SCOTUS DOMA Review: The Road Ahead

DOMA RulingBy MC Bousquette.

“Same-sex marriage is inevitable. Just wait, progress always comes.”

I’m sure that you’ve heard these words, or perhaps similar sentiments, repeated over and over again surrounding the Supreme Court’s decisions on this year’s same-sex marriage cases.

And at first glance, it’s easy to accept the premise that marriage equality is inevitable.

On June 26, 2013, the Supreme Court ruled on United States v. Windsor, expressing the opinion that LGBT relationships are fundamentally valid. The court ruled section three of the Defense of Marriage Act (DOMA) unconstitutional. Section three banned any federal recognition of same-sex marriage. It was ruled unconstitutional under the fifth amendment, as violating the equal liberty of LGBT individuals. The Supreme Court’s other major option would have been to invoke the fourteenth amendment, which would have legalized same-sex marriage nationally. Instead, the court’s use of the fifth amendment kept the issue of legalizing same-sex marriage on the state level.

With this decision, couples in states that recognize same-sex marriage have now been granted more than 1,100 federal benefits previously only available to heterosexual couples. Same-sex couples can now use a fiance visa to sponsor their partners’ entry into the country, whereas partners had previously been deported, even after their marriage in a state that permits same-sex marriage. Same-sex partners now have hospital visitation rights, health care benefits, tax benefits, and social security benefits.

Additionally, the Supreme Court’s decision in US v. Windsor falls in line with a major shift in public opinion. According to a Bloomberg national poll conducted at the beginning of June 2013, 52% of Americans are now in favor of same-sex marriage. This is a drastic shift from the mere 27% reported in a 1996 Gallup poll, the year DOMA was passed.

While the Supreme Court decisions and shift in public polling absolutely reflect progress, the often-repeated prospect of marriage equality’s inevitability distracts from a more grim reality. Only thirteen states have legalized same-sex marriage. In contrast, thirty-two states have adopted constitutional amendments that define marriage as between one man and one woman.

Overturning section three of the Defense of Marriage Act (DOMA) in US v. Windsor is a major victory– but only for couples living in states that already permit same-sex marriage. It remains unlikely that a same-sex couple married in New York will receive federal marriage benefits if they were to move to a state without same-sex marriage, such as North Carolina. And it bears repeating that the states with bans on same-sex civil unions and marriages are far more conservative than those who have already legalized same-sex marriage. The blue state of Connecticut was inherently much more likely to permit same-sex marriage than the red state of Alabama, which bans it in a separate constitutional amendment.

These barriers aside, nothing is stagnant. Pro-marriage equality efforts are expected to come to a vote in at least Illinois, Arizona and Nevada over the course of the coming year. The American Civil Liberties Union (ACLU) is filing cases in Pennsylvania, Virginia, and North Carolina to challenge each state’s respective anti-same sex marriage laws. Pennsylvania’s Attorney General recently announced that she will not defend the state’s Defense of Marriage Act in court.

It is possible, but not guaranteed, that these cases will land at the Supreme Court’s feet in the coming years. The Supreme Court had the opportunity to nationally legalize marriage equality in Hollingsworth v. Perry. Yet, they passed on this chance, dismissing the case due to lack of standing on part of those defending the anti-same sex marriage Proposition 8. There is no confirmation that they wouldn’t do so again should one of the new ACLU cases make its way up the chain.

I spent the evening following the Supreme Court’s decisions at a rally outside of the Stonewall Inn, the LGBT rights birthplace cited by President Obama in this year’s State of the Union address. I saw Edith Windsor, the 84 year-old plaintiff of US v. Windsor, speak as countless individuals cheered her on. Even mere hours after the Supreme Court victory, though, the tone of the rally wasn’t one of total celebration. The atmosphere was fiery and determined, rather than complacent because of supposed inevitability. Each speaker emphasized the incompleteness of the day’s ruling, even in the face of the day’s accomplishments, and righteously so.

The ACLU has already begun to pave the way forward, with a state by state movement for marriage equality. Much beyond marriage equality remains to be achieved as well, such as protecting LGBT individuals in the 29 states where it is still legal to fire someone because of sexual orientation.The future of LGBT rights in the United States hangs in the balance; its proponents must resist the apathy that accompanies the perception of inevitability, and fight on.

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