Wednesday, November 22, 2017
Perspective

Fast track to gay marriage

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As pro-LGBTQ crowds gathered on the steps of the Supreme Court last week and bloggers gave us the play-by-play of the justices' opinions on two landmark gay marriage cases, most Americans were busy driving to work, getting their kids to school and picking up their morning java.

For the vast majority of straight Americans, the decisions were about as ho-hum as a case about whether a court has personal jurisdiction over a corporation doing business in the state. Because the majority of Americans view same-sex marriage with approval, the decisions simply reinforced what people already thought — that lesbian, gay, bisexual, transgender and queer people should have the same rights and interests that straight people take for granted: parental rights over children, hospital visitation and health insurance coverage for their partners and spouses.

These decisions were not based on deep sociological divides over the theological implications of a 5,000-year-old institution. Rather, they represented a commonsense recognition that the needs of today's families demand that government respect and protect individual choices, not hinder and punish them. This is even more true now, when more than half of children are being raised in nontraditional households.

For LGBTQ people, the decisions were a vital recognition that they are just like everyone else in wanting to form intimate relations and build families that include the same protection of legal rights that heterosexuals enjoy. And for most in the LGBTQ movement, this day was momentous because it took such a relatively short time.

It took 58 years, between 1896 and 1954, for the Jim Crow laws of segregation, affirmed in Plessy vs. Ferguson, to be struck down in Brown vs. Board of Education. For the LGBTQ movement, it took half that time, 26 years, from 1987 when the Supreme Court affirmed Georgia's criminalization of same-sex intercourse in Bowers vs. Hardwick, until it was decriminalized in 2003 in Lawrence vs. Texas, to today, when the court ruled that the federal government may not deny the privileges of marriage to same-sex couples married legally in those 12 states that have chosen to grant them. Few people, even a decade ago, thought this day would come so soon.

Public opinion has changed dramatically since 1996, when DOMA — the Defense of Marriage Act — was passed by a Congress terrified that Hawaii was on the brink of legalizing same-sex marriages and that every state would be forced, by the Constitution's full faith and credit clause, to respect marriages performed in Hawaii. At that time, over two-thirds of American adults disapproved of same-sex marriage, perhaps because many states still criminalized the sexual activity that defines homosexual relationships.

With the Supreme Court's truly path-breaking decision in Lawrence vs. Texas in 2003, decriminalizing the very activity that defines gay identity, the stage was set for the two cases decided last week. Justice Anthony Kennedy's words profoundly changed the way the law, if not the world, saw the relationship between homosexuality and governmental regulation: "When homosexual conduct is made criminal by the law of the state, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres."

Speaking of the limits on government, Kennedy explained: "The state cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the due process clause gives them the full right to engage in their conduct without intervention of the government. 'It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.' " These are sentiments that straight people have experienced for centuries.

After Lawrence, the LGBTQ community believed that the state-sanctioned pillars of discrimination would come tumbling down, that Florida's law forbidding homosexual persons from adopting children, even the children of their partners, would be declared unconstitutional. They thought nondiscrimination laws throughout the country would be amended to include protections for sexual orientation, as they had already provided protections from discrimination based on race, national origin, religion, veteran status and other classifications.

They hoped that ENDA (the Employment Non-Discrimination Act) would finally pass, having been introduced every year but one in Congress since 1994. ENDA would provide the kinds of protections against discrimination that the Civil Rights Act of 1964 provides for racial minorities and women.

But they were wrong. Only a few of those changes have occurred. In 2010, the Florida gay adoption ban was struck down as a violation of the Florida Constitution, but two other states have effectively reinstituted such bans by allowing adoptions only to married couples. And sexual orientation, gender identity and gender expression have been added to a few local nondiscrimination ordinances in Florida.

But only 21 states have statewide bans on discrimination, notably not Florida, and there is no federal ban on discrimination on the basis of sexual orientation. Consequently, LGBTQ persons are routinely fired from their jobs, lose their housing, are suspended from schools, and are bullied and harassed with no legal protections in the vast majority of this country. Even though the majority of Americans favor laws allowing same-sex marriage and prohibiting discrimination on the basis of sexual orientation, states may continue to deny those protections through laws that pass constitutional muster.

The two cases decided last week do not change the everyday private discrimination sexual minorities face. (The first, Windsor vs. U.S., struck down Section 3 of the federal Defense of Marriage Act, which provided that for federal purposes marriages would be valid only between a man and a woman. The second, Hollingsworth vs. Perry, upheld on technical procedural grounds the U.S. District Court's decision holding that California's Proposition 8, which limited marriage in California to heterosexual couples only, violated the U.S. Constitution.) But those cases do chip away at the legalized discrimination embedded in our laws.

Now, same-sex couples who are legally married in their state of domicile will be given the more than 1,000 federal rights and responsibilities that attach to marital status, including social security benefits, veterans benefits, and the obligation to support one's spouse. In California, same-sex marriages will resume once again, having been blocked for nearly five years.

Will Florida residents see any changes? Probably not. Florida law prohibits same-sex marriages as a result of Amendment 2, passed by the voters in 2008, which amended the Florida Constitution to read: Inasmuch as marriage is the legal union of only one man and one woman as husband and wife, no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized.

This law remains in place for the present, not only prohibiting same-sex marriage but also civil unions or domestic partnerships. And although the federal district court in California has held that California's constitutional ban on same-sex marriage violates the federal equal protection guarantee, that decision is not binding in Florida or anywhere else in the country.

When the celebrations end, the sun rises tomorrow, and Americans resume their morning jogs, their commutes to work, and getting the kids to school, LGBTQ activists across the country, in those 38 states that prohibit same-sex marriage, will get back to work introducing legislation to repeal those prohibitions, or gathering the signatures to get repeal measures on the ballots for upcoming elections.

In those states that recognize same-sex marriage, those couples will start filing joint income tax returns and claiming federal benefits. In those states like Florida that deny same-sex marriage, their LGBTQ residents will remain in the closet, unable to protect their families and children, fearful of losing their jobs or their housing, despite the fact that a majority of Floridians think the whole issue is much ado about nothing.

Danaya C. Wright is the Clarence J. TeSelle professor of law at the University of Florida, Levin College of Law. She wrote this exclusively for the Tampa Bay Times.

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