOMA camp, which placed value on religious interpretations of marriage.
Even while reading Justice Kennedy’s opinion, it comes across less as a legal argument, with a clear listing of what amendments or articles had been violated, and more as a statement of five justices believing that equal recognition of marriage is 'right.' The Supreme Court is not meant to be an arbiter of morality, it is meant to determine whether or not the law being challenged by the case they are hearing is constitutional or not. Section 3 of DOMA, which defined marriage as between a man and a woman, was fairly clearly in violation of the Fourteenth Amendment, and should have been universally seen as such by the justices. But reading Kennedy’s remarks, the lack of constitutionality seemed to have taken a back seat to the idea that Section 3 was 'wrong'." 4
- Dan Cathy, president of the Chick fil-A fast food chain has made many controversial statements against same-sex marriage in the past. This time, he tweeted:
"Sad day for our nation; founding fathers would be ashamed of our gen. to abandon wisdom of the ages re: cornerstone of strong societies." 5
Bill Maher on his HBO program Real Time suggested that Cathy must be able to channel the founding fathers who have been dead for centuries, because they have never been known to have expressed an opinion about lesbians, gays, homosexuals, bisexuals, or same-sex marriage. In fact, the term "homosexual" was only coined in the late 19th century.
- Keegan O'Brien, editor of The Rainbow Times -- a pro-gay equality group -- wrote:
"Wednesday June 26th 2013 will be a day that’s remembered in lesbian, gay, bisexual, transgender, and queer history, and our community’s long and turbulent struggle for full equality. ... "
"... when I first heard the news of the Supreme Courts rulings, first on DOMA then Prop 8, and I instantly broke into tears. I was overtaken by an overwhelming feeling of joy as Facebook statuses and news updates celebrating the victory continued to pour across my computer screen. On some level, I was in shock, I almost couldn’t believe it. Even in 2013, being gay in this society isn’t easy. The daily emotional and psychological trauma we endure for living outside the sexual and gender norms of a deeply homophobic society takes its toll on all of us; from higher rates of family rejection, homelessness, suicide, mental health problems, and substance abuse to everyday feelings of depression, insecurity, and alienation. So, to have the most powerful court in the country declare—even if it’s only partially—that we are human beings deserving of equal treatment under the law, is a pretty profound experience. Victories like this not only provide very real and important material improvements to our lives, especially for working class queer couples, while also taking us a step close toward equality and liberation, they also restore in oppressed people a basic sense of human dignity, self-worth, and confidence that oppression, discrimination, and violence continuously rip away from us. In doing so, they imbue us with the sense of confidence and pride required to hold our heads up high and keep fighting for more. For anyone genuinely concerned with justice and equality for LGBTQ people, this week’s historic ruling is a victory to celebrate. ..."
"... our dream of full equality is far from achieved. We cannot consider ourselves free and equal as long as 37 states maintain constitutional amendments banning same-sex marriage, 29 states lack any employment protection for sexual orientation and 37 states for gender identity and expression, there persists a shameful and obscene epidemic of queer youth homelessness and suicide, queer youth lack access to safe schools and relevant curriculum, LGBTQ people lack access to safe, accepting, and accessible healthcare and housing, too many queer people of color remain locked inside prisons and detention centers because they’ve been victimized by our country’s racially discriminatory and unfair criminal justice and immigration systems, or while LGBTQ people in Afghanistan, Pakistan, and Palestine continue to live under the bombs and violence of American militarism. While full LGBTQ equality and social justice includes marriage equality, it also extends far beyond on it, and our vision of freedom must encompass the struggles of LGBTQ people everywhere, not just those of us within America’s borders." 6
Curiously, O'Brien does not mention the predominately Muslim countries of the world where being gay or lesbian can get a person arrested, charged, tried, and executed. Estimates in the media range from 6 to 10 countries who consider same-gender sexual behavior as a capital crime.
- David Silverman, President of American Atheists said:
"Another victory for church and state separation as DOMA falls. DOMA - brought to you by theocrats who want you to obey their rules, even if you don't believe in their god." 7
- Two spokespeople for the American Family Association weighed into the battle:
- Fred Jackson warned that: "God’s judgment will be upon us."
- Sandy Rios said: "It’s a big win for gay activists today. It’s not a good day for us. ... They kept shouting DOMA's dead, I thought that was pretty metaphorical, marriage is dead too, for the future of this country." 8
The fear that God is going to send some sort of natural disaster like an earthquake or hurricane to punish the U.S. for even a little step towards marriage equality is often believed and frequently stated by religious conservatives.
More reactions to the Court ruling in U.S. v. Windsor continues in the next essay.
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
- Mark Sherman, "Supreme Court rulings give boost to gay marriage," Associated Press, 2013-JUN-27, at: http://www.tulsaworld.com/
- Pete Williams & Erin McClam, "Supreme Court strikes down Defense of Marriage Act, paves way for gay marriage to resume in California," NBC News, 2013-JUN-26, at: http://nbcpolitics.nbcnews.com/
- Jessica Chasmar, "Mike Huckabee on Supreme Court gay marriage ruling: 'Jesus wept'," Washington Times, 2013-JUN-26, at: http://www.washingtontimes.com/
- Sean Raftery, "Supreme Court DOMA: The Real Lesson Of DOMA Reactions? Nobody Cares About the Constitution," PolicyMic, 2013-JUN-29, at: http://www.policymic.com
- Jaymi McCann, " 'Sad day for our nation; founding fathers would be ashamed': Chick-fil-A boss causes outrage AGAIN after tweeting disappointment over historic gay marriage ruling," Daily Mail (UK), 2013-JUN-29, at: http://www.dailymail.co.uk/
- Keegan O'Brien, "Defeating DOMA & Prop 8: We’ve Made History, but We’re Far From Finished," The Rainbow Times, 2013-JUL-04, at: http://www.therainbowtimesmass.com/
- "Dave Silverman," Facebook, 2013-JUN-26, at: https://www.facebook.com/
- Brian Tashman, "AFA: DOMA Decision Will Lead to God's Judgment, Death of Marriage," Right Wing Watch, 2013-JUN-26, at: http://www.rightwingwatch.org/
- Sharon McNary, "Prop 8 update: Gay marriage opponents ask California Supreme Court to deny licenses," KPCC, 2013-JUL-12, at: http://www.scpr.org/
- Matt Slegde, "National Organization For Marriage President Brian Brown: DOMA Decision 'Absolute Travesty'," The Huffington Post, 2013-JUN-30, at: http://www.huffingtonpost.com/
- Marjorie Cortez, "Same-sex marriage advocates make 5-year prediction," KSL, at: http://www.ksl.com/