Is Marriage Equality at a Tipping Point?

Tracy Baim Watching the historic June 24 vote that sealed the deal for New York to become the sixth state to legalize same-sex marriage was goose-bumpy exciting. In this guest post, journalist Tracy Baim speculates on whether New York represents a tipping point, as some have speculated.

While opposite-gender marriage slips into a minority percentage of the population, the movement for gay marriage equality shows no signs of slowing down.

The state of New York has joined a small number of American states, and a few nations such as Canada and South Africa, that allow for some form of government recognized marriage or civil unions between two people of the same gender.

Is the New York marriage law a tipping point on this issue? It certainly does represent a unique set of circumstances, where moderate Republicans were pressured to join the Democrats in passing a long-fought for civil right.

But many U.S. states still have their own Defense of Marriage Acts (DOMA) that will refuse to honor those out-of-state marriages, and the federal government has its own DOMA law cutting state’s marriage rights off at the proverbial knees. (Many significant benefits of marriage are actually federal, not state—social security, inheritance taxes, immigration rights, etc.)

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While a few more states may eventually pass full same-gender marriage rights, it is unlikely to hit a critical mass or majority. Therefore, it is important that the marriage battle takes place on a federal stage. Congress is not expected to have the votes to overturn this law, so the best hopes are resting on the court system.

But because of the unpredictable nature of the U.S. Supreme Court on this topic, the court strategy is also no guarantee for marriage equality. Even if lower federal courts begin to overturn DOMA, the law could have strong conservative allies in the nation’s highest court.

President Obama, long an opponent of DOMA even if he personally has changed his mind on gay marriage several times, has ordered his Department of Justice (DOJ) to stop defending DOMA’s section that denies recognition of legally sanctioned same-gender unions in the states.

Obama and his team are walking in historic quicksand. While he said he is “evolving” on this issue, he in fact has a history of supporting gay marriage (in a 1996 survey to my newspaper, Outlines, which merged with Windy City Times in 2000). He later changed his mind, and now is hinting at a new evolution to come, likely in 2012 or after.

But regardless of what he says, Obama’s DOJ work against DOMA is the most important current battle against marriage inequality. If federal DOMA comes tumbling down in the courts, it will mean that people across the country will have at least some rights of marriage, because some states, like New York, Iowa and Massachusetts, do allow out-of-state residents to get married there. These couples will return home, in some cases to state DOMA laws, where they will continue the legal battle for full equality.

Thus, while the dominoes are starting to fall, they are often disconnected and therefore the “falling” is not uniform, or predictable. This means that many gay couples, legally married in the eyes of some governmental bodies, remain in an accounting and legal limbo.

This limbo will cost them time and money, and will continue to be an unfair burden based simply on the gender of the person they love.

Tracy Baim is publisher and executive editor at Windy City Times in Chicago. She is also the author of “Obama and the Gays: A Political Marriage” (2010).

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