By Julie Oliver-Zhang, Esq.
Is American law ready to be homophobia free? We see the indicators of social mores in the laws of a nation and its popular culture.
The United District Court for the District of Idaho held on May 13, 2014 that the ban on same-sex marriage in Idaho is unconstitutional. As the newest addition to a series of judicial decisions overturning state laws that ban gay marriages, the Idaho ruling began with a vindicated quote from Justice Blackmun, who dissented in Bower v. Hardwick that outlawed sodomy in Texas in 1986:
It is precisely because the issue raised by this case touches the heart of what makes individuals what they are that we should be especially sensitive to the rights of those whose choices upset the majority.
— The Honorable Harry Blackmun
Idaho Federal Magistrate Judge Candy Wagahoff Dale urged:
The Plaintiffs are entitled to extraordinary remedies because of their extraordinary injuries. Idaho’s Marriage Laws withhold from them a profound and personal choice, one that most can take for granted. By doing so, Idaho’s Marriage Laws deny same-sex couples the economic, practical, emotional, and spiritual benefits of marriage, relegating each couple to a stigmatized, second-class status. Plaintiffs suffer these injuries not because they are unqualified to marry, start a family, or grow old together, but because of who they are and whom they love.
Gay rights activists are buzzing as this is the second court decision in the month of May to strike down a state’s constitutional amendment restricting legal marriage to a man and a woman. On May 9, 2014, the Circuit Court Judge of Pulaski County, Arkansas eloquently compared the ban on same-sex marriages to the once-outlawed interracial marriages in the 1960’ and ordered the revocation of the state’s same-sex marriage ban:
The difference between opposite-sex and same-sex families is within the privacy of their homes. . . . It has been over forty years since Mildred Loving was given the right to marry the person of her choice. The hatred and fears have long since vanished and she and her husband lived full lives together; so it will be for the same-sex couples. It is time to let that beacon of freedom shine brighter on all our brothers and sisters. We will be stronger for it.
The opponents call these judges “judicial activists”, a derogatory term in the legal profession to denounce judges who ignore the democratic, legislative process and make laws of their own despite the mandated votes of the majority.
The celebration seemed short-lived in Arkansas, as counties have all stopped issuing marriage license to gay couples after speaking with county attorneys representing the position that the ruling did not address a separate state law that prohibits county clerks from issuing marriage licenses to same-sex couples.
In terms of LGBT immigration, this threw cold water on the same-sex couples in the “bible-belt” vicinity who watched 450 gay couples receive permission to marry in the last week. These same-sex couples who intended to apply for legal green card status through family immigration thought that they too can apply for a valid marriage license in Arkansas and become legally married. Now, much like a repeat of what occurred in Utah earlier this year, where nearly a thousand marriage licenses were granted before county clerks were barred from continuing to do so, the legal status of gay marriages in Arkansas is in limbo.
However, as United States Attorney General Eric Holder had announced earlier in the year, the federal government firmly supports the equal rights of LGBT families. It is most likely that Attorney General Holder will direct the Department of Homeland Security and the USCIS to recognize those same-sex couples who were validly married in Arkansas and issue immigration benefits accordingly.
Also in the news is Michael Sam, the first openly gay player drafted to the NFL, who kissed his boyfriend on national TV. The NFL is arguably the most machismo institution in American sports; drafting an openly gay player is progress that cannot be understated. Even so, following the broadcast, former Super Bowl champion Derrick Ward tweeted: “Man U got little kids lookin at the draft. I can’t believe ESPN even allowed that to happen.” These are some signs of our popular culture that highlight the rejection of the LGBT community, currently embodied in the unequal state marriage laws.
What does the same-sex marriage rulings in Arkansas and Idaho have in common with Michael Sam’s kiss? The judges’ persuasions in law and those who believe the televised kiss is a step in the right direction in our popular culture are appealing to the sensibilities of the American public to stop averting our gazes from gay and lesbian relationships, and to give their love equal validation and standing. The conservative backlash in law and popular culture from the vestiges of discrimination is resound, though it certainly will find reconciliation with time as with any outdated prejudices. The judges are not simply attempting to deal with hard letters of the law, but speaking directly to the heart of the American public’s way of thinking about gays and lesbians as simply people, rather than a class of persons who somehow deserve to be bullied and shamed by the community. We will know that we have achieved equality and become a more humane society when Michael Sam’s kiss is no more than a sweet moment of celebration with family, and the Supreme Court holds consistently with Windsor in revoking the state bans against same-sex marriages as unconstitutional.
Eighteen jurisdictions, including 17 states and the District of Columbia have currently legalized same-sex marriage: Six states have legalized same-sex marriage through court decisions (California, Connecticut, Iowa, Massachusetts, New Jersey, and New Mexico); eight through legislation (Delaware, Hawaii, Illinois, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and the District of Columbia); and three have legalized same-sex marriage by popular vote (Maine, Maryland, and Washington).
Nine states with court decisions revoking same-sex marriage bans based on unconstitutionality are pending review of the United States Supreme Court, including: Utah, Virginia, Texas, Oklahoma, Kentucky, Arkansas, Idaho, Michigan, and Ohio.
This brings a total of 27 jurisdictions that have shown legal support for same-sex marriage, over half of the United States.