TIME Health Care

Battle Over Paid Surrogacy Opens New Front

174588557
Getty Images

The bill is personal for this New York senator

In many states, hiring a woman to carry and give birth to a child for you is illegal. But democratic New York Senator Brad Hoylman is fighting to change that in his home state. On Wednesday, he and the New York State assembly re-filed a bill called the Child-Parent Security Act to legalize compensated surrogacy in New York, and provide protections that ensure surrogates are entering into legal agreements and there’s no question that the intended parents of the child have full rights.

For him, the issue is personal and political.

New York forbids compensated surrogacy and is the only state where criminal penalties can be imposed on people who enter into a paid surrogacy agreement. That means that couples who want to use a surrogate to have a child that they’re genetically related must travel to a state where the practice is legal in order to do so.

That’s what Hoylman and his husband David Sigal did. Their daughter Silvia, now 4, was born via a surrogate in California, where compensated surrogacy is legal and parental rights are established prior to the birth of the child. “It added a lot of time and expense and uncertainty to having a child as a gay couple,” says Hoylman. “California has codified legal protections for surrogate families, and I would like to see that replicated in New York.”

Twenty-two states allow the practice and four states—New York, Michigan, Nebraska, New Jersey—as well as Washington, D.C., forbid it . The remaining states don’t have any rulings on the matter, meaning it’s technically not illegal but there are no laws to protect people should something go wrong, such as legal arguments over who has parental rights.

“I’ve had reports of surrogate children being born in New York illegally,” says Hoylman. “It’s a bit of a wild west scenario.”

Paid surrogacy, whether in one’s home state or elsewhere, is still costly. Basic fees for a surrogate mother can range from $32,000 to $40,000, with medical bills, legal fees, finding an egg donor and paying for insurance on top of it. For couples who travel out of state for a legal arrangement, there’s the added cost of travel throughout the pregnancy. All told, out-of-state surrogacy arrangements can cost around $100,000 on average.

One of the reasons many states are still wary of paid surrogacy is because of a 1988 ruling in New Jersey over “Baby M.” In a traditional surrogacy scenario, a woman named Mary Beth Whitehead agreed to be the paid surrogate for William and Elizabeth Stern, whom she found in a newspaper advertisement. But after giving birth, Whitehead changed her mind and tried to take the child back. Ultimately, the court gave custody to the Sterns, but Whitehead was given legal visitation rights. After that, paid surrogacy was outlawed in New Jersey, and others followed suit.

But thanks to in vitro fertilization, surrogacy today looks very different than it did a decade ago. Experts now recommend gestational surrogacy, where a surrogate fetus is implanted with an embryo made from donor sperm and egg—as opposed to tradition surrogacy, where the surrogate is inseminated with sperm. In the latter case, the carrier is genetically related to the child. Hoylman’s bill does not endorse that form.

Hoylman’s bill establishes the concept of “intended parentage” so that regardless of how a child was conceived, intended parents get rights. For example, in many cases, if a lesbian couple has a child via a sperm donor, the non-biological mother must adopt the child, something Hoylman says women find “embarrassing.”

For now, Hoylman says he has to prove that compensated surrogacy can work in New York.

“I was in the delivery room with my daughter and not everyone has that vantage point,” says Hoylman. “I am mindful that this is a longer term project.”

TIME LGBT

Saks Backtracks in Transgender Discrimination Case

2014 Holiday Shopping Windows - Chicago, Illinois
Chris McKay—Getty Images

The company will no longer argue that transgender people lack legal protections

Luxury retailer Saks & Co. has dropped a controversial legal argument they put forward in December: that there’s no federal law prohibiting the company from discriminating against someone for being transgender.

Leyth Jamal, a former employee who identifies as a transgender woman, is suing Saks for discrimination in Texas. She alleges that she was mistreated by the company and ultimately fired because she is transgender. In response, Saks claimed that Title VII, the portion of the Civil Rights Act that prohibits discrimination based on sex, doesn’t cover transgender people.

On Jan. 26, after public criticism and a legal rebuke from the Department of Justice, Saks withdrew the motion. The change was first reported by Buzzfeed. Saks will continue to contest Jamal’s suit, but will now focus on the merits of her specific claims.

MORE Does Saks Have the Right to Fire a Transgender Employee?

Saks’ original position was contrary to recent federal court rulings and the views of the Equal Employment Opportunity Commission and the Department of Justice. In December 2014, Attorney General Eric Holder announced that all lawyers in the department would be taking the position that transgender discrimination is covered as a form of sex discrimination under Title VII.

In the Justice Department’s motion, officials assert a “strong interest” in the outcome of the case. And their response to Saks’ initial argument is summed up concisely: “Not so.”

TIME LGBT

Why It’s a Big Deal That Obama Said ‘Transgender’

It's all about legitimacy

Every word in every State of the Union speech is vetted. And President Barack Obama’s decision to say a certain word among the 6,718 he uttered on Tuesday is reverberating through the LGBT community. That’s because Obama just became the first President to say the word transgender during such a high-profile occasion. And most advocates for lesbian, gay, bisexual and transgender rights are thrilled.

“The President’s acknowledgment helps shatter the cloak of invisibility that has plagued trans people and forced many to suffer in silence,” author and MSNBC host Janet Mock tells TIME. “By speaking our community’s name, the President pushes us all to recognize the existence and validity of trans people as Americans worthy of protection and our nation’s resources.”

“As a transgender man and an advocate for transgender people, it was thrilling to hear, for the first time in our nation’s history, the President of the United States acknowledge transgender people as an integral and valued part of our national community,” says Shannon Minter, legal director for the National Center for Lesbian Rights.

MORE One State of the Union, Two Barack Obamas

The issues of validity and legitimacy are huge ones for transgender people. Decades ago, doctors didn’t think their feelings about their gender identity were legitimate—that they were inclinations requiring correction. Today, the medical community has evolved, but many people still mistakenly assume transgender people are only really transgender if their bodies look a certain way.

Actress Laverne Cox talked about this issue during an interview with TIME for our cover story on trans issues: “We have to listen to people about who they are and not assume that there’s something wrong with trans people. Because we know who we are. And I think the biggest thing is folks want to believe that there’s something, that genitals and biology are destiny. … When you think about it, it’s kind of ridiculous. People need to be willing to let go of what they think they know about what it means to be a man and what it means to be a woman.”

MORE Barack Obama is ready to fight

Elizabeth Reis, a professor of women’s and gender studies at the University of Oregon, says that for decades transgender people have had to deal with the perception that they’re deceiving people. “The people who say that they’re trans have always been undermined and thought of as not telling the truth, being intentionally deceitful of others,” she says. She calls it “the authenticity issue that trans people face, not being believed for who they say they are.”

To get medical treatment or to play on sports teams or to change the gender on their driver’s licenses, transgender people have long had to provide documents and testimony that they are who they say they are. In the past, they sometimes had to prove they intended to have or had undergone surgery. And today, there are people who don’t understand what it means to be transgender or don’t “believe in being transgender,” as the sibling of a transgender boy told TIME in 2014. Constantly proving one’s status is not something that many Americans are forced to do on a daily basis. To have Obama offer up recognition using the word that the community itself uses—rather than circling the issue with a some vague phrase like “regardless of how someone identifies”—is him implying that he does believe and doesn’t need any more proof.

Here is the full context of Obama’s comment:

As Americans, we respect human dignity, even when we’re threatened, which is why I’ve prohibited torture, and worked to make sure our use of new technology like drones is properly constrained. It’s why we speak out against the deplorable anti-Semitism that has resurfaced in certain parts of the world. It’s why we continue to reject offensive stereotypes of Muslims — the vast majority of whom share our commitment to peace. That’s why we defend free speech, and advocate for political prisoners, and condemn the persecution of women, or religious minorities, or people who are lesbian, gay, bisexual, or transgender. We do these things not only because they’re right, but because they make us safer.

The Transgender Law Center, the largest legal advocacy organization entirely dedicated to transgender issues, lauded his comment. “President Obama’s public recognition of transgender people in his State of the Union address was historic,” executive director Masen Davis said in a statement. “While it seems like a simple thing—saying the word ‘transgender’ in a speech—President Obama’s statement represents significant progress for transgender people and the movement towards equality for all.”

Davis spoke to TIME last year about his own experience coming out as a transgender man and how much times have changed since the ’90s. “When I first came out as transgender, we all just assumed that if you were transgender, you were going to lose your family, you were going to lose your friends, you were going to lose your job. You needed to be prepared to lose everything,” he said. “We’ve come so far, that it’s become easier for transgender people in certain areas of the country to be out and for them to feel like they can come out at work and they’re not going to lose their jobs. They can come out to their family and they might not be thrown out. That they can come out at school and still be treated well.”

Still, as Davis says, transgender people are still disadvantaged as a demographic. They are more likely to experience harassment because of their gender status, to lose their jobs and live in poverty. More than 40% of transgender people, according to one report, have attempted suicide. Leelah Alcorn is a recent, tragic example of how hard it is to be a young transgender person in America.

That’s why even on this historic occasion, some transgender advocates are not sated. “I’m glad that he mentions us but to be honest it’s not nearly enough,” says Greta Martela, who recently founded Trans Lifeline. “I can’t get excited about the President simply acknowledging our existence when we are facing this kind of crisis and discrimination.”

Mara Keisling, executive director of the National Center for Transgender Equality, says that word was missing in “laundry lists” he reeled off during the State of the Union in previous years. Still, Keisling notes that even when Obama didn’t say the T-word or the B-word (his mention of bisexual Americans was also a first this year), he did push forward on LGBT-friendly policies. In 2014, he signed an executive order extending workplace protections to LGBT employees working for federal contractors. And his attorney general, Eric Holder, recently instructed the Department of Justice to argue that discrimination against transgender people qualifies as sex discrimination under Title VII.

“Of course, the advancement of those policies is so much more important than a mention in a speech,” Keisling says. “But make no mistake, the President of the United States condemning persecution against transgender people is pivotal … His mention of us makes us know that he meant us when he talked about Americans. When he spoke about children, he meant transgender children too.”

TIME LGBT

12 Key Moments That Led to the Supreme Court’s Same-sex Marriage Case

U.S. Supreme Court Issues Gay Marriage
Gay rights supporter Vin Testa waves a rainbow flag outside the U.S. Supreme Court building on June 26, 2013 in Washington. Win McNamee—Getty Images

The 42-year backdrop for the Supreme Court’s upcoming ruling on gay marriage

1. “The appeal is dismissed for want of a substantial federal question.”

–Unsigned one-sentence ruling of the U.S. Supreme Court, October 10, 1972, Baker v. Nelson.

With these 11 words, the Court dismissed, without oral arguments, the appeal of two Minneapolis men, Richard John Baker and James Michael McConnell, who argued that a clerk’s refusal to issue them a marriage license violated their federal constitutional rights. (Source:Courting Justice, Gay Men and Lesbians v. The Supreme Court, by Joyce Murdoch and Deb Price.)

2. “I don’t believe I ever met a homosexual.”

–Justice Lewis Powell, Jr., in early 1986.

In preparing for Bowers v. Hardwick, a landmark case challenging the constitutionality of a Georgia law criminalizing homosexual sodomy, Powell, then 78, made this observation to one of his law clerks, Carter Cabell Chinnis, Jr. Chinnis didn’t tell Powell that Chinnis was himself gay, as he knew many of Powell’s previous clerks had been, but wondered if Powell suspected it. Powell looked for a compromise position in the case, but couldn’t find one, and voted in the end to uphold the felony statute. [Sources: Justice Lewis F. Powell, Jr., by John Calvin Jeffries, Jr., and Courting Justice (above).]

3. “[T]o claim that a right to engage in [homosexual] conduct is ‘deeply rooted in this Nation’s history and tradition’ or ‘implicit in the concept of ordered liberty’ is, at best, facetious.”

–Justice Byron White, Bowers v Hardwick, June 30, 1986.

White wrote this opinion for the Court’s 5-4 majority, upholding Georgia’s law criminalizing homosexual sodomy, evidently finding it difficult to take the plaintiffs’ arguments seriously.

4. “Condemnation of [homosexual] practices is firmly rooted in Judeao-Christian moral and ethical standards.”

–Chief Justice Warren Burger, concurring in Bowers, June 30, 1986.

In joining the majority opinion, upholding Georgia’s law criminalizing homosexual sodomy, Chief Justice Burger’s added: “Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Homosexual sodomy was a capital crime under Roman law. … [Eighteenth century English jurist Sir William] Blackstone described ‘the infamous crime against nature’ as an offense of ‘deeper malignity’ than rape, a heinous act ‘the very mention of which is a disgrace to human nature,’ and ‘a crime not fit to be named.’”

5. “[A] bare … desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”

–Justice Anthony Kennedy, Romer v Evans, May 20, 1996.

Justice Kennedy wrote the opinion of the Court for a 6-3 majority. After several cities and villages in Colorado had passed ordinances banning discrimination based on sexual orientation, Colorado voters passed, by referendum, a state constitutional amendment banning and invalidating those ordinances. In Romer, the Court struck down that referendum, marking its first important turn toward protecting gay rights.

6. “The court has mistaken a Kulturkampf for a fit of spite.”

–Justice Antonin Scalia, dissenting in Romer v. Evans, May 20, 1996.

Scalia’s argument continued: “Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible–murder, for example, or polygamy, or cruelty to animals–and could exhibit even ‘animus’ toward such conduct. Surely that is the only sort of ‘animus’ at issue here: moral disapproval of homosexual conduct, the same sort of moral disapproval that produced the centuries-old criminal laws that we held constitutional in Bowers.”

7. “The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.”

–Justice Anthony Kennedy, Lawrence v. Texas, June 26, 2003.

In this landmark ruling, the Court, 6-3, overruled Bowers v. Hardwick, and struck down the Texas law criminalizing homosexual sodomy. Kennedy continued: “[A]dults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.”

8. “Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned.”

–Justice Antonin Scalia, dissenting in Lawrence v. Texas, June 26, 2003.

Though Scalia obviously sought to chide the majority for what he regarded as poor reasoning, many lower-court judges later cited his dissent as proof that the logic ofLawrence now required according constitutional protection to same-sex marriage. Scalia had also written: “If moral disapprobation of homosexual conduct is ‘no legitimate state interest’ . . . what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘[t]he liberty protected by the Constitution’?”

9. “DOMA writes inequality into the entire United States Code.”

–Justice Anthony Kennedy, United States v. Windsor, June 26, 2013.

Justice Kennedy wrote this opinion for the 5-4 majority, striking down a key provision of the federal Defense of Marriage Act (DOMA), which had forbidden same-sex couples, even when lawfully married under state law, from being treated as “spouses” under federal law.

“DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal,” Kennedy wrote. “The differentiation demeans the couple, whose moral and sexual choices the Constitution protects … and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples.”

10. “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.”

–Justice Scalia, dissenting in United States v. Windsor, June 26, 2013.

In his apoplectic dissent, Justice Scalia once again seemed to unwittingly play into the hands of those who favored a constitutional right to same-sex marriage. “The real rationale of today’s opinion,” Scalia wrote, “whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by ‘bare … desire to harm’ couples in same-sex marriages. … How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.”

11. “Only the Supreme Court may overrule its own precedents, and we remain bound even by its summary decisions.”

–Circuit Judge Jeffrey Sutton, Obergefell v. Hodges; Tanco v Haslam; DeBoer v. Snyder; Bourke v. Beshear., Nov 6, 2014.

Two months ago, writing for a 2-1 majority, Judge Sutton, of the U.S. Court of Appeals for the Sixth Circuit, upheldsame-sex marriage bans in four cases arising from Michigan, Ohio, Tennessee and Kentucky. He said his hands were tied by the Supreme Court’s one-line 1972 dismissal in Baker v. Nelson (see point 1, above). Since four other U.S. Courts of Appeals had by then ruled that there was a constitutional right to same-sex marriage—and 36 states by this point permitted such marriages—Judge Sutton’s ruling created a “circuit split,” which frequently triggers U.S. Supreme Court review.

In dissent, circuit judge Martha Craig Daughtrey wrote: “If ever there was a legal ‘dead letter’ emanating from the Supreme Court, Baker v. Nelson … is a prime candidate. It lacks only a stake through its heart.”

12. “The petitions … are granted [for] the following questions: 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? . . .”

–unsigned order of the U.S. Supreme Court, January 16, 2015, Obergefell v. Hodges; Tanco v Haslam; DeBoer v. Snyder; Bourke v. Beshear.

Using standard, understated, formulaic language, the Court agreed on Friday to decide the issue Jack Baker and Mike McConnell tried to bring before it in 1972: Do same-sex couples have a constitutional right to get married. The issue will be argued in late April, and the historic answer handed down in late June.

This article originally appeared on Fortune.com

TIME LGBT

Meet the Plaintiffs in the Supreme Court’s Gay Marriage Case

The families and couples at the heart of the Supreme Court's historic decision to rule on gay marriage in the U.S.

The Supreme Court announced Friday that it would review an appeals court case upholding bans on same-sex marriage in four states.

The Court will consider four cases that have been consolidated and will be heard together, from Michigan, Ohio, Kentucky and Tennessee. In each case, families and individuals are challenging the gay marriage bans in their respective states. These are their stories:

Michigan

April DeBoer and Jayne Rowse: DeBoer and Rowse’s lawsuit against the state of Michigan was inspired by a close call on a snowy Ohio road that could have been a fatal car accident. That’s when they realized that if anything ever happened to one of them, their children would be split up and sent to live with distant relatives. Even though the Detroit-area nurses have adopted four special-needs kids together (ages 2-5,) they’re not legally a family. DeBoer and Rowse each have legal custody of two of their brood, but they can’t adopt together because Michigan doesn’t allow unmarried couples to adopt, and they can’t marry because same-sex marriage is illegal in that state. They filed their lawsuit in 2012.

Kentucky

Greg Bourke and Michael DeLeon: Bourke and DeLeon have been together for more than 30 years and have two adopted teenagers together. Even though they married in Canada in 2004 and their marriage was recognized by the federal government in the 2013 DOMA decision, Kentucky still doesn’t recognize them as a married couple, which means that only one of them can be the official parent of their children. The couple filed their lawsuit to challenge the constitutionality of Kentucky’s gay marriage ban in 2013. “There’s no reason why we should be second-class citizens,” De Leon said in an interview. “We should be at the table with everybody else.”

Tennessee

Valeria Tanco and Sophy Jesty: Valeria Tanco and Sophy Jesty have made history even before their case was selected to be heard before the Supreme Court. Their daughter, Emilia Maria Jesty, was the first baby born in Tennessee to have a woman listed as her “father” on her birth certificate. Tanco and Jesty were legally married in New York, but then moved to Tennessee, which does not recognize gay marriage. Both Tanco and Jesty are veterinary professors at the University of Tennessee, and they filed a lawsuit in 2013 to ask that the state recognize their marriage. “It affects my rights because I actually don’t have any legal rights as her parent at this time and that’s why we’ve been fighting so hard, so many families, like ours, can have the legal acknowledgement of their real relationships,” Jesty said.

Ohio

James Obergefell: While the other three cases were inspired by the birth and adoption of children, James Obergefell and John Arthur’s lawsuit was inspired by death. Arthur suffered from ALS, so when the Supreme Court overturned DOMA the couple chartered a private medical jet to go to Maryland to get married after more than 20 years together. When they returned to Ohio, they filed a lawsuit to get their marriage recognized so that the couple could be buried together, in a family plot of a cemetery that allows only spouses and relatives. A judge ruled that Arthur, who died in Oct. 2013, could be listed as “married” on his death certificate. But Ohio appealed that ruling, and if the appeal stands, Arthur’s death certificate will be amended to remove his marriage to Obergefell.

TIME LGBT

Here’s What 5 Supreme Court Justices Have Said About Gay Marriage

From left: U.S. Supreme Court Chief Justice John Roberts stands with fellow Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan prior to President Barack Obama's State of the Union speech on Capitol Hill in Washington, D.C. on Jan. 28, 2014.
From left: U.S. Supreme Court Chief Justice John Roberts stands with fellow Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan prior to President Barack Obama's State of the Union speech on Capitol Hill in Washington, D.C. on Jan. 28, 2014. Larry Downing—Reuters

What Justices Kennedy, Alito, Scalia, Ginsburg and Chief Justice Roberts have said or written about the issue

The Supreme Court agreed on Friday to decide once and for all whether all 50 states must allow gay and lesbian couples marry, likely resolving one of the greatest civil rights debates of the 21st century.

The Court will consider four cases that have been consolidated and will be heard together, from Michigan, Ohio, Kentucky and Tennessee. Same-sex marriage is banned in each of those four states, and the U.S. Court of Appeals for the Sixth Circuit upheld those bans in November. That decision will be appealed in front of the Supreme Court.

The high court has been coy in the past about taking up same-sex marriage cases, and the current justices have rarely written individually on the merits of the issue aside from the crucial United States v. Windsor (2013) decision striking down the Defense of Marriage Act (DOMA) in which Justice Kennedy wrote the majority opinion. That said, here are some of the past indications Supreme Court justices have given on the issue.

Justice Anthony Kennedy:

The states that have given gay couples the right to marry “conferred upon them a dignity and status of immense import,” wrote Justice Anthony Kennedy in the landmark United States v. Windsor (2013) ending the federal law (DOMA) that allowed states to refuse to recognize gay marriages granted under the laws of other states.

Kennedy added that DOMA imposed “a disadvantage, a separate status” and “a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the states.” Justices Kagan, Ginsburg, Breyer and Sotomayor joined Kennedy’s decision.

Justice Antonin Scalia

“This case is about power in several respects,” Scalia wrote in his dissenting opinion on the Windsor case, arguing the courts should not decide laws on gay marriage. “It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case.”

Justice Samuel Alito

“Respondent Edith Windsor, supported by the United States, asks this Court to intervene in that debate, and although she couches her argument in different terms, what she seeks is a holding that enshrines in the Constitution a particular understanding of marriage under which the sex of the partners makes no difference,” wrote Alito on the same case, also arguing elected officials should decide on gay marriage, not the courts. “The Constitution, however, does not dictate that choice. It leaves the choice to the people, acting through their elected representatives at both the federal and state levels.”

Justice Ruth Bader Ginsburg

Speaking before an audience in Minnesota last September, Ginsburg marveled at the “remarkable” shift in public opinion on same-sex relationships and marriage. “Having people close to us who say who they are — that made the attitude change in this country,” Ginsburg said, the Associated Press reported.

Chief Justice John Roberts

In the case Hollingsworth v. Perry, Chief Justice Roberts wrote that judicial precedents that courts only answer questions that are “viewed as capable of resolution through the judicial process” are “an essential limit on our power: It ensures that we act as judges, and do not engage in policymaking properly left to elected representatives.” It’s a similar argument to the one Alito and Scalia make in Windsor.

The others

Justices Stephen G. Breyer, Sonia Sotomayor and Clarence Thomas haven’t written separate opinions on gay marriage in cases decided by the Supreme Court, and have kept tight-lipped on the issue in recent years — though the left-leaning Breyer and Sotomayor sided against DOMA in 2013, and Thomas has joined his fellow conservatives in voting that the court shouldn’t rule on gay marriage.

As for Justice Elena Kagan, not only did she vote against DOMA in 2013 but she officiated a same-sex wedding in Maryland for her former law clerk and his husband last September, so it’s pretty clear what side of the issue she stands on.

TIME LGBT

Why the Supreme Court is Set to Make History on Gay Marriage

The writing's been on the wall since the Defense of Marriage Act was struck down in 2013

The fight for same-sex marriage rights in the United States has reached its final round. On Friday, the Supreme Court announced that it will hear arguments on whether state laws that ban these unions violate the constitution.

There’s not much question which way the decision will go: same-sex couples are going to prevail. The logic is plain:

In 2013, the court—the very same nine justices—struck down the Defense of Marriage Act. The plaintiff was a lesbian spouse whose marriage was recognized under New York law. The court ruled that the Constitution bars the federal government from treating traditional marriages differently from same-sex marriages in states that legalize both.

Read more: How Gay Marriage Won

Now the court will apply the same reasoning to state laws. Does the constitution allow states to discriminate when Congress cannot? Can the 14 states that still ban same-sex unions refuse to recognize marriages lawfully performed in other states?

In other words: suppose that two couples lawfully married in, say, Utah both move to Ohio. Can the authorities in Ohio refuse to recognize one of the marriages—the two-husband marriage—while recognizing the union of husband and wife?

Justice Anthony Kennedy, the deciding vote on same-sex marriage in 2013, left no doubt about his thinking in his majority opinion: “No legitimate purpose” exists to justify a law “to disparage and injure” same-sex couples. And that’s what these laws do, he concluded. DOMA “instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others.”

Lower federal courts pretty clearly agree on this point. Even some of the most conservative courts of appeal have ruled that state laws against same-sex marriage are in conflict with the 2013 ruling. Earlier this term, the Supreme Court declined to take up the issue, for the simple reason that the lower court judges were all arriving at the same decision. Where there was no dispute, the high court saw no need to step in.

But last fall, a panel of the 6th Circuit Court of Appeals—with jurisdiction over Ohio, Kentucky, Michigan and Tennessee—upheld state laws against same-sex marriages. With lower courts now in conflict, the Supremes have a role to play.

Given Kennedy’s long history as a defender of the dignity and rights of homosexuals, it defies belief to think that he has been sitting in Washington, watching couples in one state after another gain the freedom to wed, if he doesn’t in fact believe that freedom exists. For the Court to uphold the 6th Circuit opinion, Kennedy would have to join the court’s conservatives in a ruling that would potentially invalidate thousands of marriages across the country.

Polls now show that a majority of Americans believe in the right to marry. The shift of public and judicial opinion on this issue in a single generation has been startling. But it is less controversial with each passing day.

Now the issue will be resolved once and for all.

TIME cities

This Is the ‘Queerest’ City in America

Per an annual list just released by 'The Advocate'

The Advocate‘s annual list of the most LGBT-friendly cities in the United States, just released this week, has a new No. 1: Dayton, Ohio.

For this year’s list of the “Queerest Cities in America,” the outlet gave cities points for things like how trans-inclusive they are, the existence of LGBT-friendly Jewish and Muslim houses of worship and whether they hosted tours of Broadway hits like Kinky Boots, The Book of Mormon and Wicked. The Advocate divided the total points by the population to get a “per capita LGBT quotient.” (LGBT-friendly hubs like New York City and San Francisco are excluded.)

The top five “Queerest Cities” of 2015 are:

  1. Dayton, Ohio
  2. Atlanta, Ga.
  3. West Palm Beach, Fla.
  4. Lansing, Mich.
  5. Madison, Wisc.

Read more at The Advocate.

TIME society

Why Tiffany & Co.’s New Same-Sex Couple Ad Is Important to Me

A person walks past a Tiffany & Co. store on Jan. 12, 2015 in New York City.
A person walks past a Tiffany & Co. store on Jan. 12, 2015 in New York City. Spencer Platt—Getty Images

xoJane.com is where women go to be their unabashed selves, and where their unabashed selves are applauded

It's nice to feel that a company that I’ve been wearing for so long went out of its way to stand behind marriage equality

xojane

By now, you’re probably aware that Tiffany & Co. just released its first ad featuring a same-sex couple. If you haven’t already seen it, here it is in all its glory.

The photo, shot by fashion photographer Peter Lindbergh, features a real life gay couple from New York, accompanied by the text “Will you?” Cute, right?

Tiffany is hardly the first company to feature a same-sex couple in its advertising. It joins the ranks of companies The Gap, JCPenny, and Banana Republic, to name a few, who have made gay couples a part of their advertising campaigns. But just because it’s not the first to do it doesn’t mean it shouldn’t be celebrated.

One of the things that stands out to me the most about this ad is not that it features two men, but that it features people at all. Tiffany ads are typically completely devoid of any models, placing all focus on huge images of the jewelry.

Where many luxury jewelry brands employ celebrity faces to hawk their pieces, Tiffany (usually) lets its jewelry speak for itself, showcasing its pieces against the signature Tiffany-blue background.

Even on the website, you’ll only see a piece modeled on a hand or neck to better illustrate size and scale. So to me, Tiffany didn’t just use a gay couple where a straight couple would normally be; it made an exception and made them the focal point, the engagement rings a close second.

If you can’t already tell, I’m a huge fan of Tiffany, and have been for quite a while. I’ve worn one of the brand’s bands on my right ring finger for the last seven years, and this fall, I copped my mom and I matching T Rings from its new T Collection because both of our names start with the letter T. I know, how cute. Personally, it’s kind of nice to feel that a company that I’ve been representing for so long went out of its way to stand behind marriage equality.

I’ve heard a lot of people say that a company using a gay couple in its advertising shouldn’t be news, and I hear that, but I’d rather not look at it that way. True, featuring the LGBT community shouldn’t still be worthy of a headline, but I do think that it’s still worthy of recognition, at the very least. There are a lot of companies who are happy to take our money while still looking at us as second-class citizens, and I’m probably giving my money to more of them than I’d like to without even realizing it. So while I’m the king of skepticism, I’m not going to pick this one apart. I choose to see this good thing as a good thing.

True, this is an ad, and its purpose, at the end of the day, is to sell. It was no doubt conceived in a boardroom and given the green light because the suits behind Tiffany knew that it would be newsy enough for every media outlet to run an article about it, just like this one, which would mean a whole lot of free advertising for them. But you know what? I’m fine with that. Because the more eyes on it, the better.

I was thinking about what it would be like if I was in high school again, the only out gay kid in my class and probably the entire school, seeing this ad. Personally, it would have been powerful for me as a teenager to see an image of two men, well-adjusted and happily engaged.

Walking through the halls every day, being so nervous all the time because I stuck out like a sore gay thumb, feeling like such a frazzled weirdo simply because of who I was. Looking through a magazine and have this company tell me “Yo. Look at these fine men. They’re just like you. You’re beautiful and normal and your love is worthy of recognition,” that would have been big for me to see.

So you’re right when you say this sort of thing shouldn’t still be a headline, but if all of these headlines serve to get the ad in front of more peoples’ faces, then great.

It reminds me of this summer when a friend and I were cruising around in my car. Macklemore’s “Same Love” came on the radio, and he made some comment about how he was sick of the song because it is so overplayed. I pointed out that, yeah, the song had been played to death, but did you ever think we’d see a day where a rap song about marriage equality would be overplayed on top 40 radio?

Five years ago, less than that, even, the song would most likely never made it on an album, let alone on the radio. Now we can’t get rid of it. What I’m saying is, you gotta count your small victories where you can get them. And besides, it’s better than hearing “Dark Horse” for the thousandth time.

I realize that “Same Love” comes with its own slew of issues, like his Grammy win over genre-defining artists like Kanye West, Drake, and Kendrick Lamar, or the fact that it could have been done better by one of the many up-and-coming queer rappers who can spit better then Macklemore all day long, but I don’t hate on him for being an ally.

I guess how I see it is that no matter if it’s a jewelry ad or a rap song, visibility in all forms is important. Whether its marriage equality, trans rights, the homeless LGBT youth population, or any of the many issues facing the LGBT community, I personally count each and every instance of increased visibility as a win, and motivation to demand more of it. Personally, it’s just nice to feel seen.

Tynan Sinks is a music journalist and contributor for xoJane. This article originally appeared on xoJane.com.

TIME Ideas hosts the world's leading voices, providing commentary and expertise on the most compelling events in news, society, and culture. We welcome outside contributions. To submit a piece, email ideas@time.com.

TIME celebrities

Watch Ellen DeGeneres Give the Most Ellen Speech Ever on Hollywood’s Alleged ‘Gay Agenda’

"I don't have an agenda," the comedian and talk-show host says

Ellen Degeneres took a moment during her daily talk show to respond to a recent op-ed written for The Christian Post that outlined a “gay agenda” promoted by Hollywood. In the post, Christian author Larry Tomczak cites DeGeneres as an example of Hollywood “promoting homosexuality.”

“Ellen DeGeneres celebrates her lesbianism and ‘marriage’ in between appearances of guests like Taylor Swift to attract young girls,” he wrote.

Her retort was a response only the comedian could pull off. After jokingly dismissing the claims made in the post, DeGeneres made it clear that her only goal is to promote compassion and self-acceptance.

“The only way I’m trying to influence people is to be more kind and compassionate with one another,” she said. “That is the message I’m sending out. I don’t have an agenda.”

 

Your browser, Internet Explorer 8 or below, is out of date. It has known security flaws and may not display all features of this and other websites.

Learn how to update your browser