Freedom To Marry for All of the People, Some of the Time
I’ve got it! The answer to the quandary over same-sex marriage rights in the 32 states that continue to deny them. I must give a lot of credit to what’s happened in Utah for inspiring my new legislative proposal, which I have dubbed the Proportional Marriage Quality Act of 2014.
In Utah, as you know, gay marriage became legal this past December 20, when a federal judge ruled that the state’s ban was unconstitutional. About 1,300 same-sex couples took advantage of their right to wed before the U.S. Supreme Court intervened on January 6, stopping any further marriages pending the results of an appeal to the 10th Circuit Court in Denver. The state tried to say that none of the marriages performed in the prior weeks would be valid, but the Obama administration intervened, saying the federal government will recognize all of them as legal in regards to spousal benefits and taxation.
So, those who hustled to the courthouse on 16 specific days in December and January remain married in the eyes of Uncle Sam; those who wanted to wed before or after are not. What an incongruent mess, you say?
Sure, but isn’t governing always a mess? Instead of shaking our heads at the inconsistency, I say let’s embrace it with a compromise to end the friction between gay-marriage opponents and supporters. Under my plan, non-marriage-equality states would set aside a period of a few weeks or months each year when gay folks could become legally hitched, the duration of which would be based on current polling as to the popularity of same-sex marriage.
In Wyoming, where the issue brought Mary and Liz Cheney, daughters of former Vice President Dick Cheney, to loggerheads last fall while Liz was a candidate for Senate trying to court conservative voters, 32 percent of the population currently favors marriage equality. So, in order to assure the rights of that one-third of the population, same-sex marriage would become legal 121 days of the year. (It should be noted that nearly two-thirds of the Wyoming public supports civil unions for gay couples, so it’s likely the percentage approving full marital rights will continue to increase. As public support grows, so would the number of legal days to marry.)
Gay Montanans would have 157 days a year to marry (based on their 43 percent approval level) and Nebraskan same-sex couples would have 208 days (57 percent).
In Arkansas, where only 23 percent of people currently support us according to a recent poll, it would be legal for gay couples to wed 84 days a year. The federal government would recognize marriages performed on those days year round, but Little Rock would only have to recognize its queer couples approximately three months of the year—perhaps around Gay Pride season.
Under my plan, the voice of the people would be heard and honored, so everyone wins. Right?
Some of you may be muttering that old cliché about civil rights never being subject to popular opinion. But, folks, we’re not living in some warm and fuzzy European nation or Canada…or Spain …or South Africa…or Uruguay. This is the United States of America where we incessantly take polls and votes on everything. (Have you been on Facebook lately?) And as for civil rights, this is a land where (surveys show) people don’t even agree on the meaning of the term. Rightwing politicians who boast of protecting everyone’s personal liberty invest incalculable energy and rhetoric telling women what to do with their bodies, denying voters their franchise, and banning loving couples from marriage. The government, they say, should stay out of our healthcare which is a matter between doctor and a patient. Unless, of course, the patient is seeking reproductive care, stem cell treatments, medicinal marijuana, etc., etc.
So, setting aside the quaint notion that civil rights are above public opinion, my Proportional Marriage Quality Act will make it possible for gay couples to marry in all 50 states—at least a few weeks a year.
Because it allows same-sex couples full access to federal benefits, I’m campaigning for the Act under the banner: “Where We Can’t Have Marriage Equality, We Insist on Marriage Quality.”
I’ll admit that my plan is only a temporary solution, and I expect the Supreme Court ultimately to rule that marital rights should not be determined by a popularity contest. But, as they did by deflecting the Utah case back to a lower court, the Supremes are demonstrating that they’re still nervous nellies about taking up the issue until they believe (ahem) public opinion has shifted even further in support.
The shift is increasingly seismic every month, erupting in the unlikeliest of places. Take for example a judge’s decision in January that had some of us joyously belting out an old show tune. Oklahoma Senior U.S. District Judge Terence C. Kern ruled that his state’s ban on same-sex marriage violates the 14th Amendment’s equal protection rights of two lesbian plaintiffs. Now, the 10th Circuit Court of Appeals has put the Oklahoma case on the same fast track as the appeal from Utah. Both cases will be heard by the same trio of judges but won’t be combined into a single appeal.
Meanwhile, what other states are likely to be the next to endorse marriage equality?
Oregon is moving closer on two fronts. First, petitioners have collected more than enough signatures to qualify a referendum this November to overturn the state’s constitutional ban on same-sex marriage. Meanwhile a federal judge in Eugene has set arguments for April on two lawsuits charging that the ban is unconstitutional. A recent survey found that 54 percent of Oregonians support the right to same-sex marriage.
In Ohio, shortly before Christmas, a federal judge ruled that death certificates must include the marital status of the deceased even when a marriage was same-sex and performed out of state. The case involved an Ohio gay couple who married outside the state shortly before one spouse died. By being listed as a widow or widower, the surviving spouse has a stronger claim to death benefits. Meanwhile, FreedomOhio says it has enough signatures to place a measure on the November ballot to repeal the Buckeye State’s constitutional ban on same-sex marriage.
In Pennsylvania, the ACLU last summer filed a federal suit on behalf of 10 gay and lesbian couples, two children and a lesbian widow challenging not only the state’s ban on same-sex marriages but also its refusal to recognize out-of-state gay marriages—a key stumbling block for Social Security benefits.
Pennsylvania Attorney General Kathleen Kane almost immediately announced that she will not defend the state in the federal lawsuit (though the governor’s office intends to do so).
Similarly, Virginia’s newly installed Attorney General Mark Herring not only says he won’t defend the state’s constitutional ban on same-sex marriage but he also will participate in a legal fight against it with two gay couples.
Six couples in Florida, with the backing of Equality Florida, last month became the latest to sue a state over its constitutional ban on gay marriage.
The challenges are coming fast, so I’ll have to quickly ramp up the momentum for my Proportional Marriage Quality Act before its usefulness is overridden by what some polls already suggest. According to a brand new study by public opinion research organization Anzalone Liszt Grove, “Regardless of their personal views on marriage, voters in non-marriage states feel that same-sex couples will have the freedom to marry in their state in the next few years. A majority (56 percent) said they believe this, and even among opponents of the freedom to marry, 49 percent said they believe their state will be marrying same-sex couples soon.”
And I believe they mean all the time.