Fantastic News on the Coming Demise of DOMA

Many of my colleagues are referring to the recent announcement by President Obama and Attorney General Holder as the “tipping point” in the lifting of the federal ban on recognition of marriages of lesbian or gay male couples. The announcement was direct and powerful: President Obama has determined that the key element of DOMA (Defense of Marriage Act) is unconstitutional, and therefore he has ordered the Justice Department to cease defending it in court.

Over the last few years Obama has tried to stay “on the fence,” saying he opposed DOMA politically but would continue to defend it legally, until Congress chose to repeal it. Now, he is jumping off the fence, on to the right side of the debate. He is also going out on a fairly dramatic political limb, by instructing the Justice Department to act according to these principles.

There are two dimensions to this policy shift. On the technical legal side, the government is withdrawing its appeal of several trial court decisions that ruled that DOMA was unconstitutional. Individual members of Congress probably will hire private lawyers to defend the appeals, but with the President weighing in on the side of the opponents and the government no longer officially defending the law, there is a very high probability that the appeals will be defeated. It may take a year or two for this drama to play out, but there is a far greater likelihood now that DOMA will be judicially overturned.

But perhaps of great importance is the change in the political and social policy atmosphere. For the President to take this stand is to say to the political mainstream, the times they are a-changing. And we are already seeing how the tide of change is flowing. Hawaii’s governor has signed their domestic partnership law, which will extend marriage benefits to same-sex couples as of January of next year. The Maryland Senate passed a marriage equality bill, and there is a decent chance the other house of government will pass it — and the governor has said he would sign it. And, just this week, the influential Senator Dianne Feinstein from California has introduced legislation to repeal DOMA, parallel to similar legislation launched in the House of Representatives. As with the repeal of “don’t ask don’t tell,” a strong sense that the courts are going to impose this change may turn the tide in Congress in advance of such a ruling.

It will still be several years before the legal ramifications are sorted out, especially as the repeal of federal non-recognition will still leave couples in the dozens of non-recognition states in legal limbo. But the light at the end of this long tunnel has grown significantly brighter this week.

Good News From Hawaii

Both houses of the Hawaii state legislature have passed a strong marriage-equivalent domestic partnership bill, and the newly elected governor has stated that he will sign the bill within the next ten days. Effective January 1, 2012, Hawaii couples will be able to register as domestic partners and enjoy all of the rights (and obligations) of marriage under Hawaii law. They will not be able to get legally married and none of the federal rights of marriage will be extended to them, but still, this is a great victory.

It’s especially significant in light of the 15 years of marriage debates in Hawaii. Hawaii was the first state to bring a challenge to the ban on same-sex marriage; interestingly, it was brought by a couple represented by a straight lawyer from the local ACLU, because the established gay legal community had mixed feelings about fighting for marriage. The initial court victories were very significant, but as had been feared, they triggered a terrible backlash. A voter approved initiative prevented the courts from allowing lesbian and gay couples to marry, and even worse, it spawned a fear of gay marriage that led to the passage of the federal Defense of Marriage Act.

The legacy of that fight has lingered for a long time, and so this latest success is a sweet victory for Hawaiians. It is important that we recognize the practical value of extending marriage benefits to same-sex couples in Hawaii, and also acknowledge the meaningful political victory that this law represents.

We now have five states and the District of Columbia that allow full legal marriage, and seven states that have marriage-equivalent registration. And, there are three states that generally recognize the partnerships and marriages entered into in these other states. That makes 16 states where there is some form of formal recognition of same-sex marital rights.

And that is good news!

California Supreme Court to Rule on Prop 8 Question

Not surprisingly, the California Supreme Court has agreed to answer the question posed by the Ninth Circuit Court of Appeals judges on the Proposition 8 standing issue. The question revolves around the arcane doctrine of standing, which determines who has the right to challenge a proposition on appeal. The trial court allowed the proponents of Proposition 8 to defend its validity at trial, because the Governor of California elected not to defend it. However, the rules for an appeal are slightly different, and once the proponents lost at trial and the State of California elected not to appeal that decision, it was not clear if the proponents could appeal that loss.

Because this is primarily a question of state law, the federal appeals court had two options. They could have tried to answer the question on their own, or they could refer it to the State Supreme Court for an answer, which is what they did. Interestingly, the State court could have refused to answer, punting the question back to the federal court. But as expected, the State court agreed to answer the standing question.

The court has asked the parties to submit supplemental briefs on the issue by May, and they will hold oral argument in September. That means they will likely issue a decision some time late in the year, probably in December.

If the State court rules that the proponents do not have standing, the federal appeal will be dismissed and the trial court decision will stand. This probably means that the ban on same-sex marriage will be lifted – though there is some uncertainty as to the procedures in this sort of situation. On the other hand, if the State court rules that the proponents do have standing to file an appeal, then the federal appeals court will have to rule on the substance of the appeal, i.e. whether Proposition 8 is constitutionally valid. This could take as long as another year, especially because the three-judge panel’s decision could be reviewed by a larger number of appellate judges.

Many folks have wondered what would happen if this case ever got to the United States Supreme Court. Given how long this process is taking and how many more steps there are in this process, chances are Proposition 8 will be back on the ballot in November 2012, before any final decision is reached. If the proposition is reversed by the voters in 2012 then we will never have to worry about how the Supreme Court would decide.

“The Change Has Already Happened; it’s only the law that lags”

In a wonderful multi-page spread in this week’s Newsweek magazine (http://www.newsweek.com/2011/01/30/meet-my-real-modern-family.html) writer Andrew Solomon describes his complex and loving family. He and his husband are co-parents, plus they are each the biological father of a total of three children born to various of their friend’s. It takes a complicated chart to explain the relationships (and the article includes just such a chart) but it’s a wonderful photos of the happy extended family that tells the real story.

It’s immediately obvious that traditional parentage law was not written to address this sort of family. There are legal relationships between several of the parties, but the biological ties don’t follow the legal connections. And most importantly, the emotional connections transcend the legal rules. Andrew and his husband would not be recognized in most of the states of this country, and in some jurisdictions their connections to their own child would be disregarded. Under the laws of most states the two dads are mere “sperm donors,” but in fact they are quite involved in the lives of all their children.

Let’s all hope they never have to deal with the legal system in any conflicts between any of them. They will face enough challenges making sure that their relationships are honored by state and federal government agencies! Andrew’s comments – quoted at the top of this post – says it all. Ideally it will not take long before the law indeed catches up to this wonderful new form of family.