Straight Talk on Gay Marriage

What Do We Mean By Marriage? The legal union of a couple as husband and wife - Black's Law Dictionary 8 th Edition Declared a “fundamental right” by the Supreme Court as early as Maynard v. Hill, 125 US 190 The legal status of “married” has a lot of collateral effects:  Joint liability for debts  Mutual support obligations  Property rights  Survivor benefits & intestate succession  Immunity from subpoena against a spouse  Visitation rights in jails, prisons, & hospitals  Military communication rights & death notifications

The Arguments: In FavorAgainst Equal Protection Combats 2 nd class treatment of LGBT citizens “Traditional” marriage is a myth – legal marriage changes over time Facilitates gay adoption Stabilizes gay families Protects hospital visitation & end-of-life care decisions Marriage is about commitment not procreation Full Faith & Credit Freedom of Religion Does not threaten straight marriage Traditional definition of marriage Weakens the institution of marriage Slippery slope to polygamy, incest, bestiality, etc. Incompatibility with religious beliefs Requires opponents' tax dollars to support the institution Children need to be raised by a mother and a father Assimilates gays into mainstream culture, eliminating their vibrant counter-culture Marriage is about procreation Marriage is a religious sacrament, not a right

Current State Laws Image source:

California's Proposition 8 “Only marriage between a man and a woman is valid or recognized in California.” Nov. 4, /26/2009 upheld by State Supreme Court 8/4/2010 struck down by US District Court 2/7/2012 US 9 th Circuit Court of Appeals affirms 5/26/2009 upheld by State Supreme Court 8/4/2010 struck down by US District Court 2/7/2012 US 9 th Circuit Court of Appeals affirms Certiorari Granted 12/7/2012 Challenged on Federal 14 th Amendment grounds of Due Process and Equal Protection

Courts' Decisions on California's Proposition 8 District Court: (Broad decision)  Prop 8 cannot survive rational basis scrutiny on equal protection issue Primary purpose of the law is to label same-sex relationships as inferior  Fundamental Right to marry applies to same-sex marriage Circuit Court: (Narrow decision)  Prop 8 unconstitutionally takes away an existing right without a legitimate reason Distinguishes taking away a previously given right and requiring the creation of a new right  Prop 8 cannot survive rational basis because it doesn't change substantial rights in keeping with state interests alleged

The Defense of Marriage Act Marriage is defined as 1 man and 1 woman for all federal laws States are not required to give effect to other states' same-sex marriages Sept. 21, /23/2011 Obama orders DOJ not to defend DOMA - Bipartisan Legal Advisory Group of the United States House of Representatives ("BLAG") hires private lawyers to take up the slack 9/9/2012 Obama lends his personal support to gay marriage

Windsor v. US 1963 Edith Windsor & Thea Spyer meet 1993 They register as domestic partners in New York 2007 They marry in Canada 2/2009 Spyer dies due to MS, IRS taxes Windsor's inheritance as a stranger for $363,053 11/9/2010 Windsor files lawsuit based on Equal Protection Grounds 6/6/2012 District Court strikes down DOMA as unconstitutional 10/18/2012 Court of Appeals rules DOMA unconstitutional 12/7/2012 Supreme Court grants certiorari District Court said there was no rational basis for the law The Issue: Can the Federal Government constitutionally define what marriage is? Circuit Court applies heightened “intermediate” scrutiny due to a history of discrimination and powerlessness among gays Defenses do not survive intermediate scrutiny Image Source:

Possible Supreme Court Outcomes The Court upholds states' rights to regulate marriage  Prop 8 is upheld based on a rational state interest  DOMA is upheld as protecting states' autonomy The Court protects the rights of all citizens to marry  Prop 8 is struck down under Equal Protection & Due Process  DOMA is struck down under Equal Protection Image Source:

Possible Implications of Ruling For Gay Marriage or Against The Court recognizes gays and lesbians as a protected class (Both) All state constitutional and statutory gay marriage bans are invalidated (Prop 8) Gay marriages qualify for full benefits under federal law (DOMA) States may not take away gay marriage once it has been granted (Prop 8) States can still ban gay marriage but must recognize marriages performed elsewhere (DOMA) The Court finds there is a rational basis to support treating gay marriage differently (Both) States have the specific authority to define marriage (Prop 8) States may refuse to recognize gay marriages performed elsewhere (DOMA) Federal government may limit benefits awarded to gay marriage (DOMA) States may not pass new statutes or constitutional amendments, but old ones stand (Prop 8)

Civil Rights ● Family ● Criminal Questions?