Separate But Equal? ‘Full & Skim-Milk Marriages’

The Supreme Court’s stance on DOMA leaned favorably toward marriage equality after almost two hours of oral arguments on March 27. A majority of the justices voiced concerns for the constitutionality of a federally mandated definition of marriage, which currently is defined and recognized as being between a man and a woman only. As such, only heterosexual married couples are eligible to receive benefits like Social Security and tax breaks, while married same-gender couples, in states that have approved such unions, still are not recognized by the federal government.

Having two kinds of marriages, according to Associate Justice Ruth Bader Ginsberg, is likened to having “separate but equal” tiers, inferring a direct parallel to the faulted rationality the government once upheld in Jim-Crow-era laws. Ginsberg said:

They’re not–they’re not a question of additional benefits. I mean, they touch every aspect of life. Your partner is sick. Social Security. I mean, it’s pervasive. It’s not as though, well, there’s this little Federal sphere and it’s only a tax question. It’s — it’s — as Justice Kennedy said, 1100 statutes, and it affects every area of life. And so he was really diminishing what the State has said is marriage. You’re saying, no, State said two kinds of marriage; the full marriage, and then this sort of skim milk marriage.

Additionally, questions surrounding the original motives behind DOMA arose: “Well, is what happened in 1996–and I’m going to quote from the House Report here–is that “Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.” Is that what happened in 1996?” asked Justice Elena Kagan.

Comparisons between same-gender-marriage bans and racism have become an increasing argument for the supporters of LGBT-rights. For example, pro-LGBT group Every1Against1 previously used Jim-Crow imagery in its campaign in support of marriage equality, and Howard University School of Law’s Civil Rights Clinic recently filed an amicus brief that compared both Prop 8 and DOMA, and similar same-gender-marriage bans with Jim-Crow era laws that prohibited interracial marriage and reinforced continuing discrimination against Blacks.

“Without acknowledging the racial provenance of these discredited arguments, opponents of marriage equality have attacked same-sex couples as a threat to American society, American families and heterosexual marriage, as an affront to the laws of God and nature, and as a menace to their children,” read the brief.

The Supreme Court is expected to make a decision on DOMA and Prop 8 sometime this summer.

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“Red symbolizes love. That’s what marriage is all about,” says Charlie Joughin, a spokesman for the Human Rights Campaign, the LGBT-rights advocacy group that started the campaign by turning its equal-sign logo red. The HRC also is offering free equality stickers as a thanks to anyone willing to show their support.

What started as a simple color swap has evolved into massive public promotion, with online users—as true to our meme-hungry society—putting their own spin on the equality symbol. How will you show your support? Take a look at our selection of these powerful images, then visit the Human Rights Campaign flickr page for more.

Same-Gender Equality Lady Liberty & Justice

Same-Gender Equality Wedding Rings

Same-Gender Marriage Equality Painted Hand

Same-Gender Marriage Equality Words of Marriage

Same-Gender Equality Les Miserables

Same-Gender Marriage Equality Collage

Same-Gender Marriage Equality: We Are the 58 Percent

Same-Gender Marriage Equality Comes Out

Same-Gender Marriage Equality Zombies

Same-Gender Marriage Equality Grumpy Cat

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Legal and political experts say that the Supreme Court’s hesitation stems from the idea of creating monumental changes to societal practices in one fell swoop. “There was a genuine concern about going too far, too fast,” says Charles Fried, a Harvard Law School professor and former President Ronald Reagan’s solicitor general. “I sensed a genuine regret that the court had this case before it now.”

The Supreme Court’s oral arguments this week on Prop 8 and the Defense of Marriage Act (DOMA) mark a historic event—it’s the first time in history the justices will hear arguments for cases advocating same-gender marriage. Their decisions could have sweeping impacts on the definition of marriage in the United States: a positive ruling could finally grant same-gender couples the right to wed nationally, affording same-gender couples equitable financial and tax benefits as heterosexual couples.

But is America really not ready for same-gender marriage to be recognized nationally? Reactions to the Supreme Court’s debate indicate that the public may feel the judges are just too old to “get it”: “Supreme Court Justices have entirely too much power. And some of them are too old to make decisions about a changing world,” tweeted Black American Author Terry McMillan, voicing similar sentiments expressed by Major League Baseball Player José Canseco Capas, Jr., and other social-media users.

Supreme Court Justices have entirely too much power.And some of them are too old to make decisions about a changing world.

— Terry McMillan (@MsTerryMcMillan) March 27, 2013

The rising support for same-gender marriage, however, is not simply a generational issue—it’s reflective of shifting American views of LGBT rights. Fifty-three percent of Americans in 2012 (up 32.5 percent from 2009) agree that same-gender couples should receive the same federal benefits as their heterosexual counterparts, according to a USA Today poll.

Opinions on same-gender marriage show increasingly positive long-term trends at an accelerated rate, according to PollingReport.com data cited by The New York Times.

But will increased public support have any affect on the high court’s decision?

Obama, Corporations Lean on Supreme Court

Increasing pressure and advocacy for same-gender marriage from high-profile politicians—including President Obama’s administration and more than 100 GOP leaders—corporations, and new legislation—such as the Pentagon’s decision to issue same-gender couple benefits—had many legal experts anticipating a victory for LGBT-rights supporters.

Amicus “friend of the court” briefs were filed to the Supreme Court, petitioning the justices to strike down Prop 8 and DOMA. Among corporations included on the brief were DiversityInc Top 50 companies Aetna, Ernst & Young, Johnson & Johnson, Marriott International, as well as Blue Cross Blue Shield of Massachusetts, Boehringer Ingelheim, Boston Scientific, Exelon, MassMutual, The McGraw-Hill Companies, Microsoft, New York Life, The Ogilvy Group, Pfizer, State Street Corporation, The Walt Disney Company and Xerox.

Additionally, the Howard University School of Law’s Civil Rights Clinic filed its own amicus brief, which compared Prop 8, DOMA and similar anti-same-gender-marriage bans with Jim-Crow era laws that prohibited interracial marriage and reinforced continuing discrimination against Blacks.

Developing Same-Gender-Marriage Arguments: Prop 8 & DOMA

With hearings underway, the nine Supreme Court justices reportedly have been wrestling with Prop 8, first arguing over the case’s legal standing in court and also tackling LGBT-related issues including  the definition of marriage, political consensus behind the movement, the consequences of raising children in a same-gender-couple home and the historical legalities of LGBT relationships.

“The problem with the case is that you’re really asking, particularly because of the sociological evidence you cite, for us to go into uncharted waters … it is a cliff,” Justice Anthony Kennedy, the anticipated swing vote, said. “You’re doing so in a case where the opinion is very narrow. Basically that once the state goes halfway, it has to go all the way or 70 percent of the way … I just wonder if the case was properly granted.”

“Traditional marriage has been around for thousands of years,” said Justice Samuel Alito, indicating arguments to uphold bans against same-gender marriage. “Same-sex marriage is very new … And it may turn out to be a good thing; it may turn out not to be a good thing, as the supporters of Proposition 8 apparently believe.”

The comments from the judges fall true-to-form with The New York Times’ Adam Liptak’s predictions: “The decisions will almost certainly be closely divided. Even justices who agree about the right outcome may disagree about rationales … The only remotely plausible unanimous decision is dismissal on standing grounds in the Proposition 8 case.”

Despite the seemingly negative stance of several of the Supreme Court justices, Liptak indicates that there is still hope for the same-gender-marriage movement. “Be that as it may, practitioners and justices say it is the rare oral argument that wins or loses a case,” he wrote.

5 Potential Outcomes: How Will the Supreme Court Rule?

Arguments to uphold the bans still have strong backers, in particular is Supreme Court Justice Anthony Kennedy, who has been labeled as the “swing vote” in both cases. Kennedy previously voiced his hesitations toward backing pro-same-gender-marriage legislations, noting his belief that “a democracy should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say.”

According to CBS News, there are five possible outcomes of the cases:

1. Same-gender marriage is constitutional: Marriage for all couples would be recognized as a right and same-gender marriage finally would be recognized by the federal government. This would also override locally held bans against same-gender marriage in 39 states.
2. Same-gender marriage is not a constitutional right. This would set a large roadblock for the LGBT-rights movement, however, states would still be able to afford LGBT-couples the right to marry.
3. Marriage and civil unions are equivalent. Obama’s Administration has levied an argument that same-gender marriage should be extended to states currently recognizing civil unions and domestic partnerships, giving these couples essentially equivalent rights as heterosexual, married couples. The difference would remain in the terminology.
4. California’s same-gender marriages protected. Prop 8 would officially be ruled as unconstitutional and bans finally and permanently would be revoked.
5. Cases are dismissed. Amicus briefs have been filed by supporters of Prop 8 claiming the proponents have no standing in court—that the initial trail court case ruling was appropriate and do not have an adverse interest, or had to have been harmed in some way, to continue a lawsuit and to come before the Supreme Court.

“Even if you lose the case, and I think that’s very unlikely, you would say that the case has been a success because it’s changed public opinion so dramatically,” Richard Socarides, a former adviser to President Bill Clinton, told Politico. “It’s really unbelievable what a successful communications and litigation strategy has combined to do in such a short time.”

Legal experts anticipate decisions on Prop 8 and DOMA to come sometime this summer.

What Would You Pay to Witness the Prop 8, DOMA Strike-Down?

LGBT-rights activists and political enthusiasts lined up for front-row seats: Many have been  rallying and camping outside the courthouse since last week, hoping to be one of the 100 people admitted free access to the courtroom hearings. And news sources report that while seats in the courtroom are free-to-attend, having someone save you a place in the days-long line will cost you upwards of $6,000 a pop.

It’s a high price that many are willing to pay: There will be no TV broadcasts, media coverage or digital updates (including Twitter and social media) allowed in the room while the oral arguments are underway. Only a transcript and an audio recording will be released once the arguments have concluded.

Prop 8: Same-Gender Marriage Disputed in California

Although the Supreme Court had struck it down just months earlier, California’s Proposition 8 ban against same-gender marriage was voted into law in 2008. Thousands of same-gender couples in the state already had been legally married but others were prevented from doing so. Proposition 8 has since been struck down by two federal courts as unconstitutional. Should the Supreme Court rule against Prop 8?

What is DOMA? A Case for Discrimination Against LGBTs

The Defense of Marriage Act originally was passed by Congress and signed into law by  President Bill Clinton’s Administration in 1996: DOMA prevents the recognition of same-gender marriage by the Federal Government. The law was struck down last year by two federal appeals courts: Boston in June 2012 and New York in October, and Windsor v. United States now challenges the law’s constitutionality and claims discrimination against LGBTs.

If the Supreme Court rules in favor of the DOMA appeal, same-gender couples in states that recognize same-gender marriage would qualify for the same federal marriage benefits, tax breaks and Social Security survivor benefits that heterosexual married couples are entitled to under the law.

—Stacy Straczynski

The post Why the Supreme Court May Not Recognize Same-Gender Marriage appeared first on DiversityInc.

More than 200 corporations also have filed a separate brief urging the Supreme Court to overturn DOMA. These companies include: Aetna, Blue Cross Blue Shield of Massachusetts, Boehringer Ingelheim, Boston Scientific, Ernst & Young, Exelon, Johnson & Johnson, Marriott International, MassMutual, The McGraw-Hill Companies, Microsoft, New York Life, The Ogilvy Group, Pfizer, State Street Corporation, Xerox and The Walt Disney Company.

The Republicans’ brief presents the Supreme Court justices with a detailed argument about the discrimination Prop 8 and DOMA inflict. The Supreme Court is scheduled to hear cases on Prop 8 and DOMA legislation starting next week, with a final decision expected before the summer. The rulings on these two major cases could impact nationally the definition of marriage and same-gender couples’ right to wed, as previously reported by DiversityInc. Both legislations define marriage as a union between a man and a woman.

Legal experts say the brief could help sway conservative Supreme Court justices in favor of striking down the same-gender-marriage bans, especially in light of the prominent names on the list. These include:

• Theodore B. Olson, Solicitor General under President George W. Bush and co-counsel in the Prop 8 lawsuit
• Meg Whitman, former Prop 8 supporter and one-time candidate for Governor of California who now is the President and CEO of HP
• Congresswoman Ileana Ros-Lehtinen (Florida)
• Congressman Richard Hanna (New York)
• Stephen J. Hadley, National Security Adviser under Bush
• Carlos Gutierrez, Commerce Secretary under Bush and former Chairman and CEO of Kellogg Company
• James B. Comey, Deputy Attorney General under Bush
• David A. Stockman, Director of the Office of Management and Budget under President Ronald Reagan
• Deborah Pryce, former eight-term Congresswoman and Chair of the House Republican Conference

“We are trying to say to the court that we are judicial and political conservatives, and it is consistent with our values and philosophy for you to overturn Proposition 8,” Ken Mehlman, former Chairman of the Republican National Committee, told The New York Times. Mehlman, who is out as gay, serves on the board of the American Foundation for Equal Rights.

There have been sweeping changes in public attitudes toward same-gender unions in the past few years—49 percent of Americans now agree that states should allow same-sex marriage, according to a Pew Research Center poll. This is up from just 39 percent in 2008.

The post 100+ GOP Leaders, 200+ Corporations Support Same-Gender Marriage appeared first on DiversityInc.

Same-gender partners are expected to receive military identification cards, which will allow access to military perks such as commissaries and family-support programs, and access to military-only facilities including gyms and movie theaters. Additionally, same-gender partners could receive some privileges in health programs. The Don’t Ask, Don’t Tell (DADT) policy, which enforced a mandatory discharge of any troops identified as gay or lesbian, was repealed 16 months earlier.

“Considering DADT was repealed well over a year ago, our families have waited far too long for the Defense Department to extend benefits to same-sex military spouses,” said Stephen Peters, president of the American Military Partner Association. “No military family should suffer because of outdated regulations. For the sake of our families, we hope for substantive action and look forward to hearing from Secretary Panetta on exactly what benefits will be extended.”

While a step in the right direction, the benefits being extended to same-gender couples will not encompass the full breadth of allowances—including medical, dental, housing and other spousal benefits—because of the continued existence of the federal Defense of Marriage Act. That law states that the federal government only recognizes heterosexual marriages.

What About DOMA? What Will SCOTUS Rule?

As more states have recognized same-gender marriage, the next big question is how the Supreme Court will rule on the Defense of Marriage Act (DOMA) and Proposition 8? Both cases will appear before the high court starting in March, with rulings expected sometime this summer. Proposition 8 refers to the ballot measure against same-gender marriage that was approved by voters in California but which has been ruled unconstitutional by lower courts.

“If you provide benefits to individuals seen as the most deserving and the social fabric doesn’t tear, that does make it easier down the line to do away with DOMA,” said Tammy S. Schultz, the director of the National Security and Joint Warfare Program at the Marine Corps War College. However, she says the benefits announced by the Pentagon “could be a flanking maneuver to keep chipping away at it.”

Global Equality Increasing

While global inequities for LGBT people remain and are examined in our recent Global Diversity Research report, there has been progress in certain countries. Our report examines LGBT resource groups and benefits, and companies’ abilities to create safe workplaces and to lobby for human rights. Most of the progress in LGBT equality globally has come in Western Europe. To that end, the British House of Commons just voted overwhelmingly to approve same-gender marriage in the United Kingdom.

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In recent years, 20 states across the country have passed legislation granting relationship recognition to same-sex couples. Depending on the state of residence, the terminology varies from marriages to civil unions to domestic partnerships. Regardless of the name, one thing remains the same: The rights, benefits and privileges extended with any of these same-sex unions ends at the respective state border.  

This patchwork approach to marriage equality for LGBT couples creates a host of complications. For instance, the benefits received from a marriage in Iowa are not recognized when a couple travels or moves to another state that lacks any type of recognition of their union. Honoring a marriage and reciprocating the benefits that come along with that marriage have long been the norm for opposite-sex spouses in all 50 states.

Discussion of federally recognized marriage equality is impossible at the moment, because of a piece of federal legislation signed into law in 1996. The Defense of Marriage Act, commonly known as DOMA, clearly defines a marriage as a union between one man and one woman. This law restricts the federal government from recognizing any state-level union of same-sex couples, the effects of which can be felt in almost every financial- and estate-planning discussion.

The U.S. tax code, for instance, does not recognize same-sex LGBT couples for tax-planning purposes. This includes joint filing of income taxes, avoidance of gift taxes when transferring assets to one another during life, and avoidance of estate taxes when inheriting assets upon the death of a partner. Pension plans with many private companies restrict inheritance benefits to federally recognized spouses only. This often results in a full disinheritance of the pension benefits to a surviving partner. Federal entitlement programs such as Social Security benefits, often a primary source of retirement income, are simply unavailable to a surviving same-sex partner.

The additional taxes, both during life and upon death, in addition to the loss of retirement income streams such as pensions and Social Security are just the tip of the iceberg. The financial challenges presented by this lack of federal recognition are widespread and add a layer of complexity to the retirement- and estate-planning process for all LGBT couples. The good news is that with the correct analysis and planning, some of these challenges can be reduced or eliminated entirely. The full benefits of marriage will likely never be realized without full federal recognition, but until that is possible, planning can go a long way.

Over the coming months, my colleagues and I will be presenting an in-depth look at many of the unique financial challenges faced by the LGBT community. In addition to presenting the issue at hand, we will help you take a look at some of the strategies available to knock down many of these financial barriers.

Stay tuned as we dig deeper into this discussion.

Wells Fargo Advisors is not a tax or legal advisor. Wells Fargo Advisors, LLC, member SIPC, is a registered broker-dealer and separate nonbank affiliate of Wells Fargo & Company, No. 33 on the DiversityInc Top 50.

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After weeks of anxious waiting by LGBT-rights advocates, U.S. Supreme Court justices declared that they will weigh in on the growing same-gender marriage debate. The court announced on Friday afternoon that it will hear two cases that have challenged the Defense of Marriage Act (DOMA) and California’s Proposition 8 legislation, both of which defined legal marriage as only between a man and a woman.

The outcome of these two major cases could have a sweeping impact on the definition of marriage in the United States and on same-gender couples’ right to wed.

“The nation’s high court has agreed to consider one of the most defining civil-rights issues of our time. … The DOMA and Prop 8 cases present the Supreme Court with a monumental opportunity to affirm our Constitution’s promises of liberty, equality and human dignity,” says Rea Carey, executive director, National Gay and Lesbian Task Force.

The announcement follows sweeping changes in public attitudes toward these unions—49 percent of Americans now agree that states should allow same-sex marriage, according to a Pew Research Center poll, compared with 39 percent in 2008.

“The recent election signaled just how far we’ve come on the path toward treating all families fairly, with landmark statewide victories affirming the right of loving, committed same-sex couples to share in the celebration and responsibilities of marriage,” says Carey. “This long road to the high court has been filled with thousands of personal conversations about why marriage matters to us, and of how discrimination hurts our families.”

DOMA: Discrimination Against LGBTs

Legal experts had anticipated that the Defense of Marriage Act would be the most likely to be heard by the Supreme Court. DOMA, which originally was passed by Congress and signed into law by President Clinton in 1996, was struck down this year by two federal appeals courts: Boston in June and New York in October. The law prevents the government from recognizing any same-sex marriage, even if a state’s law provides for it. Windsor v. United States challenges the law, saying it amounts to discrimination against LGBTs in those states that allow same-gender marriages.

If the Supreme Court agrees with the appeals courts, same-gender couples in states that recognize same-gender marriage would be recognized equally under the law and qualify for federal marriage benefits, tax breaks and Social Security survivor benefits.

What Is Proposition 8?

Proposition 8 is a same-gender marriage ban in California that was voted into law in 2008—just months after the California Supreme Court had struck it down. This left thousands of California same-gender couples legally married while preventing others from doing so. Since then, Proposition 8 has been struck down by two federal courts as unconstitutional.

LGBT: How Many States Recognize Same-Gender Marriage?

According to the Human Rights Campaign, 15.8 percent of Americans now live in states that support marriage equality. If California’s Proposition 8 is struck down, that number will jump to 27.9 percent.

Currently nine states recognize same-gender marriages: Maine, New Hampshire, Vermont, New York, Massachusetts, Connecticut, Maryland, Iowa and Washington, plus the District of Columbia. Rights for same-gender couples are recognized in Oregon, California, Nevada, Illinois, New Jersey, Rhode Island, Delaware and Hawaii. For more facts on the LGBT population and states’ laws regarding same-gender marriage, please read our LGBT Pride Facts & Figures.

Many of the DiversityInc Top 50 Companies proactively provide additional benefits and services for same-gender couples, both employees and customers. For example, Wells Fargo (No. 33 in The DiversityInc Top 50 Companies for Diversity) launched an Accredited Domestic Partner Advisor program, which the company presented at our Innovation Fest!, to specifically help LGBT clients with their unique financial situations. Watch the video below.

All of the companies on the DiversityInc Top 10 Companies for LGBT Employees received 100 percent ratings on the Human Rights Campaign Corporate Equality Index. These are among the 38 total DiversityInc Top 50 companies that earned a 100 percent rating.

Also read:

The DiversityInc Top 10 Companies for LGBT Employees

Ask the White Guy: LGBT Rights Are Human Rights

CEI Index: Twice As Many Top 50 Companies Have 100% Ratings vs. Fortune 500

DOMA Rejected by Federal Court in N.Y.

Same-Gender Financial Crisis? You Must Watch This

Real Diversity Leadership: CEOs of E&Y, AT&T on Boy Scout Gay Ban

President Obama Supports Marriage Equality

Gay-Marriage Ban Struck Down: Why Your Company Should Care

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The ruling is “a watershed moment in the legal movement for lesbian and gay rights,” said American Civil Liberties Union attorney James Esseks.

Sources anticipate that the Bipartisan Legal Advisory Group of the House of Representatives will appeal the ruling to the Supreme Court.

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The U.S. Circuit Court of Appeals in Boston, in a unanimous and bipartisan decision, ruled that the federal law defining legal marriage as only between a man and a woman deprives same-sex couples of the same rights heterosexual couples have when receiving federal benefits, including filing joint federal tax returns.

The court did not address the controversial issue of whether states that have not approved same-sex marriages must recognize them.

Read history and facts about DOMA from the Human Rights Campaign.

Obama & Black Community Support

The momentum on this issue shifted dramatically last month when President Barack Obama finally publicly declared his support of same-sex marriage. To further support that announcement, the Justice Department did not intercede in the Boston decision in favor of DOMA, as it has done in the past.

What’s important in the days since Obama’s declaration is the growing support of same-sex marriage in the Black community. The NAACP, the Rev. Jesse Jackson and other Black leaders have come out in support of marriage equality.

“I’m particularly heartened by the announcement from the NAACP. There’s a new realization that we’re all in this together and that nobody should be discriminated against,” says retired U.S. Navy Captain Joan Darrah, a former board member of the Servicemembers Legal Defense Network. Darrah was a leader in the fight to end the “don’t ask, don’t tell” policy in the military and is part of a continuing legal battle to give partners of gay and lesbian service members equal military benefits.

Darrah sees the momentum shifting on the federal level, although she thinks it could be a long battle to get some states—including Virginia, where she lives with her partner—to change.

Creating an Inclusive Culture

If your organization isn’t supportive of equality for everyone, here are some tips garnered from the DiversityInc Top 50 on how to build an inclusive workplace.

• Require cultural-competence diversity training. Mandatory training that includes factual, educational information on LGBT groups is a must. Eighty-six percent of The 2012 DiversityInc Top 50 Companies for Diversity now require diversity training for their managers, compared with 78 percent five years ago. Sixty-eight percent require diversity training for their entire workforces, compared with 58 percent five years ago. Read DiversityInc’s LGBT Pride Facts & Figures, which you can use for educational purposes. Click here information on our diversity-training courses.
• Use your resource groups to create more inclusive workplaces. Your LGBT resource group is a great start. Make sure its name includes the word “friends,” “allies” or “straight” so people who are not LGBT or are not out are comfortable joining. Ensure that members of this resource group are included in prominent roles in company events and publications, that they meet frequently with senior leaders, and that they set up company-wide educational programs. Read Our Analysis of the HRC’s Corporate Equality Index.
• Maintain a “no-tolerance-for-bigotry” policy for everyone. Core diversity-management values are essential to an organization, emanating from the very top. Those values must include an absolute adherence to diversity and inclusion for everyone, regardless of race, ethnicity, gender, religious background, disability and, especially, orientation. Read Diversity Management 101 and The Four Stages of Diversity Management.

–Barbara Frankel

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