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Let’s say you and your partner live in D.C. and are thinking of trading in your domestic partnership for a California wedding. Your heart says: Marry while you can. If it’s good enough for Del Martin and Phyllis Lyon, it’s good enough for you.
If you’ve done your homework, your head might say: But you’ll have trouble getting a divorce if it doesn’t work out, because the state has a residency requirement for that, and California is a community property state. Besides, there is no telling when your marriage will be recognized back home, where the city’s congressional overlords are bipartisan in their opposition to marriage equality.
But you’re in love, and there’s been enough waiting. Del and Phyllis have waited more than 50 years. Many couples arranging trips to the coast this summer are in long-standing, well-tested relationships. When you marry, your love is its own authority, your mutual commitment no one else’s to give. If you have that with someone, you are already married in the truest sense of the word. What you seek in California is to make it legal.
And there’s the rub. How will you get your marriage recognized in D.C.? If Mayor Adrian Fenty and his attorney general are not ready to defy Congress, will you go to court? D.C. judges are appointed by the president, not the mayor, and D.C. courts ruled against same-sex marriage in the 1990s.
In a recent interview, one reporter essentially asked Fenty why the city did not act now based on optimistic predictions about the November elections. Fenty wisely avoided putting the cart before the horse.
Last week, a coalition of leading marriage equality advocates including Lambda Legal, Freedom to Marry, ACLU and the Equality Federation said in a joint statement, ”Pushing the federal government before we have a critical mass of states recognizing same-sex relationships or suing in states where the courts aren’t ready is likely to get us bad rulings. Bad rulings will make it much more difficult for us to win marriage, and will certainly make it take much longer.”
Same-sex couples have already lost cases in Arizona, Indiana, Washington State, New York and Maryland. In 2005, a gay couple provoked threats from Sen. Sam Brownback (R-Kan.) by trying to get their Massachusetts marriage recognized in D.C. As I said at the time, taking a damn-the-consequences approach is the political equivalent of sailing down the Potomac on a flaming barge. It would be one thing if such decisions affected only the couples making them, but those who press ill-advised cases are taking the rest of us with them.
Enhancements to D.C’s domestic partnership law already give registered partners nearly all the legal protections of marriage that a state can grant. We are blocked at the federal level by the Defense of Marriage Act. Even Del and Phyllis will get none of the federal benefits of marriage such as joint tax filing or Social Security.
Still, it will not do to say, as some do, ”What’s in a word?” The answer is: Everything. In New Jersey, a special commission reported in February that civil unions create a ”second-class status.” To cite one example, self-insured companies are regulated by federal, rather than state, law, and many refuse to provide health insurance to civilly-unionized partners. By the way, isn’t it awkward talking about civil unions? Marriage requires no explanation, and thus has a built-in advantage over any alternative.
It is precisely because the fight for marriage equality is so important that we should wage it smartly and responsibly, which means working together. As last week’s joint statement said, ”We need to choose the courts and legislatures where we have the best chance of winning.” In the meantime, all of us should be telling our stories and making our case to help move public opinion and lay the groundwork for future victories.
Until we get a federal version of the California ruling, married same-sex couples traveling from state to state will be in a legal no-man’s-land. It is a profound injustice that will take more than rash actions to defeat. Let’s stop demanding shortcuts and cooperate in the slow and steady work of making real and lasting change. Right now we have an initiative to defeat in California, to preserve the victory there. You can contribute to the cause by visiting www.equalityforall.com.