March 27, 2013


CLICK to visit the Harvey Milk Foundation.

I can think of no better image to anchor this post than that of civil rights icon Harvey Milk. No matter how the Supreme Court rules on the two marriage equality cases that were argued this week, I have no doubt that we wouldn’t be where we are today were it not for the fearless activism of Milk. Anyone who supports marriage equality and full civil rights for LGBT Americans owes Harvey Milk a huge debt of gratitude and my writing today is humbly dedicated to this great man.

I was living in San Francisco the first time I saw the documentary THE TIMES OF HARVEY MILK. It was a stunning, transformational experience that changed my life. If you have not seen it, do yourself a favor and make some time to watch right here! There is a full video player from Hulu at the close of this article and additional options if you are on a browser or mobile device that does not support the plug in. 

The spirit of Harvey Milk burns brighter than ever and I can't help but imagine that somewhere he is looking down on all of this amazing progress and smiling. Now, onto United States v. Windsor.

While yesterday grabbed the lions share of the headlines, all the silly red equal logos in the world won’t change the fact that the case that was argued today is the more important of the two. While Holligsworth v. Perry was brought to the Court on shaky legal standing and focused on a ballot initiative in one state, United States v. Windsor has national implications.

At issue is Section 3 of the Defense of Marriage Act (aka DOMA). DOMA was signed into law by President Bill Clinton on September 21, 1996 after passing in both the House and Senate by wide margins. In brief, DOMA restricts the extension of Federal marriage benefits and the inter-state recognition of marriage to opposite sex couples only. The law has since been disavowed by many of the same elected officials who supported it, including Bill Clinton.

Here’s an amazing clip from C-SPAN shot in 1996. It’s an impassioned, 5 minute speech by Rep. Steve Gunderson (R-WI), the only Republican in Congress to vote against DOMA. Pay special attention to the section where he asks if it is fair to deny him and his partner the same benefits afforded others in Congress who are on their second or third marriage. It’s a pointed reference to then House Speaker Newt Gingrich who was married to wife number two at the time while in the midst of an affair with the woman he would eventually make wife number three: Callista.

I’ll use myself as an a example. I live in Massachusetts, the first state to give full marriage rights to same sex-couples. Here’s the rub: what’s good for this gay Massachusetts goose doesn’t matter a bit to the Federal gander thanks to DOMA. If I marry my partner in Massachusetts we are barred from receiving any of the Federal benefits enjoyed by opposite-sex couples. Think about that for a moment. It’s a punitive law that covers a massive array of financial, estate and tax-related programs.

Marriage equality supporters can thank Edith Windsor, an amazing 83-year-old woman and lesbian. She sued the United States and won in the lower courts. Those rulings affirmed her assertion that Section 3 of DOMA was punitive, damaging to her (and her late partner) and not constitutional. Even though DOMA was the law of the land, by 2011 the Obama Administration refused to enforce and, in doing so, signaled agreement with the court rulings. Enter the GOP!

With the DOJ taking a pass, Republican leaders in the House stepped in and vowed to defend DOMA. The case would also gave them a twofer that no Right Winger could resist: a chance to bitch slap the Obama Administration and keep those pesky homos from advancing their diabolical agenda. The Supreme Court agreed to hear the case which we now know as United States v. Windsor.

  • CLICK HERE for a full, plain English history of the case from the New York Civil Liberties Union.
  • CLICK HERE to read more about the amazing Edith Windsor from the New York Times.
  • CLICK HERE for another look at Edith Windsor and her case, this one from The New Yorker.
  • CLICK HERE to read about marriage equality in the best little state in The Union: Massachusetts.

With the exception of another round of belligerent dickishness from Justice Antonin Scalia, the oral arguments today were markedly different than those heard in yesterday’s case. In both the tone of the Justices and the questions they asked, there was palpable skepticism about DOMA. 

Declaring the law unconstitutional would not impact any state where same-sex marriage is banned or unavailable. It would basically remove the Federal Government from the equation (more or less) and return marriage to the States, where it has traditionally resided. On the up side, it would invalidate the language in Section 3 that currently prevents Federal recognition and extension of benefits to same-sex couples in states where same-sex marriage is legal (or may be in the future).


NOTE: RONTHINK is optimized for CHROME. In the event you are using a mobile device or browser that does not support the HTML5 audio player above, CLICK HERE for the official audio and PDF download links of the oral arguments from the SCOTUS website.

  • CLICK HERE for a full overview of today’s oral arguments in plain English from SCOTUS Blog.
  • CLICK HERE for analysis from The Huffington Post.
  • CLICK HERE for analysis from The Washington Post.
  • CLICK HERE for analysis from The Minneapolis Star-Tribune.
  • CLICK HERE for analysis from The San Francisco Chronicle.

Kenji Yoshino was back on THE RACHEL MADDOW SHOW last night with an insightful look at yesterday’s case and some predictions about the oral arguments that were heard today. Here’s the video.

Both of these cases are expected to be decided by June. Of course, RONTHINK will continue to keep an eye on the SCOTUS and bring you updates as they happen. 

In the meantime, please sit back and enjoy THE TIMES OF HARVEY MILK. You can watch right here via Hulu or, if you are on a browser or device that does not support the Hulu player, there are other options below. This is a documentary that truly soars. Don’t miss it!

CLICK to rent or buy THE TIMES OF HARVEY MILK from Amazon Instant Video CLICK to watch on HULU if the video player above is not supported by your device