make_change_not_lawsuits-0509_update.pdf (application/pdf Object)

make_change_not_lawsuits-0509_update.pdf (application/pdf Object)

click above link to read entire article

4. Shouldn’t we try to bring a federal case and get it to the U.S. Supreme Court as
soon as possible to settle the issue once and for all?
No. The history is pretty clear: the U.S. Supreme Court typically does not get too far ahead of
either public opinion or the law in the majority of states. For example, few states still had laws
requiring racial segregation or outlawing interracial marriage by the time the Court struck those
laws down. Most states had already struck down or repealed their own laws against same-sex
intimacy when the Supreme Court finally invalidated Texas's law.
4
Right now, we need to make gains in both public opinion and state law. The current
Supreme Court has been taking a pretty narrow view of civil rights and civil liberties. Even the
strongest LGBT rights decision the Court has issued—the Lawrence v. Texas case striking down
laws against intimacy for same-sex couples—explicitly commented that it was not saying
anything about formal recognition of same-sex relationships. The arguments in the briefs are
not the only thing that influences the Court’s decisions. The climate of receptivity and
momentum in the country on these issues matter as well. There is much we can and
should do together to strengthen our hand before we put a federal marriage case before
the justices.
There are also serious risks if we go to the Supreme Court and lose, especially if we’ve asked it to
set aside state limits on marriage. We could still ask state courts to strike down marriage bans
under state constitutions, and we could still ask state legislatures to pass marriage laws. But most
state courts and legislatures pay attention to what the U.S. Supreme Court says about
constitutional principles of fairness and equality. It will be harder for us to get state courts to
strike down laws excluding same-sex couples from marriage (and many from civil unions, too) if
the U.S. Supreme Court has said such laws are okay under the federal constitution.
A loss now may make it harder to go to court later, and we may need to. It will take us a lot
longer to get a good Supreme Court decision if the Court has to overrule itself. Let's not forget:
it took 17 years to undo Bowers v. Hardwick, the 1986 Supreme Court decision that upheld
Georgia’s sodomy law. That was fast for the Supreme Court. And during that time, many
LGBT Americans lost jobs, lost custody of their children, and suffered other harms because the
Bowers decision was taken as a license to discriminate against us.
5. Should we get married and then sue the federal government to get it to honor
our marriages, say for example, for immigration, tax, or social security?
No. In 1996, Congress passed a law saying that the federal government would discriminate
against the marriages of same-sex couples (the so-called “Defense of Marriage Act” or DOMA)
by denying them all the protections that the federal government gives to all other validly married
couples. As a result, the federal government for five years has been discriminating against the
married same-sex couples of Massachusetts. It will, as things now stand, continue to deny equal
treatment to same-sex couples that marry in Connecticut, Iowa, Vermont, and Maine, and to those
who married in California in 2008.
There are two ways to get rid of "DOMA": going to court to have the law declared
unconstitutional or getting Congress to repeal it (something President Obama has said he
supports). These approaches can work together, and we are doing both. We’re working with
members of Congress on repeal legislation now. In addition, Gay & Lesbian Advocates &
Defenders (GLAD) has filed a thoughtfully constructed lawsuit in federal court on behalf of a
diverse group of plaintiffs married for years in Massachusetts. These plaintiffs are eligible for a
range of federal benefits, applied for those benefits, and were denied following extensive
administrative procedures. If that lawsuit succeeds, it should establish a principle that will be
fatal to DOMA, and we can bring other lawsuits addressing other federal protections to build on
it.
GLAD’s lawsuit challenging DOMA is more modest than a case claiming there is a federal
constitutional right to marry. Until DOMA was passed, the federal government deferred to the
5
states' determinations of marital status. DOMA creates a "gay exception" and says the federal
government will not honor a state's marriage of same-sex couples. GLAD’s legal challenge to
DOMA simply asks that the courts tell the federal government to go back to doing what it did
before—recognize all marriages that a state has approved. In contrast, a federal case arguing that
it is unconstitutional not to let same-sex couples marry would ask the courts in effect to order that
couples be allowed to marry in every state, overthrowing most state marriage laws. That case
asks for much bolder action from the courts, and it requires a much bigger development in
constitutional law. We think the courts aren’t ready to do that yet.
And last, but not least, before bringing any federal case, people should beware of unintended
consequences. For example, a case focused on immigration could lead to the deportation of the
non-American member of a bi-national couple