This post is by Joshua Friedes, Executive Director of Equal Rights Washington.
Remember what happened yesterday. Years from now it will be memorialized in films and documentaries as the tipping point in the struggle for full LGBT equality. The irony is that it was not a court holding, the passage of a bill, a giant march on Washington, or the call from increasingly powerful celebrities whose power grow daily with their mastery of social networking. The final nail came in the form of a simple legalistic statement from the Attorney General that President Barack Obama ordered the Department of Justice to not defend legal challenges to section 3 of DOMA.
“After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases. I fully concur with the President’s determination.”
It will take days, months perhaps even years to fully understand the importance of this day.
What changed? The president said something truly profound. Something far more powerful than voicing personal support for marriage equality. In fact, in essence the president said today his personal opinion about marriage is largely irrelevant.
And that’s a good thing since it remains unclear what the President’s personal feeling is about gay marriage. The President said today, if a same-sex couple has a legal marriage, to deny that couple the Federal protections of marriage because they are of the same sex is unconstitutional. Now the Federal courts must do their job.
While marriage equality does not equal full equality, there can be little question but that it is the central issue in the struggle for LGBT equality. In America, the freedom to marry is a hallmark of full citizenship and the badge of inferiority worn by gay and lesbians says “may not marry.”
For Washington State today’s statement changes everything. Yesterday it was hard to articulate to the moderate middle why domestic partnerships were not enough. After all, in essence, a gay couple with a legal marriage in Massachusetts had roughly the same rights as a gay couple with a domestic partnership in Washington State. Many people have trouble understanding the non-tangible protections marriage provide nor the indignity of not being able to marry. Now we can easily explain the difference.
Today, the Attorney General explained to the nation that legally married same-sex couples should have a constitutional right to the federal protections of marriage. Legally this is what differentiates a marriage license from a civil union or a domestic partnership. There is no corresponding constitutional protection to provide the federal protections of marriage to same-sex couples with domestic partnerships or civil unions.
Soon we will be able to measure the tangible difference between a domestic partnership and a legal marriage. At last count I believe it was 1,138 federal protections that were given by the federal government to heterosexual couples with a valid marriage license. We are talking about important protections like social security survivor’s benefits and immigration rights and equal treatment under the IRS tax code and Veterans benefits to the families of those killed in the line of duty.
Now we in Washington State must work quickly to achieve marriage equality. Never do we want there to be a day when our LGBT families lack the maximum protection provided by law. Soon federal DOMA will be struck down as unconstitutional and same-sex couples with marriages from Massachusetts, Vermont, New Hampshire, Iowa, Connecticut, Canada and other countries where marriage is legal will have federal protections. Couples from states like Washington or Oregon with domestic partnerships will lack federal protections. Sadly it will take time for Federal DOMA to fall, but this gives us time to achieve marriage equality in Washington State. Two good places to start—or continue— your activism are by attending Equality Day in Olympia on March 22nd and by signing the marriage equality petition.
And sometime in the future we will move beyond the tipping point towards the end of the struggle. On that day the courts will hold that no state may deny a marriage license because of the sex of the person they wish to marry. Sadly we are not there yet. Nor at the Federal level have we seen similar advancements on gender identity and expression.