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Court decisions attack LGBT civil rights

By Jay Kaplan

This month has not been the greatest month for LGBT civil rights.
On July 6, the New York Court of Appeals (the state's highest court) ruled 4-2 that it is constitutional to deny same-sex couples the right to marry. That same day, the Supreme Court in Georgia held that a proposed constitutional amendment approved by voters in 2004, which bars not only same-sex marriage, but any recognition of same-sex couples, does not violate Georgia's constitutional requirement that ballot initiatives address only one subject.
The day before these decisions, the American Family Association of Michigan, through the Thomas More Law Center, filed a lawsuit against Michigan State University, asking the Ingham County Circuit to declare that MSU's provision of domestic partner benefits violates Michigan's constitutional amendment prohibiting same-sex marriage, and requesting the court prohibit MSU from offering such benefits in the future.
And on July 10, Massachusetts Supreme Court held that despite the fact that same-sex marriages have been legal in that state since 2004, a citizen's ballot initiative banning same-sex marriage can go forward.
After those feelings of defeat and demoralization subside, we need to examine these legal developments so that we can regroup and re-energize ourselves for the continued struggle to have our relationships and families afforded legal benefits and protections.

New York

What's distressing about the New York decision is that the court majority refused to recognize marriage as a fundamental right for gay people. Despite the fact that the United States Supreme Court has held that marriage is a fundamental right, the New York Court found that it is a fundamental right only for persons of the opposite sex because that is the context in which courts have addressed this issue in the past. They defined the issue before them as not the denial of marriage, but the denial of same-sex marriage and therefore applied the lowest level of constitutional scrutiny to New York's current policy.
The Court found that New York's refusal to issue marriage licenses to same-sex couples was "rationally" related to two objectives: First, to promote stability and permanence in heterosexual relationships by encouraging opposite sex couples to marry before having children and second, the belief that it is better, all other things being equal for children to grow up with both a mother and a father.
The impassioned dissent by Judge Judith Kaye, which unfortunately has no precedential value, gets it right. Fundamental rights (like marriage) cannot be denied to gays on the ground that they have been historically denied this right.
The United States Supreme Court has held that the fundamental right to marry must be afforded even to those who have previously been excluded from its scope, even when that exclusion has been deeply rooted in history and tradition. Otherwise, the courts would never have been able to grant African-Americans and women the fundamental right to vote.
Although Kaye argued for a higher level of judicial scrutiny regarding New York's policy, she believes the policy would fail even under the majority's "rational" basis test.
While encouraging opposite sex couples to marry before having children is a legitimate government interest, the exclusion of gays and lesbians from marriage in no way furthers this interest. There are enough marriage licenses to go around for everyone.
The ability or desire to procreate is not a prerequisite for marriage. Otherwise, heterosexual couples who are elderly, sterile, or not wishing to have children would be prohibited from marrying.
The state actually undermines its interest in the welfare of children by denying children of same-sex couples the benefits and legal protections afforded by marriage.
Judge Kaye faults the majority opinion for its failure to acknowledge or consider the lives of the 44 plaintiff couples, their kids and the many LGBT families who are harmed by the denial of marriage. She points out that the presumption that children fare best with a mother and father runs counter social science research studies that show that children raised by same-sex parents fare no differently from, and do as well as, those raised by opposite-sex parents in terms of the quality of the parent-child relationship, mental health, development and social adjustment. What matters is the love and nuturing that a child receives, not the gender of his/her parents.
As Evan Wolfson, executive director of Freedom to Marry, states in his recent article in The Advocate, the majority in its "toothless" scrutiny of New York's gay marriage ban, produced the same illogical, unsubstantiated and insufficient arguments that courts in Hawaii, Massachusetts and even Arkansas (which recently struck down the state's ban on gay foster parents) have refused to buy.
For more than a decade, same-sex marriage opponents have not been able to come up with anything else to legitimize this form of discrimination.

Georgia

The decision in Perdue v. O'Kelley involves a challenge to a Georgia ballot initiative that became a constitutional amendment.
The amendment not only prohibits same-sex marriage, but also contains language that would prohibit civil unions, and any judicial recognition of a same-sex relationship.
Georgia, unlike Michigan, has a constitutional provision that requires that proposed constitutional amendments can only address one subject. Presented to the voters as a "marriage amendment," challengers sued seeking a declaration that the amendment was unconstitutional because the ballot language was misleading (it only addressed limiting marriage to one man and one woman) and because it addressed more than one subject (i.e. recognizing same-sex couples in any other form.)
The Georgia Superior Court (the same level as our Michigan Court of Appeals) found the amendment to violate the single subject rule and declared it unconstitutional. The Georgia Supreme Court reversed, holding that the issues of recognizing same-sex relationships is germane to the issue of same-sex marriage and therefore would not violate the single subject rule.
This convoluted analysis gives a stamp of approval to the bait and switch tactics used by proponents of these amendments. They tell the voters that the amendment is solely about the issue of marriage and then after the amendment passes, they argue that the amendment bars any and all recognition for same-sex couples. Sounds familiar?

Massachusetts

On July 10, the Massachusetts Supreme Court (the same court that held in the landmark Goodridge case that Massachusetts could not deny same-sex couples the right to marry) ruled that a citizen-initiated ballot question challenging marriage equality for same-sex couples can go forward.
LGBT rights activists had challenged the state attorney general's certification of the intiative petition, arguing that the amendment would constitute a reversal of a judicial decision (the Goodridge decision). The Court held that should such an initiative pass it would not constitute a reversal of a judicial decision because it would not void the marriages of those same-sex couples who married before the initiative passed.
The Court did acknowledge that should the measure pass, it would then have to address the issue of having an amendment that is inconsistent with other provisions of the constitution, such as equal protection and due process.
What this means is that much effort, energy, and resources must be used to defeat this initiative.
The proposed amendment now goes to the Constitutional Convention where it needs to receive the votes of only 50 out of 200 legislators to send it to a second convention in 2007. If it gets 50 votes at the next convention, the question will appear on the ballot in November 2008.
LGBT advocates will have to work hard to persuade the Massachusetts legislators to vote no. Eight-thousand same-sex couples and their families will have to remind voters that their marriages have not resulted in the collapse of society nor had any detrimental impact on heterosexual marriage.

Michigan

Finally, the American Family Association of Michigan, through the Thomas More Law Center, filed a lawsuit against Michigan State University, asking the court to declare that by offering domestic partner benefits, MSU is violating Michigan's amendment prohibiting same-sex marriage.
The AFA is also requesting that MSU be stopped from offering domestic partner benefits in th future (once contracts are up).
Last year the ACLU of Michigan filed a declaratory judgment action in Ingham County Circuit Court and Circuit Court Judge Joyce Draganchuk held that the constitutional marriage amendment does not prohibit public employers from offering domestic partner benefits.
This decision is on appeal from the Michigan Court of Appeals and it is questionable as to why the AFA has filed this lawsuit. We strongly believe that Judge Draganchuk in holding that conferring health insurance benefits to employees' domestic partners does not legally create a marriage or anything remotely similar to marriage.
We also believe that it was never the intention of Michigan voters to take away health insurance from LGBT families and their children, particularly since Proposal 2 was presented to voters as being "only about marriage."

So where does this leave us? Certainly disappointed and frustrated, but not defeated. These decisions, however, wrongfully decided, point out the reality that LGBT civil struggles are not won by court battles alone. We have to educate society, one person at a time, so they can understand how inequality harms LGBT families and children, and ultimately everyone. We've got the better argument and we've got important and compelling stories to tell.
Let's keep on going.

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