It is not yet the end of the story

Interview with Bradley Sears, executive director of the Williams Institute of the UCLA School of Law, on recent the US Supreme Court cases on same-sex marriage and on the general legal situation of LGBT people in the US.

Adam Bodnar: What was your reaction when you heard about the yesterday’s judgment of the Supreme Court in United States v. Windsor case (570 US, ___ 2013), stating that some provisions of the federal Defense of Marriage Act are contrary to the US Constitution and thus opening a way to federal recognition to same-sex marriages?

Bradley Sears: It is a historic decision for the Supreme Court to strike down the Defense of Marriage Act. For the first time, the US Supreme Court struck down a federal statute due to sexual orientation discrimination. It has also removed from the legal system one of the remaining statutes that explicitly discriminates against LGBT people. It is a significant case in terms of marriage equality and the rights of same-sex couples. For the first time, the US Supreme Court has acted against the federal law and removed this official governmental form of discrimination.

AB: I agree with the importance of the decision. But when people from Europe read this judgment they think like this: right now, following the judgment we will have in the US the same-sex marriage. But when recently visiting North Carolina I have asked local politicians for support for same-sex couples regarding their rights, I heard a silence in response. Thus I would like to ask what would be the effect of the judgment for the whole United States, not just state of New York or others that have some legislation on same-sex couples.

BS: The immediate effect will be only for those states that currently recognize the status of same-sex marriage. These are 13 states (including California), which is approx. 30 percent of the US population. The judgment will not change the situation in the other 37 states, which do not have legislation on same-sex marriage. The US legal system is divided into federal and state authority. It means that states have to act in order to introduce relevant legislation on marriages, before the federal law may kick in.

AB: But in same states you have also regulation on civil unions and registered partnerships, e.g. Nevada. So what this judgment means for them?

BS: There are six states that do not have same-sex marriage, but other forms of regulation of same-sex couples. This judgment may have certain significance for them. The federal government may define the notion of „spouse“ as including persons living in such relationship. In such a situation, benefits extended by virtue of federal legislation would be also applicable to persons living in such forms of relationship. So in fact we have to wait and see how the federal government will react to the judgment and whether such interpretation will appear in the draft federal statute.

AB. One of the consequences of the US Supreme Court judgment will be extension of federal benefits to same-sex marriages registered under the laws of particular states. Could you please explain what are those benefits? What is their importance to daily life of same-sex couples?

BS. There are over 1,000 rights and benefits that attach to marriage under federal law. For example, federal income tax and possibility for couples filing a joint taxation declaration. There are a number of social welfare benefits, like social security for elderly people and disabled people and medical care. Inheritance tax can be imposed on the state and the federal level. There are a lot of employment rights, which have certain federal law connection and therefore could be applicable to same-sex marriages. For example, if your employer provides you with the health insurance, and you add your spouse, you would be additionally taxed for providing such a benefit to your spouse. We estimate that such employees pay approx. 1.000 USD per year more in federal taxes. There is also a law that provides for a possibility to take care of your spouse if he or she is sick or disabled for three months without losing your job or employment benefits. But until now this benefit did not apply to same-sex marriage.

AB: In Europe we discuss a lot about recognition of the foreign same-sex marriages or partnerships. For example, to what extent under the EU law Poland is obliged to respect status granted by the Spanish or Dutch law. It seems that it is also a significant problem in the US – whether same-sex marriages may enjoy their constitutional „right to travel“ (similar to the EU freedom of movement) and be recognized in marriage in those states which do not have any legislation on same-sex marriage. Does the US Supreme Court judgment helps somehow the same-sex marriage from New York that has to move e.g. to Louisiana?

BS: It does not directly help at all. It only deals with how the federal government is going to define the marriage. In fact, there is another section of the Defense of Marriage Act, which the Supreme Court did not address directly. It deals just with the issue of recognition of one state marriage by other state. There are general constitutional principles, such as constitutional „right to travel“ or Full Faith and Credit Clause of the US Constitution, which concern the respect by states of decisions made in another states. This issue is subject of controversy and there is no clear answer whether states under the Constitution have to recognize same-sex marriages. There is a long tradition in the US of some states that allowed for interracial marriage, while the other did not. In fact, such cases were decided on a case-by-case basis. It is maybe truism, but without litigation and legal battles, it will not be easy for same-sex couples that are going to move from one state to the other. In the majority of states in the U.S.they will encounter a legal regime saying that we are not going to recognize such marriages, either because we put it into state constitution or in state legislation.

AB. One of the arguments which were made by Justice Antonio Scalia in his dissenting opinion is that the victory is cheated, because the majority decision written by Justice Kennedy avoided to rely on the Equal Protection Clause, but rather restricted itself to the Fifth Amendment right to individual liberty. Therefore, Justice Scalia claims the Court did not deal with this issue directly as an equality issue. What is your view on this?

BS: I think that similar to the previous two opinions written for the majority by the Justice Kennedy – in Romer v. Evans, 517 U.S. 620 (1996), and in Lawrence v. Texas, 539 U.S. 558 (2003) in LGBT rights cases, the Windsor decision is very inspiring, emotionally gratifying, and identifies the intersection of rights and issues in the Constitution which are the subject of discussion in the judgment. For someone who is interested in clarity and in legal doctrine, although some rights are recognized in the judgment, none of the typical tests used in the constitutional doctrine are clearly applied in those decisions.. But, marriage does lie at the intersection of the values being subject of analysis in the judgment, such as liberty, equality, privacy, and the right to make autonomous decision on one’s life. Another value is identified that is more connected with the constitutional doctrine of European states, namely the notion of dignity.

AB: But also the notion of evolving interpretation of human rights – society is changing and we must adjust our constitutional thinking to it. This argument is visible in a judgment.

BS: Exactly. So, Justice Scalia is frustrated, because he is looking for specific doctrinal test associated with the Equal Protection Clause and Due Process and he cannot find it in the judgment.

AB: But the Supreme Court issued on the same date the other decision – in Hollingsworth v. Perry (570, US, ___ 2013) concerning Proposition No. 8 to the Californian Constitution. Quite surprisingly, Justice Antonio Scalia in this decision – relying on his traditional interpretation of the US Constitution – is in majority, while Justice Kennedy is dissenting. So maybe Justice Scalia simply adheres to his principles and is not motivate by some non-legal arguments. What do you think about this?

BS: I think that various justices’ commitment to their principles regarding standing is at best difficult to trace. In this case you don’t see a clear political split. Obviously, you don’t see the same group of majority and dissents as in the DOMA case.

AB: Proposition No. 8 case might seem difficult to understand for the European reader, especially this interaction between constitutional amendment, referendum and the rights of courts to challenge it. It seems that fight over amendment of the California Constitution as regards prohibition of same-sex marriages resembled a real saga. Could you please put it in short words what was the factual background behind the case?

BS: As you know, California did adopt same-sex marriage law in 2008 as a result of a decision by the California Supreme Court. A number of marriages have been concluded. But opponents managed to propose the change to the Constitution, Proposition No. 8, that would prohibit different marriages than between man and woman. This Proposition was adopted in a referendum with the slight majority. However, afterwards, the federal District Court for the Northern District of California said that the Proposition No. 8 is contrary to the US Constitution.. Any state constitution must be compliant with the US Constitution. Opponents of same-sex marriages could not agree with this position of the District Court and decided to appeal it to the Supreme Court.

In order to understand the position of the US Supreme Court in this case, one must understand that our courts are different than constitutional courts in Europe. In Europe, in some countries, abstract questions concerning the constitutionality of a law may be taken even if there is no actual dispute between parties. Our courts must have a real “case and controversy” in front of it in order to decide it. There must be some injury, which is going to be addressed, like e.g. in case of Ms. Windsor – who had to pay more in estate taxes because she was married to a person of the same sex. It would not be possible to bring a case in federal court in the United States, without having an actual dispute.

In the Proposition No. 8 case, gay couples brought a case and the federal District Court found that Prop 8 is contrary to the US Constitution. California state officials agreed with the decision of the federal court and declared that they would not appeal against it. But there were still persons who were dissatisfied with the outcome of the case, those you put Prop 8 on the ballot in California, and decided to appeal it to the US Supreme Court. But the Supreme Court stated – you are not injured by the fact that such legislation on same-sex marriage is binding in California, so you do not have standing on this. The Supreme Court said – you just disagree with the law. There are various groups of citizens that disagree with different laws, but it does not mean that they have a right to challenge such laws in front of courts, without having actual injury. It does not impact your lives or your possibility to enter into marriage. If we look into real parties to this dispute – gay and lesbian couples and the California state officials – there is no controversy between them.

AB. There is a huge applaud in the US concerning the victory in the Supreme Court. According to a proverb „failure is an orphan, but success has many fathers“. Do you think that in this case too many persons will start to claim that the judgment is a result of their special involvement and will start to exaggerate their impact on the Court, when their amicus curiae was just repeating arguments already presented? What is your read on this?

BS. I think that number of organizations and people have worked for number of years on both cases. There were almost 100 amicus curiae briefs, presenting different points of view, on both sides of the debate. I think that even the Supreme Court sees rarely such an engagement of society in one of its case. So, I would not single out anybody who would take too much credit for the case. Leaders of the Government of California in not defending the law, however, played a critical role. It was their decision not to appeal against the judgment of the District Court declaring Proposition No. 8 as contrary to the US Constitution, although they had a standing to do so, and although this Proposition was adopted in a referendum with majority. I mean here especially Arnold Schwarzenegger, Republican governor of California, and later on – after elections – Edmund G. Brown Jr. Their decisions entailed at that time political risk.

AB. Maybe it is the effect of activities of the Williams Institute at UCLA Law School, which you manage…

BS. [Laugh]. Of course we hope our research provided informed input for decision-makers. But the ultimate result of the case was effect of political actions, business concerns, activities of grass roots organization, and public education on the issue. Everything was going on for a long time.

AB. Some of the activists commenting yesterday’s judgment made a statement that they start new campaigning. They hope that in 5 years they will be able to introduce same-sex marriage in all remaining 37 states. Do you think it is achievable?

BS. I think that public opinion is changing rapidly in the US on same-sex marriage. It is fairly likely that there will be marriage in all 50 states within next decade. It will be, however, more difficult in remaining states than it was in this first 13 states that introduced same-sex marriage. It should be underlined that many of the US states do not have any legislation recognizing rights of LGBT persons. They don’t even have non-discrimination provisions. So, therefore the work in terms of changing public opinion and passing legislation will be much more difficult.

AB. So it seems that this judgment of the US Supreme Court is like a new beginning, symbolic and landmark moment of the fight for equality of gays and lesbians in the US, but it cannot be interpreted that ultimate goal has been reached?

BS. Definitely. The pace of change recently has been quite rapid. The judgment will quicken the pace, but we are not yet at the end of the story.

AB. I would like to ask about other fields of discrimination of the LGBT persons, except for marriage. When I was in Cleveland, Ohio, I was quite surprised to learn that in many states there is no protection against discrimination of gay and lesbians in the workplace, that you can dismiss somebody just because of the sexual orientation and the victim does not have a remedy available to act against it. So the situation is quite different as compared to other discriminated groups, which have at their disposal the Racial Equality Act or Americans with Disabilities Act. In Europe the situation is quite different – the EU Directive 2000/78 provides for a protection against discrimination due to sexual orientation. This Directive had to be implemented in all EU Member States, whether they liked it or not. So, does the US Supreme Court judgment helps somehow to argue for the need of similar legislation at the federal level, even if it concerns a separate issue, namely same-sex discrimination?

BS. It does have a positive impact, but on a more general level, due to further support of the general equality of LGBT persons. It does not have a specific impact on this particular issue of discrimination, and looking from doctrinal point of view, offers only a little support. In the Supreme Court judgment there is no standard established that would apply in general to LGBT people (what was pointed out by Justice Scalia). So in order to address this issue there is a need for a case, where e.g. the federal employee was fired due to sexual orientation. Such case would require an appropriate legal analysis. There is still no federal law prohibiting employment discrimination against LGBT people. Most states also do not have state law on this issue. It usually goes along with lack of support for same-sex couples.

AB. Don’t you think that for some people this individual approach to LGBT people, based on prohibition of discrimination and equal protection might be more important than legislation on same-sex marriages?

BS. For sure it impacts more people, all working individuals as opposed to only those living in same-sex relationships. On the one hand, it seems that passing such non-discrimination laws could be easier. However, we have the House of Representatives dominated by people that did not support any initiatives relating to LGBT people. But on the other hand, we have managed to remove those laws that introduced facial discrimination provisions, such as „Don’t Ask Don’t Tell“ – ban on homosexuality in the military, criminalization of homosexual activities (following Lawrence v. Texas case).

AB. In recent „New Yorker“ article there is a story on „Gang of Eight“ – bi-partisan political group created in order to shape and then to adopt the comprehensive immigration bill. It seems that it is one of the most important debates pending right now in the US. Do you think that such bi-partisan group might be created for purposes of preparing the federal Prohibition of Discrimination due to Sexual Orientation Act?

BS. I think there is a growing political support for LGBT rights in both political parties, including support by the Republican Party. For the last couple of years it was extremely difficult for both Democrats and Republicans to agree on such anything. So, that is why the Immigration Bill is so exceptional. Republicans basically realized that they couldn’t afford losing Latino voters by denying any discussion on immigration reform. But I don’t know whether similar political calculation may lead them to support reforms concerning LGBT people.

AB. Another interesting aspect of LGBT rights in the US is approach to hate crimes based on homophobia. How can you argue against homophobic hate speech when you have First Amendment, providing such a broad protection to freedom of speech and does not allow for content-based restrictions? Is it at all possible?

BS. Yes. We have this tension between the First Amendment and the activities aimed to eradicate homophobic hate speech. There is an understanding, also within the LGBT community, that the real harm must be done in order to criminally prohibit something. In fact, one of the first acts proposed by President Barack Obama, and adopted by the Congress, was the The Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009, 18 U.S.C. § 249. It prohibits hate crimes due to sexual orientation or gender identity, provides for penalty enhancements in case of homophobic motivation of a crime (like attack on LGBT person), and collects data on any type of such crime.

AB. But in the Matthew Shepard Act hate crimes are those that cause some form of physical injury, acts of violence. It is not about general hate speech.

BS. Correct. The Matthew Shepard Act enlists certain types of crimes, which could affect people due to sexual orientation. As regards hate speech phenomenon certain progress has been achieved at school levels, due to adoption of policies aimed to eliminate harassment or bullying due to sexual orientation, restrictions on anti-racial or anti-gay speech. They were challenged before the US Supreme Court, but the Court said that in this environment, where there is a great level of vulnerability, you could create such policies. You have to be in a school, you cannot step out of school, so the school has a certain right to regulate those issues, because it is particularly harmful to certain pupils.

AB. One of the interesting factors in debate on same-sex marriage was involvement of corporations. Some of the biggest ones, like Google, Starbucks, Facebook or Walt Disney directly supported the law. In my country, biggest corporations would not take such a political risk on themselves due to their reputation. Why in the US they did it and risked losing a reputation (and clientele) e.g. in southern states for such an open support to gay and lesbian couples?

BS. There is some risk, but these are companies that look not only at customers, but also at its employees. In order to attract good workers they must have good policies. Some of them look towards future in a way and they “want to be on a right side of history“. They think that the younger consumer base will see them as doing right thing. Leadership is also important here. For example, the CEO of Starbucks said – if you disagree with my position just sell my stock.. I think that this type of leadership goes beyond typical risk concerns.

AB. Final question. How did you celebrate the victory in the Supreme Court? Did you make a home party or something special?

BS. In fact I was very busy throughout the day at the Williams Institute. I got a number of press commentaries‘ requests, or “thank you for the work done“ calls. We submitted two amicus curiae briefs in those cases, and provided informed analysis on the issue throughout the whole period litigation. In fact, I did not attend any celebration, but simply went to bed very happy. I think that people that would march on streets in New York and San Francisco during gay prides next weekend will also enjoy this special moment in the US LGBT history.

AB. Thank you for the interview.

R. Bradley (Brad) Sears is the founding director and current Executive Director of the Williams Institute, and an Adjunct Professor at UCLA School of Law.  At UCLA School of Law, B. Sears teaches courses on sexual orientation law, disability law, and U.S. legal and judicial systems.  He has published a number of research studies and articles, primarily on discrimination against LGBT people in the workplace and HIV discrimination in health care.  When the Williams Institute started in 2001, Sears was the only staff member and the Institute had a budget of $100,000 and endowment of $2.5 million.  Right now, the Institute has over 20 faculty and staff members, a budget of over $3 million, and an endowment of over $27 million.

Sears graduated from Yale University and from Harvard Law School. During law school, he served as Editor-in-Chief of the Harvard Civil Rights-Civil Liberties Law Review. 

Sears has served on the board of directors or advisory boards for Being Alive Los Angeles, HALSA, USC’s AIDS Education Training Center, the Center for Health Justice, and UCLA’s LGBT Studies program.  Sears has received Being Alive Los Angeles’ Volunteer of the Year Award and, in 2009, was recognized on Advocate’s Magazine’s “40 Under 40” list.  In 2010, under his leadership, the Williams Institute received the “Treasures of Los Angeles” award from the Los Angeles Central City Association. 

Adam Bodnar is the vice-president of the board of the Helsinki Foundation for Human Rights and associate professor in the Warsaw University Faculty of Law Human Rights Chair.

The interview has been made during the European Summer Marshall Memorial Fellowship, organized by the German Marshall Fund of the US.