As the debate around same-sex marriage continues to rage in the US, with the country divided between pro-equality states and states taking extraordinary steps, such as constitutional amendments, to ensure equal marriage cannot happen in their jurisdictions, the United States’ Supreme Court took the unprecedented step in early December 2012 of involving itself in the issue.
Supreme Court justices have agreed to review two specific challenges to federal and state laws that currently define marriage as being the union between a man and a woman. Their ruling on these two areas will have a profound effect on the future of the issue in the United States.
The court will review the case against a federal law denying legally-married same-sex couples the same benefits granted to opposite-sex married couples. The court will also examine the notorious California ban on same-sex marriages, Proposition 8, which was passed in 2008 by a narrow margin of the electorate.
Thirty-one of the fifty states in the Union have now passed legislation and constitutional amendments banning same-sex marriage. The remaining nine states, along with the District of Columbia, the autonomous region surrounding Washington, have legalized it.
However, merely legalizing same-sex marriage does not assure full equality for American same-sex couples. Even where it is legal, couples are denied a significant number of federal benefits. The issue here centres around the Defense of Marriage Act (DOMA) as passed by Congress in 1996. DOMA states that the federal government of the United States only recognizes marriages between one man and one woman, regardless of what individual states have in place.
Some of the benefits currently denied gay and lesbian couples include Social Security survivor benefits and the right to file joint tax returns. Being able to file a joint tax return rather than two individual ones gives financial benefit to heterosexual couples and penalizes homosexual couples who are forced to file separate returns.
The justices considered applications to hear seven cases that deal with same-sex relationships. Five of them are challenges to DOMA, one is a challenge directed at Proposition 8, and the seventh case is a challenge to Arizona’s law banning domestic partner benefits to same-sex couples.
As with any decision or move by the Supreme Court - as is also the case in Canada - the justices do not explain or give reasons for why they choose to hear, or not hear, specific cases. However, this move was not unexpected. Two federal appeal courts had found DOMA to be unconstitutional and it was therefore probably inevitable the Supreme Court would choose to hear at least one of the DOMA cases. It is less clear, however, what the court plans to do in regard to Proposition 8 as it involves state rights, an area federal and federally-aligned agencies are loathe to become involved in. States have considerable more autonomy in many areas of law in the US than provinces do in Canada and those rights are fiercely defended against even a suggestion of federal interference.
This was one of the delicate issues facing the Kennedy Administration in the 1960’s with the Civil Rights Movement and the dismantling of segregation. Several Southern states had laws against ‘race mixing’ in the schools and public services sector, such as restaurants and transit services, and the often violent reaction we see in old news clips from that era had as much to do with a reaction against perceived federal interference in state autonomy as it did with garden-variety racial bigotry.
Despite criticisms that to make the comparison somehow denigrates the Civil Rights Movement, there are similarities between that era and the current era of Equality Rights which do exist. Certainly, while there is not the level of violence, including murder, civil rights activists often experienced from segregationists directed at equality rights activists, the degree of polarization and much of the rhetoric coming from ‘pro-traditional marriage proponents’ is eerily similar to the rhetoric from segregationists and white supremacist groups of the 1960s.
We also lack a charismatic leader such as the Civil Rights Movement had in Martin Luther King Jr. The GLBTQ movement, including but not confined to the movement towards equal marriage, is somewhat more fluid, not as contained or specific, if you will, as that movement. While we have our sexual orientation in common, and face the same hurdles and discrimination because of that, the GLBTQ community is a far more diverse one than the "Negro" communities of 1960’s America were.
The GLBTQ community is more economically, racially, ethnically, and socially diverse than was the case amongst Black Americans prior to and during the Civil Rights movement...or since, for that matter. Most Black Americans experienced - and continue to experience - very distinct economic disadvantages due to race but also have tangible and identifiable commonalities in place that the GLBTQ community simply doesn’t. As one activist said to me many years ago, the lesbian and gay men’s community has about as much in common with each other as the smokers’ community. Since then, the concept of ‘community’ has expanded even further to include bisexuals, transsexual and transgendered and queer-identified people, all with their own agenda and concerns.
Sexual orientation is not confined to any one particular socio-economic or ethnic group and, while that is a strength in many ways, it can also make organizing a politically-charged movement a challenge. Much of the organizing done within the GLBTQ community since the early 1980’s has been - or seen to have been - around urban, middle-class, and primarily WASP (white Anglo-Saxon Protestant) issues. Certainly the fight for equal marriage was, at least initially, seen as a middle-class urban issue and one of the challenges faced by those of us involved in the push for equal marriage in Canada was to form coalitions with other groups within the GLBTQ community and have them ‘buy in’. Over all, I’d say we were successful in that.
In Canada, federal vs provincial jurisdiction issues are far less pronounced than they are in the US. When it came to equal marriage, for instance, it was very clear the federal government could - and ultimately did - define what marriage was. The federal government was responsible for the ‘what’ of marriage whereas the provinces and territories were responsible for the ‘how’; provinces decide how marriages are performed but do not have the authority to define it.
This is not the case in the US and so we have this patchwork of legal same-sex marriage in some states, legal domestic partnership but not marriage in others, permitted but not technically ‘legalized’ domestic partnerships in still others, or outright bans against officially recognizing either form of relationship in yet others. It is all very confusing, needless to say. Then, over-arching all of that, is DOMA and access to federal benefits...or, rather, the lack of access to those benefits even in states which recognized same-sex marriages under law.
It is this stew of conflicting rights that the United States’ Supreme Court will hopefully address and perhaps bring some order to. The repealing of DOMA would be a major step in that direction.