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 This law was passed by Congress, and must be repealed by Congress.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That being said, getting all of the Defense of Marriage Act repealed is really the first step in this process, because it will at least allow the Federal government to provide the vast benefits and responsibilities necessary to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:
- 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.
- 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.
- 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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