Breaking the Marble Ceiling

Below the Belt: A Biweekly Column by NOW President Kim Gandy

October 25, 2006

Prologue: I can't keep good news to myself. As the NOW staff was readying this News and Action Summary for publication this afternoon, we received word of the New Jersey Supreme Court decision holding that "denying committed same-sex couples the financial and social benefits and privileges given to their married heterosexual counterparts bears no substantial relationship to a legitimate governmental purpose" and violates the New Jersey constitution. Check our website later today for analysis and comment. Hurray!

Midterm elections are less than two weeks away, and on Tuesday, November 7, there will be an opportunity to elect dozens of new members of Congress who support women's rights and want to change the policies that have caused so much suffering. Whatever you do, take time to vote—and vote early if your state permits it, so that you can spend election day volunteering for a candidate of your choice.

And change is desperately needed, as our rights are being eroded bit by bit. As is so often the case, everything seems to be about sex, what with today's single-sex schools regulations from the Department of Education; the impending Supreme Court arguments on the first nationwide abortion procedures ban, conveniently being heard the day AFTER the elections to prevent the Roe challenge from interfering with the election of anti-abortion candidates; and Ohio court decisions denying domestic violence protection to living-together couples (wait 'til you hear why).

Speaking of Roe, I can't resist commenting on the U.S. Senate race in my new home state of Maryland, where Republican Lt. Governor Michael Steele has amazed voters by declaring that his opinion on Roe v. Wade was irrelevant. According to The Baltimore Sun, when asked whether he thought the decision should be overturned Steele replied: "What's that got to do with anything? I'm a Senate candidate. My opinion on that is moot." Could it get worse? Steele also deflected a question with, "It's in the Supreme Court. What piece of legislation in the Senate is dealing with abortion?" Um, dozens of them every year? Who knows whether Steele will manage to deceive some voters with the dodge, but it's a change to see a Republican candidate trying to avoid publicly opposing Roe, even in a fairly liberal state.

Man of Steele? Maybe any publicity is good publicity, but it's hard to imagine that women voters were reassured by the endorsement from Steele's former brother-in-law, Mike Tyson, who wore a Steele for Senate T-shirt in the boxing ring. Yep, that was when Tyson announced that for upcoming tour he wants to fight a woman. Hasn't he already done that? Oh, right, now he wants to get paid for it.

Today the Department of Education is releasing new regulations for the enforcement (ahem) of Title IX, the law establishing the right of girls and women to an equal education in all programs receiving federal funding—including public schools. You won't be surprised that the new regs weaken Title IX (again), and specifically allow single-sex public schools and classrooms at the elementary and secondary school level without any showing that the separation is needed for remediation or privacy concerns. And more significantly, the decision is based on assumptions that are not based on actual evidence that girls (or boys) learn better in a single-sex environment. In fact, studies suggest that boys educated in single-sex environments are more likely to harbor sex stereotypes and have feelings of superiority over girls.

"We conclude that in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal." That was the U.S. Supreme Court in Brown v. Board of Education. It's still true.

But today's Supreme Court is a far cry from the Warren Court that issued the Brown decision, and in fact is poised to significantly roll back the protections of Roe in two parallel cases set for oral argument the day after the elections. The looming question is whether the Court will uphold its own recent precedent (Stenberg v. Carhart, 2000) which reaffirmed Roe's emphasis on women's health by overturning a Nebraska law and holding that an abortion procedure necessary to protect the woman's health cannot be banned.

That didn't deter the U.S. Congress, which promptly passed the same law on the federal level, and it's now back in the Supreme Court. Now the law is the same, but the Court is different. The 2000 decision was a 5-4 vote, with Sandra Day O'Connor in the majority. Now that she has been replaced by Sam Alito, who holds a very different view on abortion, the majority opinion has flipped the other way. In a straight vote by the sitting justices, the ban would be upheld 5-4, women's health be damned. But the question some are posing is whether the justices will think it unseemly to so quickly start overturning their own recent precedents. I think the real question is whether they will decide that it is impolitic to cause their Republican benefactors injury before the 2008 elections, restrain their glee, and refrain from mass rollbacks in our rights until after the next presidential election. It's anyone's guess.

But you don't have to guess about the intention of those backing the various anti-marriage referenda that will be on state ballots in November. They not only want to prevent same-sex marriage, they also want to stop domestic partner benefits and more. And the anti-marriage flacks in Virginia apparently believe their target voters' reading attention span is limited to one sentence.

Perhaps they hope that some Virginians will glance at their ballots just long enough to read the first phrase "That only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions," and then cheerily check the "Yes" box before moving on to the first sentence of the next question.

But the proposed constitutional amendment goes on to say: "This Commonwealth...shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth...create or recognize another union...to which is assigned the rights, benefits, obligations, qualities, or effects of marriage."

Never mind those last few sentences that would wrest from Virginia businesses the right to extend domestic partner benefits to unmarried employees in committed relationships. Never mind those last few sentences that could deny unmarried survivors of partner violence crucial protections like a seventy-two hour restraining order, child custody, and the right to stay in one's residence after the attack (as opposed to being kicked out after being beaten up because only the batterer's name is on the lease). Never mind keeping people safe, for heaven's sake, we've got an institution to protect—marriage, that is.

Don't think it's just Virginia conservatives who want to "protect" marriage at the expense of unmarried people's rights. Similar measures are on the ballot in seven other states. Will they succeed? It could depend on you. But let us have faith (and pick up phones and write emails so) that voters will recognize the real impact of these ballot measures on the unmarried people in their states.

To see the impact of these measures at work, we need only look to Ohio where voters, having passed an amendment (the text of which is almost identical to Virginia's) in 2004, are now suffering the consequences—courts across the state have made a mess of contradictory rulings concerning the same-sex marriage ban's effect on domestic violence survivors. Can you imagine going to court to get an order of protection after being battered, but being told instead that the court needs to first figure out if you have a right to one?

It's taken two years for the issue to reach the Ohio Supreme Court, which will examine on December 12 whether all unmarried couples are barred access to domestic violence protections due to Ohio's Defense of Marriage Amendment. That's what some lower courts have said—and their reading of the ban isn't entirely askew. By the way, in 2004, 15% of the 86,790 reported incidents of domestic violence involved live-in partners, and about 12% involved unmarried couples with children not sharing a domicile. That's over 20,000 calls in one year that involved an unmarried person who may have needed legal protections in order to escape a violent partner.

Of course, endangering unmarried survivors of partner violence may not have been what the writers of these ballot questions had in mind, but it was an incidental effect that they deemed, well, incidental—a tolerable side effect of "defending marriage" (read: luring homophobic voters to the polls).

Of course, so-called "defense of marriage" amendments are not the only measures on the ballots this year—there's a referendum on affirmative action in Michigan, "Taxpayers' Bill of Rights" in several states, the abortion ban in South Dakota, and more. These ballot measures are likely to bring right-wingers to the polls; that may be one reason Karl Rove is so optimistic that Republicans won't lose control of either the House or the Senate. But we're optimistic, too—optimistic because feminist candidates are running strong campaigns in many districts, some of them newly competitive, and because we have measures on the November ballot as well, including a raft of minimum wage increases, that will bring out progressive voters.

The very real possibility of breaking the "marble ceiling" by making Nancy Pelosi the first woman Speaker of the House makes me smile.

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