Never before has the legal case for nationwide marriage equality seemed stronger than at the recent Federal Court of Appeal’s argument in the Indiana and Wisconsin marriage cases. For nearly two hours, the Seventh Circuit panel of three judges, appointed by Presidents Reagan, Clinton, and Obama, tore gaping holes in every argument the states’ attorneys defending Indiana and Wisconsin’s marriage bans offered.
The states’ attorneys sometimes appeared at a loss for words or flustered, and the Wisconsin attorney even tried, unsuccessfully, to evade answering one of the Court’s questions by suggesting his time was up when it wasn’t. One judge referred to various arguments the states made as “feeble,” “absurd,” “ridiculous,” and “pathetic.” The states’ attorneys came up with nothing credible to defend the bans. When the Court asked Wisconsin’s attorney how ending the exclusion of LGBT couples from marriage would harm anyone else, he responded: “…[w]e don’t know.”
Perhaps the most important aspect of the argument was the respect all three judges evidenced for the dignity of LGBT Americans and their children. For decades, opponents of equality have slandered LGBT Americans by falsely accusing them of being harmful to children—be it Anita Bryant’s 1970s “Save the Children” campaigns, or the 2008 Proposition 8 campaign. Last year, the United States Supreme Court, in its decision striking down DOMA, held the opposite: anti-LGBT laws, in fact, harm children of LGBT parents.
The Supreme Court stated that DOMA “humiliates tens of thousands of children now being raised by same-sex couples…mak[ing] it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives…” The Seventh Circuit went further, with one judge referring to many of the harms that the states’ marriage bans have inflicted on children of LGBT parents as “harrowing” and noting America’s history of “savage” discrimination against lesbian and gay people based on “hate.”
Indiana and Michigan’s attorneys argued that their states could continue to bar same-sex couples from marriage because they claimed the purpose of marriage was to encourage unmarried heterosexuals who engage in sexual activity in which the woman became pregnant to stay together. The Court asked why the states did not criminalize heterosexual “fornication” outside of marriage instead, and it noted that the states’ current laws actually penalize LGBT couples who carefully plan their families.
One judge presented data showing that, in fact, from 1990-2009, years in which the same-sex marriage bans were in place, the proportion of out-of-marriage births increased 68% in Indiana and 53% in Wisconsin, with the out-of marriage birth rate for some demographic profiles over 90%. Noting that the states’ purported policy of banning same-sex marriage to prevent out-of-marriage births was “pretty unsuccessful,” the judge named the states’ argument for what it was, an ”artificial rationale” to exclude same-sex couples from marriage.
On Monday, September 8, the Ninth Circuit in San Francisco hears oral arguments in the Idaho, Nevada, and Hawaii cases. Stay tuned.
John Lewis and Stuart Gaffney, together for nearly three decades, were plaintiffs in the California case for equal marriage rights decided by the California Supreme Court in 2008.
Watching the President sign off on an Executive Order banning federal contractors from discriminating against the LGBTQ community last week, I was struck by how far our community has come. Just a few weeks prior, I was honored to represent MEUSA, our volunteers and members at the White House Pride Reception hosted by the President and the First Lady.Captivated by the historical immensity of the White House, I heard the President speak from the heart and joke with guests. I watched as he welcomed hundreds of LGBT activists. While meeting both the President and the First Lady was an honor, the power in that moment was in reminding me how far our own grassroots, volunteer-driven organization has come in changing the conversation around marriage equality in almost 20 years of work.
When Marriage Equality USA (then Marriage Equality New York) first began in 1996 after the enactment of the so-called Defense of Marriage Act (DOMA), few in our community (LGBTQ or political) would even dare to dream about, much less utter the phrase, "marriage equality." It took years of hard work, grassroots organizing, education and pushing against the establishment to make friends, lawmakers and the public understand that marriage mattered. MEUSA's unique history has allowed us to participate in both grassroots organizing as well as bringing the voices of so many grassroots organizers to more traditional halls of power. Now, as state after state embraces the goal for which so many of us have toiled for so long, we remember that our success stands in honor of those who have been with us from day one — especially those who toiled without ever having felt the joy of full marriage equality in their lifetimes.
For all those whose hard work and dedication to MEUSA made that collective White House moment possible, I humbly say, thank you.
In part two of MEUSA’s three-part interview with Edie Windsor, Edie recounts the struggles of gay life before Stonewall and her persistence pursuing her eventual wife, Thea Spyer.
Part one, for those who missed it or who wish to view it again, follows:
Twice in our lives, we’ve quit our jobs and travelled around the world for a year with whatever we could carry on our backs. So we love this year’s parade theme: Color Our World with Pride. After San Francisco Pride, we will be headed to Okinawa, Japan, to participate in the Pink Dot Okinawa pride events and speak at the very first Okinawa marriage equality rally, to be held in the center of the island’s largest city.
In Japan, we will also continue our collaboration with Japanese LGBT activists in Tokyo and Osaka. Recently, Akie Abe, the Japanese First Lady, rode in the Tokyo Pride Parade accompanied by a fabulous drag queen, and proclaimed: “I want to help build a society where anyone can lead happy, contented lives without facing discrimination.”
Across two oceans, Luxembourg Pride will celebrate the tiny country’s giant news that earlier this month it became the 19th country with marriage equality. The fact that Luxembourg’s openly gay Prime Minister Xavier Battel will implement the law makes the landslide 56-4 vote in the Chamber of Deputies all the sweeter. And as soccer fans around the globe follow the World Cup this summer, we take pride that the host country Brazil, a nation of 200 million people, boasts marriage equality. Indeed, last December the Rio de Janeiro Superior Court of Justice conducted the world’s largest LGBT wedding ever, in which 130 couples tied the knot.
However, in other parts of the world, LGBT people are marching for their basic human rights and freedom. In India, Mumbai’s Pride Parade this February drew a record crowd gathering to protest the Indian Supreme Court’s upholding “Section 377,” a British colonial era law that criminalized sexual activity of LGBT people. The Indian Supreme Court’s decision has galvanized many Indian LGBT people and allies to stand up and fight back. In a rare move, the Indian Supreme Court has agreed to rehear the case.
Sadly, there will be no pride parades this summer in many parts of the globe where LGBT people are struggling simply to survive. In nine countries, LGBT sexual activity is punishable by death. One image that remains emblazoned on our minds is a 2010 photograph of Steven Monjeza and Tiwonge Chimbalanga, who were arrested and sentenced to 14 years in prison in the East African nation of Malawi for being gay and announcing their engagement to be married. The photo shows Steven and Tiwonge—alone and handcuffed together in the back of pick-up truck—being hauled off to jail, surrounded by a mocking and jeering crowd. We will hold their image in our minds as we ride down Market Street, celebrating the one-year anniversary of the US Supreme Court’s overturning DOMA and Prop 8, this past year’s historic string of marriage equality victories, and the wonderful degree of freedom we have attained in San Francisco.
We must create global collaboration and community to truly color the world with rainbow pride. Perhaps no country speaks better of the potential of such collaboration than South Africa. In 2006, South Africa became the fifth country in the world to gain marriage equality—before every other state in the United States except Massachusetts—thanks to specific sexual orientation protection in their constitution. Two years ago, US Supreme Court Justice Ruth Bader Ginsburg praised the South African Constitution—a true product of international collaboration—as “a fundamental instrument of government that embrace(s) basic human rights,” and calling it “a great piece of work that was done.” This year’s Pride celebrations remind us that we have much more great work to do together.
By MEUSA National Media Director Stuart Gaffney and MEUSA Director of Legal & Policy John Lewis
This article originally appeared in SF Bay Times, June 26, 2014: http://sfbaytimes.com/color-our-world-with-rainbow-pride/ A photo of Gaffney and Lewis also served as the cover for that issue.
At the age of 81, Edie Windsor did something that would give pause to most of us who are decades younger — she took on the federal government over its refusal, for estate tax purposes, to recognize her marriage to (and 40+ year relationship with) Thea Spyer. Against the wishes and advice of most of the major LGBTQ organizations, but with the encouragement of MEUSA and a few of its members, she charged straight ahead. "They don’t know what they’re talking about,” Windsor recalls thinking of the chorus of voices concerned about the preparedness of the US Supreme Court to strike down the discriminatory statute known by the misnomer the “Defense of Marriage Act.” "There is no wrong time for justice. if you’re gonna go for it, go for it,” says Windsor. To hear more of her story, watch her interview with former MEUSA president Cathy Marino-Thomas. What follows is the first part of a multi-part interview.
The Defense of Marriage Act (DOMA) may have met its demise last June but same-sex binational couples living abroad are still waiting for the federal government to recognize their marriages and allow them to return to America. Melanie Servetas and Claudia Amaral, a married, same-sex, binational couple living in exile in Amaral’s home country of Brazil, are one of the tens of thousands of couples who have found themselves caught in the backlog of cases waiting to be approved for an American green card.
Servetas and Amaral began their relationship in 2009 after meeting through an online dating service. Servetas held a high level position as a Senior Vice President with Wells Fargo in Rancho Cucamonga, California. Amaral was a successful IT business owner in Brazil. Within the next few months, the couple quickly found out about America’s unjust immigration laws and sought out options seeking a way they could be united. “After about six months, I decided to come here to Rio for a visit,” Servetas said. “After my trip here, I decided there was no way we could go on with our lives living apart.” Servetas gave up her American home and job and re-located to Brazil, intending to bring Amaral back to the U.S. with her should that ever become possible. In Rio de Janeiro, on June 26, 2013, the couple followed the news as the U.S. Supreme Court struck down DOMA, the federal law forbidding federal recognition of same-sex marriages. As soon as the ruling was public, the couple rushed to marry. They rejoiced at the thought of returning together to the United States. “Unbelievable joy that we could finally come home, sadness that we were still in Brazil, disbelief that we still have such a long way to go for equality and proud to be even a small part of a fight like this for equality” explained Melanie Servetas regarding her initial emotions after the repeal of DOMA.
Due to DOMA restrictions, American citizens in same-sex binational relationships were previously denied the right to sponsor their foreign-born partners for the purpose of immigration. Once DOMA was repealed, immigration opportunities became available to all same-sex binational couples. However, even during this time of celebration, the process of applying for a green card as a same-sex couple caused Servetas and Amaral to feel nervous and unsure of the future.
Despite the DOMA ruling and the resulting change in U.S. immigration law, hardships remain for the couple. Shortly after marrying, the couple submitted Amaral’s green card application with the assistance of their attorney, Regina Jefferies. The U.S. Citizenship and Immigration Service (USCIS) initial approval process can take up to seven months. Once approved, the application gets transferred to the Department of State’s National Visa Center (NVC) for further review.
“We are still waiting for USCIS to notify the National Visa Center that their petition has been approved,” Jefferies said. “Once the petition gets transferred to the NVC, they request additional information. They do some pre-processing for the consulate. Once that information is there, it takes them another 30 business days to review. The NVC will complete their initial processing and forward the entire file out to the consulate in Rio.”
The procedure for applying for a green card for those couples who have been forced to live abroad in order to be together is an exhaustive and lengthy process. “We’ve been stuck, on hold in the process for almost 60 days now. USCIS has sent our approved petition to the NVC but the NVC has not officially confirmed they have received it for the next steps,” said Servetas.
After already enduring significant emotional and financial suffering, the waiting has made the situation almost unbearable. But Servetas and Amaral are committed to following through with the legal process so that they can return to America, despite the extreme burdens the system has placed on them. “The very long delays to process applications for people who have already suffered discrimination and hardships totally frustrate us,” said Servetas. “It seems wrong that our Consular processing is taking so much longer than that of people who were able to apply to the USCIS because they didn’t have to leave the US in order to stay together. I can’t believe we are still so many months away from even having our consular interview.”
Time is of the essence for the couple as critical family matters have arisen in America. The need for the couple to return to the United States in the near future has become even more pressing. “I am very worried because my family in the U.S. urgently needs our assistance to care for an ill family member and we haven’t been able to get a response on our request to expedite,” said Servetas.
Couples like Servetas and Amaral are running out of time and money as the United States continues infighting over immigration reform. The need for comprehensive immigration reform seems clearer than ever with so many couples finding themselves locked into a system bound by massive red tape and bureaucracy.
“The government has ‘safe traveler’ global entry programs -- certainly something similar could be applied in order to let us come into the U.S. We’d be able to begin to work at putting our lives back together while we wait out the approval process,” said Servetas. “Also, those cases being handled abroad through the consulates should be allowed to bypass the USCIS portion and apply directly to the consular post for approval. Handing these files back and forth, where they end up just sitting without review for months on end, seems punitive to a population like us who have already suffered discrimination. Just allow consular processing to be a direct procedure with the State Department.”
What couples like Servetas and Amaral have already endured in their attempts to be together should be considered astonishing. In America, we continue to fight for equality. But many injustices continue as the plight of those who have had to choose between love and country are forced to pay the penalty of previous discriminatory laws. By no means do Servetas and Amaral minimize the struggle that same-sex binational couples who reside in America face. They only want to let people know that for those who have been exiled by love, trying to come home is proving to be just as difficult as leaving was. Servetas and Amaral are still waiting to move forward with their application process and are committed to continue the fight against America’s broken immigration system.
By Gina Caprio
- American Military Partners Association (AMPA): The nation’s premier resource and support network for LGBT military partners, spouses and their families. Founded by the partners of active duty servicemembers, AMPA has grown to nearly 4,000 members with thousands more supporters and is proud to be leading the effort to connect, support, honor, and serve our modern military families.
- American Veterans for Equal Rights (AVER): A non-profit, non-partisan, chapter-based Veterans Service Organization of active, reserve, and veteran service members dedicated to full and equal rights and equitable treatment for all present and former members of the U.S. Armed Forces, especially the LGBT current and prior military personnel who have been historically disenfranchised by armed forces policy and discriminatory laws governing military service and benefits.
- OutServe/SLDN: A non-partisan association of actively serving LGBT military personnel offering legal services and acting as a watchdog and policy organization dedicated to bringing about full LGBT equality to America's military and ending all forms of discrimination and harassment of military personnel on the basis of sexual orientation and gender identity.
- Service members, Partners, Allies for Respect and Tolerance for All (SPARTA): The mission of this organization is to advocate for and support our actively serving LGBT military members and veterans and their families while working to ensure the military provides equal opportunity for all service members regardless of race, national origin, religion, sex, sexual orientation and gender identity.