With NH's and CT's recent decisions regarding same-sex marriage/civil unions making New England the first region in the US to embrace the possibility of equality for GLBT persons seeking legal recognition of their relationships and with WA following suit on the Pacific Coast, my mind has turned to the same-sex marriage movement and, to a lesser extent, my thoughts on the term "civil unions".
Let me be perfectly clear. I want legal marriage rights. I, personally, will not be satisfied with my citizenship until I am treated equally under the law. And I abhor the term "civil unions". That being said, I have had two conversations on this topic recently that have served to open my mind and allow me to see this challenge from an entirely different angle.
The first conversation, with a lesbian friend of mine, made me realize our GLBT leadership is banging its head against the proverbial wall by seeking federal marriage equality recognition. My friend studied constitutional law and she reminded me of something that I had forgotten: marriage is a states' rights issue and has always been a states' rights issue. So what does that mean exactly? It means that there will never be a Constitutional Amendment granting same-sex marriage rights OR denying them. The individual states that comprise this great country of ours will not allow it. Or rather, not enough of them will. Doubt me? What is the most famous part of any marriage ceremony--after, of course, "to love, honor, and obey"? "Then by the power vested in my by the state of [your state here], I now pronounce you...blah blah blah." The state confers the, well, state of marriage; not the country.
So GLBT groups who are fighting for a Constitutional Amendment are wasting everyone's time.
"But wait," you say. I can hear you from here. "But wait! If that's the case, then why doesn't the federal government recognize the legal same-sex marriages from Massachusetts for tax purposes? If the states confer the, er, state of marriage and Massachusetts says same-sex marriage is legal, why can't couples from that state file joint federal tax returns?" Oh, my child. I, too, wondered that very thing. Until I remembered a little thing called the DOMA. Yes, Bill Clinton's capitulation to the Right Wing has come back to bite us in the bum.
But fear not! I am not claiming defeat! Yes, we are banging our noggins against the Great Wall trying to get a Constitutional Amendment when we have zero chance of making that happen and we still have the DOMA in place, making sure that the federal government won't recognize actual legal same-sex marriages conferred by the states. A second conversation I had on this topic, this time with my own lovely partner, proved even more enlightening.
When I began to whine discuss the revelations I had had, my partner said--almost off-handedly--something along the lines of "then we have to have the Supreme Court declare it unconstitutional to discriminate on the basis of sexual orientation...right?" If we had been in the same room, I could have kissed her. Unfortunately, I'll have to save all my thanks for our anniversary trip to Disneyland.
Her comment got me thinking, though. We need the words "sexual orientation" added to the federal discrimination protection statutes/language.
"But wait," you say. You catch on fast, don't you? "But wait! Haven't we tried that? Haven't we been trying that? Surely someone, somewhere has tried to do that by now!"
Yes, they have. They've been trying since 1974, to no avail.
When I mentioned this to my partner, she noted that the attempts seemed to be centered on the furtherance of a bill. She wondered whether or not it would be more successful if it were a suit brought by a GLBT person or group of persons, along the lines of Brown vs. The Board of Education. A suit that would fail in the state of, say, Alabama, and would then be fought all the way to the Supreme Court. Where, the Supreme Court (though admittedly not this Supreme Court, most likely) would have to say once and for all that discrimination based on sexual orientation is legally wrong. This plan would require some very thick skinned GLBT persons to fight a very public, very vitriolic, very tiring legal battle. But it could be done. And once it was done, the other pieces would simply fall into place.
So let me present it this way; a different plan of action for our GLBT leadership.
Step 1: Throw our entire weight against the DOMA. Enlist the help of the state of Massachusetts. Have Massachusetts point out federal tax rights should be afforded to all legally married couples. Get the DOMA repealed.
Step 2: Have a GLBT person bring suit against their state government (preferably a state where they will fail) for discrimination on the basis of sexual orientation. NOT a marriage case. Something more general, more global. An employment issue, a housing issue, an education issue. Run it up to the Supreme Court--a different Supreme Court, obviously--and get "sexual orientation" added to the federal discrimination protection language.
Step 3: Get GLBT couples seeking same-sex marriage rights sue their individual states for equality under the law, using the previous victory to bolster their cases. Make sure every state (except MA, of course) does it. Within five years, maybe ten, all 50 states will have equal marriage/civil union laws.
And voila!
Now I am no lawyer, no civics expert, no politician. This is a very, very simplified outline of a set of complex legal battles. But you have to admit, it reads like a plan that could work. Unlike our leadership's focus on a Constitutional Amendment.
What do you think? I admit every plan can be improved by further conversation, by further thought, by further consideration. So I need your help. Where are the flaws in this plan? Where can improvements be made to it? What holes need patching? What have I overlooked?
We have to look at this problem from a different angle. We have to try other avenues, other ways. We are getting nowhere fast on this path.
Erin M. Hoagland
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