JURIST Guest Columnist Brynne Madway, The George Washington University Law School Class of 2013, offers insight on the Obama administration's public endorsement of gay marriage and examines the current state of LGBT initiatives...
Earlier this month, North Carolina preacher Charles Worley said that gays and lesbians should be placed behind an electric fence so that "they'll die out." While Worley's views are extreme, they are emblematic of a larger problem: it is still possible to garner an audience while advocating violence against the LGBT community. In addition, voters in North Carolina promoted discrimination by banning same-sex marriage and all civil unions. As numerous legal scholars have noted, North Carolina's Amendment 1 [PDF] will likely have many anticipated and unanticipated consequences for same-sex and opposite-sex couples for years to come.
The day after Amendment 1 passed, President Barack Obama announced his support of same-sex marriage. This marked the first time that a sitting US president publicly announced his support for same-sex marriage. While the president's support was qualified, it was still an historic occasion. Although the Department of Justice stopped defending the Defense of Marriage Act (DOMA) in 2011, the House of Representatives has taken on the burden of defending the law. This article argues that the LGBT community should focus on challenging the validity of discriminatory laws in court, rather than through the legislative process, and that the LGBT community needs to fight for other rights in addition to the right to marry.
According to the Human Rights Campaign (HRC), 30 states continue to discriminate against same-sex marriage in their constitutions. It is difficult to foresee another state following in the footsteps of North Carolina but the state-by-state focus on marriage equality has brought about minimal progress. Even though several states have legalized same-sex marriage or have recognized such marriages performed elsewhere, DOMA prevents the federal government from recognizing these marriages. This approach has limited room for growth because of the number of states which have constitutional amendments banning same-sex marriages and because DOMA allows states not to recognize same-sex marriages performed elsewhere.
The result of the vote in North Carolina was disappointing but it should have been anticipated. Despite the recent repeal of Don't Ask, Don't Tell and victories in cases such as Gill v. Office of Personnel Management, Perry v. Brown, Lawrence v. Texas and Romer v. Evans, victories for the LGBT community have been few and far between. Even when the courts grant certain rights, they have at times been taken away by voters, as Proposition 8 demonstrates. It seems all too clear that when rights are linked to the ballot box, they can all too easily be taken away. Basic civil rights should not be subject to a vote.
On May 6, 2012, the demoralizing effect of the North Carolina vote diminished when US Vice-President Joe Biden revealed that he supported gay marriage, thus publicly decrying the pending vote. This prompted Obama to voice his support of same-sex marriage the day after Amendment 1 was passed. Obama's announcement was historic and its significance should not be underplayed. While it is disappointing that the president waited until after Amendment 1 was passed to make his announcement, the timing was likely a product of politics. An earlier announcement may have been labeled as politically motivated rather than genuine, a perception that could have weakened the president. However, given the state-by-state campaign that has been waged for marriage rights, the president's message, while historic and inspiring, may not have a large impact given the number of states which constitutionally forbid same-sex marriage. Another LGBT ally is always welcomed but we have to ask if our approach is working and whether we need to focus on other rights.
Marriage is important. Both the Human Rights Campaign (HRC) and the National Gay and Lesbian Taskforce cite numerous benefits that same-sex couples lose because same-sex marriage is not legal or recognized in the majority of states and because of DOMA. Many of these benefits are important and have significant repercussions. For example, in some states one may not be able to visit a partner who is hospitalized, may encounter difficulties with adoption or may not be able to file federal income tax. The HRC notes that "same-sex couples are denied more than 1,100 federal benefits and approximately 515 state benefits enjoyed by married opposite-sex couples."
Even in the states that have legalized same-sex marriage, the federal government will not recognize same-sex marriages because of DOMA. Under DOMA, a same-sex couple that is married and living in Massachusetts is not able to file a joint federal income tax return. If one spouse receives health insurance through her partner's employer's health care plan, then the cost of her health insurance is taxable even though a married opposite sex couple would not have to pay federal income tax on those benefits. The good news is that a number of federal courts have found specific parts of DOMA to be unconstitutional — including the recent ruling from the US Court of Appeals for the First Circuit that struck down Section 3 of DOMA. However, DOMA has not been repealed and it has only been challenged in a limited number of courts. Ultimately, even if every state legalizes same-sex marriage, same-sex couples will be denied federal benefits unless the federal law is repealed.
So much emphasis is placed on the fight for marriage equality that activists in the LGBT community have been lead to ignore other important initiatives that need to be reconciled. Marriage is of incredible social significance and its importance should not be ignored. Nor should members of the LGBT community be denied any civil right. However, the focus on marriage has allowed the fight for other rights to lag behind.
According to the HRC, only 16 states have nondiscrimination laws that include gender identity and sexual orientation. Five other states have nondiscrimination laws that protect sexual orientation while a limited number of other states have protections in place through other mechanisms, as do many local governments. In addition to this, a recent Equal Employment Opportunity Commission (EEOC) decision extends Title VII protection to transgender individuals in a monumental step towards equality. Even so, the US Congress has not taken the affirmative step of amending Title VII to include gender identity or sexual orientation. Every attempt to do so has failed. The EEOC decision is a leap forward for LGBT rights, but it is not a replacement for the Employment Non-Discrimination Act.
In the past few years there has been an epidemic of LGBT youth committing suicide and of transgender people being assaulted and killed. The Matthew Shepard Hate Crimes Prevention Act is a significant step forward and it will help protect the most vulnerable members of the LGBT community. However, there is more work to be done on a state-by-state basis. Unlike marriage equality, this is work that can only be done at a local level and it could have an immediate impact on the lives of LGBT youth.
Amendment 1, Mr. Worley's statement, and the president's message taken together represent a noteworthy dichotomy. The day after a state amended its constitution to forbid same-sex marriage, a US president facing reelection voiced his support for same-sex marriage. Less than a month later, a preacher in North Carolina called for the LGBT community to be placed in concentration camps and left to die, while insulting the president for his support of the LGBT community.
It is clear that a state-by-state approach to same-sex marriage and employment discrimination has not ended the hatred directed against the LGBT community. Civil rights should not be the subject of ballot initiatives because this subjects them to eradication due to the minimal scrutiny of the average public person. The LGBT community did not suffer a defeat when Amendment 1 passed. The LGBT community suffered a defeat the moment it became possible to vote on Amendment 1. The president's announcement is ultimately of little consolation when your civil rights are the subject of popular opinion.
Madway is the former president of Lambda Law and the Feminist Forum, and is currently treasurer of Lambda Law at The George Washington University Law School.
Suggested citation: Brynne Madway, Amendment 1 and President Obama: The Dichotomy of Same-Sex Marriage, JURIST - Dateline, June 5, 2012, http://jurist.org/dateline/2012/06/brynne-madway-same-sex.php
This article was prepared for publication by Emily Osgood, an associate editor for JURIST's student commentary service. Please direct any questions or comments to her at email@example.com