With the release last week of the decision in Perry v. Schwarzenegger, there has been an inordinate amount of interest in the question of marriage equality, which may now be on its way to the Ninth Circuit and, quite possibly, the United States Supreme Court. But while marriage is important, it is not the only developing area of litigation. Let's take a brief look at some other developments in state and federal courts related to "marriage lite," or gay and lesbian relationship recognition (and a brief aside on parenting).
Relationship Recognition Apart from Marriage
First, there's marriage, and then there is "relationship recognition." In most states, gay and lesbian couples are not only denied access to marriage, they are denied virtually all of the rights, benefits and obligations that come with it. In Nebraska, for example, the ACLU brought a suit challenging the state's "Super DOMA," an amendment that not only deprived gay and lesbian couples marriage, but also specifically targeted same-sex couples, depriving them of any relationship recognition. The text of the amendment was as follows:
Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska.
Article I, § 29 of the Nebraska Constitution. Note that the amendment does not eliminate the possibility of relationship recognition for heterosexual couples apart from marriage. The 8th Circuit upheld the bigoted amendment anyway. This case helps illustrate just what gays and lesbians are up against; for the most part, the argument is not "separate but equal," it is "separate." Gay and lesbian relationships are denied any protection in all but a handful of states.
My home state is Exhibit A of the consequences involved in anti-gay politics. In Michigan, the state's anti-gay amendment states that "the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose." MCLS Const. Art. I, § 25 (2010). This has been interpreted very broadly by the state's conservative supreme court, which held in 2008 that the amendment prohibits public employers from providing health-insurance benefits to their employees' qualified same-sex domestic partners, despite election brochures distributed at the time the amendment was passed promising that the constitutional amendment would not preclude public employers from offering health-insurance benefits to domestic partners. Nat'l Pride at Work, Inc. v Governor of Mich.481 Mich 56, 748 NW2d 524 (2008). At the time the amendment passed, the Michigan Democratic Party did not take a position on it, despite the clear punitive intent of the amendment. Tellingly, the amendment poisoned the political atmosphere for gay and lesbian Michiganders, and is probably a contributing factor in the significant increase in
anti-gay hate crimes in the state.
In fact, many of the amendments passed between 2004 and 2008 were not aimed solely at marriage, but targeted civil unions and domestic partnerships. Additionally, opponents of marriage equality often reveal themselves to be motivated more by animus against gay couples than anything else, as was the recent case of Republican Hawaii Governor Linda Lingle's recent veto of House Bill 444, a bill that would have allowed unmarried couples to enter into civil unions that paralleled marriage. Ironically, Hawai'i is the only state that has an amendment permitting the legislature to restrict marriage to opposite-sex couples; the actual text of the amendment leaves the decision up to the state legislature. Lambda Legal has since filed a complaint seeking the broad range of state law protections provided to married couples, such as access to the same legal protections regarding parent-child relationships, access to family court, child support and alimony. A similar lawsuit was also recently filed in Montana, where the state legislature and governor reject domestic partnerships and civil unions and where voters approved an anti-gay amendment in 2004 that restricts the term "marriage" to opposite-sex couples.
The other contentious family issue is adoption and child rearing. Gay and lesbian parents, single or coupled, have been on the defensive throughout the history of this country. Most recently, a Florida trial court invalidated the broad ban on gay adoption adopted by the State of Florida in the late 1970s (PDF). The state appealed, and the issue remains unresolved in a Florida appellate court. Many observers believe that the Florida Supreme Court will resolve the issue, regardless of the outcome in the intermediate appellate court.
Nevertheless, there are limits to litigation on these and other issues if federal courts do not invalidate some of the more draconian anti-gay amendments, or require governments to advance more than a conceivable rationale for anti-gay discrimination. While the Montana and Hawai'i litigation strategies may work in those states, they have been preempted in others, including Michigan, Texas, Florida and Ohio. The Eleventh Circuit has upheld Florida's anti-gay parenting laws, and while an Arkansas court recently struck down the state's 2008 anti-gay parenting initiative, the decision hinged on a question of state constitutional law, one that could be easily reversed on appeal.
Unless and until there is a federal decision upholding the rights of same-sex couples, or subjecting anti-gay discrimination to some form of heightened scrutiny, the battle over LGBT rights will continue at a slow crawl. The cowardice of the Democratic Party is no help either, particularly the Obama administration. The man who once claimed to be a "fierce advocate" of LGBT equality cannot even bring himself to congratulate the Plaintiffs in the Prop 8 litigation without reiterating his belief that gay and lesbian couples should be treated differently from heterosexual couples. The president's hesitation is a sign of larger problems: Much like the decision in the marriage cases in 2008, any court victory that is not followed up with renewed political commitment from the party establishment might prove to be very short lived indeed.