April 17, 2013

LEO talks with lawyer who challenged DOMA

James Esseks is part of the legal team that challenged the Defense of Marriage Act (DOMA) in the U.S. vs. Windsor case before the Supreme Court last month. In advance of a visit to Louisville, the lawyer and director of the ACLU LGBT & AIDS Project spoke with LEO about the Windsor case, the Prop 8 case also heard by the Supreme Court, and what those decisions would mean for Kentucky and LGBT rights.

LEO: How do you think your case went in front of the Supreme Court?

James Esseks: They asked a lot of questions and gave us an opportunity to make the case that DOMA violates the Constitution and treats married same-sex couples in a really unfair way, because it requires the federal government to discriminate and treat them as though they’re unmarried. They’re clearly taking it seriously. If all you do is listen to the questions they asked, it looks like there might well be five votes to strike the thing down. But the problem is, the questions don’t always indicate where they are. So I’m hopeful, but you never know.

LEO: What could the effect be for a state like Kentucky that has a constitutional ban on same-sex marriage and civil unions?

JE: For DOMA, there are assuredly same-sex couples in Kentucky who got married someplace else, like Iowa or New York. And the question would be, if DOMA goes down, is the federal government going to respect those marriages? In most contexts, the federal government will factor whether you are married based on the law of the state you live in, but there are a few contexts where they’ll decide based on the state where you were married, like immigration. So if you’re a couple that lives in Kentucky but were married in New York and your spouse is a foreign national, if DOMA goes down, you will almost definitely be able to sponsor your spouse for U.S. citizenship, just like any other U.S. citizen can. But for most other federal programs — taxes, Social Security survivor benefits — you’re still going to be considered by the federal government as unmarried, because Kentucky doesn’t recognize your marriage.

LEO: But the Prop 8 case could have a much larger effect on Kentucky?

JE: Right. The broadest ruling would be a ruling that affects every state, and that would say the federal Constitution requires all states to allow same-sex couples to marry. That would overturn the constitutional amendment in Kentucky, and in the 29 other states that have such amendments.

But based on the questions at arguments, it looks like the court may well dismiss the case for lack of standing …

LEO: What do you think of the argument of conservatives like Sen. Rand Paul who are rooting for your side on DOMA, as they want to draw out a decades-long fight in conservative states to block same-sex marriage at the state level?

JE: There were some friend-of-the-court briefs filed in the Windsor case talking about a federalism angle, saying states marry people and the federal government doesn’t. Prior to 1996 when DOMA was passed, there was no federal definition of marriage. The advantage to someone like Paul in that argument is that it maintains the autonomy of states to decide who gets married and who doesn’t. There’s something to that argument, but it only goes so far. The equality requirements in the federal Constitution bind to the states, as well as the federal government, and I think state marriage amendments, including Kentucky’s, violate the federal Constitution. So I don’t think a ruling striking down DOMA is going to mean states are free to do whatever they want.

LEO: What do you say to critics who think the LGBT rights movement is too focused on marriage instead of civil rights such as freedom from discrimination?

JE: In Kentucky, it’s awful hard to make progress on marriage without repealing that amendment, which we’re going to have to get around to some day. At the moment, all of the political activity in Kentucky is focused on getting your workplace fairness law updated so it covers gender identity and sexual orientation. I think that’s exactly where the energy and focus needs to go.

Bigger picture, I think the LGBT rights movement is spending a bunch of time talking about marriage because our opponents have been talking about marriage, and even if we wanted to change the subject, we couldn’t. It was the forces that disapprove of gay people and want them to stay in the closet that decided it was important to focus on marriage. People on the gay rights side of things didn’t put one of those ballot initiatives (over 20 states banning gay marriage from 2004 to 2008) on the ballot. The other side started this conversation, and we could either let it happen and not talk about it or fight back.

But I think marriage is incredibly important culturally, and I think for good reason. Everybody knows what marriage means, because it’s a language in our culture to describe love and commitment to another person in front of friends and family. One of the stereotypes at the core of homophobia is that gay people are all about sex and not about relationships, love, commitment or family. And the reality that many within the LGBT community do want to get married and see their relationships this way gets directly at the stereotypes that animate the discrimination against us. As that conversation happens, people will realize these stereotypes about gay people don’t fit with the reality of what they’re seeing. That helps not only to break down barriers for marriage by gay people, but it helps break down homophobia at its core.


Last week in Kentucky, Lt. Gov Jerry Abramson and state Auditor Adam Edelen told LEO they support same-sex marriage, becoming the first sitting statewide officers to do so. A poll last week showed only 27 percent of Kentuckians support marriage equality, though 52 percent support civil unions, both of which are banned under a 2004 state constitutional amendment.

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