Quote:
Originally Posted by iamkeri1
I continue to fail to understand why we have to pursue these remedies by law and by law suit. Call me stupid, but I do not understand and do not believe that I will ever understand, why our right to associate, marry, adopt, foster and any other free act of will protected under law for any citizen are not protected under law for us.
Below is the text of the 14th amendment to the United States Constitution,
passed in 1868. That's 18 68. IT clearly states all persons. To borrow from Soujourner Truth "Ain't I a person?"
Fourteenth Amendment - Rights Guaranteed Privileges and Immunities of Citizenship, Due Process and Equal Protection
Amendment Text | Annotations
Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
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You're preachin' to the choir, Sistah!
[ame="http://www.youtube.com/watch?v=VQKI6zFfqZA"]YouTube- Boston Gay Men's Chorus (BGMC): Every Sperm Is Sacred[/ame]
Since the Supreme Court has refused/avoided to rule on the subject, getting equal marriage rights (not civil unions or domestic partnerships) may be the only way we can force the Supreme Court to rule on federal discrimination and overturn DOMA.
Now that same-sex citizens of Massachusetts have marriage rights, we have strong grounds to sue the federal government and try to force the Supreme Court to rule.
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From: Emma Ruby-Sachs
Posted: July 9, 2009 09:32 AM (Huffpo)
New DOMA Lawsuit is the Most Exciting Yet
We've been in a kind of legal blitz on the Defense of Marriage Act recently. But, in the three lawsuits filed, yesterday's challenge might have the highest chance of success.
The first of these challenges, Gill et al. v. Office of Personnel Management et al., filed in March by the Massachusetts-based group GLAD, argues that same-sex spouses are denied specific monetary benefits from public programs like social security under DOMA.
Not long after, Smelt v. United States of America was a filed: a lawsuit that attacks DOMA on every front possible including its violation of due process and equal protection, the right to free speech, right to privacy, right to travel and its discrimination on the basis of sex and sexual orientation.
But yesterday, the Attorney General of Massachusetts filed a complaint that chiefly argues DOMA's violation of state's sovereignty over the definition and regulation of marriage.
The genius of this complaint is that it takes a conservative argument -- that liberal states should not be permitted to impose their tolerance and acceptance of homosexuality on the rest of the country -- and turns it around to benefit a state that really pioneered gay rights in the U.S.
Even a conservative justice would support the notion that federal encroachment over those few areas where states have sovereign jurisdiction is unconstitutional. In this case, that principle supports, at the very least, limiting the application of DOMA when it affects state programs with federal funding.
If a conservative justice chooses to oppose the argument put forward by Massachusetts Attorney General Martha Coakley, then their logic could be used in the future to justify federal enforcement of equal rights on those states that oppose same-sex marriage. If state's no longer have absolute jurisdiction over marriage, a liberal government can interfere with a conservative state's policies.
Coakley's lawsuit will likely be joined with Gill et al. and the two will proceed as the most viable challenge to DOMA (many think that Smelt threw too many punches and doesn't have the same institutional support as the Massachusetts suits since the lawyers involved were not working closely with Lambda Legal and other LGBT litigation groups with long histories in the gay rights movement).
It also has the support of Senator John Kerry. Kerry, a lawyer by training, argued way back in 1996 in the Senate, that DOMA was unconstitutional.
His reasoning then, that the full faith and credit clause would be threatened by a law that refused to recognize marriage rights potentially given by some states and not all, has not been popular in modern law suits. Perhaps this is because the trend on hot button social issues has been towards state sovereignty and full faith and credit undermines that sovereignty.
Hence the genius of Coakley's argument.
We can all look forward to the slow, grueling process that is the march to the Supreme Court. And hopefully, by that time, a number of new states will join the same-sex marriage party.
But Coakley's suit is significant. It is a smart, novel attack on a law that is clearly unconstitutional, but also has the support of a waning, yet still significant portion of the American population."
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Here's our lovely president defending gay apartheid:
"Obama rep: MA law can't force us to pay married benefits
November 01, 2009
WASHINGTON (AP)— States that allow gay marriage can't force the federal government to provide benefits to those couples, the Obama administration argued Friday in court papers in a lawsuit by Massachusetts.
The Justice Department is at odds with Massachusetts — the first state to allow gay marriage — over a 1996 federal law defining marriage as a union between a man and a woman.
Massachusetts sued in July, saying that law is discriminatory and deprives gay couples in the state of some federal spousal benefits.
The Obama administration agrees the Defense of Marriage Act, or DOMA, is discriminatory and wants it repealed, but says it has an obligation to defend laws enacted by Congress while they are on the books and can be reasonably defended.
The law "does not prohibit gay and lesbian couples from marrying, nor does it prohibit the states from acknowledging same-sex marriages," according to the court filing by Assistant Attorney General Tony West.
Massachusetts, the filing continues, is trying to claim individuals have a right to federal benefits based on marital status.
"There is, however, no fundamental right to marriage-based federal benefits," according to the 36-page filing.
Joe Solmonese, head of the nation's largest gay rights group, Human Rights Campaign, said the law is discriminatory and the Obama administration should not defend it.
"While we hope Massachusetts prevails in this lawsuit, we are also looking to the administration to put its full weight behind efforts to repeal DOMA in Congress," Solmonese said.
The 1996 law denies federal recognition of gay marriage and gives states the right to refuse to recognize same-sex marriages performed in other states.
Massachusetts is the first state to sue the government over the DOMA law. Some gay couples have filed their own lawsuits challenging the law, but this case is unique in pitting a state against the federal government over the issue.
Justice Dept. spokeswoman Tracy Schmaler said any state "can allow gay and lesbian citizens to marry and can make its own decisions about how to treat married couples when it comes to state benefits."
"Massachusetts is not being denied the right to provide benefits to same-sex couples and, in fact, has enacted a law to provide equal health benefits to same-sex spouses," she said.
In earlier filings, the government has sought to dismiss the DOMA lawsuits brought by individuals.
The Massachusetts case could also have implications for Democratic Party politics. The Massachusetts Attorney General, Martha Coakley, is trying to win the Senate seat of the late Edward Kennedy, at the same time her office is leading the lawsuit against the Democratic administration on the issue of gay rights.
Coakley's spokeswoman, Emily LaGrassa, said Coakley would not comment on the government's filing.
"We received it, and we will file our response in court," LaGrassa said.
The lawsuit brought by Massachusetts says the approximately 16,000 same-sex couples who have married since the state allowed it in 2004 are being unfairly denied federal benefits given to heterosexual couples.
Those benefits include federal income tax credits, employment benefits, retirement benefits, health insurance coverage and Social Security payments, the lawsuit says.
The lawsuit also argues that the federal law requires the state to violate the constitutional rights of its citizens by treating married heterosexual couples and married same-sex couples differently when determining eligibility for Medicaid benefits and when determining whether the spouse of a veteran can be buried in a Massachusetts veterans' cemetery."
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Here's where federal judges start telling the Obama administration to go to hell:
US Judges Rebel Over DOMA
Two California rulings reiterate support for federal employee spousal benefits
Published: Wednesday, November 25, 2009 10:52 AM CST
BY ARTHUR S. LEONARD
In two separate cases, judges of the US Court of Appeals for the 9th Circuit, on November 18 and 19, responded to the interference by the federal Office of Personnel Management (OPM) with the relief they had ordered earlier this year on behalf of gay court employees who sought to enroll their spouses in the federal employee benefits plan program.
In both cases, the employees had married their same-sex partners in California during the “window period” prior to the passage of Proposition 8. Because of a California Supreme Court ruling after Prop 8 was enacted, those marriages remain valid in the state.
On November 18, Judge Stephen Reinhardt ordered that Brad Levenson, a deputy federal public defender for the Central District of California, be compensated for the expense of obtaining equivalent insurance for his husband, retroactively and until he is allowed to enroll him.
Chief Judge Alex Kozinski, on November 19, took things a step further and ordered that OPM drop its opposition to enrolling Karen Golinski’s wife in the program and that the insurer, Blue Cross Blue Shield, do so. Kozinski joined Reinhardt in ordering retroactive compensation for the cost of comparable insurance.
What was most interesting about the orders, however, was how they took on the federal Executive Branch on behalf of the circuit’s gay employees. Reinhardt not only reiterated his early argument about why the Defense of Marriage Act (DOMA) is unconstitutional in blocking the extension of benefits, but also demolished the Justice Department’s argument in the pending DOMA challenge brought by Gay & Lesbian Advocates & Defenders in Boston’s US District Court.
DOJ’s strained “neutrality” defense asserts that because of the uncertainty about whether the Hawaii Supreme Court would allow same-sex marriage in 1996, Congress was justified in enacting DOMA to keep the federal government from getting embroiled in controversy over same-sex marriage by maintaining the status quo that to date had tied federal recognition of marriages to the broad national consensus among states about their parameters.
Reinhart, viewing DOMA as an instance of sex discrimination, believes the courts should hold government claims in defending the law to a high standard, and wrote that this “post hoc justification would not survive the heightened scrutiny that… likely applies to Levenson’s claim. Even under the more deferential rational basis review, however, this argument fails. DOMA did not preserve the status quo vis-a-vis the relationship between federal and state definitions of marriage; to the contrary, it disrupted the long-standing practice of the federal government deferring to each state’s decisions as to the requirements for a valid marriage.”
Congress was not preserving its neutrality, Reinhart found, it was joining in the fray.
He ordered that the costs and methods of compensating Levenson, retroactively and going forward, should be worked out.
Unlike Reinhardt, who ruled that DOMA was unconstitutional for purposes of the benefits program, Kozinski had resolved Karen Golinski’s complaint by creatively interpreting the federal employee benefits statute to give her eligibility. The only feasible solution going forward, he found, was to reissue his order that she be enrolled in the federal employee plan. He ordered OPM to stop interfering with his order, and noted, in rejecting other proposed remedies, that enrolling her wife would cost nothing, since her children were already part of a family plan she had under the program.
Kozinski found that OPM’s intervention to block his previous order implicates “the autonomy and independence of the Judiciary as a co-equal branch of government,” since the circuit has sole authority to resolve court employee grievances. “In effect,” the judge continued, “OPM has claimed that its interpretations of the rights and benefits of judicial employees are entitled to supremacy over those of the Judiciary.” He noted that nobody would seriously argue that the Treasury Department could refuse to issue paychecks because it disagreed with the pay policies established by the courts for their personnel, so why should OPM be entitled to interfere with this decision about court employees’ benefits?
So, Kozinski has
thrown down the gauntlet to the Executive Branch, and Reinhardt has declared that the Justice Department’s main defense of DOMA, advanced in the pending case in Boston, is wrong. The 9th Circuit is in rebellion against the Justice Department’s continued obstinate defense of DOMA, a statute that President Barack Obama has condemned as discriminatory and whose repeal he has advocated — if only faintly so far.
It is worth noting that Kozinski was appointed to the 9th Circuit by President Ronald Reagan and is generally seen as a conservative, but on matters of fairness to the employees of his court, he insists on equality and vindication of rights.
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