A GAY-RIGHTS RULING IN TEXAS, A VETO IN ARIZONA

http://www.newyorker.com/online/blogs/closeread/2014/02/a-gay-rights-ruling-in-texas-a-veto-in-arizona.html



“Holmes honorably served our nation for nearly twenty-three years and retired as a Major at the end of 2010,” Judge Orlando Garcia, of the Western District of Texas, wrote in an order, issued Thursday, finding the state’s ban on same-sex marriage unconstitutional. Victor Holmes and Mark Phariss brought the case after they had been denied a marriage license because they were both men. Cleopatra de Leon—“a United States Air Force veteran,” Garcia noted, “honorably discharged after ten years of service”—and Nicole Dimetman, their fellow plaintiffs, were asking Texas to recognize their marriage, which took place in Massachusetts. Garcia’s ruling did not rely on their status as veterans; the Fourteenth Amendment and a Supreme Court ruling last summer were what mattered. And yet their service is part of the story—of their lives, but also of a larger fight for marriage equality and, more simply, equality. What does it mean to treat a citizen honorably?

That question had been headed for an ignominious answer in Arizona, where the state legislature passed a bill its supporters bragged would allow businesses to turn away same-sex couples. This is supposedly in the name of religious freedom. Jan Brewer, the governor, vetoed the bill Wednesday night, something even Republicans like Mitt Romney and John McCain had urged her to do. The language was so broad that it could have turned an assertion of religiosity into an all-purpose defense for the firing or unfair treatment of all sorts of people, not only gays and lesbians (although that would be bad enough)—a civil stand-your-discriminatory-ground law. The legal theory is tied up with cases like Sebelius v. Hobby Lobby, in which a private, for-profit company is trying to get an exemption from Obamacare’s contraception-coverage mandate on religious grounds. But the Arizona law had no pretense about its homophobia. The real wonder is that it took several days for Brewer to decide to veto it.

If Arizona had adopted its discrimination law, it would have found itself increasingly lonely. (The N.F.L. might even have moved the Super Bowl.) Judge Garcia stayed his ruling pending an appeal, meaning that Holmes and Phariss, and others in Texas, can’t get married just yet. There will be more cases soon. Federal courts in Virginia, Oklahoma, and Utah have all also found their states’ same-sex marriage bans unconstitutional (though those rulings have also been stayed). Those victories owe much to Edith Windsor, the widow who brought the case that led the Supreme Court to throw out the provisions of the Defense of Marriage Act prohibiting the federal government from recognizing state-sanctioned same-sex marriages. It did not recognize a broader right to same-sex marriage but, as has become increasingly clear, it laid out the legal building blocks for such a case. Garcia, in effect, argued that the state ban was a mini-DOMA: “The lower courts must apply the Supreme Court’s decision in Windsor and decide whether a state can do what the federal government cannot: discriminate against same-sex couples.” There will likely be more such rulings, and more states that find other ways to legalize same-sex weddings, either through referendum or legislation. How many depends on how long it takes for the Supreme Court to rule on a fifty-state right to marriage equality.

A word that appeared several times in Judge Garcia’s ruling was “dignity.” “By denying Plaintiffs Holmes and Phariss the fundamental right to marry, Texas denies their relationship the same status and dignity afforded to citizens who are permitted to marry. It also denies them the legal, social, and financial benefits of marriage that opposite-sex couples enjoy.” The laws, he continued, “demean their dignity for no legitimate reason.” Garcia also wrote about the “needless stigmatization and humiliation for children being raised by the loving same-sex couples being targeted”—an example of how the argument that same-sex marriage needs to be stopped for the sake of the children has been turned on its head: if you believe that it is helpful for children to have parents who are married, then you should support same-sex marriage. And, again, he looked at the situation of gays and lesbians in uniform: