Today the American Foundation for Equal Rights (AFER) left some very good news in my mail box. AFER’s federal constitutional challenge to California’s Prop 8 is entering its final stage, and we are closer to disposing of this unconstitutional same-sex marriage ban for good. The Ninth Circuit Court of Appeals decided today that it would not rehear AFER’s case, leaving only two possibilities:

  • Same-sex couples start getting married again in California; or
  • AFER’s case for marriage equality goes to the U.S. Supreme Court.

Either way, this is very good news. It is time to put Prop 8 on the trash heap where it belongs. It’s time to stop LGBT couples in California from being treated like second-class citizens.

DOMA Ruled Unconstitutional Yet Again (But Don’t Count Your Chickens)

There is no question that the issue of marriage equality is moving forward. The momentum is there. The latest ruling against the Defense of Marriage Act (DOMA) is another nail in the coffin. But it’s just one more nail. In Boston, the 1st U.S. Circuit Court of Appeals ruled unanimously last Thursday that DOMA is unconstitutional. This ruling agreed with a lower court judge who ruled in 2010 that DOMA is unconstitutional because blocked the right of a state to define marriage.

The judges ruling in the Boston case, Judges Juan Torruella and Michael Boudin, are both Republican appointees. Boudin authored the ruling, which states, “DOMA does not formally invalidate same-sex marriages in states that permit them, but its adverse consequences for such a choice are considerable. Notably, it prevents same-sex married couples from filing joint federal tax returns, which can lessen tax burdens, see 26 U.S.C. § 1(a)-(c), and prevents the surviving spouse of a same-sex marriage from collecting Social Security survivor benefits, e.g., 42 U.S.C. § 402(f), (i). DOMA also leaves federal employees unable to share their health insurance and certain other medical benefits with same-sex spouses.”

The court declined to rule on the DOMA provision that grants the states the right to deny marriage benefits to same-sex couples who were married in other states. Boudin, a George H.W. Bush appointee, said that it is highly likely that the issue will go before the U.S. Supreme Court.

Mary L. Bonauto, who argued the Boston case for Gay and Lesbian Advocates and Defenders (GLAD), points out that the case presents only “the question of how the federal government treats people once they are married in their states.” Bonauto further says, “We think this is a very solid decision to go before the Supreme Court.” GLAD does not expect a decision until 2013.

Same-sex marriage supporters tend to get euphoric over these small steps. While these are both necessary and important victories, we are a long way from federal Constitutional approval of same-sex marriage. Likewise, my LGBT friends were euphoric over Barack Obama’s evolution on same-sex marriage. While I’m not being critical or nit-picky, the fact is that the president probably would not have made his position public had it not been for Vice President Biden’s statement that he’s comfortable with same-sex marriage. It helped to ramp up the pressure on the president. Keep in mind that Barack Obama never promised a federal move on same-sex marriage, but rather said it’s up to the states.

While the Obama administration took the important step of refusing to defend DOMA in court last year, Speaker of the House John Boeher and House Republicans hired Paul D. Clement – solicitor general in the administration of George W. Bush – to defend the law in court. It is expected that taxpayers are responsible for the $1.5 million to defend the law at a time when America’s attitude toward same-sex marriage is shifting to the positive. That is a colossal waste of taxpayer dollars that can be used elsewhere.

Reactions are as one would expect

Reactions to the ruling are as one would expect.

Kris Mineau, President of the Massachusetts Family Institute reacted to the news, “This Court has followed the same flawed logic as the Margaret Marshall-led Massachusetts Supreme Judicial Court in throwing out the historical definition that marriage is between a man and a woman, the essential institution for the procreation and nurturing of children. The ruling refutes every credible study on the importance of mother-father led families in promoting a healthy society.”

“This Court has the audacity to hold the federal government hostage and force all Americans to recognize a radical social experiment from Massachusetts. This is a denigration of our federalist system and its time-tested reliability.’’

Mineau is referring to Margaret Marshall, the 24th Chief Justice of the Massachusetts Supreme Court, and the first woman to ever hold that position. She authored the decision in Goodridge v. Dept. of Public Health that declared the Massachusetts Constitution does not permit the state to deny citizens the right to same-sex marriage.

Apparently Mineau also doesn’t recognize that the “radical social experiment” has been a success here in my state. We were the first state to legalize same-sex marriage in the nation in 2004. It has been a civil rights success that has done nothing to harm the institution of marriage or impact the state negatively. It is officially a non-issue for most people in the state.

Massachusetts Governor Deval Patrick also weighed in on the ruling, “I applaud the appeals court ruling for reaffirming what we in Massachusetts have known for some time now — same sex couples are entitled to the same rights and protections under the constitution as all other families. Anything less is discriminatory and runs counter to the values of equality and opportunity we hold dear in this country. This is another important step forward in the long walk towards justice.”

The U.S. Conference of Catholic Bishops’ Subcommittee for the Protection and Defense of Marriage was, of course, disappointed with the court’s ruling. Did we expect anything else from a group with such an involved name?

The chairman of the subcommittee, Bishop Salvatore Cordileone of Oakland, noted, “The federal appeals court in Boston did a grave injustice yesterday by striking down that part of the Defense of Marriage Act that reasonably recognizes the reality that marriage is the union of one man and one woman. DOMA is part of our nation’s long-established body of law rooted in the true meaning of marriage. Hopefully, this unjust ruling will be overturned by the U.S. Supreme Court, for the benefit of our nation’s children, and our nation as a whole.”

Actually, the nation does not have a long-established body of law with regard to same-sex marriage. That is a Catholic fantasy. DOMA was passed in 1996 and has been around for just 15 years.

Unlike the Catholics, the Reform movement, the Anti-Defamation League, and Rabbis for Human Rights-North America welcomed the court’s decision.

“We commend the First Circuit Court of Appeals’ unanimous decision striking down the discriminatory Defense of Marriage Act’s provisions denying federal benefits to legally married same-sex couples,” Mark Pelavin, associate director of the Religious Action Center of Reform Judaism, said in a press statement. “Today’s decision is a vital, overdue, and very welcome step toward marriage equality and a more just society.”

The National Council of Jewish Women (NCJW) said it was “proud” to have filed a friend of the court brief in the case.

Where do we go from here?

Since 2004, eight states have legalized same-sex marriage, while 31 have passed laws banning it. While the momentum is moving in a positive direction, we have a long way to go. If we truly believe in the Constitution, we cannot think like Barack Obama and say it is a states issue. The denial of civil rights is a national issue and civil rights issues are not ballot issues like changing the drinking age or adjusting the tax rate.

While the LGBT community should be celebrating these victories we must keep a perspective. Even though this decision is likely to be appealed to the Supreme Court, we must remember that it will be a narrow decision. We should also not forget that there are bound to be setbacks along the way. The message here is don’t just sit back (as we Americans are so prone to do) and wait for it to happen as if Washington will do the right thing. We not only have to remain vigilant. We must become part of the process if we want to move toward a more just society for all.