Marriage equality: Losing forward
BY Advocate.com Editors
October 28 2004 12:00 AM ET
The following is the second half of a speech Wolfson delivered on September 30 at the National Lesbian and Gay Law Association’s Lavender Law Conference, an annual gathering of attorneys, legal academics, and law students. Find the full speech on the Freedom to Marry Web site.The Union: a House DividedIn past chapters of civil rights history unfolding on the battlefield of marriage, this conversation and this patchwork of legal and political struggles would have proceeded in the first instance—and over quite some time—in the states, without federal interference or immediate national resolution.That’s because historically, domestic relations, including legal marriage, have under the American system of federalism been understood as principally (and almost entirely) the domain of the states.States worked out their discrepancies in who could marry whom under the general legal principles of comity, reflecting the value of national unity. The commonsense reality that it makes more sense to honor marriages than to destabilize them was embodied in the relevant specific legal principle, generally followed in all states—indeed, almost all jurisdictions around the world—that a marriage valid where celebrated will be respected elsewhere, even in places that would not themselves have performed that marriage.States got to this logical result not primarily through legal compulsion, but through common sense—addressing the needs of the families and institutions (banks, businesses, employers, schools, etc.) before them. Eventually a national resolution came, grounded, again, in common sense, actual lived experience, and the nation’s commitment to equality, constitutional guarantees, and expanding the circle of those included in the American dream.But when it comes to constitutional principles such as equal protection—and, it now appears, even basic American safeguards such as checks and balances, the courts, and even federalism—antigay forces believe there should be a “gay exception” to the constitutions, to fairness, and to respect for families. Inserting the federal government into marriage for the first time in U.S. history, our opponents federalized the question of marriage, prompting the passage of the so-called Defense of Marriage Act (DOMA) in 1996.This federal antimarriage law creates an un-American caste system of first- and second-class marriages. If the federal government likes whom you marry, you get a vast array of legal and economic protections and recognition—ranging from Social Security and access to health care to veterans benefits and immigration rights to taxation and inheritance and a myriad of others (in a 2004 report the GAO identified 1,138 ways in which marriage implicates federal law). Under so-called DOMA, if the federal government doesn’t like whom you married, this typically automatic federal recognition and protection are withdrawn in all circumstances, no matter what the need.The federal antimarriage law also purported to authorize states not to honor the lawful marriages from other states (provided those marriages were of same-sex couples)—in defiance of more than 200 years of history in which, as I said, the states had largely worked out discrepancies in marriage laws among themselves under principles of comity and common sense, as well as the constitutional commitment to full faith and credit.When this radical law was first proposed, some of us spoke up immediately saying it was unconstitutional—a violation of equal protection, the fundamental right to marry, federalist guarantees such as the full faith and credit clause, and limits on Congress’s power. Ignoring our objections, our opponents pressed forward with their election-year attack.Now they concede the unconstitutionality of the law they stampeded through just eight years ago and are seeking an even more radical means of assuring gay people’s second-class citizenship, this time through an assault on the U.S. Constitution itself as well as the constitutions of the states.Because they do not trust the next generation, because they know they have no good arguments, no good reason for the harsh exclusion of same-sex couples from marriage, our opponents are desperate to tie the hands of all future generations, and as many states as possible, now.This patchwork—and especially the next few weeks and months—will be difficult, painful, even ugly, and we will take hits. Indeed, we stand to take several hits in the states where our opponents have thrown antigay measures at us in their effort to deprive our fellow citizens of the information, the stories of gay couples to dispel stereotypes and refute right-wing lies, and the lived experience of the reality of marriage equality. While it is especially outrageous that the opponents of equality are using constitutions as the vehicles for this division and wave of attacks on American families, in the longer arc, their discrimination will not stand.Here are a few basic lessons we can cling to in the difficult moments ahead, to help us keep our eye on the prize of the freedom to marry and full equality nationwide, a prize that shimmers within reach.