None of Us Is Free Until All of Us Are Free
Many of us will never forget where we were on the morning of June 26 when the Supreme Court issued its decision to slay Section 3 of DOMA. Still celebrating our 40th anniversary, John and I were on a brief holiday in New York City, getting dressed for a matinee of Bette Midler’s I’ll Eat You Last, her hilarious one-woman tribute to the late talent agent Sue Mengers. Although we had a packed agenda for the day, we didn’t want to leave our theater-district hotel room until the news broke. And when it did I broke into tears.
After listening to a few of the details, as well as the California Proposition 8 decision, we practically pranced out of our hotel and down the street into Times Square where—in a moment of serendipity—we found ourselves in a crowd of celebrants led by Broadway producer/actor Harvey Fierstein, whose uplifting Tony-winning musical Kinky Boots we would see the following evening. The “Mayor of Broadway’” was there to accept a proclamation from the City on the 40th anniversary of the TKTS booth, but he quickly turned the event into a peppy rally.
“I could just hug Sonia Sotomayor,” Harvey bellowed in his distinctive rasp. “What a great day for America!”
We cheered Harvey’s appraisal of the momentous occasion (and went on to enjoy some terrific theater on our trip). But by the time we landed back in Florida my initial excitement at the DOMA decision was turning to disappointment that it actually had been a great day only for part of America—the 13 states and DC where marriage-equality is law.
As I predicted in this column two months ago, the United States now has two classes of gay and lesbian couples, one with full federal marriage rights, the other without. An estimated 70 percent of LGBT people—John and me among them—live in states whose gay/lesbian residents will continue to lack most of the key advantages of civil marriage.
It has been encouraging to hear President Obama put out directives to federal agencies to implement as many benefits as possible in the broadest way possible. It appears he has the power to permit all gay married couples to file their federal taxes jointly, regardless of their state of residency. He also has the authority to update or change the rules of many other agencies. And he has been looking for a way to declare a uniform standard for gay couples based on the law of the state where their marriage took place, not where they live.
Under such a criterion, a gay couple married in Delaware would remain eligible for federal benefits even if they moved to another state, one that does not recognize their marriage. Such a standard also might include, for example, a Virginia couple who travels to Delaware to marry without ever residing in the “Small Wonder” state. “If you’ve been married in Massachusetts, and you move somewhere else, you’re still married,” Obama told reporters after the DOMA ruling, noting that he was “speaking as a president, not a lawyer.”
Therein lies the rub: the law. Eligibility for several of the most important rights of marriage, including Veterans’ and Social Security survivor benefits, is defined by federal statute. And the statutes say that the availability of such benefits is based on a couple’s marital status in their state of residency—not where they wed. No matter how much he’d like to do so, the President cannot simply change statutory language to include benefits to those of us who dwell in the 37 states that ban or fail to recognize same-sex marriages.
“That means it will require an act of Congress to amend,” reports Zoe Carpenter of The Nation magazine, “and with the House of Representatives controlled by Republicans, that’s unlikely to materialize. House Speaker John Boehner spent millions of federal dollars fighting to keep DOMA in place.”
So, how can we fix the injustice for second-class gay couples? Unfortunately, it’s going to take time, money and a lot more work.
In several states, marriage-equality organizations already are seeking gay couples who wish to be plaintiffs in court challenges to state governments for violation of their equal protection rights. If successful, these lawsuits could push the ultimate decision back into the Supreme Court’s lap. Because Justice Anthony Kennedy specifically said DOMA interfered with equal protection under the law, many legal observers are hopeful that the Supremes will be open to making a broader ruling that gay marriages cannot be denied by any state.
Unfortunately, the Supremes’ DOMA decision this summer did not go that far; it allows individual states to continue practicing the discrimination Kennedy spoke so eloquently against when he said: “The government has no business treating the deep commitments and loving relationships of gay couples as second-class or less worthy of respect.”
A second option, also being pursued in non-equality states, is to reverse state laws either through the legislature or the ballot box. That approach may succeed in a handful of states, but in the 30 where constitutional amendments outlaw marriage-equality it’s going to be quite a struggle. In Florida, for example, which is split pretty evenly between liberals and conservatives, it would take 60 percent of voters in a statewide referendum to overturn the constitutional amendment. Current polls show as many as 55 percent of the people in favor of marriage equality but some of that support is considered soft, whereas the rightwing would likely turn out big numbers to vote (again) against gay rights.
Even some of Florida’s most enthusiastic gay leaders are not optimistic change will come fast enough for many LGBT residents. Openly gay Representative Joe Saunders, a former leader of Equality Florida, has said that he expects an exodus. “If you are making retirement plans or financial decisions and you want those rights and benefits, why would you stay here?” he told the Orlando Sentinel. Other leaders have talked of impending gay flight.
John and I continue to explore our options. It would be complicated and costly to reset our residency button back to our old home state of Delaware, and John has been more hopeful than I am that a nationwide resolution to the marriage-benefits issue will come to pass soon. Well, some days he is more hopeful. Other days, he’s ready to start packing the van.
Congress could solve the problem with the passage of the Respect for Marriage Act, which would repeal the parts of DOMA the Supremes let stand and provide federal recognition of all legal same-sex marriages. Congressman Jerrold Nadler (D-NY) and Senator Dianne Feinstein (D-CA) have reintroduced the bill, which—despite 161 House and 41 Senate sponsors—continues to face a steep uphill fight, especially in the conservative House of Representatives. Though the attitude of many rank-and-file Republicans seems to be changing, their elected leaders are well behind them.
To those of you who live in Delaware, or who visit Rehoboth from DC, Maryland, and New York, congratulations on being able to fully partake of the responsibilities and benefits of marriage. But please don’t forget that most of us, including your gay and lesbian neighbors in Virginia and Pennsylvania and your friends down here in Florida, are still aching for the rights some of you may soon start taking for granted. We still need your hard work, your financial donations to the cause and your moral leadership.
As Martin Luther King once said, “None of us is free until all of us are free.”
Or as a popular meme making the rounds on Facebook puts it, “Your civil rights shouldn’t depend on your zip code.”