Equality Forum Legal Panel Debates Future of Same-Sex Marriage

Hayley Goldberg and Jennifer C. Pizer

Hayley Goldberg and Jennifer C. Pizer

William N. Eskridge, Jr. began last night’s Equality Forum Legal Panel by asking for a show of hands. How many in the National Constitution Center’s audience believed gay marriage would be legal in all 50 states in five years? About 10 percent raised their hands. Ten years? About half believed that. Virtually the entire audience believed gay marriage would be legal, everywhere, in 20 years.

Eskridge, the John A. Garver professor of Jurisprudence at Yale Law School, admitted he did not have an answer to the question, and immediately went into speaking of Proposition 8, the law passed in California by voter referendum in November 2008 and therefore outlawed gay marriage in that state. Although the voters amended their state’s constitution, the decision was again overturned by U.S. District Chief Judge Vaughn Walker and gay marriage is again legal. Why? Eskridge explained the referendum specifically took away the fundamental rights of a discriminated minority, which went against a previous Supreme Court ruling. Similarly, some of the reasoning behind Prop 8 (specifically, that it needed to be enacted because, it was said, gay marriage discourages procreation by heterosexuals) was, let’s say, a bit off.

Eskridge was joined on stage by Janson Wu, a staff attorney at GLAD; Hayley Gorenberg, a deputy legal director at Lamda Legal; and Jennifer C. Pizer, the Legal Director of the Williams Institute at UCLA. All have been involved in LGBT civil cases and explained that, like the fight for racial equality throughout United States’ history, many of the battles are being fought in the courts.

Wu, for instance, filed a motion in 2009 against the 1996 Defense of Marriage Act, a federal law signed by then-President Bill Clinton which re-defines marriage as between a man and a woman at the federal level.

“There are hundreds of families and children that have been harmed by DOMA,” said Wu—even those in the eight states where same-sex marriage has been legalized. One way, he said, were tax returns. Because the federal government does not recognize same sex marriages, couples in places like Massachusetts are often required to file married tax returns in state, and single returns federally.

Additionally, he said, Social Security benefits are not there for survivors, even if they’re married in a state—“normally that safety net is there for spouses and survivors,” he added.

“It has been the case for the entire history of our country; interracial couples get married…whether or not people can be married, the federal government has been neutral and said, ‘if you can get married at the state level, you’re married at the federal level,” he said. Only same-sex couples have been discriminated against. Couples have run into similar problems with immigration status and getting their names changed after being wed.

And it’s in that context he hopes to get DOMA overturned. President Obama’s Justice Department has already said they will not defend the law in court. Many called this a partial victory, but it comes with consequences balanced on a slippery slope, as former presidential candidate Rick Santorum pointed out last year.

Gorenberg focused much of her time on the rights of transgender individuals, perhaps emphasizing most profoundly that “cisgender” women—that is, women born as women who continue to identify as such—are often used as pawns against granting additional rights to the transgender community.

“It’s very important that we stand up and say, ‘not in our name,’” Gorenberg said. “There are these scare tactics that show that if you have trans-protective laws, then it’s going to be dangerous for women, that women are going to get attacked.”

Philadelphia Weekly wrote about such scare tactics being used by the American Family Association of Pennsylvania during the debate to remove gender from Pennsylvania drivers’ licenses. The American Family Association has similarly denounced Campbells Soup, this year, for co-sponsoring this weekend’s Equality Forum.

Additionally, said Eskridge, cases for gay marriage have a long way to go on the state level before the Supreme Court gets a crack at a federal law.

“[The] Supreme court would not like to see Pandora open a box and a lot of LGBT leaders do not want the polygamy genie to escape from the box,” he said. “They do not want polygamy litigation, they do not want incest litigation.”

Many social conservatives have often wondered what might come next if gay marriage is legalized—such as polygamy, incest, people marrying animals and so forth. One judge has wondered out loud if he’d be able to marry his cat if gay marriage were to become a federal law.

“The short answer is, of course he can marry his cat—but the state is not going to recognize that,” Eskridge said.

3 Responses to “ Equality Forum Legal Panel Debates Future of Same-Sex Marriage ”

  1. FlexSF says:

    Where does Mr. Eskridge get some of his information? “They do not want polygamy litigation, they do not want incest litigation.” I think he is out of line to make such broad statements on behalf of the gays. Maybe for the professional gays, who earn as much money as the NOM during anti-gay referendums, this litigation could be problematic for them, but that doesn’t give Eskridge any license or credit to state the gays are afraid of polygamy litigation. This is a lie produced by a professional, NOM opposite. I don’t give a damn about polygamists. Their marriages, like the gays, have no impact, whatsoever, on anyone. The professional gays who earn an income by being the opposite of the NOM are part of the problem.

    Conversely, only a hypocritical-Republican from an anti-gay, anti-abortion state would seek to legalize incest, so get real, Mr. Eskridge, you greedy professional gay. Please stop your polygamist hackery.

  2. William Eskridge says:

    In reply to FLEXSF’s posting.

    The quotation he is referencing was part of my answer to this question: Why did the federal judges in the Perry litigation not emphasize the Due Process Clause, which the Supreme Court has interpreted to protect a general “right to marry.” (Instead, the federal judges have emphasized arguments darwn from the Equal Protection Clause, which polices state discrimination.)

    My answer was that federal judges were cautious about expanding the due process right to marry; in particular, they were worried that finding a fundamental right for same-sex couples to marry, enforced by the Due Process Clause, might trigger many lawsuits by other Americans who want their relationships recognized by law, including polygamists.

    In the context of the panel, the referent to “they don’t want polygamy litigation etc.” was federal judges, though it is also true that “a lot of gay rights leaders” don’t want that litigation, either.

    As I was describing what motivated federal judges, I was not “making a broad statement on behalf of gays.” Nor was I expressing a personal opinion as to who “ought” to have a right to marry in the United States.

  3. Hyhybt says:

    That argument still leaves out the very obvious fact that there are reasons not to recognize polygamy that do not exist with gay marriage. Marriage, in this country and century, is legally a union of equals. There is no specified role that must be filled by a man, nor one that must be filled by a woman, other than the bare requirement that there be one of each. Therefore, if that requirement is removed, a marriage between two men or two women would function legally in exactly the same way that current marriages do.

    Expanding that beyond two parties, though, introduces complications which would need to be resolved before including such arrangements in law.

    Is that really so hard to understand, or is it ignored for the convenience of those who want any excuse, however flimsy, to stop same-sex couples from marrying?

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