Court will hear two same-sex marriage cases in spring
CHARLOTTE, N.C. — Rod Goins and Dave Rogers have been side-by-side for nearly two decades. They met on a night out at a bar in August 1995 when both were living in Ashland, Ken.
“From the time we met it was a very quick romance,” Rogers says. “He moved in officially three months later, but he was there every night even after a month.”
Their bond solidified as both faced personal losses.
“It was a trying period for both of us,” says Goins. “At the time when we met, Dave’s best friend was dying of AIDS. The weekend he died, one of my dearest friend’s parents got killed in a car accident. We went through a lot of emotional ups and downs in the beginning that helped draw us together fairly quickly.”
Through thick and thin, the couple has stayed put. Now living in Salisbury, N.C., Goins and Rogers will celebrate their 18th anniversary in August — without the legal marriage so many of their friends and family have enjoyed.
The couple’s life experiences mirror those of the thousands of same-sex couples who will await a fate to be determined as the U.S. Supreme Court prepares to hear two separate marriage-related cases in the spring.
Last Friday, the court said it would hear oral arguments as early as March on a challenge to California’s anti-gay state constitutional amendment, Proposition 8. The court also said it would hear another case challenging a portion of the 1996 Defense of Marriage Act (DOMA) barring federal recognition of same-sex marriages legally performed by states or other jurisdictions.
The decision to hear the cases is historic, representing the first two same-sex marriage cases the court has ever agreed to review.
Rogers and Goins say they are both optimistic and concerned with the court’s impending decision, which could be issued as soon as June.
“In our hearts, we’re married and we call each other husband, but until I have the same equal rights as everyone else, I’m not going to put on a charade,” says Rogers.
He hopes the court comes down with a broad ruling, opening up the possibility that he and his husband can finally wed.
“The only hope I see is for the Supreme Court to come in and say this is all illegal and all unconstitutional and wipe out all marriage bans,” Rogers says.
Pam Spaulding, a Durham, N.C.-native and a prolific writer and commentator known for her LGBT-focused blog, Pam’s House Blend, is also hoping for the best.
“Otherwise,” she says, “North Carolina is going to be waiting a really, really long time. It’s not going to happen here legislatively. It’s going to happen at the federal level, at the Supreme Court.”
Spaulding met her wife, Kate, in 2002 at a game night for Triangle-area lesbians.
“I just happened to be hosting the game night when she attended and she came to a few other events and after that we began seeing each other,” she says.
She and Kate married legally in Vancouver, British Columbia, in 2004.
“We just wanted to get married and we knew it wasn’t going to happen in North Carolina anytime soon,” Spaulding says.
At the time, no other state in the union allowed Spaulding and her wife to wed. That year, San Francisco’s mayor had defied state law and begun issuing marriage licenses. They could have married there but missed the opportunity. Even if they had, just six months later, all of the 4,000 San Francisco marriages were voided. In Massachusetts, marriage discrimination had ended for state residents, but an old law forbidding out-of-state marriages had yet to be repealed.
Barred from marriage locally and nationally and with plans already made to vacation in Vancouver, the couple decided to marry in Canada.
“Would I have chosen to get married in North Carolina if it had been available to us? Sure,” she says. “It would have been great because we would have been able to invite lots of people to come to the wedding and have more friends and family there. In this case, the only person who attended was my brother.
“I think at some point, though, the reality set in that we were going to have to wait for our rights — and fight for them all along the way — but we couldn’t let our lives stand still to wait on that,” Spaulding adds. “We wanted our marriage to be legally recognized somewhere on the planet and, of course, our marriage is now recognized in many places and it is growing.”
Couples left in limbo
Chief among Spaulding’s concerns are the legal obstacles currently facing her and her wife. She says a “patchwork” of state laws keeps them constantly on-guard. In some states, she and Kate are married. In others, they have only a civil union. In most, they are legal strangers.
It’s the DOMA case Spaulding most fears. She hopes a potentially narrow Supreme Court decision doesn’t make her uncertainty more pronounced.
“This will throw a monkey wrench into what we can or cannot do,” says Spaulding.
Even a favorable ruling striking down portions of DOMA presents a challenge. Because Spaulding and her wife were wed in Canada, such a ruling could grant the couple federal recognition even though they live in a state whose voters approved an anti-gay-marriage amendment to their state constitution in May.
“What will it mean in states where we have zero recognition if we have federal recognition,” asks Spaulding. “Having that limbo, having the issues of traveling across state lines and not knowing what rights you are entitled to is incredibly demoralizing and distressing. What happens to us if one of us is injured and ends up in the hospital?”
A 2010 executive order from President Barack Obama forbidding anti-LGBT discrimination in hospitals receiving federal support provides some protections.
“But that doesn’t mean that discrimination doesn’t occur anyway,” Spaulding notes. “Does that mean we have to walk around with our marriage license to prove we’re married? We don’t know what our status is at any given time. That is alarming.”
Complicated legal questions in the case make concerns about its impact all the more worrisome. This week, the court said it will consider a procedural question on whether the Republican-led Bipartisan Legal Advisory Group defending DOMA and the U.S. Department of Justice, which has stopped defending DOMA, have legal standing in the case. If neither do, the case could be dismissed, keeping all DOMA-related questions at status quo. Questions on legal standing will also be considered in the Proposition 8 case.
Complications aside, some pundits say big rewards and big risks are presented by the two cases’ merits alone. On one hand, Supreme Court justices could make two very favorable or broad rulings opening marriage rights to many or all same-sex couples. On the other, the court could uphold DOMA and overturn lower-court rulings against Proposition 8.
The Supreme Court hasn’t always been favorable on matters of gay rights. It took nearly 20 years for the anti-gay decision in Bowers v. Hardwick (1986) to be overturned with the court’s 2003 Lawrence v. Texas decision eliminating anti-gay crime-against-nature laws.
Spaulding doesn’t think it will take that long for a potentially unfavorable marriage ruling to be overturned.
“We’d have to rely on the states where we have a chance of passing marriage equality at the ballot box or legislatively,” she says. “That would help change the tide that will force the Supreme Court to someday have a case that is more favorable.”
Still, a loss could prove a major setback for LGBT equality advances.
“You could see the potential for a large delay in the states,” she says. “In states like North Carolina, the rights we are going to have to gain are going to have to be small and at the local city and municipal level to obtain same-sex equivalent rights or domestic partnerships.”
Small changes, says Spaulding, are good for changing hearts and minds but not at large-scale progressive movement.
‘A matter of time’
Spaulding, Goins and Rogers all agree that it’s a mere matter of time before same-sex couples can legally wed. Optimistically, that clock is winding down fast.
“There has been a consistent and compelling trend on how gay rights and gay marriage are looked at generally,” says Goins. “Even though we lost in this state, national public opinion polls have been moving in our favor.”
That’s a good sign, says Rogers.
Even after the Supreme Court’s 1967 Loving v. Virginia decision striking down interracial marriage bans, nearly three-quarters of the nation remained opposed. Alabama didn’t take its anti-miscegenation law off its books until 2000. Though 31 states have amended their constitutions to ban gay marriage, popular opinion today is nowhere near as entrenched as last century’s opposition to interracial marriage.
“I don’t see how with the public opinion polls being what they are, I don’t see how they could go that direction,” Rogers says. “I don’t see how they could do anything harmful.”
Goins, who serves on the board of directors for North Carolina’s statewide LGBT advocacy and education group, says he’s confident the DOMA case will be successful.
“I believe that could happen with even a 6-3 or 7-2 vote,” Goins says. “I could see Justice [Anthony] Kennedy striking down DOMA just on a state’s rights issue of autonomy. I could see the [Chief Justice John Roberts] doing the same.”
The couple hopes the court will be as bold as they were in 1967. By the early 1960s, 41 states had passed some sort of interracial marriage ban, though only 16 states still had anti-miscegenation laws at the time of the court’s decision.
“We might still have states today that restrict marriage on racial grounds if it weren’t for [the court] taking action,” Goins says.