Near the end of the first act of Kander and Ebb’s musical “Cabaret”, the character Herr Schultz observes, “How the world can change, it can change like that, due to one little word: ‘Married.’” Just a little over two weeks ago, on June 24, 2011, it seemed as if the world had changed “like that.” The State of New York extended the legal right to marry to same-sex couples—something it had declined to do only a year and a half earlier. Beginning on July 24th, 2011, same-sex couples will be able to obtain marriage licenses and marry soon thereafter. As I noted in a recent YouTube video, it is impossible to exaggerate the sense of hard-fought victory this has engendered, particularly but by no means uniquely for lesbian and gay New Yorkers.
But not everything changed. Four particulars merit mention. First—if you will indulge my beginning at home—on the night of June 24th, my partner and I went from being mere legally registered domestic partners (I know, it sounds so romantic, doesn’t it?) to affianced (this after fifteen and half years together). However, we were, both before and after the change “like that," the same two people who had committed themselves to one another a long time ago, who had been living out that commitment ever since, and who had every intention to continue till death do us part. Shortly, we will do this with a host of new and important rights, benefits, privileges, and obligations—a set of formal changes that is great. Ultimately, however, who we are (may I say?) ontologically as a couple has not changed nor will it. My partner and I are certainly not unique in this regard. Moreover, for the time being the federal government will not recognize our marriage or any other same-sex couple’s marriage. More about that in the fourth particular infra.
Second, while enactment of marriage equality in New York doubled the number of Americans living in jurisdictions that allow same-sex couples to marry—a huge change—according to the most recent data, 89% of Americans live in jurisdictions without marriage equality. 41 states ban same-sex marriage and its recognition either in their constitutions or via statute. The global picture is bleaker still: only 6% of the 196 countries on Earth allow same-sex couples to marry. Clearly, for the vast majority of lesbians and gays around the world there has not been a change “like that.”
Third, opponents of marriage equality are not surrendering. Some will not even let same-sex couples marry in peace. Apparently taking a cue from the Westboro Baptist Church, the National Organization for Marriage will be protesting in New York’s four largest cities just as same-sex couples start to marry. Meteorological mythologizer and theological seismologist Pat Robertson has predicted Sodom-and-Gomorrah-like destruction for the United States as lesbian and gay nuptials approach in New York. It seems Reverend Robertson’s god not only hates fags but threatens to go all fire-and-brimstone if they dare say “I do.” On his blog the Catholic archbishop of New York, Timothy Dolan—insisting all along that he was only being “pro-marriage, never anti-gay”—likened marriage equality to living under the communist regimes in China and North Korea, and he warned of rampant promiscuity and polygamy lying in wait just over the cultural horizon. The Archbishop wrote, “If I have offended any of you in my strenuous defense of marriage, I apologize, and assure you it was unintentional.” It is difficult to believe he wrote that sentence with a straight face.
Of course, opposition to marriage equality—especially conservative religious opposition—is nothing new. As Professor Linda Hirshman describes in a recent piece for Slate, there have been variations of this battle for millennia. For example, Hirshman notes, "In the Anglo-American common law system, laws called 'coverture' eliminated women's civic personhood when they married men. Unequal marriage was portrayed as a bargain between naturally created opposites: women did women's work at home, and men took care of their public role, making contracts for them and voting in their interests. Apparently unsatisfied with this 'bargain', women pressed for equality, including marriage equality, ultimately giving rise to the suffrage movement in the 19th century and feminism in the 20th."
In response, “conservatives defended heterosexual marriage inequality on the grounds that women were naturally suited only for certain kinds of lives.” While, as Hirshman points out, “the naturalism argument has suffered somewhat from the fact that women have been living outside their ‘natural’ boundaries for decades,” naturalism arguments are a regular feature of today’s opposition to marriage equality for same-sex couples.
Fourth, as one of my YouTube subscribers recently asked, “When is this going to hit the Supreme Court? When is this going to be national?” The answer: probably not soon. This is proceeding on at least two tracks. One involves the several cases challenging the federal Defense of Marriage Act (“DOMA”) that are making their way through the federal courts. Back in February, much was made, quite correctly, of the Obama administration’s decision to stop defending section 3 of DOMA, which precludes federal recognition of legally entered into same-sex marriages. (I discussed the administration’s decision at length in a YouTube video entitled “Taking the ‘Defense’ Out of DOMA.”) It seems likely that section 3 will be struck down as unconstitutional, clearing the way for federal recognition of same-sex marriages. However, less certain is the fate of DOMA’s section 2, which provides that no state will be compelled to recognize same-sex marriages from other states; and even if section 2 were to go away, it is not clear this would make much difference at the state level.
The New York Times recently reported, “[M]any constitutional law experts argue that [DOMA] gave states no more powers than they already had.” Long before DOMA, the United States Supreme Court recognized that the states’ obligations pursuant to the Constitution’s Full Faith and Credit Clause were not absolute. See, e.g., the Court's 1939 decision in Pacific Employers Insurance Company v. Industrial Accident Commission, one in a line of cases recognizing a local public policy exception to the Full Faith and Credit Clause.
If, e.g., Texas’s recognition of a same-sex marriage legally entered into in New York were to violate Texas’s fundamental public policy, the Full Faith and Credit Clause would not require Texas to recognize the marriage. Texas is one of the 29 states with constitutional amendments that ban recognition of same-sex marriage, so it seems fair to say that Texas’s public policy is against such marriages and recognition would violate the state’s policy—quite apart from whether section 2 of the federal DOMA were operational or not.
The other track presents the more likely way for marriage equality to become national: a United States Supreme Court decision holding that the constitutionally protected right to marry encompasses the right of a person to marry someone of the same sex. Litigation currently pending in the 9th Circuit Court of Appeals regarding California’s Proposition 8 is believed by some to be the most viable vehicle for such a decision. If the Supreme Court were to rule this way, any and all state laws against same-sex marriage would be rendered unenforceable in the same way state anti-miscegenation laws fell as a result of Loving v. Virginia (1967). However, it will likely be some time before the Proposition 8 case makes it to the United States Supreme Court, if it gets there at all.
In sum, much has changed since June 24th, but much more has remained the same, with lots of marriage equality battles still undecided. To borrow from another Kander and Ebb musical (“Chicago”), it may not take “fifty years or so” for things to change (you know), but it has not and is not all going to change “like that” just yet.