Q & A with Kate Kendell, National Center for Lesbian Rights
For the first time in history, the United States Supreme Court will consider two cases addressing gay rights in one term. In the wake of New Mexico’s freedom to marry litigation, and on the dawn of these historic Supreme Court hearings, EQNM had the privilege of a brief Q&A session with Kate Kendell, Executive Director of National Center for Lesbian Rights (NCLR), to discuss the Supreme Court cases and their potential implications for New Mexico. Along with being a nationally recognized spokesperson for LGBT rights with an active voice in major media, including The New York Times, The Wall Street Journal, The Advocate, NPR, CNN, and many others, Kate has been a tireless partner and advocate for winning the freedom to marry in New Mexico, and NCLR is one of the primarily litigating organizations in New Mexico’s freedom to marry case – Griego v. Oliver.
EQNM: What are the two cases being considered by the U.S. Supreme Court?
KATE: Both of the cases currently before the U.S. Supreme Court are about whether the federal Equal Protection Clause allows state and federal governments to treat same-sex couples differently. The first case challenges California’s Proposition 8, which amended the California state constitution in order to eliminate the right to marry only for same-sex couples. The second case challenges Section 3 of the federal Defense of Marriage Act (DOMA), which denies all marriage-based federal rights, benefits, and protections to same-sex spouses, even if they are legally married under state law.
EQNM: What would a favorable or unfavorable ruling in the Prop 8 case mean for New Mexico?
KATE: A favorable ruling in the Prop 8 case would mean, at a minimum, that marriage would be legal again in California – a victory for the freedom to marry everywhere. Depending on what the Supreme Court says in its decision, a victory could also have a direct positive impact on the legal fight for equality in other states, or even immediately require all states to allow same-sex couples to marry. A loss in the Supreme Court would mean that we continue our fight at the state level, including the challenge we recently filed in state court in New Mexico. That case is brought only under the New Mexico Constitution, and the New Mexico courts remain free to decide that the state constitution requires granting same-sex couples the freedom to marry even if the U.S. Constitution does not.
EQNM: What would a favorable or unfavorable ruling in the DOMA case mean for New Mexico?
KATE: A favorable ruling in the DOMA case would mean that if we are successful in bringing the freedom to marry to New Mexico, same-sex couples married here (and everywhere in the country) would enjoy all of the federal rights and benefits granted to all other married couples. There would be no more discrimination against married same-sex couples for purposes of federal taxes, Social Security, and immigration. A loss would mean that same-sex married couples in all states will continue to be denied federal recognition, and we would continue to press Congress to repeal DOMA.
EQNM: What is the “standing” question and what does it mean?
KATE: “Standing” is a legal doctrine that says the courts will hear a case only if there is a real, live dispute between the parties. The standing question comes up here because both the U.S. Department of Justice and the Attorney General of California have determined that DOMA and Prop 8 are unconstitutional and have refused to defend the laws in court cases, although they continue to enforce them. If the Supreme Court decides that there is no standing, the appeals will be dismissed and the lower courts’ decisions in the two cases will stand. If that happens, the Supreme Court will not decide these cases at this time, and we will continue to fight for the freedom to marry in each state and for the repeal or overturning of DOMA just as we have been doing for years, and it probably won’t be long before these issues reach the U.S. Supreme Court again.
EQNM: What is your projection of the rulings?
KATE: Predictions are dangerous, but if the Supreme Court reaches the merits of the cases, we are optimistic that a majority will vote to overturn both Prop 8 and DOMA. DOMA is a mean-spirited law that serves only to harm same-sex couples and their children while helping no one. We feel confident the Supreme Court will agree that there is no legitimate reason to treat married same-sex couples differently than other couples when it comes to taxes, Social Security, and immigration. We also think the Court will agree with the lower courts that Prop 8 is a uniquely discriminatory law that literally carved out same-sex couples from the full protection of the California Constitution and told them that they alone were no longer entitled to equality before the law. No other state has ever attempted such a direct attack on same-sex couples and their children.
The National Center for Lesbian Rights is a national legal organization committed to advancing the civil and human rights of lesbian, gay, bisexual, and transgender people and their families through litigation, public policy advocacy, and public education.
