I’m married in Massachusetts. I’m not married in the United States. That paradox is untenable, the First Circuit Court of Appeals declared in May as it unanimously struck down Section 3 of the Defense of Marriage Act—the portion of the 1996 law stating that, for federal purposes, marriage is between a man and a woman. Most legal observers believe the Supreme Court will agree, and the feds will have to recognize my marriage. That would leave me almost fully married, but not quite: Thirty-eight states still ban recognition of same-sex marriages. So what’s the path to marriage equality nationwide?
President Barack Obama hinted at an answer, two weeks before the First Circuit decision, when he announced his support for same-sex marriage, adding that it shouldn’t be a federal issue. The states were working it out for themselves, he said approvingly. Some impatient liberals carped at the suggestion. “I don’t think civil rights ought to be left up to a state-by-state approach,” Congressman James Clyburn said. “I think we should have a national policy on this.”
It’s easy to see why many progressives believe a state-by-state approach is hopeless. We’ve been told that whenever Americans have been asked to vote on same-sex marriage, they’ve rejected it. But that’s not strictly true. Rather, they’ve been voting “yes” on a sentence that doesn’t even mention lesbians and gay men. Consider California’s infamous Proposition 8, which passed in 2008: “Only marriage between a man and a woman is valid or recognized in California.” It sounds like a simple statement of fact, a dictionary definition.
Most of these measures passed within a decade of the first time Americans heard about the previously impossible notion of same-sex marriage. People aren’t fossilized in the attitudes of 1996 or 2004. So how can you get them to vote against the dictionary? By changing the question. This fall, voters in Maine, Maryland, and Washington will have a chance to vote to affirm equal marriage, which is not the same as rubber--stamping heterosexual marriage. In each state, the polls look favorable. That’s partly because advocates have taken a different tack. Past campaigns have often focused on fairness, equality, civil protections—anything but love between two women or two men. They’ve all failed. In Maine, advocates have trained thousands of volunteers and sent them out to have conversations with likely voters, in person and by phone, about what marriage means and why same-sex couples belong. They’re engaging skeptics head-on. They’re telling stories about real lesbians’ and gays’ love and commitment.
Working state by state is not just how you alter the law; it’s how you transform the country, creating meaningful change from the inside, instead of merely altering the law. Once any state breaks the voting barrier, it will erode the idea that Americans are lying when they say they’re fine with same-sex marriage. It will also speed up the steady public-opinion shift toward equality. Less than a decade ago, how many states performed same-sex marriages? Zero. Today six states and the District of Columbia do. Nine others offer civil unions or domestic partnerships, and several seem certain to upgrade to full marriage soon. Within three years, we could easily have 14 or more equal-marriage states—including biggies like California, New York, and Illinois—that encompass at least a third of the nation’s population. The next step will be repealing the remaining states’ bans. This will likely begin in 2014, when Oregon activists believe they’ll have the votes to repeal the state’s 2004 amendment.
Eventually, the states with remaining marriage bans will face a series of lawsuits about tricky questions: If a same-sex couple marries legally at home and then moves to your state, what do you do when that couple faces some disaster? What if a same-sex couple from your state traveled to New York or Iowa to marry—and was thereafter treated as married by the United States but as unmarried back home? Should they be able to get divorced or bury their dead? The lawsuits will make their way to the Supreme Court. By then, most of the country will already recognize same-sex marriages—and, as is its wont, the Court will likely order the laggard Southern states to get in line. Call me wildly optimistic. But in a decade at most, after what might strike some as a long engagement, I’ll be married everywhere in my country. Care to dance?
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