The Mary Renault Society

The Triangle Area of North Carolina

The Movement toward Marriage Equality

On February 22 of 2015, 18 attendees were there for Charlie to introduce Ms Lydia Lavelle, Mayor of Carrboro, and her wife Alicia Stemper. Ms Lavelle has an MA in Parks/Recreation from NC State and a law degree from NC Central, where she now serves as a professor. She has served on numerous boards and committees and was elected to the Carrboro Board of Aldermen in 2007. In 2013, she was elected mayor.

Ms Lavelle’s topic was the state of marriage equality in the US. She promised to summarize the history of marriage equality to date, which this spring will all culminate in a Supreme Court decision.

Before 1996, the federal government had no interest in a person’s status – in this case in defining marriage – leaving decisions of this sort up to the states. A marriage in any state was recognized by the federal government (one result of this is that, until 1967, interracial marriages were legally banned by some states).

Understanding developments in this area requires a knowledge of the federal court system. The judicial structure of the federal United States government has three levels, district courts, regional courts of appeal, and the Supreme Court.

US Courts of Appeals and District Courts

The 94 US District Courts, at least one in each state, hear almost all categories of federal cases. Appeals from these courts are grouped into 12 regional Circuit Courts of Appeals (the twelfth, not on the map above, is for the District of Columbia), and important matters dealing with the Constitution or federal law may be appealed to the Supreme Court. The Supreme Court has been obliged to rule on same-sex marriage because, though the 4th, 7th, 9th, and 10th Circuit Courts had previously ruled in favor of same-sex marriages, in November of 2014 the 6th Circuit Court upheld state marriage bans in two cases in that circuit. A decision is expected in June.

Although this issue has snowballed with geometric swiftness, it is not one that has risen in just the astonishing past few years; it is a result of a steady progression – the battle has actually been raging for 45 years

In May of 1970, two University of Minnesota students, Richard Baker and Michael McConnell applied in Hennepin County District Court for a marriage license, and the court clerk denied the application because both applicants were men. When Baker-McConnell went before the Supreme Court in 1971, it dismissed the case “for want of a substantial federal question.” [On September 3, 1971, the two men were married with a license from the Minnesota District Court, the first legal same-sex marriage in the country, and the two are still married. For most of their lives together, the marriage has not been recognized; but it was never revoked.] Until 1973, no state had restrictions on gender in any marriage statue. This changed in 1973, when Maryland became the first state to ban same-sex marriage in state law; and by 1994, many states had followed suit.

In December of 1990, 3 gay couples applied for marriage licenses in Hawaii. In 1993 the Supreme Court of Hawaii ruled in Bauer vs. Lewin that the Hawaiian state law limiting marriage to opposite genders was presumably unconstitutional unless the state could present a “compelling state interest” that justified such a ban.

Nevertheless, the Hawaii legislature proposed a constitutional amendment to limit marriage to a man and a woman, and on November 3, 1998, both Hawaii and Alaska became the first states to pass constitutional amendments prohibiting same-sex marriage. This triggered an onslaught of similar state amendments (and refusals to recognize same-sex marriages in other states), leading to a peak of 31 in 2012.

Meanwhile, the issue gradually seeped into public consciousness. Up until 1996 the US military held that evidence of homosexuality was grounds for a dishonorable discharge. On September 21, President Clinton signed the Defense of Marriage Act, which banned the federal government from recognizing same-sex unions and specified that no state was obliged to recognize marriage from another state. The Act, however, changed military policy to the famed “Don’t ask, don’t tell” requirement; the military violated this policy in numerous cases, but it tended to lose the resulting court challenges.

In 1999, California passed a domestic partnerships bill providing limited rights for same-sex couples. More importantly, The Vermont Supreme Court ruled that excluding same-sex couples violated the state constitution, and it directed the legislature either to establish same-sex marriages or create an equivalent status. In April of 2000 this resulted in a civil unions bill that gave full marriage rights to same-sex couples in Vermont. In 2003 the Massachusetts Supreme Court followed suit, though with a requirement that, if the legislature failed to do so within 180 days, same-sex couples would be able to marry; it didn’t, and they did.

There followed a push for states to amend their constitutions to ban gay marriage. Every one of these proposals passed (11 states). Some prohibited anything even resembling marriage (i.e., civil unions).

Nevertheless, in 2004 both New Jersey and Maine passed registered partnerships bills. In 2005 the Connecticut legislature passed a civil unions bill. In 2007 Washington, Oregon, and New Hampshire passed domestic partnership/civil union bills. In 2008 Maryland passed similar statutes.

Meanwhile, on May 15 of 2008 the California Supreme Court declared same-sex marriage legal. Delighted couples applied for licenses and ceremonies were held… but then the infamous Proposition 8 referendum for a ban on same-sex marriages was placed on the ballot in California, and on November 4, 52.2% of voters approved it. As we know, this was a temporary setback; the Supreme Court eventually ruled against it in 2013. The California Supreme Court upheld Prop 8 in May (but ruled that previous marriages would remain legal).

But undaunted, in 2008 the Supreme Court of Connecticut legalized such marriages, and in 2009 the Supreme Court of Iowa declared them legal. Vermont, Maine, New Hampshire, and even Washington DC passed same-sex marriage bills. Washington, Wisconsin, and Nevada passed registered partnerships. In 2011 Illinois, Hawaii, Delaware, and Rhode Island did the same.

In June of 2011, New York approved same-sex marriage, doubling the number of people eligible for it, and on August 1 the Suquamish tribe of Washington state legalized it (adding relatively few). In 2012 Washington and Maryland passed laws legalizing it, and on Election Day, voters in Washington, Maryland, and Maine approved these laws in referenda. Rhode Island, Delaware, Minnesota, New Jersey, Hawaii, and Illinois joined the group by June of 2013 – as NC joined those on the wrong side of history with its Amendment 1. The progression of courts finding bans on same-sex marriage illegal has proceeded since then almost uninterrupted.

At this point if you were married but moved to another state, your marriage often wasn’t recognized. This, too, has been changing. In May of 2008 the governor of NY signed an executive order requiring state agencies to recognize same-sex marriages performed elsewhere, even though NY at the time did not even allow same sex marriages. Recognition of out-of-state licenses could be a long drawn out struggle if the Supreme Court does not settle the issue.

Meanwhile, in July of 2007, Edith Windsor and Thea Spyer, her partner of 40 years living in New York, were married in Canada. Thea died in 2009 at the age of 78. She left her entire estate to Edith, and Edith tried to claim the federal estate tax exemption for surviving spouses; the state barred this under Section 3 of the Defense of Marriage Act, which limited the term ‘spouse’ to opposite sex marriages… and declared $363,000 in taxes.

Edith appealed in United States v. Windsor, and on June 26, 2013, the Supreme Court declared Section 3 of DOMA unconstitutional. As a result, although the part of DOMA rejected did not involve state recognition of marriage equality or 1,000-plus federal benefits such as tax benefits, prison visitation, immigration, veterans, social security and survivor benefits, etc.; nevertheless the government declared that federal rights, privileges, and tax benefits must be extended to married same-sex couples (the implementation of this has been patchy).

On the same day, the Court also ruled that those appealing California’s Proposition 8 lacked the standing to appeal the federal court ruling against them when the state had refused to defend it, and same-sex marriage was able to resume in California.

Most decisions in same-sex marriage cases came through federal courts. All the same-sex marriage cases in federal district court were appealed to circuit courts of appeals and then to the Supreme Court; as long as appeals courts decisions agreed, the Court declined to intervene. The 10th Circuit Court was the first to issue a ruling declaring same-sex marriage bans unconstitutional; the 4th district (NC, SC, VA, W VA, and MD), 7th, and 9th followed suit. On October 6, 2014, the US Supreme Court let stand appeals court decisions striking down same-sex marriage bans in Utah, Oklahoma, Indiana, Wisconsin, and Virginia, and this created binding legal precedent that nullified bans in the other states also in the 4th, 7th, and 10th Circuits, making same-sex marriage legal in those states.

At one point, cases filed in NC were being held until the Supreme Court ruled. When it failed to overturn lower court rulings, last October, a federal district court in two separate cases struck down state laws restricting marriage to be between one man and one woman, prohibiting state officials from implementing statutes that prevent same-sex marriages. On October 10 at 5:32 p.m., gay marriage became legal in NC.

Eventually though, in November of 2014 the 6th Circuit Court panel of judges reversed six different rulings under them and found same-sex bans constitutional; this split in circuit court decisions forced the Supreme Court to hear the case.

The particular case dealt with recognition of out-of-state marriages, in this case the desire of one partner, James Obergefell, to be legally recognized as the spouse of the other, John Arthur – who was terminally ill with Lou Gehrig’s disease and not expected to survive much longer – so that there would be no problem being recognized as the surviving spouse on the death certificate. Ohio’s Attorney General announced that he would defend the state’s same-sex marriage ban.

Three months after their marriage in Maryland, John Arthur died. After a legal battle, James was listed as spouse on the death certificate… but the federal appeals court overturned the decision. James appealed the decision to the 6th Circuit Court, where the court combined his case with another in which four couples were suing to have both sets of parents married elsewhere listed on their children’s birth certificates. On November 6, 2014, the 6th Circuit Court, in a 2-1 decision (most circuit cases have three judge panels), dismissed Obergefell v. Hodges, citing the 1972 Supreme Court Baker v. Nelson case (see above), “for want of a substantial federal question.”

The current situation:

As of March 2015, same-sex marriage has been recognized and ruled legal in 36 states, the District of Columbia, and 22 native American tribal jurisdictions. (However, on the order of its Supreme Court, Alabama counties have stopped issuing same-sex marriage licenses.)

There are more states behind this issue now than there were on the abortion issue when the Court decided it. The breakdown in early spring for same-sex marriage bans (only the case before the highest court is coded) is:

Marriage Bans Spring 2015

  • Deep blue: Same-sex marriage legal (though litigation to reinstate a ban continues in several states.)
  • Lighter blue: Ruling in place against a SSM ban or against recognition of a SSM ban, stayed pending appeal
  • Red: Current litigation in US Supreme Court
  • Orange: Current litigation in circuit court
  • Yellow: Current litigation in federal district court

We have accumulated a lot of case law in 45 years, but there’s an obvious truth that it is not judges or lawyers who should decide social issues but rather the nation’s people. The court of public opinion has swung rapidly against discrimination against gays, and we are at a point where the only alternative to accepting gay marriage would be to permit a conflicting patchwork of state laws. Some states might provide marriage immediately; others would take considerable time. At present there is a conflict between states’ rights and the recognition of those rights by other states.

Ms Lavelle guessed there was a 90% chance of another 5-4 decision, this one in favor of same-sex marriage (a decision telegraphed by the Court’s February refusal to stay gay marriage in Alabama, where the Chief Justice then refused to follow the law, with 68 counties still not marrying people). Justice Kennedy – who appears to be the swing vote – has expressed real distress that gay people get so much discrimination. If the Court decided not to recognize gay marriage, there would be a legal mess, a legal patchwork. We shall shortly see.

Other comments at the end of the presentation:

Jimmy & Everett, two 20-year-olds at the gathering, were asked for the view of their generation. They found all the hoopla hard to believe. Gay marriage is not an issue, much less an outrage, for the current generation. The generation in general is surprised about the controversy of Stonewall, AIDS, and Anita Bryant. Millennials live in a present, fast-changing world – largely without history.

A range of state legislatures are now indulging in “religious freedom” acts (guarantees of more litigation). This spring in NC, Senate Bill 2 would permit magistrates and registers of deeds to decline to perform marriages and/or issue marriage licenses “based upon any sincerely held religious objection.” Couples could endlessly be turned away when a judicial official following the law is not available – affecting interfaith, mixed race, or couples in which one member had previously been divorced. Even more costly litigation will follow (along with the $100,000 of taxpayer money already spent by NC GOP leaders on private counsel to defend Amendment 1 when the state’s Attorney General refused on legal grounds to devote any more effort and money to the issue). Still there is that political element that spurs voting by pandering to homophobic voters, so we can expect a lot more of it before common sense prevails.

Lydia Lavelle

Our presenter, Ms Lydia Lavelle, was born in Athens, Ohio, and has a bachelor’s degree from St. Andrews University and a master’s degree in parks and recreation administration from North Carolina State University. After working for the Durham Parks and Recreation Department for several years, Lydia earned her law degree from North Carolina Central University in Durham, where she currently works as an assistant law professor. Courses she has taught include State and Local Governmental Law and Sexual Identity and the Law.

After moving to Carrboro in 2004, Lydia served on the town’s Planning Board, and then ran for and was elected to the Carrboro Board of Aldermen in 2007. A transportation advocate and former chair of the Durham-Chapel Hill-Carrboro TAC-MPO, in November of 2013 Lavelle was elected as Mayor of Carrboro, the only “Silver Level Bicycle Friendly” community in North Carolina. She has served on numerous boards and committees, and is currently a member of the Metropolitan Mayors Coalition, the Orange County Solid Waste Advisory Group, and the PORCH (People Offering Relief for Chapel Hill Carrboro Homes) Advisory Board. She is honored to serve as mayor of Carrboro, and believes the town is one of the most progressive and forward thinking communities in North Carolina.


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