Marriage Equality in the Sixth Circuit: Important Questions and Little Certainty

Michael Tew, Ph.D

In a packed courtroom of the U.S. Court of Appeals for the Sixth Circuit (and two overflow courtrooms with audio feed), three judges heard arguments about the rights of same sex couples in six cases from four states. August 6, 2014 was the most extensive day in the legal debate about Marriage Equality since the Supreme Court decision striking down Section 3 of DOMA in June of 2013. After a streak of 29 federal court victories for Same Sex marriage advocates, the outcome of these appeals is less clear. The court gave no indication of how it would rule or when it would rule but the decision seems to hinge on four specific questions.
Is there a fundamental right to marry for same sex couples?
Why should the court circumvent democratic process?
Is there a rational state interest in restricting marriage to opposite sex couples?
Does the court, at this level, have the ability to intervene?

Is there a fundamental right to marry for same sex couples?
This is the central question that marks these cases as 14th amendment issues. The answer depends on how one views history. Attorneys representing the States, argued that, while opposite gender (referred to a traditional marriage by each of them) has deep cultural roots, it is too soon to say the same for same sex marriage. Michigan’s Aaron Lindstrom suggested there hasn’t been time for social science to examine such relationships and families. (That is not actually correct. See this credible study http://bit.ly/1oI0nfq). Judge Jeffery Sutton seemed to favor the view that states have the right to regulate marriage as they see fit. He took issue with Senior Judge Martha Craig Daughtrey’s assertive argument that Loving (1967) established marriage as a fundamental right. Further, Daughtrey pointed out that until the SCOTUS decision in Lawrence (2003) homosexuality was criminalized making any deeply rooted tradition impossible. Further, she reinforced MI Plaintiff attorney, Carole Stanyar’s argument that these cases “do not redefine marriage – they end the exclusion of same sex couples.”
Take Away: This is a critical determination. SCOTUS avoided a ruling on marriage as a fundamental right for same sex couples when it returned the Prop 8 case back to California. Windsor was not decided on that basis. Loving established the right to marry who one chooses as a fundamental right. Two circuit courts have already concluded that same sex couples are included in this right.

Why should the court circumvent democratic process?
Central to the arguments from Michigan, Ohio, and Kentucky (and clearly important to Sutton) was the issue of democratic process, through legislation and/or referenda. Attorneys for MI, OH, and KY asked the question of who gets to decide about same sex marriage. They each claimed that using the courts violates democratic principles and processes. Michigan attorney Lindstrom specifically argued that people are rationale deciders and the decisions made in anti-LGBT state referenda should stand until the people change their minds. Judge Sutton, during each argument, repeatedly asked questions that reflect and support this reasoning. He suggested that time will resolve the controversy democratically as the trajectory of state and Supreme court decisions favors the recognition of same sex marriage. It is on this question that Daughtrey was most pointed (and humorous). She asked OH attorney, Eric Murphy if he knew how long it took for women to gain the right to vote. He did not. The answer is 78 years. After which, due to lack of success in step by step “democratic processes”, the issue was decided by an amendment to the U.S. constitution. She and plaintiff’s attorneys all asserted that this is timeline is unacceptable and harmful to the plaintiffs and their families. Moreover, attorneys for all plaintiffs reminded the court that historically, questions of civil rights should not be decided by popular vote.
Take Away: First, the courts are part of the democratic process. They exist, in part, to ensure that the rights of minorities are not trampled by intolerant, tyrannical, or even uncomfortable majorities (read http://bit.ly/1u3Tt7T). The conflation of democracy with majoritarianism was a problematic theme in this hearing.

Is there a rational state interest in restricting marriage to opposite sex couples only?
The one word basis to the States’ (all of them response to this question – procreation. Leigh Gross Latherow, arguing to preserve Kentucky’s ban, was the most specific (and colorful) on this issue. A paraphrase: Opposite sex couples can and do procreate. Kentucky wants to promote procreation. Married couples procreate. People involved in “same sex behaviors” don’t procreate. So the state wants to regulate and encourage procreation through marriage. Same sex behaviors, then, aren’t part of marriage. When pressed by Judge Daughtrey about couples who are unable or choose not to procreate, Latherow answered that at least with opposite sex couples there was the possibility of unplanned pregnancy. Read here (http://reut.rs/1oJClB0) if you need more evidence of why this line of argument is absurd. Further, Joseph Whalen of Tennessee argued that, in the interests of promoting and preserving procreation, Tennessee did not intend to exclude same sex couples, it only chose to include opposite sex couples (capable of procreation). Both Sutton and Daughtrey were skeptical that any rational basis for exclusion was actually established.
Take Away: A procreation basis for rational interest has yet to be successful in any legal proceeding on marriage equality to date. Nothing offered in this hearing appeared to change that.

Does the court, at this level, have the ability to intervene?
Judge Sutton seemed to question the latitude for the court’s decision based on an 11 word summary dismissal of a Minnesota same sex marriage case in 1972. In Baker v Nelson, the court dismissed the appeal “for want of a substantial federal question.” That meant that a lower court ruling that the Minnesota ban on same sex marriage was constitutional, would stand. The precedential nature of this ruling, cited as in all four state arguments, is subject to significant debate both in this hearing and otherwise (http://bit.ly/1AZf4At). Sutton questioned whether lower courts were bound by Baker while Daughtry, and plaintiff attorneys, argued for the application of developing doctrine and evolving legal theory and precedent.
Take Away: This was a legal/technical part of the oral arguments that was, perhaps, lost on many of the hundreds of spectators. It is important, though. The implication is that by rejecting an appeal 42 years ago, SCOTUS established a binding precedent that this Circuit Court would be the first to accept. Sutton’s commentary suggests he wants to hand this off to the Supreme Court sooner than later.

While we wait for a ruling from this hard to read panel, cases will appear before the Seventh Circuit Court on August 26th and before the 9th Circuit Court on September 8th.

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Born This Way? Sexual Science and the Invention of a Political Strategy

Originally posted on NOTCHES:

By Jana Funke

Gay politics today tend to be premised on the ‘born this way’ argument, the idea that being gay is not a matter of choice or preference, but rather an innate, natural and biologically conditioned fact of life. If homosexuality is something we are born with and therefore not something we choose or can be expected to change, the argument goes, we have the right to demand protection under the law, equal rights and social acceptance more generally.

Born this Way (Credit:

Born this Way ( Credit : Quinn Dombrowski / Wikimedia Commons)

While incredibly pervasive (think Lady Gaga, Macklemore or Glee) and undeniably powerful, the ‘born this way’ argument has also been subjected to substantial criticism. Even though stories about the ‘gay gene’, for example, continue to circulate in popular media coverage, most scientists are very hesitant to assert that there is any straightforward link between potential genetic variation and sexual attraction. Scholars in the humanities and social sciences…

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Can Marriage Equality Result in Improved LGBT Health Outcomes?

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Michael A. Tew

Recent articles in the New England Journal of Medicine and the Journal for Nurse Practitioners consider the relationship between marriage and health. Each offers several good reasons why the answer to the basic question is yes but provide some caveats to qualify their assertions. Before getting to their arguments, however, the actual state of LGBT health as compared to the general health of the heterosexual population needs to be understood. Research has consistently demonstrated that LGBT populations experience more negative health related outcomes (mental and related physical health issues) as a result of stigma and discrimination. The National Alliance on Mental Illness reported on several studies that show wide disparities between heterosexual and LGBT reports of anxiety, depression, mood disorders, and substance abuse during an individual’s lifetime. These are NOT the result of simply being Lesbian, Gay, Bisexual, or Transgender. The disparity is the result of consistent and pervasive social, institutional, and familial discrimination. More profoundly consequential are the effects of actual or threatened physical violence, verbal violence, and internalized homophobia. An article in The Lancet (February 8, 2014) indicates that anti-LGBT polices and homophobia frequently prevent LGBT persons from even seeking health care at all. While the article used Russia and Nigeria as particularly troubling examples, evidence of similar problems in both Europe and the US were included.

Understanding that LGBT persons often experience health consequences specific to discrimination, it stands to reason that Marriage Equality, a significant step forward in confronting discrimination and stigma would help. In many ways, it does. Gilbert Gonzales writes, in the New England Journal of Medicine (April 10, 2014) that “Public health research has suggested … that legalizing same-sex marriage (among other policies expanding protections) contributes to better health for LGBT people.” His report cites data from Massachusetts and California that indicate same-sex marriage recognition was related to fewer mental health care visits and reduced psychological distress. Laura C. Hein (associate professor in the College of Nursing at the University of South Carolina) asserts, in the Journal for Nurse Practitioners (June, 2014), “Marriage is associated with multiple mental and physical health benefits, including benefits that support psychological health and access to health care through a spouse. Marriage also protects and promotes the health of the children of LGBT couples by providing the legal and health insurance protections that are granted automatically through marriage.” Both authors rightly frame Marriage Equality as a public health issue as well as a political and civil rights concern.

In the same issue of the Journal for Nurse Practitioners, however, Christopher M. Fisher (assistant professor in the College of Public Health at the University of Nebraska Medical Center and Director of the Midlands Sexual Health Research Collaborative) is less optimistic about the health improving value of marriage equality. He identifies other important sources of negative health outcomes for LGBT people such as structural stigma and institutional forms of discrimination that are not resolved by marriage equality. He writes, “Regardless of the legal status of same-sex marriage, stigma-related discrimination will persist for some time. Health care providers, including nurses, are among the many on the front lines who can provide a stigma-free environment and culturally competent care, which will be as important as marriage equality in eradicating health disparities for LGBT Americans.”

So there you have it. The evidence suggests that Marriage Equality will likely lead to better health outcomes for LGBT populations but that it is not the only answer to resolving health consequences resulting from stigma and discrimination. Therein lies a message about the Equality Movement and public policy at large. Marriage continues to be an important focus for advocacy but the movement for full equality is about much, much more.

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New Federal workplace protections: A start (not end) toward LGBT workplace equality

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Michael A. Tew

Today, President Obama moved the ball significantly closer to the goal of American employment equality. In signing an Executive Order barring discrimination in employment for Lesbian, Gay, Bisexual, and Transgender employees working for the Federal Government or for companies holding contracts with the Federal Government, the President (despite pressure from the right and from some religious leaders) did not include the kind of religious exemptions currently in the Employment Non-Discrimination Act passed in the Senate. The order will protect roughly 28 million workers, or (one-fifth of the U.S. workforce). Of those workers, the Williams Institute at UCLA Law School estimates that the executive order will cover 14 million who do not already work for companies or in in states with protection from employment discrimination based on sexual orientation or gender identity. 21 states protect LGB employees, 19 states protect LGBT employees, along with a significant majority of Fortune 500 companies and over 200 municipalities). This is the second time the Federal Government has stepped up – the first being the repeal of Don’t Ask/Don’t Tell which removed service barriers to (mostly) LGB military service personnel. Look up the subject though…the military discrimination battles are still being fought. Being able to serve is not the same as being treated equally. Protection from overt workplace discrimination is not the same as working in environments where people are not stigmatized.

As important and meaningful as the President’s Executive Order is, however, the American workplace has a long way to go toward reaching full equality. The Human Rights Campaign’s May 2014 report, The Cost of the Closet, reports that 53% of self-identified LGBT people conceal their identities in the workplace. 35% lie about their sexuality. These numbers are not surprising considering the potential costs of being yourself. Interestingly, while there is hope for positive outcomes to the vast array of Marriage Equality cases currently in the Federal Courts, more LGBT persons may be able to marry than will be protected against workplace discrimination.

A recent study addresses the presence, dimensions of, and effects of discrimination and stigmatization in the workplace. Understanding lesbian, gay, and bisexual worker stigmatization: a review of the literature (Gates and Viggiani, 2014) appears in the International Journal of Sociology and Social Policy (Vol. 34, Issue 5/6). The authors provide a strong, literature review based foundation for understanding the extent of stigma that LGB (these researchers neglected to include Trans* employees in this study) face at work. They argue that “Human service workers, advocates, policymakers, and others” need to work from an “anti-oppressive framework” which requires understanding the social and historical context for workplace stigma and discrimination. Important to this study is their examination of how factors such as Outness, Gender, Gender Expression, Education, Social Class and other variables contribute to provide such understanding. They assert that “LGB worker discrimination is a human rights issue,” and offer strong arguments that “Actively fighting against LGB workplace stigmatization must become a national priority.” President Obama’s Executive Order is a start. Understanding how workplace discrimination works is critical to informed public policy. New orders and legislation provide protection. Understanding will make such protection meaningful.

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For homeless LGBT youth, finishing school can cause more distress than dropping out

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Research Review by Michael A. Tew

Increased research attention has been paid to the many problems faced by LGBT homeless youth (estimated to comprise 20% or more of all homeless youth, National Coalition for the Homeless). Communities are becoming more aware of the high levels of sexual and physical abuse, mental health problems, suicide, and other forms of victimization faced by this at-risk population. Similarly, research over the last decade has documented the experiences of LGBT youth in school environments. A leader in reporting on school climate for sexual minority youth, GLSEN (Gay, Lesbian, Straight Education Network) has collected significant amounts of data regarding the extent to which LGBT youth experience bullying, adverse learning outcomes, dropout rates, and, conversely, limited improvements in school support systems (such as GSA’s –Gay/Straight Alliance groups- and more sensitive staff). A new study, published in the Journal of Homosexuality (January 2014) brings attention to the intersection of these two critical LGBT youth issues. Ultimately the study, “shed(s) a disquieting light on the educational experiences, needs, and accomplishments of LGBT homeless youth as well as how school, home, and high school completion intersect with psychological distress.”

Researcher Mark P Bidell, Ph.D. emphasizes the relationship between home and school environments as contributors to seriously problematic outcomes for sexual minority youth. Homeless LGBT youth
• Came out in either middle school or high school (68%)
• Dropout at a rate of between 39% and 47%.
• Are uncomfortable or unwilling to communicate issues to school staff (80% never talked to a teacher, 70% never talked to a counselor, 85% never talked to an administrator) about issues related to sexual orientation or gender identity.
• Less than one fourth reported that they came from a school with a GSA (compared to 45% amongst their non-homeless counterparts).

What this all adds up to is that school, for homeless LGBT youth is a tough environment leading to evidence a potentially twice the likelihood of clinical levels of psychological distress when compared to non-homeless LGBT youth. “ The higher rates of psychological distress among those that completed high school might also help explain the elevated high school dropout rate among LGBT homeless youth found in this study. Dropping out of school and leaving home may be adaptive ways to cope with negative environments and help lessen psychological distress. “
These results are consistent with findings about homeless sexual minority youth as related to non-school social support situations. LGBTQ youth don’t always feel safe in the foster homes, homeless shelters, and social systems that are in place. They can still experience violence, rejection, and shaming while making use of these services. (February 28, 2013, Jarune Uwujaren Everyday Feminism).

School and home are the two most significant sources of support for youth, whether LGBT or not. When neither is providing support, the consequences are significant. Of course, we need to systemically address the availability of support for sexual minority youth, particularly homeless youth. This study offers important information enabling schools, parents, and communities to do so in ways that demonstrate understanding; ways that create support rather than psychological distress.

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Motor City Pride Belongs in Detroit

Michael Tew

The attack on a young man outside Motor City Pride last weekend is terrible. I know we all hope he heals and that his attackers are brought to justice. What is also terrible is the extent to which people are blaming the attack on having brought Pride to Detroit (from its previous location in the suburbs). Seriously!?! Blame the haters people!

Motor City Pride is in downtown Detroit and it is a fantastic event that is bringing LGBTQA communities together in all their wonderful diversity. The legendary spirit of Detroit is alive in Hart Plaza. Honestly, no Pride event in the suburbs can parallel the diversity, energy and importance of celebrating the freedom to be who we are in the heart of Detroit.

It is not Detroit that brought violence to Christin Howard. It was young men who hate. LGBT people are attacked in cites, the burbs, the boonies, and in their own homes. They are attacked by people who are afraid, who feel threatened, who are ignorant, or who
are too insecure to accept difference.

You want to solve for anti-gay violence? Work on improving anti-gay hate crime law and enforcement. Work on stopping hate speech passed off as political discourse or “religious freedom.” Work on stopping bullying in schools and the workplace instead of waiting for it to get better. Work on ensuring the right for all to work, learn, love, and live. If people aren’t given these dignities, others will assume they have the freedom to attack.

This attack happened, not because Pride was in the great Motor City. It happened because our society at large still tolerates this violence. To flee the city and find a “safer” place for pride is ludicrous. Stand up people. Don’t suggest hate should drive Pride from Detroit. Drive intolerance out of Detroit, and everywhere else, with Pride.

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Hate Crime, Hate Speech – What happened in Michigan on April 1st

Michael Tew

Since the Stonewall Uprising in 1969, progress on LGBT civil rights has been remarkable. Then, fighting for the right to simply be to now, marking increasing levels of success in the freedom to marry, the struggle for inclusion and equality marches on. That progress has not been without significant, and continuing, costs.

On April 1, 2014, the Ann Arbor News, Detroit Free Press, and Huffington Post reported on a Michigan Woman who was reportedly assaulted for marrying her same sex partner in the brief window of time marriage equality existed in Michigan. Having been recognized from an appearance on television, three men verbally and physically attacked her. We should hope that the investigation into this apparent hate crime is conducted honestly and with dignity.

This entry though is not about the actual incident. It is about the online comments that followed these reports. Though I know we shouldn’t read the comments from the crazies, I made the mistake of doing so and it proved sadly revealing.

The post-Stonewall Gay Liberation movement achieved tremendous visibility in the early 1970’s. My students remark that it must have been a fantastic time to be in the movement. To some extent, they are right. But that visibility was swiftly followed by fierce backlash. And that has been the pattern that persists to the present day. Jeff Nishball wrote, in the May 2013 issue of The Good Man Project, “we still seem to be in a constant state of one step forward, two steps back. There have been 22 hate crime attacks in New York since January, compared to thirteen during the same period last year.” That rise in violence was immediately subsequent to New York’s affirmation of marriage equality.

Back to the internet crazies. I won’t replicate the comments made regarding the beating of the newly, happily married woman in Washtenaw County. You can easily find them yourself by looking up any of the reports. The following is a thematic summary: she’s lying to get people on the side of gay marriage; who cares gays should get out and go back in the closet; what did the gays expect; gays are destroying America; Fred Phelps was right. That captures the tone. Of course, not all of the posts took that bent but the high frequency of those that did use this kind of vitriol was jarring.

They are crazies, right? Can’t we move on and just let the haters hate? No.

J.L. Lemke wrote in a 1995 special issue of Columbia University’s 21stC, “A little violence goes a long way when it takes on a meaning, when people begin to predict what will be punished. That meaning enables violence to function as a means of control. No social order could maintain itself solely by the physical effects of violence. Violence is always also a warning, a threat of the possibility of more violence.” The observation was almost prophecy for what happened after President Obama refused to defend DOMA in court. In May of 2012, Think Progress reported on several right-wing pastors in different states advocating physical violence toward gay people and generally disparaging the LGBT community. ” –North Carolina Pastor argues for a gay concentration camp. – Kansas Pastor says gays should be put to death. – Maryland Pastor says his ‘flesh’ likes the idea of killing gays.” Jamie Hagen of the Rolling Stone quoted Michelle Bachmann, R-Minnesota (“Christians must engage in “spiritual warfare” to combat same-sex marriage”) and Trent Franks, R-Arizona (Marriage equality is “a threat to the nation’s survival in the long run”) as issuing calls to arms after the death of DOMA. (June 2013). Progress and backlash.

Why does this matter? All of these people are “outside” the mainstream trend toward LGBT Civil Rights. While that may be generally accepted, these public figures, like those private figures sharing poisonous bigotry in response to a Michigan hate crime, lay a breeding ground for physical violence and for LGBT loss of personal dignity.

“Defamation of a minority group, through hate speech, undermines a public good: the basic assurance of inclusion in society for all members . A social environment polluted by anti-gay leaflets, Nazi banners, and burning crosses sends an implicit message to the targets of such hatred: your security is uncertain and you can expect to face humiliation and discrimination when you leave your home.”(Jeremy Waldron, The Harm in Hate Speech, 2012)

When I read those comments in response to a crime that saddened and troubled me, I had the same physical and emotional reaction as I did when I was a young, newly out gay man. Anger, fear, humiliation. These were the feelings I faced 30 years ago when I came out to a world far less supportive and accepting than we believe it to be today. These were the feelings I had when I read what people in my own Michigan community wrote – the way they responded to another citizen’s victimization.

Scott Long, director of the Lesbian, Gay, Bisexual, and Transgender Rights Program at Human Rights Watch asserts, “visibility breeds violence, and there is a pressing need for new support and protection.”(Human Rights Watch, 2009) “Winning” marriage is not an end game. It is tremendously important progress. It is a demonstration of value and inclusion. There is, however, much more work to do for human rights, equality, and social justice.

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