Defending Marriage

So the Supreme Court again made history. The court paved the way to re-allow gay marriage in California, and it ruled section three of the Defense of Marriage Act unconstitutional.

Windsor v. United States, the case fighting against DOMA, and Hollingsworth v. Perry, the case against California’s Prop 8, are definitely landmark decisions, but they leave a lot of life-improvement work to be done in dozens of states around the country. Teenagers are still taking their own lives because who they are doesn’t fit in with who society thinks they should be; one life taken is one too many.

The high court did not strike DOMA down in its entirety; section two is still in place. Section two is the section that allows one state’s government to pick and choose which official marriage records from another state will be valid and legal. This goes against the simple, 22-word sentence in the U.S. Constitution known as the full faith and credit clause.

“Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.”

A marriage license is listed as a public record in every state, so by federal law, a marriage license issued to Adam and Steve from New York must be recognized in Florida. That’s not the case.

“No state […] shall be required to give effect to any public act, record, or judicial proceeding of any other State […] respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State […] or a right or claim arising from such relationship.”

There’s no way around it, that’s unconstitutional. To its very core, section two of DOMA goes against the constitution of the United States. Couple this ruling with changing American opinion, and suddenly LGBT rights seem mainstream and inevitable.

“55% of Americans support same sex marriage,” claims an ABC News, Washington Post poll from May 9, 2013. The problem is same sex marriage is not an American issue; it is one of many issues delegated from the federal government down to state legislatures.

There’s no question opinion on gay marriage is shifting over time in this country, but like most big things, it moves slowly. In the last eight years, people in every state have become more accepting of LGBT people getting married.

Gay Marriage Opinion ShiftThose were the numbers from last year; take a look at state support for same-sex marriage at its most recent polling:

States with black borders around their bars already allow same-sex marriage. (Data from FreedomToMarry.org) * Percent of Nevadans who support a repeal of the state's same-sex marriage ban ** Percent of Indianans who oppose barring same-sex marriage with a constitutional amendment
States with black borders around their bars already allow same-sex marriage. (Data from FreedomToMarry.org)
* Percent of Nevadans who support a repeal of the state’s same-sex marriage ban
** Percent of Indianans who oppose barring same-sex marriage with a constitutional amendment

So, looking at this bar graph, gay rights are advancing in the nation, but that doesn’t necessarily translate to gay marriage. 10 states want to improve standing for their LGBT citizens, but they are wary of the word “marriage.” Arizona, Florida, Alaska, Kansas, Texas, Georgia, South Carolina, Nebraska and Louisiana all have more than 50% support for some kind of recognition for same-sex couples, but they don’t want to use the word marriage.

The troubling part is the number of states that have constitutionally banned same-sex marriage: 30. Even states with some of the highest polled support for same-sex marriage, like North Carolina, have passed amendments to their constitutions that will require several years and state congressional bipartisanship to undo. There is one act that could sweepingly change that: a ruling by the Supreme Court that declares it unconstitutional, and Hollingsworth v. Perry is likely not the last gay marriage case to be decided by the high court. However, the court’s more conservative judges, even the swing voting Anthony Kennedy, seem unconvinced this is the right action now.

Credit: Talking Points Memo
Credit: Talking Points Memo

With today’s decision, it might be decades before same-sex marriage is an American right, now just a New England, Iowa and Washington right. North Carolina voters just passed an amendment to their constitution to ban same-sex marriage. That was in May 2012, when  51% of Americans supported gay marriage. That’s the trouble with polls and elections are similar: not everyone takes part. If North Carolina wants to vote to allow gay marriage, it would need 60 percent of all legislators vote in favor of putting it on a statewide ballot. That’ll take loads of time and money.

North Carolina’s way to equality is easy compared to some states. Nevada won’t have a chance at allowing same-sex marriage until 2016 because it’ll take two consecutive legislatures (so two votes in the state senate and two votes in the state house, before and after an election cycle) to put the ban-repealing amendment on a statewide ballot.

That’s in Nevada, a state on the border between majority support and majority opposition of same-sex marriage. The likelihood of Nevada coming together — when two polls, only a few months apart, said Nevada supports gay marriage by 47% and 54% — is almost nonexistent. The same goes for Wisconsin.

The other 27 states with constitutional bans on gay marriage have to go through a long process to repeal the bans, though none as brutally difficult as Nevada and Wisconsin.

(Thanks to buzzfeed for prompting this post)

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