Nancy Polikoff

What married same-sex couples owe to hippie communes

Filed By Nancy Polikoff | July 12, 2010 8:00 PM | comments

Filed in: Marriage Equality, The Movement
Tags: DOMA, Gill v. OPM, Romer v. Evans, USDA v. Moreno

I'm guessing most married same-sex couples think they have little in common with the hippie communes of the 1960's and 70's. Free-loving hippies challenged the fabric of American society, including the nuclear family, while most married same-sex couples, or at least the organizations that speak for them, are busy presenting gay marriage as anything but a threat to heterosexual family life.

Well, think again. Last week's ruling in Gill v. OPM demonstrates just how much debt all gay rights advocacy owes those hippies.

hippies Pictures, Images and Photos

After rejecting every asserted justification for excluding Massachusetts married couples from the legal consequences of being married under federal law, US District Court Judge Joseph Tauro said this:

What remains, therefore, is the possibility that Congress sought to deny recognition to same-sex marriages in order to make heterosexual marriage appear more valuable or desirable. But to the extent that this was the goal, Congress has achieved it "only by punishing same-sex couples who exercise their rights under state law." And this the Constitution does not permit. "For if the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean" that the Constitution will not abide such "a bare congressional desire to harm a politically unpopular group."

The citation for the last sentence in that paragraph is a case called USDA v. Moreno, decided in 1973. It's the case that formed the primary precedent for the Court's landmark gay rights ruling in 1996, Romer v. Evans.

Moreno was a challenge to an amendment to the statute governing the federal food stamp program. When enacted in 1964, eligibility for food stamps was determined on the basis of household size and income. A "household" included any group of related or unrelated individuals who basically shopped for food and cooked in common. In 1971, Congress amended the law to exclude households whose members were not all related.

Several households challenged the constitutionality of the statute, including two mothers on public assistance living together for economic reasons; a family that took in an unrelated young woman with emotional problems; and named plaintiff Jacinta Moreno, who lived with a mother of three, paying rent and receiving care in return. All were eligible for food stamps but for the fact that none of the households consisted entirely of related individuals.

The Court found that Congress created the food stamp program to alleviate hunger and malnutrition and that distinguishing between related and unrelated persons was irrelevant to that purpose. The Court further rejected the government's assertion that limiting aid to related individuals would reduce the likelihood of fraudulent use of food stamps. The Court did examine the legislative history of the 1971 amendment, and it found this: The amendment was enacted to prevent hippies and hippie communes from receiving food stamps.

And to this the Court said:

The challenged classification clearly cannot be sustained by reference to this congressional purpose. For if the constitutional conception of "equal protection of the laws" means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.

It's that language that Justice Kennedy resurrected in Romer v. Evans and that Judge Tauro cites in Gill.

Moreno had a dissent by Justice Rehnquist who thought that Congress was perfectly within its rights to limit food stamps to "some variation on the family as we know it - a household consisting of related individuals." Rehnquist was not yet Chief Justice. As everyone knows, the Court became considerably more conservative in later years, with Rehnquist at its helm and as Republican presidents selected more Justices. It is very likely that the Rehnquist Court would have upheld the food stamp restriction.

But in 1971 hippies were not the only challenge to the traditional family. Feminism and the gay liberation movement were right in there. As I write about in my book, it was a time when defying both conventional sexual morality and the nuclear family norm were part of the vision for creating a better society. And that view was accepted enough that the Supreme Court of the United States thought that Congress could not punish people proclaiming - and living - that vision.

Today LGBT people are the beneficiaries of Moreno. It's the only case that Justice Kennedy could cite to strike down Colorado's Amendment 2 in Romer. Romer read gay people into the Equal Protection Clause of the Constitution. Without it there would be no Gill. Whenever you see Moreno cited, thank the hippies, and the legal services lawyers who stood up for them before the Supreme Court.

And if you are not married, don't aspire to marry, and indeed have a more fluid idea of what family ought to count under our laws, Moreno is the case that someday, with some change in the Court's personnel, might mean your liberation as well.

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Paige Listerud | July 12, 2010 10:33 PM

Nancy, this article of yours makes me very happy:

1) Because deep inside, I am a hippie.
2) Because I know bisexuals and pansexuals who are in polyamorous arrangements, open marriages, and alt. sex communities. I have heard of some gays and lesbians (and straights) who also engage in these kind of extended alternative families, but they are not as visible to me as my bi/pan/queer friends.
3) People ought to be able to form their families and not be in fear of losing jobs, housing, or access to government programs because of them. This gives me great hope.

Thank you.

I seem to recall that the Moreno case recognized "cooking units" as legitimately qualifying for food stamps. I guess a "cooking unit" was a pre-cursor for same sex marriage.

It was the statute that referred to "one economic unit sharing common cooking facilities and for whom food is customarily purchased in common." The Moreno ruling didn't quarrel with that, just the requirement that all the occupants be related.

Thank you for this article. I was not aware of the legal history here but I am a "left over" counter-culture hippy chick who never surrendered those counter-culture values and now lives ten miles north of Woodstock in a Womens Spirituality Centre and Religious convent that takes in women in need despite our very limited resources. We just took another one in a week ago in fact.

Skating around the public assistance requirements remains a challenge but so far not an impossible one.

I was a college student hippie and came out as gay during that time (circa 1970), and I agree with this concept... Indeed, most people today have no idea How Much we all owe to hippies. The world is vastly different in many ways -- though horribly the same in some ways -- thanks to hippie ideals and actions. It would be great if someone who has more energy than I have would create a hippie history and defamation project to reclaim the truth of it and to point out the many areas of our current lives that were improved thanks to hippies. Meditation and clean food, anyone?

Fascinating, Nancy. I knew out of all of contributors, you would be the one to come up with the most unique angle to the story. I'm not disappointed.

I learned so much. I had never heard of the case before. Thanks for that.

Very happy you pointed this out. It never has been and never will be a perfect world. I think "the ones who tried, the ones who died trying to set the angel in us free", to quote Bruce Cockburn, should be acknowledged for the enormous change they brought about. I was there and I do remember the sixties. By the time the seventies rolled around the enormous changes were either taken for granted or met with the backlash that has stifled more complete progress.

Of course it isn't a gay or lesbian anthem but the line in Joni Mitchell's My Old Man has rung over and over in my head for almost forty years:

"We don't need no piece of paper
From the city hall
Keeping us tied and true"

Well, we all know that is probably way too simple. I was hoping we were all heading for a world where contracts like that wouldn't be necessary. As long as they are, they should be available to everyone who needs one.