"In a spirit of openness, we explore how we are classified, stratified, ignored and singled out under the law because of our race, sex, gender, economic class, ability, sexual identity and the multitude of labels applied to us. . . . [W]e welcome all viewpoints and ideas that are expressed with respect and collegiality. . . . [W]e are a journal that promotes living discussion."
This blog is the brainchild of the Journal of Gender, Race & Justice at the University of Iowa College of Law. It is intended as a forum for people to discuss their personal views concerning topical issues. Posts reflect the opinions of the authors and not necessarily the Board or the Student Writers as a whole. We encourage well-rounded debates and discussions.
Brad Biren, Student Writer, The Journal of Gender, Race & Justice
Like most atheists, I seem to always get a smug glimmer of appreciation for public figures who extol the virtues of atheism by poking fun at dogmatic tradition. Last week, Ricky Gervais made headlines for both insulting a minority religion and lavishing praise on atheism. In many ways this modern version of religious dissention is not well-placed and in many ways requires a revisionist view of history.
Religion is to blame for many of the world’s woes, including war, famine, and many forms of discrimination against gay people. Yet, in reaction to the rise of well-organized and well-funded Christian movements, such as the Moral Majority, many atheists and fellow liberals, such as myself, have placed any and all blame for shortcomings in civil rights on religious fundamentalists. This includes Sharia law in Afghanistan, Evangelical doctrine in the United States, and Canon law in much of Europe. Mind you, it is easy to blame these religious groups for all of the foot-dragging and blatant ignorance when it comes to holding our society back, but it would require us to be ignorant of reality in order to come to that conclusion.
Here is my thesis: religion has done nearly as much to progress this country’s civil rights movement as it has to hold it back. For example, Dr. Martin Luther King, Jr., a minister, was instrumental in helping to bring about the Civil Rights Act. He consistently identified his religious upbringing as the source of his moral compass and determination to foster equality. Another example is King’s mentor, Mahatma Gandhi, a social revolutionary (and lawyer) who identified his dual Jane and Hindu upbringing as the inspiration for much of his will to change India.
Yet it was over 100 years before Martin Luther King that religion may have had the greatest impact on social change in this country. Many abolitionists and members of the Underground Railroad were Methodist and Lutheran ministers, rabbis, and priests, willing to put their lives on the line for social justice. Their belief in god, was their wellspring of progress.
During my brief time here in Iowa, I have met many religious figures that are proud supporters of my right to marry. For example, a devout Catholic hosted the rehearsal dinner for my wedding. Another example is the minister at the First Lutheran Church in Cedar Rapids, whose car proudly dons the Human Rights Campaign logo. Recently I began to work part-time at a synagogue in Iowa City. The rabbi there energetically supports my husband and me, and is constantly giving his blessing.
In conclusion, though much of the discriminatory rhetoric and bigotry in our government can be sourced directly to several orthodox religious groups, there are many if not more religious groups who support social progress. Therefore, although I will probably continue to enjoy watching proselytizing herds cringe at the sharp-tongued wit of atheist comedians, I must remember to restrain myself from stereotyping religious people with as broad a stroke as many are willing to paint my sexual orientation. Thus, I will work harder to show more gratitude to religious devotees of equality in the law.
Christine Boeckholt, Student Writer, The Journal of Gender, Race & Justice
There are some historical events that are so momentous, you always remember where you were when you found out about them. I’ll always remembering being on vacation at the Lake of the Ozarks when Princess Diana died; being in first period pre-calculus when Sean Vick called his house to ask his mom to bring the lunch he forgot and finding out about 9/11; driving down the street in Ann Arbor and hearing people screaming in their houses and watching them pour into the street and around my car because the media had called the 2008 presidential election for Barack Obama. Another of these moments for me was when the Iowa Supreme Court handed down Varnum v. Brien , the decision legalizing gay marriage in Iowa – I was stealthily watching the One Iowa press conference at my office job in Michigan and trying to contain my excitement .
I was fairly resolute about coming back to Iowa after moving away after college, as I appreciate the State of Iowa’s ability to fill pot holes and drivers’ general avoidance of creating gridlock (ahem, Ann Arborites…you are the worst about this, and you know it!) Varnum v. Brien was just the icing on the cake because I knew I was coming back to a place that believed in what I believed in and that I could be proud of for its stand.
The political climate in Iowa has undergone a shift since I returned in May of 2009. The November 2010 election brought in a Republican governor, a Republican House, and the people of Iowa voted not to retain three of the Iowa Supreme Court justices because of the Varnum decision.
This week, the Republicans in the House of Representatives announced that they would be introducing a resolution to amend the Iowa constitution to ban same-sex marriages and also domestic partnerships and civil unions. The resolution will state, “Marriage between one man and one woman shall be the only legal union valid or recognized in this state.” This bill would go beyond overturning Varnum and would deny all civil rights to anyone besides married heterosexual couples. And it seems that that is the point: Representative Dwayne Alons, R-Hull, was quoted in the Des Moines Register saying, “’I think the biggest issue is that if that (a same-sex marriage ban) is carried forward, and then Iowa does civil unions and recognizes that as a substitute status, then, from what I’ve seen in other states,’ people would come to consider same-sex civil unions as equal to marriage.” Essentially, to these Iowa House Republicans, it is not enough to take away marriage from same-sex couples – they also have to take away any semblance of equal rights that these couples might enjoy in Iowa.
It’s not that I think the House Republicans will actually be able to lead the charge to change the Iowa Constitution – I do not. The Senate Majority Leader Mike Gronstal has already said he’ll block the action in the Senate. Even if it did manage to pass the Senate, the process for amending the Iowa Constitution does not end there. The resolution has to pass both houses again in the next legislative session and go to a popular vote in the next general election. I do not think the amendment could get the necessary majority of the popular vote. I know that those who oppose gay marriage have already won a popular vote in ousting the Iowa Supreme Court judges, but since that election, many have come out to say they did not take the threat seriously enough. If it comes to the point of there being a popular vote, I believe there will be increased mobilization for those who support the Varnum decision and same-sex marriage in Iowa.
I love Iowa and I’ll always consider it my home. Actions such as these make me sad and disappointed that this great state might come to be known for a legacy of intolerance rather than one of valuing the civil rights of its citizens.
Brad Biren, Student Writer, The Journal of Gender, Race & Justice
After last Tuesday, few people would consider Election Day a victory for gender equality. Yet, unbeknownst to those glued to CNN or Fox News, over 106 (of 164) lesbian, gay, bisexual, and transgender candidates won last week. How did so many out LGBT candidates win election, and yet we lost the House of Representatives? As Lisa Neff, a columnist for 365gay.com, wrote in an October 25th article, LGBT Americans are realizing the importance of local elections. Local elections include positions such as school board members, county supervisors, mayors, and state legislators. These positions wield great power within the local community and often have equal or greater impact on the lives of their LGBT constituents.
–David Cicilline’s election to Congress. The Providence, R.I. mayor will be the fourth openly gay member of the U.S. House of Representatives, joining Reps. Tammy Baldwin, Barney Frank and Jared Polis, who each won reelection.
–Jim Gray’s election as mayor of Lexington, Kentucky, the state’s second-largest city.
–Nickie Antonio’s election to the Ohio House. Antonio will be the first openly LGBT person to serve in the state legislature.
–Marcus Brandon’s election to the North Carolina House. Brandon will be the state’s only openly gay state legislator and one of just five out African Americans to serve as state lawmakers.
–Victoria Kolakowski’s election as a Superior Court judge in Alameda County. Kolakowski becomes the first openly transgender judge in America.
–Kevin Lembo’s election as Connecticut State Comptroller. Lembo joins just a handful of openly LGBT candidates to have been elected to statewide positions.
–Laurie Jinkins’ election to the Washington State House. Jinkins is Washington’s first openly lesbian state legislator, and could help her gay colleagues pass a marriage equality bill in the next legislative session.
–Maryland’s and California’s expanded LGBT state legislative caucuses. Each will include seven openly gay and lesbian lawmakers. In Maryland, the caucus is poised to help pass marriage equality legislation, which the reelected Gov. Martin O’Malley has vowed to sign.
All this being said of course, many members of the Iowa community are still dumbfounded with the results of the judicial retention vote. How could three qualified members of the judiciary be voted out of office for exemplifying what the U.S. Constitution protects—the guaranty of impartiality in judicial decisions? Many of my colleagues at the College of Law have quoted and cited to Professor Todd Pettys, a constitutional scholar and beloved member of the faculty. In a November 4th article in the Des Moines Register, Professor Pettys said what many of us felt:
“I think these three ousted justices are going to be regarded in judicial circles as heroes,” Pettys said. “I think other justices are going to look at these three individuals and say, ‘Here are three individuals who took a very controversial stand, because it’s what they thought the law required. They stuck with what the law required, even when they knew they were going to be coming up for election.’”
But no professor can say something as poignant as a spouse. One month before the publication of this blogpost, I married my husband in a beautiful ceremony at a local winery surrounded by dear friends and family. The atmosphere was more than that of acceptance; it was of epiphany and understanding. Growing up in Algona, Iowa, my husband was bullied and afraid. Our wedding was the culmination of much progress both for ourselves and more importantly for our loved ones. The day was so perfect, he and I forgot about the controversy surrounding our love.
The night of the election, with his sullen face and Charlie Brown theme-song demeanor, he slumped into bed shell-shocked and dismayed. He turned and said, “They didn’t just vote out the judges, they voted us out too.” The retention vote was in many ways was the first public vote on our rights. My husband was hurt by the results of the vote, not because he didn’t expect it in many ways, but because it came on the heels of an event celebrating our love. He thought Iowa would rise to the occasion and do the right thing, as it has for so long.
His family has made enormous progress. They are a wonderful example of love and acceptance. They are the best of what Algona, Iowa and Kossuth County have to offer. They voted for us at our wedding and voted to retain the judges the day of the elections. In many ways, Iowa did rise to the occasion and will continue to do so. The judicial elections didn’t take away our right to vote and those judges will likely be replaced by judges who will decide the same way in the future.
There is still a great deal of progress to be made though. Last summer, on the way back home to Iowa City, we stopped in Britt, Iowa for gas and soda (not pop). I saw a woman with a “support traditional marriage” bumper sticker. I confronted the lady who was using her child as a human shield. I am from New York, raised in a house full of loud, obstinate Jewish women. My childhood taught me to face ignorance head on in order to “enlighten” the masses.
I laid my foundation—“is that your car with the bumper sticker?” I asked. She nodded and I asked her why my (then) fiancé and I were not worthy of equal rights. She replied because she “supports traditional marriage.” Long story short, she’s a close minded bigot who wishes all the best for me but wants me not to love or marry my husband. Hate the sin, but love, love, in fact, adore the sinner.
When I hear that basic argument, I think, as Justice Stevens recently put it, “tax the yarmulke, tax the Jew.” How can you be against the exercise of my one definable characteristic as a minority and tell me you love me? John Corvino, a professor at Wayne State University, asked this question in a recent editorial on 365gay.com (yes, go to it, it is a great source of logic). In his piece, Corvino remarked on the horrifying trend of Christian people commenting on the rash of gay suicides by using the following remark, “That’s terrible, but…”
But what? He pointed out that their response of denouncing violence and at the same time describing their contempt for the victims as the following: “They’re akin to saying that you are really concerned about feeding the starving, but first you want to make sure that they’re not going to burp at the dinner table.”
At this point, I should be livid and bristling with contempt, but that’s not the case at all. I started this blogpost with the good news. There were 106 reasons to celebrate last week. One state has its first openly gay black state representative; Johnson County, Iowa once again voted for Janelle Rettig, a lesbian, for County Supervisor; the first transgender Judge was voted into office; and Lexington Kentucky voted for an openly gay mayor. Kentucky voted for a gay. I feel optimistic when I read about things like that. As more and more openly gay candidates are voted into public office, it will be harder and harder for ignorance and bigotry to prevail.
As my silver-lining-seeking husband has started to say with cadence and efficiency, “It gets better.”
I couldn’t agree more :-)
For a further discussion of reactions to the judicial retention vote, see Student Writer Matt Hulstein’s earlier post, Cruelty and Recklessness: The Implications of the Iowa Judicial Retention Vote
Matt Hulstein, Student Writer, The Journal of Gender, Race & Justice
On November 2, 2010, Iowans voted to not retain its Supreme Court Justices Ternus, Baker, and Streit. By all accounts, these Justices were ousted in direct retaliation for their Varnum v. Brien[i] decision. That decision struck down Iowa Code § 595.2(1) which defined marriage as between a man and a woman[ii] as unconstitutional under the Iowa Equal Protection Clause, Article 1 § 6.[iii] The opinion, authored by Justice Cady who was not up for retention, explained in great detail that the statute could not withstand intermediate scrutiny because the government’s justifications for the same-sex requirement were either not existent or not sufficiently important.[iv] The decision was unanimous and can only be reversed by a constitutional amendment or by the court itself.
Shortly after the decision was handed down, Bob Vander Plaats, a Sioux City businessman who was running for and eventually failed to secure the Republican nomination for governor, launched a group ironically called “Iowa for Freedom”[v] in an effort to oust the justices through their retention vote. The group, funded largely by outside money from groups such as Family Research Council, the National Organization for Marriage, and the American Family Association,[vi] saturated the airwaves with messages condemning the “activist judges.” Without ever referring to the court’s reasoning, Vander Plaats vowed that the Varnum decision not only threatened the institution of marriage but also private property rights, the right to educate children, and even the right to life.[vii] A counter group called Iowans for Fair and Impartial Courts stepped forward to defend the Justice and tout the impartiality of Iowa Courts. Among this group’s leaders was Attorney Dan Moore, a former Iowa Bar Association president who actually had worked as the treasurer and secretary for Vander Plaats during his run for governor. The justices decided to not directly campaign or raise funds, feeling that it would be inappropriate. Despite their best efforts, the counter-parts to Iowa for Freedom could not close the funding gap. On November 2, 2010, the justices were defeated, with approximately 55 percent of the vote against them.[viii]
The legal community’s response has been somber. Some have expressed true concern for the integrity of the judicial system. Most notably, Erwin Chemerinksy said, “What is so disturbing about this is that it really might cause judges in the future to be less willing to protect minorities out of fear that they might be voted out of office….Something like this really does chill other judges.”[ix] Immediately after the vote, Iowa Law Prof. Whiston said, “The electorate just poured sugar down the gas tank of the judicial system, and it’s going to take a whole lot of work to keep there from being permanent damage.”[x] Other responses have not been as despairing. John Reed, a professor emeritus of law at the University of Michigan Law School, explained, “I think the frequency of this happening is, on the whole, relatively rare, and as tragic as it may be for the particular judges, it is something that is not the end of the judicial system, and we can move on.”[xi] Frank Carroll, the current Iowa State Bar Association President, agreed that the oust could be a blip given the case’s controversial subject matter but cautioned, “[I]f the next retention election has the same amount of political overtones and substantial campaign funds allocated to it, I would be very concerned about what that would do to the judicial system”[xii]
Iowa Law Prof. Pettys summed up what seems apparent to all in the legal community: “I think if anything, these three justices will be regarded as examples of good judicial behavior. In other words, when they wrote this opinion, they knew it would be controversial, they knew they were coming up for election soon, they knew they could lose their jobs, and they did it anyway because they believe that is what the law required.”
I will not editorialize to any great extent, because I feel the facts speak for themselves. Suffice it to say, I am deeply disappointed in Iowa. These justices had dedicated their professional lives to the service of Iowans, and we in turn ungratefully threw their years of service back in their face, declaring them “activist” and “immoral,” all because they were doing their jobs. Voting out a judge because you disagree with a legal decision is a misuse of the judicial retention system. This was a mistake, and although my faith in Iowans has diminished, I still hold hope that we are big enough to admit a mistake when we make one. This vote to oust the justices was a mistake. We owe them our respect for doing what was right, not only in the decision, but in its aftermath, and we owe them an apology. For what it is worth, as an Iowan I am sorry I did not do more in your support, but I don’t think we fully comprehended the viciousness of the campaign against you. In closing, when I think of Mr. Vander Plaats and his rampant misinformation campaign, I am reminded of Mr. Welch’s reproach of Sen. McCarthy: “Until this moment, I think I never really gauged your cruelty or your recklessness… You have done enough. Have you no sense of decency, Sir. At long last, have you left no sense of decency.”
[i] 763 N.W.2d 862 (Iowa 2009).
[ii] “[O]nly a marriage between a male and a female is valid.” (as cited from Varnum v. Brien).
[iii] This article reads: “All laws of a general nature shall have a uniform operation; the General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens.”
[iv] Varnum, 763 N.W.2d at 897- 905.
[vi] Jason Hancock, Anti-retention groups have spent $700k in Iowa so far, The Iowa Independent, Oct. 25, 2010 (available at http://iowaindependent.com/46025/anti-retention-groups-have-spent-around-700k-in-iowa-so-far); A.G. Sulzenburger, Ouster of Iowan Judges Sends Signal to Bench, Nov. 3, 2010 (available at http://www.nytimes.com/2010/11/04/us/politics/04judges.html?_r=1).
[vii] Brett Heyworth, VanderPlaatz says activist court heading down a slippery slope will decide who lives, dies, Oct. 22, 2010 (available at http://www.siouxcityjournal.com/app/blogs/politically_speaking/?p=4655).
[ix] A.G. Sulzenburger, Ouster of Iowan Judges Sends Signal to Bench, Nov. 3, 2010 (available at http://www.nytimes.com/2010/11/04/us/politics/04judges.html?_r=1).
[x] Hayley Bruce, Supreme Court justices involved in gay marriage ruling not retained, Daily Iowan, Nov. 3, 2010 (available at http://www.dailyiowan.com/2010/11/03/Metro/19821.html).
[xi] Hayley Bruce, Experts: ousting no threat to judicial independence, Daily Iowan, Nov. 4, 2010 (available at http://www.dailyiowan.com/2010/11/04/Metro/19858.html).
Whitney Smith, Student Writer, The Journal of Gender, Race & Justice
Yet another disappointing move by public school officials occurred last week in Michigan when a Homecoming title was stripped from a student as a result of archaic, arbitrary and discriminatory “rules.” Oakleigh Reed, a transgender Mona Shores High School senior, was voted Homecoming King by his fellow students, only to have the accomplishment stripped from him by school officials because Oakleigh was still registered as a female. Despite the fact that Oakleigh, called Oak by his friends, was known to his peers as a “guy”, called “he” by his teachers, and was allowed to wear a male band uniform, the school still relies on Oak’s registered sex to justify this horrid discriminatory act.
As soon as school officials knew that students were flocking to vote for Oakleigh for Homecoming King, the school called him into the office to let him know that his name was being removed from candidacy because he was registered as a girl. Fellow students and parents were disgusted and outraged. Oakleigh’s friends have formed a group in support of the teen by making a Facebook group and shirts that tout “Oak is MY King.” The Facebook page states “Oak Reed received the most votes for homecoming King. Period. Our school not only lied to students, but they also promoted transphobia. Our school has made it clear that they don’t want a transgendered student to represent Mona Shores. As students, we must stand up to assert the rights of Oak, and transgendered students everywhere.” The group currently has over 12,000 supporters from around the world. It is comforting to know that this teen has the fantastic support of his peers and his parents; however it does not negate the harm done by the people who should be supporting him. It’s not only part of a school administrator’s job to support all students in their personal and academic success, it’s their most basic responsibility.
When questioned about the schools actions, Mona Shores Principal Jennifer Bustard replied “He…is not a boy.” And the source of the “rule” barring Oakleigh from taking the crown? The ballot. Principal Bustard defends the school by saying “In order to be eligible for homecoming king, the ballot clearly states you must be a boy,” she said. “For homecoming queen, you must be a girl.” Isn’t it good to know that the school acted on such a qualified and well set standard? School Assistant Superintendant Todd Geerlings said that “the issue was simple and that a boy had to be king and a girl had to be queen.” “The school must be consistent when it comes to gender.” states Bustard. However the facts prove otherwise. Allowing Oakleigh to participate in all school functions as a boy was a great start, but then revoking this policy arbitrarily during his senior year is hardly consistent. The schools actions are also inconsistent with the school-districts non-discrimination policy, which states that the school district “does not discriminate on the basis of race, color, national origin, sex, age, or disability in its programs and activities.”
Discrimination against LGBT students is, unfortunately, not uncommon in recent history. Less than two months ago a transgender teen in Mississippi was deleted from the yearbook for wearing a tuxedo in his senior photo, even though the teen had always been dressing as a male. Before that, a lesbian teen that planned to bring her girlfriend to prom was unable to attend because the school cancelled the entire event as a result of the possibility that the couple would attend.
The ACLU plans to get involved in Oakleigh’s situation. ACLU staff attorney John Kaplan saw news coverage of the story and hopes to speak with Oakleigh. “It raises some concern about how the school has chosen to treat people based on gender,” Kaplan said. Kaplan said he would like to get in touch with Oakleigh and if he agrees, contact the school to “alert the district to the laws. Hopefully, they’ll reconsider the action that they’ve taken.”
There has been no further news concerning the ACLU’s possible involvement, but Oakleigh’s supporters across the nation eagerly await updates about the possible action. Oakleigh is happy about the support he has received from classmates, but would still like “something tangible.” He will be wearing male robes for graduation and hopes to have sex-reassignment surgery when he is 18.
Sources and Further Reading:
Alexandria Christian, Student Writer, The Journal of Gender, Race & Justice
In 1993, Bill Clinton introduced the ‘Don’t Ask Don’t Tell’ (DADT) policy as a “compromise” measure after promising to allow citizens to serve in the military regardless of their sexual orientation. However, since 1994 more than 13,500 people have been fired regardless of Clinton’s attempt to “compromise” between military rules and the outcries of the American population.
DADT was passed in order to discover or reveal closeted homosexuals who were enlisted in the military. According to the legislative history of the policy, which was part of the 10 U.S.C. §654, having homosexuals in the military “would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.” Theoretically, the ‘compromise’ consisted of the military allowing homosexuals into the military, as long as they did not disclose their sexual orientation or speak about any homosexual relationships.
While the policy was supported by people in the military, more and more individuals have expressed their dissatisfaction with the discriminatory nature of the policy. The policy is an example of institutionalized discrimination, and effectively ostracizes an entire community of people. However, as of September 8th, U.S. District Judge Virginia Phillips ruled that the policy violated the First and Fifth Amendment rights of lesbian and gays, and therefore unconstitutional. She commented that the policy did nothing to help the military. In fact, she expressed that it had a “direct and deleterious” effect, especially during wartime, by hurting recruitment efforts. Phillips will begin drafting the injunction with the help of the Log Cabin Republicans (the group that brought the lawsuit against the government in 2004). Accordingly, the government will then have one week to draft a response, although they have already commented that Philips lacked “the authority to issue a nation-wide injunction.”
Dan Wood’s, the attorney for the Log Cabin Republicans, commented on the uniqueness of the case since it did not use an individual’s experience as a basis for attack, but made a broad attack on the policy as a whole. Wood argued at trial that the policy violated protected Fifth Amendment rights such as freedom of speech, open association and due process. Wood’s called on six witnesses to testify; one included an Air Force officer who was discharged from the military because of peers looking through his emails while on tour in Iraq. The government’s lawyers only pointed to the legislative history of the policy as a defense and called no witnesses or presented any other evidence.
This is the second time a California judge has handed the gay and lesbian community a large victory this year. With the repeal of Proposition 8 and now the repeal of DADT, it seems that may be light at the end of the tunnel for gay and lesbian Americans. Since the “official” start of the LGBT civil rights movement back in 1969 with the Stonewall Riots, the community has had a hard fight to find support and to get results. Currently only a small portion of states allow gay marriage, but increasingly states and cities are allowing civil unions. Hopefully this decision will be what finally gives gay and lesbians the same constitutionally protected rights as other minority groups.
Mary Conroy, Student Writer, The Journal of Gender, Race & Justice
This week, a CNN poll found that for the first time in history the majority of people in the United States think that same-sex marriage should be legalized. Although there is some dispute over the exact percentage of Americans that support same-sex marriage, (a recent Columbia University poll found that only around 45% support same-sex marriage), there has been increasing support for it in the past fifteen years.
American opinion on same-sex marriage has come a long way since Congress enacted the Defense of Marriage Act in 1996. At that time, polls showed only about a quarter of Americans supported the right of gay and lesbian couples to get married. Now, with support on the national scale hovering around the 50% mark, same-sex marriage might not be that far in the future.
Not surprisingly, these same-sex marriage poll results came on the heels of a Gallup poll which found that over half of Americans find lesbian and gay relationships to be “morally acceptable.” Both polls highlight the United States’ evolving beliefs concerning homosexuality. Support for gay rights and same-sex marriage is increasing, even across political party lines.
Several prominent Republicans have expressed their belief that marriage should not be limited to between a man and a woman. Laura Bush announced her support of same-sex marriage earlier this year on Larry King Live. Cindy and Megan McCain, the wife and daughter of Republican leader John McCain, both posed for the NOH8 Campaign, an organization created to protest California’s Proposition 8. Just recently, Ken Mehlman, the former chairman of the Republican National Committee and the 2004 campaign manager of George W. Bush, came out of the closet and announced his support of same-sex marriage.
With several prominent Republicans voicing their support of same-sex marriage and research that shows young adults across America largely support same-sex marriage, it is likely that same-sex marriage will be legal in the future. As time passes, it is probable that older voters who disapprove of same-sex marriage will be replaced by younger voters who support it. The real question concerning same-sex marriage may just be how long until it is passed?
Justin Randall, Note & Comment Editor for the 2010-11 JGRJ Board
Same-sex marriage proponents celebrated a victory this week in California when United States District Court Judge Vaughn R. Walker of the Northern District of California held that that the voter approved Proposition 8 was unconstitutional under the Due Process and Equal Protection Clauses of the United States Constitution. Judge Walker held in the landmark case of Perry v. Schwarzenegger that the State of California had no rational basis for denying marriage equality to gays and lesbians. Judge Walker also noted that the voter approval of Proposition 8 stemmed from traditional religious opposition of homosexuality, rather than stemming from a rational or legal basis for this discriminatory action.
In this much-anticipated decision, Judge Walker characterized the right to marry as a historical right to choose a spouse and mutually form a household. Judge Walker demonstrated how the marriage has been reshaped in this country in light of the progression of civil rights citing Loving v. Virginia, which abolished the State of Virginia’s ban on interracial marriage as an example. Judge Walker also rejected the argument that California’s domestic partnership laws provided adequate protection under the law for gays and lesbians for two reasons. First, Judge Walker noted the specific social value of marriage. Secondly, Judge Walker held that California could not create a distinct and separate form of union, such as a domestic partnership, solely for gays and lesbians.
Judge Walker held that Proposition 8 violated the Equal Protection Clause of the United States Constitution by applying legislative classifications on the basis of sexual orientation. Walker stated that discrimination based on sexual orientation falls under sex discrimination. Therefore, Walker is required to apply strict scrutiny to determine the government’s interest in these legislative classifications. Instead of applying strict scrutiny, Judge Walker held that this law failed to pass even the least restrictive test, the rational basis test. As such, the passage of Proposition 8 was not rationally related to the stated interest.
This decision could set the stage for the national debate over same-sex marriage. Both parties have stated their intent to appeal the ruling of the Ninth Circuit Court of Appeals to the Supreme Court. It appears likely that the Supreme Court would grant the writ of certiorari and hear oral arguments by the parties. While the Supreme Court is currently leaning to the right, it appears that the language used by Judge Walker in this case will be difficult to overturn in the judiciary. With the most diverse group of Justices on the Supreme Court in the history of the United States, this should prove to be an interesting case to watch in the years to come.
Libby Skarin, Senior Note & Comment Editor, 2010-11 Editorial Board
On July 8, a federal district court judge in Boston ruled Section 3 of the Defense of Marriage Act (DOMA, codified at 1 U.S.C. § 7) unconstitutional. Section 3 says:
“In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word `marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”
Judge Joseph Tauro, a Reagan appointee, handed down his decisions in two companion cases. In the first, he declared Section 3 an unconstitutional violation of Tenth Amendment; in the second, he held that Section 3 violated equal protection guarantees in the Constitution.
While both of these rulings are important – and certainly interesting – I find myself particularly fascinated by the latter. In this case, Gill v. Office of Personnel Management, Judge Tauro held that Section 3 could not pass constitutional muster under a rational basis review. This is notable, as any student who has suffered through a semester or two of constitutional law knows, in that practically any law can be upheld when subjected to this lowest level of scrutiny.
My initial reaction to this rationale was very positive; no rational basis for DOMA’s Section 3?! OF COURSE there’s no rational basis! It’s clearly a blatantly discriminatory law. You go, Judge Tauro!
Then I got to thinking a bit more.
We apply strict scrutiny to clearly race-based classifications, right? And gender gets intermediate scrutiny (I have my own gripes about that, but we can save it for a later post). So why not sexual orientation? It’s an immutable characteristic, society has used it to discriminate, as many of the gay marriage state-wide initiatives prove the gays often lack political power, etc. etc. Seems to be a perfect candidate for a heightened standard of review.
So while I think it’s true that there really is no rational basis for a law like DOMA, I feel the district court missed a huge opportunity on this one. I think sexual orientation should – indeed, must – be subjected to a higher standard of review. If we apply rational basis to laws that clearly discriminate against members of the LGBT community, we’re setting dangerous precedent. We’re allowing the door to discrimination to stay open, because let’s face it: there have been, and will continue to be, many discriminatory laws that easily pass rational basis review.
Don’t get me wrong here. I think this court’s decision on DOMA was a step forward for equality, and I’m glad to see that the judiciary is starting to come around on this issue. But I want to be honest and say that I expect something more. Equality under the law would be good, for starters. Now that I think about it, they should really put that in the Constitution – it would solve all our problems! Oh…wait.
Justin Randall, JGRJ Note & Comment Editor 2010-11
This week, the Texas Republican Party released their 2010 State Party Platform. This document outlined the official party position on a number of policy issues, including same-sex marriage, homosexuality and the former Texas sodomy statutes. In this platform, the Texas GOP ignores the separation of church and state as well as recent Supreme Court decisions instead choosing to focus on a platform of discrimination and oppression.
In their publication, the Texas Republican Party propagates hate against LGBT Texans by supporting a definition of marriage as a “God-ordained, legal and moral commitment only between a man and a woman.” To protect this sanctified union, the Texas GOP suggests creating a law that makes anyone who issues a marriage license to same-sex couples guilty of a felony. At the same time, the party strongly demands that Congress remove jurisdiction from the federal courts over sodomy cases, in an attempt to re-criminalize sodomy to discriminate and imprison LGBT Texans.
The Texas Republican Party does not stop there. Instead, the 2010 Party Platform includes an entire paragraph on the party’s opposition to homosexuality. The statement is reproduced below:
We believe that the practice of homosexuality tears at the fabric of society, contributes to the behavior is contrary to the fundamental, unchanging truths that have been ordained by God, recognized by our country’s founders, and shared by the majority of Texans. Homosexuality must not be presented as an acceptable “alternative” lifestyle in our public education and policy, nor should “family” be redefined to include homosexual “couples.”
This statement would make even Texas’s own George W. Bush cringe. It propagates open and flagrant political discrimination that contradicts equal protection of all citizens before the laws of the United States. The Texas GOP is hoping to go back to the good ol’ days…when segregation and discrimination was a legally accepted practice. Unfortunately for Texas Republicans, the Supreme Court interprets the legality of state laws, keeping overzealous discrimination from becoming adopted law. The people of Texas should do the same and vote some sense into their Republican Party, or maybe it is time to truly let Governor Rick Perry get what he wants most in life: Texas’ secession from the United States.