October 14, 2008
Posted by Chris Anders, ACLU Legislative Counsel

While Gays and Lesbians Walk to the Altar, Both Parties Run Scared from Equality

Maybe it's time for the candidates for president and vice president to start treating voters like grown-ups on the marriage issue. Tens of thousands of American gay and lesbian couples now have their marriages legally recognized by the states of Connecticut, Massachusetts, California, and New York, and by countries as diverse as Canada and South Africa. The sky hasn't fallen, the sun still rises, and no one's opposite-sex marriage has been harmed. Instead, the only change is that thousands of same-sex couples and their children now have the basic security that marriage provides.

But the candidates for president and vice president still run scared on the issue. The Federal Marriage Amendment is dead, and its advocates are gone or headed out the door--Karl Rove is just a talking-head, Rick Santorum lost his seat, George Bush is hobbling towards the end of his term, and the House sponsor Marilyn Musgrave is trying desperately to not get booted out of Congress by the voters--but the candidates for the country's highest offices are literally cowed into incoherence on the issue.

In the vice presidential debate last Friday, Joe Biden--who was twice an important opponent of the discriminatory Federal Marriage Amendment in the Senate--even momentarily forgot that he was supposed to feign indignation at same-sex couples marrying. In a stirring defense of the Constitution and fairness, Biden declared, "We do support making sure that committed couples in a same-sex marriage are guaranteed the same constitutional benefits as it relates to their property rights, their rights of visitation, their rights to insurance, their rights of ownership as heterosexual couples do." That was exactly right, and exactly where more and more states--and a quickly growing number of Americans are.

But then Sarah Palin stated her "non-support for anything but a traditional definition of marriage," and it seemed to remind Biden that he was supposed to oppose marriage for same-sex couples. Biden jumped back into the debate to oppose "redefining from a civil side what constitutes marriage," but then groped for a reason why he opposes it. Ignoring both logic and common sense, he explained that he wants to leave the definition to "faiths and people who practice their faiths"--even though no state can ever tell any faith how to define a religiously-recognized marriage. His only explanation was nonsense.

Instead, all of the major party candidates hide behind varying concoctions of legal protections, "tolerance," "tradition," and equality. The rhetorical gymnastics of the candidates on the marriage issue should earn them all spots on the Chinese gymnastics team. Barack Obama opposed the Federal Marriage Amendment, opposes the California proposition that would take away the marriages of thousands of married couples and their children, and advocates for equal benefits and protections, but then opposes the very marriage rights that provide those protections. John McCain twice bucked his party and helped defeat the discriminatory Federal Marriage Amendment in the Senate, but then supports an Arizona referendum and a California proposition that would take away the marriage protections that he fought in the Senate to protect.

Palin may have the oddest mix of ideas of any of the four candidates. Shortly before she became governor, the Alaska Supreme Court decided a case that the ACLU brought on behalf of nine couples, and held that the state must extend benefits to the same-sex partners of Alaska state employees. Palin stated at the time that she disagreed with the court's decision - but followed the advice of Alaska's Attorney General to veto the legislation because it would have artificially extended the battle over implementing the court's decision on the state level. It was, almost quite literally, one of her first decisions upon taking office. However, she then supported an expensive and non-binding statewide referendum aimed at showing that the general population opposed the court decision. Just last week, she was at it again: in the space of less than two debate minutes, she opposed marriage for same-sex couples, seemed to oppose extending the Alaska policy to the rest of the nation, but then extolled "tolerance" and said no one in her government would "do anything to prohibit, say, visitations in a hospital or contracts being signed, negotiated between parties."

It's time for the double-talk on marriage to end, and for presidential and vice presidential candidates to act like grownups--and treat American voters like grownups. The only way to ensure that all American families get the same protections for their relationships and their children is to stop trying to take away the marriages of same-sex couples, and instead treat all families equally.

October 3, 2008
Posted by Deborah J. Vagins, ACLU Legislative Counsel

CBS's Katie Couric to Governor Sarah Palin: Where do you stand on the Ledbetter Fair Pay Act?

In a recent interview with Katie Couric, when asked: "Where do you stand on the Ledbetter Fair Pay Act," Alaska Governor Sarah Palin helped to spread misinformation about this bill. We would like to set the record straight about this very important legislation.

The Lilly Ledbetter Fair Pay Act of 2007 fixes a recent Supreme Court decision that weakened workplace protections against pay discrimination, which had been the law for decades in the majority of our federal circuit courts and before the EEOC in both Republican and Democratic administrations.

In 2007, in Ledbetter v. Goodyear, the Supreme Court sharply limited workers' opportunities to address wage discrimination. The court ruled that employees have 180 days after an employer's initial discriminatory pay decision to sue their companies - whether the employee knows about the discrimination or not. The Lilly Ledbetter Fair Pay Act would merely correct this incredibly unfair decision, by clarifying that such discrimination is not a one-time occurrence that starts and ends with a decision. Under this bill (and the law before the Court's decision), as long as an employer hands out a paycheck unfairly lessened by discrimination, an employee would have the ability to do something about it.

Governor Palin says she opposes discrimination against women, but also opposes the Ledbetter Fair Pay bill. But the inherent problem is that women can't be free from discrimination unless they have real remedies when they are unfairly paid. Obviously, an employee can't sue before she knows of the discrimination. But this Supreme Court decision puts employees in this bind. Even if an employee sues the day after she learns of the discrimination, it's too late if the employer's decision came 181 days before she learned of the illegal behavior. Why should companies unjustly profit from years and years of paying women less because the employer has been able to keep the discrimination secret for just a few months?

Governor Palin also indicated in the Couric interview, that the legislation would be a boon to trial lawyers. However, this new rule set out by the Supreme Court doesn't stop litigation - it may encourage it. Now employees will feel they have to file suits upon their first suspicion of discrimination or right after a pay decision, rather than wait for additional evidence, just to make sure they don't run out of time. This is a ridiculous and unnecessary outcome, especially when one considers the fact that this legislation is merely a return to a very noncontroversial rule that both employers and employees had come to rely on.

Finally, Governor Palin implies that under this legislation, employees could wait for years and years before suing. This makes no sense when one considers the reality of the workplace for most Americans. No reasonable employee would wait when every discriminatory paycheck amounts to lost wages and benefits. No reasonable employee would wait when waiting translates into less money for her family. Moreover, the legislation leaves unchanged the limitation that employees who win in court may only recover two years of back pay damages. For any time before that, the employee is out of luck.

We hope that whichever administration takes over in January, they will stand up for American workers and support this modest and common-sense bill.