Anti-Gay Marriage Proposition 8 Ruled Unconstitutional
Today holds particular importance to families like mine. The United States Court of Appeals for the Ninth Circuit ruled today that Proposition 8 -- a constitutional amendment banning same-sex marriage in California -- is not valid under the U.S. Constitution, a step that could lead to the right to marry nationwide.
I write this with one kid nipping at my heels, one curled under a blanket on the couch with a fever, out of school for a sore throat.
My partner is, as luck would have it, out of town giving a lecture today, so the young musician who lives with us is tag-teaming with me to keep the kids happy, while editing some of his recent compositions.
I just discovered that we're out of oatmeal, so even though I went shopping yesterday, it looks like I’ll need to drop in again today, as oats are a staple in our family, and my daughter with a sore throat will probably eat little else for the next day or two.
It's just another day in my "gay marriage" and the family my partner and I have gathered to ourselves in the decade we’ve been together.
My family in 2008; photo: Donita Jacobson Photography.
And yet, today holds particular importance to families like mine.
The Ninth Circuit Court of Appeals ruled today that Proposition 8 -- an amendment to the state constitution banning same-sex marriage in California -- is not valid under the U.S. Constitution. Such a decision implies that all such laws in other states are similarly invalid, but court watchers say the ruling was written narrowly and should be understood to apply only to California.
The amendment was approved by voters and a same-sex marriage ban went into effect in 2008. In 2009, the amendment was upheld as valid by the California supreme court. In 2010, a federal judge ruled the amendment and ban unconstitutional but placed a stay on the performance of same-sex marriages until the Ninth Circuit Court of Appeals made its ruling -- which it did today.
This is good news for the marriage rights movement, but it is not the end of the story. The "stay" on performance of same-sex marriages remains intact until the ruling is appealed or goes into effect. The case is very likely to be contested to the U.S. Supreme Court.
A decision at the Supreme Court level could render the Defense of Marriage Act (DOMA) moot, opening the right to marry nationwide.
The DOMA, signed into law by Bill Clinton, has two major provisions that hinder families like mine. First, the DOMA means that no matter which states might decide to allow us to marry, no other state is required to recognize that marriage or treat us as married. Second, even if all fifty U.S. states were to individually allow us to marry, the federal government itself would not be required to recognize our marriage. Since most of the benefits of marriage are actually allotted at the federal level, we would still not have them.
The DOMA is viewed as unconstitutional by many.
First of all, it seems to violate the right of all citizens to equal protection under the law.
Second, it seems to violate the full faith and credit clause of the U.S. constitution, which ensures that every state recognize the judicial decisions of every other state. For example, if you are married to an opposite sex partner in New York and subsequently move to California, California assumes you are married. There is no need to get married again. If you are heterosexual and adopt a child in Washington State, then move to Florida, you are still your child's parent. These things are not necessarily true if you are in a same-sex relationship or the queer (LGBT) parent of an adopted child, partnered or single.
Others have argued that, given the predominance of a particular version of conservative Christian arguments against same-sex marriage, bans against it violate the first amendment. This makes it illegal for the government to establish religion or to prohibit the free exercise of religion by its citizens. A law written according to one religion's beliefs both gives government backing to that religion and restricts those who practice a different religion (or a different version of the same religion, or no religion at all) from acting on their own beliefs.
Given these solid arguments against same-sex marriage bans and in favor of extending marriage to all citizens, regardless of sexual orientation, it seems likely that eventually the Supreme Court of the United States will decide in favor of families like mine.
What strikes me as ironic about this, though, is that the morning after such a decision will look much the same as this morning. Our neighbors will still live next-door to the Lesbian Couple and Their Children. We will still either drive our kids to school, or find out they have a fever and put them back to bed. We'll still need oats when the bin is low. But we'll save a chunk of money on taxes, we won't have to worry about anyone usurping our rights to each other in medical emergencies or hindering us from inheriting from each other after death. We'll sleep a little easier at night.
As far as we're concerned, we're already married. We've been married twice so far: once by our friends and family at a commitment ceremony in a beautiful garden. This is what we consider our "real" wedding. When our older daughter was a toddler and we were in Vancouver for professional reasons, we decided to obtain a Canadian civil marriage. It is valid in many countries and we like to travel.
We're planning two more marriages now, to take place simultaneously this spring. One, a "civil union" which will give us most of the rights and responsibilities of marriage within our home state of Illinois, and the other, a "holy union" in which my denomination, the Episcopal Church of the United States, will recognize us as married before God and the Church.
That will be four weddings, and we still won't be able to file taxes jointly with the IRS, collect each others' social security, get tax-free employer health and other benefits like my partner's colleagues do. Fortunately, we're both U.S. citizens, because if we were not, married four times or not, we could not sponsor each other for permanent residency or citizenship. Those are all federal matters that are out of our reach until the DOMA falls, however our home state regards us.
For the record, neither my partner nor I believe the government should be in the marriage business at all. It should not be up to the government to tell me who is in my family; who is my next-of-kin. Marriage ought to be a personal decision, sometimes (when it aligns with the faith of the spouses), a religious one. But allocating rights and responsibilities on the basis of this very personal decision seems an oddly medieval notion to us. We would rather see the government allow consenting adults to enter into contracts as needed and desired by all parties—parenting contracts, spousal support contracts, medical-decision-making contracts and the like, without respect to marital status.
That's probably not likely to happen anytime soon, however. In the meantime, we'll settle for the same full legal marriage at both the state and federal levels that our opposite-sex couple friends have. We already have the love and commitment. All we need are the rights.
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