President Obama, Congress, are you listening? The states are outrunning you. The consequence is not just in being last to the table when it comes to equal rights for GLBT's.
Part of the problem is that while you are considering repealing DOMA, the state by state battle for marriage equality threatens to outrun a regime even in which DOMA is merely repealed.
As of January 1st, 2009, only one state had same sex marriage equality. Three months later, four additional states have established equality and fairness, and three more, New Hampshire, New Jersey and New York (the second most populous state in the Union) are about to follow suit.
You can't just dismiss this. You can't let culture throwbacks like Rick Warren and Pat Robertson paint marriage equality as a throwback issue. To do so risks consequences beyond your conventional imagination.
One state may be dismissed as a mere anomaly. Two states is a trend. Five is a big problem to the credibility of your stance on the civil rights issues of the day, and to the credibility of your commitment to the Constitution and the rule of law in Washington.
And in all of this, an opportunity and a solemn duty for you to make history, and to affirm the sovereignty of the United States over those who wish to delimit the freedom of her citizens.
Congress and President Obama have to move faster on gay equality to avoid major basic issues as to whether the Constitution is the operative law of the land, or not. Striking down DOMA would be a start, but the problem is, we are arguing over even the Federal Government rescinding DOMA whereby even rescinding DOMA is not enough. Affirmative laws and language are required to once again assert the sovereignty of the U.S. Constitution over the states.
Let's start with the basic Constitutional issue -- Article IV of the United States Constitution, otherwise known as Full Faith and Credit:
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
Not so fast, conservatives like Scalia would argue. The tenth amendment doesn't guarantee that any citizen will be treated the same in Texas as Connecticut.
Well, here's the problem:
In Corfield v. Coryell, 6 F. Cas. 546 (C.C.E.D. Pa. 1823), the Supreme Court held that privileges and immunities in respect of which discrimination is barred include "protection by the Government; the enjoyment of life and liberty ... the right of a citizen of one State to pass through, or to reside in any other State, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefits of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the State; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the State."
And this is the basic way in which the defenses against applying Article IV in the same sex marriage issue fall flat.
Marriage is fundamentally a property arrangement. When a married couple moves from Connecticut to Texas, by forbidding a legal disposition of any concerns related to that marriage (such as divorce, family, child custody issues, and inheritance), Texas would therefore be violating Article IV in so forbidding. Although it would also be making a mockery of the 14th, 1st and 9th Amendments in so doing, arguably arguing Article IV is different and wholly more serious to the welfare of the nation in the immediate sense .. that is, flouting Article IV is anathema to the nation's basic integrity.
When Massachussets could be dismissed as an "anomaly" the basic way in which other states might violate the legal status of Massachussets citizens could be swept under the rug.
Even so, even when it was just Massachussets, there were problems:
The Virginia Supreme Court rejected Lisa Miller's claim that a lower court improperly ignored a Virginia law and a state constitutional amendment that prohibit same-sex unions and the recognition of such arrangements from other states.
The ruling was a victory for Janet Jenkins, who has been fighting for visitation rights since the dissolution of the civil union she and Miller obtained in Vermont in 2000. In 2002, Miller gave birth to the daughter, Isabella, who now is at the center of a legal battle closely watched by national conservative and gay rights groups.
So, is every couple who marries in New Jersey and moves to Idaho going to be required to go all the way to the various State Supreme Courts to enforce basic child custody arrangements, Mr. President? Congress? When is allowing this serpent to sleep going to rear up and bite your inequality tolerating asses in a highly embarassing way?
And now, the problem is a whole lot bigger than just the inconvenience and oppression of one, or a few, gay and lesbian couples.
Let us not forget the environment in which this takes place.
So, let me ask the esteemed members of Congress this: Will the horror of legally married homosexual couples be the straw that broke the camel's back for the crazed wingnuts in the Governor's office in Texas?
All this time, Washington has tried to play it neutral, to vote down laws absolutely forbidding same sex marriages, while coyly "allowing the states to decide".
I would submit that a country in which 40 states are allowed to disrespect the basic personal freedoms established in 10 of the others cannot stand. We have reached a point where more is at the table than personal disapproval of these couples.
There is a situation which is directly analogous to the present day situation of secession talkers like Rick Perry and state laws with enhanced freedom for populations of some states versus others.
New players have been added to the table, and those players are states which have every right to expect the basic freedoms their citizens enjoy ought to be respected when those citizens move.
It can be reasonably argued that dilly-dallying and indecision and refusal to enforce uniform freedoms throughout the republic is one of the major factors that led to the Civil War.
Take care that new indecision doesn't lead far right crazies to take matters into their own hands, leading to a Second Civil War.
By all reports, the first one (and let us all pray there will only have been one) wasn't a pleasant affair.
Congress, the President and the Supreme Court may not like, or want to deal with civil rights concerning teh ghey. Any one of these esteemed gentlepersons in Washington may consider it beneath them, that other things are vastly more important or even that recognizing gay people as full citizens with equal rights and responsibilities is just a waste of their time which is better spent cozying up to corporate contributors and lying on Meet the Press.
What will become increasingly difficult, however, is to ignore states that run roughshod over the laws of others, and in so doing, thumb their nose at the basic proposition that we are 50 states under a Constitution which is above all the laws in the land.
Assert U.S. Sovereignty now. Enforce Full Faith and Credit.
EDIT: I did not mean to imply in any way that all or even a majority of the fine citizens of Texas were "crazed wingnuts". I have tempered the language accordingly.