Huffington Post – Marriage Equality’s Giant Leap Forward

Marriage Equality’s Giant Leap Forward
Posted: 06/26/2013 8:19 pm

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!]

Los Angeles Times – Gay marriage ruling: Supreme Court finds DOMA unconstitutional

Gay marriage ruling: Supreme Court finds DOMA unconstitutional

By David G. Savage
June 26, 2013, 7:06 a.m.
WASHINGTON — The Supreme Court struck down a key part of the federal Defense of Marriage Act on Wednesday and declared that same-sex couples who are legally married deserve equal rights to the benefits under federal law that go to all other married couples.

The decision is a landmark win for the gay rights movement. It voids a section of the law known as DOMA, which was adopted with bipartisan support in Congress in 1996 to deny all benefits and recognition to same-sex couples.

At that time, no state permitted gays and lesbians to marry. Now, 12 states and the District of Columbia authorize same-sex marriages.


Justice Anthony Kennedy, speaking for the 5-4 majority, said DOMA was unconstitutional because it violated the right to liberty and to equal protection for gay couples.

“By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute” violates the Constitution, he said

Dissenting were Justices John Roberts, Antonin Scalia, Samuel Alito and Clarence Thomas.

The ruling means that more than 100,000 gay and lesbian couples who are legally married will be able to take advantage of tax breaks, pension rights and other benefits that are available to other married couples.

Four years ago, several gay couples who were married in Massachusetts launched a lawsuit to challenge DOMA, arguing it denied them equal protection of the laws. They won before a federal judge in Boston and before the federal appeals court there.

DOCUMENTS: Supreme Court decisions on DOMA, Prop. 8

Their win prompted the Obama administration to switch course and join with the challengers, who said the law was discriminatory. House Republicans voted to take up the legal defense of the law.

When the issue reached the Supreme Court, the justices voted to decide a case brought by Edith Windsor, a New York widow who was sent a $363,000 estate tax bill by the Internal Revenue Service after her wife died in 2009.

The decision leaves in place another provision in the law that says no state is required to recognize gay marriages performed in any other state. That provision was not under challenge.

ADVOCATE.COM – Sen. Lisa Murkowski Endorses Marriage Equality

Sen. Lisa Murkowski Endorses Marriage Equality
The Alaska senator comes out in support of marriage equality in a heartfelt op-ed posted on her Senate website.

Republican senator Lisa Murkowski of Alaska has endorsed same-sex marriage, according to an op-ed posted to her Senate website Wednesday.

In the article, Murkowski recounts how an Alaskan same-sex couple, a military family with four adopted children, factored into her decision to come out in support of the cause. Witnessing the sacrifices of this couple and learning of the numerous ways the lack of legal recognition of their union could tear the family apart, Murkowski concluded, “This first-class Alaskan family still lives a second-class existence.”

“With the notion of marriage — an exclusive, emotional, binding ‘til death do you part’ tie — becoming more and more an exception to the rule given a rise in cohabitation and high rates of divorce, why should the federal government be telling adults who love one another that they cannot get married, simply because they happen to be gay?” asked the senator, in the op-ed titled “Murkowski Shares Thoughts on Marriage Equality With Alaskans.” “I believe when there are so many forces pulling our society apart, we need more commitment to marriage, not less.”

Murkowski joins a short list of Republican politicians who have come out in support marriage equality, which includes U.S. senators Mark Kirk of Illinois and Rob Portman of Ohio, and Florida congresswoman Ileana Ros-Lehtinen.

In an interview with the Washington Blade, Human Rights Campaign president Chad Griffin called Murkowski’s op-ed a “courageous and principled announcement.”

“We hope other fair-minded conservatives like Senator Murkowski stand up and join her,” Griffin said. “Alaska may be nicknamed ‘the Last Frontier,’ but we’ve got to make sure that LGBT Alaskans don’t have to wait to find justice.”

Murkowski concluded her statement with a clear endorsement of marriage equality, coupled with a call for federal government to get “out of the way” of its progress.

“Countless Alaskans and Americans want to give themselves to one another and create a home together,” she wrote. “I support marriage equality and support the government getting out of the way to let that happen.”

Reuters -After court rules, California gay marriage fight may go on

After court rules, California gay marriage fight may go on


By Peter Henderson

SAN FRANCISCO | Wed Jun 19, 2013 1:11am EDT
(Reuters) – The fight over legalizing gay marriage in the most populous U.S. state may go back to the ballot box in 2014 with California voters asked once again to settle the matter even after the Supreme Court’s expected ruling this month on the issue.

Experts believe the top court is unlikely to proclaim a national right to same-sex marriage in its decisions. The court is set to rule on a challenge to California’s ban on same-sex marriage and on a provision of federal law denying certain benefits for married same-sex couples.

At issue is California’s 2008 prohibition on same-sex marriage, known as Proposition 8. Lower federal courts struck down the ban, and a high court majority appears likely to rule in a way that would affect only Californians.

A vast array of legal issues, from the procedural question of who can legally defend a ballot proposition to more consequential questions of states’ rights, leaves room for continuing uncertainty over the fate of Proposition 8. That has prompted each side to prepare a Plan B.

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California could help to shape the national agenda again.

California voters in 2008 ended a summer of court-approved gay marriage by adopting Proposition 8. The proposal, backed by 52 percent of voters, changed the state constitution to define marriage as between a man and a woman.

That enraged and energized the national gay rights movement while offering social conservatives proof that their message resonated even in a state known for its liberal leanings.

For gay marriage supporters, buoyed by laws permitting gay marriage in now 12 of the 50 states and the District of Columbia, a California ballot initiative would be a chance to recover from their biggest loss.

For gay marriage opponents, it would be a chance to regain momentum.

“It’s the biggest state in the union. It is a state that has twice voted for traditional marriage, and if we were able to prevail here, I think it would be an incredible feat, and would certainly cut the legs out from the inevitability argument,” said Frank Schubert, who led the 2008 campaign to pass the ban.


Social liberals, who are among the biggest supporters of same-sex marriage, generally turn out to vote most in presidential elections, which would suggest the best time to challenge Prop 8 would be November 2016.


But state gay rights groups don’t want to wait, and they universally predict that if the need arose, they would fight at the ballot box in November 2014 when Americans hold midterm Congressional elections and California elects a governor.

“I’ve been talking to a lot of people in the donor community and outside the donor community,” said John O’Connor, the new head of Equality California, the group which led opposition to Prop 8. “There is a sense of readiness,” he said. Groups are ready to launch a coalition, he added.

The 2008 pro-gay-marriage campaign was generally seen as lacking a clear message, ignoring minority groups and bedeviled by complacency that gay marriage support was assured.

“The lessons of Prop 8 have been learned. The lessons of victories have been internalized,” said Kate Kendell, executive director of the National Center for Lesbian Rights.

An Equality California poll this month found 55 percent of likely voters favored gay marriage. However, that is no guarantee; a Field Poll from September 2008 showed 55 percent of likely voters would oppose the Prop 8 ban. Less than two months later it passed.

Schubert is concerned about same-sex marriage supporters’ recent fundraising success. “We can’t go through another year like we did last year where we get outspent four to one,” he said.

The 2008 ballot fight was one of the most expensive in state history, costing more than $80 million, with both sides raising more than $40 million in 2008.

Both sides aim to reach out to faith groups and minority groups, which are especially important in diverse California, and to do so early on. In fact, California groups have been doing grassroots support-building since 2008, in particular aiming to get gays and lesbians to discuss marriage with straight friends and family.
Gay marriage supporters signal they will seek to avoid a long million-dollar signature-gathering campaign to get an initiative on the ballot. Instead they hope Democrats will use their supermajority in the state legislature to put a constitutional amendment on the ballot.

(Reporting by Peter Henderson; Editing by Howard Goller and Cynthia Osterman)