Tuesday, June 18, 2013

Is the issue gender or orientation?

Pam Spaulding of Pam's House Blend brings attention to an article by Sonja West for Slate. In our legal battles for marriage equality are we focusing too much on equality for sexual orientation? Perhaps we'll do better if we focus instead on gender discrimination.

Consider this example. Alice applies for a marriage license to marry Charlie. No problem. But if Bob applies for a license to marry Charlie, Bob is refused. Is Bob discriminated against because he is a man or because he is gay? That distinction matters because there is already significant precedent for gender discrimination cases. Not so much for sexual orientation discrimination cases.



The Supremes have about 10 days left to issue their opinions in this term's cases. Yes, marriage equality and the Defense of Marriage Act (DOMA) rulings will come then. So expect a lot of articles on the issue in that time.

One of those articles explores the open questions, no matter the rulings. One of those questions is raised if DOMA is struck down. Do married gay couples automatically get federal benefits? Um, that depends. Some federal agencies define marriage by the state in which the license was issued. Other agencies use the state of residence. So, yeah, if you marry in New York, but live in Michigan, you may get only some federal benefits. Unless Obama, out of the kindness of his heart, directs agencies to issue benefits based on the state where the license was issued. Or another court case reaches the Supremes.

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