Michiganers May Marry

Another day, another state marriage ban on same-sex marriage falls.  This time, the case, DeBoer v. Snyder, from Michigan.  The legal portion of the opinion is not particularly groundbreaking albeit emotionally compelling.  Judge Bernard Friedman (a Reagan appointee, not that it matters) struck down the law based on a rational basis review under the Equal Protection Clause.  Other courts have been more groundbreaking legally or have interpreted United States v. Windsor more expansively, but Judge Friedman’s opinion is just as important, although for a completely different reason.

Until now, every post-Windsor victory has come via summary judgment, or in the case of Texas, preliminary injunction.  This means that none of those cases has gone to trial.  DeBoer however, did go to trial, and the reason for that is because unlike the other cases, DeBoer actually predates the Supreme Court’s Windsor decision.  Originally DeBoer was about adoption rights.  The lesbian plaintiffs–who are a couple–could not jointly adopt their three children because Michigan law allows only married couples to jointly adopt, and same-sex couples cannot marry under the Michigan constitution.  The plaintiffs, when they initially went to court, were concerned only about adoption not marriage.  Judge Friedman concluded that the plaintiffs were making the wrong argument.  He offered the plaintiffs the chance to amend their complaint to challenge the state’s marriage ban, which they did.  Michigan filed to dismiss the complaint, and Judge Friedman put the case on hold until after the Supreme Court handed down Windsor.

Following Windsor, Judge Friedman concluded that he could not just grant summary judgment to either side.  Therefore, he ordered a trial to be fast tracked.  After this decision, federal courts in Utah, Oklahoma, Virginia, Texas, Kentucky, and Ohio all struck down state marriage bans in part or in total.  I suspect (but cannot prove) that had the summary judgment motions in DeBoer been considered after other post-Windsor decisions, Judge Friedman would have also issued summary judgment.  Judges are conservative creatures by nature, and when there is no precedent (like, for example, four or five other federal judges striking down marriage bans on preliminary motions), they are more likely to act methodically.  In this case, “methodically” meant a full trial in which both sides brought in expert witnesses.

What makes the Michigan case so important however, is the trial itself.  Trials are slow, frustrating, and boring.  Yet, now when these cases finally reach the Supreme Court there will be a record of a neutral arbiter hearing the actual evidence and deciding accordingly.  Appellate courts hear the law, but the fact finder (usually the jury, but in this case the trial judge) hears the facts, which the appellate court almost never touches.  In this case, Michigan’s entire argument was based around a belief that marriage should be limited to heterosexual couples because children do better in homes with a mother and a father.  Judge Friedman found the evidence presented at trial did not support this argument.  Ergo, Michigan had no legitimate reason to ban same-sex marriage (the test for rational basis review).  While an appellate court may say that Judge Friedman somehow misapplied the law, that court will almost certainly not dispute his findings.  In other words, no future opinion in this case will look at the record and conclude that heterosexual couples make better parents.  Which means that Michigan’s central argument will not hold water.

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DeBoer was not the first trial in which a state constitutional amendment was adjudicated (and struck down).  The Prop 8 case also went to trial, although because of its procedural issues, the Supreme Court never addressed the substance of the case.  That will not happen here; Michigan will fight until the end.

Back when Prop 8 was being litigated, supporters of same-sex marriage had mounds of evidence on their side whereas opponents were caught pretty much flat-footed.  Their expert witnesses were terrible on the stand, and for good reason; few of them were anything remotely like experts.  None of them held up under David Bois’s ruthless cross-examination.  One of opponents’ witnesses, David Blakenhorn, has even since reversed his position and now supports marriage equality.

Following their humiliation in California, right-wing institutes, most prominently the Heritage Foundation, commissioned a series of studies in which data was manipulated so as to appear that children who grow up in same-sex households suffer as compared to their peers.  Unsurprisingly, the authors of these studies had a not-very-hidden religious and conservative agenda.  The most infamous of these studies was authored by University of Texas sociologist (and arch-Catholic) Mark Regnerus.  His study, the New Family Structures Study (“NFSS”), was designed with litigation (specifically Supreme Court litigation) as the ultimate goal.  Almost from the moment the NFSS was published, it was attacked for its faulty methodology and disingenuous conclusions.  Regnerus’s own university condemned his study (and did so again on the eve of his testimony in Michigan).  The journal that published the NFSS commissioned an internal audit following the outcry and concluded that the study should not have been published at all.  Nevertheless, equality opponents trumpeted the NFSS and groomed Regnerus for trial.  (The same criticism is true about all the studies from all the state’s expert witnesses, and Judge Friedman dismissed them all accordingly.)

At trial, Regnerus and all of the other state’s experts folded under the intense questioning of ACLU attorney Leslie Cooper.  Regnerus in particular was absolutely humiliated on the stand.  Nathaniel Frank wrote a great summation of how Cooper tore apart Regnerus.  For my own part, from following the trial and reading the background, I suspected that this trial could only come out in favor of the lesbian plaintiffs.  Therefore, I was–for the first time–less interested in the law than in the facts of the case, which I usually skip altogether.  In particular, I eagerly awaited Judge Friedman’s take on Regnerus and his study.

I was not disappointed.  Judge Friedman did not just disregard the NFSS, he (there is only one to say this) tore Mark Regnerus a new asshole.  I highly recommend the entire opinion, but in particular the section on Regnerus is pure gold and must be highlighted.

The Court finds Regnerus’s testimony entirely unbelievable and not worthy of serious consideration. The evidence adduced at trial demonstrated that his 2012 “study” was hastily concocted at the behest of a third-party funder, which found it “essential that the necessary data be gathered to settle the question in the forum of public debate about what kinds of family arrangement are best for society” and which “was confident that the traditional understanding of marriage will be vindicated by this study.”  In the funder’s view, “the future of the institution of marriage at this moment is very uncertain” and “proper research” was needed to counter the many studies showing no differences in child outcomes.  The funder also stated that “this is a project where time is of the essence.”  Time was of the essence at the time of the funder’s comments in April 2011, and when Dr. Regnerus published the NFSS in 2012, because decisions such as Perry v. Schwarzenegger, and Windsor v. United States, [ed: these are the trial court decisions, not the Supreme Court decisions] were threatening the funder’s concept of “the institution of marriage.”

While Regnerus maintained that the funding source did not affect his impartiality as a researcher, the Court finds this testimony unbelievable. The funder clearly wanted a certain result, and Regnerus obliged. Additionally, the NFSS is flawed on its face, as it purported to study “a large, random sample of American young adults (ages 18-39) who were raised in different types of family arrangements” (emphasis added), but in fact it did not study this at all, as Regnerus equated being raised by a same-sex couple with having ever lived with a parent who had a “romantic relationship with someone of the same sex” for any length of time. Whatever Regnerus may have found in this “study,” he certainly cannot purport to have undertaken a scholarly research effort to compare the outcomes of children raised by same-sex couples with those of children raised by heterosexual couples. It is no wonder that the NFSS has been widely and severely criticized by other scholars, and that Regnerus’s own sociology department at the University of Texas has distanced itself from the NFSS in particular and Dr. Regnerus’s views in general and reaffirmed the aforementioned [American Psychological Association] position statement.

DeBoer v. Snyder, Slip Opinion, pages 13-14.  (Citations omitted, but the scare quotes around “study” are directly from the opinion.)  Judge Friedman flat-out called Regnerus a liar and a hack, which is a strong accusation for a judicial opinion, especially one of such import.  Regnerus’s reputation was weak before, but now it is in complete tatters.  In the legal world, he is persona non grata.

The reason DeBoer is so important is that this trial highlighted the best arguments the anti-equality forces could muster, and now they have run out of time.  Marriage equality had previously won on the law; now it has indisputably won on the facts too.  Full marriage equality is a matter of when not if.  And as a happy coda, Judge Friedman did not stay his decision.  As of Saturday March 22, 2014, the day after the decision, same-sex marriage comes to Michigan as four counties have announced they will start issuing licenses (until a stay is inevitably issued).

[Update: The Sixth Circuit issued a stay Saturday afternoon after 300 couples married.]

Finally, the plaintiffs reading the decision:

Breaking News: Texas Messed With

Today, yet another federal judge struck down yet another state marriage ban.  Again, the judge relied on United States v. Windsor, which is truly the gift that keeps on giving.  This time the state is Texas.  Texas is not necessarily the worst state in the country (that dubious honor perpetually belongs to Mississippi), but, Austin excluded, Texas has a pretty bad reputation, especially under the ever-growing Tea Party influence.  Unfortunately, Texas is the second most populous state in the country and is vitally important to the national economy, so as much as some of us may wish Mexico would take it back, that just ain’t gonna happen.

Since Windsor, marriage bans in full or in part have fallen in states with particularly heinous records on gay rights: Utah, Oklahoma, Virginia, Kentucky, and now Texas.  Texas was one of the few states that still enforced sodomy laws, and was the opposition party in Lawrence v. Texas, the Supreme Court case which struck down those laws.  The decision out of Texas today is not particularly groundbreaking legally–the ban was struck down through both a rational basis review under the Equal Protection Clause and a strict scrutiny review of the Due Process Clause–but that is only because at this point in time (post-Windsor) such an expansive decision is legally conservative.  This decision will be appealed to the very conservative 5th Circuit, and that will be the most interesting decision yet: either the most conservative court in the country will buck the heretofore unanimous trend and find in favor of a state ban or it will acknowledge that Windsor effectively prohibits such bans.

However the 5th Circuit rules, these cases are headed back to the Supreme Court–and sooner rather than later.  Within a matter of months, there will be decisions out of the 4th, 5th, 6th, 9th, and 10th Circuits.  Can the others be far behind (excluding the 1st and 2nd in which all the states are marriage equality states)?   My question is not about when the Supreme Court takes up the issue, because the answer is obviously next term.  My question is whether the Supreme Court will review just one of those cases (a la Windsor) or combine all of the pending cases into a days-long super-case like Brown v. Board of Education.

Stay tuned.

Misreading Windsor

Ever since the Supreme Court handed down United States v. Windsor last June, law professors and journalists have pondered over what it meant and criticized the majority’s perceived lack of clarity.  There are two major complaints: (1) ambiguous categorization; and (2) whether Windsor‘s holding relied on principles of federalism or Equal Protection.  

The complaint about ambiguous categorization in Windsor is a fair one.  When courts review laws that discriminate against a certain group, courts do so using a certain framework created by the Supreme Court to determine whether those laws violate the Equal Protection Clause of the Constitution’s 14th Amendment.  In most instances, the government–the defending party in such cases is always a governmental body–is given the benefit of the doubt and the law is upheld.  This is called rational basis review.  But when it comes to certain categories of people, the so-called “suspect classes,” the standard the government needs to meet is much higher, and therefore those laws are generally deemed unconstitutional.  This is called “heightened scrutiny.”  The major categorizations for suspect classes are race, gender, and national origin.

Sexual orientation is not one of the suspect classes that I named.  Despite the outcomes in Windsor and its predecessor cases Lawrence v. Texas and Romer v. Evans, the Supreme Court never explicitly said whether sexual orientation is a suspect class.  The judiciary, federal and state, has taken all sorts of approaches absent Supreme Court guidance.  In recent months, some federal courts, most notably the Court of Appeals for the Ninth Circuit, have looked at Windsor and decided that even though the Supreme Court was not explicit, overall jurisprudence indicates that gays and lesbians are indeed a suspect class.  This is the rationale behind the gay juror case that I addressed in my last post.

As I said above, this continued explicit guidance is a fair criticism.  I do not particularly agree with it, because I think the Ninth Circuit read the tea leaves correctly.  Nevertheless, I can understand the frustration and acknowledge its validity.

The other complaint though, I do not understand at all.  It follows as such: the Windsor majority left the judiciary in limbo because the Court did not distinguish whether Windsor was a federalism decision (i.e. whether the federal government unconstitutionally encroached onto states’ rights) or an Equal Protection decision.  This is important because when state bans on same-sex marriage come before courts, those bans will probably fail under an Equal Protection framework but succeed under a federalism one.  On Slate, Dahlia Lithwick and David S. Cohen co-wrote a column suggesting that Windsor is an Equal Protection decision, not because the Supreme Court wrote it that way, but because subsequent state and federal judges have unanimously interpreted it as such.  By Lithwick and Cohen’s count 18 of 18 court decisions (and 32 of 32 judges) have all come to this conclusion.  That unanimity is essential to Lithwick and Cohen’s thesis.  They posit that judges could have interpreted Windsor as a federalism decision, but because they are universally choosing not to do so, eventually nation-wide marriage equality is inevitable.

I don’t disagree with Lithwick and Cohen’s conclusions; Windsor is indeed an Equal Protection decision, and marriage equality is inevitable.  Where I disagree with them–and all the other law professors and journalists who have spilled much ink on this subject–is this misconception that the Windsor majority was unclear.  Windsor is not an Equal Protection decision because subsequent federal judges read it as such; Windsor is an Equal Protection decision because Windsor is an Equal Protection decision.  This is not a tautology; the Court’s methodology is in the text, and it is not hidden.  The reason that 32 of 32 judges have decided the way they did is because they can read.

I believe that the bulk of the Windsor decision comes not from the majority opinion, but from the dissents.  There are two dissents of note in Windsor, one from Chief Justice John Roberts, and the other from Justice Antonin Scalia.  (There was another one from Justice Samuel Alito, which amounts to, “I’m scared of new things because I don’t understand them, and I don’t like them.”  As such this dissent has been forgotten.)  Scalia’s decision is the more famous of the two, because it was written by Justice Scalia.  When he dissents, he fulminates with puffed up, operatic rage.  In his Windsor dissent, Scalia rewrote the majority opinion to apply to state laws.  Perhaps he thought he was being cutting, but to date at least four federal judges who ruled in favor of equality have cited his dissent as a basis for their opinions–classic benchslap.

While Scalia’s opinion is the more significant dissent, Roberts’s opinion is the reason why everyone is confused.  The Roberts dissent tried to limit the scope of Windsor by painting the majority decision as a federalism decision.  Significantly, none of the other dissenting Justices signed on to the Roberts dissent.  Scalia mocked it.  So why have so many law professors, pundits, and journalists wondered whether Windsor is federalism opinion?  Perhaps it is because John Roberts is a very smart man.  Perhaps it is because no one wants to believe that the Chief Justice of the United States deliberately misinterpreted a judicial opinion in a way unworthy of the cheapest political hack.  Perhaps it is because they need something to debate.  I have no idea, but they are wrong.

While at least three or four federal judges have gone toe-to-toe with Scalia, not even one has engaged the Roberts dissent.  Yes, they have heard federalism arguments, and yes, they all held that Windsor is not about federalism, but they have not refuted Roberts’s dissent so much as ignored it.  There is a reason for that, and it is not just that Roberts, whose opinion lacked hysteria, is a far less easy target to mock.

On pages 18 and 19 of the Windsor slip opinion, Justice Anthony Kennedy addresses the question about whether Windsor is a federalism opinion.  (Highlighting is mine, and I removed citations to previous cases, but otherwise kept the citation intact.)

Against this background DOMA rejects the long-established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State, though they may vary, subject to constitutional guarantees, from one State to the next. Despite these considerations, it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance. The State’’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism. Here the State’’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community. DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage. ““‘‘[D]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.’’””

The Federal Government uses this state-defined class for the opposite purpose——to impose restrictions and disabilities. That result requires this Court now to address whether the resulting injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth Amendment. What the State of New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect.

Kennedy’s language is flowery, as is his wont.  Nevertheless, his meaning is quite clear.  This quoted section is the pivot in the legal reasoning.  Prior to this excerpt, Kennedy wrote in great detail about federalism principles, and how it has historically been the right of the states to define marriage.  Had he stopped there, Windsor would have indeed been a federalism decision.  But in the above excerpt Kennedy writes that it is not principles of federalism that are central to Edie Windsor’s case.  Federalism principles mattered in Windsor only because Congress’ violation of those principles in enacting DOMA signaled a suspicious and insidious ulterior motive.  That something, Kennedy concludes in the next section, was animus toward gays and lesbians, which is unconstitutional under the implied equal protection guarantees of the 5th Amendment.*

Scalia understood all this and would not let it go unchallenged.  He also understood, that if the judicially manufactured equal protection guarantees of the 5th Amendment applies to same-sex couples, then the next logical step is that the actual equal protection guarantees of the 14th Amendment must also apply.  The only possible outcome is for state bans on marriage equality to also fail constitutional scrutiny.  The Windsor majority may not have explicitly stated this, but their inherent message to the federal judiciary was equally loud and clear as Scalia’s overwrought one.  That is why all subsequent decisions have unanimously sided with marriage equality.

Footnotes:  

*  There is no Equal Protection Clause in the 5th Amendment; the Equal Protection Clause is unique to the 14th Amendment.  The 14th Amendment however, applies only to the states and not the federal government, which could have been a source of major embarrassment for a Supreme Court that wanted to combat discrimination.  The most famous use of the manufactured 5th Amendment equal protection guarantees is found in Brown v. Board of Education.  There were actually five cases collectively known as Brown, and one of those cases, Bolling v. Sharpe, came from Washington DC.  As Washington DC is not a state and under federal government control, the 14th Amendment does not apply.  Thus, the Warren Court used the 5th Amendment for the DC case and the 14th Amendment for the state cases .

Marriage Momentum: Valentine’s Edition

Last night, Judge Arenda Wright Allen, a federal district court judge in Virginia, struck down that state’s ban on same-sex marriage.  It was a forceful opinion, finding that such a ban could not withstand scrutiny under the full force of the 14th Amendment’s Due Process Clause, nor a less exacting rational basis review under the Equal Protection Clause.  If you don’t understand this legal jargon, that’s okay.  Just know that the opinion is quite powerful, very pro-marriage equality, and is not outside the legal norm.

Like earlier decisions in Utah and Oklahoma, the one from Virginia is a grant of summary judgment, which means the judge decided that a trial was not necessary.  In fact, the judge had asked the parties if they felt oral argument on the motions was necessary (they did).  The fact that such a long opinion came down so quickly after oral argument suggests that the opinion had been worked out prior to oral arguments.

Witness again the power of United States v. Windsor.  I have said over and over again that this is the most important civil rights case since Brown v. Board of Education.  When Windsor struck down DOMA, the federal government was forced to recognize same-sex marriages.  All sort of federal rights that were previously denied to same-sex couples have been granted.  Also following Windsor, two state high courts, New Jersey and New Mexico, mandated marriage equality in their respective states.  But the real promise of Windsor is what is happening now; the federal judiciary has been unchained.  Prior to Windsor, federal judges would have hesitated to make sweeping rulings about marriage bans.  Even the trial and appellate decisions in Prop 8, the lone marriage case brought before the federal judiciary, were measured.  But post-Windsor, the flood gates have been opened.  The opinions issued have not just been favorable, they have been overwhelmingly forceful.  Moreover, these are not just happening in so-called blue states.

Here is a round-up of all the federal cases that have thus far been decided and which will all probably be ready to go to the Supreme Court in the 2014-2015 term.

1. Utah – A federal judge struck down the marriage ban.

2.  Oklahoma – A federal judge struck down the marriage ban.

3.  Ohio – A federal judge held that the state must recognize a valid same-sex marriage performed in another state for death certificate purposes (and implied that the marriage ban is unconstitutional).

4.  Kentucky – A federal judge held that the state must recognize same-sex marriages validly performed in other states where they is legal (and implied that the marriage ban is unconstitutional.)

5.  Virginia – A federal judge struck down the marriage ban.

6.  The Ninth Circuit – As always, the Court of Appeals for the Ninth Circuit is ahead of the curve.  In a case between two large pharmaceutical companies seemingly unrelated to marriage equality, the Ninth Circuit held that a gay juror cannot be removed by a peremptory challenge on the basis of his sexual orientation (just as one cannot be removed for race or gender).  Although there is nothing in the case about marriage, this is an extremely important decision for the marriage equality movement.  The Ninth Circuit held that sexual orientation is a protected class and thus deserves heightened scrutiny under the Equal Protection Clause of the 14th Amendment.  Which means that any law that discriminates against gay people has a high bar to meet in order to prove its legality.  No marriage ban can meet that standard.  After the gay juror decision, Nevada’s Attorney General (Democrat) and Governor (Republican) withdrew from the defense of their state’s ban.  The Ninth Circuit will hear that case shortly.  When Nevada’s ban falls (and it is a “when” not an “if”), the bans in the other Ninth Circuit states will also have to fall.  By my count that will apply to Montana, Idaho, Arizona, Alaska, and Oregon (if that state’s ban is not already overturned at the ballot box in November).

Which means that at least one, but more likely several, of these cases will be back at the Supreme Court in the next term for the final showdown.

Happy Valentine’s Day!

The Ongoing Saga Of Marriage Equality In Utah

When we last left off, a federal judge named Robert Shelby held that Utah’s ban against same-sex marriage (and same-sex partnerships of any kind) was a violation of the Constitution.  Immediately following the ruling, same-sex couples rushed to get marriage licenses.  That they were able to do this was in part due to the incompetence of the embattled Utah Attorney General’s Office which neglected to properly file for a stay of judgment.  When the AG properly filed for a stay, both Judge Shelby and (on appeal) the Tenth Circuit Court of Appeals refused to grant it.  Shelby’s refusal was not surprising given his earlier ruling, but the denial of stay from the Tenth Circuit was definitely a shock.  First, the Tenth Circuit is one of the more conservative in the country, which is not surprising considering that it has jurisdiction over Utah, Oklahoma, Wyoming, and Kansas.  Second, in denying the stay, the Tenth Circuit effectively played its hand, and let it be known how it planned on ruling.  In such a weighty case, a denial of stay is rare absent an almost overwhelming certainty that one side will win.  (Two comparisons are useful.  The much more liberal Ninth Circuit Court of Appeals stayed the decision in the Prop 8 case pending a decision by the Supreme Court.  Post-Windsor, the New Jersey Supreme Court rejected a stay from the Christie Administration, which led to the Administration dropping its case.)

Utah appealed the stay denial to Justice Sonia Sotomayor, the Circuit Justice for the Tenth Circuit.  She in turn referred the matter to the full Supreme Court which issued a stay.  This is not actually surprising.  The Supreme Court is a very conservative institution.  Not necessarily in the political sense (although it is currently that too), but in that the Justices are terrified of being seen as moving too quickly.  Remember, the Utah case (Kitchen v. Herbert) has not actually been litigated; Judge Shelby granted a motion for summary judgment, and no trial was held.  Had the Supreme Court also denied a stay, it would have sent a message to every trial and appellate judge in the country that bans on marriage equality were effectively dead without even a consideration of the issue.  That is much too fast for the Supreme Court.  (So please calm down, Jeffrey Toobin.)  The stay is written such that it is effective until the Tenth Circuit makes a determination.  The case has already been fast-tracked on that court’s docket.  Expect the issuance of another stay if the Tenth Circuit finds for the same-sex couples.

This is all basically cut and dry.  Very legal and routine.  After this point though, things get a little bit dicey.  In response to the Supreme Court’s stay, the Governor of Utah (the Herbert of Kitchen v. Herbert) told the state not to recognize the over 1300 same-sex marriages that had already taken place.  Although this action pleased homophobic activists like Brian Brown and Tony Perkins, the Governor is completely in the wrong.  The Supreme Court stay stopped the state from issuing any further marriage licenses to same-sex couples, but the Court said nothing about the ones that already took place.  Which, I might add, were performed legally under a decision that has not yet been overturned.  The legality of those marriage may yet be up for debate, but not at this time.  (For a comparison, the same-sex marriages in California that occurred between the In Re Marriage Cases decision and the passage of Prop 8 a few months later were still deemed valid by the California Supreme Court.)

The Tenth Circuit will not look kindly on Utah’s actions–first because the Governor has countermanded a court order, and second, because the Governor has caused an actual harm.  Needless to say, the ACLU has already begun the process of challenging Utah’s refusal to recognize the 1300 legally married same-sex couple.  Expect litigation to be undertaken immediately, as there is no shortage of plaintiffs.  In response to Utah, the Obama Administration announced that it will recognize those 1300 Utahan marriages for all federal purposes (immigration, tax, Social Security, and the like).  This a major, if expected, triumph and it largely offsets much of the damage done by Utah’s state government.  It also sets up a direct challenge for the Supreme Court that will be hard to ignore.  There can be no federalism feint anymore; Kitchen v Herbert is all about the equality of gays and lesbians and the fundamental nature of marriage.

And Utah Makes 18. Wait… What?!?

Yesterday as I was leaving the gym, I received a phone call from my boyfriend (herein “BF”) which, to the best of my recollection, went as such:

Me:  Hello.

BF: Have you heard the good news out of Utah?

Me (not understanding what possible good news could come out of Utah):  What good news?

BF: A judge struck down their marriage ban.

Me:  Holy [expletive]!  What?!?

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Yesterday, Judge Robert J. Shelby, a federal trial judge in Utah, struck down that state’s constitutional amendment banning marriage.  The opinion in Kitchen v. Herbert is nice to read, in no small part due to the many judicial raspberries blown in the direction of Supreme Court Justice Antonin Scalia, whose shrill dissents in Romer, Lawrence, and Windsor, belie his own deeply felt homophobia.

It is important to recognize that this is the continued aftereffects of Windsor.  I say it a lot, and I mean it every time.  This is the most important American civil rights case since Brown v. Board of Education, and the ramifications are just beginning to be felt.

The decision went into effect immediately as the Court did not issue a stay.  As such most counties began to issue marriage licenses right away.  The state is asking the Tenth Circuit Court of Appeals for an emergency stay, but by this point a number of same-sex couples have already gotten married.  Should a stay be granted (or even if it is not), the events of yesterday create several questions in the immediate future.  How will Utah process legal same-sex marriages from other states?  Will the federal government recognize these new Utah marriages without Supreme Court imprimatur?  If so, will it continue to recognize these marriages should the Tenth Circuit either (a) issues a stay or (b) overturn Judge Shelby’s opinion?  Would those marriages even be legal if the opinion is overturned?  Is it possible that the federal government will recognize these marriages as valid next year and not the year afterwards?  If so, would that mean for taxes, health insurance, immigration rights, etc.?  Would a green card that was issued for a same-sex spouse be cancelled?

I ask these questions because most of the press coverage I have seen has focused on the momentousness of the occasion (Utah?!?!) rather than the practicalities of the case.  Which in a way is great because it gives me something fresh to write about.  And there is a lot to write about.  Kitchen v. Herbert, which will be Herbert v. Kitchen in the Tenth Circuit, is an extremely important case for a single, solitary, simple reason.  It is the first federal case post-Windsor to strike down a state ban on marriage equality.  Not the first ever, of course.  Concurrent with Windsor was the Prop 8 case, Hollingsworth v. Perry.  The difference between Kitchen and Perry is that the California state government refused to defend the case, and thus the Supreme Court could dodge Perry‘s central issue–the constitutionality of same-sex marriage bans–in favor of standing.  Utah’s state government will defend this to the end, which means Kitchen‘s final destination is most likely the Supreme Court.  I suspect that it will be before the Supreme Court in the 2014-15 term; mark your calendars.

The Kitchen decision came down quickly because it was a grant of a motion for summary judgment for the gay and lesbian plaintiffs.  If you have been reading this blog, this might sound familiar.  It should.  A few months ago, a trial judge in New Jersey also granted summary judgment and ordered the state to issue marriage licenses to same-sex couples.  She too refused to stay her decision.  The Christie Administration’s appeal of the denial of stay resulted in an epic judicial smack down from state Supreme Court.  Officially the Supreme Court did not reach the merits of the case (whether New Jersey law required complete marriage equality).  Nevertheless, a unanimous Court told the Administration that they would lose and lose big.  The Administration withdrew the appeal.

I said it then, and I will say it now.  Granting a motion for summary judgment is a big deal because it means denying one side the right to a trial.  Summary judgment effectively means that the case is so one-sided, a trial is a waste of resources.  The fact that a state constitutional amendment (passed by popular referendum no less) was struck down through summary judgment is particularly shocking.  Even the Prop 8 case went to trial.  But in a post-Windsor world, everything has changed.  (I should note though, that there will be trials coming up, including one in Michigan where summary judgment was denied.)

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The actual legal reasoning in the case is quite strong, although I would have preferred a better Equal Protection ruling (“rational basis with bite” needs to be retired to the Constitutional Law dustbin), but at least there was an Equal Protection ruling in favor of the plaintiffs.  Mark Joseph Stern noted on Slate that the ruling out of New Mexico from the day before is much stronger, although that one was based on state law.

The real meat of the Kitchen decision comes from the Due Process analysis, which is a consideration of the right to marriage.  As such Loving v. Virginia, the aptly-monikered case that struck down bans on interracial marriage, is the controlling precedent.  The Court swept aside (finally) Baker v. Nelson from the 1970′s.  Given all the changes in the laws since Baker, it is amazing to me that anyone would still think that case is good precedent.

One by one, Judge Shelby shot down all of the state’s arguments.  Same-sex couples are not seeking a new right; marriage is not just about controlling procreation; tradition is not a good enough reason to deny a fundamental, individual right; marriage equality will not harm children and it will not stop heterosexual couples from marrying.  The parade of horribles marched past an unreceptive crowd.

Two days ago, I indicated that it was time for the federal courts to get involved.  I had no idea though that just one day later a federal court would strike down one of the most ardently anti-equality amendments in one of the most staunchly conservative states.  This is the beginning of the flood.  From here on in, the federal courts will strike down these marriage bans one by one, until Windor‘s implicit promise, full marriage equality, is granted by the Supreme Court.

17 And DC

As of today, New Mexico has marriage equality thanks to its (unanimous) state Supreme Court.  Previously, New Mexico, thanks to a divided legislature, had no laws whatsoever about marriage equality.  That made New Mexico unique in the country.

This decision was not entirely unexpected.  Oral argument suggested which way the Justices were leaning and an earlier decision against a (I think) photographer who refused to photograph a ceremony for a same-sex couple was a tacit acknowledgement that the Court believed in protecting the rights of New Mexico’s LGBT minority.  It is also important to remember that it was the county clerks who forced this case in the first place.

It is important to recognize that this case is yet another direct result of Windsor–and yet another example proving that Windsor is perhaps the second most important civil rights case in US history after Brown v. Board of Education.  Once the US Supreme Court handed down Windsor, the clerk of Santa Ana county began issuing marriage licenses.  Other clerks followed suit (either based their own interpretation or by court order).  All the clerks asked the state Supreme Court for review.

Prior to November 2012, six states (and DC) offered marriage equality to same-sex couples.  Now there are 17.

In truth, it only gets harder from here.  Most of the remaining states have a constitutional amendment of some kind banning marriage equality.  Only Pennsylvania, Wyoming, West Virginia, and Indiana have laws rather than constitutional amendments that ban same-sex marriage and none of those states would make for an easy legislative victory.  (In Indiana, activists have their hands full trying to prevent a constitutional amendment to ban same-sex marriage.)  Oregon has a ballot initiative next May to overturn its amendment, but for the most part now it is time for the federal courts to get involved.

It is also important to recognize that 21 states (and DC) offer marriage, civil unions, or domestic partnerships to same-sex couples.  As the federal courts decide these cases, that number will grow.  Those who oppose marriage equality no longer have federal legislative options at their command thanks to Windsor.  Which means that to stop same-sex marriages federally, they need two-thirds of both Houses of Congress and three-quarters of the states to adopt it.  That ship has sailed.  New Mexico is the latest proof.

SYMBOLISM!!!!

Today, Illinois Governor Patrick Quinn will sign the marriage equality bill passed (finally!) by the Illinois General Assembly.  In case you weren’t aware, the bill will be signed 150 years (seven score and ten) and a day after Abraham Lincoln, the first President from Illinois, delivered his famous Gettysburg Address.  The bill will be signed at the desk where Lincoln wrote his first inaugural address.  Quinn’s signature will make Illinois the 16th state to embrace marriage equality, and guess who was the 16th President.

Never let anyone tell you this is not a big deal.

Marriage Equality Comes To New Jersey

[Editor's Note: This post was written on October 18th, but posted on October 19th.  Every time I say "Today" it refers to the date of writing rather than publication.]

Today the New Jersey Supreme Court handed down an opinion denying a stay in a case called Garden State Equality v. Dow.  This is the first major state high court decision to come down following the US Supreme Court’s Windsor decision.  Not to toot my own horn, but for months I had been telling anyone who would listen exactly how Garden State Equality would be decided and that marriage equality was inevitable.  Even though the case is technically ongoing, today’s decision proves me right.

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To understand Garden State Equality, one must first go back to 2006 and a New Jersey Supreme Court case called Lewis v. Harris, the first time the Court considered marriage equality.  Lewis was both a landmark and a disappointment.  It was a disappointment because the Court, in a 4-3 split, held that although the New Jersey State Constitution required that same-sex couples be treated equal to heterosexual couples, it was the Legislature’s discretion to determine whether that meant marriages or civil unions.  The Legislature opted for the latter.  Yet Lewis was also a landmark because for the first time every Justice on a state high court agreed that same-sex couples deserved equal treatment.  The “dissenters” would have gone further than the majority and mandated full marriage equality.

Lewis, for its flaws, laid the groundwork for future victory.  Civil unions are okay so long as couples are treated equally, but if that were not the case, then the state had to offer marriage.  Almost immediately after Lewis was handed down, LGBT rights groups operating in New Jersey (Garden State Equality, Lambda Legal, etc.) started gathering evidence to prove that civil unions were not equal.  Simultaneously, LGBT organizations lobbied the Legislature to enact a real marriage equality law–first unsuccessfully in the waning days of the Corzine regime and then successfully during this current term, but vetoed by the Governor Chris Christie.   This meant that there were two options left for LGBT rights groups: (1) get enough votes to overturn Christie’s veto (currently ongoing); or (2) convince the New Jersey Supreme Court that civil unions are inherently unequal (or to quote Justice Ruth Bader Ginsburg, “Skim-Milk Marriage“).  Both of those paths however, would take a lot of time and effort, and neither was guaranteed.

And then came Windsor.

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In the near future, I hope to write two posts about the recent gains of the gay rights movement.  The first is about the almost unrealistic nationwide and worldwide progress made in the past year.  The second is specifically about United States v. Windsor, a case that I would argue is not only the most important case in the history of the American LGBT rights movement, but also the most important American civil rights case since Brown v. Board of Education.  The implications of Windsor have only begun to be felt, but its impact has already been tremendous.  The decision in New Jersey today (and others that will follow in state and federal courts over the next couple of years) is solely because of Windsor.  It is not a stretch to say that Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, Elena Kagan, and above all Anthony Kennedy are five of the six people most directly responsible for today’s victory.

The sixth person most directly responsible is Barack Obama.  When Windsor was handed down, Obama ordered all federal agencies to fully comply.  Every same-sex married couple is now treated equally in terms of federal benefits so long as the marriage is valid, i.e., recognized by the state where the marriage took place.  Social security, Medicare, immigration, military and veterans benefits, family medical leave, federal estate tax, joint filing, health insurance for spouses of federal employees–the list of federal benefits goes on and on.

President Obama also made a tremendous and specific impact in New Jersey because he instructed that federal benefits applied only to married couples, not those partnered in civil unions.  Those of us who understood what he was doing rejoiced.  Effectively, he told the courts that in terms of marriage he would not allow or accept “separate but equal.”*  Marriage is marriage and nothing else is adequate for federal purposes.**

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When Garden State Equality came before Judge Mary Jacobson in the New Jersey Superior Court this summer, the legal team for the plaintiffs filed a motion for summary judgment.  Basically, this means that (in a civil trial) one party in the case believes the law and the facts are so overwhelmingly on his/her/their side as to render a trial completely unnecessary.  In Garden State Equality, the plaintiffs argued that the lack of federal benefits to partners in civil unions meant that they would be treated patently unequal and only by offering full marriage equality could New Jersey correct the harm.  Although everyone files motions for summary judgment, granting them, especially in such major cases, is a rarity.  It is practically an invitation for an appellate court to overturn to overturn a trial court, something trial court judges hate.  (Also, judges tend to believe that everyone has a right to argue their day in court.)

Garden State Equality is as close to a perfect case as you can get for granting a motion for summary judgment.  Because of the Lewis demand for equality, the Windsor requirement that the federal government recognize married same-sex couples,*** and the Obama Administration’s refusal to treat marriages and civil unions equally, it was unthinkable that this case could result in anything other than a win for the plaintiffs.  On September 27, 2013, Judge Jacobson granted the motion for summary judgment and held that New Jersey had to offer marriage equality as of October 21.  The Christie Administration asked for a stay in judgment–asked the court to put the decision on hold until the case worked its way through the appellate courts.  Judge Jacobson refused.  Rather than appeal to the next level, the Christie Administration went straight to the top and appealed directly to the State Supreme Court who agreed to hear the case in January.  The Christie Administration also asked the Court for an emergency stay in judgement.  It was not so unusual–or unreasonable–a request.  (For example, in the Prop 8 case, the Court of Appeals put a stay on the trial court’s decision to strike down the law so that it could be litigated up to the US Supreme Court.)

Today the State Supreme Court came down with a ruling, and it was a doozy.  The Court denied the Christie Administration’s request for a stay, which means that same-sex marriages start at 12:01 a.m on October 21 (and there will be City Halls open at 12:01 a.m.)  Frankly, I was a bit surprised; granting a stay is almost routine–again, especially in such a major case with such big implications.  What is more amazing though is that the judicial opinion written by Chief Justice Stuart Rabner, and joined in full by the entire Court, was a decision on the merits of the case, which is almost never done when deciding whether to grant a stay.  Moreover, the Court all but said how it was planning to rule in January: “[T]he State has not shown a reasonable probability that it will succeed on the merits.”  In other words, although the case is not officially over, it’s over.

Everyone knows that the case is over.  Even Chris Christie, rather than fume and rage, has simply said that he disagrees with the decision but has ordered state officials to comply.  The outcome was inevitable.  Windsor made it so, and sooner rather than later all states will have marriage equality.

[Postscript: On Monday October 21, Governor Christie advised the State to withdraw its appeal.  It is theoretically possible but doubtful that a third-party will be allowed to intervene.  Therefore, most likely there will not be an oral argument in January, and undoubtedly marriage equality is now the law of New Jersey from here on out. ]

Footnotes:

* This was not a surprising position from the President.  During the Windsor/Prop 8 arguments, the Justice Department urged the Supreme Court to rule that civil union states must adopt marriage–the so-called “Eight State Solution” (which will dwindle to six as of Monday).  Allegedly, the President was involved in crafting the Eight-State Solution.

** There was an argument put forward that civil unions are a form a marriage and the federal government should recognize them as such.  It’s a rational argument legally but deeply problematic in real world application.  Among those problems is, who would defend civil unions before a court?  A Democrat-led state government won’t do it because they favor marriage equality (the same is true for the vast majority of same-sex couples), and a Republican-led state government won’t do it because that would be a defense of the rights of gays and lesbians.  Although the Christie Administration did argue this position before the New Jersey courts, those courts cannot force the federal government to comply with New Jersey law.  Had the Christie Administration sued the federal government in federal court to demand recognition of civil unions, then I am certain the state case would have been put on hold until the federal case was decided.  It’s a moot point now for New Jersey, but I suspect other courts looking at civil union claims will see that New Jersey’s Supreme Court made the distinction and will subsequently follow.

*** In Windsor, the Supreme Court did not address civil unions because that was not part of the case.  Nevertheless, reading between the lines of the majority opinion, one gets the sense that the majority, if faced with the question, would not find civil unions equal to marriage.

Will Portman, Matt Salmon, and Me

I fear it is a sign of advancing age that I can remember back to 1996 (and the preceding Dark Ages) when the debate over marriage equality began in earnest and only one Senator–Ron Wyden–openly spoke out in support.  Two others–Ted Kennedy and Carol Mosley-Braun–also supported marriage equality but in a more circumspect manner.  Of those original three, only Wyden still serves in the Senate.

Over the next fifteen years, support for same-sex marriage in the Senate grew slowly; before 2011 only 15 Senators, Democrats all, supported it, although LGBT activists suspected, as they did with President Obama, that many more Senators secretly supported the cause.  Understanding that a craven but Democrat-controlled Senate would be far more beneficial to the LGBT cause than a Republican-controlled Senate, LGBT organization chose not to rock the boat–often to the consternation of the larger and more impatient LGBT community.

In the past two years, and especially since last November, Senatorial support for marriage equality has exploded.  As of the time of this writing, 54 Senators–over half the Senate–support pro-marriage equality legislation.  This no doubt due to the confluence of several factors: (1) consistent polling data showing that a majority supports marriage equality; (2) President Obama’s high-profile endorsement of same-sex marriage and his subsequent reelection; (3) the embrace of marriage equality in the Democratic party platform; (4) the election of Tammy Baldwin the first openly gay Senator; and most importantly (5) the referendum victories in Maine, Maryland, Minnesota and Washington.  From hereon in, for most Democratic Senators (and all future serious Democratic Presidential candidates) it is far more dangerous to oppose same-sex marriage than to support it.*

Surprisingly, of the 54 Senators who favor marriage equality, two are Republicans.  Mark Kirk of Illinois, whose prior voting record on gay rights issues included a vote against repealing Don’t Ask Don’t Tell, issued a very simple but powerful statement: “Same-sex couples should have the right to civil marriage.  Our time on this earth is limited, I know that better than most.  [Kirk recently recovered from a stroke.]  Life comes down to who you love and who loves you back–government has no place in the middle.”

Before Kirk announced his support though, Rob Portman of Ohio changed his mind to support same-sex marriage.  To say that his announcement was a great shock is an understatement; his voting record on LGBT rights was abysmal.  Portman, a candidate to be Mitt Romney’s running mate, announced his support for same-sex marriage in an editorial in which he explained how he came to that position.  Two years ago his son Will came out to him, and Rob Portman came to understand that by opposing marriage equality he was hurting his own son.

The response to Portman from the political right was–predictably enough–outrage.  The response from the left however, was more complicated.  Most of us celebrated Portman for his change of heart.  Disappointingly though, there was a lot of anger toward Portman coming from some influential corners.  Dan Savage, wrote that the true hero of the story was Will Portman, a correct enough statement, misguided in the implication that Rob Portman’s actions are somehow less than meaningful.  The argument of Portman critics such as Savage, Paul Krugman, and Matt Yglesias goes something like this:

Rob Portman, like most/all Republicans, lacks empathy.  He was able to comprehend the issues facing gay people only because his son is gay.  Therefore, if someone he loves doesn’t have that problem (such as poverty), Portman has no capacity for empathy.

I acknowledge a grain of truth to this criticism.  Will Portman will never suffer poverty or employment discrimination (the Senator still does not support ENDA), a benefit of being a Senator’s son who attends Yale.  Nevertheless, Savage, Krugman, and Yglesias are flat-out wrong.  Rob Portman changed his mind about marriage equality because someone he loves is gay, and that exemplifies exactly why the central message of the gay rights movement has been a call for gay people to come out.  Rob Portman should be celebrated; he is proof that we change our loved ones’ minds by coming out.

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Following Portman’s announcement, Representative Matthew J. Salmon (R-AZ) commented on television that he too had  gay son, but unlike Portman, he did not support marriage equality.  Claiming his son Matt was “by far one of the most important people in my life,” Congressman Salmon said, “I love him more than I can say.  It doesn’t mean that I don’t have respect, it doesn’t mean that I don’t sympathize with some of the issues.  It just means I haven’t evolved** to that stage.”  Salmon’s statement set off a deserved wave of criticism, but one person who supported him was his son Matt.  (To avoid confusion, the father will be referred to as “Salmon” or as “the Congressman” and the son as “Matt”).

It is impossible to judge another man without walking a mile in his shoes; I acknowledge I do not know Matt’s journey.  I cannot judge him, especially about something as intimate as his relationship to his parents.  Nevertheless, it is nearly impossible to watch his gut-wrenching “It Gets Better” (IGB) video, or read the often-harrowing Phoenix New Times account of Matt and his former partner Kent Flake, and not recoil in horror from the emotional hell his family created for him.

The gay activist and writer Michelangelo Signorile wrote a scathing indictment of Salmon who, along with his wife Nancy, was actively involved in the (failed) 2006 campaign to ban legal recognition of same-sex relationships in Arizona.  Nancy headed the campaign and involved Matt.  This is after he came out to her.  (He was in reparative therapy at the time, and he voted in favor of the ballot measure.)  In his IGB video, Matt said that his mother did not get involved in the later, successful 2008 ballot measure, so I suppose that is some progress.

Signorile is a loud, abrasive, and overly opinionated writer and activist.  In this instance however, he is absolutely correct.  The damage that the Salmons did and still do to their son is incalculable whether or not he admits it (whether or not he can admit it).  Signorile writes:

Those parents who do not move on the issue, who reject their children, either by literally throwing them out of their homes or by saying, “I love you, but I don’t accept your ‘lifestyle,’” are putting themselves above their children. For young people in that situation, living as second-class citizens in their own families and fooling themselves into thinking that their parents love them (because they so much want that love from their parents) while allowing their parents to quietly condemn them each and every day, even as they grow into adulthood, the rejection eats away at their self-esteem.

For whatever reason–politics, religion, old-fashioned bigotry–the Salmons do not fully embrace their son.  The Congressman may say that Matt is “by far one of the most important people in my life,” yet his actions show that Matt is not important enough.  If a parent loves his child unconditionally, then there are just some sacrifices the parent has to make.  Belief in one’s own self-righteousness is one of them.

Recently, Matt defended his father on a local Phoenix television station and again on CNN.  He insisted that his father loved him and was not an anti-gay bigot.***  These interviews however, are far from convincing.  Despite claiming that his relationship with his father was never stronger, the hurt, young man who nearly broke down into tears on his IGB video was very much apparent.  Matt tells us that his father loves him, but his answers to reporters’ questions show a contrary picture.  He neither defends (or even explains) his father’s homophobic votes in Congress nor disputes the image of his family from the Phoenix New Times article.  In the local television interview, Matt’s real revelations were (1) a near admission that he regrets that his dad is not like Rob Portman; and (2) the lowest point in his relationship with his father was when Matt left reparative therapy–which all reputable medical and mental health associations consider insidious and harmful junk science.  Worse, when asked if his parents would come to his (theoretical) wedding, Matt said, “I’m not going to lay that burden on them, but I hope that they do.”  That is the response of something who doesn’t want to admit the real answer is no.  Watching Matt is like watching a helpless captive.  On CNN, Mat said that in order to get his parents to respect his views, he had to respect theirs.  No, no, no!  Their views are that he is less of a person and his love is less meaningful than theirs.  That is a view worth fighting not respecting.

I am sure Matt would not want me to pity him; most likely he would resent for doing so.  Yet after watching this interview, I feel nothing but the most profound pity for him.  He does not know unconditional love, and he is clearly not in a place where he is strong enough to cope without it.  Therefore, he lets his parents emotionally batter him, his father especially so.  Matt should never have appeared before the cameras; it was his father who dragged him into it.  By talking about Matt on national television, the Congressman turned his son into a shield against completely correct charges of homophobia.  He made Matt protect him rather than the other way around.

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Growing up gay in suburban Philadelphia was not as difficult as in some locations; I imagine I would have had a much more difficult time in places like rural Mississippi or inner-city Detroit.  Nevertheless, I did not escape unscathed.  I grew up in the era when AIDS was still “the gay cancer.”  The Defense of Marriage Act was passed and signed into law as I left high school for college.  I knew no openly gay adults, but I knew plenty of homophobes.  In those days I was in deep denial–praying every night for God to make me “normal.”  It didn’t work.

I came out at age 19, late by today’s standards but not so late in the mid-to-late 90′s.  Coming out was a traumatic experience, so much so that I could not even say “I’m gay” to the first person I told.  Being able to say the actual words for the first time happened days afterwards.  The next month I told my parents.  My father was surprised, but relatively supportive.  My mother was neither supportive nor surprised.  She told me she would never be able to reconcile herself to my being gay; a decade and a half later, she has kept her word.  We still speak, but her refusal to support me has damaged our relationship, probably irreparably.

I have a friend who recently married his long-time partner in a state where same-sex marriage is legal.  My friend’s parents knew his partner and treated him well.  When the wedding invitation arrived however, my friend’s parents wrote to him to tell him that they would not attend.  They said that although they tolerated his homosexuality, and felt they had been very good about doing so, approving of his marriage by attending was a bridge too far.  My friend was crushed by the knowledge that his parents refused to see his marriage as anything other than a “marriage.”  Their message was that they believed his relationship to be a camp spectacle–a parody of heterosexual love.  My friend stopped speaking to his parents.

I thought of my mother and my friend as I watched Matt’s interviews.  Whether Matt abandons his parents or stays but with the understanding of the limits of their love is not for anyone to judge.  Matt deserves sympathy, empathy, compassion and support.  I understand Matt Salmon’s pain because I wonder, as he must also, why I don’t deserve the love Rob Portman has for his son Will.

Footnotes:

*  I did not mention the House of Representatives, and with good reason.  Because there are 435 of them and because they represent ever-changing electoral districts, the number who support marriage equality is bound to be skewed by factors such as a redrawn (gerrymandered) Congressional map rather than a true representation of the nation.  What is important at the moment is that there are six open LGBT members of the House.

**  I hate when politicians who claim not to support same-sex marriage use the word “evolve.”  Evolution may be the slow process of adaptation to an environment, but in modern usage, to evolve to get to a more advanced (i.e. better) state of being–as in “we evolved from simple single-celled organisms to complex multicellular ones.”  Therefore, the word “evolve” actually denotes that supporting marriage equality is the morally correct position.  When President Obama said he was evolving, it was seen as a coded message, and it is now when Lisa Murkowski, the (Republican) Senator from Alaska says it.  This brings up the obvious question however: If you understand that supporting marriage equality is morally correct then why aren’t you already supporting it?

***  There are two conflated issues here that must be separated: (1) Congressman Salmon’s love for his son; and (2) Congressman Salmon’s alleged homophobia.  They are not mutually exclusive and should not be treated thus.  The Congressman may love his son more than anything in the world, but that is not a defense against blatant homophobic actions.  The entirety of the American LGBT populace suffers from his regressive votes in Congress, and that is not negated by a personal connection as Matt may want to believe.  One judges a person’s character by their actions far more than by their personal connections.