History > 2014 > USA > Gay rights (I)

David Sigal, left, a filmmaker,

and Brad Hoylman, a New York State senator,

with their daughter, Silvia Hoylman-Sigal, now 3.

Nicole Bengiveno/The New York Times

And Surrogacy Makes 3 - In New York, a Push for Compensated Surrogacy

NYT

19.2.2014

http://www.nytimes.com/2014/02/20/fashion/
    In-New-York-Some-Couples-Push-for-Legalization-of-Compensated-Surrogacy.html

A Milestone for Same-Sex Marriage

JUNE 27, 2014

The New York Times

The Opinion Pages | Editorial

By THE EDITORIAL BOARD

The battle to legalize same-sex marriage saw a historic victory this week when the United States Court of Appeals for the 10th Circuit in Denver became the first federal appeals court in the nation to declare that same-sex couples have a “fundamental right” to wed.

The decision, striking down Utah’s ban on same-sex marriage, extended a remarkable string of favorable federal court rulings; a similar ruling was issued on the same day by a Federal District Court in Indiana. The decision also provides a vehicle for the issue’s possible return to the Supreme Court next term.

“To claim that marriage, by definition, excludes certain couples is simply to insist that those couples may not marry because they have historically been denied the right to do so,” Judge Carlos Lucero, a Clinton appointee, wrote in a majority opinion in the Utah case, joined by Judge Jerome Holmes, a George W. Bush appointee. “One might just as easily have argued that interracial couples are by definition excluded from the institution of marriage.”

The opinion affirmed a lower court’s decision in December that resulted in more than 1,000 same-sex marriages in Utah before the Supreme Court issued a stay.

All in all, this has been a year of extraordinary progress on same-sex marriage. Almost exactly a year ago, the Supreme Court left standing a lower-court ruling overturning Proposition 8, California’s ban on same-sex marriage; that case has given rise in recent weeks to two books and an HBO movie.

But the prime factor behind the explosion of lawsuits challenging state bans, as well as the many court rulings rejecting discrimination in both red and blue states, is United States v. Windsor — the Supreme Court’s landmark ruling striking down the Defense of Marriage Act’s denial of federal benefits to lawfully married same-sex couples. The 10th Circuit decision in the Utah case included many references to the Defense of Marriage Act ruling.

Utah’s attorney general, Sean Reyes, has said he intends to appeal the ruling to the Supreme Court.

Decisions on same-sex marriage are expected in coming months from other federal appeals courts as well, with the soonest perhaps from the United States Court of Appeals for the Fourth Circuit in Virginia.

Yet the Supreme Court need not — and should not — wait for every appeals court to act or for a conflict to emerge among different circuits to revisit the same-sex marriage question and provide a definitive ruling making marriage equality the law of the land.

A recent report from Attorney General Eric Holder Jr. shows why the court should act promptly. The report documents the Obama administration’s progress in making federal benefits available to married same-sex couples in the wake of the Windsor decision.

But it also concludes that some vital Social Security and veterans benefits cannot be provided because they are tied to a couple’s “place of domicile” rather than a “place of celebration” standard. Congress is unlikely to fix that.

Only a strong decision from the Supreme Court making same-sex marriage legal nationwide can resolve this problem and end a whole array of indignities and disadvantages the current legal patchwork inflicts on gay people and their families every day.

A version of this editorial appears in print on June 28, 2014,
on page A20 of the New York edition with the headline:
A Milestone for Same-Sex Marriage.

    A Milestone for Same-Sex Marriage, NYT, 27.6.2014,
    http://www.nytimes.com/2014/06/28/opinion/
    a-milestone-for-same-sex-marriage.html

Federal Judge Strikes Down

Oregon’s Ban on Same-Sex Marriage

MAY 19, 2014
The New York Times
By KIRK JOHNSON

PORTLAND, Ore. — The cheers erupted at exactly 12:08 p.m. as word filtered through the line of couples, friends and family members, some of whom had been on the sidewalk outside the Multnomah County building here since 5:30 a.m. on Monday.

Judge Michael McShane of Federal District Court — having promised to file his ruling on a challenge to Oregon’s ban on same-sex marriage at noon — had met his deadline. And to Ken Brashier, the roar of the crowd said the rest. The ban had fallen.

“Sounds like we’re getting married,” said Mr. Brashier, 49, a professor of Chinese religion and humanities at Reed College, to his fiancé, Andy Wallace, 45, a software engineer.

Barely a minute later county officials, who said they had been preparing for this moment all weekend, opened the doors, and the line surged in. Within an hour, 23 couples had bought a marriage license, and the first ceremonies were wrapped up.

Couples like Julie Engbloom and Laurie Brown — married by a county judge at a community hall within walking distance of the marriage bureau — said they had resolved to act quickly partly out of love, and partly out of concern about the legal road ahead.

Many gay couples here still vividly remember March 2004, when Multnomah County, acting on its own, began issuing same-sex marriage licenses in a scene of joyous release not unlike Monday’s. Several thousand licenses issued at that time were ultimately voided by the courts. And later that year, a majority of Oregon voters approved a constitutional amendment defining marriage as between one man and one woman.

“There’s always a sense of insecurity,” said Ms. Brown, 47, a recently laid-off advertising worker. But now with the papers signed and documents filed, she said, the vows she and Ms. Engbloom, a lawyer, had wanted to exchange for years are legally binding in Oregon.

“This is a unit,” she said, her arm wrapped around Ms. Engbloom as they spoke to reporters on a community hall meeting room floor strewn with flower petals.

In addition to Oregon, judges in seven states — Arkansas, Idaho, Michigan, Oklahoma, Texas, Utah and Virginia — have had their laws or constitutional amendments banning same-sex marriage struck down in recent months. To some couples here on Monday, that wave felt like a permanent and seismic shift.

But the challenges to those decisions have continued. The National Organization for Marriage, a conservative group that had sought to defend Oregon’s law, asked for an emergency stay of Judge McShane’s ruling with the United States Court of Appeals for the Ninth Circuit even before the order was filed.

A panel of the appeals court declined to issue that stay, but just last week it issued a stay in Idaho, preventing same-sex marriages from going forward there after a federal judge in Idaho struck down that state’s marriage law.

The executive director of the American Civil Liberties Union of Oregon, David Fidanque, said he believed that Oregon would be different from other states where appeals courts had issued stays halting same-sex marriages shortly after they had begun. Judge McShane’s ruling will stand, he said, largely because, unlike other states, no group or individual in Oregon with legal standing has sought to appeal it.

The Oregon attorney general has said she believes the ban is unconstitutional, and Judge McShane said last week that the National Organization for Marriage lacked legal standing to argue in support of the ban.

Portland, Oregon’s largest city, has been accepting of gay men and lesbians for many years. And at least three of the Multnomah County commissioners who supported the decision to issue licenses 10 years ago returned to the county office on Monday to show their support for this new wave of marriages — or to be with gay friends.

But some people involved in the day’s ceremonies also spoke about the sense that Monday’s decision, which conferred rights and recognition that go beyond neighborhood or civic acceptance, felt like vindication.

Beth Allen, for example, a Multnomah County Circuit Court judge who married Ms. Brown and Ms. Engbloom, is openly gay and was among the first in line 10 years ago when those initial, fleeting marriage licenses were issued here.

She and her wife, Christine Cress, were ultimately married last December in Washington State, where voters approved same-sex marriage in 2012. She said they had no plans to marry again since Oregon now recognizes their Washington license.

But after becoming a judge early last year, she refused to perform any marriages at all until same-sex marriage was allowed in Oregon. That protest ended Monday afternoon, when she stumbled just a bit through the opening phrases of the ceremony, so familiar yet so new.

“This is my very first wedding,” Judge Allen said as Ms. Engbloom and Ms. Brown stood before her, holding hands.

“Ours, too,” Ms. Brown replied.

Alain Delaquérière contributed research from New York.

A version of this article appears in print on May 20, 2014,

on page A12 of the New York edition with the headline:

Federal Judge Strikes Down Oregon’s Ban

on Same-Sex Marriage.

    Federal Judge Strikes Down Oregon’s Ban on Same-Sex Marriage,
    NYT, 19.5.2014,
    http://www.nytimes.com/2014/05/20/us/
    federal-judge-strikes-down-oregons-ban-on-same-sex-marriage.html
 

And Surrogacy Makes 3

In New York,

a Push for Compensated Surrogacy

 

FEB. 19, 2014
The New York Times
By ANEMONA HARTOCOLLIS

A month before their baby’s due date, Brad Hoylman and David Sigal got a call from the woman they had hired to have their child.

She was having contractions; come right away.

Mr. Sigal, a filmmaker, had the more flexible schedule. So after a sleepless night, he hopped on a plane to San Diego while Mr. Hoylman stayed in New York and frantically oversaw the dusty conversion of their TV room into a nursery.

The contractions turned out to be a false alarm, but Mr. Sigal stayed. And stayed, touching up his documentary in his hotel room, going to family outings — a picnic, a cheerleading event — with the surrogate and her daughters, and calling Mr. Hoylman “every 10 minutes” with updates.

Four weeks later, the baby was induced, and Mr. Hoylman flew in for the birth.

‘The timing was perfect,” Mr. Hoylman said. “I cut the cord and David —”

“Held her,” Mr. Sigal finished the sentence.

Such is the world of gestational surrogacy, in which a woman is paid to go through the pregnancy and birth of a child who is not genetically related to her and then promises to give that child away. To anyone who has had a baby, or known someone who has, the couple’s tireless zest for reciting their daughter’s birth story will bring a knowing smile, maybe a jaded shrug. But for Mr. Sigal and Mr. Hoylman, two gay men, the birth narrative carries with it an extra frisson of the illicit that seems to them more than a little archaic and unfair in the post-marriage-equality world.

They had their baby in California because if they had had her in New York, they would have been breaking a 1992 New York law that bars commercial surrogacy contracts and equates them with baby-selling — a legacy of the notorious Baby M case of the 1980s.

Now Mr. Hoylman, as a novice state senator, is in a position to do something about it. He is the co-sponsor of a proposed law that would overturn the current law and make compensated surrogacy legal in New York State.

Surrogate baby-making has long been a path taken by the affluent and celebrities, partly because it takes good legal advice and money to accomplish. But in recent years, it has been growing among gay men, who in a fundamentally conservative embrace of family values, see having children and building a family as the logical next step after getting married.

“Not to be cliché, but you know how the phrase goes — first comes love, then comes marriage, then comes the baby and the baby carriage,” said Allison Steinberg, a spokeswoman for the Empire State Pride Agenda, which has endorsed the bill.

The bill’s supporters argue that it makes no sense for New York, which has a large number of fertility clinics, not to mention a flourishing gay community, not to be able to offer commercial surrogacy to those who want it. And they say that making surrogacy more widely available could reduce the exorbitant costs, easily as much as $100,000 per baby.

In Mr. Hoylman and Mr. Sigal’s case, neither of their parents expected them to have children. “Now they think he’s a family man,” Mr. Sigal said, grinning at his husband.

“It’s a funny phrase,” Mr. Hoylman said. “This is what it takes for people to relate to you.”

Mr. Hoylman says views on his Facebook page spike when he puts up pictures of their daughter, Silvia, now 3, but not when he puts up photographs of him and his husband without her.

The bill’s co-sponsors could hardly offer a more perfect vision of the surrogacy constituency. Mr. Hoylman, who took his Senate office last year, represents the heart of gay New York, in the Village, Chelsea and Hell’s Kitchen. The Assembly sponsor, Amy Paulin, who actually originated the bill, is from wealthy Scarsdale.

When a constituent approached her on the issue, Ms. Paulin said, she was intrigued because she had had her own fertility issues and was able to conceive her second child only after three years of arduous fertility treatments.

Ms. Paulin still cringes when remembering that people tried to console her by saying, “Well, you already have one,” which did not help. “All those remarks, they’re ingrained in you,” she said. “Any opportunity I would have in my position to help couples have a family would be something I could give back.”

Mr. Hoylman asked to be the Senate sponsor, and when she learned he had a daughter, “obviously he was the natural choice,” she said. “We’re a very strong team.”

Surrogate births are a small but growing part of the in vitro fertilization industry. Conservatively, about 1,600 babies a year in the United States are born through gestational surrogacy (which now accounts for almost all surrogacies), more than double the number in 2004, according to the American Society for Reproductive Medicine.

Celebrities who have used surrogates have gone a long way toward normalizing the process. The list is long, including Angela Bassett and Courtney B. Vance, Sarah Jessica Parker and Matthew Broderick, Neil Patrick Harris and David Burtka, Elton John and David Furnish, Nicole Kidman and Keith Urban, and Ricky Martin as a gay single father.

But driven by the law of supply and demand, a first-time egg donor could be paid $8,000 to $10,000, and a first-time surrogate $30,000 and up, bringing the cost of a no-frills contract to $75,000 to $120,000 with medical, legal and agency fees.

“You basically have to take out a loan to have a child,” Mr. Hoylman said.

Agencies prefer to contract with surrogates who are married with children, because they have a proven ability to have a healthy baby and are less likely to have second thoughts about giving up the child.

Conversely, gay couples are popular among surrogates. “Most of my surrogates want same-sex couples,” said Darlene Pinkerton, the owner of A Perfect Match, the agency in San Diego that Mr. Hoylman used. Women unable to become pregnant often go through feelings of jealousy and loss, she said. But with gay men, that is not part of the dynamic, so “the experience is really positive for the surrogate.”

Or as her husband, Tom, a third-party reproductive lawyer, put it, “Imagine instead of just having one husband doting on you, you have three guys now sending you flowers.”

New York has one of the harshest surrogacy laws in the country, along with Arizona, Indiana, Michigan, Nebraska and the District of Columbia.

“The only thing you can use the contract for is to wallpaper your powder room,” said Diane Hinson, a reproductive lawyer and owner of Creative Family Connections, a surrogacy company in Chevy Chase, Md.

It is legal in New York for a volunteer to carry a baby without pay, known as altruistic or compassionate surrogacy. And New Yorkers find ways around the law by shipping frozen embryos to clinics in nearby surrogacy-friendly states — Connecticut, Maryland, Pennsylvania, Massachusetts — for implantation. In New Jersey, paid surrogacy is still considered risky because of case law going back to Baby M. In 2012, Gov. Chris Christie vetoed a law that would have permitted some types of payment, saying he wanted more discussion of such “profound change in the traditional beginnings of a family.”

Historically, the legal aversion to surrogacy stems from a sort of Margaret Atwood, “Handmaid’s Tale” fear that it lends itself to unnatural social engineering and the subjugation of women. This led to an unusual alliance of feminists, civil libertarians and the Catholic church in the early 1990s, when the New York Catholic Conference joined with the New York Civil Liberties Union and the National Organization for Women to oppose surrogacy.

The Baby M case led to a pioneering court ruling on the validity of a surrogate-mother contract, and its outcome had a strong impact on New York because it played out across the river in New Jersey. Mary Beth Whitehead was a young homemaker with two children, in a rocky marriage to a sanitation worker, when she agreed in 1985 to have another man’s baby for $10,000.

Soon after giving birth, she took the baby to Florida and renounced her fee, saying she wanted to keep the child.

On appeal, the New Jersey Supreme Court restored her parental rights while leaving custody of Baby M with her biological father and his wife. “This is the sale of a child, or at the very least, the sale of a mother’s right to her child, the only mitigating factor being that one of the purchasers is the father,” the high court said.

Helene Weinstein, the Brooklyn Democratic assemblywoman who sponsored the resulting 1992 New York law, said it sent a message that children should not be “treated as commodities to be bought and sold.”

Now Ms. Weinstein is the chairwoman of the assembly judiciary committee, which Ms. Paulin’s bill must pass through; she says she is willing to at least reconsider the law.

“So much has changed since Baby M,” said Sonia Ossorio, president of the New York City chapter of the National Organization for Women.

For one thing, Ms. Whitehead was artificially inseminated using her own egg and the prospective father’s sperm, a process now disdained as “traditional” surrogacy. Today, the pregnancy would involve a third-party egg, so the surrogate would not be genetically related to the baby.

The new technology has given rise to a whole new language — gestational carrier, instead of surrogate mother, “intended parents,” “collaborative reproduction.”

Instead of bonding with the baby, “the gestational carrier bonds to the parents, and that’s what we want to have happen,” Ms. Hinson said. “That’s the key — that it’s somebody else’s child. These women, they just renew your faith in womankind.”

In a nod to the baby-selling concerns of the Baby M case, Mr. Hoylman and Ms. Paulin’s proposed law says that the gestational carrier would be paid for her services, not for giving up parental rights to a baby.

It also addresses potential concerns about social engineering, forbidding contracts to tie payment to the characteristics of the donor or the child.

Mr. Hoylman, now 48, and Mr. Sigal, 47, had not planned to have children. “But there comes a point when we were in our early 40s: well, what else is there?” Mr. Sigal said. “We were shocked that you couldn’t do surrogacy in New York.”

“It was also surprising that it was so readily available in California,” Mr. Hoylman said, in the singsong back and forth of their conversations.

They toyed with the idea of finding a female friend to have their baby, but most of them were past prime childbearing age, they said, and anyway, it seemed emotionally fraught.

They settled the quandary of who should be the biological father by each contributing sperm and choosing not to know whose DNA prevailed.

“The amazing thing about the California law is that both my husband and I are on the birth certificate as the parents,” Mr. Hoylman said, which would also happen in New York under the proposed law.

Sitting in their apartment near Washington Square, with Silvia bouncing around in a tutu, they joked about the hazards of being the child of two gay men. “She’s going to hear a lot of musicals in her life,” Mr. Hoylman said. They have compiled a baby book filled with photographs — her first subway ride; Silvia wearing an austere brown outfit that Mr. Hoylman thinks makes her look like a Holbein painting.

“Who’s that?” Mr. Hoylman asks, pointing to a picture of a cheerful-looking blonde. “Mari!” Silvia replies, naming her gestational carrier.

Their life is a series of sleepovers, dress-up games and grilled cheese sandwiches. They have attended playgroups run by the Lesbian, Gay, Bisexual & Transgender Community Center, which also runs a monthly group called “Planning Biological Parenthood for Men.”

“Once we had entered this world, we realized that we were on the cusp of a generation that is embracing parenthood,” Mr. Hoylman said.

Mr. Sigal added, “I think in the next generation of kids now in their 20s and 30s, this will be really, really common.”

“It’s the best thing —” Mr. Sigal began.

“We’ve ever done,” Mr. Hoylman finished.

Susan Beachy contributed research.

A version of this article appears in print on February 20, 2014,

on page E1 of the New York edition with the headline:

And Surrogacy Makes 3.

    And Surrogacy Makes 3 - In New York, a Push for Compensated Surrogacy,
    NYT, 19.2.2014,
    http://www.nytimes.com/2014/02/20/fashion/
    In-New-York-Some-Couples-Push-for-Legalization-of-Compensated-Surrogacy.html

A Steady Path to Supreme Court

as Gay Marriage

Gains Momentum in States

FEB. 14, 2014
The New York Times
By ADAM LIPTAK

WASHINGTON — A sweeping decision on Thursday night struck down Virginia’s ban on same-sex marriage and continued a remarkable winning streak for gay rights advocates, putting new pressure on the Supreme Court to decide the momentous question it ducked last summer: whether there is a constitutional right to same-sex marriage.

Since June, when the Supreme Court ruled that same-sex couples are entitled to equal treatment in at least some settings, federal judges in Oklahoma, Utah and Virginia have struck down laws barring same-sex marriages. In state legislatures and state courts, too, supporters of same-sex marriage have been winning.

“The pace of change has perhaps outstripped the Supreme Court’s preferences, but the momentum is tremendous,” said Suzanne B. Goldberg, a law professor at Columbia.

Rapid changes in public opinion are also playing a part, said Andrew M. Koppelman, a law professor at Northwestern. “It is becoming increasingly clear to judges that if they rule against same-sex marriage their grandchildren will regard them as bigots,” he said.

In striking down Virginia’s ban on same-sex marriage, Judge Arenda L. Wright Allen of Federal District Court in Norfolk relied heavily on the Supreme Court’s decision in June in United States v. Windsor, which ruled that the federal government must provide benefits to same-sex couples married in states that allow such unions.

The Windsor decision also figured prominently in recent rulings from federal judges striking down bans on same-sex marriage in Oklahoma and Utah.

The three trial-court decisions vindicated a prediction from Justice Antonin Scalia, who dissented in Windsor. “By formally declaring anyone opposed to same-sex marriage an enemy of human decency,” he wrote, “the majority arms well every challenger to a state law restricting marriage to its traditional definition.”

He has so far turned out to be right, presumably to his bitter dismay.

In keeping with the pace of change, Judge Wright Allen’s decision was marked by haste. It was issued late in the evening, which was curious in light of the fact that it was stayed pending appeal. And its first paragraph, since corrected, initially attributed the phrase “all men are created equal” to the Constitution, though it is in the Declaration of Independence.

The decision chose just one of the plausible readings of Windsor, which contained doctrinal crosscurrents. Indeed, Judge Wright Allen quoted a long passage from Justice Anthony M. Kennedy’s majority opinion extolling the central role of states in defining marriage. That would seem to support allowing Virginia to decide whom it will let marry.

“Notwithstanding the wisdom usually residing within proper deference to state authorities regarding domestic relations,” Judge Wright Allen wrote, prompt action from the courts was required. “When core civil rights are at stake,” she said, “the judiciary must act.”

She drew on other parts of Justice Kennedy’s opinion, and she had plenty to work with. Treating same-sex marriages differently from others, he wrote, “demeans the couple, whose moral and sexual choices the Constitution protects, and whose relationship the state has sought to dignify.”

“And,” he added, “it humiliates tens of thousands of children now being raised by same-sex couples.”

Judge Wright Allen began her decision with a quotation from Mildred Loving, who successfully challenged Virginia’s ban on interracial marriage in the Supreme Court in Loving v. Virginia.

The Loving decision, which struck down such bans nationwide, is instructive in many ways, including in how to gauge the pace of change.

The Supreme Court issued the decision in 1967, which was quite late in the civil rights era. At the time, only 16 states still prohibited interracial unions.

Almost two decades had passed since the California Supreme Court struck down the state’s ban on interracial marriage in 1948.

In the meantime, the United States Supreme Court took sometimes unseemly pains, in an era when its jurisdiction was often nominally mandatory, to avoid ruling on the question.

If past were prologue, this might indicate that the Supreme Court will take its time before returning to the question of what the Constitution has to say about same-sex marriage, particularly now that the court’s jurisdiction is almost entirely discretionary.

After all, only 17 states and the District of Columbia allow such unions, not counting the recent decisions, all stayed, from Oklahoma, Utah and Virginia.

On the other hand, public opinion in 1967 was strongly against interracial marriage, while most polls show that a rapidly growing majority of Americans support same-sex marriage.

That transformation in public sentiment will not be ignored by the judiciary, Professor Koppelman said.

He added that the Supreme Court is likely to step in as soon as next year should any of the recent decisions be affirmed by a federal appeals court.

Professor Goldberg agreed that “pressure is building in society and building in the courts,” making it “likely but not inevitable that the Supreme Court will take a marriage case in the near future.”

Still, the justices are often wary of a backlash and might prefer to let the democratic process and lower courts work through contentious social issues before weighing in.

Justice Ruth Bader Ginsburg, a leading champion of women’s rights, has often said the Supreme Court should have issued a narrower decision in 1973 in Roe v. Wade rather than announcing a broad constitutional right to abortion nationwide. State legislatures, she has said, were making progress on the issue.

Justice Ginsburg’s historical account is contested, but there is reason to think that her caution played a role in the court’s failure in June to say in Hollingsworth v. Perry whether the Constitution requires states to let gay and lesbian couples marry.

The justices continue to mull the crucial question of when to weigh in when society is on the move.

In a joint appearance last week, Justice Elena Kagan seemed to give Justice Ginsburg a nudge.

“She has been critical of certain cases, most notably Roe v. Wade, for having ruled too expansively and too quickly,” Justice Kagan said of Justice Ginsburg, who listened attentively. “But she has also recognized that when the time is right courts can play an important role in ratifying society’s progress.”

A version of this news analysis appears in print

on February 15, 2014, on page A1

of the New York edition with the headline:

A Steady Path to the Justices.

    A Steady Path to Supreme Court as Gay Marriage Gains Momentum in States,
    NYT, 14.2.2014,
    http://www.nytimes.com/2014/02/15/us/politics/
    a-steady-path-to-justices-as-gay-marriage-gains-momentum-in-states.html

Gay Rights and the Justice Department

 

FEB. 10, 2014
The New York Times
By THE EDITORIAL BOARD

Since the Supreme Court struck down the provision in the Defense of Marriage Act denying federal benefits to lawfully married same-sex couples, the Justice Department has been helping federal agencies change their practices. Now the department is adjusting its own policies and programs, bringing significant advances for gay couples and American justice.

Attorney General Eric Holder Jr. on Saturday unveiled a bold effort by his department to eliminate the distinction between same-sex and opposite-sex married couples in the federal justice system. On Monday, he issued a formal policy memo instructing employees that it is the Justice Department’s policy “to recognize lawful same-sex marriages as broadly as possible” and “treat all individuals equally regardless of sexual orientation.”

What that means in concrete terms, for example, is that in court cases and criminal investigations, same-sex couples will be covered for the first time by the “spousal privilege,” a rule that prevents spouses from being forced to testify against each other. Same-sex spouses of police officers or firefighters killed or catastrophically injured in the line of duty will be eligible for a special benefits program the Justice Department administers.

Same-sex couples will be recognized by the department when determining eligibility for payments from the 9/11 Victim Compensation Fund, which is for people injured or made ill by the 2001 terrorist attacks. The Federal Bureau of Prisons must grant to federal inmates in same-sex marriages the rights and privileges given other married inmates. That includes equal visitation by a spouse and eligibility for compassionate release or a reduction in a sentence when an inmate’s spouse becomes incapacitated. In bankruptcy proceedings, the department will encourage judges to allow same-sex married couples to file for bankruptcy jointly. The department will also urge judges to require inclusion of alimony in domestic support obligations exempted from bankruptcy discharge.

These changes are significant both for the lives of thousands of gay and lesbian couples and for advancing acceptance of same-sex relationships on the nation’s long march toward greater equality.

That is why it was so disappointing, given Mr. Holder’s announcement, that the White House is still hesitating to move forward with another important anti-discrimination measure: barring federal contractors from refusing to hire workers on the basis of sexual orientation or gender identity. President Obama’s failure to sign an executive order that would prohibit such discrimination when using taxpayer dollars is a black mark on his record.

Meantime, Michael Sam, a defensive lineman from the University of Missouri football team, has provided further evidence of how things are changing. His brave declaration that he is gay in an interview with John Branch published in The Times on Monday would make him the first openly gay player in the National Football League if he is drafted this spring. Should that happen, it would be yet another gay rights breakthrough.

A version of this editorial appears in print

on February 11, 2014, on page A26

of the New York edition with the headline:

Gay Rights and the Justice Department.

    Gay Rights and the Justice Department,
    NYT, 10.2.2014,
    http://www.nytimes.com/2014/02/11/opinion/
    gay-rights-and-the-justice-department.html

Gay Marriages

Confront Catholic School Rules

JAN. 22, 2014
The New York Times
By MICHAEL PAULSON

SAMMAMISH, Wash. — Eastside Catholic prides itself on teaching acceptance. At the end of Crusader Way, by the school’s entrance, banners hang celebrating “relationships” and exhorting passers-by to “remember to take care of each other.” Students use a sign-language gesture to remind one another of the school’s emphasis on unconditional love.

But now the school is unexpectedly grappling with how it defines both love and acceptance. Last month, a well-regarded vice principal was forced to leave his job as soon as administrators became aware that he had married a man; in the weeks since, the suburban Seattle school has been roiled, first by protests in support of the vice principal, and then by the resignations of those who sought his departure. The chairman of the school’s board resigned last month, and on Tuesday, Eastside, a middle and high school with about 900 students, announced the resignation of its president.

The ouster of Mr. Z, as the former vice principal, Mark Zmuda, is known, comes amid a wave of firings and forced resignations of gay men and lesbians from Roman Catholic institutions across the country, in most cases prompted not directly by the employees’ sexuality, but by their decisions to marry as same-sex marriage becomes legal in an increasing number of states.

This month, the band and choir director at a Catholic school in Ohio was fired hours after he told the school’s president that he planned to marry his boyfriend; in December, a French and Spanish teacher at a Catholic school in Pennsylvania was fired days after telling his principal he was applying for a marriage license in New Jersey. Similar ousters have taken place at Catholic schools, universities and parishes in Arkansas, California, Illinois, Missouri, New York and North Carolina.

For Catholic school and church leaders across the country, the issue is clear. The Roman Catholic Church opposes same-sex marriage, and school officials, including Mr. Zmuda, generally sign contracts saying they will abide by church teachings so that their lives can be models for their students.

But for some young Catholics, the firings are mystifying, particularly given the new tone set by Pope Francis. At Eastside Catholic, some students have taken to crafting banners with the quotation “Who am I to judge?,” words uttered by the pope when asked about gay priests; others have been trying to reach the pope via Twitter, hoping he will somehow intercede.

“He made it safe for people to raise issues and questions that, in the past, they were shut down for,” said Nancy Walton-House, whose son attended Eastside. “There’s a lot of hope, and maybe some naïveté, about how fast things can happen.”

Eastside’s senior-class president, Bradley Strode, a 17-year-old wrestler and lacrosse player, is seeking a meeting with the archbishop of Seattle, arguing that even if the church’s doctrine does not change, its employment practices should.

“It was just shocking that the Catholic Church would turn its back on a teacher for something that didn’t affect his work performance,” he said. “Gay marriage was something I never really thought about before, but everyone can agree that employment discrimination is wrong.”
A sign backed Mark Zmuda, the former vice principal and swimming coach at Eastside Catholic. David Ryder/Reuters

Last week, Archbishop J. Peter Sartain of Seattle issued a statement defending the school and rejecting the notion that the firing ran contrary to the direction of the new pope.

“Pope Francis has often reminded us of the limitless mercy of God, for Jesus came to bring his father’s mercy,” Archbishop Sartain said. “At the same time, Pope Francis has also reminded us of our responsibility as Catholics to live the timeless truth of church teaching on a wide variety of topics, including the sacredness of traditional marriage.”

Some students have quietly expressed support for the decision to remove Mr. Zmuda, but the prevailing sentiment at the school has been upset, reflecting, in part, the shifting attitudes toward same-sex marriage among young people.

“A lot of it is just generational,” said Christian Smith, a professor of sociology at Notre Dame who studies the religious lives of teenagers. “It’s a distinct minority who thinks there’s something wrong with same-sex relationships, and that’s a big change from older generations.”

Eastside Catholic, faced with intense blowback and sustained publicity over the removal of Mr. Zmuda, has defended its decision but is clearly concerned about the impact on applicants and donors as some students, parents and alumni ask what the ouster means about the school they have chosen and cheered.

This month, in a step many in the school community have found confusing, administrators gave a short-term contract to a choreographer who, in a show of support for Mr. Zmuda, had announced on talk radio that she was engaged to her girlfriend.

“It’s great that they’re keeping me, but it’s a little confusing,” said the choreographer, Stephanie Merrow, 41, who taught the school’s students to dance in a 2012 production of “Footloose,” and is now doing the same for this year’s production of “Guys and Dolls.”

“I feel for them,” she said. “I think maybe a mistake was made, and now what do they do?”

The school’s president, Sister Mary E. Tracy, had also sent mixed signals. She initially suggested to Mr. Zmuda that he might be able to keep his job if he got divorced, and then oversaw his ouster. After weeks of protest, she asked Julia Burns, an 18-year-old senior, to share with the public this comment: “I look forward to the day when no individual loses their job because they are married to a person of the same sex.” Sister Mary did not respond to requests for an interview.

On Tuesday, when the board announced Sister Mary’s resignation, it called the step “a difficult, but necessary decision so that a new leader can be brought in to ensure the entire Eastside Catholic community is moving forward on a positive path.”

Mr. Zmuda had not been at the school long, but he was liked by students, especially on the swim team, which he coached. He married in July, seven months after same-sex marriage became legal in Washington State, and he was ousted in December, shortly after the school’s administration received a complaint from a teacher about his marital status.

As students began to hear about his dismissal, they sprang into action.

“I found out about it and just texted 15 or 16 people,” said Ian Edwards, 17, a senior. Word spread quickly, and students staged an impromptu sit-in, skipping classes and gathering in a commons to talk, and, in some cases, to cry. “We just shouldn’t allow this discrimination to happen.”

Over the next weeks, the students took to social media to rally support, gathering signatures on an online petition and communicating via Twitter and texts. They protested outside Sammamish City Hall, at a Seahawks game and outside the archdiocese of Seattle, where they were joined by Ed Murray, then the city’s mayor-elect, who is Catholic and gay. Also this month, many students wore orange — the more attention-getting of the school’s two colors — to class one day to express their concern; and on Jan. 31, the students are hoping that other Catholic schools across the nation will join them in a similar act.

Alumni and parents are organizing online as they seek to force change at the school.

“If I had read the school handbook and it said, ‘We will hire you, but if we find out you are gay and you are married, we will fire you,’ I would not have put my kids there,” said Florence Colburn, who has two children at the school.

And Corey Sinser, 26, said he was an enthusiastic alumnus (class of 2006), but that now, “I worry that this will have a negative effect on the type of students who want to come, or the type of teachers who want to work there.”

Some are hoping Mr. Zmuda will get his job back; others are seeking a change in the school’s employment practices.

Julia Troy, 17, a senior, said she believed that speaking up was an outcome itself.

“I have gay friends, and I care about them,” she said. “Even if all that happens is they know that I support them, that’s enough for me.”

A version of this article appears in print on January 23, 2014,

on page A1 of the New York edition with the headline:

Gay Marriages Confront Catholic School Rules.

    Gay Marriages Confront Catholic School Rules, NYT, 22.1.2014,
    http://www.nytimes.com/2014/01/23/us/
    gay-marriages-confront-catholic-school-rules.html

Back in the Pulpit After Losing His Church,

and Still Supporting Gay Marriage

JAN. 10, 2014
The New York Times

SOUTH ST. PAUL, Minn. — Three below zero on a Minnesota morning, and the Rev. Oliver White stomps the snow off his boots as he enters the stucco edifice of Clark Memorial United Church of Christ to lead worship. He peels off an overcoat to reveal the kente-cloth vestments his wife made for him, which match the kufi hat he wears.

On this Sunday midway between Christmas and New Year’s Day, he sees a congregation thinned by both vacation and weather. Perhaps 50 people fill the pews, yet in their modest number resides a startling range: a lesbian couple with their son; a 98-year-old man who still shovels his own sidewalk; the black and white relatives of a biracial baby about to be baptized.

“Good morning, and let’s have the church say, ‘Amen,’ “ Mr. White, 71, begins, standing in the aisle rather than at the pulpit. Hearing the desultory response, he chides: “That was only half the church. Again?” The voices now rise, and he adds his own emphatic “Amen!”

Such are the sights and sounds of redemption. In this unassuming sanctuary in a middle-class neighborhood, in this congregation stitched together from two struggling flocks, Mr. White is doing something that he had just about given up hope of ever doing again. He is pastoring.

A child of the black Baptist tradition, a minister for decades in several denominations, he had thrown his clerical life into disarray eight years earlier with a single act of principle. On July 4, 2005, he voted in favor of a resolution supporting same-sex marriage at the General Synod of the United Church of Christ.

A few weeks later, Mr. White was standing outside his church, Grace Community in St. Paul, changing the lettering in its outdoor sign. A couple of teenagers were walking nearby, and the pastor overheard them say, “Hey, that’s the gay preacher,” and describe his church with a coarser slur.

That much intolerance did not entirely surprise Mr. White. Though he was not homosexual, he knew that his stand in favor of same-sex marriage put him deeply at odds with the African-American church.

A national Gallup poll in 2005 found only 37 percent of all respondents supported gay marriage. In many, if not most, black Christian congregations, a peculiar sort of don’t-ask-don’t-tell duality prevailed. The presence of gay men and lesbians was tolerated, and, in the form of church musicians and gospel music stars, often depended upon. Still, homophobic denunciations of “sissies” and “punks” kept the closet door nailed shut.

Nothing, however, had prepared Mr. White to have his congregation plummet to 70 members from 320 within a month of his vote at the U.C.C. synod. With weekly donations similarly slashed, the church had to take out a loan with an 18 percent interest rate just to cover basic costs like utilities, and used all of its funds to pay the monthly interest. In the summer of 2012, Mr. White lost the building to foreclosure.

“I didn’t expect the full dynamics of what would happen,” recalled Frances Goodlow, 70, a retired surgical technician who was a member of Grace Community. “I knew there would be members of the congregation who would have a problem with what Reverend White did. I just didn’t realize we would lose most of our members, have to start over again. And to lose our church — that hit me.”

For Mr. White, 2012 contained a piercing paradox. His advocacy of marriage equality brought him national media attention; he was profiled on CNN and named a “Brave Thinker” by The Atlantic magazine. President Obama endorsed same-sex marriage. By outward appearances, time seemed to have caught up with Mr. White.

Yet he remained a preacher without a pulpit, doing guest sermons at this or that local church, trying to hold on to the remnant of Grace Community’s dwindling congregation. Entering his 70s, he was surviving as a schoolteacher and a part-time van driver. With marriage equality an especially volatile issue in Minnesota — a statewide measure essentially banning it was defeated in November 2012 — he received a steady stream of hate mail and threatening phone calls.

“Many times, I did ask, ‘Why me?’ “ Mr. White recalled. “I had nothing. No money. No congregation. Who am I? My colleagues are building new churches, have great choirs, get lots of amens. Wouldn’t I love to preach at a church like that? And the only thing that gave me comfort was to think, ‘If not me, then who?’ “

By the summer of 2013, hoping to end his ministerial homelessness, Mr. White called some nearby churches to see about renting space to hold Grace Community’s services. A black Baptist minister offered him free use, provided that Mr. White not speak about “those issues.” So he turned down the offer.

Finally, the round of cold calls brought Mr. White to Clark Memorial. A congregation that shared Mr. White’s support of gay marriage, Clark had in the past contributed money to help keep Grace Community afloat. By now, though, it was an aging, shrinking congregation of about 50 regular members, spending down its endowment on operating expenses. To cut costs, the congregation had gone from a full-time pastor to a part-timer.

The day Mr. White called, Clark Memorial’s receptionist said: “You don’t know how amazing this is. You need a building. And we need people and life.”

The Rev. Lisa Bodenheim, pastor of Clark Memorial, proposed that her church and Grace Community combine into one congregation, with she and Mr. White sharing pastoral duties. About 10 members of Grace Community, the truest believers from an initial 320, came along with Mr. White.

So it was that he led worship on that recent 3-below morning. He preached a sermon out of Genesis 1:27 about how all humans of any sexual orientation are formed in the divine image. He baptized the baby, who happened to be his granddaughter. He tried his best to introduce the congregation, most of its members white, to the black gospel standard “Let Jesus Lead You.”

When that didn’t work so well, Mr. White sat at the piano and launched into “This Little Light of Mine.” This was a spiritual that everyone in his beloved community, from the nonagenarian snow-shoveler to the lesbian parents, knew well enough to sing by heart.

A version of this article appears in print on January 11, 2014,

on page A17 of the New York edition with the headline:

Back in the Pulpit After Losing His Church,

and Still Supporting Gay Marriage.

    Back in the Pulpit After Losing His Church,
    and Still Supporting Gay Marriage, NYT, 10.1.2014,
    http://www.nytimes.com/2014/01/11/us/
    back-in-the-pulpit-after-losing-his-church-over-his-support-of-gay-marriage.html
 

U.S. to Recognize

1,300 Marriages Disputed by Utah

JAN. 10, 2014
The New York Times
By CHARLIE SAVAGE
and JACK HEALY

WASHINGTON — The Obama administration on Friday made the latest contribution to a fast-moving legal battle over same-sex marriage rights as the Justice Department said that the federal government would recognize as lawful the marriages of some 1,300 same-sex couples in Utah even though the state government is largely refusing to do so.

The announcement furthered President Obama’s self-described evolution on same-sex marriage rights. He was once a politician who said he was “not in favor of gay marriage” and repeatedly invoked the rights of states to decide how marriage should be defined.

More recently, he said “I think same-sex couples should be able to get married,” and now his administration appears to be edging closer to confronting a state government over its refusal to recognize such rights.

The statement also provided a new twist in a fight that has pitted notions of individual equality against the right of states to define marriage as a majority of their voters see fit. It added to legal confusion surrounding the status of couples who married in a brief window after a Federal District Court judge unexpectedly struck down Utah’s ban on same-sex marriages last month, before the Supreme Court stayed the ruling on Monday, effectively shutting down any further same-sex nuptials in the state for the duration of the litigation.

Attorney General Eric H. Holder Jr. says the United States will recognize same-sex marriages officiated in Utah, despite a decision by the state not to do so.

“I am confirming today that, for purposes of federal law, these marriages will be recognized as lawful and considered eligible for all relevant federal benefits on the same terms as other same-sex marriages,” said Attorney General Eric H. Holder Jr. in an unusual video announcement on the Justice Department website. “These families should not be asked to endure uncertainty regarding their status as the litigation unfolds.”

Same-sex couples in Utah had rushed to marry after Dec. 20, when Judge Robert J. Shelby of Federal District Court in Utah overturned the state’s voter-approved ban on marriage for gay couples. Utah unsuccessfully petitioned two lower courts to halt those weddings, then succeeded in persuading the United States Supreme Court to issue a stay while the state appeals.

On Wednesday, Gov. Gary R. Herbert announced that the ban, an amendment to the Utah Constitution, was back in legal force while the litigation continued, something that could take years. During that time, he said, the state would not recognize or confer new marital benefits to those same-sex couples who had married.

But with Friday’s announcement, same-sex couples in Utah who married will be able to file joint federal income tax returns and will be eligible for other spousal benefits, like health insurance for the families of federal employees and the ability to sponsor a noncitizen spouse for a family visa.

Mr. Herbert’s office issued a mild response, saying that the Justice Department’s decision “comes as no surprise” and that state agencies would treat such couples as married when they are administering federal, though not state, benefits. No examples were listed.

“Adherence to the rule of law, both federal and state as those laws govern respectively, is an unbending principle of this administration,” the statement said.

Some groups opposed to same-sex marriage denounced the Justice Department decision. Brian Brown, the president of the National Organization for Marriage, said in a statement that the move was “outrageous,” adding that “the Department of Justice under this administration signals that it simply has no regard for the Constitution and the rule of law.”

In Utah, gay couples and supporters of same-sex marriage cheered the federal government’s move. Many were disappointed and angered by the state’s decision not to recognize their new marriages, and have argued that, despite the continuing legal battle, their nuptials are just as valid as any other in Utah.

“It feels like a little victory after the last couple days with our governor,” said Austin Vance, who married his partner last month at the Salt Lake County clerk’s office, with hundreds of other gay couples. “It definitely raises spirits a little bit. It was disturbing that our governor would make those assertions that we wouldn’t be recognized.”

“We’re going to continue to file and act as if we’re married,” he added. “Some people have said that’s an act of civil disobedience. If it is, so be it.”

Mr. Holder did not detail the administration’s legal reasoning, although he invoked the “spirit” of a ruling in June by the Supreme Court that struck down a law banning federal recognition of same-sex marriages that states considered legal. That ruling ended what had been the federal practice of distinguishing between same-sex and opposite-sex married couples based on the federal Defense of Marriage Act.

The Obama administration decision has created a kind of mirror image to that situation: The federal government will treat two sets of Utah couples equally, while their state will treat them differently.

Michael C. Dorf, a Cornell University law professor, said it was unclear why the federal government’s view could trump Utah’s. “I’m extremely sympathetic to the pro-equality judgment underlying Holder’s statement, but I’m dubious about the legal authority in light of the apparently contrary decision by Utah,” Mr. Dorf said in an interview, although he listed several possible theories supporting the Justice Department’s action on his legal blog.

A Justice Department official said that earlier this week, Mr. Holder assigned Stuart F. Delery, the assistant attorney general for the Civil Division, to study the legal options. Mr. Delery concluded Friday morning that the federal government could recognize the interim marriages as valid for the time being, the official said.

The administration’s theory appears to be that even though Utah is not conferring any new benefits on same-sex couples who married, the state has not taken steps to indicate that it currently considers the marriages void, either. For example, Utah has said it will not try to invalidate new driver’s licenses that it already granted to gay or lesbian newlyweds who changed their last names, or spousal health benefits it already approved for same-sex spouses of state employees.

And on Thursday, Utah’s attorney general, Sean D. Reyes, told county clerks to complete the administrative task of mailing marriage certificates for same-sex couples “whose marriages were solemnized” during the interim period, even though the state “cannot currently legally recognize marriages other than those between a man and a woman.”

Mr. Reyes wrote that one purpose of following through on issuing the certificates is to allow such couples “to have proper documentation in states that recognize same-sex marriage,” suggesting that the state government believes that the certificates it issued to same-sex couples may be considered valid by other jurisdictions.

Still, Utah will not grant any new benefits for couples who had not yet applied for them. That decision is likely to be challenged in court by couples seeking to change their names, legally adopt their children, get spousal health coverage, or file a joint income-tax return with the state.

Jeffrey Gomez, for example, waited too long to change his name after marrying his partner last month.

“We missed that little window,” he said Friday. “Everything has been so sudden and so topsy-turvy.”

Charlie Savage reported from Washington,

and Jack Healy from Denver.

A version of this article appears in print on January 11, 2014,

on page A1 of the New York edition with the headline:

U.S. to Recognize 1,300 Marriages Disputed by Utah.

    U.S. to Recognize 1,300 Marriages Disputed by Utah, NYT, 11.1.2014,
    http://www.nytimes.com/2014/01/11/us/politics/same-sex-marriage-utah.html