As a gay person, North Carolinian, volunteer working against Amendment One, and now full-time marriage equality advocate, I was thrilled by today's 4th Circuit Court of Appeals ruling in Bostic v. Schaefer and its potential - eventually - to erase the stain of Amendment One from North Carolina's constitution. Like the other 28 court rulings since last year's landmark Windsor case, the 4th Circuit decision declares yet another& anti-marriage equality ban unconstitutional. Here is my favorite quote from the decision:
Civil marriage is one of the cornerstones of our way of life. It allows individuals to celebrate and publicly declare their intentions to form lifelong partnerships, which provide unparalleled intimacy, companionship, emotional support, and security. The choice of whether and whom to marry is an intensely personal decision that alters the course of an individual's life. Denying same-sex couples this choice prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance.
Though this decision was about the Virginia ban, implications have the potential to go beyond Virginia since the 4th Circuit has jurisdiction over other states without the freedom to marry, like North Carolina, as well as West Virginia and South Carolina. I say “potential” because the ruling does not take effect for at least 21 days and could be appealed to the full 4th Circuit or the Supreme Court of the United States(a.k.a. SCOTUS).
As Chris Brook, Legal Director of the ACLU of NC, explained to me, it’s likely that the ruling will not become final for a while. He thinks that SCOTUS will probably review the case. If this happens, Bostic could be the case, or one of the cases, SCOTUS will use to make an ultimate constitutional ruling. I fully expect SCOTUS to affirm that there is a constitutional right to the freedom to marry for same-sex couples. This 50-state-solution ruling, some lawyers predict, could come as early as June 2015 or 2016.
The more immediate “potential” of Bostic – as outlined by the ACLU of NC and Equality North Carolina – is if SCOTUS does not review the case. Then, couples can marry in Virginia and courts in North Carolina and the other two states can issue orders to apply the Bostic precedent in their state rendering those laws unconstitutional. Knowing that a similar law in Virginia has been ruled unconstitutional by the governing circuit court, local clerks and governmental officials might start marrying couples even before the state court issues orders. However, it's not clear if state or federal government would recognize those marriages.
You see, I have a history with Amendment One. I was deeply involved in doing field work to defeat it for about a year -- from before it passed the NC General Assembly in September 2011 (by one vote) to the months leading up to when it overwhelmingly passed on 8 May 2012. I even resigned from my full-time job as a research manager to do all I could to defeat it; running 33 phone banks, speaking around the state and even being in a documentary about it, One: A Story of Love and Equality – which will be screened at the NC Gay and Lesbian Film Festival on August 17th and 21st.
All along, I instinctively knew Amendment One was unconstitutional. I felt it most strongly when I woke up on 9 May 2012, the morning after it passed overwhelmingly. I felt like we LGBTQ people had been “voted off the island” by our fellow North Carolinians. It felt like the tyranny of the majority – where decisions of a majority place their interests above those of an often misunderstood minority group. Amendment One – and other laws like it - was against what I understood America was all about. When I rode my bike in the Fourth of July parade at age seven (pictured below with a rainbow sweater on -- and I didn’t know!), I was proud of what our country stood for – freedom and equal opportunity. When Amendment One passed, it was a vote to restrict some people’s freedom to marry as an abuse of religious freedom. It felt un-American. In America, we tolerate differences and we don’t deny people rights just because we don’t understand them – or at least, we don’t do this indefinitely. We eventually come to our collective senses.
Yet despite the profound disappointment and loss we LGBTQ North Carolinians and our allies felt when Amendment One passed, the light at the end of the long, dark tunnel of voter-approved bans on our freedom to marry appeared the very next day – and has only gotten brighter and brighter since then.
Below is a summary of the things that have helped erode support for Amendment One, and laws like it nationwide. It includes my perspective watching the movement unfold as a full-time advocate with an up-close view -- as either a spectator with a “front row seat” or as a “player on the field.”
1) On May 9, 2012, President Obama came out for marriage equality in a TV interview. Then on 19 May 2012, the NAACP - encouraged by NC’s esteemed NAACP leader William Barber - also endorsed marriage equality. This had a big “permission giver” effect. I recall one poll where support among African American voters in Maryland, for example, shot up shortly after.
From June until November, I worked for a pro-equality state senator who was running against someone I considered the “son of Amendment One.” After that unfortunate loss, and a new Republican super-majority in both houses, prospects of overturning Amendment One were even bleaker. North Carolinians had to look to other states for any movement on this issue.
2) Amazingly, four states won their marriage-related campaigns at the ballot in November 2012 – three to pass marriage equality (MD, ME and WA) and one (MN) to defeat another marriage ban. Having lived through the North Carolina experience (which had been common in about 30 other states before us), I was astounded at these results. I attended conferences in DC and Atlanta to find out how we won. It wasn’t just that sometime in 2012 many national polls showed a new majority supported the freedom to marry. Our movement had also gotten smarter about messaging in our campaigns. We dropped our focus on legal rights. Instead, beautiful TV commercials conveyed positive messages by “straight messengers” like:
- treat people as they would want to be treated
- same-sex couples marry for the same reasons everyone else does (i.e., love, family, protection and commitment)
- parents (not schools) teach their kids values
- it is not for us to judge
- freedom means freedom to everyone
3) In May 2013, I was lucky enough to get a job doing what I wanted to do – be a professional advocate for marriage equality. I moved to New York City to start working for Marriage Equality USA on May 8th – which was symbolically exactly a year after Amendment One had passed. Just after both Delaware and Rhode Island passed marriage equality, I began running phone banks in Times Square for Minnesota and Illinois, followed by New Jersey, Indiana and New Mexico for the National Equality Action Team (NEAT). MEUSA leads this coalition of nearly 50 organizations. For each state campaign, we had phone bankers calling voters in those states virtually from across the country -- including many volunteers I recruited from North Carolina. In fact, we set up a phone bank specifically for Illinois and then Indiana and New Mexico at the Unitarian Universalist Fellowship of Raleigh. Our proudest moments were in assisting Illinois with over 700 voicemail messages left for 12 swing legislators – six of whom went our way – and marriage equality passed by just one vote. Likewise, in Indiana – which is arguably more conservative than North Carolina - we contributed to a close vote where legislators changed their extreme Amendment One-like bill, preventing it from going to the ballot in 2014 – and likely ever. At this point, I do not think it’s politically possible for any other state to even propose an anti-marriage equality amendment; their time has passed. North Carolina has the distinction of being the last state to pass one of these, and depending on what happens with SCOTUS and the Bostic case, it may be the shortest-lived amendment.
4) The big game-changer was the Windsor decision on June 26, 2013. One cannot overstate its impact. It has bolstered the case for marriage equality in federal courts, resulting in victory after victory with no losses. There are now 76 lawsuits among all the states that do not have marriage equality, including three that challenge Amendment One directly.
I had the opportunity - though our former long-time Board Chair Cathy Marino-Thomas – to ask Edie Windsor what gave her the courage to persist despite people saying her case was premature and could backfire with SCOTUS. Here is her reply in this short video:
5) Immediately after Windsor, federal discrimination against legally married, same-sex couples started to end – agency by agency – when they based their definition of who was married on the state in which a couple was married rather than their state of residence. It gave the out-of-state marriages of my friends in North Carolina legal meaning, with several hundred federal rights being extended to them for the first time. When I flew back to NC to commemorate the two- year anniversary of Amendment One on 8 May 2014, I noticed how many couples I knew were having spring weddings in nearby states. And as part of the courageous and beautiful WE DO campaign to raise awareness about their desire to marry and injustice of laws that deny this freedom, many North Carolina couples including Clifton and Dennis (and couples throughout the South) applied for marriage licenses in their home counties with the Campaign for Southern Equality. I was able to be there that day in my home town of Raleigh, NC to witness this.
6) And finally, public support in North Carolina is on the rise, at it is across the country. North Carolina’s public support for marriage equality rose from 34% in 2012 to 40% as of May 2014 according to Public Policy Polling. This figure lags behind the national average (now 54% according to a 2014 Pew Research Center poll) – but the trend is clear.
These are some of the events that have chipped away the legal credibility and morality of what was only two years ago an amendment which passed overwhelmingly. I am grateful that the 4th Circuit Bostic decision is the latest and most direct hit to Amendment One. The rising tide of justice across the United States and in our neighboring state of Virginia all help lift the gloomy cloud of Amendment One to clear the way to truer, bluer skies in my home state. I know that in a few days, when I leave New York -- which just celebrated its third anniversary of marriage equality last week -- and drive through Virginia back to North Carolina, I will come home with an even greater sense of hope that we LGBT people will be treated as the constitutionally and morally equal citizens that we know we are.
By Tracy Hollister, Program Manager, Marriage Equality USA. Tracy lived in North Carolina for nearly 20 years and worked as a volunteer marriage equality advocate for several years before moving to New York City to help advance marriage equality across the country. Now, the same week as the landmark Bostic decision, Tracy is moving back home to North Carolina to continue her work for MEUSA. To hear how and why she became a full-time advocate, listen to this half hour podcast.
As of July 17, nearly 44 percent of the U.S. population lives in 19 states and the District of Columbia where same-sex couples legally may marry. One year ago—even after the 2012 election in which three states affirmed marriage equality at the ballot and after Minnesota’s legislature followed suit a few months later—just 18 percent, or less than one-fifth, of the U.S. population lived in marriage equality states. Even six months ago that number had risen to just 33 percent, or one-third of the population. We’ve made extremely rapid progress, and are within striking distance of a majority of the population having access to marriage equality where they live.
In a sense, we’ve already sped well past the halfway mark.
Thanks to the legal principles espoused by the U.S. Supreme Court in Windsor, every decision in every marriage case in state, district, and appellate courts since June 2013 has concluded that state marriage bans are unconstitutional. This includes a decision by the Tenth Circuit Court of Appeals in Kitchen v. Herbert, the case challenging Utah’s marriage ban; should this decision ultimately be upheld, it will mean that bans in the other Tenth Circuit states also will fall.
Unfortunately, in 13 of these states and within the Tenth Circuit, decisions striking down marriage bans have been stayed pending appeal. An additional 30 percent of the U.S. population lives in these 13 states. This means a total of 74 percent of the U.S. population, nearly three-quarters, lives in a state or territory where the freedom to marry has been affirmed in principle, if not yet in effect.
With lawsuits under way in every other state where marriage bans still exist, this percentage changes on practically a weekly basis. Just as I was getting ready to send this column to the publisher, in fact, a Florida judge ruled that state’s marriage ban unconstitutional. Assuming this ruling also is stayed pending appeal, this would bring the percentage of the population living in such states to 36 percent, for a total of 80 percent of the population residing in states or territories where marriage equality is active or has been affirmed but temporarily put on hold.
Moreover, now that we have a Circuit Court decision from the Tenth Circuit, with a second from that court and one from the Fourth Circuit expected any day now as well, there are cases knocking on the door of the U.S. Supreme Court. Many of us expect the Supreme Court to agree to hear one of these cases as soon as this fall or winter, which could result in a ruling by next June taking us from 44 percent marriage equality to 100 percent in one fell swoop. In the meantime, you can follow the progress of state marriage equality rulings and population percentages on the Marriage Equality USA national map.
By MEUSA Social Media Manager Thom Watson
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 State of Utah’s stunning admissions in last week’s oral argument before the Tenth Circuit Federal Court of Appeals and in briefs filed with the court make one thing abundantly clear: the state should drop its appeal of the federal district court’s ruling last December in favor of marriage equality. We’ll never forget the joy we felt seeing over a thousand LGBT couples dash to their local clerk’s offices in Salt Lake City and other Utah environs during the winter 2013 holiday season before the district court’s order was stayed. It’s time for those weddings to begin again.
The State of Utah put forth many baseless, unpersuasive, and convoluted arguments before the court. The one that perhaps struck us most was the State’s concession that children of same-sex parents would likely be better off if their parents were able to be married. But instead of caring for those children by embracing the right of LGBT couples to marry, the State callously said that their “principal concern” in the case is “the children of heterosexual parents,” leaving the children of LGBT parents in the dust. When questioned at oral argument, Utah’s counsel matter-of-factly wrote off the needs of children of same-sex couples by saying that laws involve “tradeoffs.” Not only does their argument suggest a remarkable lack of human empathy, but it is also unsound as a matter of law.
One thing that rings loud and clear from last summer’s United States Supreme Court decision in United States v. Windsor striking down section 3 of DOMA is that Justice Kennedy and the majority of the Supreme Court are very concerned about the effects that discriminatory marriage laws have on LGBT families, especially the children on LGBT parents. The Court held 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.” Further, the Court stated that “DOMA instructs … all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others.”
The saddest aspect of Utah’s legal argument is that it fails to recognize that marriage equality is not a zero-sum game. Ending the exclusion of LGBT couples from marriage robs no one else of their freedom to marry. Far from hurting anyone else, protecting and caring for kids of LGBT parents benefits everyone, not just LGBT families. Recognizing our common humanity lies at the heart of the marriage equality movement. In an attempt to appear compassionate, Utah wrote in its brief that it “respects and values [LGBT] citizens and their children as … equal before the law ….” If that’s the case, we urge the State of Utah to drop its appeal, end the marriage ban, and pass legislation to make full LGBT equality a reality in Utah.
By MEUSA National Media Director Stuart Gaffney and MEUSA Director of Legal & Policy John Lewis
This article originally appeared in SF Bay Times, April 17, 2014: http://sfbaytimes.com/utah-should-drop-its-appeal-and-let-the-salt-lake-city-weddings-begin-again/