Tuesday, November 9, 2010

Working The Steps

Not the twelve steps mind you but the steps of the Judicial system. That appears to be the only way we are likely to see progress on gay rights for the next two years. While we currently have two court challenges to DOMA already in process...Gill v. The Office of Personel Management and Massachussetts v. The United States Department of Health and Human Services. Also working the steps California's challenge to Prop 8(Perry v. Schwarzenegger)  now in the Ninth Circuit. And finally we have the Log Cabin Republican's challenge to DADT also making its way to the Ninth Circuit court of appeals. All of which are being opposed by President Obama's Department of Justice.

Yesterday two new challengers entered the fray...

Pedersen et al. v. Office of Personnel Management:
The first from GLAD(Gay and Lesbian Advocates and Defenders)  which launched its challenge on behalf of same sex couples in New Hampshire, Vermont, and Connecticut. The lawsuit is being brought by couples who in one form or another attempted to apply for federal benefits that they would otherwise be entitled to if DOMA were not law. As is the case of one of the defendants, Jerry Passaro, who's husband passed away from Lymphoma. Jerry and his husband Tom Buckholz had been married for two years and together for 13. Jerry discovered after Toms death that due to DOMA he was ineligible for survivor benefits or social security benefits. More on the plaintiff couples can be found here.

Windsor v. United States:
The second case to challenge DOMA is brought be the ACLU on behalf of Edith "Eddie" Windsor. Windsor is claiming that the federal government failed to recognize her marriage to Thea Spyer when Spyer passed away in 2009. The pair had married in Canada in 2007 and had been together for 44 years. When Spyer passed away Edith Windsor was forced to pay taxes on the estate she inherited from her wife. Windsor seeks to have DOMA ruled as unconstitutional and a complete refund on the taxes she was forced to pay upon her wife's passing.

It appears as if DOMA is taking some major broadsides. With that many challenges working their way up the Judicial ladder one hopes that at least one of them is a success. Hell...the sheer number of cases against DOMA ought to be enough to embarrass the White House for defending the discriminatory law. However, with the Congressional Democrats possibly stripping a DADT repeal out of the Defense Authorization Bill and Barney Frank claiming that we wont be seeing any pro-LGBT legislation passed this year, the courts are our best strategy to move forward.

And should these cases succeed in their first tier of Judicial hearings will the Department of Justice be likely to defend? My guess given their previous justifications for defending against Gill v. personnel Management and The LCR Don't Ask, Don't Tell challenge is yes. Having to defend against so many pro-equality lawsuits does make them look like they are pretty anti-equality...and image they do little to dispel. The rather look like they are raising the drawbridge and boiling the oil to douse the hordes of pro-LGBT litigators storming the keep. They have stuck by their rational that any steps forward for gay rights must be done via congress...even though we have seen that approach fail epically. To offer any other response would be to admit that maybe they had been wrong and I don't see that happening soon.

Even though a legislative option failed to materialise the Judicial one is not without its own risks. Every case that gets decided in favor of equality for gay, lesbian, Transgender people adds to a bed rock of precedence that can be referred to as the cases climb the appeals ladder...but....the higher up that ladder we go, the more weight each judges decision carries and should we reach the Supreme Court, we are playing for all the marbles. Failure there, could be catastrophic.

I don't think this is a case of risking too much to soon. We stand to lose as much or more by not advancing through the courts. Each case that succeeds helps keep the topic in the national debate and the longer that happens more people  wake up to the human fight these cases highlight. It becomes harder to cast us as a shadowy villains and spin lies if we are constantly engaged in real conversation about real people and the affects of laws like DOMA. Courts can be swayed by more than law. As the national debate changes then perhaps the court will be more apt to see the human face also and not only the abstract concept of gay rights and all the polarization that comes with that.

But to not try at all is to fail anyway.

Until next time dear readers...


  1. Great post Bryan!!
    Just curious here..and let's hope this NEVER happens..but if you ever became ill and Jay wanted to take FMLA (time granted by employers insisted by the federal government for family members to take off of work to care for family members)..could he? I know you guys are legally married in CA..but could his employer refuse because that is a law handed down by the feds and they do not recognize same sex marriage?
    Again..this is NEVER going to happen..so let's not worry about it! :)

  2. I'm very please DOMA is being challenged. No unjust law should be allowed to stand. If that means law suit after law suit, protest after protest, and lobbying without end, so be it. Equality will come.

    For in a growing number of nations extending more and more rights to the LGBT community we are begining to look less like a democracy and more like an apartheid state.

    Won't that sit well when another nation tells us to improve our Human rights?

  3. There's something seriously wrong with the fact that married gay Americans have more marriage-related rights in countries like the UK, Denmark, Ireland or Germany, where gay marriages aren't recognised (well, not as marriage) than they do in their own country.

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