Greetings from Flyover Country Thoughts from the American Midwest

Justifiable Discrimination

In an Associated Press story on MSNBC.com today, advocacy group Equality Utah is asking the Church of Jesus Christ of Latter-day Saints (the Mormon church) to support several legislative initiatives in the upcoming year.

Equality Utah said Monday it will help draft five bills for the 2009 session, which starts in January. Three of the bills seek equal treatment for domestic partners on hospitalization, medical care, housing, employment and probate rights.

A fourth bill would create a domestic partner registry. The fifth would repeal a part of Utah’s marriage-defining constitutional amendment that Equality Utah Public Policy Manager Will Carlson said has been “misinterpreted to avoid any recognition of gay couples.”

According to Equality Utah Chairwoman Stephanie Pappas, LDS Elder L. Whitney Clayton stated that the church does not oppose civil unions or domestic partnerships. They do, however, oppose allowing gays to marry. The passage of California’s Proposition Eight was thanks in part to contributions from or at the urging of the LDS leadership, be it financial or urging members in California to vote for the measure.

The five pieces of legislation, as outlined above, would be a huge step forward as far as gay rights in Utah goes. They would, for the most part, confer some of the same rights given to heterosexual married couples and provide anti-discrimination to same-sex partners for housing, medical, and real estate matters. And this isn’t just a Utah-only situation. There are other states that have similar domestic partnership laws (California, District of Columbia, Hawaii, Maine, Maryland, New Hampshire, New Jersey, Oregon, Vermont, and Washington). California was, up until the aforementioned Proposition Eight, one of only three states that allowed for same-sex marriage. Connecticut used to be on the list of states with domestic partnership laws, but as of tomorrow as it so happens, they will become the only state other than Massachusetts where same-sex marriage is legal. Vermont, California, New Jersey, and New Hampshire laws for domestic partnership explicitly define said unions as having the same rights and responsibilities of marriage, as applicable to state law. Mane, Hawaii, D.C., Oregon, and Washington laws offer varying “subsets” of the rights and responsibilities of marriage.

Based on the above list, 20% of our great and free Union allows domestic partnerships. If we add Connecticut and Massachusetts to that number, we’re up to 24%. But those are only states. Federally, the “Defense of Marriage Act” (1 U.S.C § 7) limits the recognition of a marriage to heterosexual couples. This includes everything from federal tax law, to the Census Bureau. (Married in Massachusetts and gay? Sorry, you’re single according to the census in 2010.) Not to mention application of health care beneficiary status (some policies designate “spouse” to be as defined by the United States government). According to the Government Accountability Office (GAO), more than 1,138 “rights and responsibilities” are conferred to US citizens upon marriage. Most “day-to-day” rights are governed by the states, as has been the case for the last 200-plus years of our country’s existence. In fact, traditionally, the federal government recognized a marriage by any state, regardless if another state recognized that same marriage (as was the case with interracial marriage before the 1967 Loving v. Virginia decision). In 1996, when the federal DOMA (Defense of Marriage Act) was passed, no state was even close to allowing same-sex marriage; 12 years later and we have two, plus all of the domestic partnership states. What is a country to do? How on earth will we handle varying and often conflicting state laws, not to mention federal law?

Historically, as the federal government had no laws defining marriage, states were free to create their own set of rules. That is clearly outlined in the Ninth and Tenth Amendment to the Constitution: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” and “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”. (Some argue about “Ninth Amendment Rights”, though the Ninth Amendment doesn’t expressly outline any rights. It only serves as a “guide” on reading the Constitution; that is, just because it doesn’t say so in the Constitution doesn’t mean it’s not a right of the people. This was used in the majority decision in Roe v. Wade.) Aside from the anti-miscegenation laws up until 1967, states have recognized that marriages from other states, under Article Four, Section 1 of the Constitution (the “Full Faith and Credit” clause). This is also how your Kansas drivers license permits you to drive in the state of Missouri, or the commonwealth of Virginia. And while some states that recognize domestic partnerships for same-sex couples also recognize similar laws from other states, any state that where such unions are illegal or unconstitutional do not (also, states like New Jersey recognize out-of-state same-sex marriages as being legally equivalent to New Jersey’s own civil unions). Same-sex marriages conducted outside of the United States (in Canada, for example) are only recognized in New Mexico, New York, and Rhode Island.

What we have here is an odd legal mess where gay citizen are treated as second class, either by a denial of right to marry, or an absence of equivalent domestic partnership laws. Of the states where domestic partnerships or civil unions are legal, most agree that they should have the same legal rights as marriage. New Jersey’s state Supreme Court ruled that gay couples should be granted the same “rights, benefits, and responsibilities as heterosexual couples with respect to their relationships”. While the court was split four-to-three, the difference between them was whether or not granting marriage to same-sex couple would be the resolution, or if a separate yet equal legal status would pass scrutiny on a constitutional level. They left it to the state legislature, avoiding a decision. Then-Chief Justice Poritz led the dissent in the decision, saying:

What we name things matters, language matters…Labels set people apart surely as physical separation on a bus or in school facilities…By excluding same-sex couples from civil marriage, the State declares that it is legitimate to differentiate between their commitments and the commitments of heterosexual couples. Ultimately the message is that what same-sex couples have is not as important or as significant as “real” marriage, that such lesser relationships cannot have the name of marriage.

Connecticut’s path to gay marriage started with a 2004 suit by the group Gay and Lesbian Advocates and Defenders, on behalf of eight couples arguing the exclusion of same-sex couples from marriage is discriminatory under the state’s constitution. A Superior Court judge ruled against them, stating “Civil union and marriage in Connecticut now share the same benefits, protections and responsibilities under law. … The Connecticut Constitution requires that there be equal protection and due process of law, not that there be equivalent nomenclature for such protection and process.” On October 10, 2008, Connecticut’s State Supreme Court ruled that a “separate but equal” approach and denying gays the right to marry did violate the equality and liberty rules in the state constitution.

Coming back to the Utah story, and the already existing laws in the aforementioned states, is giving equal benefits under a different name “good enough”? Is a second-class status to same-sex couples acceptable in this day and age? Two states say it isn’t, and while that may be “activist judges” instilling their belief upon the majority, is it not the job of our government and our judiciary to protect minority rights? Over 18,000 couples have legally married in California before Tuesday’s Proposition Eight, and because a simple statistical majority happened to disagree with that right was taken away. In 1967, was allowing interracial marriage overwhelmingly popular in the states where it was illegal? No, but equality and the law don’t have to be popular to the majority.

I’m leaving you with two recent thoughts on this issue that are far less broad than my hastily-written views above. The first is MSNBC’s Keith Olbermann, and his “Special Comment” on Proposition Eight:

The second is a post from fellow blogger and friend-of-a-friend Jake. It’s an emotional piece that provides an often-overlooked human element to this struggle. I encourage you to comment should you feel the desire. I do ask that you keep it respectful and keep it on-topic. I agree with free speech, but there is a line where freedom of speech becomes hate. That and this is my blog, and I have the right to moderate offensive or inappropriate comments.