Dispatches from the Creation Wars

guest-blogged by W. Kevin Vicklund

The opening song for the musical Rent poses the question: How do you measure a year in the life of a person? Of course there are some trivial parameters, like the number of cups of coffee, but the important emotions, actions one takes, and impact on others can be said to be measures of love. This highlights the importance of GLBT rights; by denying them the most meaningful measures of their love, their value in society is denigrated and diminished. Late last week, the repeal of “Don’t Ask, Don’t Tell” and it’s underlying law was certified to Congress – effective September 20th, gays will be allowed to openly serve in the US armed forces. Today, GLBT wedding bells are ringing across the state of New York for the first time. Let’s honor and celebrate these accomplishments by taking the measure of half a year in love.

Wedding Bells Are Ringing

Efforts to get states to recognize same-sex marriage have met with some success, and some set-backs. To start the year, New Hampshire’s existing civil unions were automatically converted to marriages, unless notified otherwise. On January 31st, Illinois signed into law the legalization and recognition of civil unions, effective June 1st. On February 24, Hawaii enacted a law allowing civil unions, effective January 1, 2012. The same day, the Maryland Senate voted for same-sex marriage, but the House failed to vote before the end of the legislative session. With the notable exception of Tennessee (dubbed the “Don’t Say Gay” bill), efforts to restrict gay rights have mostly been treading water, fighting against expansion of rights rather than imposing additional restrictions.

And of course, in New York Gov. Cuomo kept the legislative session open until on June 24, New York signed into law marriage equality, effective today.

Looking Forward

Falling just outside our window, Rhode Island enacted civil union legislation July 2nd, effective immediately. There are some ongoing efforts in Maine, Oregon, and Minnesota. In California, legislation was recently signed to include in the curriculum important historical contributions from prominent gays.

Imminent DOMAin

There are dozens of legal challenges to the insidious Defense of Marriage Act. Rather than list them all, let’s look at the important events during the first half of the year.

The big news, of course, is that in late February, Obama announced that the AG had determined that GLBT issues were subject to heightened scrutiny, not rational basis review, and that DOMA’s Section 3 (which denies federal recognition to same-sex marriages and civil unions; Section 2 allows states to refuse to recognize same-sex unions performed in other states) is unconstitutional. As a result, the DoJ announced it will no longer defend DOMA Section 3 and was sending briefs to the effect in all DOMA cases. Congress was given the option to step in to defend, and the House did so. The law firm the House contracted to defend DOMA withdrew from the case in late March, prompting the lawyer in charge of the case to resign from the firm to retain the case. Since then, the DoJ has also started to stop prosecuting select deportation cases involving gay couples (but not all). In the Senate, the Respect for Marriage bill was introduced to repeal DOMA. Also, a Bankruptcy Court ruled DOMA unconstitutional.

Looking Forward

At the beginning of the second half of the year, the DoJ went further than merely stating their position. They filed an extensive brief arguing that DOMA was unconstitutional. This has prompted plaintiffs in other DOMA cases to move for summary judgment. President Obama has announced support for the Respect for Marriage Act, and hearings for it were held last week. The higlight of that hearing was Al Franken demolishing an anti-gay senator for misrepresenting a study. We need more of that!

Some predictions: in a multitude of cases, summary judgment will be granted, ruling DOMA unconstitutional. This will spur cases challenging state laws. The Supreme Court will chose not to hear the DOMA cases, but eventually will hear the state cases. I think the Democrats are going to be able to position themselves to advance gay rights and then ride that record to electoral success next year (especially Obama being able to point to repeal of DADT and hopefully DOMA as campaign promises delivered). I only wish they would make the same shift in position when it comes to the assault on civil rights resulting from the War on Terror.

I am also going to take a controversial stand. I do not believe that Section 2 of DOMA is unconstitutional (to the extent that the constitutionality of denying same-sex marriage is removed from the picture). While Section 3 is clearly unconstitutional, and through the 14th Amendment this makes state laws banning same-sex marriage unconstitutional, Section 2 doesn’t actually violate the Full Faith and Credit clause. Here is the full text of the clause:

Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

By my interpretation of “the effect thereof,” Congress does have the power to tell states that they may disregard marriages performed in other states. (I would argue that “general laws” precludes Congress from singing out specific states.) This is of course moot, as denying same-sex marriage is unconstitutional whether done by the federal government or a state.

But DADT!

Log Cabin Republicans representing GLBT servicemembers from California had won a federal trial, with a ruling that DADT was unconstitutional. The ruling ordered the discontinuation of enforcement of DADT worldwide. The government appealed and a stay of the injunction was issued, but before briefs were due, legislation to repeal DADT was passed late last year.

The court initially halted the briefing schedule, asking whether the repeal should put the case on hold, but the plaintiffs pointed out that certification was required before the repeal would be finalized. Since certification was not guaranteed, and nebulous to when it might occur, the court on January 28th set the case back in motion.

Looking Forward

Noting that implementation of the training was well underway and the governments brief inthe Golinski DOMA case, on July 6th the 9th Circuit Court lifted its stay. After granting an emergency stay, the Court modified its stay on July 15th to only apply to new recruits. That is, DADT investigations are enjoined only for current members, not new recruits. Also, the court asked whether the substantial completion of certification efforts had mooted the case. With the actual certification signed late last week, my prediction is that the court will declare the case moot on or before September 21st.

Giving Them Their Prop8

The Prop 8 appeal has been frustratingly (but predictably) slow. The 9th Circuit Court ended up asking the California Supreme Court whether state law gave Prop 8 proponents standing, since California decided not to appeal. The California Supreme Court decided not to decide until after the summer recess, so nothing has really happened. There was a bit of a scuffle over the trial judge being gay, but that was nothing more than a diversion and came to naught.

Looking Forward

If the California Supreme Court decides against standing, expect the case to be dismissed. The Supreme Court has indicated in dicta (Arizonans) that there is doubt that a citizen group would have standing in this situation, and the appeals court is unlikely to want to deal with that situation. It is highly probable that the trial will fizzle out if standing is denied, as there wouldn’t be much incentive for SCOTUS to take on the question.

If California law does grant standing, the most likely outcome is that the appeals court would take judicial notice of the DoJ’s current stance on DOMA and rule in favor of the plaintiffs, upholding the trial court ruling that Prop 8 is unconstitutional. SCOTUS would be more inclined to take this case on appeal, as there would be conflicting precedents in other circuits, as well as an easy out via the standing issue if things get too hairy.

In closing, I’d like to offer a toast to all those who were married today, whether same-sex, opposite sex, or ambiguously sexed:

To many more seasons of love.