Yesterday’s historic election was bittersweet for me. Admittedly, it was far more sweet than bitter — but I feel a little sick in the pit of my stomach that a small majority of Californians chose to officially include discrimination in our state’s constitution. California wasn’t alone — Florida and Arizona also chose to take that step as well. Voters in Arksansas voted to deny gay/lesbian couples the right to adopt children or house foster children (of course they thinly veiled the discriminatory nature of their law by officially banning “unmarried” couples from adoption/foster care). It makes me sad that there are so many people out there who see absolutely nothing wrong with legislating discrimination.
Luckily for homosexuals living in California, the defeat is not as bad as it could have been. From what I understand (or at least have been told repeatedly), California already gives all the rights of marriage to same-sex unions through the Domestic Partnership law. Everything except the title “marriage,” of course. I’m offended by the whole “separate but equal” concept — but I suppose “separate but equal” is better than “separate and inequal.”
Even with Domestic Partnerships in place, the big hitch is the Federal Defense of Marriage Act which was passed & signed into law by Clinton in 1996. It basically says:
1. No state need treat a relationship between two persons of the same sex as a marriage, even if the relationship is considered a marriage in another state.
2. The Federal Government may not treat same-sex relationships as marriages for any purpose, even if concluded or recognized by one of the states.
Under the DoMA, “marriage” means only a legal union between one man and one woman as husband and wife, and “spouse” refers only to a person of the opposite sex who is a husband or a wife.
It was passed as a way of “quarantining” same sex marriage so other states wouldn’t have to accept it. — brought up after a Hawaiian court case in which it looked like Hawaii was going to be the first state to legalize same-sex marriage.
So — now that the ban is a part of our state’s Constitution (and now Florida’s and Arizona’s as well but by larger margins), there are a few ways to go forward.
1. Putting the issue up as a state Constitutional Amendment yet again — perhaps this time with specific verbiage in the proposition about not teaching gay marriage in schools (since the “yes” people basically won on the basis of the deceptive ads about teaching gay marriage in schools — the horror!!!!).
2. Obama and the Democratic-controlled House/Senate repealing the DoMA. This would probably be fairly tough. Even though the Dems will have the majority in each chamber, “Democrat” does not equal “pro-gay marriage” and I’m not sure a majority in either chamber would pass it if passing it would mean they’d lose their seats in the next election.
3. Obama gets a couple of reasonable Supreme Court Justices appointed, a court case about same-sex unions moves up the legal food chain, and the Supreme Court rules that denying same-sex couples the right to marry is unconstitutional, just as they did about interracial marriage bans in 1967.
The first option will, I’m pretty sure, come up in 2010 (don’t know about the phrasing yet of course — but it would seem dumb to try to pass it without negating the opposition’s most successful “argument” against same sex marriage). Unfortunately, even if it passes here in California, it doesn’t help gays/lesbians in other states.
The second option may not be all that likely. Obama probably doesn’t want to come out of the gates looking like a rabid liberal who cares nothing about the wishes of the red state electorates. Plus, coming down on the side of gay marriage is unfortunately political suicide in many areas of the country (and even in this state). Add to that that even if Obama is able to get the DoMA reversed, that would be a strong boost to socially-conservative Republicans & would fire up the evangelical Christian base… and it would just get re-reversed the next time a Republican lands in office.
The third option will take time and patience — but it would be the most legally-binding and broad-reaching — and would automatically scrap the DoMA if discrimination against gays/lesbians is found to be unconstitutional.
Although Prop 8 opponents like me are saddened today and will likely be saddened for a while to come, we need to move on and keep fighting for equality. Never give up. Never give in.
Discrimination is wrong. Whether supported by a majority or a minority, it’s wrong. Whether based in religion, ignorance, tradition, or any combination thereof, it’s wrong. It’s. Just. Wrong. It frustrates me to no end how many people just don’t understand that.