‘We’re Fighting Back’

Maryland AG Brown offers reassurances to LGBTQIA+ Community.

Maryland Attorney General Anthony Brown

At a fundraising event for Democrat Delegate Kris Fair (District 3, Frederick), Maryland Attorney General Anthony Brown forcefully reassured concerned LGBTQIA+ community members and allies that Maryland is actively pushing back on threats to hard-earned rights from the federal government. The event took place on October 28 at the historic Bentztown Bar and Restaurant in downtown Frederick, Md. Nearly 100 attended including LGBTQIA+ community members, business leaders, members of the Maryland General Assembly as well as city and county officials.

Following opening remarks by State Senator Karen Lewis Young (D-3) and Fair, Brown, assured those in attendance that Maryland has been using all the tools at its disposal to combat executive orders from President Trump and agency actions that attempt to limit the rights of LGBTQIA+ persons.

These actions have been aimed at eliminating programs that address discrimination in federal and federally funded programs, denying transgender youth necessary health care, making schools unsafe for transgender and gender non-conforming students, denying protections for LGBTQIA+ people in the workplace, and other measures.

Brown, a long-time supporter of LGBTQIA+ rights and who has a transgender son, pointed out that Maryland law continues to provide protections from discrimination for persons based on sexual orientation and gender identity, and federal policy can only override state law in limited circumstances. He noted that the Maryland Medical Assistance Program—Maryland’s version of Medicaid—requires gender-affirming care be provided in a non-discriminatory manner.

Brown said the state is fighting back and taking bold steps against threats to the community.  “We are using amicus briefs in pending cases, and we are filing lawsuits—many lawsuits,” said Brown, in an effort to combat the federal actions.

Del. Kris Fair (l.) and Anthony Brown

Acting as a moderator sitting across from Brown on a stage in an informal conversational format, Kris Fair, the event’s host, served up several questions, and audience members added some of their own. Fair, who is seeking re-election to the House of Delegates, is chair of the Maryland Legislative LGBTQ+ Caucus and is one of 10 openly LGBTQ members of the General Assembly.

One question that had particular interest to the audience involved the status of marriage equality as the U.S. Supreme Court on November 7 is poised to decide whether or not to take up the matter of overturning the landmark Obergefell v. Hodges decision of 2015. The questioner wanted to know what would happen if the Court takes the case and rules to overturn it as was done in Roe v. Wade.

Brown emphasized that same-sex marriage is legal in Maryland and will continue to be so. He was uncertain as to whether or not other states will recognize the legal marriages in Maryland and was unsure how federal benefits (such as, joint tax returns, etc.) would be affected.

“I’m hopeful that the Supreme court will leave it alone and not overturn it,” Brown emphasized. He believes that since marriage equality is viewed very favorably by the public, the Court is mindful of that.

“These are deeply unsettling times for queer people across the country and even here in Maryland.” Kris Fair, whom Senator Young referred to as 'a rising star,' told me following the event. “Understanding the threats our community faces and the misinformation being spread is essential. Attorney General Brown and his team have been steadfast since January 20^th, ensuring Marylanders are informed, supported, and protected.”

He added, “It was an honor to stand alongside him as we equipped our community with the most powerful tool we have: a clear plan to organize, take action, and fight back.”

Kris Fair and Anthony Brown

 

Trump's Plan to Steal the Election Revealed

There was little doubt among Democrats that the rush to get Amy Coney Barrett confirmed and seated on the Supreme Court before the election had less to do with overturning the Affordable Care Act than to ensure the re-election of President Donald Trump. "Moscow Mitch" McConnell, the obedient leader of the Senate, carved out the path for this plan to succeed so that the court would have a whopping 6-3 majority. 

Trump's plan, if he could not win the election outright, would bring challenges to the validity of mail-in ballots in key battleground states and have these cases put before the Supreme Court--HIS court, just like HIS generals, HIS attorney general, etc.

Trump and his cabal of thieves have blatantly tried to curtail and suppress the votes. In addition, he ordered the postal system to be sabotaged to prevent mail-in ballots from arriving in time. In Harris County, TX, Republicans have asked an extremely partisan judge to throw out over 100,000--mostly Democratic--votes because of curbside voting though the Secretary of State approved that method.

Other voting barriers have been put in place around the country, and we see armed vigilantes intimidating Biden voters at precincts with little action to stop this tactic.  

For good measure, a belligerent caravan of Trump supporters in pick-up trucks complete with oversized Trump flags harassed and intimidated a Biden-Harris campaign bus that was peacefully traveling along a highway in Texas. Expressing disdain for such boorishness, Trump tweeted, "I LOVE TEXAS."

The major factor that is igniting this attack on our democracy center on Trump's desperation not to lose. If he goes down in defeat, not only his pathological, narcissistic ego would take a blow the likes of which he's never seen, but he stands to face criminal exposure  from the New York State Attorney General and the federal Southern District of New York on financial-related crimes including tax fraud and wire fraud among others.

Therefore, Trump has no choice but to remain in power. He and his family are raking in millions of dollars while in office, so the bunk that is spread among is supporters that he has donated his salary is pure garbage.

What we are witnessing is a direct assault on our democracy. Undisciplined as Trump is, he allowed himself to admit it.

See the clip below.

Here's the clip from Trump's Reading, PA rally: “If we win on Tuesday or — thank you very much, Supreme Court — shortly thereafter…”pic.twitter.com/erqh5uNMsk

— The Recount (@therecount) October 31, 2020

Daniel Dale, a fact-checker from CNN said the video was taken out of context. " Trump had just been (wrongly) blaming the Court decisions for us not having a winner on Election Night - in this line, he was sarcastically saying, like, thank you very much Supreme Court, we’ll now have to wait. Wasn’t saying Court would make him president," Dale said.

Nonetheless, I maintain that the plan is to throw the election to the Supreme Court so that the will of the people be overturned. 

Quote Tweet

Are We Finally Achieving 'Gay Power'?

In the late ‘60’s, around Stonewall, there was a mantra during what was called the homophile or gay rights movement that was inspired by the black militants during the civil rights movement calling for “Black Power” and “Black is Beautiful.”  Homosexuals (the term used then) adopted it and began naming their efforts “Gay Power” or “Gay is Good.”

“Gay Power” was a common chant during and after Stonewall and became a rallying cry for the fledgling movement.  In reality, gays weren’t seeking power per se but an end to injustices while desiring tolerance and in many instances, survival.  Rather than attempting to exert power over straight folks, gays and lesbians were more concerned with the post-war purging of gay soldiers from the military, the threats of exposure that put people’s jobs and homes at risk, police intimidation, violence and many other maladies.

As the decades passed by with victories and defeats marking the timeline in a one step forward, one step back cadence, there was no true gay power.  This is despite right wing blogs who speak of the “gay mafia” as if there is a band of gays in rainbow-colored trench coats and submachine guns going around intimidating straights—those pitiable oppressed heterosexuals. 

They say the radical homosexual agenda is out to destroy Christianity—the largest religion in the world—ignoring the fact that an overwhelming proportion of LGBT folks are Christian.  As a recent example, Erick Ericson, the editor-in-chief of RedState.com, a right wing blog, characterizes the gay rights movement as “totalitarian” when it comes to religion.

With momentum building for a nationwide ruling by the Supreme Court in June that will likely strike down state bans to same-sex marriage and the myriad Federal court cases that have ruled against those bans already, as well as burgeoning public support for marriage equality across every demographic,  one can see a turn in the so-called culture war.

Anticipating this “gaymageddon” on the horizon, social conservatives (bigots) have been putting in place laws to protect the religious liberties of individuals who don’t like the idea of same-sex couples getting married because in their belief systems it goes against God.

However, “gay power” began to creep back into the lexicon for the first time in over four decades. The recent enactment of religious protection laws from Indiana and Arkansas thinly disguised as assurances for businesses that they don’t have to deal with LGBT individuals based on “religious beliefs” indeed brought on “gaymageddon” and not just with LGBT folks—mafia or not.

The uproar over these laws was so deafening that both Republican-led states had to mend the law so as not to allow discrimination based on sexual orientation or gender identity.  Where the “power” entered the fray was not just us LGBT folks who were savvy of the original intent.  It came from an unprecedented number of businesses, organizations, corporations and celebrities.  As a result, the Human Rights Campaign and Lambda Legal, according to Time, laid the groundwork months ago in Indiana to forge a redoubtable coalition to fight the law by the time it passed the legislature.

Clearly we can understand that Tim Cook, the openly gay CEO of tech giant Apple, would protest the measure.  But other groups, such as Indiana-based Angie’s List, and the NCAA where the marquee college basketball tournament was about to take place, joined the chorus.  Even the four coaches of the Final Four men’s teams added support and two of those teams were from the South!

Others included Nike, Salesforce.com, Microsoft, Wells Fargo, American Airlines, Levi Strauss and Company, Gap, PayPal, Twitter and more.  In all, over 100 tech companies called for nationwide non-discrimination protections based on sexual orientation or gender identity. 

The governors of New York and Connecticut threatened to ban travel by state employees to Indiana.  However, Republican newbie Governor Hogan of Maryland dismissed an effort by state Senator Rich Madaleno to follow suit as a “political stunt.”

But get this: middle America behemoth Wal-Mart protested the law and NASCAR did as well.  If one can get NASCAR—not exactly a liberal institution (certainly not their fans)—to jump in for gay rights, well what would you call it if not “gay power”?

Greg Ballard, the Republican mayor of Indianapolis as well as former Indy mayors, slammed the law.  The Indianapolis Star featured a rare front-page editorial. “FIX THIS NOW,” the headline screamed in World War III font.  “Indiana is in a state of crisis,” the editors warned the governor. “It is worse than you seem to understand.”

While these businesses and corporations understand that discrimination will hurt the bottom line, the American public is also on board.  According to a Reuters/Ipsos poll released on April 9, there was “solid opposition to allowing businesses to refuse services or refuse to hire people or groups based on religious beliefs. Fifty-four percent said it was wrong for businesses to refuse services, while 28 percent said they should have that right. And 55 percent said businesses should not have the right to refuse to hire certain people or groups based on the employer’s religious beliefs, while 27 percent said businesses should have the right.”

With expected backlash from the Supreme Court ruling this summer and other last-ditch efforts to stem LGBT equality momentum, there is much more work to do.  Most of the states do not have non-discrimination laws and a Federal law continues to languish in Congress.  You can marry one afternoon and be fired the next morning.

We should use this new gay power surge to fix this and use it at the ballot box.  We may not have achieved “gay power” in the literal sense, but you know you’re on the right track when Newt Gingrich calls us a “lynch mob.”

‘Gayzing’ Into My Crystal Ball: What’s in Store for 2015?

One thing about crystal balls, they’re not always crystal clear.  However, I’ve relied on them for some time now to make my annual predictions.  Twelve months ago, when I tried to forecast how 2014 would likely work out for the LGBT world, I was accurate in some cases and blew it in others.  That’s the risk you take when you depend on an inanimate object.

Graphic: Joe Velazquez

Looking back, I wrote correctly that 2014 would be a good year for marriage equality advances throughout the country, which came true in stunning fashion.  I also said that an interesting development would take place regarding at least one local LGBT organization.  Bull’s eye on that one, too, as the GLCCB found a new home.

Happily, I was off the mark regarding non-discrimination protections in Maryland based on gender identity.  I reasoned that with 2014 being an election year, the folks in Annapolis wouldn’t touch the hot-button issue.  Well, they did, and the Fairness for All Marylanders Act is now the law without the anguish from a referendum battle.

With some trepidation from a history of mixed bags in predicting, I will keep the tradition going with some forecasts for 2015. 

I’ll start not with a prediction but a statement.  In Maryland, this will be the first year in a decade where neither the major issues of marriage equality nor transgender protections will be a focus by advocates in Annapolis.  There remains other work to be done, for sure, but unfortunately these initiatives are not headline-grabbers like marriage equality.

Equality Maryland, who has helped fight those eventual winning battles, laid out their agenda for the 2015 General Assembly consisting of three bills they would like to see passed: 1)  a bill that would allow transgender people to change their Maryland birth certificate when it’s right for them; 2) a bill that would ensure  equal insurance coverage for same-sex married couples in the area of in-vitro fertilization; and 3) a bill that would ensure  that when parents separate, the best interests of the children will be the criteria to determine a non-legal (de facto) parent’s rights and responsibilities.

Though not glamorous, these are worthy measures and we should support them. In addition,  I would like to see  Equality Maryland, FreeState Legal Project and other members of the coalition comprising the Youth Equality Alliance (YEA) attempt to advance at least some of the recommendations contained in the YEA report released last August. 

This report focused in stark terms on the way LGBT youth are subject to poor treatment in schools, and in the foster care and juvenile justice systems—the “school to jail pipeline."  I predict, however, not much will happen in that regard.

Nationally, marriage equality will again be front and center.  While they’ve punted in the past allowing various federal Circuit Courts of Appeals’ decisions prohibiting same-sex marriage bans to stand, the U.S. Supreme Court justices will have to hold their collective noses and issue a national ruling on the legality of same-sex marriage once and for all.  There is that much momentum going; 2015 should be the year.

I predict the tragic suicide of young transgender Leelah Alcorn will be the big fight in 2015 as activists will go all-out in an attempt to ban conversion therapy and to fight intolerance.  Sadly, we tend to rely on suicides and murders as catalysts to get people energized.

The decades-long attempts to end workplace discrimination on the basis of sexual orientation and gender identity (ENDA—Employment Nondiscrimination Act) during this Congress will continue to be met with frustration.  Though the Senate a year ago passed a bill by a 64-32 majority, the House leadership refused to take up the measure despite the likelihood it would have passed (since there were more Democrats in the 113^th Congress before the election) and President Obama would have signed it into law. 

As we approach the 114^th Congress—the one with the largest GOP majority in 83 years—there is no incentive on the part of Republicans to move on the bill and cause further fissures between social conservatives and establishment, more pragmatic lawmakers.  The newly elected and empowered representatives will not support ending this discrimination.  Thus, ENDA will continue to languish at least through 2015. 

As interest in the presidential race for 2016 heats up, there will be anti-marriage equality rhetoric from potential contenders—especially from socially bigoted, er, conservative hopefuls Mike Huckabee, Ted Cruz and Rick Santorum, which could push other candidates to the right.  It would be a certainty should the Supreme Court rule favorably on marriage equality.

In sports, I believe another pro athlete will come out.  It would be great if it originated by a player from our national pastime, but I would be celebrating no matter who it is. Baseball umpire Dale Scott set a promising tone with more support than not.  Also, look for Michael Sam to land a spot on an NFL roster.

An even more confident prediction is that should a gay athlete come out, anti-gay folks will declare they “don’t care” or they “don’t want to hear about it.”  That is the new meme for disliking the fact a male pro athlete announces he’s gay. 

Back home again, Chase Brexton Health Care, after establishing an LGBT Health Resource Center, will likely take on an expanded role in providing other LGBT services that had not been done before by Chase Brexton.

And one thing I will predict with sure-fire certainty: now that Pride has moved—at least temporarily to July where drag queens and leather folks could melt and form puddles in the summer’s heat—people will find a way to complain about the dates and location.  It’s a Baltimore tradition like crabs, Natty Boh, and snow panic.

Have a safe, healthy and happy 2015 and let’s toast that the good predictions come true and the bad ones don’t.

Supreme Court's Punt Gives Us Good Field Position

When the U.S. Supreme Court unexpectedly decided on October 6 not to take up several appeals of lower court rulings that struck down the existing bans on same-sex marriages, many believed the justices “punted.”  That is, less than four of the nine justices chose not to review these cases and will likely not be part of this term’s docket. 

Both sides had hoped for a sweeping decision by the Court to settle once and for all whether the right for same-sex couples to marry is protected by the U.S. Constitution.  Rather, by choosing to sidestep these cases they allowed the lower court rulings to stand.

To use football parlance, because the Supreme Court punted the hot button issue for a likely date sometime in the future, marriage equality advocates did not score a touchdown they were hoping for but instead found themselves in good field position.

By refusing to review cases from the Fourth Circuit, which covers Maryland, Virginia, West Virginia, North Carolina and South Carolina, same–sex marriages are no longer prevented from occurring. The Court also did not take on cases arising from the Seventh Circuit, which includes Illinois, Indiana and Wisconsin, and in the Tenth Circuit, which covers Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming. 

And in the Ninth Circuit, marriage bans were struck down in Idaho and Nevada by a panel of judges the next day.  This ruling also applies to Arizona, Montana and Alaska.  Nuptials may be delayed in some of these states because of specific legal procedures, but eventually they will be allowed.  In all, the number of states permitting same-sex marriage would jump from 19 to 30 plus D.C. representing states with 60 percent of the U.S. population.  

Though the Supreme Court offered no explanation for their action, Justice Ruth Bader Ginsberg, who once officiated a same-sex wedding, indicated last month that for the justices there is “no need for us to rush” unless a split emerges in the various federal appeals courts and one of them decides to uphold a state ban on same-sex marriage.   

Had there been a split, the justices may have taken a look at it. That can happen in that the 6^th Circuit in Cincinnati is thought as one of the few that could uphold the bans.  Therefore, the Court put itself in a place where they would likely have to tackle the issue once and for all.

Evan Wolfson, the founder and president of the advocacy organization Freedom to Marry, said while the October 6 action provided “a bright green light” to same-sex marriage in more states, marriage equality advocates do want the Supreme Court to intervene and provide a definitive ruling covering all 50 states. “The Supreme Court should bring the country to a nationwide resolution,” Wolfson said. 

Those opposing marriage equality do as well and will continue to defend the bans in court (though stalling would appear advantageous to them if a Court vacancy is filled with a conservative).  They strongly believe that the people should decide the definition of marriage, not judges.

Opponents should note, however, that the people are not as against marriage equality as they think.  Ever since 2004 when the first same-sex weddings took place in Massachusetts—an occurrence that became a winning strategy for Republicans during the presidential campaign—support for marriage equality swung dramatically.  In fact, poll after poll indicate that a majority of Americans now support marriage equality.

During the 10 years since gay marriage was used as a political wedge issue, clear evidence of a transformation in attitudes began in 2012 with the startling first-time victories at the ballot box in three states that included Maryland.  Since then, legal challenges to a swath of state constitutions were launched claiming that the denial of same-sex couples to marry was in violation of the U.S. Constitution under the Equal Protection Clause.

As these cases meandered through the lower courts whereby one ruling after another found for the plaintiffs, federal appeal courts have upheld those rulings in a stunning wave of victories, adding great momentum to the movement.  The rationale  for these decisions had been bolstered in 2013 by the Supreme Court’s striking down key provisions in the Defense of Marriage Act. 

What was once a political weapon for Republicans nationwide, the changing attitudes towards same-sex marriage has pushed most Republicans to a hands-off approach.  This is consistent with their alleged attempts to demonstrate more acceptance towards gays and other minorities to improve their general election chances.   Indeed, a vast majority of Republicans remained silent following the recent Supreme Court announcement.

Senator Ted Cruz from Texas who many regard as an extremist, was one of the exceptions to have lashed out against the Court. “The Supreme Court’s decision to let rulings by lower court judges stand that redefine marriage is both tragic and indefensible,” he said.   He pledged to again introduce a constitutional amendment that defines marriage as a union of one man and one woman.  Good luck.

Reince Priebus, the chair of the Republican National Committee, in an effort to keep his job, threw a bone to his base by condemning the Supreme Court’s decision.  He said that if gays were allowed to marry, “America will ultimately collapse.”

As we have witnessed in the states where marriage equality is in place including Maryland, the sky has not fallen; society has not been destroyed; and the institution of marriage has not deteriorated.  Instead, children of same-sex couples are now protected, couples receive the same benefits, rights and responsibilities as their heterosexual counterparts; and the local economies have received a much needed boon.

As same-sex marriages continue to take place across the land, it will become increasing difficult to invalidate all those nuptials should that day eventually arrive when the ball lands in the Supreme Court justices’ hands.  Too much chaos would result.  Accordingly, we’re in a good position now to ultimately take it to the end zone.

One Giant Leap for Equality

The incredibly historic rulings by the U.S. Supreme Court (SCOTUS) on marriage equality remind me of another improbable feat. As Neil Armstrong said upon setting foot on the lunar surface, “One small step for [a] man; one giant leap for mankind.”  Before the 1960’s nobody thought we could land a man on the moon but we did on July 20, 1969.  We are now approaching the 44^th anniversary of that astounding occasion.

The SCOTUS decisions similarly could not have been predicted just a few years ago given what the Court has wrought over the years including Bush v. Gore, Citizens United, and just the day before the marriage rulings were handed down, the lamentable decision on the Voting Rights Act.

I always thought that the 1996 Defense of Marriage Act or DOMA would collapse under litigation based on the equal protection clause of the U.S. Constitution.  And some lower courts saw it the same way.  Yet, SCOTUS with its conservative tilt and conservative Chief Justice, seemed like the time was not quite right to make bold progressive rulings in arguably the most significant civil rights issue in decades.

Bold they weren’t in the case of Proposition 8 in California. Rather than ruling that same-sex couples everywhere in the U.S. have the fundamental right to marry, the Court punted.  The case went back to the lower court because those who appealed that decision to strike down Prop 8 lacked the legal standing.   This meant that same-sex couples in California regained their right to marry. 

As for Section 3 of DOMA, SCOTUS decided by a vote of 5-4 that the federal government must recognize the lawful nuptials of same-sex couples, thus conferring over 1,100 rights, benefits and responsibilities.  That decision applies only to the 13 states (including California) and D.C. where such marriages are valid.

President Obama, arguing that DOMA was unconstitutional, refused to defend it in court and later filed a brief that attacked DOMA on the merits.  The administration is currently taking steps to broaden the benefits of the SCOTUS ruling by moving swiftly to revise regulations so that same-sex couples in states where marriage equality does not exist, can tie the knot in any of the other 14 jurisdictions and receive federal benefits and protections.  

Moreover, the entire DOMA could eventually be scuttled as Senator Diane Feinstein (D-CA) immediately re-introduced the Respect for Marriage Act in the upper chamber.  It would repeal DOMA and require the U.S. federal government to recognize the validity of same-sex marriages regardless of what state the couple lives in. The number of co-sponsors has increased sharply from 17 just two years ago to 40 presently.
An identical bill was introduced into the House by Rep. Jerrold Nadler, (D-NY) with the support of 160 co-sponsors, including at least two Republicans.  Alas, this measure will not advance soon as the tea party caucus continues to dominate the GOP-controlled House, and they are not ready to drop DOMA.

The Republicans can’t help themselves.  All that post-election talk about “expanding their tent” evaporated into thin air and not just in terms of their attitudes towards women and immigration reform.  They continue to maintain an anti-gay posture and seem to be stuck in that mire while the rest of the country is moving forward.  House Speaker Boehner and others denounced the SCOTUS decisions proving that the GOP is still enmeshed in and controlled by base politics. 

While the SCOTUS rulings do not have wide applications, what did come down justified the celebrations.  For one thing, the Court could have gone the other route and upheld Prop 8 and DOMA.  That would have been a significant setback for marriage equality advocates, and positive change would be perhaps a generation away.  But this Court, albeit narrowly, handed down decisions that should pave the way for favorable outcomes in the near future.

Emboldened by the SCOTUS rulings especially on DOMA and a surge in public support for marriage equality in recent years, advocates in several states are seeking to overturn existing bans to same-sex marriage via their legislatures or at the ballot box.  Furthermore, it is almost guaranteed that there will be a wave in lawsuits in the non-equality states based on violation of the equal protection clause and the precedent established in the SCOTUS majority opinion. 

Going into the last week of the Pride month of June, many folks were optimistic even hopeful about the Court’s rulings but cautious considering the make-up of the Court.  Justice Anthony Kennedy, who had written the majority opinion in Lawrence v. Texas exactly ten years before that ruling de-criminalized sodomy, was considered the “swing” vote.   But many viewed him as unpredictable based on his stated concern during the oral arguments phase last March about venturing into “unchartered waters.”

Nevertheless, as was the case with the Apollo mission, SCOTUS defied the odds and doubts and came through when few imagined it possible say, four years ago.  And because of the now favorable possibilities, this was indeed one giant leap for equality and the beginning of a new frontier.

Equality Wins!

Supreme Court strikes down DOMA, reverses Prop 8

On the 10^th anniversary of the U.S. Supreme Court’s ruling that struck down sodomy laws in Lawrence v Texas, June 26, 2013 turned out to be another seminal landmark in the history of LGBT rights.  By a 5-4 decision the Court struck down Section 3 of DOMA—the Defense of Marriage Act—on the grounds that it violated the equal protection clause in the U.S. Constitution.  

In the case, Windsor v the United States, DOMA was viewed by the majority of the Court, whose opinion was written by Justice Anthony Kennedy, as unconstitutional “as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.”  Justice Scalia was among three justices authoring dissents.

“By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect,” wrote Justice Anthony Kennedy. “By this dynamic DOMA undermines both the public and private significance of state sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage.”

The result is that same-sex couples who were married in states where such nuptials are legal, including Maryland, will be able to enjoy over a thousand Federal rights, benefits and entitlements that are accorded heterosexual couples. They include such Federal benefits as the right to file joint tax returns, federal pension survivors’, Social Security survivors’ benefits and many more.   Government agencies will be required to revamp their regulations to include legally married same-sex couples. 

With the Court’s decision to allow a lower court’s ruling to stand, which struck down Proposition 8 in California based on the equal protection clause, there are now 13 states plus D.C. where same-sex couples can marry. This represents jurisdictions covering over 93 million Americans.

DOMA was signed into law in 1996 by President Bill Clinton in which the Federal government was barred from recognizing same-sex marriages even if they were legal in certain states.  At the time, no such marriages were legal.

The second landmark decision that struck down Proposition 8 was based on standing that upheld the U.S. District Court of California’s ruling, authored by Vaughn Walker.  “We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to,” read the majority opinion in Hollingsworth v. Perry authored by Chief Justice John Roberts. “We decline to do so for the first time here.”

By taking this approach, the Supreme Court nullified Proposition 8 in California but provided no opinion on the rights of states to ban same-sex couples from being legally married.  Observers characterize the Court’s decision as “punting.”  During the oral arguments in March, Justice Kennedy cautioned that the Court was entering “unchartered waters,” which signaled a more likely narrow ruling as opposed to a sweeping broader one, unlike the DOMA ruling.

Hundreds of equality supporters as well as a lesser number of opponents gathered around the Supreme Court building in sweltering heat and humidity cheering the news amidst a sea of rainbow colored flags and signs.  People came from all over the U.S. with some spending the night before to witness history.

“Today the married lives of same-sex couples in Maryland were made whole,” Carrie Evans, executive director of Equality Maryland, told me.   “We can now access the more than 1,000 protections the federal government provides to married couples. And with the ruling in the Perry case, marriage equality returns to California bringing us to 13 states and the District of Columbia that have marriage equality. We will continue our quest in the remaining 37 states until all loving and committed couples in the U.S. have access to marriage equality.”

HRC president Chad Griffin issued a statement that said in part, “Today’s historic decisions put two giant cracks in the dark wall of discrimination that separates committed gay and lesbian couples from full equality.”

Governor Martin O’Malley, who pushed marriage equality in Maryland, weighed in calling the rulings “a powerful step forward for those who live in states like Maryland.”

The White House issued the following statement: “I applaud the Supreme Court’s decision to strike down the Defense of Marriage Act.  This was discrimination enshrined in law.  It treated loving, committed gay and lesbian couples as a separate and lesser class of people.  The Supreme Court has righted that wrong, and our country is better off for it.  We are a people who declared that we are all created equal – and the love we commit to one another must be equal as well.

“This ruling is a victory for couples who have long fought for equal treatment under the law; for children whose parents’ marriages will now be recognized, rightly, as legitimate; for families that, at long last, will get the respect and protection they deserve; and for friends and supporters who have wanted nothing more than to see their loved ones treated fairly and have worked hard to persuade their nation to change for the better.” 

“This is a historical day for all gay and lesbians couples,” said Annapolis resident Kim Hinken. “My wife, Adri and I are overjoyed at the repeal of DOMA. Finally, the country recognizes our vows to each other as they do any couple. The legal protections that this ruling allows us will assure that we are seen as a legally married couple in the U.S.”

Still Plenty of Room on the Bandwagon

Hillary Clinton comes out in support of marriage equality

Momentum for marriage equality is so powerful right now it’s surreal.  Much has happened over the past year in this regard; it’s nearly impossible to chronicle in limited space.  But since March alone, major steps to knock down previously sturdy barriers have taken place.

Most of these developments occurred before, during and after the justices of the U.S. Supreme Court heard oral arguments on two central cases (Prop 8 and DOMA) that potentially can cover the landscape in rainbows.  How the justices will rule will be determined in June—Pride month no less—and regardless of the outcome, the march towards equality will continue.

What is driving this momentum is a shift in attitudes among Americans regarding marriage equality.  The most recent of these surveys, the NBC/WSJpoll, shows that 53 percent of Americans now support same-sex marriage, which is an uptick of two points since December. Some other polls indicate even greater support.  This is a dramatic sea change over the past ten years.

Though politicians are often slow to follow the attitudes of the electorate (e.g. gun control, immigration reform, etc.), they seem to be jumping on the marriage equality bandwagon rather rapidly.  A couple of weeks prior to the Supreme Court arguments, Senator Rob Portman, a Ohio Republican who was a possible VP candidate on the Romney ticket, became the first GOP senator to publicly support same-sex marriage.  He did so because his son, Will, is gay, which clearly put a family member’s well-being above party dogma. 

“It allowed me to think of this issue from a new perspective, and that’s of a dad who loves his son a lot and wants him to have the same opportunities that his brother and sister would have — to have a relationship like Jane and I have had for over 26 years,” Portman was quoted as saying.

Republican Senator Mark Kirk (IL) swiftly followed suit as did a number of Dems, resulting in 54 senators supporting marriage equality and still counting.  Only three Democrats have not as yet: Sens. Mark Pryor (Ark.), Joe Manchin (W.Va.) and Mary Landrieu (La.)—all representing red states.

A little over a week before the Supreme Court proceedings, former Secretary of State Hillary Clinton also climbed aboard the bandwagon.  In a six-minute video for HRC Clinton said, “LGBT Americans are our colleagues, our teachers, our soldiers, our friends, our loved ones, and they are full and equal citizens and deserve the rights of citizenship. That includes gay marriage.”   Many political pundits saw this as an important step if she decides to run for president in 2016.

Despite the two Republican senators announcing support, the fact that many Republicans submitted friends-of-court briefs to advocate for marriage rights in the Supreme Court arguments, and the party rhetoric saying that the GOP needs to be more inclusive, it is clear their rank-in-file is not ready to approve same-sex marriage.  In that same NBC/WSJ poll, two-thirds of Republicans oppose marriage equality—most of whom are in rural areas.  But the numbers are improving, albeit slower than Democrats and Independents.

The Republican National Committee on April 5 approved a resolution that stated: “The Republican National Committee affirms its support for marriage as the union of one man and one woman, and as the optimum environment in which to raise healthy children for the future of America; and be it further resolved, the Republican National Committee implores the U.S. Supreme Court to uphold the sanctity of marriage in its rulings on California’s Proposition 8 and the Federal Defense of Marriage Act.”

This is the trap the GOP officials are falling in: they continue to pander to their rural and shrinking base and ignore the fact younger people including young Evangelicals are supporting same-sex marriage.  The issue most likely will hurt the party in 2016 and beyond as these younger people vote and the older, more conservative voters leave us, resulting in more elected officials jumping on the bandwagon.

Evan Wolfson, President and Founder of Freedom to Marry, commented: “With Republican support for the freedom to marry increasing every day—aided by the journeys of leaders like Senators Mark Kirk and Rob Portman—the RNC is showing itself out of touch with this resolution.”

Aside from marriage there is also some LGBT progress in the world of sports, which is by no means insignificant.  Although those in the sports industry do not make laws, their influence on our culture cannot be overstated.  Los Angeles Dodgers co-owner Magic Johnson (who has a gay son) and Mark Cuban, owner of the NBA’s Dallas Mavericks both said they would welcome a gay player on their team.  A growing number of hockey players as part of the You Can Play Project have also publicly stated their acceptance of a gay teammate should one come out.

Ex-Raven Brendon Ayanbadejo told the Baltimore Sun that he is in discussions with as many as four gay players in the NFL who may come out soon as a group in a coordinated effort to mitigate the pressure that would normally be heaped on one individual under that circumstance.

Though much work in other areas needs to be done, the marriage efforts have been paying dividends as well as a possible improvement in the sports environment.  The bandwagon still has lots of room for those to jump on.  France, for instance, is about a month away from approving same-sex marriage. Bienvenue à bord!

The Ball is in Their Court

Ever since the passage and signing of the repeal of “Don’t Ask, Don’t Tell” the march towards LGBT equality has picked up in pace that would have been considered inconceivable just five years ago.  Aside from the setback in this year’s Maryland General Assembly where comprehensive non-discrimination protections for trans folks failed to advance again, the rainbow path recently has been lined with victories.

This is especially true in the progress towards marriage equality.  Following President Obama’s announced support for same-sex marriage last spring, the tide has swung in earnest towards the seemingly improbable goal that gay and lesbians in the U.S. will finally no longer be treated as second class citizens.

The apex of this momentum was reached on Election Night as voters in three states, including Maryland, chose marriage equality while a fourth beat back an attempted ban—developments that had never occurred before.

Most recently, March 26 and 27 became another landmark period in LGBT history as two cases contesting the manner gay and lesbian couples are treated with respect to marriage rights made it to the highest court in the land.  Oral arguments were heard by the nine justices of the U.S. Supreme Court that on the first day saw the challenge to California’s Prop 8. 

Several hundred marriage equality advocates braved the cold temperatures and assembled in front of the Court in a colorful, raucous rally.  Opponents were fewer in number but they attempted to drown out the pro-equality rally with a lot of noise, chanting their dwindling number of rational arguments against same-sex marriage.

While it is nearly impossible to predict what the Court will ultimately decide based on questioning during this phase, conventional wisdom imparted by legal experts indicate that the Court will either strike Prop 8 down or even more likely revert back to the lower court’s ruling in that the measure is unconstitutional in California only. 

In that case, gay and lesbian couples in that state will again be able to marry.  If that occurs, some 30 percent of all U.S. same-sex couples would then be living in states that legally allow such marriages with several more looming on the horizon. 

There will likely be no sweeping edict that would affect same-sex couples in the rest of the country.  In other words, the Court is not likely to say in general terms that gays and lesbians have the legal right to marry, which is what marriage equality advocates had hoped for.  The least likely scenario, however, is that the Court will uphold Prop 8.

The picture seemed brighter and somewhat clearer following arguments on the second day. The constitutionality of Section 3 of the Defense of Marriage Act or DOMA, which denies over 1,100 federal benefits to legally married same-sex couples, was being questioned.  At least five justices had key problems with DOMA’s purpose and constitutionality.   

The case had been brought to this point by Edie Windsor, 83, who had to pay $363,000 in federal estate taxes after her spouse, Thea Spyer, died. Because Windsor would have been eligible for an estate tax exemption had Spyer been a man, she argued that DOMA's Section 3 violates her equal protection rights under the Fifth Amendment.

Again, it is not certain if the Court will grant eligibility for the 1,100 federal benefits to same-sex couples that are legally married.  Should that happen, it would constitute a huge victory for those couples married in the nine states (including Maryland) plus D.C.  Social Security survivors’ benefits and tax breaks would be among the major benefits if Section 3 of DOMA was struck down.  And it could form a precedent for future litigation.

The U.S. Supreme Court has a well-deserved reputation for being plodding and incremental and often lagging behind the social attitudes of the general public.  Sweeping landmark cases are rare, and these two could (and should) have been among them. 

The punditry noted correctly that attitudes on “gay marriage” shifted dramatically since 2004 when Republicans used the issue as a wedge among Democratic voters.  Indeed, according to a recent NBC/Wall Street Journal Poll, support for marriage equality has increased in virtually every demographic, region and party affiliation except those from rural areas and those between the ages of 50 to 64.  Blue collar workers represent the largest increase in support.

African-Americans, long seen as a group that had not supported marriage equality, increased their support by 19 percent since 2009 alone.  Analysts credit Obama’s change in his position on the subject as a significant contributor to the shift.

Moreover, young adults who will be playing a larger role in elections and are overwhelmingly supportive, will be replacing the older generation as they leave us.  But even though folks over 65 do not favor same-sex marriage (37% - 54%), their support has increased substantially since 2004 (16% - 80%). 

The justices’ votes have already been tabulated, and their rulings will be announced in June.  As most of the LGBT community will be celebrating Pride that month, the announcement will be eagerly anticipated.  

The justices would be wise to consider the trends in public acceptance because if the rulings do not unequivocally confer the same legal rights, benefits and responsibilities for all Americans, you can be sure the younger people will be back again knocking on the Supreme Court’s door.  For now, the ball’s in their court.