Get Used to It: Ep. 169, "No Defense for the Defense of Marriage Act"

(typewriter typing) (typewriter typing) (funky music plays) (funky music plays) - Hi, welcome to get used to it. I'm Sheila Kuehl and as always, I will be your guide through this hour of incredibly interesting information, talk and, uh, who knows what. I have three wonderful guests today whom I'd like to introduce you too, no wait. To whom I'd like to introduce you. Grammar is always important as well. Um, Jenny Pizer, who is the Marriage Project director at Lambda Legal. Jenny, welcome back. - Great to be with you. - Always glad to have you on the show. A new guest today, Peter Renn, who is a staff attorney at Lambda Legal. Peter, welcome. - Thanks for having me. - And one of our long standing, uh, friends, Sky Johnson, who is senior policy counsel at the Los Angeles Gay and Lesbian center. Welcome Sky. - Thank you, always good to be here, Sheila. - [Sheila] So uh, today we're going to talk about the, so called, Defense of Marriage Act. There's been a lot going on, just recently, about this act. So let's start with you, Jenny. Um, just for the viewers, tell us a little about the Defense of Marriage Act and, um, especially what happened recently with the United States Attorney General and the President. - Well, the Defense of Marriage Act, many people will remember, was passed back in 1996, so only 15 years ago, by both houses of Congress, President Clinton signed it. This was in the time when folks thought that same sex couples might start marrying in Hawai'i any minute. Members of Congress thought that was such a scary idea they passed this, essentially preemptive law, which has two parts. One part, uh, attempts to say, we don't know that it could be legally effective, but that states would not need to respect marriages that same sex couples might celebrate somewhere else, in another state or another country. That's section two of this law. Section three is the law that's been in the headlines a lot recently, um, and it says that for purposes of federal law, for benefits or protections, taxes, immigration, social security, all these things in federal law, marriage only means a heterosexual marriage and a spouse can only be a person of the opposite sex. And so, basically, um, couples who are, and now there are estimated to be 50 and 80,000 same sex couples. - [Sheila] In the United States? - In the United States, legally married under state law, are considered by the federal government basically not to be married. It's not a marriage that counts for federal, um, uh, purposes. That's section three of DOMA. So the very exciting, important news that came out last month, actually on February 23rd, was an announcement by, um, US Attorney General Eric Holder, that the Obama administration has determined, for a process, actually, going on quite a long time internally, that the, uh, administration is no longer going to defend that statute. It's determined that law is unconstitutional, section three I should say, is unconstitutional. And so in the roughly nine cases that are going on now in the federal courts, challenging section three of DOMA, cases brought by same sex couples, or sometimes a surviving widow or widower who's deceased spouse was of the same sex, in all these cases the government is going to no longer defend that statute. Um, huge news. And lots of questions arise that we can discuss. But, um, the second part of this news that has implications that go beyond these cases and this statute, is the legal analysis that the government has done. - [Sheila] Well, let's back up and talk about that. Because, there had to be a reason, I mean, one day you're defending this law in court as the United States government, and you're supposed to, that's a part of what the Attorney General does, is someone sues the United States because of one of their laws, the Attorney General's supposed to go into court and say I'm defending that law. It's kind of the same in California, although our Attorney General then, Jerry Brown, decided he wasn't going to defend Prop 8, so it's not unprecedented. But what, what do you think led to the United States Attorney General's, seemingly sudden, but as you said not so, decision, that, you know what, this really isn't constitutional and I don't think we should defend it. - Yeah, well. There had been conversations going on within the administration and with LGBT advocates and the administration, really from fairly early days of the Obama administration. Some folks may recall that back in the spring of 2009, there was a, um, a great outcry, great distress, because in one of the cases challenging DOMA, the administration had filled a brief making arguments that actually were very similar, defending DOMA, to what we had seen under the Bush administration. And, um, seemed to us, um, in conflict with the kinds of things that Senator Obama said when he was campaigning. So, that prompted public meetings, quite meetings, internal discussions that led to this change of position. And, um, what it, what it gets to is, and this seems a little technical, but its actually very important, the way, um, the courts do equal protection analysis. So equal protection is the federal constitutional guarantee that everybody should be treated the same. But that doesn't actually mean that everybody should be treated literally the same way, there are many laws to run our society and lots of circumstances where people have to do different things, not everybody pays exactly the same dollar amount in taxes, for example. - [Sheila] Right. - And so this is a, there's a type of analysis that determines what type of laws should, should courts presume are probably sound. And in what kind of situation should the courts take a closer look? Um, this is, this is called a type of, type of review, a type of scrutiny. Um, the idea is that most of the time the legislator, The Congress, is supposed to make laws and we assume they go about it a reasonable way, sometimes it's a little messy, sometimes it's a little unpredictable, but that's their job. And, we assume, that the representatives and the senators respond to the voters and that's, it's an open, messy, legitimate system. But sometimes, groups get beaten up in that process. Predictably, historically, unfairly. And it's the job of the courts to look more closely. So that's, that's a type of equal protection analysis that, um, that says if a group, um, is, is sort of, the word is, sort of, insular. It's a group that we recognize to be a group separate from the law. I mean, if there's a tax law that says, you know, I pay less tax, you pay more, we might be in two groups because of that law. But, a law that treats people differently because of their race, their sex or their religion, that's targeting a group that exists separately from the law. And so the analysis that was done is that, laws that target gay people because they're gay, because of their sexual orientation, that's the kind of law, um, as to which, courts have to take a closer look. - But that's sort of a sudden thing then, isn't it? I mean, if on the one hand, they're filing a defense of the Defense of Marriage Act, um, in 2009, say they must think it's okay to have this distinction, and then, suddenly, they're doing their own analysis about what's constitutional, so that leads to sort of two questions. One is, I thought the courts were the people who said was constitutional, how can the United States Attorney General say, well, I've decided this is unconstitutional and therefore I'm not going to defend it. - Well, so, the, uh, the Executive Branch, the Obama administration, has responsibility under the Constitution, the oath that they take, to fairly execute the laws, to carry out the laws. And one of those duties is to defend laws. So the Justice Department, as you said, defends laws. But they do take an oath to uphold the Constitution and there are some circumstance where they come to a conclusion that a law just dose not deserve a defense. There just isn't a defense that could be made within their professional ethics and within their constitutional duty. Now, it doesn't happen often, and the letter announcing this change of position and giving the reasoning for it, said this is, they've determined that this is one of those 'rare cases' where that's what they should do. But it's not unheard of, you know. In fact, the first of these cases we found, I think it was to the Woodrow Wilson administration, and it happened under Truman, it happened under Carter, it happened under Reagan a number of times, the first President Bush and under Clinton, so not often, but it does happen regularly. So there's nothing inappropriate. In fact it can be quite appropriate. - Well that leads me to the second question, which is, I don't think they thought it up out of their heads, sort of alone. I mean one of the interesting things that's been going on, is in state courts, mostly, which do not interpret the federal constitution, they don't have a last word on it, um, they've been saying well under our state constitution, uh, it's unconstitutional to discriminate on the basis of sexual orientation. And then in the Prop 8 case, where it was brought in a federal court, we had a federal court, now it's on appeal, the appeal hasn't been heard yet, but we have a federal court saying you know what, it's unconstitutional to discriminate on the basis of sexual orientation. So in a way, the Attorney General, the United States Attorney General wasn't sort of making this up out of his head. He might have been looking at what the courts have been doing over the past decade, really. And do you think that influenced him? - It actually goes back earlier than the last decade, because there were trial level courts in the 90's, that did the analysis and concluded that sexual orientation discrimination should receive this kind of, more skeptical, rigorous review. Those decisions then were reversed by higher courts, but the discussion has been going on, actually for quite a while. It's been well accepted among lots of constitutional scholars for quite a while, and then more recently, as you mentioned, the California Supreme Court and the marriage litigation determined that California's constitution, that that's appropriate. That, it had been found in some other courts too. I mean, in Oregon court of appeal was the first, actually, of the state courts to do it. Um, what the, um, what Attorney General explained was that in all of those other case that had been percolating, there was court, federal court of appeal precedent, saying that the kind of review that's appropriate is the more differential type. And that they were pushed, now, to grapple with this issue, sort of taking it from square one. Because there has been a case filed in New York which is going to go to the Second Circuit Court of Appeal, and there was no precedent in the second circuit. So they, they had to sort of, they weren't bound by, so they had to do the test. Now, a couple of key things that happened that we all should feel very proud of, because the analysis that they've done, um, the outcome really was determined by some the cases that the LGBT community, sort of brought and litigated that led to very important US Supreme Court precedents. One was the Romer case out of Colorado about anti-gay initiatives. One was the Lawrence v. Texas case, that came out of Texas, naturally, that got rid of the remaining sodomy laws. Lambda Legal was very proud of our work doing that case. Um, and that got rid of the excuse that many of the courts, federal courts of appeals had used, basically saying, well if states are allowed to criminalize the conduct that really defines who you are, it would be inconsistent to say that laws that discriminate against you in other settings should be viewed with suspicion. Um, now these are two different doctrines, I actually think it doesn't necessarily follow, but the reasoning, but it's not completely illogical either. - Well let me, let me talk about some of the possible fallout, because Peter, we were talking about, um, something that Jenny mentioned, which was, the Defense of Marriage Act has essentially said that for purposes of federal laws, that kind of affect married people, that either treat them differently better or differently, sometimes, worse, whatever, that doesn't apply to same sex marriages even though it applies to ever body else's marriages under federal law, and one of the conversations that we were having was, because some friends of mine were quite confused recently, because they got a letter from the IRS saying, what they thought was, well you have to file as married people. Um, and they said well that doesn't make sense, we are married, but we thought the federal government didn't recognize it. So, can you give us a little insight into what's going on there? - Sure. So, unfortunately because the Defense of Marriage Act, same sex couples still can't use the same filing status that different sex married couples can use. So that part of the equation still hasn't changed, despite the great announcement we heard from the Obama administration and Department of Justice. - So nothing's really changed yet about whether DOMA still applies to all these federal laws, it still applies. - DOMA definitely still applies. But there have been very important tax developments that happened last year that will affect how many same sex couples file their income tax returns. And specifically how much income the federal government is going to tax them on. So, approximately in May of last year, the IRS reversed a position that was previously adopted under the Bush administration that refused to recognize the community property right of same sex couples in community property states. And, so there are, I'll try to unpack a little bit. There are of course 10 states in the United States that have community property regimes. So what that means is that, for example, if you are a different sex married couple, then, um, whatever income you make after you get married, even though you jointly own it, and you can both use it, once the community is dissolved, once you get divorced, somebody dies, it gets split 50/50. So for every dollar that you make, you only actually get to keep 50 cents out of that dollar. And so that's the way it's long worked for, uh, different sex married couples. So the state will tax you according to that ownership interest. And the federal government has done the exact same thing. That's been the case for many many years. However, its not been the case for same sex couples. So ever since a couple of states that are community property states started recognizing that same sex couples can also acquire community property rights, the federal government didn't respect that. So, in California, for example, after the passage of the Comprehensive Domestic Partnership Law in 2005, couples began accruing community property rights, so sort of that situation where it's 50/50. - [Sheila] Even as domestic partners, don't have to be married? - [Peter] That's exactly right. - In California, and I think there may be some other places that I don't know, but, so when you, when earn money and you're registered as a domestic partnership or you're married, then it's a 50% of that actually belongs to your partner or your spouse. - That's exactly right. And unfortunately, the federal government wasn't recognizing that. The IRS said whatever you make is what you make, whatever your partner makes is what your partner makes. We're not going to take into account the fact that the state actually treats the ownership interest differently. And so, fortunately the IRS revised its position and said that we are going to start applying this rule equally to both different sex married couples and also same sex couples and these couples might be registered domestic partners, and we have registered domestic partners in California, Washington, Nevada. Where it can also even affect same sex spouses. So it's sort of the intersection of the DOMA issues that Jenny was talking about. And the IRS said look, if the State of California is willing to treat same sex spouses as accruing community property rights, the federal government is going to do the exact same thing. - So what does that mean, um, it's sort of like, is this good for us, or not so good for us? Uh, so let's say, let's say I'm married in California to, um, to a woman. And this woman earns $100,000 and I earn $20,000. The government is going to treat it as though I owns 50% of that 100,000 and she owns 50% of my 20, right? So we're each seen as earning the same amount. And now the federal government is going to tax us the same way, sort of half and half. Which seems to me like it might save you some tax money, because it's a lower amount, well lower amount or one, higher for the other. - Right, but net still, you'll probably still save money in that example. And that's a great example. - So that's what the letter meant that they got from the IRS. It didn't mean that we'd won on DOMA, or they're treating us like married couples, or anything like that, it really is about community property? - That's right. And it really is a good thing, I think, for one, the reason that you mentioned, which is that it will save a lot of couples several thousand dollars potentially. And particularly so, because the IRS is letting, uh, couples amend their prior year tax returns to take advantage of this income splitting. - Just one year, though, right? You mean 2009? - It actually depends on what state you live in. So if you're in California, the federal government will let you amend all the way back to 2007. If you are in the state of Washington, since the domestic partnership regime sort of extended community property right in 2008, you can go back to 2008. And in Nevada, since they got domestic partnerships in 2009, you can amend your 2009 returns as well. So when you add that all up, it can actually lead to several thousand dollars worth of a tax refund. But, regardless of whether or not you actually save money, because some couples may not see any difference, you may still write the same cheque to Uncle Sam that you've been doing the previous year, it's still good for them and it's good for the community, because its a step towards, uh, more equal treatment by the federal government. Now I want to be clear, the federal government is not technically recognizing the relationship or the community, it's essentially following the same rule that it's followed for different sex couples and same sex couples. - Like, if the state allows you to have community property or insists that what you're doing is requiring community property, then they'll treat it that way as well. - That's exactly right. - Without regard to what the sex of your partner or your spouse is. - That's exactly right. But at the end of the day, the tax bill that same sex couples get and different sex couples get, it's going to look a lot more similar. So it's a step forward to equality for the entire community, regardless or not of whether it might benefit someone in particular. - Now in states where they don't have community property, are there any, is there any affect, um, by the federal government on their income as well, because we have people who watch this show in a number of other states. And they probably don't even know if they have community property or what, but generally in the east, in the mid-west, in the south, you have marital property and the rules are slightly different. - So this ruling actually won't affect people in those other states. The ruling affects people in states where two things are present. First it has to be a community property state. And secondly, the state that you live has to recognize your relationship for community property purposes. But, as Jenny mentioned, the Defense of Marriage Act still has tremendous impacts on same sex couples everywhere. And because, for example, there are same sex couples who are married, in, all over the United States, event though their home states might to respect them, and the federal government also doesn't respect them. And we still see a lot of discrimination in, sort of, the tax field, more generally for those couples. - What would some of that discrimination be, in the tax field? And then also, perhaps, you might talk about social security. - Sure. So, I would say, in the tax field, uh, you'll see disparate treatment still, for example, um, when it comes to health insurance. So a lot of employers, I'd say most employers, um, provide health insurance to the partners of a gay and lesbian employees. And, unfortunately, because the federal government doesn't recognize the marriage between those couples, that money that was put forward by your employer to pay for your health insurance, gets taxed. Whereas, where if you were a different sex married couple, you don't have to pay taxes on the insurance that the employer provides to your spouse. And so that is a fairly significant disparity, could be several thousand dollars a year difference between same sex couples and different sex couples who are married. But you're absolutely right. I think there are over a thousand rights and responsibilities that, um, married same sex couples are deprived. One of which is social security. So some of the protections, for example, that is in social security are that when, uh, there are certain situations in which you can step up to your spouse's social security, up to half of their amount, of the higher benefit that they derive. And that's an example of a protection that same sex couples can't access, currently, because of the Defense of Marriage Act. - Well Sky, this has, um, thank you very much Peter. This probably has some political ramifications, I would think. You know, here's Obama, who's kind of, we haven't known exactly since he was sworn in, was he gonna defend the Defense of Marriage Act, was he going to not defend it? Looked like Eric Holder was gonna be a good choice, but we didn't really know kind of, for us, and now suddenly, we see a couple of things happening. Let's start with the executive branch. Do you think there's fall out, good or bad or both, for the President and the, uh, AG? - I think, uh, the fallout will be mostly good. I, uh, I wanna flashback though to 1996, before we talk about what's happening right now, because I think these developments really are thrilling, not only the President's decision, the Attorney General's decision, but the, the federal court ruling last year, has already, at least one federal court judge has said that DOMA is unconstitutional. But it's useful, I think, to flashback to 1996 to recognize how far we've really come. As Jenny pointed out, this bill was passed in 1996, it was authored by a Republican Congressman from Georgia, Bob Barr, in response to, largely, the state court rulings in Hawai'i, which did make it look like that state might soon get marriage to exist. This measure passed overwhelmingly, in both houses of Congress. 342 to 67 in the House, 85 to 14 in the Senate, and liberal stalwarts, like Joe Biden voted yes, Patty Murray voted yes, Bill Bradley voted yes, Paul Wellstone voted yes. Chuck Shumer voted yes. So this was the consensus, liberal, Democratic position on this issue, just 15 years ago. None of those people would support this legislation now, and in fact, five of the people who voted yes are on the bill to repeal it, that Dianne Feinstein recently introduced. Five senators that voted yes in 1996 are now co-sponsoring the bill two weeks ago. - Right, not just a good vote, but co-sponsored. - Exactly, Bob Barr, the author, has apologized for writing the bill, and has said that he thinks it should be repealed. Of course President Clinton, who signed it, now says it should be repealed. So, there has been a sea change in, in public opinion on this issue and Congress is actually the lagging indicator, as opposed to the leading indicator in these changes. - So you think that makes it easier for Attorney General Holder and the President - Oh I think... - To say this politically, I'm not talking about oh well they did the right thing, but in addition? - No, they have to really look, from my point of view, I'm sure from Jenny's they did the right thing, according to law. But clearly, there was some political calculus may have been involved as well. And all of the changes in public opinion, I mean the polls over the years which have shown increasing levels of same gender marriage, same sex marriage so that the political risk is perceived now, I think accurately to be minimal for steps like this. And in fact, the Republican reaction to the President's decision is kind of instructive, because in the past they might have tried to jump on this and make hay out of it as political wedge issue on their side, but in fact, most of the response is not along the lines of oh this is terrible same sex marriage is awful for the country, awful for the world, the end of western civilization, now the response is more like well there are more important things to bring up, why did he bring it up now? That's a pretty limp response compared to... - Don't we have a response in the House, in terms of saying well if the President is not going to defend, if Attorney General Holder is not going to defend, we're going to give that. - [Sky] Sure. - Republicans in the House of Representatives, am I right? - Sure, the Attorney General in his letter, in fact, raised that option, and Republicans... - I'm not gonna do it, but you can. - Yeah you can do it. And the Republicans are following through. But they, from their own political point of view have to follow through, at least on some minimal level, because they do have, as a part of their core base, the social conservatives who really do continue to feel rabidly on this issue. But if you look at how it was done, John Boehner, instead of, they could have done hearings, they could have done floor resolutions, instead he did a Friday afternoon, which is always the time you put something out you don't want people to pay much attention to, a Friday afternoon announcement that they were going to have a committee look at this and appoint. So they kept this as low as possible, uh, on the radar, because it's not an issue that they perceive that benefits them anymore, and again, this is a sea change, because as we know from 2004, this was an issue they were eager to run on and try to throw out as red meat to their constituencies. And try to bring out conservative voters to switch elections. - Still though, it seems like in the 2010 election, there were a lot of conservative Republicans elected. Sufficient to take over the leadership and the majority in the House of Representatives, very close in the Senate. Not clear what's gonna happen next year, especially after redistricting everywhere, so, um, what do you think the chances are, I mean it's just lovely, I'm very proud of Senator Feinstein and all the people who are saying yes they're gonna be authors, but they're sort of in the minority for the most part, not in the Senate yet, hopefully never, from my point of view, very personal. But, I mean, so what? So you put this bill in, but it doesn't look like it's gonna, how would it get through the House? - I don't think that there's any prospect that its gonna pass the House in this session, because as you say, the Republicans are in control. But there's public education aspect of this, certainly with the Senate in Democratic control, there's, uh, opportunities for senate hearings on this issue. So I think it's an important development, even though the near term prospects for its actual passage are, are not very strong. In fact, I think the court cases, and Jenny knows more about this, the court cases probably are a faster track to, uh, to knock out the DOMA constitutional chaos. But this is an issue now, that some Democrats actually want to talk about. This is an issue that, as indicated earlier, they were running from a few years ago. So, and so it's not just a political partisan thing, but it is a public education, it moves the ball forward across the board, in terms of educating people about what's really at stake here, what difference does it make if these folks are married? All these terrible things that have been predicted for years, you know, Massachusets has had marriage now for seven years, Canada, other places around the world. Nothing has changed in any of those states, certainly nothing negative has happened. Uh, and as more and more people come to realize this, and I think the introduction of these bills just adds to that whole public drumbeat, is a very very positive thing. - Well it adds to the public drumbeat, but I guess, uh, you said the, uh, that the Republicans in the House are not making a big deal out of what Attorney General Holder did and the President did, but we start to have hearings, maybe in the Senate at first, seems to me to be always an opportunity for the drumbeat to gin up on the other side as well. I never felt that we should not have hearings about anything just because people were gonna say bad things, you know, about us or about anything that we are for, but, I think that saying that they sort of laid low about it because it's not a big deal for them, I wonder if it still might require them to start being a little more, um, vociferous? - Well I think some, I think some of the pres- I think a couple of Presidential candidates, uh, feel as if they need to. - A Republican Presidential candidate? - A Republican Presidential candidates need to, uh, to gin up their opposition, uh, to same sex marriage in order to some of their constituencies. I think Tim Pall in D.C. seems pretty keen on doing that. He's a relatively unknown figure, he needs to supply his bonafide to the conservative base. So I think we will see some of that. But if you look at uh, I think if you look across the board, I think Republicans can read polls too. In fact, we've seen increasing numbers of Republicans maybe wives of Republican elected officials ahead of officials themselves, coming out in support of marriage equality, doing adds in support of marriage equality. So I mean, as I say, they can read the polls too. They know what their fringe are saying and if you look at younger staffers on the Republican side. So the, the, what they've got left in their arsenal, even if there were hearings that they tried to hear would be, is pretty feeble. It's pretty feeble. I mean, their, their most successful when they can go to a general election and inject a lot of fear about children, which is all that they ever really do, and frighten voters enough so they can hold on to majorities. If they have to go to a court, or if they have to go to a hearing, if they have to bring expert witnesses, they're out of luck. - Seems like the worst enemy they can, they can gin up at the moment is taxes, not gay people. - Well exactly. - And they're like oh my god! They have to pay taxes. But I guess gay people aren't the worst possible thing. - When you mentioned, of course, the conservative victories in 2010, but they were not about social issues at all, it was all about the economy and their representations on how they were gonna fix it and, uh, there's no social conservative mandate anywhere, in the country, based on 2010, so, and I think, again, the sober Republican leadership recognizes that. - So um, Jenny, Sky said, well he thought perhaps, and really this is to open it to everybody, but, what about the cases that are pending? Um, what do you see happening with them? Their case is brought against the federal government about the Defense of Marriage Act, that it's constitutional because it singles out same sex marriages? - That's right. That's right. I mean, there's now roughly about eight or nine such cases. They deal with different things, but they, they some of them do deal with taxes, some of them deal with social security, and survivor benefits. There are some actually dealing with immigration. So there's a range of issues... - [Sheila] Immigration like I came here and I can't bring my spouse of the same sex? - That's right, a US citizen, who's, who's other half is not a US citizen wants to be able to adjust their immigration status, which has been a part of our immigration system for a very long time, but not for same sex spouse. And, and so, you know, your question of sort what brought this about. And I was talking about, you know, there have been conversations for a long time, but among the most important things that's happened is, as Sky was saying, there are now real life married lesbian and gay couples all over the place. And so, both in the cases have put spotlights on real people. So that not just their neighbor and their judge, but also the public can see through the education work and members of Congress and people in the administration have been able to see what this means for real people. Um, and, and as sort of side development that's incredibly important, is there has been a lot more research and official policy statements from the social science groups, from the leading experts, about human development and child development in particular, so something very important the administration did last year, actually, was in the defense of some of these cases, to say we affirmatively disclaim any reliance on that kind of argument, that it somehow benefits children to deny marriage to same sex couples. - So the federal government sort of has been cutting back on it's defense little by little. - Little by little, but in very important ways because the Congressional record from '96 really contained, really actually, quite offensive statements about how gay people, or same sex relationships are immoral, contrary to American traditions. A lot about religion and Jude-Christian morality. But there were also things said about the need of children, these sort of ideas that Sky was alluding to that we have always been bedeviled by, sometimes overt, sometimes the murmurings that somehow LGBT people are a threat to kids. You know, the whisper campaign and sometimes it's overt. And there was a lot of that in the Congressional record. - In the original argument. - For the passage of DOMA, back in '96. So the government has since said, earlier in the cases and it's been reiterated, in this letter by the Attorney General that this government recognizes that the scientific consensus has evolved since then, there was not much research back then in '96, there was certainly some, and there was not evidence suggesting that we are threats to kids. But there's a lot more data now. And there is this professional consensus among the experts, and this is an administration that does take science seriously, wants to get to a sound answer, and so they changed their policy position and they changed the arguments they were willing to make. And so, when they got to the position last month, um, of needing to articulate arguments in a brief, they said, you know, we, we look at these arguments and we're no longer willing to say that there's a public purpose discriminating against gay people because of the needs of kids. We're also not willing to say that sexual orientation is something people choose. We know it's not. It's an innate characteristic and people get treated unfairly because of it without it being something people can opt out of. So that also came from better understanding and respect for social science research. - So you see much excitement, I mean, or interest in the community generally because of these, uh, developments? I mean you're pretty optimistic, Sky, I noticed. - I'm very optimistic, and I think amongst the activist, the lawyers the people who work in LGBT organizations, I don't know how much the rank and file are paying attention to these developments, because, although they are hugely significant, we're living in a time where there are all kinds of massive global issues that, uh, that to the extent that people are paying attention to current affairs, there's a lot of other stuff going on. But, uh, everybody that I know and talk with is very very, I mean it's really thrilling. It's really thrilling. - But aren't you getting questions about well does this mean we can go and get married now? - Well we are getting that, but I know that Peter is the lucky, or unlucky recipient about a lot of the questions about taxes, where as some of what we're seeing is people, I mean the federal law is starting to have implications to, in people's lives. And it may not be fun, but I mean your phone is kind of ringing off the hook at this point. - Yes, well we've been doing a couple of seminars along the tax developments, and we've been seeing a lot of confusion about it. I think that's sort of echoed in a lot of different areas where the federal government is moving from a place of no equality to equality. And there's gonna be some growing pains, there's gonna be some confusion in that progress. And I think that, you know, this is another one where people are a little bit confused about whether or not the administration will no longer enforce the Defense of Marriage Act, which I've said is not the case, they are still enforcing DOMA, but, uh... - Right, that's different. I think that's a good point, because it's kind of like well, it's still the law, - Yeah a lot that confusion is from really bad media coverage. I thought the media coverage of that decision was really, pretty spotty, because there were some media reports - Oh you mean the Attorney General - Yeah they're saying that President's no longer gonna enforce the law, and of course that inflamed people who said well that's his responsibility to enforce the law, and that was flat wrong. And the letter itself delineated that perfectly. The law is enforced, and that the executive will continue to enforce it, but will not make constitutional, or attempt to craft a constitutional argument against it because they don't believe in it. - And we did see a sort of parallel example here in California when Mayor Newsom in San Francisco did a constitutional analysis with some very smart lawyers in the city, county, the administration there, determined that, that excluding same sex couple from marriage in California, as a matter of state constitutional law, was not constitutional. And he put that into effect, and lots of people got married, and the California Supreme Court did not like that, saying that he should have brought the issue to a court and gotten a legal ruling, because while he, and all government officials take an oath to uphold the Constitution, and that means to not engage in unconstitutional conduct, it's generally, and it is, it is, that means there's a duty to try and understand what the Constitution requires of the executive branch folks. But not to then, I mean it's not their job to actually decide, it's up to courts to decide. - But that's a little different between the mayor of San Francisco and the Attorney General of the United State in saying my job is to go to court, to defend something, I can't do that if I think it's unconstitutional and I have very good reasons to review that now. - Well right. What, uh, what Eric Holder said is we're going to remain in all these cases to make sure that the interests of the government are represented, and we're going to follow the instruction of this federal law that says if and administration decides that a law should not, that it should not defend a law, that it should notify Congress, which is exactly what he was doing, so that the legislative branch would have a chance to participate. And so what they're doing is continuing to turn all the wheels of government. To enforce the law, and to be in the proceedings to make sure things go properly in the proceedings, but to invite others to come in and make other arguments. And in a lot of ways that is actually quite similar to what we've seen in the Prop 8 litigation, with the Attorney General, Attorney General Brown, when he was the attorney general, and now the new attorney general, Kamala Harris, similarly doing the analysis, deciding that Prop 8 is unconstitutional, but then there's a process about heter others should come in. It's actually more complicated in state law, because we don't have any state statute that says that, for example, the proponents of an initiative get to come in and participate if the attorney general decides that a case has been, has gone on long enough, um, so it's actually, that question is in court right now. I think the important thing is, we are, um, we're not sure what's gonna happen next in all these cases. What we know is that, um, that the House's leadership took a vote to, to um, get some lawyers and try to come into the case, in particular the case that is now before the court of appeal in New England, that is consider the case that's furthest along. And some information actually was filed just today. Um, unsurprisingly they want more time. So, it's unusual enough that we don't know what's gonna happen in all the cases, but I think it's a fair prediction that there will be arguments made in defense of DOMA, and it may mean that Congress or some legislators come in as parties, maybe they for it as court briefs, I don't think there's any risk that the law would go without any defense. - Well that's kind of an interesting thing too. The last show that we did, last month, here, was about who could appeal in the Prop 8 case. And the question, which is now still with the California Supreme Court, about whether the guys that paid to put it on the ballot, you know, got it a, wanted it on the ballot, whether they can appeal. So that's a question. So here now we have the Congress saying that since the United States attorney general isn't going to defend the Defense of Marriage Act, we the Congress are gonna do it. And you said, and I think what you just said was, that Congress might come in as parties. So they have an interest because they made the law, but proponents of an interest may not have an interest because they didn't make the law, they just put it on the ballot? Okay, I think people are gonna ask this question. - Well I think part of, the way I understand that is that, and these two questions have been teed up in the Prop 8 case, there's a question of whether somebody can participate as a party because they have an interest, they're hurt in some way. But also, sometimes, they can participate to act as representatives of the people, as the state. And so the federal law that requires the attorney general to notify Congress, I think that's best understood as a law that says who's authorized to represent the people, or society. - So Congress might be able to, I mean, not might be able to, but is appropriately able to step in if the AG says I'm not going there, they could do it, but there's still a big question about whether proponents of initiatives could do that. - That's right. Because federal, the federal government process is a little different, I mean, the Prop 8 is under federal court, under federal procedural rules. But it is about, um, a part of state law and who can act for the State of California, it's not necessarily the same, but I do wanna stress, this federal law that tells the attorney general to notify Congress, is not very specific about what's supposed to happen next. And it really is then up to the court to, to decide. Because if every individual member of Congress wanted to come in as a party, you know, that would be too many parties. And so, and when you look at the cases, they do things, but they don't give a lot of explanation of why, and there's intervention here, that's actually very unusual, it's usually part of the court briefs, and in some of the cases, one administration declined to defend a law, things went on for a while, then there was an election, and then` a different administration, um, had a different attorney general, and they changed their mind and they came in to defend it. So, all we know is the litigation is likely to continue, it is likely to take longer than it otherwise would have. There likely will be plenty of defenses made, um, - [Sky] But you're not scared of needing all those defenses are you? - Well that's a great question. Actually not so much anymore, because on, and I mean you said it very well, Sky, in '96 there were a lot of people who felt very anxious about what it would mean for gay and lesbian couples to get marry, and there was this public reaction of oh that would be scary, well it's not new anymore. And a lot more people see, actually, how simple it is. I mean, I'll just mention one of the cases that's been filed in New York, it's on behalf of a woman who's 81, whose partner of four decades recently died after a long illness, where, they both actually had health issues, but one died, um, and, uh, the surviving partner is being hit with a, I think it's $350,000 tax bill by the federal government because the woman that passed away had considerable assets and the survivor, you know, not so much. And so, that's a pretty hefty tax just because you're dead. What does the equal protection clause mean? Even if there's some difference in tax matters, it shouldn't make that okay. - And a married couple too, recognize as a married couple - Legally married couple. With all the same responsibilities under federal law. - Well that's the difference, really, because you could live together for 40 years, you could live in states, you know, that don't count you as married after seven years you've been together, which some in the east still do, um, but it treats you, a straight couple, who didn't get married, would probably be hit with the same tax bill - [Jenny] That's exactly right. - No matter how long they've lived together. So the difference is, these women were legally married in their state, and they're being treated differently from people legally married in their state. - But I mean it is a big decision that people make, sometimes they don't realize it, if it's a drive through wedding that has too much tequila beforehand, but it's a very serious legal decision to get married, because it brings serious responsibilities to care for each other, to pay each other's debts, um, and, and so, the thing that is so terribly unfair is when people make that commitment, and they are bound by all those rules under state law. I mean family law is mostly under state law. Which is why it, I mean, DOMA was a radical departure from our entire history by creating a rule at the federal level that would decide what kind of marriages the federal government liked and didn't like. It had never done that before. - Well see the bigger than that, because of the, uh, the requirement that states recognize judgements, mostly, from other states, but it also included marriages. And even if that marriage was one that could not be performed in your state, you could marry your first cousin in Georgia, and you can't marry your first cousin in California, but you're married in Georgia, when you come to California it's recognized as a marriage, and this was a real carve out by the federal government, saying only these kinds of marriages do we give you permission to ignore the Constitution, really, and not recognize it. So I think that was also a big difference, about, you know, so called equal protection. - Well I mean, and I will say the Obama administration was doing it's darnedest to come up with some arguments to defend DOMA that didn't, in the end, sound a little bit silly. Because they had decided not to make these abhorrent arguments, that we're a threat to children or the other things that they recognized was just not true. And so, one of the, the thing they were left with was the idea that it was a reasonable thing for Congress to maintain a consistent rule at the federal level as states experimented. The problem is, it wasn't a consistent rule. It created inconsistency for the first time, and in one of the cases I've been working on, representing a married lesbian employee of the court of appeal, federal court of appeal in San Francisco, the Republican appointed judge who was hearing the arguments back in December, um, he really gave a hard time to the Justice Department lawyer who tried to make that argument, because he said well it's not consistency. For the first time ever, this law created inconsistency and you're trying to say, that discrimination against this group should be continued just in the name of consistency? How does that make any sense under equal protection law? So, um, we have been winning, um, it's just by happenstance, I guess, but a number of these DOMA cases, and some of the other federal same sex couple equal protection cases that have been going on have been heard by Republican appointees, and we have been winning even under the lenient test, so if we now have courts, we hope, agreeing with the Obama administration and using the more stringent test, I think the consequences are not just about the Defense of Marriage Act, it's actually anytime that government treats people unequally based on sexual orientation, and that would include school bullying cases, it'll include other kinds of benefit cases, any kind of federal employment, anti-gay discrimination would be looked at with suspicion. And so I think the positive effects will have many ripples. - Right, if it's reinterpreted so that we are actually part of the Constitution, as we used to say in the old feminist movement when we weren't, well there's another piece of confusion, I think, and you were talking about your phone ringing off the hook for tax questions. But it seems like the attorney general in California, whom you mentioned, Kamala Harris, inquired, or did something, I'm not quite sure what, about whether we could all just start getting married again in California, because, well, you're not gonna defend that, and therefore, uh, we should just go ahead with some marriages. But with Prop 8 still in place, I'm not quite sure we got that. Are you getting calls asking this question? - [Sky] I'm not getting any. Are you referring to the, the uh, effort to lift the stay in California? - Well I don't know, I heard that she's, yes I guess that's what she did. Right? She asked if uh... - That's the ninth, well the status, well Jenny knows more about this than I do, but the status of the law is that the federal court judge in San Francisco has ruled that Prop 8 is unconstitutional, so that ruling is in place. But there's also a stay that would prevent marriage to go forward while it's going on in appeal in the ninth Circuit Court of Appeals. - So is that related in any way to what the attorney general did? - Well in the sense that the day the attorney general announced that the, uh, proper level of analysis is heightened scrutiny, that was the same day that the plaintiffs in the Perry litigation then moved to lift the stay. And they included, as part of their motion to the court, the DOJ letter to the house, saying... - [Sky] They scrambled at the last minute to get that in there too, because they didn't know it was coming. - So essentially, there's not really a relationship between saying you're not gonna defend DOMA and whether the stay should be lifted in the Prop 8 case. But the people who said lift the stay, we should all be able to start getting married, everything's unconstitutional, look even Eric Holder said it. - The main, the main driver of the request to lift the stay, is the idea that the California Supreme Court has agreed to answer the question about whether initiative proponents have standing. And the California Supreme Court said yes we're interested in that question, we will now accept briefs from both sides, and we'll think about it over the summer, and we'll have argument in, in the fall, probably September, which means there would be a decision by the end of the year, which is actually quite accelerated for a usual Supreme Court. - But not for people who want to get married - And especially because the case was argued already to the federal appellate panel, and usually then, you would just wait for your decision and people want their rights back. The test, the test really is, you know, you're supposed to have your rights, and if you've shown that you're entitled to them, and then there's gonna be some review, usually you get to have your rights until it's shown that maybe that was wrong. We have seen in California with this on again off again, that the government, the courts have felt, um, uncomfortable, with the idea that people would get married, which is supposed to be a permanent status, and then have it taken away, that just would interrupt to many things. But this process is going longer than people thought, and I think, I mean, you know, Peter's right, that they did toss in this additional point of Eric Holder's letter. And that was about DOMA, which is federal statute instead of a state constitutional amendment, Prop 8. But it is all the federal equal protection clause and if it's going to be heightened scrutiny for DOMA section three cases, it ought to be heightened scrutiny for the Prop 8 case, or for any case of government discrimination and it's um, it's quite hard to justify anti-gay discrimination, doesn't mean it would be impossible in all cases, but it's quite hard to justify it. So that is, actually indirectly, very helpful to the plaintiffs in the Perry case in the Prop 8 case. - The odd thing to me, you know, is that federal judges are appointed for life, unless they do something really bad and then they get impeached, but despite that, I think courts in general are so timid when it comes to equal protection analysis and the way it should be applied for gay people. So, up to now, all the cases that have ruled DOMA unconstitutional have done so under the less differential rational basis test. They haven't been reaching what is really the right question, which is well should we take a closer look at these laws, because they discriminate against a politically vulnerable group of people who have been subject to a history of discrimination? And so I do think that there's this very, sort of, important atmospheric link if nothing else, that the President of The United States, the Attorney General, has said this is the right way to do the analysis. - In a more stringent way? - That's right. Courts, you need to answer this question, and here is the answer. Because truthfully it's not a hard question. It's actually an easy question for anyone who's, I think, been to law school. You could, you know the factors of the test, and you look at well, do gay people meet each of those factors, and the answer is yes, yes, yes, yes, yes. And for some reason, courts have just been unwilling to do their duty. And so I do think this is an incredibly important step to encourage courts to do what they ought to do. - Well the, I think the, uh, the cross elements in a way, are a case has to work it's way up to the Supreme Court, we're not so sure we like the way the Supreme Court is kind of constituted these days, are we gonna win? We don't wanna go all the way up after 150,000 years and lose. On the other hand, I think lower courts are kind of saying, this is a very big change, I mean, you know, well Roe v. Wade and, um, it's gonna be big. So we ought to say well. Maybe appeal it, and you know, let it go up to them. So I can kind of understand that, um. - I think it might be like Roe v. Wade. It might be like Loving v. Virginia, or Brown v. Board where, where, you know, the courts said some, upheld a principle and we've come to think of those moments whether it's racial segregation or whether it's race discrimination in marriage, states saying you can't marry this person because they're the wrong race, the wrong religion, the wrong sex, why is the government doing that? And those cases, I think, are high points of our American history, that, that, where there's very little disagreement about them. - I think the question about the Constitution now, especially Section three, but all of them, there seems to be, I was watching a clip, uh, of the, uh, TV broadcast of the American Family Association, which is one of the most adamantly right wing anti-gay organizations in the country. And their staff attorney was on being interviewed and he said, he thought DOMA was unconstitutional. I don't know if he was fired immediately after the program, but that's what he said on their air. So this question seems not to really be that close a call. - But I mean we should just clarify, the question of DOMA, so the fed, so Congress for the first time discriminating among legally married people. Um, that seems to be a much easier question than whether the... - The point is well taken, and you won't believe this, but a whole hour has already gone by. There's only one minute left in the show! So I think the point, really, is what you referred to as an atmospheric change. I mean think it is a big sea change for the country, reflected, as you said, generally the government is a follow, so, um, with that optimistic view, let me thank all three of you, so much, for doing the show, for being with us. Jenny and Peter and Sky, and thank you for being with us as well and remember you could get married, you could not get married, you might take advantage of tax law, things are sort of up in the air, but looking kind of positive, so get used to it. (funky music plays) (funky music plays) (funky music plays) (funky music plays)