“No one should be denied the opportunity to choose his or her spouse. It is a basic human right and deeply personal decision. Throughout history, we have only moved forward when society has distinguished between traditional values and valueless traditions. The Defense of Marriage Act (DOMA) is a valueless tradition that undermines the spirit of love and commitment that couples share and sends the wrong message to society. It is time for its repeal.” Representative Polis, co-sponsor of the Respect for Marriage Act
The freedom to choose whether and whom to marry is a fundamental human right. Being excluded from this right deprives same-sex couples of critical legal protections. It also demeans and stigmatizes same-sex relationships and encourages anti-LGBT discrimination, and prevents LGBT people from being treated as equal, respected, and participating members of society. Throughout history, governments have denied the right to marry in order to dehumanize particular groups. Today, the same is true of laws that exclude LGBT people from marriage. While not everyone in our community wishes to marry, everyone deserves the freedom to make this choice. As a community, LGBT people deserve to be treated with equal dignity and respect and to have equal protection of the laws.
NCLR successfully represented same-sex couples in California’s marriage case, in which the California Supreme Court held that same-sex couples have a fundamental right to marry and that sexual orientation is a suspect classification under the California equal protection clause, on a par with gender, religion, and race. Despite the heartbreaking setback caused by the passage of the discriminatory Proposition 8, the California marriage case has had a profound and lasting impact on the future of marriage equality. The implications of this historic victory have already been felt in every corner of the nation.
Our nation has undergone a seachange in public attitudes and opinion, and we have won a series of transformative victories. But as recent elections have taught us, our work is far from over.
NCLR is committed to the goal of full equality for same-sex couples and their children, the right to marry, as well as protections for unmarried couples, single persons, and all children regardless of the marital status of their parents. As the past few years have dramatically illustrated, the battle to win marriage equality will have a lasting impact on the pace and progress of all LGBT civil and human rights in this country—for generations. By demanding fairness and equality for our families, we have changed the terms of the debate and made unprecedented strides. NCLR is at the forefront of this historic fight.
The so-called “Defense of Marriage Act” (DOMA) was enacted in 1996 amid a wave of anti-gay sentiment and discriminates against same-sex couples by purporting to bar any federal recognition of same-sex couples or individuals who are validly married under state law. Under DOMA, the federal government denies married same-sex couples the rights and benefits provided to married heterosexual couples. DOMA also purports to provide states with the authority to refuse to give full faith and credit to the marriages of same-sex couples from other states.
On September 15, 2009, the Respect for Marriage Act was introduced in the House by Congressman Jerrold Nadler (D-NY), Chair of the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties, Congresswoman Tammy Baldwin (D-WI), and Congressman Jared Polis (D-CO). The bill had 87 co-sponsors.
The bill would repeal both sections 2 and 3 of DOMA. Section 2 creates an exception to the full faith and credit clause for married same-sex couples. The Respect for Marriage Act would eliminate that provision, but it would leave each state free to decide whether to recognize marriages of same-sex couples from other states. Section 3 excludes same-sex spouses from all federal benefits and protections, including Social Security survivor benefits, the right to file joint taxes, and the right to petition for permanent residence for a foreign spouse. The Respect for Marriage Act would require that the federal government treat all married couples equally.
NCLR was lead counsel on behalf of same-sex couples, Equality California, and Our Family Coalition in the California marriage case, which sought to end the exclusion of same-sex couples from marriage in California. In April 2005, San Francisco Superior Court Judge Richard A. Kramer ruled in favor of the couples, holding that California's exclusion of same-sex couples from marriage discriminates on the basis of sex and violates the fundamental right to marry. In November, 2006, the California Court of Appeal overturned Judge Kramer's ruling in a 2-1 decision, saying that California may continue to bar same-sex couples from marriage.
On March 4, 2008, the California Supreme Court heard oral argument. NCLR Legal Director Shannon Minter argued the case before the California Supreme Court, along with Therese Stewart from the San Francisco City Attorney’s office. On May 15, the court issued its historic decision in In re Marriage Cases. Same-sex couples began marrying on June 16, 2008. More than 18,000 couples married before California voters enacted Proposition 8, which amended the California Constitution to bar same-sex couples from marriage. In 2009, the California Supreme Court held that those marriages continue to be valid and entitled to full recognition and respect.
NCLR's co-counsel in the case were Heller Ehrman White & McAuliffe LLP; Lambda Legal; the ACLU; and the Law Office of David C. Codell.
In late May 2009, two same-sex couples filed suit in the U.S. District Court for the Northern District of California, challenging California’s Proposition 8, which amended the California Constitution to prohibit marriage by same-sex couples. The lawsuit argues that Proposition 8 violates the United States Constitution’s guarantees of due process and equal protection of the laws. The couples are represented by Theodore Olson (former Solicitor General of the United States) of Gibson, Dunn & Crutcher LLP and David Boies of Boies, Schiller & Flexner LLP. The City and County of San Francisco, led by City Attorney Dennis Herrera and Chief Deputy City Attorney Therese Stewart, are assisting the plaintiffs’ team as co-counsel.
The NCLR, the ACLU, and Lambda Legal filed a friend-of-the-court brief in the case on June 26, 2009 supporting the plaintiffs' argument that Proposition 8 violates the federal Constitution. The organizations also assisted the plaintiffs’ attorneys in preparing for the trial.
NCLR is a member of a diverse coalition of allies working to protect marriage equality for same-sex couples in Maryland. Led by Equality Maryland, coalition members, including NCLR, Maryland Women’s Law Center, Maryland Black Family Alliance, Maryland ACLU, and Lamba Legal, that testified before the Maryland House Judiciary Committee to defeat the discriminatory bill known as The Same Sex Marriages - Foreign Jurisdictions - Invalidity Act (HB 90). HB 90 proposed to invalidate marriages between same-sex couples entered into in another state or country, and declared that "marriages between individuals of the same sex are against the public policy of the State."
Despite having made legal commitments valid in other jurisdictions, same-sex couples and their children would have been excluded from vital protections under HB 90. NCLR’s Managing Attorney and Projects Director, Liz Seaton, testified before the House Judiciary Committee on HB 90’s blatantly discriminatory intent and its potential harm of HB 90 to Maryland families.
On February 3rd, the Maryland House Judiciary Committee soundly defeated HB 90 by a vote of 12-8. On February 24th, Attorney General Douglas Gansler issued an opinion that the marriages of same-sex couples validly entered into in other jurisdictions may be recognized by the state. The decision predicts that the Maryland high court likely would “recognize a same-sex marriage contracted validly in another jurisdiction.”