Wednesday, June 26, 2013

A Post-DOMA Michigan Update

Amongst all of the eupohoria of the day a friend posted on Facebook that she was not going to wait for Michigan to get its act together. She was going to New York to get married. (Okay...her language was a little stronger, but that's the gist).

The rulings were in line with many predictions (including mine, below). DOMA was overturned, but the court took pains to overturn it as narrowly as possible. Prop 8 was overturned, in a roundabout procedural way which does not speak to any other marriage ban.

The court did not address the full faith and credit clause (at least a search of the 77 page opinion did not turn up that phrase).

In other words, a marriage in New York is still not a marriage in Michigan. Michigan will not recognize the marriage, and it will probably take a separate court ruling to even allow that married-in-New-York couple to get federal benefits if they reside in Michigan.

Confusing? Yes.

But I believe the court wanted to leave it confusing. They were afraid of a sweeping decision which would affext all 50 states. They found exactly the escape route they were looking for. They acknowledged Marriage Equality, but ruled as narrowly as possible. They did not rule all of DOMA was unconstitutional, only the one man, one woman provision. DOMA specifically says that states do not have to recognize same-sex marriages in other states.

The ruling is still exceptionally good news, as it opens a door to Marriage Equality everywhere. However, that door will have to be opened state-by-state. The Full Faith and Credit issue will have to be challenged.

The ruling is especially encouraging for Michigan.

There is a case in front of U.S. District Court Judge Bernard Friedman, brought by a Hazel Park couple, April DeBoer and Jayne Rowse who want joint custody of their two children. The case questions the constitutionality of Michigan's ban on same-sex marriages. Judge Friedman decided to wait until the two Supreme Court rulings to make his decision. This bodes well for that case.

April DeBoer, second from left, sits with her adopted daughter Ryanne, 3, left,
and Jayne Rowse, fourth from left, and her adopted sons
Jacob, 3, middle, and Nolan, 4, right, at their home in Hazel Park.

In addition, a majority of Michiganders now support Marriage Equality.

In other words, the stage is set for both political and legal remedies in our state. 

So to my Facebook friend, hang tough. Michigan could get Marriage Equality much quicker than any of us would have been able to guess 24 hours ago.

And for my local friends...The celebration is in Braun Court starting at 4:00 p.m.

Tuesday, June 25, 2013

To Marry, or Not to Marry, that is the Supreme Court's Question

We are awaiting two decisions on Marriage Equality from the Supreme Court. As I write this the court has finished for the day. So today is not the Day of Decision. We now know it will be tomorrow, Wednesday, June 26th.

As we reach the fever pitch around this single moment, I think its a good idea to reflect a bit.

A Short History of Marriage Equality

Evan Wolfson has done more for the Marriage Equality movement than anyone else. There certainly are earlier cases of people trying to get married and attempting to bring suits to gain access to the benefits of marriage. There are even a few cases of people who managed to hide their gender and get what they claim were valid marriage licenses.

However, the suits all failed, and the anomalies did nothing to move the civil rights of gays and lesbians along.

Evan saw the possibilities and began the Freedom to Marry organization in 2001. At the time, he was pretty much ignored by most LGBT activists who thought the more important battles were employment and housing protection. In fact, in my state of Michigan you can be fired for being gay. We are not an anomaly:

The first victory for Marriage Equality was the recognition of Civil Unions in Vermont in 2000. While many consider civil unions "marriage light" or another version of "separate but equal", to social conservatives the Vermont move was anathema.

In a grand irony, marriage equality became an issue because the Republicans made it one in 2004. While Republicans had made gains in the 2002 election, there was a big backlash against Bush and his war on Iraq. The Presidency, and both the House and Senate looked vulnerable. Marriage Equality was not a Democratic Party priority, however, the Republicans saw it as an opportunity to drive a wedge into the voting public and make the election about cultural issues. The plan was to get social conservatives out in big numbers to vote against gay marriage. The strategy worked in the short term. Bush was re-elected and Republicans made big wins across the nation.

But now, less than ten years later, the strategy is backfiring. Marriage Equality became the rallying cry of the gay and lesbian community, and our families, neighbors and friends rallied to our defense. The majority of Americans now believe in Marriage Equality, and some conservatives are acknowledging the issue is lost and are moving on to the next culture war.

(BTW, I  am using the term gay and lesbian instead of LGBT because this issue is not strictly a trans issue, though many trans activists remain important allies.)   

What Will Happen Tomorrow

I believe the court wants to stay in step with America, but does not want to step out in front. In other words, they will find a way to strike down DOMA and Prop 8, and do it as narrowly as possible.

I am not a big fan of Justice Robert's politics. However, he seems to want to leave a legacy of a Court that can make decisions based on the law, and is suspicious of too many cases having the same 5-4 votes. I believe we will see DOMA unequivocally shot down. However, they will give little or no direction as to what that means. In other words, it opens the door for other suits to gain access to Federal Benefits, and implementation of the Full Faith and Credit clause of the Constitution (this is the clause which generally lets one state accept another state's marriages. For instance, if a 15 year old is legally married, and moves to a state where you must be 16 to marry, the marriage is still valid).

Similarly, I believe Prop 8 will go down, but likely on procedural issues so that it does not set a precedent for other states or suits.

For those hoping for full Marriage Equality now, this will seem a disappointment. However, the fact that the door will open a bit, allowing for further gains down the road is huge. The reason I even reviewed the history of Marriage Equality is to show that what may seem like a baby step, and to many people a disappointing baby step, is in fact, the beginning of the end for the bias in our marriage laws. In the long run, tomorrow could be a bigger beginning than all the states which currently allow Marriage Equality.

And then again, perhaps the conservatives on the court will win out, and DOMA will have the imprimatur of a Supreme Court victory. If that's the case, we must do what we have been doing for the past half century...Organize and Fight. There are rallies planned across the nation. Google Day of Decision to find out if there is one near you. Mine is the work of the Jim Toy Community Center and the Community Center Network. It will be held in Braun Court at 4:00 p.m. Braun Court is the home of the \aut\ BAR, Common Language Bookstore, Trillium Real Estate, and the Jim Toy Community Center. Check out the event facebook page at you are one of my far-flung readers, find one near you. We hope we are gathering to celebrate. But if we are not celebrating, we'll be fighting.