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From The Archives -- Marriage Equality's Giant Leap Forward

[ Posted Tuesday, April 28th, 2015 – 17:08 UTC ]

Today, the Supreme Court heard oral arguments in the case of Obergefell v. Hodges. Now, admittedly the name "Obergefell" is going to be quite a mouthful for future students of constitutional law to stumble over, but then who am I to criticize hard-to-pronounce (or hard-to-spell, for that matter) Germanic last names? Pot, meet kettle, in other words.

Sorry, I do not mean to make light of the historic nature of today's case, far from it in fact. I have to admit being personally stunned at how fast events have developed. Almost exactly two years ago I wrote a column predicting that America had reached the tipping point on marriage equality. I've re-run this column a few times, and last October I pointed out that when I wrote the original article, the following was true:


  • The biggest advance in gay rights was the repeal of "Don't Ask, Don't Tell" in the military.
  • The Defense Of Marriage Act was still the law of the land.
  • Four-fifths of the states had anti-egalitarian marriage laws on the books, and in 30 of them they were enacted by popular referendum -- including in very blue states such as California.
  • Only ten states had full marriage equality.
  • The Supreme Court had yet to rule on the two marriage equality cases before it (I wrote the article after the arguments had been made in the Proposition 8 case and in the DOMA case).
  • Republicans were still almost completely (and vocally) against marriage equality.
  • Nobody knew what was going to happen, legally, or what the next year and a half would bring.

That was in March of 2013, which is not that long ago, especially seen through a historical lens. And now we could be only a few months away from marriage equality becoming the law of the land everywhere in these United States. The progress has been astoundingly swift. Such is the nature of "tipping points," I realize, but even I have been amazed at the speed of the process.

But today, I choose to republish a different article, the one I wrote after the "giant leap forward" decisions overturning the Defense Of Marriage Act and California's Proposition 8 were handed down by the Supreme Court, in June of 2013. The article was taking a victory lap, plain and simple, but in it I speculated on what would happen next (I should note that at the bottom I also provided a mini-archive of links to everything I'd written about marriage equality up to that point, which is another reason I'm republishing it today). The court cases I predicted in the article are pretty close to what was argued in the court today, in actual fact. There were indeed two arguments, one centering on the "full faith and credit" clause, and one centering on the "inherent civil right to marriage" idea.

The part I really got wrong was the timeline. Now, Congress moves incredibly slowly at times. The word "glacial" comes up frequently to describe the pace of legislation. But that is nothing when stacked up against the justice system, where the wheels can grind so slowly it's impossible to see them move at times. I cautiously predicted two years ago that the real "marriage equality for all" case "may be anywhere from five to ten years away." I considered that a reasonable and reality-based prediction, given how slow the courts move. The Defense Of Marriage Act, after all, was signed by Bill Clinton but didn't make it to the Supreme Court until 2013.

And yet, here we are. Two short years later. Over seventy percent of Americans now live in states where marriage equality is the law. The public now approves of the concept of gay marriage at a rate of 6 out of 10. Not only has the court system moved with blinding speed, but so also have the attitudes of the American public. We're ready for full marriage equality. We're ready for the final giant leap forward on the subject. Most people expect Justice Kennedy to vote for it, which will historically sweep away all laws against it. I look forward to writing an updated version of the following column in June, to put this another way.

 

Originally published June 26, 2013

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

 

Follow Chris on Twitter: @ChrisWeigant

 

18 Comments on “From The Archives -- Marriage Equality's Giant Leap Forward”

  1. [1] 
    Michale wrote:

    Most people expect Justice Kennedy to vote for it, which will historically sweep away all laws against it.

    Considering Kennedy's questions, I would not be so sure...

    His one point was dead on...

    The definition of marriage, a man and a woman, has been with us for thousands of years...

    Are we to change it, by your own admission, in the blink of an eye, because a disgruntled group who made a certain lifestyle choice wants it changed??

    THAT is the question facing the SCOTUS....

    Justice Ginsburg has been quoted as saying she regrets her vote in RoevWade because it interrupted the public debate on the issue. Had RvW not gone the way it did, public debate would have continued and, in the long run, been a LOT better for the issue..

    You just know she has to be thinking the same thing with gay marriage...

    Michale

  2. [2] 
    Paula wrote:

    Referencing back to Hillary's 2007 speech, Elizabeth wrote to me:
    Let me know when Hillary starts talking policy until she's blue in the face ... :)

    Today DailyKos linked to this essay from Hillary appearing today: https://www.brennancenter.org/analysis/respect-law wherein she calls for several changes to the criminal justice system in the wake of Baltimore, etc. She also spoke at Columbia U. today on this topic. She talks about income inequality as well, which really is the fundamental problem underlying so many issues today. I'm glad to see it.

    May Bernie Sanders drive her yet more left! There's plenty of room from where things are stuck (on the right) before she becomes remotely extreme. Scales need to pull back the other way -- Go Hillary! Go Bernie! Go Martin O'Malley! Would take any one of them over any of the repub clown contingent.

  3. [3] 
    Michale wrote:

    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!

    Would you consider "true marriage equality" to mean that a man (or woman) could marry their hamster or their dog???

    Could a man (or woman) marry their child or their parent???

    Could man (or woman) marry their car or their computer??

    Could 4, 6 or 10 people of sound mind be married???

    Where does your "true marriage equality" draw the line??

    Ya'all want to change the definition of marriage as it has been known for thousands of years....

    Where do ya'all draw the line??

    Michale

  4. [4] 
    John M wrote:

    Michale:

    Those are all completely irrelevant and silly questions that have been debunked repeatedly as total nonsense.

    "Would you consider "true marriage equality" to mean that a man (or woman) could marry their hamster or their dog???"

    Neither a hamster or a dog is capable of giving any kind of consent let alone even comprehend the concept to begin with.

    "Could a man (or woman) marry their child or their parent???"

    No. Since a parent and child already have a legally recognized family relationship, there is no need to try to establish another one through marriage. Marriage is to establish a legally recognized family relationship between two individuals who previously had no familial relationship.

    "Could man (or woman) marry their car or their computer??"

    Again no. Since an inanimate object can neither give consent nor even comprehend the process to begin with.

    "Could 4, 6 or 10 people of sound mind be married???"

    Not relevant to the question at hand, which only involves the qualifications, intrinsic characteristics and restrictions involving two individuals to marry each other, such as age, race, religion, gender, etc.

    "Ya'all want to change the definition of marriage as it has been known for thousands of years...."

    Also not true. Native Americans have had same sex ceremonies in the past. During the 10th to the 12th centuries the liturgy of the Eastern Orthodox church included same sex ceremonies. Also, modern heterosexual marriage is nothing like heterosexual marriage that existed in prior centuries. Women were the property of their fathers, until they married and became the property of their husbands. Marriage for political reasons was quite common among European royalty, while marriage exclusively for love is a totally modern idea. In fact, the peasant class often went without a formal marriage all together.

    The Christian bible itself contains many examples of men with both multiple wives and as many concubines as they could manage. Some Mormons still use these biblical examples for justifying their plural marriage arrangements. Having more than one wife has also been practiced in China, Africa, and the Arab nations. It is still practiced in parts of the Arab world and Africa.

    To say that the definition of marriage has remained static as only one man and one woman without change for thousands of years is simply not true.

  5. [5] 
    Michale wrote:

    Not relevant to the question at hand, which only involves the qualifications, intrinsic characteristics and restrictions involving two individuals to marry each other, such as age, race, religion, gender, etc.

    But we're changing the definition of marriage....

    So, what's to stop a group from wanting it changed to fit THEIR social lifestyle, be it with hamsters or dogs or computers or cars or 3 or more adults??

    THAT's the whole point...

    The Christian bible itself contains many examples of men with both multiple wives and as many concubines as they could manage. Some Mormons still use these biblical examples for justifying their plural marriage arrangements. Having more than one wife has also been practiced in China, Africa, and the Arab nations. It is still practiced in parts of the Arab world and Africa.

    Yet, those practices are aberrations and universally accepted as not a true marriage..

    NOW ya'all want to claim that they are "true marriages"???

    Ya'all need to get your arguments straight..

    To say that the definition of marriage has remained static as only one man and one woman without change for thousands of years is simply not true.

    Again with the "truth" crap...

    You want to argue TRUTH, yer talking to yourself..

    But the fact that marriage has maintained the same definition (a man and a woman) for thousands of years is fact.

    Your aberrations notwithstanding...

    Michale

  6. [6] 
    Michale wrote:

    Also, modern heterosexual marriage is nothing like heterosexual marriage that existed in prior centuries.

    BFD...

    It's STILL between a man and a woman....

    Michale

  7. [7] 
    John From Censornati wrote:

    It's always amusing to read Republican talking points that indicate their interest in marrying siblings, pets, children, and inanimate objects. As always, projection is their thing. Funniest of all is the suggestion that non-Republicans should care if a Republican marries his gun collection as if it's the rest of us who can't mind our own business.

  8. [8] 
    Michale wrote:

    Marriage is to establish a legally recognized family relationship between two individuals who previously had no familial relationship.

    Really??

    Find me THAT definition posted somewhere prior to 2000 and I'll concede the point..

    Otherwise, yer just making shit up... :D

    Michale

  9. [9] 
    Michale wrote:

    Women were the property of their fathers, until they married and became the property of their husbands. Marriage for political reasons was quite common among European royalty, while marriage exclusively for love is a totally modern idea. In fact, the peasant class often went without a formal marriage all together.

    But it's STILL between a man and a woman..

    So why even bring it up???

    Michale

  10. [10] 
    Michale wrote:

    Regardless, it's not what *I* think that is important..

    It's what Justice Kennedy thinks..

    And he seemed to have a REAL problem with changing the definition that has stood for thousands of years in the blink of an eye because some social misfits get their feelings hurt...

    Michale

  11. [11] 
    Michale wrote:

    Marriage is to establish a legally recognized family relationship between two individuals who previously had no familial relationship.

    Irregardless of the fact that it may or may not be an actual definition, the point is we are CHANGING the definition of marriage..

    So, why not change it so that ANYONE can get married to ANYONE or ANYTHING...

    Why frak around..

    Just change the definition of marriage in such a way that it is "true marriage equality"....

    THAT's the point, isn't it??

    Michale

  12. [12] 
    John From Censornati wrote:

    Those long black guns are really hot. If a gun lover could marry his long black guns, then maybe he'll have visitation rights when Obama grabs them. Republicans should think about that before they demand that lines be drawn. It's bad enough that my 2nd amendment right to bear nuclear arms is restricted. I should at least be able to marry my long black gun.

  13. [13] 
    Michale wrote:

    Exactly...

    And if JFC wants to marry his long black gun, then he should have EVERY right to do so!!

    After all, that is what "true marriage equality" is all about, right???

    "No rules. Just right."
    -Outback

    Michale

  14. [14] 
    Michale wrote:

    And if JFC wants to marry his long black gun, then he should have EVERY right to do so!!

    Com'on JM!!

    Show some compassion!!

    JFC is pining away for his long black gun... JFC wants to be one with his long black gun in wedded bliss..

    Have you no soul!!????

    :D

    Michale

  15. [15] 
    Michale wrote:

    For the record, it was Justice Alito who brought up the notion that marriage could include 4 people...

    The response from the attorney was the same response that was given here..

    "Because that is not how marriage is defined"

    But Justice Alito's point, and MY point is that we are going to court to CHANGE the definition of marriage...

    So, if thousands of years of tradition is to be thrown out the window, why go with half-measures??

    If we're going to change the definition that has stood for thousands of years, the argument for person-hamster marriage or person-long black gun marriage is JUST as valid as the argument for same-sex marriage...

    If the goal is equality than the gay activists would be happy with civil unions that have all the rights and responsibilities of a traditional marriage.

    But the goal isn't equality...

    The goal is acceptance.. To force christians to acknowledge the gay lifestyle...

    And THAT will never happen..

    This country was founded to avoid that very thing...

    Michale

  16. [16] 
    John M wrote:

    Michale wrote:

    "If the goal is equality than the gay activists would be happy with civil unions that have all the rights and responsibilities of a traditional marriage."

    There are several things wrong with that statement that need to be pointed out.

    1.) Separate but equal is NOT equal. That is established fact.

    2.) The civil union option was closed to gays by the anti-gay rights crowd themselves, when they started passing state amendments that not only banned same sex marriage, but civil unions and domestic partnerships and anything equivalent to marriage (their wording) even in places where they already existed.

    3.) Marriage IS a civil union. Holy matrimony is the religious rite. Marriage is the term used for the secular civil union. So why use a different word just to mean the same thing? Unless of course, your whole intent is to make "civil union" something less than an exact equal copy to marriage?

    4.) There are churches that perform same sex religious ceremonies. By you refusing to recognize those as legal marriages, how are you not violating THEIR religious rights and liberty?

  17. [17] 
    John M wrote:

    Michale wrote:

    "If we're going to change the definition that has stood for thousands of years, the argument for person-hamster marriage or person-long black gun marriage is JUST as valid as the argument for same-sex marriage..."

    NO, it is NOT just as valid. You can repeat that over and over gain as many times as you want and it will still NEVER make it true. That's just pure nonsense. You are talking contract law, which is essentially, boiled down, is what marriage is. You cannot have a contract that is legally binding with either a non-living entity or a entity that is not cognizant and capable of either signing the contract or giving consent in the first place. No matter how you want to spin it, your statement is just plain stupid, always was, and always will be.

    "But the goal isn't equality...
    The goal is acceptance.. To force Christians to acknowledge the gay lifestyle...
    And THAT will never happen.."

    Another statement that is false, and never will be true, no matter how many times you want to repeat it.

  18. [18] 
    John M wrote:

    Michale wrote:

    "But it's STILL between a man and a woman..

    So why even bring it up???"

    I brought it up because it REFUTES your contention, totally and completely, that marriage is an institution whose meaning has never changed over thousands of years. It has in fact, changed its definition drastically over the years and continues to do so.

    "Yet, those practices are aberrations and universally accepted as not a true marriage.."

    Again a false statement on your part. Marriage between only one man and one woman by that same standard you just set is also not universally accepted, it could also be considered an aberration also. How can you call plural marriage, an aberration, when it is in fact been accepted by multiple cultures all over the world for thousands of years? That makes NO sense.

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