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Republicans acknowledge marriage equality is increasingly a losing issue for them

Marriage equality

By Jacob Combs

In a front page, top-of-the-site article today, POLITICO reports on the Republican Party’s “retreat” from the issue of marriage equality:

It’s been one of the swiftest shifts in ideology and strategy for Republicans, as they’ve come nearly full circle on same-sex politics. What was once a front-and-center issue for rank-and-file Republicans — the subject of many hotly worded House and Senate floor speeches — is virtually a dead issue, as Republicans in Congress don’t care to have gay marriage litigated in the Capitol.

Even more than that, Republican leadership has evolved, too. It has quietly worked behind the scenes to kill amendments that reaffirm opposition to same-sex unions, several sources told POLITICO.

The POLITICO story doesn’t exactly break new ground, but it is remarkable to note that House leadership has had a hand in crafting the legislative truce on marriage equality at the federal level.  Congressional Quarterly ran a piece last week detailing how John Boehner has come under fire from conservative groups for not doing enough on the marriage front.  Of course, Boehner has committed $742,000 to the defense of DOMA out of a contract that provides for up to $1.5 million.  In an excellent example of ‘small government’ at work, it’s unclear where exactly this money is coming from.

This is not to say that Republican leadership has suddenly seen the light on marriage equality; they’re still committed to defending the discriminatory and unfair law that is DOMA.  However, it is still significant that when Republicans discussed a reaffirmation of DOMA or a vote on the merits of a constitutional amendment on marriage last year, they opted to forgo both and quietly pursue only legal action.

In my opinion, there are two big takeaways from POLITICO’s reporting.  First, while anti-marriage equality efforts continues to take place on the state level, there appear to be quiet but encouraging signs that we have essentially won on the federal level.  Talk of a marriage amendment to the U.S. Constitution is dead, as it rightfully should be (that was always a pipe dream with little chance of enactment).  P8TT has opined before that it might be preferable to our cause if were DOMA struck down by the Supreme Court before that court rules on the Prop 8 case.  I continue to agree with that sentiment: DOMA is now the remaining hurdle to marriage equality at the federal level.  Bringing down DOMA returns the debate entirely to the states, where the real gains will continue to be made.  (Because family and marital law is historically the province of state governments, a federal legislative action establishing marriage equality would be as suspect under the Tenth Amendment as DOMA is.  The proper route to equality is through state legislatures and courts and, eventually, a Supreme Court ruling on the unconstitutionality of marriage bans.)

Even more importantly, though, it’s important for the marriage movement to stay on guard.  The whole “we should only be focused on the economy” argument is a canard, even if it does help our cause right now.  The economy will improve, and once it does, some conservatives will no doubt go right back to advocating for rolling back any marriage equality achievements we’ve made.  We have an opportunity, then, (and so does the Democratic Party) to push our advantage in this moment and to argue that equal rights should be a priority for our nation and for our government in any economic environment.  If we do, when the economy improves and conservatives are looking for a new cause to rile up the base, we can ensure that marriage equality remains a political non-starter for them.

16 Comments

  • 1. Sagesse  |  March 30, 2012 at 9:11 am

    @

  • 2. Jacob  |  March 30, 2012 at 9:17 am

    Why should there not be a federal law establishing marriage equality?

  • 3. Steve  |  March 30, 2012 at 9:27 am

    It’s not the GOP that came to this realization. Big business knows that hating on LGBTs is bad for business. They’re just following the money.

  • 4. Jacob Combs  |  March 30, 2012 at 9:35 am

    Just updated that section to make the argument clearer. (I hope!)

  • 5. Str8Grandmother  |  March 30, 2012 at 10:19 am

    Jacob, really nice article, one of your better ones.
    I encourage you to pick up the phone and do first person reporting. For example call the jerks in Washington State and find out where they are with their hateful petition, what are the numbers?

    It is great to find things on the internet and analyze, even better, is to do first person reporting. Evan Wolfson takes calls, I know I talked to him. I am very interested in North Carolina and Minnesota. Suggest you call both sides and bring us some info.

  • 6. _BK_  |  March 30, 2012 at 10:57 am

    I second Str8Grandmother's motion. It would be extremely helpful if a big-name equality activist could ascertain the number of signatures that have already been gathered in WA. Depending on the exact number, we could know whether to prepare ourselves for an imminent showdown at the ballot box.

  • 7. Jacob  |  March 30, 2012 at 11:31 am

    Yes, much clearer. Thanks!

  • 8. Lymis  |  March 30, 2012 at 12:02 pm

    An additional point as to why striking down DOMA is critical – at this point, the single biggest successful reason that states give for marriage discrimination is that under DOMA, alternate legal arrangements like civil unions (or, less validly, wills and contracts) give "all the benefits of marriage except the name."

    Once federal marriage benefits come with a state sanctioned marriage, that will no longer be true, and halfway measures won't fly any more. All the states with civil unions will come under immediate pressure to upgrade to marriage.

    As to the other argument, that "a federal legislative action establishing marriage equality would be as suspect under the Tenth Amendment as DOMA is" – that's disingenuous. It would depend on exactly what legislative action was taken. A federal affirmation that same sex couples will be treated equally in marriage in all respects to opposite sex couples doesn't stomp on states rights to declare who can marry.

    And nothing prevents the federal government from recognizing out of state marriages for federal purposes. The world didn't end when legally married same sex couples were recognized by their state but not for federal purposes, and it won't end if legally married (in another state) same sex couples are recognized for federal purposes but not by the state. All the has to happen is clarity on what exactly are state benefits and what exactly are federal benefits. I'm not advocating that, but it's not inconceivable or unworkable.

    The real federal level issue is having the Supreme Court recognize that the fundamental right to marriage without interference in partner choice by the government that was recognized in Loving v. Virginia extends to the gender and orientation of one's partner of choice. True, that won't be a legislative action, but it will be a federal one. And that will come down the road a ways.

  • 9. Matt  |  March 31, 2012 at 10:26 am

    The Politico assessment is way over the top and too optimistic. Republican power brokers are puppets on the social issues to one and only interest group, conservative Christians. What they want they get out of the GOP. As long as that is true, the GOP will never ever give up on heterosexist marriage. We have seen this in Europe where gay marriage is crushingly popular in Denmark, and yet, gay men and gay women cannot marry there. Why? Because the conservatives up until now have ruled the roost.

  • 10. Jacob Combs  |  March 31, 2012 at 5:21 pm

    Excellent points, Lymis. I do agree wholeheartedly about the effect that DOMA will probably have on civil unions, which is another very good reason for us to see an overturning or repeal of DOMA as a huge step for our community.

    To me, the legislative action that you describe would certainly be a welcome change from the current status quo and an important symbolic gesture, but I don't see how it would actually have any substantial legal or political effects. Once DOMA is gone, federal law returns to where it was before, which is that all couples who are legally married under state law are treated equally to opposite sex couples for federal purposes. Am I missing something here?

    What your point does bring up, however, is Section 2 of DOMA, which allows states to opt out of the Full Faith and Credit clause and ignore couples' marriages that are legal under other states' laws. As far as I know, Section 2 has yet to be challenged in court, even though it seems as constitutionally impermissible as Section 3 to me. (I'll admit to being somewhat confused as to why a Section 2 case hasn't been filed yet. Perhaps LGBT legal advocates see a better chance of success in challenging Section 3 and then moving on to Section 2).

    So could the "federal affirmation" that you mention be a federal law repealing Section 2? That could certainly have a real impact in that it would seem to essentially bring marriage equality to all the states in a roundabout way, because couples could marry in any state that allows them to and then move to their home state, where their marriage would have to be recognized. To me, this seems like untrodden ground, and I wonder where that would take us.

    What I meant in my post was that a federal law that said established marriage equality in all the states would probably run afoul of the Tenth Amendment. Perhaps that's a semantic argument, but I think it's important. And I agree with you that the real federal issue involves the Supreme Court. That will come, some day, and hopefully sooner rather than later.

  • 11. Ann_S  |  March 31, 2012 at 5:39 pm

    Jacob, it is my view that Section 2 is irrelevant. States are at present free to disregard marriages from another state that the first state views as violating its public policy. My parents' marriage was legal in some states and not in others before 1967 and the Loving v. Virginia case. I think that, unfortunately, the situation would be the same for same-sex couples, Section 2 or no Section 2.

  • 12. Mike  |  March 31, 2012 at 8:29 pm

    I think Section 2, to some extent, is irrelevant. I live in Maryland, where it is legal for first cousins to marry. In Pennsylvania, it is illegal. There are many 'marriage chapels' in Maryland in towns that are "a stone's throw" from the state line, with more marriages from Pennsylvania than Maryland in those Maryland 'marriage chapels'. I'd wager that more than a few of those PA marriages are first cousin marriages. Almost all people from Pennsylvania who get married in Maryland go back to Pennsylvania right after the marriage (and/or honeymoon), and live as a married couple, with no questions from Pennsylvania about whether the marriage is or is not legal to be conducted in Pennsylvania.

    As to the stunt Massachusetts tried with 'out of state' people getting married in the state? The law they were using was to stop 'out of state' mixed race couples from going from states like Virginia to Massachusetts to get married, but the law didn't prevent mixed race couples living IN Massachusetts from getting married, and Massachusetts recognized all marriages conducted in all other states. And there apparently was no enforcement of the law after Loving v Virginia until Romney tried it when he was governor. It would have been an interesting court case for Massachusetts to try to defend that law and their actions if the law hadn't been repealed.

    In other words, unequal enforcement can be a reason to challenge a law.

  • 13. Lymis  |  April 1, 2012 at 7:17 am

    It raises a point that, as far as I know, has never come up in US history, with the possible exception of some diplomats visiting the country from places where polygamy is legal. It may well have come up with the miscegenation laws, but I have never heard it spoken of.

    People get (understandably) imprecise with their language. Right now, it isn't illegal to BE married anywhere in the US. It is illegal to GET married in the majority of states, and even then, as far as I know, it isn't criminal, just invalid.

    My husband and I are legally married, contracted in California during that window that Prop 8 closed. We live in Illinois, where the marriage is not recognized as a marriage. It does, however count as a civil union. When we go over the border into Indiana or Wisconsin, it is not recognized by the state at all for any purpose.

    But what happens when DOMA section 3 falls? Will the fact that we could not have contracted this marriage where we live mean that while we live here, the federal government won'r recognize it either, or will the federal government recognize the federal validity of a California marriage for federal purposes like taxes and social security, while allowing Indiana to ignore it for state taxes and state benefits?

    There doesn't seem to be any question that if DOMA section 3 falls, an Iowa couple married in Iowa and living in Iowa will be counted as married under federal law when they are in Iowa. But what happens when they drive through Illinois? Through Indiana? What happens when they move?

    The first cousin thing is instructive, but ultimately a non-issue, because there is no US state that has declared that having first cousins be married violates their strongly held public policy enough to hold those marriage invalid if they were legal where they happened. A lot of states, especially the ones with Constitutional amendments, have declared that same-sex marriage DOES violate their public policy, and the Full Faith and Credit rule presumably therefore does not apply.

    Everyone (sort of) agrees that the federal government defers the the states on who can GET married, but it has never yet come up as to whether they have to defer to the states on who IS married – that if my state says I'm not married, I can't get federal benefits, even if another state agrees that I am.

  • 14. Straight Dave  |  April 1, 2012 at 7:50 am

    "will the federal government recognize the federal validity of a California marriage for federal purposes like taxes and social security, while allowing Indiana to ignore it for state taxes and state benefits? "

    That's exactly right.
    Once you are married, you stay married – even in CA after Prop 8. The Strauss v Horton case ruled that a marriage is permanently vested, once it is legally performed. it would be absurd to imagine 2 states in a tug of war where they alternately marry and un-marry you every 5 minutes. That's just not gonna happen.

    The states and the Fed govt can choose to *recognize* your marriage and grant you certain rights and benefits. Or they can choose to close their eyes, stick their fingers in their ears, and not give you anything at all. But that's very different from actually cancelling your marriage. Recognition and acknowledgement are what's critical here. That's the only thing the govt can optionally do. Your marriage is permanent. You own it, whether you get any benefits out of it or not.

  • 15. Str8Grandmother  |  April 1, 2012 at 11:34 am

    Nice way to describe that Dave.

  • 16. Eddie89  |  April 2, 2012 at 7:15 pm

    You should rephrase the title of this posting to "Republicans acknowledge "OPPOSING" marriage equality is increasingly a losing issue for them"

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