Since before the 21st century opened, the United States has been embroiled in parallel and intertwined national and state-specific debate about how to handle same-sex unions. The pace at which the discussion and policy landscape has evolved is breathtaking; The result is heartening. And, with two federal court decisions striking down two states’ bans on same-sex marriage last week, the momentum is compounding in a positive direction – both in terms of fairness and justice, as well as constitutional compliance.
The United States has moved from a cultural location steeped in enough homophobia as to inspire a 1996 federal law – the Defense of Marriage Act – that defined marriage as being between one man and one woman, and denied any federal recognition of marriages that did not meet this standard. That meant no Social Security survivors’ benefits, tax or insurance benefits. This legislation served to ostracize same-sex couples seeking to formalize their relationships and left partners with little recourse in carrying out one another’s affairs at critical times.
Its mean spirit and disempowering letter was made more injurious by the chorus of state laws – derived from legislative action and voter initiative – banning gay marriage. At the height of the trend, 31 states had constitutional amendments banning legal recognition of same-sex unions. Now, through a growing series of legal challenges and legislative acts, gay marriage is legal in 20 states, and many remaining bans on the practice are awaiting judicial decisions. And one year ago last week, the U.S. Supreme Court deemed DOMA’s premise that the federal government need not recognize same-sex marriage – through benefits and otherwise – to be unconstitutional.
That was a pivotal decision in reversing the anti-gay-marriage political and policy trends at the state and federal levels, unleashing a year of legislative and legal landmarks. Last week, in separate cases, a ban in Indiana was overturned, and laws in Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming were deemed unconstitutional by the 10th Circuit Court of Appeals. This was a precedent-setting ruling, marking the first time a federal appeals court has weighed in on the issue, and its opening salvo was steeped in constitutional arguments.
“We hold that the Fourteenth Amendment protects the fundamental right to marry, establish a family, raise children, and enjoy the full protection of a state’s marital laws. A state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union,” the court wrote.
Despite the strong constitutional premise for the 10th Circuit Court of Appeals’ ruling, however, these states’ bans will remain in effect pending the appeal process – now headed for the U.S. Supreme Court. Nevertheless, the foundation underlying this case and those preceding it is that all Americans – regardless of their sexual orientation – are deserving of equal protection under the law. The court seems to recognize that marriage laws excluding some from the benefits and responsibilities inherent in the union do not measure up to that critical standard upon which our republic is based. Imagine substituting an individual’s race or religious affiliation for his or her sexual orientation. No state law doing so would be tolerated.
There remains significant ground to cover on the various laws addressing same-sex marriage. The map is growing more clear and detailed by the day, though.
