Law as a Process of Human         Communication:Marriage and Human Rights ValuesRelating to Gender Orientation and        ...
Discussion SummaryI.          Introduction: Human rights and the communication processII.         From miscegenation, to p...
Introduction:  Human rights as acommunication process
•       Communication is a social and a cultural process that affects the world and what        we know about it.    –    ...
•       There is a need for a deeper analysis of the different shifts in all types of        personalities and identities ...
•       Because much more is required in order to appropriately understand the        communication processes affecting la...
From miscegenation,to privacy, to same-sex        marriage       (1967 -2003)
Loving v. Virginia (1967)•       The United States Supreme Court addressed the constitutionality of anti-        miscegena...
Baker v. Nelson (1971)•   Three years after the Supreme Court determined that “marriage is one of the “basic    civil righ...
Jones v. Hallahan (1973)•   The Court of Appeals of Kentucky affirmed the judgment of a lower court, which found in    fav...
•                 Lawrence v. Texas (2003)    The United States Supreme Court, giving constitutional deference to the conc...
The United States LGBTlegal narrative from 2003to 2012 and the access to        marriage
Goodridge v. Department of Public Health                         (Mass. Nov. 18, 2003)•       The state may not “deny the ...
Citizens for Equal Protection v. Bruning                        (Neb. Jul. 14, 2006)•       Rejected the notion that sexua...
Kerrigan v. Commissioner of Public Health               (Conn. Oct. 10, 2008)•   The Supreme Court of Connecticut relied o...
Proposition 8:          In re Marriage Cases (Cal. May 15, 2008)•    Following the ruling in Goodridge, stressed that “the...
Proposition 8:            Strauss v. Horton (Cal. May 26, 2009)•     In response to the decision of In re Marriage Cases, ...
Proposition 8:    Perry v. Schwarzenegger (Perry IV)(Cal. Aug. 4, 2010)•     The court’s analysis relied on the foundation...
Proposition 8:    Perry v. Brown, I & II (Cal. Nov. 17, 2011 & Feb. 7,                            2012)•    On Thursday No...
Proposition 8:    Perry v. Brown, I & II (Cal. Nov. 17, 2011 & Feb. 7,                            2012)•    Proposition 8 ...
Varnum v. Brien (Iowa April 3, 2009)•   The court, which declared that the Separate but Equal Doctrine was unconstitutiona...
Defense of Marriage Act (DOMA):    Commonwealth of Massachusetts v. United States Department of          Health and Human ...
Defense of Marriage Act (DOMA):    Commonwealth of Massachusetts v. United States Department of         Health and Human S...
Defense of Marriage Act (DOMA):                   Windsor v. United States (N.Y., Oct. 18, 2012)•     In 2007, Edith Winds...
Recent Developments• On February 8, 2012, one day after Proposition 8 was declared  unconstitutional on the grounds that i...
• On February 16, 2012, New Jersey lawmakers also  approved same-sex marriage legislation. However,  Governor Chris Christ...
Conclusion• Even though in 1967 the United States Supreme Court determined that marriage  was a basic civil right, it was ...
•       The case law provides us with a summary and intervention of the multi-        disciplinary facts behind the status...
References•   Baker v. Nelson, 409 U.S. 810 (Minn. October 10, 1972)•   Citizens for Equal Protection v. Bruning, 455 F.3d...
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Law as a Process of Human Communication: Marriage and Human Rights Values Relating to Gender Orientation and Sexual Variability

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Law as a Process of Human Communication: Marriage and Human Rights Values Relating to Gender Orientation and Sexual Variability

  1. 1. Law as a Process of Human Communication:Marriage and Human Rights ValuesRelating to Gender Orientation and Sexual Variability Aitza M. Haddad, J.D., LL.M.
  2. 2. Discussion SummaryI. Introduction: Human rights and the communication processII. From miscegenation, to privacy, to same-sex marriage (1967 – 2003)III. The United States LGBT legal narrative from 2003 to 2012 and the access to marriage 1. Goodridge v. Department of Public Health (Mass. Nov. 18, 2003) 2. Citizens for Equal Protection v. Bruning (Neb. Jul. 14, 2006) 3. Kerrigan v. Commissioner of Public Health (Conn. Oct. 10, 2008) 4. Proposition 8: A. In re Marriage Cases (Cal. May 15, 2008) B. Strauss v. Horton (Cal. May 26, 2009) C. Perry v. Schwarzenegger (Perry IV)(Cal. Aug. 4, 2010) D. Perry v. Brown, I & II (Cal. Nov. 17, 2011 & Feb. 7, 2012) E. Perry v. Brown, I & II (Cal. Nov. 17, 2011 & Feb. 7, 2012) 5. Varnum v. Brien (Iowa April 3, 2009) 6. Defense of Marriage Act (DOMA): A. Commonwealth of Massachusetts v. United States Department of Health and Human Services (Mass. July 8, 2010) B. Commonwealth of Massachusetts v. United States Department of Health and Human Services (Mass. May 31, 2012) C. Windsor v. United States (N.Y., Oct. 18, 2012)IV. Recent DevelopmentsV. ConclusionVI. References
  3. 3. Introduction: Human rights as acommunication process
  4. 4. • Communication is a social and a cultural process that affects the world and what we know about it. – Culture can be seen as a group of people bonded not only by national or by ethnic background, but also by a set of common experiences and behaviors, or as the values and norms that guide behavior. However, individuals, which are all part of a social unit or community, are the basic unit and originators of a culture and therefore of what is known as “living law” or “micro-law.” – Regardless of the brevity or length of their encounters, these all produce outcomes that, if well understood, could help to better understand society. In this sense, the communication processes that are constantly constructing and developing personalities and identities are also influencing cultural traditions, and shaping human categories.• Globalization, which is a continuously transforming phenomenon affecting human dynamics through processes of communication, has specifically transformed the theories influencing individuals’ perspectives of reality, and these perspectives have in turn influenced individuals’ identifications, demands, and expectations about human rights, sovereignty and the scope of state and international obligation.• When the State is observed through the lens of communications, is possible to see the complex trajectories of human interaction behind the State and the international community unfolding, which denotes the need for a comprehensive understanding of how to best identify, promote, and defend fundamental human interests through the tools of communications theory and its interaction with law and the policy-making processes.
  5. 5. • There is a need for a deeper analysis of the different shifts in all types of personalities and identities that are emerging in society due to an increase in consumerism that is constantly changing the way individuals perceive reality, and create expectations and judging categories. – In order to understand these new regimes of representation it would be necessary to move away from the moment of representation towards the moment of consumption, and to locate the new figures in relation to the contemporary shifts in race, culture, and group identity, as well as in relation to recent shifts in popular representations.• All communication is not law, but law, which begins with the individual as a communicative being and it is therefore a product of human interaction that reflects patterns that are characteristic of the group and the participants who constitute it, is a product of human exchange and therefore of human communications. – Therefore, human rights law, which is consequently rooted on the individual and is not a by-product of the State, must be viewed, explored, and analyzed from a communications oriented, theoretical, and foundational point of view in terms of the contexts associated with the interpreting authority at stake and with what is at risk.
  6. 6. • Because much more is required in order to appropriately understand the communication processes affecting language and law, this study, after providing a brief background of the development of the legal definition of the term marriage, analyzed leading United States court cases from 2003 to 2012 dealing with the issue of same-sex marriage with a focus on the how courts defined marriage and how they applied these definitions to the respective issues of each case. The study aimed to determine whether the language used by courts during this period of years changed or not, and if so, how; – In terms of whether or not there is a pattern in how these decisions were constructed and how was marriage defined; what type of authority (state law, federal law, international law, customary law) was used as the legal basis; and when was marriage described or denied as a right or human right.• The purpose of this study is to demonstrate how important is for lawmakers and law-appliers to understand the importance of the process of human rights law, and properly molding the signs, symbols, and channels of communication of practical law in ways that transcend the functional and theoretical boundaries of the State, to efficiently communicate the value of individual rights, and better protect and secure human equality, human dignity, and individual human rights.
  7. 7. From miscegenation,to privacy, to same-sex marriage (1967 -2003)
  8. 8. Loving v. Virginia (1967)• The United States Supreme Court addressed the constitutionality of anti- miscegenation laws: – The court rejected the proposition “that the requirement of equal protection of the laws is satisfied by penal laws defining offenses based on racial classifications so long as white and Negro participants in the offense were similarly punished,” and that the appropriate equal protection inquiry is whether the classifications drawn by the statute “constitute an arbitrary and invidious discrimination.” – The court, concluding that Virginias anti-miscegenation statutes rested solely on distinctions based on race, applied the “most rigid scrutiny” to the laws and determined that “Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the States citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State” “There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.”
  9. 9. Baker v. Nelson (1971)• Three years after the Supreme Court determined that “marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival,” the issue of same-sex marriage became an important matter of debate when the Supreme Court of Minnesota, interpreting existent statutes and laws, determined that two persons of the same sex were not allowed to celebrate the union of a marriage under the blessed of the government.• The Minnesota Supreme Court affirmed the decision of the lower court ruling that the clerk was not required to issue a marriage license because the parties were of the same sex and the state statute did not authorize marriage between persons of the same sex.• The applicants appealed from that order arguing that the absence of an expressed statutory prohibition against same-sex marriages evinced a legislative intent to authorize such marriages and argued the statute was unconstitutional because the right to marry was a fundamental right of all persons and that restricting marriage to only couples of the opposite sex was irrational and invidiously discriminatory.• The reviewing court, looking at the historical background of the statute, determined that that the law did not authorize marriage between persons of the same sex and, affirming the decision of the trial court, stated that the Fourteenth Amendment was not offended by the state’s classification of persons authorized to marry and that the statute was neither irrational nor invidiously discriminatory.
  10. 10. Jones v. Hallahan (1973)• The Court of Appeals of Kentucky affirmed the judgment of a lower court, which found in favor of the county court clerk, and held that two women were not entitled to have issued to them a license to marry each other.• They filed an action to review such judgment arguing that the refusal to issue the license deprived them of three basic constitutional rights, the right to marry, the right of association, and the right to free exercise of religion. – Because until 1973, there was no definition of marriage in any statute in any state within the United States, the Court proceeded to define it according to common law principles and by observing several dictionaries, such as the Webster’s New International Dictionary, the Century Dictionary and Encyclopedia, and the Black’s Law Dictionary.• The court ruled that common law presumed that marriage would include a man and a woman and stressed that while Kentucky statutes did not specifically prohibited marriage between persons of the same sex, they do not authorize the issuance of a marriage license to same-sex couples either. – The court, noting that for a long time records of marriage were kept by the church and stressed that marriage has always been considered as the union of a man and a woman, took in consideration the only two prior cases that have considered the question of same-sex marriage and concluded not allowing them (Baker v. Nelson and Anonymous v. Anonymous), determined that appellants were prevented from marrying, not because of the statutes of Kentucky or the refusal of the county court clerk to issue them a license, but because of their incapability of entering into a marriage, as that term is defined, because of being both of the same sex.• The Court stated that even when the case had no constitutional issue involved, they did not found any constitutional sanction or protection of the right of marriage between persons of the same sex and that the refusal to issue the license was not considered to be a punishment because the claim of religious freedom cannot be extended to make the professed doctrines superior to the law of the land and in effect to permit every citizen to become a law unto himself.
  11. 11. • Lawrence v. Texas (2003) The United States Supreme Court, giving constitutional deference to the concept of liberty, which is also the conceptual foundation for the right to privacy, made same-sex sexual activity legal in every state and territory under the United States jurisdiction.• “Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.” “Adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.”• “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. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”• “Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexuals do.” “The fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason to upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.” “Individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons.” “The State cannot demean a homosexual person’s existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.”• “Times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”
  12. 12. The United States LGBTlegal narrative from 2003to 2012 and the access to marriage
  13. 13. Goodridge v. Department of Public Health (Mass. Nov. 18, 2003)• The state may not “deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to marry.” The states constitution “affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens,” the state had no “constitutionally adequate reason for denying marriage to same-sex couples,” and “the right to marry is not a privilege conferred by the State, but a fundamental right that is protected against unwarranted State interference.” – The denial of marriage licenses to same-sex couples violated provisions of the state’s constitution that guaranteed individual liberty and equality and it was therefore not rationally related to a legitimate state interest. The court maintained that procreation is not a necessary component of civil marriage, that forbidding same-sex marriage would not increase the volume of heterosexual marriages in which children were born and nurtured, and that a ban on same-sex marriage is not justified by the alleged financial independence of same-sex couples• “The core concept of common human dignity protected by U.S. Constitutional Amendment XIV precludes government intrusion into the deeply personal realms of consensual adult expressions of intimacy and ones choice of an intimate partner. The central role that decisions whether to marry or have children bear in shaping ones identity had been reaffirmed.”
  14. 14. Citizens for Equal Protection v. Bruning (Neb. Jul. 14, 2006)• Rejected the notion that sexual orientation like sex is a suspect classification indicating that in the nearly one hundred and fifty years since the Fourteenth Amendment was adopted, no Justice of the Supreme Court has suggested that a state statute or constitutional provision codifying the traditional definition of marriage violates the Equal Protection Clause or any other provision of the United States Constitution. – The court determined that if there is no constitutional right to same-sex marriage, laws limiting the state-recognized institution of marriage to heterosexual couples are rationally related to legitimate state interests and therefore do not violate the Constitution of the United States.• The court concluded that Section 29 did not violate the United States Constitution, that the marriage definition was rationally related to the legitimate government and state interest in steering procreation into marriage, and that there was no fundamental right to be free of political barriers validly enacted.
  15. 15. Kerrigan v. Commissioner of Public Health (Conn. Oct. 10, 2008)• The Supreme Court of Connecticut relied on the definitions of marriage given in Lawrence and Goodridge to reject the idea that marriage and civil unions are not “separate” but “equal” legal entities: “although marriage and civil unions do embody the same legal rights under our law, they are by no means “equal.”• “In light of the long and undisputed history of invidious discrimination that gay persons have suffere we cannot discount the plaintiffs’ assertion that the legislature, in establishing a statutory scheme consigning same sex couples to civil unions, has relegated them to an inferior status, in essence, declaring them to be unworthy of the institution of marriage.”• “By excluding same-sex couples from civil marriage, the state declares that it is legitimate to differentiate between their commitments and the commitments of heterosexual couples. Ultimately, the message is that what same-sex couples have is not as important or as significant as ‘real’ marriage, that such lesser relationships cannot have the name of marriage.”• The judgment was reversed and the case was remanded with direction to grant the couples motion for summary judgment and application for injunctive relief.
  16. 16. Proposition 8: In re Marriage Cases (Cal. May 15, 2008)• Following the ruling in Goodridge, stressed that “the right to marry is not properly viewed simply as a benefit or privilege that a government may establish or abolish as it sees fit, but rather that the right constitutes a basic civil or human right of all people.”• The court ruled that the state laws in question, which restricted marriage to heterosexuals, violated a fundamental right and the state constitution, because: (1) Sexual orientation is recognized as a suspect class for purposes of the Equal Protection Clause of the California Constitution; (2) Offering a legal relationship called “marriage” to opposite-sex couples while consigning same-sex couples to “domestic partnerships” impinges upon the fundamental right to marry by denying such legal relationships equal dignity and respect; (3) The distinction between marriage and domestic partnerships risks the right to privacy regarding sexual orientation for those in domestic partnerships; (4) Both because a suspect class is targeted and because fundamental rights are impinged upon by the challenged provisions, the strict scrutiny standard of review applies, under which those provisions limiting marriage to opposite-sex couples must serve a compelling state interest and be necessary to serve such an interest.
  17. 17. Proposition 8: Strauss v. Horton (Cal. May 26, 2009)• In response to the decision of In re Marriage Cases, on November 4, 2008, the voters of California approved by 52 percent votes a constitutional amendment, known as Proposition 8, which limited marriage to heterosexual couples. – This amendment did not compromised the Court’s holding that gay man and woman constitute a suspect class for the purposes of constitutional equal protection.• On May 26, 2009, the California Supreme Court, in the case of Strauss v. Horton, a consolidation of three lawsuits filed by a number of gay couples and governmental entities against Proposition 8, decided that Proposition 8 was valid and enforceable from the moment it was passed but that it cannot be applied to retroactively annul the 18,000 marriages of same-sex couples that were transacted while the practice was legal. – “Proposition 8 must be understood as creating a limited exception to the state equal protection clause,” stated that “[t]he Attorney General’s contention ... rests inaccurately upon an overstatement of the effect of Proposition 8 on both the fundamental constitutional right of privacy… and on the due process and equal protection guarantees… As explained below, Proposition 8 does not abrogate any of these state constitutional rights, but instead carves out a narrow exception applicable only to access to the designation of the term “marriage,” but not to any other of “the core set of basic substantive legal rights and attributes traditionally associated with marriage . . .”
  18. 18. Proposition 8: Perry v. Schwarzenegger (Perry IV)(Cal. Aug. 4, 2010)• The court’s analysis relied on the foundational precedents of the Supreme Court in Loving v. Virginia and Griswold v. Connecticut , and thus, placing the problem squarely within the doctrine of the constitutional right to marry, stated that “it has been historically and remains the right to chose a spouse, and the mutual consent, to join together to form a household.” “Race and gender restrictions shape marriage in eras of race and gender inequality. But such restrictions were never part of the historical core of the institution of marriage.”• “An initiative measure adopted by the voters deserves great respect. The considered views and opinions of even the most highly qualified scholars and experts seldom outweigh the determinations of the voters. When challenged, however, the voters’ determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons. Conjecture, speculation, and fears are not enough. Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view. The evidence demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval. As such, Proposition 8 is beyond the constitutional reach of the voters or their representatives.”
  19. 19. Proposition 8: Perry v. Brown, I & II (Cal. Nov. 17, 2011 & Feb. 7, 2012)• On Thursday November 17, 2011, in the case of Perry v. Brown I, sponsors of Proposition 8 took their fight to the 9th Circuit Court of Appeals and asked permission to defend the law in Court challenging the ruling on Perry IV on the grounds that Judge Walker was biased on the matter because he was gay and was therefore unable to conduct a fair trial. The court certified the question and upheld the standing of the proponents authorizing the group to defend the states interest in the federal court of appeals and although any of the sides addressed the central question of the case of whether Proposition 8 was unconstitutional, on Thursday December 8, 2011, lawyers from both sides presented their arguments.• On February 7, 2012, in the case of Perry v. Brown II, the federal court of appeals, adopting the conclusions of law indicated in Perry IV and supporting a declaration of unconstitutionality under the due process clause of the 14th Amendment, which guarantees a fundamental right to marry, and the equal protection clause, determined that depriving same-sex couples of the status of marriage while permitting it for opposite sex couples was a discriminatory act in violation of the equal protection clause.
  20. 20. Proposition 8: Perry v. Brown, I & II (Cal. Nov. 17, 2011 & Feb. 7, 2012)• Proposition 8 basically deprived same-sex couples of “the status and the dignity of marriage.” “That designation is important because ‘marriage’ is the name that society gives to the relationship that matters most between two adults. A rose by any other name may smell as sweet, but to the couple desiring to enter into a committed lifelong relationship, a marriage by the name of ‘registered domestic partnership’ does not. The word ‘marriage’ is singular in connoting “a harmony in living,” “a bilateral loyalty,” and “a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” “The name ‘marriage’ signifies the unique recognition that society gives to harmonious, loyal, enduring, and intimate relationships.” “Proposition 8 “enacts nothing more or less than a judgment about the worth and dignity of gays and lesbians as a class,” and “operates with no apparent purpose but to impose in gays and lesbians, through the public law, a majority’s private disapproval of them and their relationships…” “Proposition 8 therefore violates the equal protection clause.”• The court stated that “the campaign to pass Proposition 8 relied on stereotypes to show that same-sex relationships are inferior to opposite-sex relationships,” and noted that “television and print advertisements focused on the concern that people of faith and religious groups would somehow be harmed by the recognition of gay marriage and conveyed a message that gay people and relationships are inferior, that homosexuality is undesirable and that children need to be protected from exposure to gay people and their relationships.”
  21. 21. Varnum v. Brien (Iowa April 3, 2009)• The court, which declared that the Separate but Equal Doctrine was unconstitutional eight years before Brown v. Board of Education was decided, noted that Iowa was the first state in the Union to admit woman to the Bar and to allow then to practice law, and, by reasoning heavily on the state’s anti-discrimination tradition of refusing to treat a human being as property to enforce a contract for slavery, held that “our laws must extend Equal Protection to persons of all races and conditions.”• In light of this tradition, the court, which emphasized that Equal protection in Iowa mandates that the laws treat all alike because we are all similarly situated with respect to the purpose of the law, could found no reason that could justify why homosexuals were not similarly situated to others.• The court examined the ostensible governmental objectives for making marriage exclusively heterosexual and found that these reasons were shaped interests of maintaining traditional marriage, of facilitating child rearing by a heterosexual marriage, of promoting procreation, of promoting stability and of conserving resources.• In reviewing these objectives the Court concluded that they were “firmly convinced that the exclusion of gay and lesbian people from the institution of civil marriage does not substantially further any important governmental objective. The legislature has excluded a historically disfavored class of persons from a supremely important civil institution without a constitutionally sufficient justification. There is no material fact, genuine in dispute, that can affect the determination.”
  22. 22. Defense of Marriage Act (DOMA): Commonwealth of Massachusetts v. United States Department of Health and Human Services (Mass. July 8, 2010)• As of February 12, 2010, the Commonwealth of Massachusetts had issued marriage licenses to at least 15,214 same-sex couples. However, Section 3 of DOMA, which was signed into law on September 21, 1996, as a response to a 1994 Hawaii’s court decision and following statute legalizing same-sex marriage, defines the term marriage, for purposes of federal law, to include only the union of one man and one woman, and therefore bars federal recognition of these marriages.• As a response to this, Massachusetts presented an action challenging the constitutionality of this section contending that the law violates the Tenth Amendment of the Constitution, by intruding on areas of exclusive state authority, as well as the Spending Clause, by forcing the state to engage in invidious discrimination against its own citizens in order to receive and retain federal funds in connection with two joint federal-state programs: the Veteran Affairs (VA), which informed plaintiff that the federal government was entitled to recapture millions of dollars in federal grants if plaintiff buried the same-sex spouse of a veteran at a veterans’ cemetery, and the Health and Human Services (HHS), which barred plaintiff from using federal funds to provide Medicaid benefits to same-sex married couples.• On July 8, 2010, the court held that Congress exceeded the scope of its authority under the Spending Clause, because DOMA induced plaintiff to violate the equal protection rights of its citizens by conditioning the receipt of federal funding on the denial of marriage-based benefits to same-sex married couples, even though the same benefits were provided to similarly-situated heterosexual couples, and that it violated the Tenth Amendment because the authority to regulate marital status was a sovereign attribute of statehood and the law impermissibly interfered with plaintiffs ability to define the marital status of its citizens.• The court stated that “it is clearly within the authority of the Commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status. The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment.”
  23. 23. Defense of Marriage Act (DOMA): Commonwealth of Massachusetts v. United States Department of Health and Human Services (Mass. May 31, 2012)• The First Circuit panel affirmed the prior rulings and unanimously found Section 3 of DOMA unconstitutional stating that: “Traditions are the glue that holds society together, and many of our own traditions rest largely on belief and familiarity--not on benefits firmly provable in court. The desire to retain them is strong and can be honestly held. For 150 years, this desire to maintain tradition would alone have been justification enough for almost any statute. This judicial deference has a distinguished lineage… But Supreme Court decisions in the last fifty years call for closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern. To conclude, many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today. One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage. Under current Supreme Court authority, Congress denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.”
  24. 24. Defense of Marriage Act (DOMA): Windsor v. United States (N.Y., Oct. 18, 2012)• In 2007, Edith Windsor and Thea Spyer, who had a 40 years partnership and were residents of NY at that time, married in Toronto, Ontario. In 2009, while living in New York, wherte same-sex marriages performed in other jurisdictions were recognized, Spyer died. DOMA required Windsor to pay more than $363,000 in federal estate taxes on her inheritance. Nonetheless, if federal law accorded their marriage the same status as heterosexual marriages recognized by the state, Windsor would have paid no taxes because “married” couples are exempt from those taxes. On 2009, Windsor sued the federal government for failing to recognize her marriage to her partner after her death. – On February 23, 2011, Attorney General released a memo explaining that because of the Obama administration’s determination that classifications based on sexual orientation should be subject to heightened scrutiny, it could no longer defend the constitutionality of DOMA’s section 3.• On June 6, 2012, the court ruled that Section 3 of DOMA was unconstitutional because it violated plaintiff’s rights under the Equal Protection Clause of the 14th Amendment. After several challenges and procedures, on September 27, 2012, the 2nd Circuit Court of Appeals heard all arguments in the case and on October 18, 2012, upheld the lower courts ruling affirming that Section 3 of DOMA is unconstitutional: “When it comes to marriage, legitimate regulatory interests of a state differ from those of the federal government. Regulation of marriage is an area that has long been regarded as a virtually exclusive province of the States. It has for very long been settled that the State has the absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created, and the causes for which it may be dissolved.” The court, considering whether homosexuals are a politically powerless minority, determined that “homosexuals are not in a position to adequately protect themselves from the discriminatory wishes of the majoritarian public.”• This became the first federal court of appeals decision to find that laws targeting gays and lesbians should be subject to intermediate scrutiny.
  25. 25. Recent Developments• On February 8, 2012, one day after Proposition 8 was declared unconstitutional on the grounds that it was a violation of the civil rights of gay and lesbian couples, Washington State’s lawmakers voted 55-43 to approve gay marriage.• On that same day, Maryland’s Governor, Martin O’Malley, stating that California’s decision was the latest evidence that the current of our nation’s history always moves forward to greater protection of the freedom of individuals and that that was what was stake in that decision, declared his commitment to seek a similar legislation in Maryland. • On February 23, 2012, the Maryland Senate voted to legalize same-sex marriage and on March 1, 2012, Governor O’Malley, after stating that “all children deserve the opportunity to live in a loving, caring, committed, and stable home, protected equally under the law,” signed a measure to legalize gay marriage, joining other seven states – Washington, New York, Massachusetts, Connecticut, Iowa, New Hampshire and Vermont, plus the District of Columbia – that had already legalized same-sex marriage.
  26. 26. • On February 16, 2012, New Jersey lawmakers also approved same-sex marriage legislation. However, Governor Chris Christie, who has expressed that he believes marriage should be limited to one man and one woman, vetoed the legislation saying that voters should decide the issue in a statewide referendum. • After this veto, a Quinnipiac University poll demonstrated that New Jersey voters’ support for same- sex marriage reached a record high in the days after the veto with 57 percent of the current registered voters favoring gay marriage and 37 percent not, which represents a complete shift from the 2006 results, which showed that 41 percent were in favor and 50 percent were against it.• On November 6, 2012, same-sex marriage was approved by statewide popular votes for the first time, when state voters of Maryland and Maine approved measures to allow same-sex marriage.
  27. 27. Conclusion• Even though in 1967 the United States Supreme Court determined that marriage was a basic civil right, it was not until 1973, when same-sex couples legally claimed a right to get marriage licenses, that United States courts felt it was necessary to formulate a definition of the term marriage. • It is worth noting that in 1973 the Board of Directors of the American Psychiatric Association removed homosexuality, classified as a mental disorder since 1952, from the Diagnostic and Statistical Manual of Mental Disorders (DSM).• This reaction, and the responses it produced, demonstrates how the creation and maintenance of culture and societies depends greatly on the division and distribution of power to interpret signs and give them the meaning that would allow for the representation of ideas, and, through the use of meaningful discourses, the production of language. • In short, how terms are defined and how courts and society interpret them, although are not static processes, makes a great difference on how human beings are affected by, and treated under the law, and by society.• The above cases and the subsequent responses are important contemporary trends in perspectives about privacy, liberty, civic order, equality, and essential dignity that represent important guides to further understanding in developing the values that inform different social processes areas of law and communication, and related areas as well.
  28. 28. • The case law provides us with a summary and intervention of the multi- disciplinary facts behind the status of gender orientation and the institution of marriage that represents an important illustration of a public service which seeks to clarify precisely what exactly are the interests of the state elites in enacting measures that are discriminatory and target human beings, in this case, whose sexual orientation differs from those of the majority.• They also clarify the importance of private autonomy and choice in matters of intimacy, which implicates the reciprocal exchange of affect and related values and underscores the constitutional stature of the interest in protecting the exercise of free choice.• Additionally, the case law illustrates how courts’ language have gravitated from not even having a definition for marriage to the idea that is a fundamental civil right that represents the freedom of choice in a zone of civic autonomy that must as well be protected from invidious prejudice, discrimination, and stigmatization. – Therefore, the better understanding of terms such as dignity and equality, and the elevation of their protection from invidious discrimination and prejudice, are important complements to ensure the full plenitude of a fundamental human right of choice in matters of a significant individual self- expression and experience, such as the institution of marriage.
  29. 29. References• Baker v. Nelson, 409 U.S. 810 (Minn. October 10, 1972)• Citizens for Equal Protection v. Bruning, 455 F.3d 859 (Neb. Jul.14, 2006).• Commonwealth of Massachusetts v. United States Department of Health and Human Services, 698 F.Supp.2d 234 (Mass. July 8, 2010).• Commonwealth of Massachusetts v. United States Department of Health and Human Services, 682 F.3d 1 (Mass. May 31, 2012)• Gandy, O. H. (1998). Communication and race: A structural perspective. London: Arnold.• Gledhill, C. (1997). Genre and gender: The case of soap opera. Representation: Cultural representations and signifying practices, 337-386.• Goodridge v. Department of Public Health, 440 Mass. 309 (Mass. Nov. 18, 2003).• Hall, S. (Ed.). (1997). Representation: Cultural representations and signifying practices (Vol. 2). Sage Publications Limited.• In re Marriage Cases, 43 Cal.4th 757 (Cal. May 15, 2008).• Kerrigan v. Commissioner of Public Health, 957 A.2d 407 (Conn. Oct. 10, 2008)• Loving v. Virginia, 388 U.S. 1 (Supreme Court of United States, Jun. 12, 1967).• Jones v. Hallahan, 501 S.W.2d 588 (Kent. Nov. 9, 1973).• Miller, K. (2002). Communication Theories: Perspectives, Processes, and Contexts. McGraw-Hill.• Nagan, W. P. & Haddad, A. M. (2012a). Individuality, Humanism, & Human Rights. ERUDITIO, 58.• Nagan, W.P. & Haddad, A.M. (2012b). Sovereignty in Theory and Practice. San Diego International Law Journal, 13, (2), 429-519.• Nagan, W. P., & Hammer, C. (2006). Communications Theory and World Public Order: The Anthropomorphic, Jurisprudential Foundations of International Human Rights. Va. J. Intl L., 47, 725.• Nixon, S. (1997). Exhibiting masculinity. Representation: Cultural representations and signifying practices, 291-336.• Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (Cal. Aug. 4, 2010).• Perry v. Brown, 134 Cal. Rptr. 3d 499 (Cal. Nov. 17, 2011).• Perry v. Brown, 671 F.3d 1052 (Cal. Feb. 7, 2012).• Strauss v. Horton, 46 Cal.4th 364 (Cal. May 26, 2009).• Varnum v. Brien, 763 N.W.2d 862 (Iowa April 3, 2009).• Windsor v. United States, 2012 U.S. App. LEXIS 21785 (NY., Oct. 18, 2012).
  30. 30. Questions

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