In 1985, when I proposed writing a pro-gay marriage paper based on the US Supreme Court case Loving. v. Virginia, which held that bans on interracial marriage violated the constitution’s equal protection clause, my Yale Law School professor told me flatly that the idea was preposterous, and that I would never see gay marriage in my lifetime.
Well, as Alanis Morissette once said, I’m still alive. And twenty-seven years later, gay marriage has surged forward onto legal and political battlegrounds nationwide and worldwide. With the majority of the American public supporting marriage equality, I am confident that future generations will look back upon our time as the beginning of the end of discrimination against lesbian, gay, bisexual and transgender (LGBT) Americans.
Marriage equality, like most family law in the US, is generally a state issue. Today, six states, Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, and New York, plus the District of Columbia have legalized gay marriage, while thirty-eight states define marriage as a union between a man and a woman only. Those states banning same sex marriage are Alabama, Alaska, Arizona, Arkansas, Colorado, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, Wisconsin, and Wyoming.
A few others have carved out a middle ground.
Delaware, Hawaii, Illinois, New Jersey and Rhode Island do not allow same-sex marriages but allow states civil unions, giving couples state-level spousal rights. Maryland has legalized same-sex marriage but it will not go into effect until 2013. California, Nevada, Oregon, Washington and Maine all provide some level of spousal rights to same sex couples via domestic partnerships.
Incidentally, Iowa’s Supreme Court ruling, proudly noting that Iowa courts granted equality to women and African-Americans before the rest of the country caught up, boldly extending its tradition of equal rights to gay couples, is one of the most stirring court decisions I’ve ever read. We’re Iowa, was the subtext, discrimination is not how we roll.
Conflicts in state laws have created a morass of legal problems for same sex couples.
Many have traveled to gay marriage states that have no residency requirements, married there, then returned home to states that do not recognize their unions. A number of judges such as those in Arizona and Ohio have denied divorces to same sex couples, claiming their marriage was never recognized by the state, leaving them in a state of perpetual “wed-lock,” as marriage equality activists call the legal limbo. Property and custody rights are unresolved for many same sex couples seeking to divorce. And since federal law does not recognize same sex marriages, gay spouses can still be deported, denied social security, tax benefits and many other rights and privileges heterosexual partners take for granted.
Yet public opinion steamrolls on, led by pop culture icons like Lady Gaga, and President Obama, who recently cast off his more careful rhetoric (“I’m evolving”) and announced that he favored gay marriage, period. Woe to any corporate leaders who publicly oppose gay marriage today, as the maelstrom of outrage against Chik-fil-A recently demonstrated.
Politically, the issue will appear on the ballot statewide in four states in November – Maine, Washington, Minnesota, and Maryland. The issue will remain on the state level unless the Supreme Court intervenes, which it may in the coming year. The longstanding battle of Proposition 8 in California has been appealed to the Supreme Court, which, if heard, could abolish states’ right to choose discrimination and create a nationwide decision under the federal constitution’s equal protection clause. The two lower court decisions both held that the federal constitution protects the rights of same sex couples to marry.
As I’ve always believed, we are either a nation that extends equality to all our people, or we are not. Second-class citizenship is repugnant to our sense of who we are: fair-minded, tolerant people. Our core American history includes periodic paroxysms as we recognized women’s rights, rights of racial minorities, and now, rights of our LGBT friends and neighbors. It’s only a matter of time.
As an avid traveler, I have visited many countries that have legalized gay marriage.
Argentina, Iceland, Spain, South Africa, and Canada. (The Netherlands, Portugal, Sweden, Norway, and Belgium do too). None of the anti-equality predictions have come true in any of these lovely places. Their civilizations have not come to an end. Traditional marriage has not been undermined. People are not marrying goats. In fact, everyone I asked about the topic in these countries responded with a big ho-hum: oh, sure, we have gay marriage here, was the tenor of the conversations, whatever. They’re baffled as to why everyone else doesn’t, slightly bemused that the rest of us are still struggling with such a basic human rights issue that once enacted, has little impact outside the population of folks newly permitted to marry.
In South Africa a few months ago, I asked a Zulu cab driver how he felt about living in a country that recognized gay marriage. “I’m not, you know, . . . gay!” he felt the need to interject right away. He added, “I’m not really comfortable with the gay people,” giggling nervously about the topic. But then he considered. “But if they want to marry, we have to let them. We’ve been through so much in our country. We couldn’t get rid of apartheid and then tell these other people they couldn’t have rights too. Everyone has to be a part of our country now. That’s how we have to be.”
Iceland – recently named by the United Nations as the best place in the world to live — not only recognizes gay marriage, its Prime Minister is an out lesbian who married her partner in the capital church in 2010. I asked sheep farmers on my trip there a few weeks ago their thoughts. “Why is the world obsessed with this?” they asked me. “She was the best candidate, so we elected her. No one cared about her sexuality. We didn’t talk about it at all. We still don’t.”
Over half of all Americans now support marriage equality, and two-thirds of young people do, which bodes well for future progress on gay rights. Despite my law professor’s warning, I firmly believe we will see the widespread legalization of gay-marriage in the US in my lifetime, either by court ruling or by popular vote. And one day we’ll be as blasé about it all as Canadians or Norwegians. As Dr. Martin Luther King, Jr. said, “The moral arc of the universe is long, but it bends toward justice.”
The opinions expressed here represent my own and not necessarily those of Avvo.com.
4 comments
andrew edelberg esq.
Good and interesting article. let me know if you need to partner with a sharp Philly lawyer like myself!
Lowell Freeman
So why doesn't "the majority" vote? Prop 8 passed 52.24% to 47.76% and prop 22 passed 53% to 40% in liberal Ca. And the result has been the same in every state that has had the gay marriage issue on the ballot.
Uneeque
The poll was based on national data and not State data.
Uneeque
Same sex marriage produces an ubiquitous challenge to our lives on every level from the daily to the generational. The opposition is not rooted in sexual orientation or activity as it is sourced from our inculcated patriarchal rule that shapes our political and religious institutions. The SNL character "Pat" was a magnet because gender knowledge is necessary for engagement, even for a TV audience. We are trained to act and react based on gender and same sex marriage inherently forces such an approach as useless. We become momentarily paralyzed as we must interact based on character and action, judgments which are almost always formed from gender. Skipping such a fundamental requires personal and social reflections often involving sacrifices many are unwilling to endure. Feminism is a discipline that has made same sex marriage possible and provides empirical evidence cultural norms are not apocalyptic. We are on the cusp of a cultural revolution so pervasive we will not live to see the end results but we are witnesses to keeping the Constitution alive as is our responsibility.