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The frightening truth about Same-Sex Marriage in America

June 6th, 2011 · 11 Comments · Editorials

Every LGBT person in America should understand where we stand on Same-Sex Marriage, because we’re not as close to full equality as most assume.

The genesis of this post was the assumption by someone on Twitter who said that “Obama should just legalize gay marriage!” So, let’s get this out of the way first: Obama has no specific power over same-sex marriage in the United States. He can push the agenda for Congress to find a solution, he can use his bully pulpit, but he does not have the power to enact same-sex marriage.

The “Defense of Marriage Act” (DOMA) is a federal law that allows states an “exemption” from the agreement (“Full Faith and Credit Clause” of the Constitution) to honor marriages performed in other states. For example, if you are heterosexual and marry in Indiana, your marriage, per the Full Faith and Credit Clause, is also recognized by the state of Florida. DOMA allows states to ignore that, so that even if Massachusetts allows same-sex marriage (which it does), Indiana does not have to recognize it. This law was passed by Congress, and must be repealed by Congress.

DOMA also stops the Federal government from recognizing same-sex marriages for Federal benefits. So, same-sex couples can’t file as partners on their Federal taxes. This is really one of the biggest issues — there are over 1,000 rights and responsibilities of marriage in the United States, at the Federal level.

Even if we were to repeal the Defense of Marriage Act (which President Obama has said he wants Congress to do), there is still another problem. Over 35 states have laws and state-Constitution amendments barring the recognition of same-sex marriage in their state. Even though Federal law overrides state law, there is no guarantee that states would recognize same-sex marriages from other states, because of these laws and amendments.

That being said, getting all of the Defense of Marriage Act repealed is really the first step in this process, because it will at least allow the Federal government to provide the vast benefits and responsibilities necessary to protect LGBT couples and their families.

Once that is accomplished, there are only three ways of ensuring that same-sex couples have all the rights and responsibilities of marriage in ALL of the United States of America. Here’s where it gets really scary:

  1. The Supreme Court rules that state-level laws barring the recognition of same-sex marriage are unconstitutional. If this were to happen, all states would have to recognize same-sex marriages performed in any state in the US. This possibility is “in the pipeline” because of the case to repeal Proposition 8 (Perry v. Schwarzenegger), backed by the American Foundation for Equal Rights. You can find out more about where that case is right now on the AFER website. The down-side to this case is that, If we lose at the Supreme Court, Proposition 8 and other laws like it will stand, and our marriage movement will be set back 20 years or more.
  2. We repeal each law or constitutional amendment in each state where they exist. This would require 30+ legislative and proposition battles, millions of dollars fighting the battles, and likely 10-15 years.
  3. We pass an amendment to the United States Constitution requiring that LGBT people are treated equally and that same-sex marriage must be allowed in all states and recognized in every state. This is a difficult route, but the route that ensures equality on our terms. While a Supreme Court ruling on same-sex marriage would ensure that we can marry throughout the United States, it would do nothing about employment discrimination or a host of other LGBT legal issues. A Constitutional amendment protecting our rights could be crafted in such a way to sweeps every type of LGBT discrimination off the table. The best way to accomplish this would be to ally ourselves proponents of the (failed) Equal Rights Amendment, and other minority groups, to create a “super ERA,” protecting each minority group by name.

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  • Obama does not favor Same-Sex Marriage. It would be a big step forward in the equality movement if he would come out in favor of it.

    • That’s true — it would be a big step forward — but I am one of those folks who believes that he is likely to come-out entirely in favor of same-sex marriage if he is re-elected. I think his advisors are likely telling him that, despite public opinion being in our favor, coming out in favor of same-sex marriage before the 2012 election would lose him the election as the Republicans would make it the wedge issue of the election.¬†

      That’s just my opinion. But yes, I agree, it will be a huge help if he “comes out” in favor of equality ūüôā

  • The real “frightening truth” about same-sex marriage in America is that people believe marriage should be a privilege awarded exclusively to gay people.

    To my knowledge no legislative body in the United States has ever recognized a gay marriage bill. Anybody who uses the phrase “gay marriage” is an opponent of LGBT equality.

    Say no to gay marriage. Say yes to marriage equality.

  • Eric G. Young, Esq., Prof.

    I think there are some very interesting and provocative thoughts here. ¬†While recognizing the reality of our society which does, in fact, exalt marriage institutionally and economically, I find myself wishing that we did not spend all our efforts trying to knock down the door of an institution that has, traditionally, been one known to oppress and divest women of rights and liberties. ¬†A considerable amount of the debate ¬†– and certainly the legal arguments – always seem to rest on the “benefits” granted to married persons by the state. ¬†That is the problem! ¬†The state should have no business creating a business of marriage. ¬†Leave people to choose to marry, free even of the enticements of tax credits and and exemptions.

    • I think marriage benefits are only appropriate when there is a low birth rate, so they should be used in conjunction with economic incentives to have children.

    • We should be putting most of our energy into marriage equality.¬† The marriage equality movement has already caused a sea change in the way straight Americans view gay Americans.¬†

      Marriage is central to our culture.  As long as we are excluded from marriage, we are marginalized.  

      Marriage is both private and public.  We need both aspects of marriage for our own healthy self esteem and to create conditions that invite and allow recognition and respect from our fellow citizens.  Change in public opinion is the key to unlocking all of our other rights (think voters).  And marriage equality has been and will be the key to changing public opinion. 

      p.s. Marriage is not a perfect institution, and there is some truth in your criticism of marriage.  But it is also true that marriage has done a lot to protect women from oppression and confer rights and liberties upon women. 

      Marriages don’t oppress people, people oppress people.¬†


    I think it is ABSOLUTLEY ridiculous that the United States of America ” Land of the Free”, does not even recognize civil partnership like the United Kingdom. Who the hell is the Federal Government to tell me who I can fall in love with and who I can and can’t marry. How dare you take this part away from us. You people act like we are some kind of disease. Well I promise you this we will continue to stand TALL and we will continue to walk the streets hand in hand and we will continue to LOvE one another whether you ever pass this law or not because we are PROUD of who we are.

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  • I agree with each of your conclusions.¬† I noticed, however, that you state the likelihood of scenarios 1 and 2 succeeding but did not do the same for No. 3.¬† An amendment to the federal constitution requires a 2/3 vote of both the Senate and the House, then a popular vote ratifying the amendment to succeed in¬† 2/3 of the states.¬† The time for ratification of the ERA expired in 1982.¬† The process would have to start all over.¬†

    • As I mention in No. 3, we’d be allying ourselves with the proponents of the failed ERA. So yes, the process would have to start over, and that’s fine. The ERA would need to be rewritten to include LGBT protections and so-forth.¬†

      Also, our stance on the amendment to the Constitution protecting LGBT equality is that it would be a long term strategy. This is obviously not something that would pass in the next few years, but instead would be something we’d shoot for as, say, a 10-year goal for the LGBT movement.¬†

      In our opinion, it’s obvious that the process to overturn anti-LGBT marriage laws in every state is going to take at least that long, if not 15-20 years, so why not “dual track” these options? Let’s start getting the idea into the popular consciousness and start talking about it now, so that we don’t look back 10 years from now and wish we had laid the ground work today. No. 3 isn’t there to say “here’s how we can fix the problem next year!” but instead to say: “this is how we fix the problem COMPLETELY, and yes it will take a lot of time, but if the Supreme Court rules against us, our options narrow anyway.”

      We don’t disagree that the Supreme Court is the best way to ensure marriage equality, but we’re pragmatic about the possibilities of failure there. We strongly disagree with the idea that the LGBT movement should pour millions of dollars and a dozen years into state-by-state battles to overturn anti-marriage amendments, but understand that this is the option that has the most traction and will likely continue.¬†

      One final note: even if all the state anti-gay laws were overturned, and all the current pro-LGBT bills were passed, we still wouldn’t be fully equal in the eyes of the law. There are a myriad of ways that we’re not protected. An amendment to the Constitution would encompass all of the avenues of discrimination.¬†

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