Elation
Since the day had started out with even more chaos than usual, being my daughter's fourth birthday and dealing with the schedule chaos brought by a week of late bed times from Vacation Bible School, I had not really given much thought to the coming decisions on DOMA and Proposition 8. I decided to check my twitter feed and saw that SCOTUSblog was about to start their live blog on the decisions. From past experience (Hello, CNN) I had learned that SCOTUSblog was the most proficient and accurate source for announcements and comprehension of Court decisions.
In the previous days and weeks as many of my friends awaited these potentially groundbreaking decisions, I noticed that their enthusiasm and optimism was growing daily. This worried me, quite frankly, because I remembered the absolute despair that many of my gay and lesbian friends felt after the North Carolina constitutional amendment banning recognition of same-sex relationships passed with an overwhelming majority of voters. I didn't want to see their hopes dashed again. I knew from my study of the law that regardless of what people think of the Supreme Court, decisions like Brown v. Board of Education are the exception, not the rule. The law moves slowly and is usually playing catch-up to social movements, only really recognizing them after they have already become the norm.
I did my best to prepare my friends for the disappointment that they would feel if the decisions came out differently than they hoped. I confess that what I felt was most likely is that the Supreme Court would take a pass and use procedural technicalities to send the cases back to the appellate courts and push the decision down the road. My biggest fear was that they would uphold both DOMA and Proposition 8, which, although I thought this was unlikely, was possible and would be a devastating defeat to the forces of equality.
As the time came close, I felt my pulse quicken. I didn't expect to have such a physical reaction to these decisions. Then shortly after 10:00, the SCOTUSblog live blog announced that they had Windsor (the DOMA decision) and that it was a 5-4 decision. I felt the adrenaline pumping in my veins and goosebumps rise on my arms. They announced that the decision was written by Kennedy (which told me nothing in a 5-4 decision because he would be the swing vote either way). When they announced he was joined by the four liberal justices I knew at least my worst fears would not be realized -- at least DOMA had not been upheld. What I didn't know is whether they had overturned it, or decided to kick the issue back to the appellate courts and put off the ultimate decision for a couple years.
What happened next was wholly unexpected. As I read the post that the Court had found that DOMA violated the equal protection clause of the Fifth Amendment and was therefore unconstitutional, I felt my body shiver, tears welling up in my eyes and found that my hand was resting over my mouth, holding back sobs of joy. I knew right away that this was an incredibly important decision, one that would rank with the most important Supreme Court civil rights decisions in history. For the first time the court had decided that same sex couples were entitled to the same protections under Federal law as any other couples. This was monumental. This was astounding. This was a home run!!!!!!
Seeing the celebrations of my gay brothers and sisters on social media, on news outlets, through pictures and videos across the internet filled me with a total sense of joy. I knew that my friends who had suffered discrimination, threats, assault, shame, depression, suicide, abandonment, condemnation, persecution, fear, rejection, despair, now could say "I am equal to you" and had the force of the law of the United States to back them up.
The emotion was overwhelming.
As I began placing celebratory posts on Facebook, and reading tweets coming in from across the country, I cautioned that we still had the Perry Prop 8 decision to come, and as exciting as the DOMA decision was, I knew that it was unlikely that the Court would go as far with the Prop 8 decision. The reason was that if the Court ruled on Prop 8 and found that California's ban on same-sex marriage violated equal protection, they would be in essence saying that states did not have the right to ban same-sex marriage. Such a decision would be wonderful, but very unlikely at this point.
After some other cases were released of far less interest, finally Perry was released. As I had expected, the Court held that there was an issue as to the standing of the appellants (the supporters of the ban on same-sex marriage) to challenge the lower court ruling. My fear on this, however, was that they would simply kick the decision back to the circuit court for a decision, which would leave Proposition 8 in place for the time being in California. This was not, however, what happened. Because the Court held that there was no standing to appeal, the Court left in place the District Court judge's decision finding that Proposition 8 was unconstitutional. Therefore, same-sex marriages could once again be performed in California.
This was truly a great day.
Although we are far from the finish line on this issue, the precedents set today and the undeniable momentum of the laws of this country are favoring the recognition of marriage equality in our near future. The next step will be challenging state bans, such as ours in North Carolina. But more on that in a bit. For now, let's keep celebrating.
Religion
I can't begin to explain how wonderful it was to be able to celebrate the decisions of the Supreme Court with my church community. Most of the celebratory tweets on my twitter feed were from members, clergy, and bishops of the Episcopal Church. Episcopal Churches across the country rang their church bells in celebration of the Supreme Court decision. The National Cathedral rang their carillon and held prayer services both before the decision and after in order to celebrate.
Belonging to a faith community which welcomes and celebrates the LGBT community equally and fully is a powerful witness to the true power of God's love. I have seen the effect that this has on gay, lesbian, and transgendered individuals. To finally realize, many for the first time in their life, that they are worthy of God's love, not only if they give up who they are, but because of who they are is a remarkably empowering feeling. The Episcopal Church through its radical openness and acceptance (along with many other Christian denominations as well) is literally saving lives, and acting as living examples of the teachings of Jesus Christ.
While I was enjoying this new spiritual experience, being able to celebrate such a wonderful day openly with my fellow church members, I felt a sense of sadness come over me for my friends who, despite agreeing with me whole-heartedly on this issue, were not able to experience the same spiritual joy I was. As the Episcopal Church almost uniformly praised the actions of the Court, the leadership of the Roman Catholic Church was having the opposite reaction.
By mid-afternoon, the statements from the usual suspects -- Archbishop Dolan of New York, Bishop Cordileone of San Francisco, Maggie Gallagher of the National Organization for Marriage, and on and on and on -- were spouting the most hateful, demeaning, and damning statements about the Courts decision and gays and lesbians themselves. Two of the most prominent Catholic members of the Court -- Justices Scalia and Alito -- were reading their dissents, dripping with hateful ignorance and sarcastic insults, from the bench.
I am familiar with the tension such days cause, being raised in the Catholic Church and considering myself a Catholic in varying degrees of practice, for the first 40 years of my life. Days like this would be seen with personal happiness, but dulled by the reminder that your personal beliefs were not only not shared by your faith, but condemned by it. Along with your congratulations to your gay and lesbian friends who would be directly impacted by the decisions, would be the caution to not express your views too loudly or openly for fear of repercussions.
Being an American Roman Catholic is to live daily with a sense of cognitive dissonance. The discomfort felt by the incompatibility of a faith which teaches that the beliefs that a vast majority of Catholics feel toward issues such as gay rights, contraception, pre-marital sex, divorce, etc. are going to land you in Hell is something quite familiar to most American Catholics. Most, either out of a sense of tradition, or a sense of obligation, or a duty to family, or from true personal faith despite the Church's leadership, choose to remain in the Catholic Church. For those, I felt sadness because I understood all too well the pain they were feeling yesterday.
I had come to the realization that I could no longer live with such discomfort and confusion and that I never wanted my daughter to feel torn between her faith and her beliefs, a couple of years ago. On this wonderful day on which I celebrated the anniversary of the birth of my daughter and the freedom of my gay and lesbian friends, my decision to break from the spiritual and intellectual shackles of the Roman Catholic Church was celebrated as well, especially as I heard those beautiful carillon bells ring out from the highest point of our nation's capital celebrating equality, freedom, and most of all love.
What Now?
There were certainly some shortcomings in the decisions of the Supreme Court yesterday. The parts of DOMA which apply to states' recognition of marriages from other states are still in effect. Therefore, even though marriage equality is recognized in 16 states and the District of Columbia as of now, 34 states have either statutory or constitutional bans prohibiting same-sex unions.
I will speak of North Carolina, which last year passed a Constitutional Ban to add to its already existing statutory ban of same-sex marriage, and where we go from here.
The decisions of yesterday certainly lay a groundwork for challenging North Carolina's ban on same-sex marriage. Because the Court recognized that same-sex couples have a Fifth Amendment right to equal protection under the law, the ultimate recognition of same-sex unions nationwide is all but inevitable.
Since the Fourteenth Amendment applies the Fifth Amendment's guarantees of equal protection to the States, a violation of equal protection from a state ban would fall under the same rationale in the Windsor case. Certainly there will be challenges based on disparate treatment of tax laws, such as there was in Windsor, whose plaintiff was made to pay $320,000 in estate tax from her spouse's estate she would not have had to pay had her deceased spouse been male. This would seem to apply to couples legally married in a state recognizing same-sex marriage, who then move to a state not recognizing such. If a surviving spouse is forced to pay a state tax on their deceased spouse's estate, this would almost certainly have to be found to violate equal protection under the holding of Windsor.
Another situation that does apply in North Carolina deals with rights to child custody and adoption. North Carolina has an outright ban on same-sex couples adopting children and does not recognize under the law the right of a same-sex partner who is not the legal parent of the child to visitation or custody in the case of a split, even if the couple were legally married in another state. This will almost certainly be challenged either in State or federal court before long, based on the rulings yesterday. The law is clear that North Carolina does not recognize these rights, so a trial court judge would essentially be powerless to rule otherwise, so it would be up to the appellate courts, either state or federal, to make these decisions.
One area which would be ripe for challenge under North Carolina law is the preferential treatment under the law married couples are given in the area of real property ownership. North Carolina has a special category of real property ownership available only to married couples. Tenancy by the Entirety has real and tangible benefits for married couples. For instance, if one spouse has debts to which the other party is not subject, the real property owned as Tenants by the Entirety cannot be attached to these debts and therefore the property cannot be sold in order to satisfy the debts. Also, a tenancy by the entirety is not able to be dissolved without the consent of both parties, therefore protecting both spouses rights and interests in the property in the event of a split. Lastly, tenancy by the entirety is automatically transferred upon the death of one of the parties, and that transfer is not counted as part of the decedent's probate estate. This has a profound effect on both the rights of the surviving spouse to inherit free from challenges from family members, as well as the economic benefits of having a smaller probate estate.
I can foresee a plaintiff who is married in a state which recognizes same-sex marriage and then moves with their spouse to North Carolina and purchases property. Because North Carolina law prohibits them from owning as tenants by the entirety, they would be able to show actual harm based on the benefits being denied to them because of North Carolina law's non-recognition of their valid marriage in another state. I would not be surprised if they challenged this in Federal Court that based on the rulings from yesterday they would be successful in ruling North Carolina's statutory and Constitutional bans on same-sex marriage invalid as a violation of their right to equal protection under the law. If someone is in that situation, get ye to a lawyer pronto and let's get this ball rolling!
The upshot of yesterday's rulings, and the reason that yesterday will be remembered in history, is that the question of whether gay, lesbian, bisexual, and transgender Americans will have equal rights in this country is no longer a question of "if" but instead a question of "when." There is still work to be done to recognize these rights uniformly across the nation. However, the work has gotten a whole hell of a lot easier.
Cheers!
As I began placing celebratory posts on Facebook, and reading tweets coming in from across the country, I cautioned that we still had the Perry Prop 8 decision to come, and as exciting as the DOMA decision was, I knew that it was unlikely that the Court would go as far with the Prop 8 decision. The reason was that if the Court ruled on Prop 8 and found that California's ban on same-sex marriage violated equal protection, they would be in essence saying that states did not have the right to ban same-sex marriage. Such a decision would be wonderful, but very unlikely at this point.
After some other cases were released of far less interest, finally Perry was released. As I had expected, the Court held that there was an issue as to the standing of the appellants (the supporters of the ban on same-sex marriage) to challenge the lower court ruling. My fear on this, however, was that they would simply kick the decision back to the circuit court for a decision, which would leave Proposition 8 in place for the time being in California. This was not, however, what happened. Because the Court held that there was no standing to appeal, the Court left in place the District Court judge's decision finding that Proposition 8 was unconstitutional. Therefore, same-sex marriages could once again be performed in California.
This was truly a great day.
Although we are far from the finish line on this issue, the precedents set today and the undeniable momentum of the laws of this country are favoring the recognition of marriage equality in our near future. The next step will be challenging state bans, such as ours in North Carolina. But more on that in a bit. For now, let's keep celebrating.
Religion
I can't begin to explain how wonderful it was to be able to celebrate the decisions of the Supreme Court with my church community. Most of the celebratory tweets on my twitter feed were from members, clergy, and bishops of the Episcopal Church. Episcopal Churches across the country rang their church bells in celebration of the Supreme Court decision. The National Cathedral rang their carillon and held prayer services both before the decision and after in order to celebrate.
Belonging to a faith community which welcomes and celebrates the LGBT community equally and fully is a powerful witness to the true power of God's love. I have seen the effect that this has on gay, lesbian, and transgendered individuals. To finally realize, many for the first time in their life, that they are worthy of God's love, not only if they give up who they are, but because of who they are is a remarkably empowering feeling. The Episcopal Church through its radical openness and acceptance (along with many other Christian denominations as well) is literally saving lives, and acting as living examples of the teachings of Jesus Christ.
While I was enjoying this new spiritual experience, being able to celebrate such a wonderful day openly with my fellow church members, I felt a sense of sadness come over me for my friends who, despite agreeing with me whole-heartedly on this issue, were not able to experience the same spiritual joy I was. As the Episcopal Church almost uniformly praised the actions of the Court, the leadership of the Roman Catholic Church was having the opposite reaction.
By mid-afternoon, the statements from the usual suspects -- Archbishop Dolan of New York, Bishop Cordileone of San Francisco, Maggie Gallagher of the National Organization for Marriage, and on and on and on -- were spouting the most hateful, demeaning, and damning statements about the Courts decision and gays and lesbians themselves. Two of the most prominent Catholic members of the Court -- Justices Scalia and Alito -- were reading their dissents, dripping with hateful ignorance and sarcastic insults, from the bench.
I am familiar with the tension such days cause, being raised in the Catholic Church and considering myself a Catholic in varying degrees of practice, for the first 40 years of my life. Days like this would be seen with personal happiness, but dulled by the reminder that your personal beliefs were not only not shared by your faith, but condemned by it. Along with your congratulations to your gay and lesbian friends who would be directly impacted by the decisions, would be the caution to not express your views too loudly or openly for fear of repercussions.
Being an American Roman Catholic is to live daily with a sense of cognitive dissonance. The discomfort felt by the incompatibility of a faith which teaches that the beliefs that a vast majority of Catholics feel toward issues such as gay rights, contraception, pre-marital sex, divorce, etc. are going to land you in Hell is something quite familiar to most American Catholics. Most, either out of a sense of tradition, or a sense of obligation, or a duty to family, or from true personal faith despite the Church's leadership, choose to remain in the Catholic Church. For those, I felt sadness because I understood all too well the pain they were feeling yesterday.
I had come to the realization that I could no longer live with such discomfort and confusion and that I never wanted my daughter to feel torn between her faith and her beliefs, a couple of years ago. On this wonderful day on which I celebrated the anniversary of the birth of my daughter and the freedom of my gay and lesbian friends, my decision to break from the spiritual and intellectual shackles of the Roman Catholic Church was celebrated as well, especially as I heard those beautiful carillon bells ring out from the highest point of our nation's capital celebrating equality, freedom, and most of all love.
What Now?
There were certainly some shortcomings in the decisions of the Supreme Court yesterday. The parts of DOMA which apply to states' recognition of marriages from other states are still in effect. Therefore, even though marriage equality is recognized in 16 states and the District of Columbia as of now, 34 states have either statutory or constitutional bans prohibiting same-sex unions.
I will speak of North Carolina, which last year passed a Constitutional Ban to add to its already existing statutory ban of same-sex marriage, and where we go from here.
The decisions of yesterday certainly lay a groundwork for challenging North Carolina's ban on same-sex marriage. Because the Court recognized that same-sex couples have a Fifth Amendment right to equal protection under the law, the ultimate recognition of same-sex unions nationwide is all but inevitable.
Since the Fourteenth Amendment applies the Fifth Amendment's guarantees of equal protection to the States, a violation of equal protection from a state ban would fall under the same rationale in the Windsor case. Certainly there will be challenges based on disparate treatment of tax laws, such as there was in Windsor, whose plaintiff was made to pay $320,000 in estate tax from her spouse's estate she would not have had to pay had her deceased spouse been male. This would seem to apply to couples legally married in a state recognizing same-sex marriage, who then move to a state not recognizing such. If a surviving spouse is forced to pay a state tax on their deceased spouse's estate, this would almost certainly have to be found to violate equal protection under the holding of Windsor.
Another situation that does apply in North Carolina deals with rights to child custody and adoption. North Carolina has an outright ban on same-sex couples adopting children and does not recognize under the law the right of a same-sex partner who is not the legal parent of the child to visitation or custody in the case of a split, even if the couple were legally married in another state. This will almost certainly be challenged either in State or federal court before long, based on the rulings yesterday. The law is clear that North Carolina does not recognize these rights, so a trial court judge would essentially be powerless to rule otherwise, so it would be up to the appellate courts, either state or federal, to make these decisions.
One area which would be ripe for challenge under North Carolina law is the preferential treatment under the law married couples are given in the area of real property ownership. North Carolina has a special category of real property ownership available only to married couples. Tenancy by the Entirety has real and tangible benefits for married couples. For instance, if one spouse has debts to which the other party is not subject, the real property owned as Tenants by the Entirety cannot be attached to these debts and therefore the property cannot be sold in order to satisfy the debts. Also, a tenancy by the entirety is not able to be dissolved without the consent of both parties, therefore protecting both spouses rights and interests in the property in the event of a split. Lastly, tenancy by the entirety is automatically transferred upon the death of one of the parties, and that transfer is not counted as part of the decedent's probate estate. This has a profound effect on both the rights of the surviving spouse to inherit free from challenges from family members, as well as the economic benefits of having a smaller probate estate.
I can foresee a plaintiff who is married in a state which recognizes same-sex marriage and then moves with their spouse to North Carolina and purchases property. Because North Carolina law prohibits them from owning as tenants by the entirety, they would be able to show actual harm based on the benefits being denied to them because of North Carolina law's non-recognition of their valid marriage in another state. I would not be surprised if they challenged this in Federal Court that based on the rulings from yesterday they would be successful in ruling North Carolina's statutory and Constitutional bans on same-sex marriage invalid as a violation of their right to equal protection under the law. If someone is in that situation, get ye to a lawyer pronto and let's get this ball rolling!
The upshot of yesterday's rulings, and the reason that yesterday will be remembered in history, is that the question of whether gay, lesbian, bisexual, and transgender Americans will have equal rights in this country is no longer a question of "if" but instead a question of "when." There is still work to be done to recognize these rights uniformly across the nation. However, the work has gotten a whole hell of a lot easier.
Cheers!
