June 15, 2012
AIDS United Policy Update: The US Court of Appeals for the First Circuit's ruling has been argued as the biggest decision regarding the DOMA issue thus far. Why has the US court system taken this long (approximately 16 years) to make such a tremendous ruling on the DOMA issue?
Lee Swislow: Until same sex couples could legally marry, there was no one with standing to challenge DOMA. Couples were first able to marry in Massachusetts on May 17, 2004. Shortly thereafter, GLAD began hearing from couples who were harmed by the denial of federal benefits and started collecting those stories of harm. GLAD spent several years researching legal issues related to particular federal programs as well as the best strategy for mounting a constitutional challenge to a federal law. We also talked with over 1000 individuals and couples to identify a group of people with compelling stories of harm who were willing to be plaintiffs in a lawsuit certain to last several years. We filed suit in federal district court in May, 2009 and received a decision in July, 2010. The Justice Department's decision not to defend DOMA, made in January, 2011, delayed the process of arguing in front of the Court of Appeals, thus lengthening the time between the District Court decision and the decision by the Court of Appeals.
AUPU: What impact would the First Circuit Court of Appeals' ruling on DOMA have on the HIV/AIDS epidemic? What impact would GLAD's marriage equality victory in the DOMA case have on GLAD's other legal works, especially regarding legal protections for people living with HIV/AIDS?
LS: Most concretely, there are certainly people living with HIV/AIDS who are in a legal marriage with someone of the same sex who will now be eligible for all federal benefits. This could be particularly important in areas such as health insurance, family medical leave protections and immigration. More broadly, a victory at the Supreme Court that affirms that the Constitutional guarantee of equal protection under law applies to the gay community further establishes a powerful precedent that can be used in other legal issues affecting our community.
AUPU: The First Circuit Court of Appeals' ruling cannot be enforced until the Supreme Court decides the case. What are GLAD's desired and projected outcomes of the Supreme Court case on DOMA? What impact would the Supreme Court decision have on the future direction of same-sex marriage equality as well as GLAD initiatives, particularly regarding HIV/AIDS-related ones?
LS: Not surprisingly, our desired objective at the Supreme Court is an affirmation of the opinion at the First Circuit Court of Appeals and a ruling that DOMA is unconstitutional. One can never be sure what will happen in any court. However, we have always believed we have a very strong legal case and we are looking forward to making the argument at the Supreme Court. If DOMA is declared unconstitutional, we believe that would be a powerful incentive to move more people to support for marriage equality. The importance of the protections afforded by federal programs such as social security, health insurance coverage and pension issues, to name but a few, is so clearly understood by so many. I think most Americans would not want to deny those benefits to married same-sex couples. GLAD will be looking to use the momentum gained by a favorable Supreme Court ruling to try to accelerate progress in all of the other areas in which we work, including issues affecting people with HIV/AIDS.
AUPU: To what extent has President Obama's public comment in support of same-sex marriage impacted the First Circuit Court of Appeals' ruling? President Obama has made HIV/AIDS a national priority by releasing the National HIV/AIDS Strategy in 2010. How has this impacted GLAD's legal work in HIV?
LS: His statement probably has had more impact on the public than on the courts. Certainly the LGBT community was energized by his statement and, I believe, his endorsement--and the journey he followed to get to a place of support--has allowed other conflicted Americans to re-look at their feelings about marriage equality. Having the support and leadership of the administration on a variety of issues, including marriage and HIV/AIDS, but also including issues affecting the transgender community as well as issues of bullying and harassment, has created opportunities to make significant progress on policy issues without the need for litigation.
AUPU: Is there anything else GLAD would like to comment on?
LS: Most of the core legal principles of equal treatment of people with HIV/AIDS have already been established. Indeed, GLAD went to the Supreme Court in 1998 in our case that established that the Americans with Disabilities Act applied to people with HIV. Much of the legal work we do now is intervening in egregious cases of discrimination or privacy issues. However, there is still much to do on the policy side, both federally and locally. It is critical that the LGBT community not forget that HIV/AIDS remains a major issue for our community. With so many new cases occurring among gay men, we still have much work to do. It is also critical that the HIV/AIDS community continues to reach out to and work with the LGBT community and organizations. It is only by coming together for joint advocacy, programming and coordination that we will be able to defeat this epidemic.