Achieving LGBT Equality Through Litigation, Legislation, Policy, and Public Education

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Overview

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. After Proposition 8 was passed, two same-sex couples challenged the law in Hollingsworth v. Perry. The result of the U.S. Supreme Court ruling in Perry on June 26, 2013 is that Proposition 8 is unconstitutional and must be struck down, and that same-sex couples will once again be able to marry in California. Marriages will most likely begin in California about 25 days after the ruling.

Our nation has undergone a seachange in public attitudes and opinion, and we have won a series of transformative victories. But, 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 Defense of Marriage Act (DOMA) and the Respect for Marriage Act

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 Section 3 of DOMA, the federal government denied married same-sex couples the rights and benefits provided to married heterosexual couples. In Section 2, 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 June 26, 2013, in U.S. v. Windsor, the U.S. Supreme Court struck down Section 3 of DOMA as unconstitutional, ruling that it violates the guarantees of equal protection and due process under the Constitution and its only purpose was “to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.” The decision will be final in 25 days, but, federal agencies—large bureaucracies—may need and take some time to change forms, implement procedures, train personnel, and efficiently incorporate same-sex couples into the spousal-based system. For more information about what federal benefits you may be entitled to if you are married, see these factsheets from LGBT organizations. However, until same-sex couples can marry in every state in the nation, there will be uncertainty about the extent to which same-sex spouses in states will receive federal marital-based protections nationwide. For federal programs that assess marital status based on the law of a state that does not respect marriages of same-sex couples, those state laws will likely pose obstacles for legally married couples and surviving spouses in accessing federal protections and responsibilities.

In re Marriage Cases | linchpin case for marriage equality

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.

read more about the case

Hollingsworth v. Perry

On May 22, 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. California’s Governor and Attorney General agreed with the plaintiffs that Proposition 8 was unconstitutional. Judge Vaughn Walker permitted Proposition 8’s supporters to intervene as defendants, and also permitted the City and County of San Francisco to intervene as a plaintiff to represent their unique governmental interest in marriage equality. NCLR, the ACLU, and Lambda Legal filed an amicus (friend of the court) brief with the District Court, supporting the argument that Proposition 8 violates the federal Constitution.

After a three-week trial that took place in January, 2010, Judge Vaughn Walker ruled on August 4, 2010, that Proposition 8 violates the United States Constitution’s guarantees of due process and equal protection of the laws. He also denied Imperial County’s attempt to intervene in the case.

read more about the case

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