I keep hearing, from smart gay-friendly folks, two erroneous statements:
a) Marriage is just a state issue, it has nothing to do with the feds...
b) Marriage discrimination isn’t that much of a practical problem anymore -- folks can just move to MA or CA or CT!
Neither of those is true, and the next federal administration really could and should do a lot to make matters better on the ground for same-sex couples.
Or, to come at this a completely different way: I really, really identify with Michelle Obama’s statement about finally being proud of my country. She’s backpedaled away from the statement, and I understand why -- much as I understand why Barack has voiced his opposition to same-sex marriage -- but I’m sure that on some levels, she meant it, because I feel the same way.
For Michelle Obama, the turning point was seeing her partner become the first black man to win a major presidential primary. I had something like that feeling on June 26, 2003, when I stood in a crowd of cheering, crying LGBT people on Castro Street in San Francisco and watched them replace the rainbow flag with a U.S. flag, because the Supreme Court had ruled that day that we had a right to make love.
In contrast, I also remember the day President Clinton signed the Defense of Marriage Act into law. I was pretty disgusted with my country that day. It was part of a pattern of institutionalized discrimination, taking many forms -- including but not limited to the fact that openly gay folks didn’t have access to marriage or the military, two of the most basic rights of citizenship in our supposedly free country. When DOMA happened, I was a freshman in college, lonely and scared but also starting to figure out that for me personally, it was all going to be okay -- because I was going to have enough education and other sorts of privilege to go live amidst lots of other queer and liberal people in a coastal enclave or college town, or leave the country if I had to. But I knew that for millions of other LGBT people, it was going to be far from okay for years to come. And I didn’t know how long it was going to take for the tide to change.
The Supreme Court’s decision in Lawrence was a major milestone, but the tide change I’d wondered about in 1996 was already well underway in 2003. We’ve gone from the purely abstract marriage debates, to "will you CU me" on the steps of the statehouse in Vermont, to the too-good-to-be true wedding bells of February 2004, to real marriage that summer in Massachusetts, to vilification on the national stage in the ‘04 election, to civil unions in several more states, to real marriage in California too...and now it looks like Connecticut will start offering real marriage as of October 28, 2008. 3 states to 47 is still not a great ratio, but obviously it’s progress.
And meanwhile, marriage is no longer just an abstract concept for me personally, because that hot girl I met sophomore year of college somehow managed to forgive all of my ridiculous mistakes (so far), and I managed to forgive hers, and we both grew up and grew closer, and now I have the privilege of waking up every morning next to the woman of my dreams.
To complicate matters, I still think marriage is overrated and overemphasized in our culture. I particularly think we all have a right to health care, and no one’s ability to get care paid for should depend on his relationship to a lover (or his employment status). But marriage matters in this country -- right now, that’s the practical reality.
First of all, the federal government doesn’t perform marriages, but it recognizes them in a whole lot of ways (over 1100 by its own reckoning), when you count up all the contexts where federal law confers either a right or a responsibility to a "married" person or to a "spouse." In all of those 1100 contexts, a same-sex couple does NOT qualify as married, even if they possess a marriage license from Massachusetts or California, or one of the other states that participated in the 2004 Winter of Love, or a more enlightened foreign country like Canada or Belgium or South Africa or Norway... And of course, the feds don’t recognize domestic partnership or civil union, at all. Only hetero marriage. A thousand times over.
Examples:
-- Immigration (Marrying a US citizen is one way to become a permanent resident or, eventually, a citizen)
-- Taxes (Married folks can file jointly, and their actual tax liability is different...see below)
-- Federal entitlement programs (Medicaid and so forth consider a spouse’s income in determining eligibility)
-- Employment-related benefits (The feds administer pension and other programs for many different professional groups, from military veterans to railroad workers)
-- Criminal laws (mostly involving the definition of domestic violence)
-- Many, many more.
The lack of recognition results primarily from the Defense of Marriage Act, passed by wide margins in both houses of Congress and signed into law by Bill Clinton in September 1996. DOMA states, among other things, that all references to marriage in federal law shall mean only marriage between a man and a woman, and all references to a "spouse" shall mean only a spouse of the opposite sex.
So let me get back out of lawyer-nerd mode and talk about what this does to people.
It’s cost my family, among others, a lot of money in extra taxes. The IRS code says that insurance benefits provided to an employee or her spouse or dependent are not taxable income. But insurance provided to anyone else is taxable income. A few years ago, when my partner was doing a freelance stint, we registered as domestic partners, and that allowed her to get free medical/dental/vision insurance through my relatively progressive employer. But come April, we owed taxes on the imputed value of the insurance coverage. We knew about this beforehand and we were able to pay it, but it hurt: if she had been my husband instead of my domestic partner, we wouldn’t have owed that thousand dollars.
It’s forced thousands of binational couples to make horrible choices. Kossack smellybeast explained this firsthand today, and in the comments others told additional sad stories. It’s worth noting also that for some binational same-sex couples, getting married in a place like California HURTS their immigration prospects; if you’re here as a "tourist" or on several other types of visa that requires you to promise you do not intend to stay in the US permanently, entering into a legally permanent relationship with an American can be used against you.
Occasionally, Uncle Sam hurts himself rather than the same-sex couples whose relationship goes unrecognized. Our cultural imagery tends to assume that all gay people are financially comfortable, but it’s so not true. Federal recognition of same-sex marriage would allow same-sex spouses’ income to be counted in calculating eligibility for Medicaid, TANF, Social Security, and a host of other federally funded programs. [This is not an area of law and policy I understand all that well; I believe that MA at least is attempting to recognize same-sex marriage for the federal entitlement programs it administers.]
Finally, there’s a whole host of special issues for same-sex couples with one partner serving in the military. Don’t Ask, Don’t Tell, which was enacted through federal legislation in 1993, prohibits military service by anyone who "demonstrates a propensity or intent to engage in homosexual acts." It specifically lists "marrying or attempting to marry a person known to be of the same biological sex" as one way a service member can display the forbidden intent. Thus, a service member who marries a same-sex partner is risking a less-than-honorable discharge, regardless of how quiet s/he keeps about it.
I could go on. But the point is, these are real practical problems, and they aren’t solved by a weekend in Provincetown or even a permanent move to one of the states that now recognize same-sex marriage. Which isn’t even an option for a lot of folks; sometimes moving cross-country is an easy choice, but if you’re short on money or long on family responsibilities, it may be difficult or impossible.
Senator Obama, the next President of the United States has called for the full repeal of DOMA. He’s also spoken out against Don’t Ask, Don’t Tell. I look forward to seeing both of these laws eliminated during his administration, but I have no illusions that it will be easy. I also know that, with 24 days left, we’re still in the fight of our lives, and I should be signing up for that queer women’s voter contact trip to Philly rather than counting my chickens before they hatch.
It hurts when Obama, the candidate of hope and change, tells the cameras that he opposes marriage rights for Americans like me. Marriage equality is a federal issue in a lot of ways, and federal marriage law has serious practical implications. On the other hand, putting the symbolism and emotion of marriage aside, I think most of the practical inequities associated with the current status of marriage law in our country could be fixed by working toward justice for all, whether it's economic justice or immigration justice or servicemember justice or something else entirely.
And justice for all -- when we make some progress there, that's when I'll be able to feel really proud of my country.