Blog of Rights

The Road To Equality: 'Til Death Do Us Part And Beyond

By Chase Strangio, Staff Attorney, ACLU at 10:01am

Life is full of unexpected ups and downs. Sometimes our greatest joys are followed by our deepest sorrows and through the good times and the bad we turn to our loved ones to guide and comfort us.

But for same-sex couples, all too often the best and worst of life's moments become reminders of the second-class status that same-sex relationships are relegated to in many states.

For Midori Fujii and Kris Brittain, the magic of their marriage and wedding was followed by tragedy.

In 2008, after 11 years together, Midori and Kris were married in California. Sadly, shortly after they returned to their home in Indiana to continue their life together as spouses, Kris learned that she had ovarian cancer. Midori recounts the surgeries, hospitalizations and treatments that Kris had to undergo. Through it all, Midori stood by Kris's side, and they found comfort in each other and their shared home.

In Kris's final days, she was plagued with worry over what would happen to Midori after her death because they would be treated as legal strangers in their home state of Indiana. The trauma and sadness of being seen as "less-than" consumed her as she and Midori prepared to say goodbye. The couple did what they could to protect themselves, drafting wills and other legal documents that would allow Midori to make medical and financial decisions for Kris. But nothing can stand in for the recognition of a marriage.

When Kris died in October of 2011, Midori lost the love of her life. And in the most painful moments of grieving, she had to fight to be recognized as a part of Kris's life. At first, she was told that she could not authorize Kris's cremation because she was not a spouse. Then, like Edie Windsor who successfully challenged the constitutionality of the so-called Defense of Marriage Act (DOMA) in United States v. Windsor, Midori was saddled with a $300,000 tax bill on the property that she and Kris shared. This bill would have been $0 had they been an opposite-sex married couple.

For Midori, the devastation of Kris's loss was compounded by the added burden – both financial and symbolic – of having their joint home and life treated as the separate lives of two strangers.

The injustice of her experiences following Kris's death motivated Midori to stand up for the dignity she and Kris deserved. In March of this year, Midori, along with five couples and two children, filed suit challenging the constitutionality of Indiana's ban on the freedom to marry and the recognition of marriages from other jurisdictions. The district court struck down Indiana's ban in Midori's case and two others. The court proclaimed, "Today, the ‘injustice that [we] had not earlier known or understood' ends. … Because ‘[a]s the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.'"

Those three cases, Midori v. Commissioner of Indiana Dep't of Rev., Baskin v. Bogan, and Lee v. Abbott, were consolidated on appeal before the 7th Circuit Court of Appeals.

Today, the Seventh Circuit will hear oral argument in the three Indiana cases and in the ACLU's case, Wolf v. Walker, challenging Wisconsin's comparable ban. Ken Falk of the ACLU of Indiana and Camilla Taylor of Lambda Legal will be arguing for the plaintiffs in the Indiana cases while James Esseks, director of the ACLU's LGBT & AIDS Project, will be arguing for the plaintiffs in the Wisconsin one.

These cases will be the fourth set of cases to be heard by a federal court of appeals since the Supreme Court's decision in Windsor. There have now been 37 court decisions ruling in favor of marriage equality for same-sex couples. Two other courts of appeals, the 10th Circuit and the 4th Circuit, have already upheld district court decisions on the side of marriage. Argument was held in the 6th Circuit earlier this month. We are hopeful that the 7th Circuit will join the 4th and the 10th in upholding basic constitutional principles.

One or more of these cases will soon be before the Supreme Court and we are optimistic that the Supreme Court will also conclude that our Constitution simply does not tolerate the discriminatatory treatment that these marriage bans inflict. As one judge recently concluded in his opinion striking down Oregon's marriage amendment:

I believe that if we can look for a moment past gender and sexuality, we can see in these plaintiffs nothing more or less than our own families. Families who we would expect our Constitution to protect, if not exalt, in equal measure. With discernment we see not shadows lurking in closets or the stereotypes of what was once believed; rather, we see families committed to the common purpose of love, devotion, and service to the greater community.

For Midori, the other plaintiff couples and same-sex couples and families throughout Indiana and Wisconsin, these cases truly are about love and devotion – the kind that gives life meaning and transcends death.

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