Equality On Trial

Post-DOMA, new advances in LGBT legal equality

July 26, 2013

By Scottie Thomaston

DOMA trials LGBT Legal Cases

By Scottie Thomaston

Capitol Hill

Now that the Supreme Court has issued its decision in United States v. Windsor striking down Section 3 of the federal Defense of Marriage Act, some members of Congress are seeking to make changes to the US Code that would bring it in line with the Court’s decision, and federal agencies are developing rules to make changes required by the invalidation of Section 3. At the Federal Election Commission, the agency had previously held against same-sex married couples who sought to combine their donations under federal laws for spouses who donate to campaigns. The FEC had held that they couldn’t recognize the couple as spouses under Section 3 of DOMA.

This week, the FEC posted two draft advisory opinions on the subject, that would require recognition of same-sex marriages:

n two draft advisory opinions posted on the FEC’s website on the agenda for Thursday’s meeting, the agency tasked with regulating the financing of federal elections states that following the decision in the Windsor case, “the term ‘spouse’ includes same-sex couples married under state law.”

The two opinions come in response to separate requests by the Democratic Senatorial Campaign Committee as well as a same-sex Massachusetts couple who are members of Log Cabin Republicans and wanted to donate to the special election campaign for pro-gay Republican Senate candidate Dan Winslow. The conclusions of the two opinions are identical in language.

“The term ‘spouse’ is not defined in FECA or the Commission’s regulations. The Commission has previously relied on state law to supply the meaning of terms not explicitly defined in the Act or Commission regulations,” the opinions state. “In light of the foregoing, the Commission concludes same-sex couples married under state law are ‘spouses’ for the purpose of Commission regulations.”

On Thursday, the opinions were unanimously approved. This was set to happen post-DOMA, and even the earlier decision rejecting the same-sex couple’s claims had announced that newer guidance would need to be issued were Section 3 of DOMA invalidated.

In other post-DOMA advancements, the U.S. Citizenship and Immigration Services has now posted a FAQ on its site for questions related to same-sex couples and immigration now that Section 3 of DOMA is no longer law. The FAQ says petitions can now be filed to sponsor a same-sex spouse, and also notes that the USCIS uses the “place of celebration” method to determine whether a marriage is legal: as long as it was legal in the state where the marriage was performed, it’s generally legal for immigration purposes, subject to some limitations.

In a new development related to LGBT legal equality, the Senate Appropriations Committee approved a bill that would ban discrimination in jury selection on the basis of sexual orientation or gender identity. Bills have been proposed to fix this problem for years, and this one was attached to a larger appropriations bill. There are currently only two cosponsors. Senator Shaheen spoke about the bill’s importance to the LGBT community:

Sen. Jeanne Shaheen (D-N.H.), who introduced the LGBT bill in January, said in a statement the move would ensure that LGBT people don’t face discrimination as part of the juror selection process.

“Discrimination based on sexual orientation or gender identity simply has no place in the United States,” Shaheen said. “The judicial process should represent our nation’s principles of inclusion and acceptance, and eliminating the discriminatory exclusion of LGBT jurors is a necessary step to meeting that goal.”

Currently, discrimination on the basis of race, color, religion, sex, national origin and economic status is prohibited under U.S. code in the jury selection process for federal courts. However, there are no such protections for LGBT people. The Jury Access for Capable Citizens & Equality in Service Selection Act would amend this section of U.S. code to include sexual orientation and gender identity.

Importantly, non-discrimination in jury selection is geared toward helping the accused person rather than individual LGBT jurors. Accused people are entitled to an impartial jury, and when a minority defendant is accused and minority jurors are excluded, it creates a problem in our legal system. The Supreme Court and Congress have worked to remedy this in other areas like race and gender. The entire appropriations bill will eventually go to the full Senate.

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