The Supreme Court ruled this morning that Section 3 of the Defense of Marriage Act is unconstitutional. The federal government will now be required to recognize same-sex marriages from states where they are performed, opening the door for marriage based immigration petitions by same-sex binational couples.
The Supreme Court announced no decisions on the Defense of Marriage Act today, but scheduled another day of decisions Tuesday, June 25, at 10:00 AM EDT. There will probably be at least one more day of decisions later in the week.
The Supreme Court has announced all of its decision for today (Monday, June 24), with nothing on US v. Windsor. We’re waiting to hear which day(s) this week they will announce more decisions.
Even if the Defense of Marriage Act is overturned, gay couples would have to travel to one of the few states where gay marriage is possible before their relationships would be recognized. Including recognition of permanent partners–married or not–would easily solve this problem.
Politicians who oppose this amendment prove that their opposition to gay marriage is not about the word marriage–it is about our relationships.
Most of my friends are elated by President Obama’s statement on Tuesday that same-sex couples “should be able to get married.” While I am pleased that the president’s position has finally “evolved” to this point, I am having trouble mustering the enthusiasm I see all around me.
The most convincing argument (to me) that the president’s evolution is a Big Deal, even though it has no legal effect, is the statement it sends to people—especially to young queer people struggling with their own identities—that the president thinks they’re OK. I guess this has some validity, but I’m picturing a teenage kid being ostracized for her or his perceived deviance, and I have trouble imagining just how helpful it is to that kid to take solace in the approval of a dude in Washington. (Perhaps I don’t fully understand the reverence for the president inculcated into people raised in this country.)
Back to the legal effect: According to federal law, a marriage between two men or two women has exactly the same effect it had last week: none. In the field I work in, immigration, this means that a US citizen may sponsor her spouse for immediate permanent residence—but not if they are the same sex. This is required by the Defense of Marriage Act (DOMA), which the president admittedly does not have the authority to repeal. There are many things, however, that he could do, and has not. He could announce that Immigration and Customs Enforcement will stop all deportations of people with same-sex US citizen spouses. He could require that US Citizenship and Immigration Services hold petitions for same-sex spouses in abeyance until the law is settled (based on pending litigation challenging the constitutionality of DOMA) and issue work authorization in the meantime (as we do for opposite-sex spouses while their cases are pending). The administration has done a lot over the last few years move toward better protection of LGBT rights, but there are still gaping holes that could at least be plugged by administrative order. The president’s announcement of his support for my right to marry rings a little hollow given his refusal to take concrete steps to ameliorate the damage of discriminatory laws.
The bigger impediment to my enthusiasm is more about the LGBT rights movement in general than about President Obama. I am troubled that for the last five or ten years, the overwhelming majority of LGBT rights energy has been focused on the right to marry. And the argument usually boils down to “our marriages are just like yours, so you should accept us.” But I don’t want to be accepted because I’m just like you, I want to be accepted despite our differences. Better yet, I want to live in a society where our differences are celebrated, not tolerated. By focusing all our energy on gaining the right to be just like everyone else, I feel like we are missing a huge opportunity to move our society toward one that truly rejoices in our diversity in every way.
And back to the law: I am pleased that the president believes I should have the same legal rights as my nonhomosexual friends. And I am pleased that the state where I live recognizes my right to form a family in the manner that has been prescribed for nonhomosexuals for the last couple of centuries. I would be even happier, though, if I knew that I could live and work anywhere in this country without fear of being fired or evicted because I’m queer. It is currently perfectly legal in 30 states for a private employer to fire an employee because of her sexual orientation, and in 35 because of gender identity. (My stats are from Wikipedia, so may be off a little, but you get the picture.) Why does this get so much less attention than marriage?