The number of states where same-sex couples can obtain marriage licenses doubled in four days – this week Iowa and Vermont joined Massachusetts and Connecticut by legalizing gay marriage. Additionally, the Washington, D.C. Council voted unanimously to recognize same-sex marriages performed elsewhere, joining states such as New York.
The Obama administration, still stuck in the old-school civil union mode, fumbled in its initial response to the Iowa ruling (at first leaving out the word "equal" in the statement, which read in part, "Although President Obama supports civil unions rather than same-sex marriage, he believes that committed gay and lesbian couples should receive protection under the law") before issuing a corrected statement: "Although President Obama supports civil unions rather than same-sex marriage, he believes that committed gay and lesbian couples should receive equal rights under the law." Actually, that statement falls short, too, as the administration should have said, gay and lesbian couples should receive "equal protection under the law."
Misstatements aside, we may be at a crossroads.
Same-sex marriage is gaining recognition in states, and not just in New England, as demonstrated by the Iowa court decision. A win for marriage equality in the heartland of America is truly a watershed.
It's clear to us, as we await the California Supreme Court ruling on Proposition 8, that our justices could provide the crucial tipping point for equality. The justices must reject Prop 8 and rule that such revisions to the state constitution require action by the legislature. There is no reason the court cannot hold Prop 8 to the higher standard required for a revision. This is the same court that last year issued its sweeping decision in favor of marriage equality, declaring that gays and lesbians should receive the same high level of scrutiny (suspect class) as other minorities. It would truly be a blight on the court if the justices uphold Prop 8.
The Iowa Supreme Court based part of its decision last week on the 2008 California ruling legalizing same-sex marriage. The Iowa justices correctly beat back a favorite – if false – argument of anti-gay opponents, namely that the marriage law didn't "expressly prohibit" gays and lesbians from marrying, they just couldn't marry each other. "Instead, a gay or lesbian person can only gain the same rights under the statute as a heterosexual person by negating the very trait that defines gay and lesbian people as a class – their sexual orientation," the Iowa court wrote, citing the California case.
Ultimately, the Iowa court ruled that it was unconstitutional to prohibit same-sex marriage. "A new distinction based on sexual orientation would be equally suspect and difficult to square with the fundamental principles of equal protection embodied in our constitution," the unanimous decision states. The state code language "limiting civil marriage to a man and a woman must be stricken from the statute, and the remaining statutory language must be interpreted and applied in a manner allowing gay and lesbian people full access to the institution of civil marriage."
It should be noted that Vermont is the first state to recognize same-sex marriage through legislation. While the California Legislature twice passed similar legislation, Governor Arnold Schwarzenegger vetoed it both times. Governor Jim Douglas in Vermont also vetoed their marriage equality bill, but in a stunning development, lawmakers there overrode his veto Tuesday, allowing same-sex couples to marry.
As great as these events are, however, there remains the reality that state-sanctioned same-sex marriage is still not equal to heterosexual unions because gay and lesbian couples do not receive equal federal benefits. Gays and lesbians in Vermont and Iowa – as well as in Connecticut, Massachusetts, California, and every other state – must start lobbying their congressional representatives to enact laws that will provide equal federal benefits for same-sex couples, whether they are married or in a domestic partnership or civil union.
The San Francisco Board of Supervisors this week passed a resolution urging the California congressional delegation (which includes House Speaker Nancy Pelosi and Senator Dianne Feinstein, two of the most powerful Democrats in Congress) to lead the fight to repel the Defense of Marriage Act. The resolution notes that Obama himself has pledged publicly, and repeatedly, to repeal DOMA and enact legislation that would ensure that over 1,100 federal legal rights and benefits currently provided on the basis of marital status are extended to same-sex couples in civil unions and other legally recognized unions.
That's a great first step from our city leaders. Now, members of Congress need to hear this message loud and clear from LGBTs throughout the country.