Love & the Law: Privacy? No. Sex? No. History? No. Liberty? Yep, We Were Wrong. Pt 1
Updated May 27, 2023 Finishing the “Love & the Law” series, this article reviews 2 cases at the heart of the right to privacy for the LGBT community: Bowers v. Hardwick, decided in June 1986, and Lawrence v. Texas, decided 15 years later in June 2003. First Bowers… Hardwick was arrested in 1982 and charged with violating Georgia’s sodomy law. The District Attorney refused to continue prosecuting the case for lack of evidence. Still, Hardwick sued on the grounds that the Georgia statute, prohibiting “any sexual act involving the sex organs of one person and the mouth or anus of another,” violated his constitutional rights. The district court dismissed the suit for the failure to state a claim upon which relief could be granted. The Eleventh Circuit reversed using a right of privacy as its rationale, requiring the State to prove it had a compelling interest in maintaining the law. The State appealed; other courts disagreed, so the Supreme Court of the United States agreed to hear the case. The Court framed the issue as being whether the U.S. Constitution provided a fundamental right to the LGBT community to participate in gay sex. Talk about a narrow frame. It further explained that gay sex was not a required component of privacy rights and though Hardwick argued on the grounds using other Supreme Court cases – Griswold v. Connecticut and Eisenstadt v. Baird, the Court asserted that there was no link between those cases and his. Those cases involved family, marriage, or procreation; this case did not. The Court continued to explain that it was trying not to judge the case on ideological, moral grounds and would look to the defining essence of those rights that require a compelling interest be shown. That essence could be determined under one of 2 formulae: (1) if the activity was proscribed, there would be no liberty or justice; or (2) the rights were those “deeply rooted in the nation’s history and tradition.” According to the Court, gay sex didn’t meet either formula. Then, the Court continued to judge the case on ideological and moral grounds: “The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated…the courts will be very busy indeed.” Eleventh Circuit’s decision was reversed and the law remained valid until… Lawrence v. Texas… The Love & the Law Episodes: Brief Case History | Contraceptives | The Color of Love | The IRS v. NY | Privacy? No. Sex? No. History? No. Liberty? Yep. Pt 1 | Privacy? No. Sex? No. History? No. Liberty? Yep. Pt 2
Love & the Law: Privacy? No. Sex? No. History? No. Liberty? Yep, We Were Wrong. Pt 2
Lawrence v. Texas… From the very beginning of the Lawrence Opinion, one could tell that the Bowers decision was in trouble. Sometimes justices write opinions in this manner to throw readers off, but it wasn’t the case in Lawrence when Justice Kennedy opened the Opinion by explaining that the cornerstone of the Fourteenth Amendment is liberty and embedded in liberty is the right to privacy. Facts Houston , Texas police were called to a house on a weapons disturbance tip. They entered the home to witness John Lawrence and Tyrone Garner engaged in sexual activity. Both were charged and convicted of “deviate sexual intercourse,” a violation of a Texas statute. In their defense, they challenged the statute as unconstitutional with regards to the Equal Protection Clause of the Fourteenth Amendment and a similar provision in the Texas Constitution. The Texas Court of Appeals rejected the defense and Mr. Lawrence appealed to the U.S. Supreme Court. The Court saw Lawrence as presenting 3 issues, whether: The Texas statute violated the Equal Protection Clause of the Fourteenth Amendment; The Texas statute violated the Due Process Clause of the Fourteenth Amendment; and Bowers was decided correctly. In analyzing the issues, the Court first turned to Griswold, which established privacy rights for marital relationships but, according to the Court, also set the foundation for individual privacy rights outside of marriage. So Mr. Hardwick was correct. The Court also considered another landmark case, Eisenstadt v. Baird, where personal rights of unmarried persons involving contraceptives was at issue. It then looked at Roe v. Wade and established the following rationale: Per Griswold, Eisenstadt, and Roe v. Wade, the privacy of a woman resulted in a woman’s right to “make fundamental decisions regarding her destiny.” It stands to reason that if the rights apply to women, then they assuredly apply to men. Accordingly, Due Process protection is much more expansive than the language implies. Next, the Court considered Carey v. Population Services International, where the Court ruled that a law prohibiting the sale of contraceptives to persons under 16 years was invalid. The Court took these steps to show where the law had moved on the issue of privacy in intimate relations by the time the Bowers case was to be decided. It explained that Bowers was similar to Lawrence but the Georgia statute in Bowers applied to all Georgia citizens, whereas the Texas statute only applied to homosexuals. So equal protection of the laws was not provided to Mr. Lawrence. The Court then considered the framing of the issue by the Court in Bowers, stating that it was too narrowly framed because it failed to consider the issue of liberty. Hmmm… The Court stated that adults, including members of the LGBT community, may choose the kind of relationships they want to enter into without sacrificing their dignity. Addressing the issue of community and tradition as brought up by the Court in Bowers, the Court gave a history lesson on the law against homosexuals, stating that, in fact, there was no tradition of laws against gays until the late 19th century: Heterosexual couples participated in the same acts that homosexuals engaged in and it was the heterosexual behavior that was at issue initially. The prohibition was targeting non-procreative sexual activity, not homosexual activity per se. “It was not until the 1970’s that any State singled out same-sex relations for criminal prosecution and only 9 States have done so.” Read: Lawrence’s and Geddes’ fundamental right of liberty and the inherent right of privacy found within the right to liberty were violated. The Court acknowledged the importance of the Bowers’ rationale to a certain extent, recognizing that the Court in Bowers was rightfully giving a voice to those who held strong moral convictions. However, the Court qualified that recognition by also stating that the Court’s job is to define liberty, not push through society’s moral ideologies. The Court continued to explain that well-esteemed bodies of American and European jurisprudence considered such laws draconian and restated what it said in Planned Parenthood v. Casey, which was decided after Bowers: These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Having re-established the principals laid out in Planned Parenthood v. Casey, the Court then proceeded to discuss Romer v. Evans, stating that one of the intended results of the Romer decision was the removal of the stigma associated with criminalizing conduct such as gay sex. After discussing Planned Parenthood v. Casey and Romer, the Court pointed out that the rationale for Bowers had been significantly weakened. Still, recognizing the doctrine of stare decisis in which precedent is given a very high amount of deference because of the legitimacy it gives to Court rulings, i.e., the law, and the stability it creates in the law and society, the Court nevertheless pointed out that the doctrine is not absolute. Hence, the Court concluded that Bowers wasn’t right when it was decided, and was not right now and therefore should not stand and, neither should the Texas statute. Thus, ends the Love & the Law series for now. Given the thorough analysis of liberty and the right to privacy performed by the Court in Lawrence, one can only wonder how long it will take before DOMA is constitutionally invalidated as it is a clear violation of the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment, and likewise implicates the Fifth Amendment. Sidebar Recently, Massachusetts has requested that the Supreme Court should hear cases involving DOMA and invalidate the congressional statute because the statute forces States like Massachusetts, which perform and recognize same-sex marriages, to discriminate against its citizens and that per the Tenth Amendment, which authorizes Congress’s Spending power,
Love & the Law: What Is Animus Anyway?
Animus (a-ni-mus) n. hostility or ill feeling. Animus malus n. evil motive. Animus was the central rationale for ‘Amendment 2’, a Colorado referendum proposing to change the state’s constitution, and the animus was targeted at Colorado’s LGBT community. However, the Supreme Court has long disliked the blatant taste of animus and so killed Amendment 2 in the Court’s hallowed courtroom at 1 First Street in 1996, with its ruling in Romer v. Evans. As the nails were firmly pounded into Amendment 2’s coffin, the right of LGBT persons to be protected from discrimination was placed squarely on the law books. The Facts. In the early ‘90’s, several Colorado municipalities passed ordinances prohibiting discrimination based on sexual orientation. The ordinances applied to sectors such as housing, employment, education, and public accommodations. Sounds reasonable, right? Well, the Colorado legislature, speaking for the people of Colorado, thought otherwise and proposed Amendment 2, a referendum that would have changed Colorado’s constitution and repeal the ordinances. In essence, Amendment 2, after it was voted in, prohibited the protections the ordinances provided. Gay and lesbian Colorado citizens who were also employed by the state along with 3 of the municipalities sued on the grounds that enforcing Amendment 2 would cause the State of Colorado to discriminate against its LGBT citizens. The trial court and the Supreme Court of the State of Colorado agreed with the plaintiffs. Yet, the state persisted, arguing all the way to the Supreme Court of the United States of America, that Amendment 2 treats LGBT persons just like everyone else, only denying them “special rights.” Reading the Court’s Opinion, one could almost feel the Court’s bristling at the State’s audacity. The Court stated that Amendment 2 DOES NOT DENY special rights but WITHDRAWS rights from LGBT persons that all other Colorado citizens have with respect to not being discriminated against. The Court explained that the ordinances in question weren’t providing special rights but exemplifying the growing number of municipalities across the country that was codifying the DUTY NOT TO DISCRIMINATE. As a result, Amendment 2, as the plaintiffs argued, “imposes a special disability on [LGBT] persons alone.\” Continuing its admonition to the State’s defense team, the Court said that Amendment 2 not only deprived LGBT persons of protections afforded by the laws designed to eradicate particular discrimination but the referendum also removed protections of general laws that prohibited arbitrary discrimination. What does this have to do with love, one may be wondering. Well, if discrimination is prohibited on the basis of sexual orientation or gender, then one cannot discriminate against one woman because she loves another woman or one man because he loves another man (ala Lawrence) if the basis of your argument is that laws relating to love (read the right to marry – ala Loving) should be based on heterosexuality. In the beginning of Romer, Justice Kennedy read from Justice Harlan’s dissent of the infamous Plessy v. Ferguson, stating “the Constitution “neither knows nor tolerates classes among citizens.”” Justice Kennedy anchored Romer stating emphatically that the only reason for the referendum and any law like it would be one based upon animus, and that this type of malicious motive could not be grounds for a legitimate government interest needed to uphold a law under the U.S. Constitution. Case closed. Coffin shut. Rights protected. The Love & the Law Episodes: Brief Case History | Contraceptives | The Color of Love | The IRS v. NY | Privacy? No. Sex? No. History? No. Liberty? Yep. Pt 1 | Privacy? No. Sex? No. History? No. Liberty? Yep. Pt 2 p.s. I went a little out of order here. Bowers v. Hardwick was decided before Romer, but Bowers is more closely related to Lawrence, so please excuse the reasonable digression.
Love & the Law: The Color of Love, So Sayeth the Law
In the first part of this series, \”Love & the Law,\” I discussed the undergirding of the marital relationship – privacy. This second part of the series examines a case that challenged the legal definition involving what parties to a marriage should look like, literally. Loving v. Virginia, which was handed down by the U.S. Supreme Court a little more than 45 years ago to this day, banned laws prohibiting blacks and whites to marry. The facts of the case are fairly straightforward: In 1958, Mildred, who was African American, and Richard (Loving), who was white, lived in Virginia and were married in Washington D.C. They returned to Virginia to live and were charged and found guilty of violating Virginia state laws. The first law the Lovings violated was leaving the state to get married with the intent of returning to live as spouses when such a marriage was prohibited by Virginia state law, and theirs was such a marriage. In Virginia, interracial marriage was a felony, ergo, the second Virginia statute they violated, carrying with it prison time of 1 to 5 years. The Virginia court suspended their sentence for 25 years if, however, Mildred and Richard agreed to leave Virginia for the same length of time. The couple agreed and left, but they also appealed. The Supreme Court of the United States found that the State of Virginia had no rational reason for a law prohibiting interracial marriage. The Court stated that it “cannot conceive of a valid legislative purpose…which makes the color of a person’s skin the test of whether his conduct is a criminal offense.” Clearly, to be found guilty of a crime for an immutable characteristic was and is ludicrous. The Court further held that the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Accordingly, Loving resulted in the recognition that marriage is a fundamental right to be enjoyed by persons regardless of their racial or ethnic origins as detected by one\’s skin color. The Love & the Law Episodes: Brief Case History | Contraceptives | The Color of Love | The IRS v. NY | Privacy? No. Sex? No. History? No. Liberty? Yep. Pt 1 | Privacy? No. Sex? No. History? No. Liberty? Yep. Pt 2
Love & the Law: Contraceptives
Updated May 27, 2023 As mentioned in last week’s post, to celebrate Pride month and advocate marriage equality, this piece and a few subsequent posts will revisit landmark cases in the area of “Love and the Law.” The first case on our docket is Griswold v. Connecticut, which the U.S. Supreme Court decided in 1965. Though the issue in Griswold was whether a state law violated a married couple’s right to privacy and the Opinion of the Court, written by Justice Douglas, asserted that it did, the concurring opinion written by Justice Goldberg provided the more compelling arguments and analyses. Facts Griswold was the Executive Director of Planned Parenthood in Connecticut and, with a licensed physician, advised a married couple on how to use contraceptives. At the time, Connecticut state law prohibited using contraceptives and also prohibited helping a person commit crime. Consequently, Griswold and the doctor were found guilty of assisting the married couple in the commission of a crime. The State argued that the case analysis should be based on the Due Process Clause of the Fourteenth Amendment as it relates to economic, business, or social situations. The Court disagreed and stated that Griswold didn’t involve those situations, but instead involved the “intimate relation of husband and wife and they physician’s role in one aspect of that relation.” The Court next discussed the various penumbras, i.e., implied rights, included in the Bill of Rights, particularly those of the First Amendment, such as the freedom to associate with others and the right to privacy. Within the right to privacy, the Court further explained, previous case law found privacy zones such as one’s house, person, papers, or effects. Finally, putting it all together, the Court stated that Griswold involved a case about a relationship – an “association” – within a fundamental zone of privacy, a married couple’s house. Accordingly, there could be no rational reason for having this kind of law. In his concurrence, Justice Goldberg fleshed out the reason why certain rights are “fundamental” in the first place: “In determining which rights are fundamental, judges are not left at large to decide cases in light of their personal and private notions. Rather, they must look to the \”traditions and [collective] conscience of our people\” to determine whether a principle is \”so rooted [there] . . . as to be ranked as fundamental.\” Goldberg related the fundamental rights to the pursuit of happiness (read Loving v. Virginia) as discussed by the Founders along with the “right to be let alone”; sounds familiar? We\’ll get to Lawrence v. Texas, in a little bit. Goldberg then unequivocally stated that where fundamental rights are at stake, rational basis review (the lowest hurdle a law must overcome to pass constitutional muster) cannot be the standard of review for the law at issue affecting those rights. Unfortunately, Goldberg also included homosexuality in the acceptable array of intimate acts that the State also prohibited. However, this was 1965 and the courts were getting their fill of individual rights issues with the civil rights movement focused on racial equality. Lawrence, which decriminalized sexual activity between gays and lesbians, was almost 20 years away, but Griswold, albeit with this hiccup, was a start in the equality movement, recognizing marriage as a private, fundamental right for couples, irrespective of contraceptive use. The Love & the Law Episodes: Brief Case History | Contraceptives | The Color of Love | The IRS v. NY | Privacy? No. Sex? No. History? No. Liberty? Yep. Pt 1 | Privacy? No. Sex? No. History? No. Liberty? Yep. Pt 2
Love & the Law: Case Histories At-A-Glance
Updated May 27, 2023 Recently, courts across the country have handed down several decisions involving LGBT relationship rights. Additionally, June 12 was the anniversary of the U.S. Supreme Court ruling in Loving v. Virginia, which held that laws prohibiting interracial marriage were illegal. Because the U.S. Supreme Court is the final arbiter of what is law in the United States, many speculate that the Court is going to eventually rule on the issue of same-sex marriage. So over the course of the next couple of months, I’ll provide a little case history on the decisions below (Griswold, Loving, Bowers, Romer, Lawrence, Prop 8, and Windsor) considered landmark decisions by many in the area of privacy and relationship rights. Windsor v. U.S. is not a Supreme Court case, but may be headed there just the same, and Proposition 8 (\”Prop 8\”) involves the California statute banning same-sex marriages that was ruled unconstitutional by the Ninth Circuit. Proponents of Prop 8 have already stated that they will appeal it to the the U.S. Supreme Court. Why does this matter to estate planners? Because we plan for families and the recent decisions are pointing toward a fundamental shift in the national, legal definition of family.
Love & the Law: The IRS v. NY
Edie and Thea had been together for more than 44 years; they became one of the first registered domestic partners of New York; and as Thea\’s health began failing dramatically, the couple legally married each other in Toronto, Ontario, Canada. When Thea died a few years after their lifelong relationship and marriage, the federal government refused to recognize their marriage and taxed Edie\’s inheritance from Thea as though they were strangers. Under federal tax law, a spouse who dies can leave her assets, including the family home, to the other spouse without incurring estate taxes. Ordinarily, whether a couple is married for federal purposes depends on whether they are considered married in their state. New York recognized Edie and Thea\’s marriage, but because of the so-called the \”Defense of Marriage Act,\” or DOMA, the federal government refuses to treat married same-sex couples, like Edie and Thea, the same way as other married couples. After spending decades together, including many years during which Edie helped Thea through her long battle with multiple sclerosis, it was devastating to Edie that the federal government refused to recognize their marriage, their loving and solemnized dedication to each other. With representation by the American Civil Liberties Union, the New York Civil Liberties Union, and the law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP, Edie challenged the constitutionality of DOMA and seeking a refund of the estate tax she was unfairly forced to pay. Edie alleged that DOMA violates the Equal Protection principles of the U.S. Constitution because it recognizes existing marriages of heterosexual couples, but not of same-sex couples, despite the fact that New York State treats all marriages the same. On June 6, 2012, Judge Barbara Jones ruled for Edie and against the IRS, stating that Section 3 of DOMA as it applies to legally married same-sex couples for purposes of estate taxation is unconstitutional. Though this isn\’t a Supreme Court ruling and, therefore only persuasive outside of NY, it is a large and critical step in the undoing of DOMA. The Love & the Law Episodes: Brief Case History | Contraceptives | The Color of Love | The IRS v. NY | Privacy? No. Sex? No. History? No. Liberty? Yep. Pt 1 | Privacy? No. Sex? No. History? No. Liberty? Yep. Pt 2
Will the U.S. Supreme Court Embrace Love Again?
On May 30, Lambda Legal and the ACLU filed lawsuits against the Illinois Cook County Clerk’s office alleging that the Clerk’s office discriminated against same-sex couples who wanted to get married in Cook County. The Clerk’s office has consistently turned away LGBT couples who requested marriage licenses because though Illinois passed the Illinois Religious Freedom and Civil Union Act (Civil Union Act), the Illinois Marriage and Dissolution of Marriage Act (IMDMA) still states that same-sex marriage is against the state’s public policy. Additionally, the Illinois legislature failed to pass the bill proposing same-sex marriage legalization for Illinois. Illinois, similar to the U.S., has a conflicting legal perspective on same-sex marriage. The Civil Union Act states that LGBT couples who enter into Civil Unions have the same obligations, benefits, rights and burdens as married straight couples in Illinois. Yet, the IMDMA states that Illinois citizens are against same-sex marriage. Ironically, high-ranking government and judicial authorities across the nation are not in conflict: President Obama has denounced the so-called Defense of Marriage act (DOMA) as unconstitutional; The First Circuit Court has recently ruled Section 3 of DOMA as unconstitutional; The Ninth Circuit rejected an appeal for an en banc hearing on its decision that Prop 8, the California law banning same-sex marriage in California, was unconstitutional as applied to California citizens; Illinois Governor Pat Quinn supports same-sex marriage; And more than a dozen states also have laws that either allow same-sex marriage or provide a process where LGBT couples can receive substantially similar legal treatment to heterosexual married couples. However, that is the point – substantially similar is not equal – and all of the United States of America, including Illinois, should provide more. As I explained in an earlier post, the government providing rights to one group and denying those same rights to another group, simply because of an immutable characteristic that certain citizens don\’t like is unconstitutional; it is blatant discrimination. Accordingly, DOMA, which defines marriage as a union between one man and one woman as husband and wife, violates the United States Constitution because it validates harmful and irrational discrimination. Furthermore, DOMA places states that allow for same-sex marriages and civil unions in a legislative quagmire, where the states can provide benefits to LGBT couples as long as those benefits aren’t derived through federal programs. Because of the inherent discord between the individual states, the Legislative Branch, the Executive branch, and the Judicial Branch, increasing speculation is that the issue will reach the U.S. Supreme Court. That may be a good thing or it may be a not-so-good thing. The composition of the Court is conservative, so if it decides to take the case, it may use historical analysis and side with DOMA’s proponents. A number of members of the Court believe that the Constitution should be interpreted using the values and perceptions of the time in which it was written – the 18th century. I care not to argue the ridiculousness of that rationale. The next scenario is that the Court could decide not to hear the case, reasoning that “Congress has spoken” by passing DOMA. So then, Congress would need to speak again to invalidate the law. Given the tumult in Congress and the blockade against getting anything done, it is unlikely that Congress would even put repealing DOMA on its “to get to” list, let alone its “to do” list. The last scenario is that the Court would take the case and rule in favor of DOMA’s opponents and rule Section 3 or all of DOMA is unconstitutional. Hmmm…. Given that 2 out of 3 scenarios point to a no-win situation for LGBT couples, taking the fight to this Supreme Court is an eyebrow-raiser, at the very least. Still, one can hope that the Court would respect the more than 40 years of precedent, ala Loving v. Virginia, and progression, ala Romer v. Evans, and Lawrence v. Texas. But then, there’s that Citizens United decision, which overturned about 100 years of precedent.
Straight Couples & Civil Unions: Cutting Off Your Nose Off to Spite Your Face?
On March 29, 2012, I was given the honor to speak at the Black Women Lawyers’ Association of Greater Chicago (BWLA) CLE program on LGBT Employment and Relationship Rights Discrimination. My commentary addressed the challenges DOMA creates for members of the LGBT community and those providing them with needed services. If you\’re unfamiliar with the so-called Defense of Marriage Act, or DOMA, the statute’s language states that “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is husband or wife.” DOMA also states that this definition of marriage is the legally recognized definition for any federal or congressional law, “ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States.” Accordingly, if a federal law or regulation concerns married persons, the definition of ‘marriage’ used to determine the applicability of the law or regulation will be DOMA’s definition, despite what state law says. DOMA is the first time since Loving v. Virginia that a branch of our government defined what a marriage can look like, and, although the court in Loving got it right, Congress and President Clinton with DOMA got it wrong. Consequently, because of DOMA, gay or lesbian couples cannot take advantage of the more than 1,000 benefits afforded straight married couples by the federal government, even if the couple resides in a state that recognizes same-sex marriages. This unfair result is the basis of current court challenges: Gill v. OPM, Windsor v. U.S., and Golinski v. OPM. Each case involves the denial of federal benefits, such as retirement, social security, and estate tax refunds, to LGBT couples. Consequently, it should be easy to see how this discriminatory law has caused significant and unnecessary implications for American citizens and the estate planning community. One BWLA program attendee asked if straight couples could benefit from the Illinois Civil Union Act that affords LGBT Civil Union partners all the obligations, benefits, responsibilities, and protections of Illinois married couples. Ironically, a recent article in the Illinois Bar Journal espoused the benefits straight couples could glean from entering into a Civil Union instead of getting married. My colleague used the Alternative Minimum Tax calculation to support her argument, dismissing the marital deduction and portability “issues” because these techniques are applicable to the very wealthy and impliedly are outliers. This is a reasonable argument for lower-income families; however, repeating the response I gave at the program, suggesting heterosexual couples enter into Civil Unions is questionable guidance because of the more than 1,000 federal benefits attached to marriage. Thus, if a heterosexual couple is considering a Civil Union and is not approaching or is not in retirement, a careful balancing of income tax liabilities and other assets and future income should probably be performed before considering a Civil Union. What may be gained in an income tax refund may be lost several times over in employee, health, and other benefits.
Constitutional Discrimination against Love & Marriage
I recently participated in a discussion about Judge Parker, a lesbian judge in Texas who is refusing to marry straight couples because of her allegiance to the belief in marriage equality. The following is my commentary: This discussion is indicative of why [the subject of gay marriage] is so contentious. First, I agree, the judge is not doing her job and others are paying for it. Moreover, because as a judge she is held to a much higher standard of responsibility than most, I am sure she is going to suffer the consequences of her conviction. However, staying true to one’s convictions even when technically “wrong” is one of the historical methods individuals have used to fight discrimination, which brings me to my second point. Gay marriage is a constitutional issue on 2 and possibly 3 separate premises. Marriage in the United States is a religious, financial, and social status. Those who believe in the religious doctrine that marriage should only occur between one man and one woman (or man and woman) have the support of the Constitution with respect to religious freedom in that no one is being or will be forced to participate in the religious ceremony of a gay or lesbian couple. Yet, like a soldier cannot wear his Yarmulke while in uniform and Catholic agencies can\’t sustain contracts with the State of Illinois when they refuse to allow gay couples into their foster care registries, this judge cannot continue refusing to marry heterosexual couples without penalty because our freedoms are not boundless. Those who believe that marriage should occur between sober, consenting adults irrespective of their sexual orientation have the support of the Constitution with respect to the Fifth Amendment because there are approximately 1100 federal benefits given to spouses, which are not given to unmarried individuals despite their gender, e.g., the marital deduction in the federal estate tax system. However, because of DOMA, marriage is now conclusively defined by the federal government as a union between “one man and one woman” and those benefits are absolutely proscribed from gay and lesbian couples, be they married or Civil Union partners. Before Loving v. Virginia, African Americans and white individuals could not marry in Virginia or many other southern states. The issue of gay marriage is no different, unless one believes that individuals choose to be lesbian or gay and that’s another matter entirely. Like it or not, the fact is that DOMA has created a platform by which the federal government is discriminating. Finally, marriage is a social status. When a man and a woman enter a B&B and tell the desk clerk, “We’re married and would like a room for the weekend,\” no one questions them. When they show up at PTA meetings, no one questions them. When they show up in the intensive care unit, no one questions them. Their expressions of their union go without question. Yet, couples who marry in Massachusetts, if they happen to be the same gender, often cannot express the fact of their marriage verbally or on paper without question, without fear of discrimination, or without fear of worse. Consequently, being unable to express the fact that you are in a loving relationship with another consenting adult possibly implicates the other cornerstone of the First Amendment, freedom of speech. As an African American, female, how can I not, irrespective of my liberal ideology, recognize and acknowledge the fact that DOMA is a discriminating piece of legislation that should be repealed, just like that Virginia law was, more than 30 years ago.