joining the union
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Joining the Union
October, 2013, Page 134
Portraits by Steve Craft
Kim Moody & Dana Johnson
Kim Moody is a fifth generation Arizona native, product of a pioneering Mormon family that rolled into Thatcher in covered wagons and ox carts forever ago. He’s lived in Downtown Phoenix since the 1960s, and specifically in the Garfield Historic District since 1971, when he founded Alwun House, one of the city’s oldest nonprofit arts foundations. Moody’s also served on the board of the Garfield Organization for years and produces its newsletters, petitions the city to do things like provide more trees along the streets, and recruits volunteers to help plant them.
He does all this and more with his partner, Dana Johnson. They have been together more than 30 years. Like many same-sex couples, they paid attorneys princely sums for a stack of estate papers that give them certain securities. “To say [prohibiting same-sex marriage is] is not discriminatory – heterosexual couples would be considered common-law by now. A long time ago. And they become entitled with all those rights,” Johnson says. “We don’t have rights of visitation at the hospitals unless the hospital grants us.”
Moody and Johnson are not legally married anywhere. They want to wait until it’s legal in Arizona. When that day comes, they’ll have a custom ceremony at Alwun House. And they both believe that day is closer than it’s ever been. “I think we’re now at the point where it’s time that we just stand up and say, ‘I am no different than I was yesterday, or when I was born,’” Moody says. “I am who I am. And I know that you appreciate my work down here and that you have seen my good works, and ‘By your works shall ye be known.’”
Advocates for marriage equality across Arizona exercise cautious optimism in the wake of pivotal Supreme Court decisions.
Silvana Salcido Esparza and Jo Novelli-Blasko sit at the dining room table in their Phoenix home on a hot August afternoon, carefully unfolding their marriage certificate and laying it on the table. It’s an official document from the State of New York, and instead of the usual “groom” field on one half of the document and “bride” on the other, it reads “bride/groom/spouse” on each side. A few feet away in the living room, a teenager Esparza introduces as her son Alex plays video games. The couple gazes down at their certificate of marriage, glowing and gripping each other’s hands while talking about their ceremony at Niagara Falls this past April. “[That day] was pure delight. We started off at the wrong gift shop and by the end of the day, we were dancing in goose poop!” Novelli-Blasko recalls. “We enjoyed the good humor of friends, the unique pleasure of being formally witnessed in our commitment to each other, and the adventure of eloping to a place that is almost as exciting as our relationship.”
But it’s a bittersweet celebration for the two women. Their marriage, while legally recognized in New York, is not legal in their home state of Arizona. Like all gay couples who legally married in one of the 13 states that allow gay marriage but reside full-time in a place where it’s prohibited, they have many unanswered questions. In June, the United States Supreme Court delivered a victory to marriage equality advocates by striking down a provision of the Defense of Marriage Act (DOMA) that denied federal benefits to legally married same-sex couples. However, the ruling also incited a flurry of legislative riddles, many of which remain unanswered in the legal ether and will likely be resolved over time on a state-by-state basis.
Despite having a same-sex marriage ban on state law books since 1996 and a constitutional definition of marriage as between one man and one woman, Arizona was quickly pegged a gay marriage “battleground state” by media in the wake of the Supreme Court ruling. Several factors indicate a shift toward marriage equality here – a large number of openly gay or bisexual politicians and supportive colleagues, promising polls among voters, recognition of civil unions in Bisbee and Tucson, and a ballot initiative to try and redefine marriage in the state constitution as “between two persons.” But the opposing side appears battle-ready, too, armed with a state history of voter-approved laws prohibiting gay marriage, an outspoken and highly traditional Roman Catholic clergy, a longstanding majority of conservatives in office, and the home base presence of national powerhouse political advocacy and legislation organizations whose mission is to promote “traditional family values” and “religious freedoms.”
Still, there’s a vast gay, lesbian, bisexual and transgender (LGBT) community in Arizona, and many prominent gay couples who’d like to upend current marriage laws. Some local LGBT couples have been together for many years and have impacted Phoenix in myriad ways, from expanding our culinary cachet and diversifying the political landscape, to running neighborhood improvement projects and fundraising for charities. Similarly, their inability to legally marry affects them in myriad ways, from paying higher taxes to not having guaranteed hospitalization visitation rights if their partner falls ill. “I don’t get a discount on my tax dollars,” Esparza says. “They don’t say, ‘You don’t get the right to get married, so we’re just going to go ahead and discount the tax dollars that you pay, because you don’t get full rights.’ If I pay full dollar, I want full rights.”
The Defense of Marriage Act was a federal measure signed by President Bill Clinton and enacted in 1996. DOMA defined marriage as a union between one man and one woman for the purposes of federal recognition and benefits, thus denying same-sex couples more than 1,100 federal benefits, including family medical leave rights, tax breaks, spousal immigration sponsorship rights, and Social Security survivor benefits. At the time DOMA was enacted, a Gallup poll showed 68 percent of Americans opposed recognizing same-sex marriages, and not a single state had legalized gay marriage.
Jo Novelli-Blasko & Silvana Salcido Esparza
Two-time James Beard Award nominee Silvana Salcido Esparza serves a menu of mod-Mex dishes and a laundry list of custom margaritas out of two Barrio Cafe (est. 2002) locations, in Central Phoenix and at Phoenix Sky Harbor Airport. She opened Barrio Queen in Old Town Scottsdale in 2012; that year, Esquire magazine deemed it one of America’s 20 Best New Restaurants. Senator John McCain is a frequent visitor to her eateries – as in, five times in two weeks. She’s also involved in local arts and education. “I’m a very active member of this community. On any given moment on a Saturday night, there’s three restaurants that are packed – packed – that’s generating revenue and tax dollars. It’s employment. The list goes on and on,” Esparza says. “Yet I don’t have the right [to get married] like everybody else.”
Esparza and her New York-wedded wife, Jo Novelli-Blasko, were introduced in January 2010. When Esparza fell ill last year, Novelli-Blasko left her job teaching women's studies and art history at ASU to take care of her. “We didn’t know what was wrong with me," Esparza says. "Fortunately, it’s not anything terminal, but for a minute, we didn’t [know]. And she quit her job and took care of me. And you know what? That’s it. That’s the kind of stuff that is made with love.” Unfortunately, creating the legal framework of a partnership has been difficult. “I had to rush and try to get a living will, and that’s still not done, because a living will is not easy," Esparza continues. "I own businesses. That’s complicated. So let’s say I did have something terminal and it went south like that, because it happens. Jo would have been sitting there, after quitting her job at ASU, holding the bag with nothing to support her. And the thought of that drives me crazy, because I like to take care of [my family].”
Public opinion and state laws saw a major shift in the years following the passage of DOMA. Members of the local LGBT community attribute the sea change to multiple factors, but mostly to more people “coming out” as gay and lesbian, from sport and pop culture icons like NBA player Jason Collins and Ellen Degeneres to family members of prominent politicians, like former Vice President Dick Cheney’s daughter and Ohio Senator Rob Portman’s son. When the Supreme Court was hearing arguments over DOMA this past spring, 11 states plus Washington, D.C. had legalized same-sex marriage, and a Gallup poll in July found 54 percent of Americans were in favor of it. In the months following the Supreme Court decision, two more states legalized same-sex marriage, bringing the total to 13 states plus D.C. Worldwide support for same-sex marriages has also increased, with 17 total countries legalizing it.
The case that brought DOMA before the Supreme Court was the grievance of New York resident Edie Windsor, who had legally married Thea Spyer, her partner of 40 years, in Toronto in 2007. When Spyer died in 2009, Windsor inherited her estate and sought federal estate tax exemption for surviving spouses. The Internal Revenue Service denied Windsor’s claim on the basis of her same-sex marriage, forcing her to pay $363,054 in estate taxes that she would not have had to pay had either she or her spouse been a man, thus fitting the federal definition of legal marriage at the time.
The Supreme Court’s decision that the portion of DOMA defining marriage between one man and one woman was unconstitutional and “a deprivation of the liberty of the person protected by the Fifth Amendment” meant the IRS must refund Edie Windsor’s big estate tax, but more importantly, it provided federal benefits to legally married same-sex couples and set a precedent, the effects of which are still rippling down. The big question is how the DOMA decision affects gay couples who legally married in one state (like New York or California) but reside in a state that doesn’t recognize same-sex marriages (like Arizona). Though SCOTUS stipulated the ruling only applied to states where gay marriage is legal, the implicit empowerment of same-sex rights nationwide was clear. As Justice Antonin Scalia, who dissented on the court’s DOMA decision, pointed out, “By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.”
Predictably, there have been numerous challenges and changes to marriage laws on state and local levels in the wake of the court’s ruling. It’s been a piece-by-piece puzzle of progress. “We tend to move forward in waves or stages... with a group of successes that then make possible the next group of successes. It doesn’t happen all at once,” says Jennifer Pizer, Law and Policy Project Director for Lambda Legal, a national legal organization dedicated to pursuing full civil rights for the LGBT community. “People in every state have a role to play in expanding education and showing who’s affected by this discrimination, and for all of us to be called on each other to shift the social conditions and change state law in a range of ways.”
Tom Simplot & Scot Wade
Not all gay people want to get married. Some just want to have the choice. Phoenix City Councilman Tom Simplot is one of those people. “For me, it’s simply a matter of equal rights. If I choose to marry or choose not to marry is up to me. And it should be up to me,” says Simplot, who has served on the city council representing District 4 for ten years. “It shouldn’t be up to a minority of our nation’s voters to impose their moral beliefs onto my legal rights.”
Simplot, the first openly gay Phoenix city council member, has never been married. He’s been with his boyfriend, Scot, for about two and a half years. “We have separate homes, but we bought a cabin together, so we have a place to kind of nest,” Simplot says. “We realized the cute little house with the picket fence doesn’t have to be the only dream scene when it comes to commitment.”
During his decade in city council, Simplot organized a popular community movie night series at Steele Indian School Park, co-chaired an HIV/AIDS awareness campaign with former Arizona governor Rose Mofford, and launched a Phoenix Pension Reform Task Force. He also runs the Arizona Multi-Housing Association. He decided not to seek re-election to city council after his term ends in January 2014; he’s got his eye on a different office. “If there’s an opportunity – and I hope there is – I hope to be able to say I’m the first openly gay mayor of Phoenix,” Simplot says. “You never know in politics.”
This past August in Ohio, where domestic partnership registries are offered in nine cities, two men who had been legally married in Maryland sued the state. One of the men, John Arthur, is dying of Lou Gehrig’s disease, and wanted his husband, James Obergefell, to be his legally surviving spouse in Ohio. Federal judge Timothy Black ruled Ohio’s “scheme has unjustifiably created two tiers of couples” and was likely unconstitutional; the couple will be considered “married” in Ohio for purposes of family plot burial rights and estate matters. In Michigan, a lesbian couple with adopted children is suing the state – which, like Arizona, has a voter-approved same-sex marriage ban – claiming the state’s marriage and adoption laws discriminate against their children (under state law, the women, who have individually adopted children, cannot adopt each other’s kids). The state sought to have that case dismissed, but a federal judge declined the motion, suggested the case be expanded to include Michigan’s marriage amendment, and set a trial date for early October. As of early September, more than a dozen other challenges to same-sex marriage laws are pending, including a lawsuit brought by the American Civil Liberties Union challenging Pennsylvania’s same-sex marriage ban. In July, Pennsylvania Attorney General Kathleen Kane held a press conference announcing her refusal to fight the lawsuit, saying, “I cannot ethically defend Pennsylvania’s version of DOMA.”
The history of gay-marriage-related litigation and legislation in Arizona has been limited but meaningful, and has generally favored forces opposed to gay marriage.
The U.S. Supreme Court declined this past June to hear arguments in an LGBT-related Arizona case, Diaz vs. Brewer, wherein same-sex partners of state employees challenged Governor Brewer’s 2009 law prohibiting health care coverage for domestic partners of state employees, which overturned Governor Janet Napolitano’s 2008 order granting that group coverage. The Republican-majority legislature argued in support of Brewer’s law, saying it was a cost-saving measure. U.S. District Judge John W. Sedwick issued a preliminary injunction blocking the law in 2010, after plaintiffs presented a study showing that denying same-sex partners benefits had minimal impact on the state’s budget. Supporters of Brewer’s law appealed the case, but a three-judge panel on the Ninth Circuit Court of Appeals agreed with Sedwick’s ruling, effectively reinstituting domestic partner benefits for state employees.
Arizona's gay marriage advocates are selective about how and when they bring a case to court – after all, an unfavorable ruling could set their cause back a decade or more. This is what happened in 2004, when Phoenix couple Don Standhardt and Tod Keltner challenged the state’s 1996 gay marriage ban after being denied a marriage license in Maricopa County. The couple’s appeal argued the ban discriminated against gay couples and their children. Discouragingly for marriage equality proponents, the State Supreme Court turned away the couple’s appeal after an appeals court ruled there was no constitutional right to same-sex marriage, and that the state had a basis for prohibiting such marriage based on procreation goals.
Currently, there are no gay-marriage-related lawsuits in Arizona courts. And as we'll see, there's a good reason for that.
Back at her Phoenix home, Silvana Salcido Esparza raises her hand about a foot from the surface of her dining room table to illustrate the size of the stack of legal papers she will have to sign in Arizona to grant her wife a fraction of the marital rights she’d have if they lived in New York. “I’m not recognized here for my state taxes, but if I was living in New York, would the federal government recognize my marriage? So therefore, they should recognize my marriage here,” Esparza says. “So should I be filing as married? That’s a question. Now I have to pay legal council to go find out, whereas if this was legalized, I wouldn’t have to do that, would I? I would just know.”
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