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Leslie Gabel-Brett

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The Walls Are Tumbling Down

Posted: 02/24/2012 5:06 pm

Although we still have a long way to go, it would be hard not to draw the conclusion that February 2012 is the month that the walls came tumbling down and the march toward marriage equality in this country became unstoppable.

In less than three weeks, here's what has happened:

  • Feb. 7: Federal appellate court rules that California's Prop 8 is unconstitutional.
  • Feb. 13: Governor Gregoire signs marriage equality into law in Washington.
  • Feb. 16: New Jersey legislature votes in favor of marriage equality (later vetoed, but with a vow by the head of the state senate to seek an override).
  • Feb. 17: Maryland House of Delegates votes in favor of marriage equality.
  • Feb. 21: New Jersey state court reinstates federal constitutional claim in Lambda Legal's marriage equality lawsuit in that state.
  • Feb. 22: Federal court rules that the key portion of the so-called Defense of Marriage Act (DOMA) denying federal recognition to valid marriages of same-sex couples is unconstitutional in Lambda Legal's Golinski v. Office of Personnel Management case.
  • Feb. 23: Maryland Legislature approves a marriage equality bill that Gov. O'Malley has promised to sign into law.

The victories themselves are remarkable, but equally meaningful is the number and diversity of voices insisting that the time for equality has come. For example, the majority in the Ninth Circuit Court of Appeals' decision in the Perry v. Brown challenge to Prop 8 concluded:

Proposition 8 operates with no apparent purpose but to impose on gays and lesbians, through the public law, a majority's private disapproval of them and their relationships, by taking away from them the official designation of "marriage," with its societally recognized status. Proposition 8 therefore violates the Equal Protection Clause.

In signing the marriage equality law in Washington, Gov. Gregoire passionately said:

I ask all Washingtonians to look into your hearts and ask yourselves: isn't it time? Isn't it time to tell the children of same-sex couples that their parents are as loving and important as any others? Isn't it time to support strong families, and make Washington stronger, too? And isn't it time to send a message to the world that Washington believes in equality for all? I believe if we ask ourselves those questions, our answers will be "yes." Marriage equality is right for Washington State. And the time is now.

As he introduced the marriage equality bill in Maryland, Gov. O'Malley stated:

The momentum is growing, and there's a lot of hard work to do. We are going to be successful in this legislative session by recognizing the dignity in one another, by recognizing the common humanity that all of us share. In this great state that celebrates diversity as our strength, we choose to be bound together by a common thread. That common thread is human dignity.

And in ruling that DOMA is unconstitutional in Lambda Legal's case on behalf of Karen Golinski, Judge White (a George W. Bush appointee) wrote:

The Court finds that neither Congress' claimed legislative justifications nor any of the proposed reasons proffered by BLAG [the so-called "Bipartisan Legal Advisory Group" of the House of Representatives, which intervened in the case to defend DOMA] constitute bases rationally related to any of the alleged governmental interests. Further, after concluding that neither the law nor the record can sustain any of the interests suggested, the Court, having tried on its own, cannot conceive of any additional interests that DOMA might further...

In this matter, the Court finds that DOMA, as applied to Ms. Golinski, violates her right to equal protection of the law under the Fifth Amendment to the United States Constitution, without substantial justification or rational basis, refusing to recognize her lawful marriage to prevent provision of health insurance coverage to her spouse.

The tide has turned in favor of marriage equality, and the old false arguments no longer work. Same-sex couples have been getting married now for several years in Massachusetts, Connecticut, Iowa, Vermont, and New Hampshire, and more recently in our nation's capital and New York. In all these places marriage and society are thriving. In all these places, as Gov. O'Malley said, "The common thread is human dignity."

As Judge White further explained, in response to the arguments made in Golinski that Congress had a right to move slowly on the issue of marriage equality, "Congress cannot, like an ostrich, merely bury its head in the sand ... especially at the risk of permitting continued constitutional injury upon legally married couples."

It's way too soon to declare final victory, of course. The vast majority of states still prohibit same-sex couples from marrying. Moreover, LGBT people still do not have uniform protections against workplace, school, and other forms of discrimination, and many still face family disruption, unfair immigration policies, and violence.

But February 2012 may well be remembered in history as a tipping point in the fight for equality, with increasing numbers of allies and advocates joining together to say "the time is now."

 

Follow Leslie Gabel-Brett on Twitter: www.twitter.com/lambdalegal