On this day of celebrations for marriage equality, Heather N. wants to make sure people understand there is still work to be done.
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So hey, The Defence of Marriage Act is dead! Also California’s Proposition 8 has been struck down! The United States has marriage equality. We are near the end of “legal discrimination” in this country! It’s time for everyone to pack up and go home, or maybe party in the streets. We won. Mission accomplished.
Except, when you take a closer look at exactly the Supreme Court’s rulings on DOMA and Prop 8, you realise that the reality is quite a bit more complex than that. Section 3 of DOMA was the bit that prevented the federal government from recognising same-sex marriages in states which have passed state-wide same-sex marriage laws. SCOTUS struck down Section 3, which means that the federal government must now recognise and provide federal benefits for same-sex marriages in those states which have made it legal. Section 2 of DOMA, however, was the bit that allowed other states not to recognise a same-sex marriage licence from another state. Not only was that not struck down, but the Supreme Court has been refusing to hear cases brought against that section. So, for the thirteen-odd states which have same-sex marriage, this news is big. For everyone else, this news really doesn’t change anything.
Since I’m not a legal scholar, I’m not entirely sure what all the different possible rulings on Prop 8 could have been. What I do know is that SCOTUS seems to have taken the easy road out. Instead of ruling on Prop 8 itself, SCOTUS ruled on whether the case brought before it had any merit. Basically, all SCOTUS’ decision did was uphold the decision made by the lower courts. The Supreme Court’s decision didn’t come to any conclusion about the constitutionality of so-called “traditional marriage” laws. In other words, I don’t see how SCOTUS decision on Prop 8 could be used when trying to overturn other state’s bans against same-sex marriage. This ruling applies to California, but not really anyone else.
Taken together with yesterday’s ruling on the Voting Rights Act, these decisions on DOMA and Prop 8 aren’t actually looking like the ultimate victory they at first appear. To quote John Fugelsang’s tweet: “This week the Supreme Court said if you’re gay you can marry, but if you’re gay, black and poor you might not get to vote.” I’d add onto that the addendum that really the Supreme Court said that if you’re gay and living in a state that already passed same-sex marriage legislation, you can marry.
I might also add something onto that about the Supreme Court’s rulings on employment discrimination, were I wittier. If Twitter had more character spaces, I’d also add on something that points out all the LGBT rights and issues which these limited rulings on same-sex marriage don’t address. I’d also talk about how problematic it is that we’re privileging marriage as the pinnacle of human relationships. But considering the character limit, I’d say that Fugelsang quote sums up matters pretty well.
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Maybe I wouldn’t be quite so pessimistic and tempered in my reaction to these SCOTUS decisions if I saw anyone outside the radical queer community responding with anything close to pragmatism. But I don’t, really. I see liberals cheering and conservatives whinging, but I don’t see a lot of measured contemplation of what these rulings actually mean. Worse, actually, I see a lot of lambasting of anyone who isn’t expressing unmitigated enthusiasm. There’s something wrong with that. When a group of people win a small battle, the celebrating shouldn’t be so overwhelming as to drown out those voices who point out the larger war isn’t over.
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photo: aon / flickr
Originally published on Radical Centrist
While acknowledging that your concerns are valid and that we need, in time, to examine the intricacies of yesterday’s court decisions and their ramifications, one opines that we would do well to allow ourselves a few days of celebration before delving into those details in which one finds the devil. Time of enough for that on Monday. Just sayin’…
From what I understand the right to marry is vested in the states so the rulings seem proper based on the law. The federal government shouldn’t fail to recognize a legal marriage and of course shouldn’t intercede in prop 8 because it’s a state issue and the California supreme court would have the last say. You are absolutely correct. Unless the law were to be changed in those states without same sex marriage or somehow it could become a federal matter, same sex marriage will remain unrealized in the states that haven’t passed it. There is work to be done,… Read more »
Marriage isn’t a state issue. Loving v. Virginia was the Supreme Court case which found it illegal for any state to make a law which prohibited interracial marriage…because marriage isn’t a state issue. The many FEDERAL rights that are afforded to someone who is married makes marriage a federal issue. Immigration policies regarding married couples make marriage a federal issue. The Full Faith and Credit Clause of the Constitution, though never actually applied to same-sex marriage laws, at least calls into question whether marriage was a federal issue. So, no, marriage isn’t a state issue. And, even if we pretend… Read more »
As for what activism should come next…well I’m guessing a lot of people will be focusing on a way to get rid of Section 2 of DOMA. (Actually, case in point, the fact that DOMA even exists shows that marriage isn’t a state issue). Personally, I’m becoming ever more wary about the narrow focus of the mainstream LGBT movement on marriage. It seems like a lot of other issues are being left by the wayside…and I’m not a huge fan of the institution of marriage anyway. If we could focus equally on everything that’d be great, but I’m worried after… Read more »
And then once they realize that they will be back on the streets.
Excellent work.
Thanks.