What the DOMA and Prop 8 Cases Mean

Anne here.

It’s not over.

Yes, we got a victory in the DOMA case. Mostly. We also – pretty much – got a victory in the Prop 8 case. But there remains much work to be done.

For one thing, Same-sex marriage is not the law of the land. Each state can still discriminate. Some states have laws on the books – some even in the form of constitutional amendments – that say they will not recognize marriages performed in other states between two people of the same gender. Some states have other laws that discriminate against people who fall somewhere other than “strictly homosexual” on the sexuality spectrum.

DOMA barred the federal government from recognizing the marriages of same-sex couples. Wednesday’s ruling strikes down that provision, but leaves the question open as to whether states must recognize such marriages, not to mention whether states must perform them. The language of both cases lobbed the ball squarely back to the states, and emphasized that if a state has a law that grants a civil right, it cannot then take it away. But what if that civil right has never existed in the state?

And even though DOMA is dead, there are still worrying details as to how things will work. Especially worrying is how the case affects the rights of same-sex couples who live in states where their marriages aren’t legal, or aren’t recognized.

I’m not going to spend hours in this space analyzing the cases and what they mean. Plenty of others have already done that and will continue to do that. The takeaway is that Wednesday’s decisions underscored state’s rights in a manner almost unprecedented since we fought a war over it. That means proponents of equality need to shift their focus from the Supreme Court back to the individual states. Especially in red states, we’ll have to work very hard to achieve the kind of equality the thirteen progressive ones have ushered in. So, instead of adding my analysis to the infinite number of other analyses out there, I’m going to get to work for equality where it doesn’t exist, help others in their own quests for equality, and pitch in where I’m really needed.

Because, to paraphrase Martin Luther King, Jr., I have a dream. My dream is that all individuals, regardless of race, religion, sexual orientation, or gender identity will some day be treated equally under the law and in every environment. And when I go for weeks without posting here, you can rest assured it’s because somewhere offline, I’m working in the trenches to make that dream come true.

Yesterday, for example, two of my friends took ballot language I wrote to the Attorney General’s office to get it approved. Once it is approved, we’ll be pestering people at every Wal-Mart in the state to sign a petition to get this initiative on the 2014 ballot. We’re going to need about 78,000 signatures. This is the first step toward striking Arkansas’ Amendment 83 – the ban on same sex marriage.

Yesterday, when my friends took this language to the Attorney General’s office, the press covered it. Judd Mann, one of the co-chairs of the organization, said:

We are excited the United States Supreme Court has found DOMA unconstitutional. We applaud our federal government, and now we urge our state government to recognize equality for all Americans must mean equality for all Arkansans. In the Declaration of Independence, our Founding Fathers stated that all men have the rights of life, liberty and the pursuit of happiness. When all Americans share those same human rights, only then are we truly are free.

Amendment 83 does more than just deny marriage equality with its prohibition on same-sex marriage. It also makes it state law not to recognize civil unions or same-sex marriages legally entered into in other states.

Judd Mann, the guy who made that statement, is a high school teacher. He’s also a gifted artist and the devoted father of three fantastic kids, all of whom know their dad is gay and all of whom are devoted right back at him. He is in a relationship with Kevin, a wonderful man who adores Judd’s kids and would also be a great father to them. Kevin is still in the closet, hiding from close and extended family, when it comes to both his sexuality and his non-belief. When the children are with Judd, Kevin can’t spend the night at the home he and Judd share because they aren’t married. That’s Arkansas morality law in action – it’s not written anywhere except in countless court orders and dusty old casebooks, but it is the policy of every court in the state, including the Arkansas Supreme Court and Court of Appeals.

We live in a time when morality is changing. When I was in high school in the 1970′s, a girl who found herself pregnant had three options: abortion, disappear for a  few months on a “visit” somewhere else as soon as she noticeably gained any weight, drop out of school and marry the teenage father of her child (perhaps at the proverbial barrel of her own daddy’s shotgun), or have the baby without the benefit of marriage and face condemnation of everyone around her. I went to two different high schools, and I knew girls at both places who chose each of these options. Today, girls don’t “mysteriously” disappear for months on end amid pregnancy rumors. Their fathers are less likely to point shotguns at their teenage boyfriends. And condemnation of a mother who isn’t married to her child’s father is getting rarer.

Moral standards have changed in other ways, too. More and more frequently, couples live together, have children together, buy homes together, and make lives together without being married. Marriage isn’t dying, by any means, but in an age where divorces are easier to plan than weddings, marriage isn’t a necessity, either.

Marriage is a huge statement of commitment and devotion, and one that our government encourages with legal and financial benefits. To those who want that legally binding contract with all of its ill-defined terms and all of  its well-defined benefits, it means everything. It’s more than a pretty white dress, a party for the couple’s friends and family, and an awesome vacation somewhere exotic. It’s a public and personal statement of “we’re in this together.” (Of course, to some people it really is all about the dress, the party, and the trip. And for those people, there are divorce lawyers a-plenty when the blush fades from the rose.)

The bottom line, though, is that marriage and other familial relationships do not always exist in the same form that they did thirty-five years ago, and our culture accepts that. A hundred and thirty-five years ago, one could assume that the father would get custody of the children in the unlikely and rare event of a divorce. That’s been turned on its head on both counts: divorce is common, and the kids tend to go with mom. A thousand years ago, divorce was so rare it was virtually nonexistent. Two thousand years ago, marriage tended to be a legal contract between two families, or between a man and whatever women he could afford to pay a bride-price for, and the murder of his wife went unpunished because he was expected to “discipline” her. In some places that is still the case today. Five thousand years ago… well, we’ve all seen the infographic.

A question I see repeatedly in Internet forums is why heterosexual nontheists embrace the marriage issue as their own. It may be that everyone reading this blog knows the answer to that already, but for those who might not, I’ll explain: the “traditional marriage” argument is based on modern theistic interpretations of a religious book cited by people who don’t seem ever to have read it, or who, if they claim to have read it, cherry-pick the parts they like and disregard the parts they don’t – all the while asserting the whole thing to be the infallible, ineffable word of their omniscient deity.

Ditto the homophobes.

Ditto the anti-choice proponents.

And we don’t live in a Christian theocracy, no matter how loudly the Rick Perrys and Sarah Palins and Rick Santorums and their followers wish we did or claim we do.

When a society’s values change to become more open and tolerant of differences, it becomes more inclusive and healthier.

And to those who say religion and superstition do no harm, let me use the words of my friend Kevin, who remains in that uncomfortable closet for the sake of family relationships:

As a child I was terrified of dying. I fell off my bicycle once and hurried home to make sure I didn’t need to go to the hospital. I stepped on a broken bottle wading in a creek with my best friend, and he had quite a time convincing me I wouldn’t bleed to death. I slept curled up in a ball and breathed very slowly so if Bigfoot came he might think someone had already eaten me. I wouldn’t sleep under a window lest it break for some reason and a shard stab me. I had a recurrent nightmare that Satan came to get me. Mom couldn’t rescue me. She just kinda shrugged like, “If he wants you there’s nothing I can do.” Why? Because God had never “saved” me. And I liked boys. I had to be careful not to die before God saved me and made me straight. So before you tell someone they’re ruining their children’s lives by not teaching them about the bible, you should probably go make sure yours aren’t lying awake worrying about burning in hell for eternity.

I have a dream that some day, little children won’t lie awake thinking they are “bad” because of feelings and thoughts they can’t control. Let’s all work together to make that dream come true.

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Got a legal question? Email me at anne@aramink.com. I’m a lawyer, but there’s only a 2% chance I’m licensed in your state. Whether I answer your question or not, sending me an email or reading this blog post does not create an attorney-client relationship between us. I’m on Twitter as @aramink, and you can see my regular blog at www.aramink.com, where I write book reviews, ruminate on Life, the Universe, and Everything, and occasionally – frequently – rant about Stuff.

  • Sarah-Sophia

    I do want gays to be allowed to be married but it is wrong for the government to give benefits to married couples (gay and straight). Being unmarried is not a vice that should be taxed.

    • viddy_well

      I think there’s an argument that combining people into a household has a positive effect on sustainability, much like carpooling, and should be incentivized as such. I haven’t looked into it much, though.

    • doninkansas

      I think you are right about this, Sarah-Sophia. it does not some right that single people should have to subsidize choices made by married people. in my opinion, it is no different than we non-believers having to subsidize religious groups by giving them tax free status. I do understand the points made by viddy-well below, but it still isn’t right of just. and if you are going to look at it that way, then single people should be the ones getting the tax breaks, as our expenses our higher, we tend to cost the taxpayers less in regards to services needed and we also have less discretionary income.

  • Judd Mann

    During the interviews, I kept getting asked, “Do you know how hard this is going to be? This is Arkansas.” It will be hard, but the fight for equality is worth our time and effort.
    “Blow, wind! Come, wrack! At least we’ll die with harness on our back.”
    Macbeth Act V, Scene 5

  • Good and Godless

    I considered Levirate marriage as Deuteronomy 25 5:10, not Genesis 38.

    I like the part about not wearing one shoe, (in a Tom Hanks kinda way) but then I am creeped out by reading on to 11:12. I’d show pity.

  • GuestPoster

    Wednesday’s ruling strikes down that provision, but leaves the question open as to whether states must recognize such marriages. . .

    Article 4 Section 1: And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

    There is no question. The states that do not have to recognize the legality of same sex marriages that are performed in states where they are legal because Congress exercised the above authority and granted states the right to ignore the “full faith and credit” clause of Article 4 Section1.

    But what if that civil right has never existed in the state?

    Then that civil right will not be granted to citizens of that state until the state legislature grants them that right or the courts rule that that right exists or the remaining clauses of DOMA are repealed and the states are forced to recognize same sex marriage.

    Especially worrying is how the case affects the rights of same-sex couples who live in states where their marriages aren’t legal, or aren’t recognized.

    They will be able to collect any Federal benefits that are due them but they will not be able to collect any state benefits as a result of living in a state that doesn’t recognize or outlaws such unions.

    Sorry, this was only a victory for California and those couples that live in those few states that recognize same sex marriages. Otherwise, it’s going to be a long hard slog through the courts of the remaining 38 states to overturn the discriminatory laws they have on the books. :-(


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