Marriage Equality's Giant Leap Forward
Today, my marriage to my wife did not change one iota. Our marriage does not need "protecting" or "defending" by anyone -- it is exactly the same today as it was yesterday. Tomorrow, it will remain the same. Contrary to the claims of opponents, the Supreme Court's landmark rulings on the two cases before it involving the rights of gay people to get married has had and will have no effect whatsoever upon my marriage.
That may sound like a strange place to begin the celebration over the Supreme Court's rulings in Hollingsworth v. Perry and United States v. Windsor, but it's a key point if only because it has been used as such an erroneous argument in favor of banning marriage equality. No heterosexual's right to marry the person of their choice is any different now than it was yesterday -- proving the opposition wrong on one of their main arguments (consider the name of the federal law, for proof of this: "Defense Of Marriage Act"). But the whole argument over marriage equality is so personal, I thought I'd start with my own personal take on it: the sun will rise tomorrow, I will be married to the same wonderful woman, and nothing will have changed. Nothing.
However, for a whole lot of gay couples, life will have gotten one whale of a lot better. Today's Supreme Court rulings are a giant leap forward along the path to fully equal rights. The federal government will now recognize marriages which their states recognize, and the barriers to equal treatment under federal law have disintegrated for good. That is indeed something to celebrate. Which is why I'm going to stop using the term "gay marriage" ever again in my writing. There is no "same-sex" and "opposite-sex" marriage anymore. There is just marriage, period. From now on, the phrase I'll be using is "marriage equality," because we're all now equal under federal law -- as we should be under state law, as well.
After the initial euphoria wears off a bit, though, the question will remain where we go from here. Because the battle's not over yet. The Supreme Court, as I've been predicting, did not issue the total Loving v. Virginia victory that gay rights supporters were truly hoping for. Gay marriage was not defined today as a basic and inherent (or "unalienable") right under federal law. Such a ruling would have overturned laws in almost three-fourths of the states and mandated marriage equality in all 50 states. The Supreme Court obviously didn't want to move that fast.
This is not to say that they won't get there eventually. But it's going to take some time and it's going to take some work, on both the political and legal fronts. Legally, U.S. v. Windsor struck down Section 3 of the Defense Of Marriage Act -- the part which defines in all federal law that "marriage" only means one-man-one-woman, period. But Section 2 of the law wasn't affected by today's ruling, and is still federal law. This section reads:
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
Quite plainly, this section legalizes "separate but equal" treatment of marriage. It is discrimination writ into federal law. It will be challenged in court. The core of this challenge will reference the relevant passage from the United States Constitution. Article IV, Section 1 reads, in full:
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
Article IV, Section 2 begins with:
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
Section 1 allows Congress to set the rules for how states treat official records from other states. Congress has done so in Section 2 of DOMA. However, they have done so in order to deny rights, quite obviously. So this is where the constitutional battle will be joined in the next big marriage equality case. This case will be the equivalent of Loving v. Virginia, which declared all state laws banning interracial marriage unconstitutional.
Say (to use a favorite phrase of the marriage equality opponents) Adam and Steve get married in California. Steve then gets a great job in Austin, and they move. Sadly, they decide to divorce. But Texas doesn't recognize their marriage as being legal, so it refuses to allow them to file divorce papers. Adam and Steve v. Texas will then travel upwards through the state and federal court systems until it reaches the United States Supreme Court.
This is all going to take a number of years. The real question in this (fictional, for now) case is how will the Obama Department of Justice react? Will it refuse to defend Section 2 of DOMA in court at all? What will that eventually mean? The Supreme Court today ruled one section of DOMA unconstitutional even though Obama refused to defend it, so it'll probably eventually get heard and decided by the high court, but questions of "standing" may allow the court to put off such a sweeping decision until they feel ready to take the final step towards marriage equality. Proposition 8 passed in 2008, remember, so Adam and Steve v. Texas at the Supreme Court may be anywhere from five to ten years away.
That's a long time to wait, but things won't be frozen in stone in the meantime. Instead, the focus will shift to the political realm. The good news is that, in politics, the tide has turned in a big way. I confidently predicted earlier this year that the tipping point had been reached on marriage equality, and that we would now be moving forward and not backward. To put this another way, Democrats are about to start confidently winning the "culture wars," after almost a quarter-century of losing badly on this front.
When the state of Hawai'i indicated it might actually allow gay people to marry, the conservative backlash was ferocious. For two decades, they successfully put anti-marriage-equality measures on the ballot in every state they could. Up until last November, all of these ballot initiatives won. But in 2012, marriage equality won at the ballot box for the first time, in multiple states. Conservatives have been so successful in their own efforts that now they don't have any states left to pass more initiatives -- once you've banned something, there is no reason to ban it again, after all. At the high-water mark, three-fourths of the states had anti-marriage-equality laws on the books. But this is the tide which has turned -- and we're never going back. In fact, the number of states allowing full marriage equality is only going to grow.
This isn't to suggest that it'll be an easy fight in each state. Every ballot initiative or proposition isn't going to win the first time around, either. But the entire dynamic has changed. What used to be a very potent "wedge" issue on the Right is now going to become an equally-potent wedge issue for the Left. Think about it: the Left will now pick and choose the states where referenda battles will be fought. The Left will now benefit from having the issue on the ballot. Even if it doesn't pass, the Left will likely boost their voter turnout (especially among young voters) in states which are voting on the issue.
That is an enormous sea-change, and it's why I made the "tipping point" prediction earlier in the year. The political calculus is changing -- fast. President Obama became the first person to run for president while supporting marriage equality. In his second election, of course -- in his first, neither he nor his biggest Democratic contender could bring themselves to support marriage equality (for fear of losing votes, assumably). But Obama didn't just mark the first time a Democratic presidential candidate fully supported marriage equality, he also marked the last time any Democratic nominee will run against marriage equality. There simply is no turning back, at least in the Democratic Party. Even a few Republican office-holders are now seeing the light.
So while we all wait for the perfect test case to come along which will toss anti-marriage-equality laws on to the same ashcan of history that contains "separate but equal" and the word "miscegenation," there will be political work to do and victories to achieve. Hollingsworth v. Perry and United States v. Windsor are going to be rallying cries for full marriage equality for a few years to come, but in the end the case that future history students learn about may in fact be whatever Adam and Steve v. Texas case the court has in its near future. But the only way the Supreme Court is ever going to issue a Loving v. Virginia ruling to strike down what remains of DOMA is if the entire country is clearly and irrevocably politically ready for such a momentous decision. And that means more states changing their laws in the meantime.
The good news is that, from this point forward, we're going to be winning more victories than the opponents of marriage equality. A lot more victories, in fact. And winning them will have the added amusement of turning a wedge issue which has been used against Democrats for decades against Republicans. Call it icing on the wedding cake.
[Program Note: Because marriage equality is such a personal subject, I began writing today by reviewing what I had previously written on the subject over the last seven years. But I didn't want to clutter up the article above with a bunch of self-referential links. So instead, I'm providing them here in a bunch, if anyone's interested in reading about my own evolution on the subject. The very first blog post I ever wrote, almost exactly seven years ago, used the term "gay marriage" in its third sentence. Since then (in chronological order), I have revisited the subject of marriage equality many times, most notably when I came out in favor of polygamy, polyandry, polygyny, or polyamory (take your choice) as the next marriage equality issue of our time, quite seriously asking the question: "If you support gay marriage, could you also support polygamy? If so, why? If not, why not?" When the Proposition 8 case first began to move, I mistakenly predicted that it would indeed be a sweeping win for marriage equality, back in 2010. Last year, I began making the observation that Democrats were set up to begin winning the culture wars. By the end of the year, after the two cases had been taken up by the Supreme Court, I was cautioning that the DOMA case was much more likely to get a ruling with a sweeping impact than the Proposition 8 case. In March of this year, I predicted that America had indeed reached a tipping point on marriage equality from which there would be no return. The same week, I wrote of my own personal evolution on gay rights in general, and how as recently as 2005 I was wrong on reading the politics of it being a good issue for Democrats. In the last few months, I wrote again about how the Republican wedge issues were losing their edges, and how I was cautiously optimistic about the rulings the Supreme Court announced today. Not surprisingly, the closer we got to today's ruling, the better my predictions got as to what was going to happen. I join with all marriage equality supporters across the land in celebrating today's victories, and optimistically look forward to fighting the good fight in state after state until we achieve true marriage equality across the land for everyone!]
-- Chris Weigant
Cross-posted at The Huffington Post
Follow Chris on Twitter: @ChrisWeigant
OK, to all -
I am sitting down to address all the comments reaching back to last week, before I left for the Netroots Nation conclave. I had a great time, by the way, and made lots of contacts and had lots of fun. Met a few senators, shook the hands of a few folks who will be senators in the very near future, and generally got my money's worth.
In any case, check back to articles for the last week for new comments from me, and apologies for the delay. You HAVE all been behaving yourselves, hmmm?
-CW
CW-
Just have to say I liked your opening paragraph so much that I made it my FB status today:
"Yesterday DOMA was repealed. Today, my marriage is the same."
I've had some great discussions with religious people and I've found that once you help them realize that there is actually no attack on them, they're fine with the idea of gay marriage.
Which is, naturally of course, why the opposition has adopted the fake 'marriage/religion is under attack' approach.
-David
You HAVE all been behaving yourselves, hmmm?
"I have half a mind to deny that!!"
"I deny that you have half a mind.."
-M*A*S*H
:D
Michale
I've had some great discussions with religious people and I've found that once you help them realize that there is actually no attack on them, they're fine with the idea of gay marriage.
I am constrained to point out that, if you have a discussion with the rank and file gay people, they would be fine with a union that has all the rights and benefits of a traditional religious marriage..
As it seems to be with just about everything, it's only the "leaders" and professional Left/Right wankers that agitates things..
You have said so yourself...
You and me get together, we could solve the countries problems by the time we went thru a case of beer... OK maybe 2 cases, cuz I drink fast :D
Put people like Pelosi/Reid and Boehner/Issa together and they would be hard pressed to agree that water is wet and the sky is blue..
"Water is wet, sky is blue, women have secrets."
-Bruce Willis, THE LAST BOY SCOUT
:D
Michale
nypoet/Michale,
On a quick Star Trek aside, I just wanted to share an article written by George Takei about the decisions yesterday ...
http://www.washingtonpost.com/opinions/george-takei-a-defeat-for-doma--and-the-end-of-ick/2013/06/27/d3c986dc-dd10-11e2-9218-bc2ac7cd44e2_story.html
One of the things I forgot about was how controversial Captain Kirk kissing Lieutenant Uhuru was at the time.
Just posting to riff on the Star Trek theme from last article.
-David
As much as I like and respect Takei, I was very disappointed in him at the William Shatner Roast..
Maybe that's how those things are, but for Takei to join in such blatant homophobic attacks...
well, it just doesn't seem to me that he has any moral authority here...
Michale
I also think it's hilarious how many of the Dems who are lauding the SCOTUS decision on DOMA are the EXACT same ones who VOTED for DOMA...
You would think they would be embarrassed to display such blatant hypocrisy...
Michale
I also think it's hilarious how many of the Dems who are lauding the SCOTUS decision on DOMA are the EXACT same ones who VOTED for DOMA.
Good for them! They're capable of admitting their mistakes.
-David
"Creativity is allowing yourself to make mistakes. Art is knowing which ones to keep." - Scott Adams
Good for them! They're capable of admitting their mistakes.
Oh yea... They are just admitting they made a mistake.
It CAN'T be that it was politically expedient and advantageous back then to vote FOR discrimination....
No, of course not.
It HAS to be that "they made a mistake"...
That must be it...
Remember....
AT night...
Not LAST night.... :D
Michale
"The fact that you can’t sell your daughter for three goats and a cow means we’ve already redefined marriage." - Ken O'Neill via George Takei
http://www.huffingtonpost.com/ken-oneill/three-goats-and-a-cow_b_1560024.html
-David
"The fact that you can’t sell your daughter for three goats and a cow means we’ve already redefined marriage." - Ken O'Neill via George Takei
I never said he wasn't funny! :D
Michale
Michale -
Haven't read these comments yet, so apologies if you've already seen it:
Sulu on SCOTUS and gay marriage. Excellent article!
-CW
David [2] -
Thanks for the kind words! I thought about taking that first paragraph out, because it seemed sorta tangential, so I'm glad to see someone liked it...
Michale -
2 cases of beer? Or 2 cases of Keystone Light?
Heh. Couldn't resist.
David [5] -
Aha! Someone else saw that Sulu article!
:-)
Two things -- he does an excellent job of pointing out what people were saying about interracial marriages at the time. And 2, the first interracial kiss on TV (on Star Trek) was so controversial that it had to be on an episode where both Kirk and Uruhu were mind-controlled by an alien species (so people could say "well, it wasn't really them kissing, it was the aliens). Sad but true...
-CW
2 cases of beer? Or 2 cases of Keystone Light?
Hay now! Let's keep them above the belt! :b
Michale
Michale -
Just making sure we agree on the definition of terms.
Heh.
-CW
Just wanted to mention that the "hypothetical" case of "Adam and Steve" has actually already happened (except fot the lawsuit part). A same-sex couple legally married (I don't remember exactly where, but I think it was MASS.) moved to Texas (you got that part right) and then tried to get a divorce. The state refused to process their divorce paperwork because it didn't recognize their marriage. This happened a few years ago. I don't know the final outcome, but I remember seeing the initial report on the news.
PD,
So, if I understand the law correctly, Adam and Steve were no longer married when they moved to Texas..
So, they don't NEED a divorce!!
Think of all the money they saved!!! :D
Michale
Just making sure we agree on the definition of terms.
Yea, just give it an extra TWIST to make sure it's in good! :D
Michale
Pastafarian Dan -
Now, see, I didn't realize there were Pastafarian fans on the site!
Quoting from Wikipedia for those not aware of the Church of the Flying Spaghetti Monster (praise His Noodly Appendages...):
"The Pastafarian conception of Heaven includes a beer volcano and a stripper factory. The Pastafarian Hell is similar, except that the beer is stale and the strippers have sexually transmitted diseases."
Heh. Gotta love that part...
Ahem. Where was I?
Oh, right. Yes, I based Adam and Steve on my vague memories of the Texas case (I think you're right, I think they were from Massachusetts... I wrote an article in the last two weeks where I first introduced the fictional case, and I think I used "they were married in Massachusetts" in that example). The Texas judges refused to hear the case and threw it out of court, on the grounds that the two were not married in the first place, as far as Texas was concerned.
There will have to be a post-Windsor case which matches the specifics in some way (it doesn't necessarily have to be divorce, some couple could sue a state over their income tax returns so they can check the "married" box). What will likely happen is that there will be dozens of cases, and the ACLU and those supporting the concept will pick a perfect "test case" to move through the appellate process. What I wonder is if the high-powered anti-Prop-8 attorney team will get back together for the next big test case.
Michale -
While you're right about the outcome (since they weren't married as far as Texas was concerned, they didn't need a divorce), remember that divorce is mostly about dividing the stuff up. And when doing so, sometimes a court is a handy referee.
-CW
And when doing so, sometimes a court is a handy referee.
Two words...
Arbi tration :D
There are other legal remedies that would actually be a LOT cheaper than a divorce...
But don't tell me, let me guess..
Gay activists won't feel "equal" if they can't enjoy all the pain and acrimony of a "real" divorce..
I say that half in jest.. But only half... :^/
Michale
I posted this in a previous commentary on this subject.. But it seems more applicable in this commentary.. So please forgive the duplication..
Postulate a scenario where everyday American couples in the here and now are offered a choice.
They could have a religious church wedding that would cost them tens of thousands of dollars and they would get a shiny certificate (suitable for framing) announcing their marriage.. They would have all the rights and benefits that come with a traditional marriage..
OR
They could go down to the county courthouse and for $29.95 (multi couple discounts available, fee increase on weekends and holidays) they can have a union. They would get a shiny certificate (suitable for framing) that would announce their union. Said union would have all the rights and benefits that are part and parcel to a traditional religious marriage...
Now, don't you think that a good portion of those couples would JUMP at the chance to save tens of thousands of dollars??
Do you think ANY of those couples would agonize over the fact that their union is not a religious marriage???
Speaking for myself personally. I have been married over 30 years.. And I know I speak for my wife when I say that we really wouldn't give a rat's patootey if we called our union a marriage or a union...
It simply does not matter...
Just as it shouldn't matter to gay people... IF their goal is equality, it shouldn't matter one damn bit..
Michale
IF their goal is equality, it shouldn't matter one damn bit.
If the goal is equality, they should have the same rights and status as anyone else.
Equality equals "="
It doesn't mean here's another option that we've designed just for you because you're gay.
Now you should accept it because otherwise you'll offend some people who just happen to hate you.
Should black people not be allowed to inter-marry because they offend some people who just happen to hate black people?
I can see no reason why people should accept inequality because it just happens to offend some people. If that were the case, we'd have all kinds of legislated inequality in this country.
-David
p.s. I'd totally be happy with the $29.95 marriage as long as it's my right to be able to have the traditional marriage if I wanted it.
If the goal is equality, they should have the same rights and status as anyone else.
A marriage and a union WOULD have the same rights and status as anyone else.
Just not in the eyes of the Church..
But gay activists WANT to be the same as everyone else in the eyes of the Church..
Which is why they are fighting for acceptance and not equality..
It doesn't mean here's another option that we've designed just for you because you're gay.
It's designed for ANYONE who doesn't want all the religious felgercarb associated with a religious marriage... See comment #21
Should black people not be allowed to inter-marry because they offend some people who just happen to hate black people?
I would venture to say that, in the here and now, there are a LOT more black people than white people who have a problem with a black/white union..
But that's a whole 'nother argument...
p.s. I'd totally be happy with the $29.95 marriage as long as it's my right to be able to have the traditional marriage if I wanted it.
That would be up to the church you wanted it in, now wouldn't it?? :D
I can see no reason why people should accept inequality because it just happens to offend some people. If that were the case, we'd have all kinds of legislated inequality in this country.
We DO have "legislated inequality in this country"...
It's called AFFIRMATIVE ACTION...
Mebbe ya have heard of it... :^/
Michale
That would be up to the church you wanted it in, now wouldn't it?? :D
Not really. Last time I checked churches weren't issuing marriage certificates.
They still look like they're coming from state governments.
Are you sure marriage is a religious institution? Because it looks a lot like a government institution.
-David
p.s. I'd totally be happy with the $29.95 marriage as long as it's my right to be able to have the traditional marriage if I wanted it.
Let's delve into this a little further..
Postulate a scenario where you have blue eyes and your prospective bride has green eyes..
You approach a church because you want a religious traditional wedding..
The church official says to you, "Sorry. We don't support inter-eye-color marriages. We're not going to allow you to have your wedding here."
You now, have two choices..
Your ego is bruised so you are going to FORCE that church to have your wedding...
OR
You can think (rightly) what a bunch of jerks and go somewhere else where the people are a little less... MAGOO...
Apparently, the gay activists think the former is the best option... :^/
Michale
Are you sure marriage is a religious institution? Because it looks a lot like a government institution.
If you want to try and make the case that there is nothing religious about marriage in the here and now, by all means. :D
Make that case...
Marriage is first and foremost, a religious institution..
I, ____, take you, ____, to be my (husband/wife). I promise to be true to you in good times and in bad, in sickness and in health. I will love you and honor you all the days of my life.
I, ____, take you, ____, to be my lawfully wedded(husband/wife), to have and to hold, from this day forward, for better, for worse, for richer, for poorer, in sickness and in health, until death do us part.
"You have declared your consent before the Church. May the Lord in his goodness strengthen your consent and fill you both with his blessings. What God has joined, men must not divide. Amen."
Dearly beloved, we are gathered together here in the sight of God, and in the face of this company, to join together this Man and this Woman in holy Matrimony; which is an honourable estate, instituted of God, signifying unto us the mystical union that is betwixt Christ and his Church: which holy estate Christ adorned and beautified with his presence and first miracle that he wrought in Cana of Galilee, and is commended of Saint Paul to be honourable among all men: and therefore is not by any to be entered into unadvisedly or lightly; but reverently, discreetly, advisedly, soberly, and in the fear of God. Into this holy estate these two persons present come now to be joined. If any man can show just cause, why they may not lawfully be joined together, let him now speak, or else hereafter for ever hold his peace.
Seems kinda hard to separate religion from a traditional marriage....
That wouldn't be a problem with a non-religious union..
I'm just sayin'....
Michale
Marriage = "HOLY" matrimony
Union tells religion to take a hike..
There ain't no way around the facts, eh? :D
Michale
You can think (rightly) what a bunch of jerks and go somewhere else where the people are a little less... MAGOO...
Heheheh.
I'd be ok with that. So long as my marriage was recognized as a marriage everywhere in our country.
Heck, I certainly wouldn't want someone who was a racist idgit as a reverend.
Marriage = "HOLY" matrimony
Sure. But which religion are you going to choose?
What about those religions that are ok with gay marriage?
Aren't you offending them by saying "god hates fags!"?
Why should you choose not to offend the jerks?
Just because some people find something offensive is not really a good reason to deny anyone a right.
Let's face it, marriage is also a government institution. It's both.
So why should one particular religion determine the definition of marriage?
Why not go with the kinder, less jerkier religious definition?
Just some things to think about ...
As I've mentioned, I'd be fine if the ONLY government recognized option was a civil union. Then churches could "marry" people all they wanted. You'd have church recognition and have to get your civil union papers from the government.
But as long as marriage is also recognized by the government, it shouldn't discriminate.
That's equality. Period.
-David
I'd be ok with that. So long as my marriage was recognized as a marriage everywhere in our country.
And, as you said, you would ALSO be fine with it recognized as a union..
As long as the union is not discriminated against in the eyes of the law and the government..
Thereby proving the wisdom of Commander Spock
"A difference which makes no difference IS no difference"
Michale
Here is why I don't understand the logic of the issue.
Gay people want a marriage that is unfettered by religious bigotry and is completely equal to a traditional religious marriage in the eyes of the government and the law..
And that EXACTLY what a union would be...
Yet, that isn't good enough..
Gay activists want a traditional religious marriage...
Michale
Gay people want a marriage that is unfettered by religious bigotry and is completely equal to a traditional religious marriage in the eyes of the government and the law.
They want what everyone else is able to have.
Even atheists.
-David
They want what everyone else is able to have.
Exactly..
Acceptance...
And it just ain't going to happen in the here and now....
Michale
Acceptance...
And it just ain't going to happen in the here and now....
acceptance is not just moral. if someone doesn't want to accept you into their homes and hearts, that's their business and can't be legislated. but if they don't want to accept that you have the same rights they do, that's a problem. it's not just about the name.
"marriage" currently has over a thousand protected rights, and every state has to recognize and accept those rights, regardless of where in the country you go. civil unions are state-defined and established piecemeal. when the federal government decides to establish a national policy toward civil unions that ensures precisely equal treatment to civil marriage in all state and federal legal proceedings, then we'll talk about what exactly is in a name.
~joshua
Joshua,
acceptance is not just moral. if someone doesn't want to accept you into their homes and hearts, that's their business and can't be legislated.
EXACTLY...
And gay activists are fighting to be accepted into the house of the lord...
It just AIN'T going to happen..
when the federal government decides to establish a national policy toward civil unions that ensures precisely equal treatment to civil marriage in all state and federal legal proceedings, then we'll talk about what exactly is in a name.
Again.. EXACTLY
I completely and unequivocally agree...
My point is that if the gay activists were to fight for a UNION that has all the LEGAL rights and benefits as a religious marriage, they would have a lot better fight/argument to make..
But, by fighting to force the Church to accept them, they are fighting a losing battle..
They want to wrestle the idea of marriage away from the church...
They are reacting out of ego and not logic..
Logically speaking, they should fight the fight they CAN win and not the fight they WANT to win..
Fight for UNIONS that have all the same rights and benefits as a religious marriage..
I'll fight side by side with them for that...
But if they want to fight to save their egos, they are on their own...
Michale