I'll Take Obama's Symbolic Gesture, Thank You Very Much!
Pundits and analysts are actively working over yesterday's statement by President Obama that "same-sex couples should be able to get married." It was calculated! It was a cynical attempt to recoup lost demographics he needs to get elected! He just wants to motivate a lackluster base!
You know what? He said it, and that's what matters to me. Because for me, and for millions and millions of other LGBT Americans (and the friends and family who know and love them), no matter how he got to that statement or why, he said it. I still got to hear those words come out of his mouth. It matters that a sitting president has, for the first time in history, recognized my rights to provide my family equal protection under the law.
Here's my political calculus: nine million are LGBT Americans, or 4% of the country (as comparison: 2% of the US population is Jewish; 5% is Asian); roughly one million LGBT parents are raising two million kids. A whopping 1,138 federal rights and protections are conferred based on marital status, including: surviving child and surviving parent benefits upon death, exemption of spouse from estate tax upon death, the ability to petition for US citizenship for spouse, and legal enforcement of financial support for children from divorced spouses. According to a 2009 New York Times study, gay families pay a penalty amounting to between $40,000 and $470,000 over a lifetime of discrimination in health insurance, estate taxes, pension income, spousal IRA benefits, tax preparation, financial planning and income taxes.
There's absolutely no doubt about the discriminatory treatment that prohibition of marriage confers, or of its financial and social impact; no doubt that children raised in families legally recognized by the state are more legally and financially secure, particularly in the case of the death of a parent, and in the case of a break-up: times when dramatic instability calls for just this security. We're not even talking about the emotional security that comes with your parents not being as stigmatized socially, which will follow with marriage equality.
The author following her legal civil marriage in San Francisco, CA, July, 2008.
There's also no doubt that who you wind up falling in love with and wanting to make a life with is about as explicable as which hand you favor: that is to say, we know no more about what makes us lefties, righties, or ambidextrous as we know about what makes us straight, gay, or bisexual. Our orientation is just as firmly inborn, as pointless to attempt to change, and as capricious to stigmatize and use as a rationale for unequal treatment.
There is no doubt that there's no harm done, to self or other, by being lesbian or gay, or even being such a person raising kids: so says study after study after study, not to mention the American Psychological Association for over a generation. By now we all know that the effects of stigma–prejudice, discrimination, and violence–are what harms gay people and their kids.
Every day that this stigma remains not just reasonable, but the law -- enshrined by second-class citizen status, whether state or federal -- our most hallowed democratic principles of equal treatment under the law and individual liberty are compromised.
For these reasons and more, Obama's public statement in support of marriage equality, after years of studious non-commitment, was a blow for -- not to -- our democracy. Officially, it's a statement of his personal belief, not an announcement of a campaign to change law -- yet. As an aide said, "It's not like we're trying to pass legislation." That work falls to the legislators who will be emboldened by the cover Obama just removed from wafflers on the issue. The Respect for Marriage Act (which Obama has supported since its introduction in July last year), would repeal the Defense of Marriage Act (or DOMA), lifting the DOMA-induced federal ban on recognition of same-sex marriages in those states in which they're legal. It would not compel individual states to recognize same-sex marriage.
That's for the U.S. Supreme Court to decide. Perry v. Brown, the case challenging the constitutionality of California's same-sex marriage banning Proposition 8, is snaking its way through the Ninth Circuit Court of Appeals en route to the U.S. Supreme Court. At this point, federal judges in California, supported by an appellate court panel, have concluded that Prop 8 violates the 14th Amendment's equal protection clause. One possible outcome of this challenge is that the constitutionality of same-sex marriage would be not only upheld, but other states, under the full faith and credit clause, would have to recognize those marriages from other states. Another outcome may be that the ruling could be narrowly limited to California's constitutional protections. Still another is that the US Supreme Court declines hearing the case.
Across the country, Gill v. Office of Personnel Management brings a Massachusetts challenge to the Defense of Marriage Act, and is being heard by the First Circuit Court of Appeals there. It is also expected to continue up to the Supreme Court. Another case is working its way through New York state courts, and six more cases against DOMA are yet pending. Which case will get to the Supreme Court first remains to be seen, as does the impact even a positive ruling would have on states other than those currently recognizing the constitutionality of marriage equality.
(Right now, marriage equality is the law in Connecticut, Iowa, Massachusetts, New Hampshire, New York, and Washington, DC. As of next year, if majority vote anti-gay referenda don't derail them -- and they've worked 33 out of 33 times -- Washington and Maryland will join these marriage equality states. California, with its 18,000 lucky sods who got hitched during those six months while we could -- see the photo earlier in the post for my happy day -- remains a legal anomaly.)
All of these legal and legislative tangles mean that what Obama said yesterday is not going to change the law anytime soon. Even if he wanted to override individual states' laws -- and he has said he does not -- doing so is no simple task. What he can do now is be a symbol. Whether or not he planned to make this statement before the Democratic National Convention in September, as administration officials have said, or he was backed into this by Biden's Sunday morning remarks in support of marriage equality, as some believe: Obama finally came out in support of me and everyone like me. And his slow evolution, for all the criticism it has drawn from both left and the right, is not at all atypical of how most people his generation and older move through this issue.
What matters to me today is that he said it, and I believe it's a sincere statement. Now, before what's expected to be a close election, when the electorate is still deeply divided (movement toward acceptance is consistent, but still far from overwhelming). It's hard to predict what the political cost or benefit will be to Obama. But that's not what's most interesting to me, actually. Others, from powerful lawmakers to skittish judges to at-risk teenagers, will take courage from this historic statement, and that heartens me. We have absolutely no idea what wonderful things just might happen next.