Marriage Equality's Tipping Point




Courts apply heightened scrutiny to forms of discrimination that are
suspect because those kinds of discrimination are likely to reflect
either bias or uncritical acceptance of long-standing inequality. To
have the nation’s president and highest law enforcement agency conclude
that discrimination based on sexual orientation should be approached as
being of dubious validity — like laws that discriminate based on race,
national origin, sex, religion, alienage, or illegitimacy — will send out
ripples, if not waves, touching all laws that continue to oppress
lesbians, gay men, and bisexuals, and will influence many in our nation
to rethink whether those laws should be maintained.

announcement by Attorney General Holder would have made this a red-letter day all by itself. But it turned out to be only one of several
important moves forward for equal treatment of same-sex couples.
U.S. senator Dianne Feinstein announced that she will be introducing a
bill to repeal DOMA. In addition, the Maryland senate advanced
legislation to allow same-sex couples to marry in that state by a
preliminary vote of 25 to 22, all but ensuring passage of that bill, which
the state’s governor has said he will sign. And, on top of that,
Hawaii’s governor Wednesday afternoon signed legislation that will allow
same-sex couples in the Aloha State to obtain all of the state
rights and benefits of marriage (though not yet its status or name).
This follows quickly on the heels of Illinois’ passage of a civil union
law and Tuesday’s election of a new mayor in Chicago who spoke out in
support of marriage equality.

No doubt, the times they are a-changing. Same-sex couples can now legally marry in five states in the
U.S. as well as in our nation’s capital. The courts or attorneys
general of four more states have said that marriages lawfully entered into by
same-sex couples in other jurisdictions should be honored in their
states. Same-sex couples can or soon will be able to obtain civil
unions or comprehensive domestic partnerships in seven additional
states. That means that 16 states and the District of Columbia, where
more than one third of lesbian and gay couples live according to recent census
data, now or soon will provide same-sex couples a route to either full
equality or at least the tangible rights and benefits afforded to
different-sex couples through marriage.

To put this in perspective,
none of this existed only 12 years ago. No other movement for equality
has seen such rapid progress.

There undeniably is still much
work yet to do. DOMA has not yet been voided, and same-sex couples
continue to be denied Social Security benefits, tax breaks, veterans’
benefits, immigration rights, and much, much more, pursuant to DOMA’s
command. Twenty-nine states have amended their state constitutions to
ban marriage by same-sex couples and some have gone even further than
that. There is still no federal law banning employment discrimination
based on sexual orientation or gender identity and expression. LGBT
people continue to be treated unequally in many family courts, by
numerous law enforcement agencies, by large numbers of schools and child
welfare institutions, and by all sorts of businesses.

This is a time to be optimistic. I have been doing LGBT rights work full-time
for more than 25 years. I’ve seen remarkable advances, like Lambda
Legal’s victories in Lawrence v. Texas (striking down all remaining
state sodomy laws), Romer v. Evans (overturning laws that sought to ban
sexual orientation antidiscrimination laws), and Varnum v. Brien
(allowing same-sex couples to marry in Iowa). And yet I don’t think I
ever fully imagined a day quite like we just had, a day when having the
country’s president and Department of Justice proclaiming that
discrimination based on sexual orientation is presumptively
unconstitutional was only one of the reasons to believe that we are
seeing the light at the end of the tunnel along the road to equality for
lesbian, gay, and bisexual people.