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Ending marriage discrimination: America in a civil rights moment.

The Library of America's two-volume anthology, Reporting Civil Rights, collected the journalism of the 1940's, '50's, '60's, and '70's, which together described what the day-to-day struggles of those years felt and looked like before those living through that moment knew how it was going to turn out.

Exhilarating, empowering, appalling, and scary. That's what a civil rights moment feels like when you are living through it--when it is uncertain and not yet wrapped in mythology or the inevitability of triumph.

In 2004, our nation celebrated the 50th anniversary of Brown v. Board of Education, the landmark court decision that declared "separate but equal" to be inherently unequal and mandated an end to segregation. But what followed Brown was not the sincere (or even insincere) embrace it gets today. In the words of the time, what followed Brown included legislators in a swath of states declaring "massive resistance;" billboards decrying "Impeach Earl Warren," the then-Chief Justice who wrote the decision; and members of Congress signing resolutions denouncing "activist judges." In fact, pretty much everything we think of today as the civil rights movement--the marches, Freedom Rides, organizing summers, engagement, hard work, violence, legislation--all happened after Brown.

Today, America is again in a civil rights moment, as same-sex couples, their loved ones, and non-gay allies struggle to end discrimination in marriage. A robust debate and countless conversations are helping our nation (in Lincoln's words) "think anew" about how we are treating a group of families and fellow citizens among us. Today it is Lesbian, Gay, Bisexual, and Transgender (LGBT) individuals and same-sex couples who are contesting second-class citizenship, seeking inclusion and equality, and fighting for our country. It is scary as well as thrilling to see the changes and feel the movement.

MARRIAGE--NOT "GAY-MARRIAGE"

It is important for us all to understand that this movement is about marriage, not "gay-marriage." "Gay marriage" is a short-hand term that opponents use to make gay people's families seem different or lesser. The truth is we're working for an end to discrimination in marriage itself. We're working for the same rules and responsibilities, the same protections, the same dignity, the same commitment, and the same opportunity to declare our love for another person with whom we are building a life. Same-sex couples want the equal choice--the freedom to marry--not two lines at the clerk's office yet again for separate and unequal treatment.

In a democracy founded upon the principles of fairness, there is no justice in being barred from marriage, a legal institution regulated by the government through the issuance of marriage licenses. Freedom of religion ensures that each religion can decide for itself whether or not to marry any particular couple, but no religion should dictate to the government who gets a marriage license. If gay people are considered equal citizens when it comes to paying taxes and obeying laws, then we should have access to the same marital rights held by other citizens.

BENEFITS OF MARRIAGE

Most couples marry for love and the desire to reinforce the personal commitment they have made to each other. Most also want the public statement of commitment and support that marriage offers. The intangible benefits that marriage offers include clarity, security, structure, dignity, spiritual significance, and an expectation of permanence, dedication, and stability. Like most non-gay couples, most same-sex couples share these aspirations and needs.

In addition, according to a 2004 report from the U.S. General Accounting Office, there are at least 1,138 tangible benefits, protections, rights, and responsibilities that marriage brings couples and their kids--and that's just at the federal level. Add in state and local law, and the policies of businesses, employers, universities, and other institutions, and it is clear that the denial of marriage to couples and their kids makes a substantial impact on every area of life, from raising kids, building a life together, and caring for one another, to retirement, death, and inheritance. Most of these cannot be secured by private agreement or through lawyers.

Here are just some of the ways in which government's denying the freedom to marry punishes couples and families by depriving them of critical tangible as well as intangible protections and responsibilities in virtually every area of life.

Death: If a couple is not married and one partner dies, the other partner is not entitled to bereavement leave from work, to file wrongful death claims, to draw the Social Security of the deceased partner, or to automatically inherit a shared home, assets, or personal items in the absence of a will.

Debts: Unmarried partners do not generally have responsibility for each other's debt.

Divorce: Unmarried couples do not have access to the courts' structure or guidelines in times of break-up, including rules for how to handle shared property, child support, and alimony, or protecting the weaker party and kids.

Family leave: Unmarried couples are often not covered by laws and policies that permit people to take medical leave to care for a sick spouse or for the kids.

Health: Unlike spouses, unmarried partners are usually not considered next of kin for the purposes of hospital visitation and emergency medical decisions. In addition, they can't cover their families on their health plans without paying taxes on the coverage, nor are they eligible for Medicare and Medicaid coverage.

Housing: Unmarried couples of lesser means can be denied or disfavored in their applications for public housing.

Immigration: U.S. residency and family unification are not available to an unmarried partner from another country.

Inheritance: Unmarried surviving partners do not automatically inherit property should their loved one die without a will, nor do they get legal protection for inheritance rights such as elective share or bypassing the hassles and expenses of probate court.

Insurance: Unmarried partners can't always sign up for joint home and auto insurance. In addition, many employers don't cover domestic partners or their biological or non-biological children under health insurance plans.

Portability: Unlike marriages, which are honored in all states and countries, domestic partnerships and other alternative mechanisms only exist in a few states and countries, are not given any legal acknowledgment in most, and leave families without the clarity and security of knowing what their legal status and rights will be.

Parenting: Unmarried couples are denied the automatic right to joint parenting, joint adoption, joint foster care, and visitation for non-biological parents. In addition, the children of unmarried couples are denied the guarantee of child support and an automatic legal relationship to both parents, and are sometimes sent a wrongheaded but real negative message about their own status and family.

Privilege: Unmarried couples are not protected from having to testify against each other in judicial proceedings, and are also usually denied the coverage in crime victims counseling and protection programs afforded married couples.

Property: Unmarried couples are excluded from special rules that permit married couples to buy and own property together under favorable terms, rules that protect married couples in their shared homes, and rules regarding the distribution of the property in the event of death or divorce.

Retirement: In addition to being denied access to shared or spousal benefits through Social Security as well as coverage under Medicare and other programs, unmarried couples are denied withdrawal rights and protective tax treatment given to spouses with regard to IRA's and other retirement plans.

Taxes: Unmarried couples cannot file joint tax returns and are excluded from tax benefits and claims specific to marriage. In addition, they are denied the right to transfer property to one another and pool the family's resources without adverse tax consequences.

Marriage also protects the economic interests of children by providing an economic safety net for families and the kids themselves. The children have automatic and undisputed access to the resources, benefits, and entitlements of both parents. Married couples do not have to incur any expenses, legal or otherwise, to ensure that both parents have the right to make important medical decisions for their children in case of emergency. The children of legally married couples are automatically eligible for health benefits from both parents, as well as child support and visitation from both parents in the event of separation. If one of the parents in a marriage dies, the law provides financial security, not only for the surviving spouse, but for the children as well, by ensuring eligibility to all appropriate entitlements, such as Social Security survivor benefits.

Like other forms of discrimination, marriage discrimination disproportionately harms poor and otherwise disadvantaged couples. Compared with the relatively cheap option of marriage, the creation of a legal web meant to simulate some of the protections of marriage is an expensive and time-consuming project that simply cannot serve as a viable alternative for people of lesser means. In addition, the economic safety net of marriage is especially critical for children in families of lesser means.

The children of same-sex couples, whose marriages are unrecognized by law, do not have such a safety net. They suffer from their parents' lack of access to all of the rights and entitlements that maximize their economic well-being and are deprived of economic protection in case of death, disability, divorce, or other life-changing events.

THE HUMAN RIGHTS BATTLEFIELD OF MARRIAGE

Marriage has always been a human rights battleground on which our nation has grappled with larger questions about what kind of country we are going to be--questions about the proper boundary between the individual and the government; questions about the equality of men and women; questions about the separation of church and state; and questions about who gets to make important personal choices of life, liberty, and the pursuit of happiness.

As a nation, we have made changes in the institution of marriage, and fought over these questions of whether America is committed to both equality and freedom--in at least four major struggles in the past few decades.

We ended the rules whereby the government, not couples, decided whether they should remain together when their marriages had failed or become abusive. Divorce transformed the so-called "traditional" definition of marriage from a union based on compulsion to what most of us think of marriage today; a union based on love, commitment, and the choice to be together and care for one another.

We ended race restrictions on who could marry whom: restrictions that were based on the traditional "definition" of marriage, defended as part of God's plan, and had become a seemingly intractable part of the social order.

We ended the interference of the government in important personal decisions such as whether or not to procreate, whether or not to have sex without risking a pregnancy, and whether or not to use contraceptives--even within marriage.

And we ended the legal subordination of women in marriage, thereby transforming the institution of marriage from a union based on domination and dynastic arrangement to what most of us think of it as today, a committed partnership of equals.

In each of these struggles, opponents of equality claimed that the proposed change was "against the definition of marriage" and "against God's will." Many of the same gloom-and-doom claims are made today by the same kind of opponents, now seeking to prevent loving same-sex couples from taking on the legal commitment of marriage.

Our nation has struggled with important questions on the human rights battlefield of marriage, and we meet on that battlefield once again.

MID-MOVEMENT PATCHWORK

As in any period of civil rights struggle, transformation will not come overnight. Rather, the classic American pattern of civil rights history is that our nation goes through a period of what I call "patchwork."

During such patchwork periods, we see some states move toward equality faster, while others resist and even regress, stampeded by pressure groups and pandering politicians into adding additional layers of discrimination before, eventually, buyer's remorse sets in and a national resolution comes.

So here we are in this civil rights patchwork. On the one hand, as the recent powerful and articulate rulings by courts in Washington and New York demonstrated, several states are advancing toward marriage equality.

On the other hand, eleven states targeted by opponents of equality enacted further discriminatory measures this year, compounding the second-class citizenship gay Americans already endure. These opponents are not only anti-marriage-equality but also anti-gay, anti-women's equality, anti-civil-rights, anti-choice, and anti-separation-of-church-and-state. And, they are throwing everything they have into this attack campaign because they know that if fair-minded people had a chance to hear the stories of real families and think it through, this country would move toward fairness.

THE UNION OF A HOUSE DIVIDED

In past chapters of civil rights history, 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. (1) States worked out their discrepancies in who could marry whom under the general legal principles of comity, reflecting the value of national unity. The 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, experience, and the nation's commitment to equality.

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--anti-gay forces believe there should be a "gay exception" to the constitution, to fairness, and to respect for families.

Inserting the federal government into marriage for the first time in U.S. history, opponents federalized the question of marriage in 1996, prompting the passage of the so-called Defense of Marriage Act (DOMA). This federal anti-marriage 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. Under 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 anti-marriage law also purported to give states the authority not to honor the lawful marriages from other states (provided those marriages were of same-sex couples). This defies more than two hundred years of history in which 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, many spoke up immediately saying it was unconstitutional--a violation of equal protection, the fundamental right to marry, federalist guarantees, and limits on Congressional power. Ignoring these objections, opponents pressed forward with their election-year attack.

Now, however, 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 individual states. (2)

Because they do not trust the next generation, because they know they have no good arguments and no good reason for the harsh exclusion of same-sex couples from marriage, opponents are desperate to tie the hands of all future generations, and as many states as possible, now.

This patchwork will be difficult, painful, even ugly, and we will take hits. Indeed, we took many hits this election year in the states where our opponents threw anti-gay measures at us in their effort to deprive our fellow-citizens of the information, the stories of gay couples that would 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.

LESSONS WE MUST LEARN

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.

Wins Trump Losses

While we have lost several battles recently, we must remember that wins trump losses because each state that ends marriage discrimination gives fair-minded Americans the opportunity to see and absorb the reality of families helped and no one hurt when the exclusion of same-sex couples from marriage ends. Nothing is more transformative, nothing moves the middle more, than making it real and making it personal. Seeing other states join Canada and Massachusetts will be the engine of our victory.

Losing Forward

Even where we cannot win a given battle, we can still engage and fight so as to at least lose forward, putting us in a better place for the inevitable next battle. Losing forward is a way that all of us can be part of this national campaign, no matter what our state.

In every state--even those where we cannot win the present battle--we have the opportunity to enlist more support, build more coalitions, and make it possible for more candidates and non-gay opinion-leaders to move toward fairness. All of this contributes to the creation of a national climate of receptivity in which some states may cross the finish-line before others, but everyone can be better positioned.

California may be our best example of losing forward. In 2000, we took a hit, when the right-wing pushed the so-called Knight Initiative in California and forced an early vote on marriage. We lost the vote, but because there had been some, though not enough, education about our families and the costs of discrimination, polls showed that support for marriage equality actually rose after the election. And the very next year, activists pressed the legislature to enact a partnership law far broader than any that had been on the table in California before then. Our engagement over marriage continued, and within a couple years, legislators voted again, this time in support of an "all but marriage" bill, which took effect in January. And California organizations and the national legal groups continue to engage for what we fully deserve--pursuing litigation in the California courts and legislation that would end marriage discrimination.

If we do our work right, making room for luck, we may see marriage in California, our largest state, within the year. To go from a defeat in 2000 to partnership and all-but-marriage in 2004 with the possibility of marriage itself in 2005--that's called winning.

Grab for the Reachable Middle

The principal reason we took hits in the 2004 election, and lost so many of the state attacks in November, is because our opponents cherry-picked their best targets and deprived the reachable middle of the chance to be reached. They had a head-start, more money, and more infrastructure through their mega-churches and right-wing partners. However, we must remember that historically, it is difficult to win civil rights votes at the early stage of a struggle.

The country right now is divided roughly in thirds. One third supports equality for gay people, including the freedom to marry. Another third is not just adamantly against marriage for same-sex couples, but, indeed, opposes gay people and homosexuality, period. This group is against any measure of protection or recognition for lesbians and gay men, whether it be marriage or anything else.

And then there is the "middle" third--the reachable-but-not-yet-reached middle. These Americans are genuinely wrestling with this civil rights question and have divided impulses and feelings to sort through. How they frame the question for themselves brings them to different outcomes; their thinking is evolving as they grapple with the need for change to end discrimination in America.

To appeal to the better angels of their nature, we owe it to these friends, neighbors, and fellow citizens to help them understand the question of marriage equality through two truths. First that ending marriage discrimination is, first and foremost, about couples in love who have made a personal commitment to each other, and are doing the hard work of marriage in their lives, caring for one another and their kids, if any. Once the discussion has a human story, face, and voice, fair-minded people are ready to see through a second frame. Second, we need to emphasize that the exclusion of same-sex couples from marriage is discrimination; it is wrong and it is unfair to deny these couples and families marriage and its important tangible and intangible protections and responsibilities. America has had to make changes before to end discrimination and unfair treatment, and government should not be denying any American equality under the law.

When we see lopsided margins in these votes, it means that under the gun in the first wave of electoral attacks, we have not as yet reached this middle. We can't be surprised not to win when in so many campaigns, and over so many opportunities to date, we have failed to give this middle third what they need to come out right. When, in the name of "practicality" or advice from pollsters or political operatives, we fail to put forward compelling stories and explain the realities of what marriage equality does and does not mean, it costs us the one chance we have to do the heavy-lifting that moves people. We wind up not just not winning, but not even losing forward.

Generational Momentum

Finally, we have a secret weapon: death. Or to put it more positively, we on the side of justice have generational momentum. Younger people overwhelmingly support ending this discrimination. Americans are seeing more and more same-sex partnerships and families, and realizing, with increasing comfort, that we are part of the American family. The power of the marriage debate moves the center toward us, and as young people come into ascendancy, even the voting will change. This is our opponents' last-ditch chance to pile up as many barricades as possible, but, again, as long as we build that critical mass for equality and move the middle, we win.

THE STAKES ARE HIGH

It is so important that we redouble our outreach, our voices, and our conversations in the vocabulary of marriage equality now. In part, because victory is within reach. In part, because we can and must move that middle now to make room for that generational momentum and rise to fairness. In part, because America is listening and allies are increasing. In part, because this is our moment of greatest peril. And, in part, because the stakes are so great.

If this struggle for same-sex couples' freedom to marry were "just" about gay people, it would be important because gay men and lesbians, like bisexuals, transgender people, and our non-gay brothers and sisters are human beings, who share the aspirations for love, companionship, participation, equality, mutual caring and responsibility, protections for loved ones, and choice.

Yes, if this struggle were "just" about gay people, it would be important, but it is not "just" about gay people.

If this struggle were "just" about marriage, it would be important, for marriage is the gateway to a vast and otherwise largely inaccessible array of tangible and intangible protections and responsibilities. It is the vocabulary in which non-gay people talk about love, clarity, security, respect, family, intimacy, dedication, self-sacrifice, and equality. And the debate over marriage is the engine of other advances and the inescapable context in which we will be addressing all LGBT needs, the inescapable context in which we will be claiming our birthright of equality and enlarging possibilities for ourselves and others.

Yes, if this struggle were "just" about marriage, it would be important, but it is not "just" about marriage.

What is at stake in this struggle is what kind of country we are going to be. Is America indeed to be a nation where we all, minorities as well as majorities, popular as well as unpopular, get to make important choices in our lives, or is it to be a land of liberty and justice for some? Is America indeed to be a nation that respects the separation of church and state, where government does not take sides on religious differences but rather respects religious freedom while assuring equality under the law, or is it to be a land governed by one religious ideology imposed on all? Is America to be a nation where two women who build a life together, raise kids or tend to elderly parents, pay taxes, contribute to the community, care for one another, and even fight over who takes out the garbage are free and equal, or is it to be a land where they can be told by their government that they are somehow lesser or incomplete because they do not have a man in their lives?

All of us, gay and non-gay, who share the vision of America as a nation that believes that all people have the right to be both different and equal, and that without real and sufficient justification, government may not compel people to give up their difference in order to be treated equally, all of us committed to holding America to that promise, have a stake in this civil rights/human rights struggle for the freedom to marry.

If we see every state, every methodology, every battle, every victory, and even every defeat as part of a campaign--and if we continue to enlist non-gay allies and voices in this campaign, transforming it into a truly organic movement for equality in the grand American tradition, we will move the middle, we will lose forward where necessary, we will empower the supportive, and we will win.

References

1. Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979) ("[i]nsofar as marriage is within temporal control, the States lay on the guiding hand"). As the Supreme Court explained in De Sylva v. Ballentine, 351 U.S. 570, 580 (1956), "The scope of a federal right is, of course, a federal question, but that does not means its content is not to be determined by state, rather than federal law.... This is especially true when a statute deals with a familial relationship; there is no federal law of domestic relations, which is primarily a matter of state concern."

2. The first constitutional amendment to allow Congress to have authority over domestic relations was proposed (and rejected) in 1884. Scherrer v. Scherrer, 334 U.S. 343 (1948) (Frankfurter, J., dissenting). Through 1948, seventy similar amendments were proposed, prompted by a national debate (analogous to today's) over whether to allow civil divorce. All such proposals failed, and the states and Americans were properly given an opportunity to work out questions of marriage and interstate respect, while the federal government honored the lawful marriages (and divorces). See, e.g., Edward Stein, "Past and Present Proposed Amendments to the United States Constitution Regarding Marriage" Issues in Legal Scholarship, Single-Sex Marriage (2004): Article 1 (2004). And, after a period of conversation and experience, and generational shifts as the institution of marriage evolved, the U.S. Supreme Court clarified that lawful determinations as to marital status, through divorce, must be respected.

RELATED ARTICLE: CALIFORNIA JUDGE DECLARES MARRIAGE LAW UNCONSTITUTIONAL

On March 14, 2005, San Francisco County Superior Court Judge Richard Kramer ruled that withholding marriage licenses from gay and lesbian couples was unconstitutional. This decision paves the way for California to become the second state in the nation to legalize gay marriage.

In his decision, Judge Kramer wrote, "it appears that no rational purpose exists for limiting marriage in this state to opposite-sex partners." (1) He stated, "simply put, same-sex marriage cannot be prohibited solely because California has always done so before." (2) Kramer cited the landmark 1954 decision in Brown v. Board of Education and wrote that, "the idea that marriage-like rights without marriage is adequate smacks of a concept long rejected by the courts: separate but equal." (3)

The judge's ruling overturns "Proposition 22," which was passed by California in 2000 and required that "only marriage between a man and a woman is valid and recognized in California." The judge's ruling will not take effect for 60 days and several conservative organization are planning to appeal. The case will most likely be taken to the California Supreme Court.

References

1. Lisa Leff, "Judge Finds California's Marriage Law Unconstitutional," San Francisco Gate (CA), 14 March 2005.

2. Associated Press, "Court Upholds California Gay Marriage," News 8 Austin, 15 March 2005; Bob Roehr, "California Court Strikes Down Marriage Ban," Windy City Times, 16 March 2005.

3. Roehr.

Evan Wolfson

Executive Director Freedom To Marry New York, NY
COPYRIGHT 2005 Sexuality Information and Education Council of the U.S., Inc.
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Author:Wolfson, Evan
Publication:SIECUS Report
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Date:Jan 1, 2005
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