Reaction From the President
October 6th, 2014
Just two minutes ago:
— Barack Obama (@BarackObama) October 6, 2014
Uganda’s Attorney General Files Notice of Appeal to Supreme Court to Reinstate Anti-Homosexuality Act
August 8th, 2014
Nicholas Opiyo, one of the attorneys for the ten petitioners who succeeded on convincing Uganda’s Constitutional Court to nullify the Anti-Homosexuality Act on procedural grounds last Fiday, has tweeteed that the Attorney General of Uganda has made good on his vow to appeal the ruling to the country’s Supreme Court:
Attorney General of Uganda has lodged a notice of appeal against the AHA ruling of the constitutional court. We'll head to the Supreme Court
— Nicholas Opiyo (@nickopiyo) August 8, 2014
@JosephOkito At this point it is only a notice. The grounds of appeal will be filed later. That is the procedure
— Nicholas Opiyo (@nickopiyo) August 8, 2014
Opiyo spoke to TIME magazine about what has and hasn’t changed since the Anti-Homosexuality Act was struck down:
Nothing has changed much. The deep sense of homophobia in Uganda remains unchanged. In any case, it’s only been made worse by this ruling, because the debate has been reopened in a more bitter and fierce manner than we’ve seen before. To be positive, certain incidental things that are good will happen because of the ruling. First, individuals and organizations that have been facing arrest, intimidation or investigation will now have all those cases against them dropped, because the very foundation for these cases has now been declared unlawful. Organizations that have been closed under the [Anti-Homosexuality Act] will now have their operations resume without the fear of the law constricting their work. Even if parliament is resolved, as they are now, to reintroduce the law … they will at least pay attention, some attention to the issues that we have raised in our petition, and perhaps have a somewhat watered down or even—I’m hoping—progressive law in that regard.
This law was one of a couple of instances of morality politics coming into play in Uganda. What do you think the draw is to laws like this in Uganda and across Africa?
There has been a growing influence of American evangelical ideologies in the policies of government in Uganda. The examples are plenty in Uganda—in the HIV/AIDS campaign, Uganda was praised for its response to the HIV/AIDS campaign because it had the message for condom use. When the Christian evangelists got a foothold in influencing government, the policies changed from condom use to abstinence and being faithful. Condoms were “by-the-way;” that was the influence of what we call in Uganda people who are saved. If you look at the laws that have passed since then, whether it is a media law or an NGO law, it has a strong element of public morality. That’s new, what seems to be in my view, a moralization of the legislation process. They have a strong foothold in government mainly because the Pentecostal movement is a big movement. They have numbers, they have young people, and they have a huge following. Politicians like numbers.
MP Fox Odoi Oywelowo, one of the ten named petitioners to Uganda’s Constitutional Court, has criticized AHA supporters for petitioning Speaker Rebecca Kadaga to circumvent Parliament’s rules again and call for a snap vote on the law without formally reintroducing it in Parliament and following the normal procedures for passing a bill:
A day earlier, well-respected journalist Andrew Mwenda, who was also one of the petitioners, appeared on an NTV Uganda talk show to talk about the Anti-Homosexuality Act in a global context:
Daily Monitor, Uganda’s largest independent newspaper, reports that the Netherlands, Sweden, United Kingdom and the U.S. are resuming foreign aid to Uganda. And just four days after the court nullified the law, President Barack Obama and the First Lady welcomed Ugandan President Yoweri Museveni for a White House dinner during a three-day summit of 50 African heads of state in Washington, D.C. The photo of the three, which was released by the State Department, drew criticisms from human rights advocates:
“Rolling out the literal red carpet for some of Africa’s longest serving dictators that clearly do not respect the fundamental human rights of their citizens will always paint an unfortunate picture of the U.S. and our relationship with the continent,” Jeffrey Smith of the Robert F. Kennedy Center for Justice and Human Rights told the Washington Blade on Thursday. “It provides easy ammunition to critics who claim the U.S. is only interested in working with those who lend a hand in the fight against terrorism, like Uganda, or those who sit on vast oil reserves, as in Nigeria.”
Nikki Mawanda, a transgender advocate from Uganda who is currently seeking asylum in the U.S., also questioned Obama’s decision to invite Museveni to the White House. “It’s basically beyond proper,” Mawanda told the Blade on Thursday. “It shows us the president is very comfortable with what Museveni is doing and basically they can sit and mingle.”
Also attending the White House dinner were:
- Nigerian President Goodluck Jonathan, who signed a similarly draconian anti-gay law last January.
- Gambian President Yahya Jammeh, who once threatened to “cut off the head” of any LGBT person he found in his country.
- Cameroonian President Paul Biya and his wife. Cameroon has conducted several roundups of LGBT people over the past several years. Eric Ohena Lembemb, an LGBT rights advocate, was found tortured and murdered in his home in 2013.
- Mauritanian President Mohamed Ould Abdel Aziz. Maurtiania imposes the death penalty for those convicted of consensual same-sex relationships.
Obama Administration to Argue Against State Marriage Bans Before Supreme Court
July 15th, 2014
Over the weekend, Attorney General Eric Holder announced that the Justice Department will urge the U.S. Supreme Court to uphold lower court rulings which have struck down bans against same-sex marriage in more than twenty states:
If the Supreme Court agrees to hear any of those cases, the Justice Department will file a brief with the court that “will be in support of same-sex marriage,” Holder said in a rare interview, sitting down with ABC News’ Pierre Thomas.
Holder said the brief would be “consistent with the actions that we have taken over the past couple of years.” The Justice Department has refused to defend the Defense of Marriage Act, which defines marriage as between a man and a woman, and its legal efforts to extend federal benefits to same-sex couples have been successful.
Holder called the battle for marriage equality “a defining civil rights challenge of our time.”
Last week, the Attorney General’s office for the state of Utah announced that it would take its appeal of a lower court ruling striking down the state’s same-sex marriage ban straight to the U.S. Supreme Court rather than ask for an en banc hearing before the entire Tenth Circuit. A three-judge panel of the Tenth Circuit in June upheld a Federal District Court’s ruling which declared Utah’s ban against same-sex marriage unconstitutional.
Kerry: We Will Review Our Relationship With Uganda, Including Assistance Programs
February 24th, 2014
The State Department released this statement from Secretary of State John Kerry:
This is a tragic day for Uganda and for all who care about the cause of human rights. Ultimately, the only answer is repeal of this law.
The United States is deeply disappointed in the enactment of the Anti-Homosexuality Bill in Uganda. For the four years since the bill was introduced, we have been crystal clear that it blatantly violates human rights obligations that Uganda’s Human Rights Commission itself has recognized are enshrined in Uganda’s Constitution
Today’s signing threatens a dangerous slide backward in Uganda’s commitment to protecting the human rights of its people and a serious threat to the LGBT community in Uganda.
We are also deeply concerned about the law’s potential to set back public health efforts in Uganda, including those to address HIV/AIDS, which must be conducted in a non-discriminatory manner in order to be effective.
As President Obama stated, this legislation is not just morally wrong, it complicates a valued relationship. Now that this law has been enacted, we are beginning an internal review of our relationship with the Government of Uganda to ensure that all dimensions of our engagement, including assistance programs, uphold our anti-discrimination policies and principles and reflect our values.
From Nigeria to Russia and Uganda, we are working globally to promote and protect the human rights of all persons. The United States will continue to stand against any efforts to marginalize, criminalize, and penalize vulnerable persons in any society.
The White House Press Secretary adds:
Instead of standing on the side of freedom, justice, and equal rights for its people, today, regrettably, Ugandan President Museveni took Uganda a step backward by signing into law legislation criminalizing homosexuality. As President Obama has said, this law is more than an affront and a danger to the gay community in Uganda, it reflects poorly on the country’s commitment to protecting the human rights of its people and will undermine public health, including efforts to fight HIV/AIDS. We will continue to urge the Ugandan government to repeal this abhorrent law and to advocate for the protection of the universal human rights of LGBT persons in Uganda and around the world.
Report: US to Provide “Further Evidence” to Counter Uganda’s “Scientific Report” on Homosexuality
February 18th, 2014
National Security Adviser Susan Rice’s Tweeted on Sunday saying, she “Spoke at length with President Museveni last night to urge him not to sign anti-LGBT bill.” In a following Tweet, she echoed Obama’s statement, adding: “Told him it will be huge step backward for Uganda and the world.” Uganda’s independent Daily Monitor this morning provided some additional information on that conversation:
Barely 24 hours after his Kyankwanzi pronouncement, the President was already facing the “battle” with the American National Security Adviser, Ms Susan Rice, calling Mr Museveni to express her government’s and Mr Obama’s reservations on the matter.
According to the Foreign Affairs Permanent Secretary, Ambassador James Mugume, the Americans had called to offer “further evidence” that homosexuality is a natural behaviour in contradiction with what the local scientists had presented.
“We are discussing with the US government. We are waiting to see what they have [to present]. I am told that the Americans have some materials and evidence that they feel were left out by our scientists,” Mr Mugume said in a telephone interview yesterday.
Asked when the US was scheduled to table the said evidence, Ambassador Mugume could not give a clear time-line, only saying: “It will not take a lot of time. It will be soon.”
You can read Uganda’s “scientific report” here.
Obama: Anti-Homosexuality Bill “Will Complicate Our Valued Relationship With Uganda”
February 16th, 2014
The WHite House has issued this statement by President Barack Obama on Uganda’s pending adoption of the Anti-Homosexuality Bill:
As a country and a people, the United States has consistently stood for the protection of fundamental freedoms and universal human rights. We believe that people everywhere should be treated equally, with dignity and respect, and that they should have the opportunity to reach their fullest potential, no matter who they are or whom they love.
That is why I am so deeply disappointed that Uganda will shortly enact legislation that would criminalize homosexuality. The Anti-Homosexuality Bill in Uganda, once law, will be more than an affront and a danger to the gay community in Uganda. It will be a step backward for all Ugandans and reflect poorly on Uganda’s commitment to protecting the human rights of its people. It also will mark a serious setback for all those around the world who share a commitment to freedom, justice and equal rights.
As we have conveyed to President Museveni, enacting this legislation will complicate our valued relationship with Uganda. At a time when, tragically, we are seeing an increase in reports of violence and harassment targeting members of the LGBT community from Russia to Nigeria, I salute all those in Uganda and around the world who remain committed to respecting the human rights and fundamental human dignity of all persons.
Pres. Obama Reacts
November 5th, 2013
— Barack Obama (@BarackObama) November 5, 2013
Obama: No Patience For Countries Which Mistreat LGBT People (Updated)
August 7th, 2013
Jay Leno: Something that shocked me about Russia and I’m surprised this is not a huge story. Suddenly, homosexuality is against the law. I mean, this seems like Germany. Let’s round up the Jews, let’s round up the gays, let’s round up the blacks… I mean, it starts with that: you round up people who you don’t like… I mean, why isn’t more of the world outraged at this?
Barack Obama: Well, I’ve been very clear that when it comes to universal rights, when it comes to people’s basic freedoms, whether you are discriminating on the basis of race, religion, gender, or sexual orientation, you are violating the basic morality that I think should transcend every country. And I have no patience for countries that try to treat gays of lesbians or transgender persons in ways that intimidate them or are harmful to them. Now, what’s happening in Russia is not unique. When I travelled to Africa, there were some countries that were doing a lot of good things for their people who we’re working with and helping on development issues, but in some cases have persecuted gays and lesbians. And it makes for some uncomfortable press conferences sometimes. But one of the things I think is very important for me to speak out on is making sure that people are treated fairly and justly because that’s what we stand for and I believe that that’s a precept that’s not unique to America. That’s something that should apply everywhere. [Applause]
Leno: Do you think it will affect the Olympics?
Obama: You know, I think Putin and Russia have a big stake in making sure that the Olympics work, and I think that they understand that for most of the countries that participate in the Olympics, we wouldn’t tolerate gays and lesbians being treated differently. They are athletes. They are there to compete. And if Russia wants to uphold the Olympic spirit, then every judgment should be made on the track or in the swimming pool or the balance beam and people’s sexual orientation shouldn’t have anything to do with it.
That exchange between Leno and Obama took place last night on the Tonight Show. This morning, the White House has announced that Obama is canceling the planned summit with Russian President Vladimir Putin which had been scheduled to take place next Monday ahead of the September G-20 summit in St. Petersburg. While press secretary Jay Carney cited “lack of progress” on a broad range of issues over the last year, the cancelation is seen as a display of White House anger over Russia’s decision to grant Edward Snowden temporary asylum.
Update: A White House official confirmed to John Avarosis that Russia’s anti-gay law was one of many factors leading to the cancellation:
An Obama administration official just confirmed to me that today’s sudden cancellation of President Obama’s anticipated meeting with Russian President Vladimir Putin during next month’s G20 meeting in Russia was in part due to the President’s concerns about the deteriorating gay rights situation in Russia.
The official told me that among the concerns leading to the cancellation of the bilateral meeting with Putin was the worsening human rights situation in Russia, which specifically included the Russian government’s recent crackdown on the gay and trans community.
The Washington Blade confirms the statement.
Justice Department Did NOT Step In As BLAG Pulls Out
July 19th, 2013
A Report that the Justice Department filed a brief opposing a request by gay veterans and their spouses for judgment in their favor their challenge to veterans’ benefits statutes led to some confusion as to what the Justice Department’s objections really were. One interpretation was that the Justice Department was trying to take up the work of the GOP-controlled House Bipartisan Legal Advisory Group (BLAG) after BLAG announced that they would drop their efforts to prevent the veterans spousal and family benefits from being extended to married same-sex couples. But according to the actual filing by the Justice Department:
In light of the Supreme Court’s decision in Windsor, striking down Section 3 of DOMA, the Department of Defense will now construe the definitional provisions of “spouse” in Titles 10and 32 to include same-sex spouses See Extending Benefits to Same-Sex Domestic Partners of Military Members, Memorandum for Secretaries of the Military Departments, Feb. 11, 2013, available at http://www.defense.gov/news/Same-SexBenefitsMemo.pdf (“In the event that the Defense of Marriage Act is no longer applicable to the Department of Defense, it will be the policy of the Department to construe the words ‘spouse’ and ‘marriage’ without regard to sexualorientation, and married couples, irrespective of sexual orientation, and their dependents, will begranted full military benefits.”). The Department of Defense intends to expeditiously make available benefits provided under Titles 10 and 32 to the same-sex spouses of servicemembers. To that end, the Department of Defense is currently working to revamp its Defense Enrollment Eligibility Reporting System (“DEERS”), a computerized database of military sponsors, families and others who are entitled to various military benefits. Indeed, the central claim in the Complaint is Plaintiffs’ inability to enroll in DEERS, which in turn has prevented Plaintiffs fromfiling claims for military benefits.
Because the Supreme Court has already struck down Section 3 of DOMA in Windsor, there is no need for this Court to grant any declaratory relief with respect to Section 3 of DOMA.There is also no need for this Court to grant declaratory or injunctive relief with respect to the definitional provisions of Titles 10 and 32. As noted above, the government will apply these provisions in light of Windsor to include same-sex spouses. There is no longer any dispute with respect to Defendants’ obligations to process and consider Plaintiffs’ claims for military benefits because the government agrees that it needs to do so, and is working to do so as it implements the Supreme Court’s decision in Windsor. Given the government’s agreement, there is no longer any case or controversy with respect to Plaintiffs’ Titles 10 and 32 claims.
The Justice Department then went on to argue that, with DOMA3 out of the way and the Defense Department moving to implement the Windsor decision, the court had no jurisdiction on procedural grounds. BLAG was seeking to block veterans spouses from accessing veterans benefits altogether, which is precisely the opposite of what this motion says.
Justice Department steps in after BLAG pulls out
July 19th, 2013
Earlier today we learned that the House Bipartisan Legal Legal Advisory Group (BLAG), under the direction of Republican Speaker of the House John Boehner, had ceased defending any of the laws which seek to distinguish between opposite-sex and same-sex marriage. Most of us assumed that meant that there was no opposition to the judge in McLaughlin v. Panetta awarding spousal benefits.
But in an odd turn of events, the Obama Administration has stepped in to oppose the assignment of benefits. (Chris Geidner at BuzzFeed, who has been all over this story).
The Justice Department, however, goes on to claim two reasons why the court should not rule in the veterans and their same-sex spouses on their claims regarding Title 38. The first is an argument that “no plaintiff has sufficiently alleged that he or she has applied for or would be entitled to veterans’ benefits but for the definitional provisions in Title 38.”
“We disagree with that and will be addressing that with the court,” an attorney for the plaintiffs, Christopher Man with Chadbourne and Park, told BuzzFeed Thursday night.
The second reason, according to Justice Department lawyers, is that the court doesn’t have “jurisdiction to hear any claim for veterans’ benefits” because the Veterans’ Judicial Review Act “provides an exclusive review scheme for veterans to pursue benefits claims, including raising constitutional challenges to statutes and regulations that govern veterans’ benefits.”
While the second reason may have some technical merit (outweighed, I believe, by the question before the judge about the constitutionality of unequal treatment), the first is mouth-gapingly nonsense. It is difficult to fathom how suing in federal court for benefits is not sufficient evidence that Major McLaughlin would have applied for them had they been available.
Obama: Marriage Benefits Should Cross State Lines
June 27th, 2013
One of the unsettled questions in light of yesterday’s DOMA ruling is whether a same-sex couple living in Pennsylvania (where there is no marriage equality in state law) but married in New York (where there is) is entitled to federal recognition of their marriage. President Barack Obama, speaking while on tour in Africa, has White House lawyers looking into the issue:
He says as president, he believes federal benefits should be granted to couples married in a state that recognizes gay marriage even if they move to a state that doesn’t.
Obama says he asked his lawyers to start evaluating how to update federal statutes to grant gay couples federal benefits even before the high court ruled.
Rep. Jerrold Nadler (D-NY) and Sen. Dianne Feinstein (D-CA) introduced the Respect for Marriage Act in their respective chambers yesterday, which would repeal the remaining provision of DOMA that allows states to ignore lawful same-sex marriages performed in other states. It would also explicitly clarify the question of whether Federal recognition of a marriage is dependent on the couple’s residency. While the measure enjoys bipartisan support, no movement is expected in the GOP-controlled House.
Obama Administration Moves Quickly on DOMA’s Demise
June 26th, 2013
President Barack Obama issued the following statement:
I applaud the Supreme Court’s decision to strike down the Defense of Marriage Act. This was 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. 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.
This ruling is a victory for couples who have long fought for equal treatment under the law; for children whose parents’ marriages will now be recognized, rightly, as legitimate; for families that, at long last, will get the respect and protection they deserve; and for friends and supporters who have wanted nothing more than to see their loved ones treated fairly and have worked hard to persuade their nation to change for the better
So we welcome today’s decision, and I’ve directed the Attorney General to work with other members of my Cabinet to review all relevant federal statutes to ensure this decision, including its implications for Federal benefits and obligations, is implemented swiftly and smoothly.
On an issue as sensitive as this, knowing that Americans hold a wide range of views based on deeply held beliefs, maintaining our nation’s commitment to religious freedom is also vital. How religious institutions define and consecrate marriage has always been up to those institutions. Nothing about this decision – which applies only to civil marriages – changes that.
The laws of our land are catching up to the fundamental truth that millions of Americans hold in our hearts: when all Americans are treated as equal, no matter who they are or whom they love, we are all more free.
Attorney General Eric Holder is responds to the President’s request:
Today’s historic decision in the case of United States v. Windsor, declaring Section 3 of the Defense of Marriage Act unconstitutional, is an enormous triumph for equal protection under the law for all Americans. The Court’s ruling gives real meaning to the Constitution’s promise of equal protection to all members of our society, regardless of sexual orientation. This decision impacts a broad array of federal laws. At the President’s direction, the Department of Justice will work expeditiously with other Executive Branch agencies to implement the Court’s decision. Despite this momentous victory, our nation’s journey – towards equality, opportunity, and justice for everyone in this country – is far from over. Important, life-changing work remains before us. And, as we move forward in a manner consistent with the Court’s ruling, the Department of Justice is committed to continuing this work, and using every tool and legal authority available to us to combat discrimination and to safeguard the rights of all Americans.
Secretary of Defense Chuck Hagel also issued a statement promising to “immediately begin the process” of ensuring all military spouses enjoy the same benefits “as soon as possible“:
The Department of Defense welcomes the Supreme Court’s decision today on the Defense of Marriage Act. The department will immediately begin the process of implementing the Supreme Court’s decision in consultation with the Department of Justice and other executive branch agencies. The Department of Defense intends to make the same benefits available to all military spouses — regardless of sexual orientation — as soon as possible. That is now the law and it is the right thing to do.
Every person who serves our nation in uniform stepped forward with courage and commitment. All that matters is their patriotism, their willingness to serve their country, and their qualifications to do so. Today’s ruling helps ensure that all men and women who serve this country can be treated fairly and equally, with the full dignity and respect they so richly deserve.
Obama: If Cal’s Prop 8 Is Unconstitutional, Then All the Other Bans Are Probably Unconstitutional
March 1st, 2013
Sequester? What sequester? Something about this thing called a “sequester” was the main topic of President Barack Obama’s press conference earlier today, but the really important thing was what he said when responding to a question about same-sex marriage:
Obama Administration Files Brief Asking Supreme Court To Strike Down Prop 8
March 1st, 2013
The U.S. Department of Justice met today’s deadline for filing an Amicus brief urging the U.S. Supreme Court to strike down California’s Proposition 8 as unconstitutional. U.S. Solicitor General Donald Verrilli opens the administration’s case against Prop 8 by arguing that because California law already provides all-but-marriage in the form of Domestic Partnerships, withholding the designation of marriage does nothing to further governmental interests:
Private respondents, committed gay and lesbian couples, seek the full benefits, obligations, and social recognition conferred by the institution of marriage. California law provides to same-sex couples registered as domestic partners all the legal incidents of marriage, but it nonetheless denies them the designation of marriage allowed to their opposite-sex counterparts. Particularly in those circumstances, the exclusion of gay and lesbian couples from marriage does not substantially further any important governmental interest. Proposition 8 thus violates equal protection.
It is on this point — that while California provides all of the benefits of marriage to everyone, only straight people get to call themselves “married” under the law — that Virrelli appears to suggest that many other states are also running afoul of equal protection for the same reason:
California is not alone in this regard. Seven other states provide, through comprehensive domestic partnership or civil union laws, same-sex couples rights substantially similar to those available to married couples, yet still restrict marriage to opposite-sex couples: Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island. The designation of marriage, however, confers a special validation of the relationship between two individuals and conveys a message to society that domestic partnerships or civil unions cannot match.
Proposition 8’s denial of marriage to same-sex couples, particularly where California at the same time grants same-sex partners all the substantive rights of marriage, violates equal protection. The Fourteenth Amendment’s guarantee of equal protection embodies a defining constitutional ideal that “all persons similarly situated should be treated alike.” The object of California’s establishment of the legal relationship of domestic partnership is to grant committed same-sex couples rights equivalent to those accorded a married couple. But Proposition 8, by depriving same-sex couples of the right to marry, denies them the “dignity, respect, and stature” accorded similarly situated opposite-sex couples under state law, and does not substantially further any important governmental interest. It thereby denies them equal protection under the law. [References omitted]
Depending on how the Supreme Court rules, one can imagine other court challenges emerging in other states using many of the same arguments Virrelli makes in this brief.
Virrelli argues, as he did in the merits brief for U.S. v. Windsor, that “classifications based on sexual orientation call for application of heightened scrutiny, and that Prop 8 fails under that test. (In fact, just about all of the arguments made in this brief neatly parallel those made in the brief for Windsor.) As an interesting example of one of the ways in which Prop 8 fails that test, Virrelli points to the California Voter Guide:
To the extent the Voter Guide offered a distinct ra-tionale favoring child-rearing by married opposite-sex couples, Proposition 8 neither promotes that interest nor prevents same-sex parenting. The overwhelming expert consensus is that children raised by gay and lesbian parents are as likely to be well adjusted as chil-dren raised by heterosexual parents. In any event, notwithstanding Proposition 8, California law continues to grant same-sex domestic partners the full extent of parental rights accorded to married couples. In that context, the exclusion of same-sex couples from marriage bears no substantial relation to any interest in promoting responsible procreation and child-rearing. [References omitted]
By pointing to the Voter Guide, Virrelli hints toward the argument, which was part of the Federal District Court ruling, that Proposition 8 was the product of anti-gay prejudice. Virelli, again citing the Voter Guide, went on to build the foundation for that case:
First, preserving a tradition of limiting marriage to heterosexuals is not itself a sufficiently important interest to justify Proposition 8. … Nor do petitioners point to any evidence that permitting same-sex couples to marry will affect the “traditional” marriages of opposite-sex couples.
Second, protecting children from being taught about same-sex marriage is not a permissible interest insofar as it rests on a moral judgment about gay and lesbian people or their intimate relationships. See Lawrence v. Texas, 539 U.S. 558, 577-578 (2003). Nor does Proposition 8 substantially further any such interest given California’s educational policies, which have never required teaching children about same-sex marriage and which prohibit instruction that discriminates based on sexual orientation.
Incidentally, the brief also includes, I think, one of the pithiest arguments against the contention that procreation makes marriage between opposite-sex couples unique:
Petitioners contend (Br. 33) that the “overriding purpose of marriage” is “to regulate sexual relationships between men and women so that the unique procreative capacity of such relationships benefits rather than harms society.” Based upon that premise, petitioners centrally defend Proposition 8 on the ground that “traditional” marriage serves to address the problem of “unintended pregnancies.” … As this Court has recognized, marriage is much more than a means to deal with accidental offspring… Petitioners’ unduly narrow conception of the institution of marriage would hardly be recognizable to most of its participants.
Virelli then comes to this conclusion — which includes a timely shout-out to Justice Kennedy, who is believed to be the swing vote on this issue:
California’s extension of all of the substantive rights and responsibilities of marriage to gay and lesbian domestic partners particularly undermines the justifications for Proposition 8. It indicates that Proposition 8’s withholding of the designation of marriage is not based on an interest in promoting responsible procreation and child-rearing — petitioners’ central claimed justification for the initiative — but instead on impermissible prejudice. As the court of appeals observed (Pet. App. 87a),that is not necessarily to say “that Proposition 8 is the result of ill will on the part of the voters of California.” ‘Prejudice, we are beginning to understand, rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful,rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.” Board of Trs. of Univ.of Ala. v. Garrett, 531 U.S. 356, 374 (2001) (Kennedy, J.,concurring). Prejudice may not, however, be the basis for differential treatment under the law.
Selma and Stonewall
January 21st, 2013
I was delighted to hear President Obama call for equality under the law for gay and lesbian Americans. But one part of his speech, even more than that call, struck me as a significant change in the language of our struggle.
We, the people, declare today that the most evident of truths – that all of us are created equal – is the star that guides us still; just as it guided our forebears through Seneca Falls, and Selma, and Stonewall; just as it guided all those men and women, sung and unsung, who left footprints along this great Mall, to hear a preacher say that we cannot walk alone; to hear a King proclaim that our individual freedom is inextricably bound to the freedom of every soul on Earth.
Repeatedly our opponents, especially those who are African-American preachers, insist that our quest for equal treatment before our civil government does not fit within the rubric of “civil rights”. Tony Evans, pastor of the 9,000-member Oak Cliff Bible Fellowship in Dallas spoke with NPR last May:
Evans and others say the black family is in crisis — a majority of babies, for example, are born to single mothers — and that’s why black ministers are often the most vocal opponents of same-sex marriage. Asked about the argument that this is a civil rights issue, Evans bristles.
“The issue of race is not an issue of choice. It’s an issue of birth,” he says.
Does that mean that homosexuality is a choice?
“The Bible is clear on that one, too. And that is, sexual relationships are to be between men and women within the context of marriage,” Evans says. “That’s not only related to the issue of homosexuality, but adultery, or fornication or bestiality. All of that is proscribed in the Bible.”
Though the tide has turned in the black community and though those who know the civil rights struggle for racial equality most intimately have championed our cause, there still remain those who think that gay people are stealing the rightful ownership of civil rights from those who fought for it. And even some who have come to support us still see our discrimination as secondary and less severe.
But this paragraph included in the President’s address casts the convention at Seneca Falls for women’s right, the marches from Selma to Montgomery for racial rights, and the riot at the Stonewall Inn for sexual orientation as one. And it was in the context of that quest for women’s, black, and gay equality that Obama quotes Dr. Martin Luther King. On this day set aside of honor Dr. King.
This was, for me, an unexpected statement, of which the implication is unmistakable. The quest for equality for our community is a civil rights battle. It always has been, but now the most influential and important African-American alive has spoke of it as so in one of his most important and broadly heard speeches.
The impact of that statement has the potential to be enormous in this country and beyond.