Family Equality and the Legacy of the Struggle

family equality

The issue of marriage equality is one that's been in the news a lot lately, and therefore at the forefront of my mind. Obama's proclamation that same-sex marriage should be allowed, and then his discussion of his administration's refusal to uphold the Defense of Marriage Act (DOMA) is a giant leap forward for both the social view of marriage equality and hopefully for the continuing fight to legalize same-sex marriage. There are two issues at the core of the marriage equality issue that stand out to me at this juncture. The first is that I believe "marriage equality" is a misnomer. The issue is not about who can have a wedding; the issue is the right to family stability. The second is that while fighting on a state-by-state level may be necessary at this point in the grand scheme of things, the legacy of the battle should be a federal law that prohibits states from putting the rights of their citizens up for popular vote. While allowing same-sex couples to marry is framed as a marriage equality issue, it goes well beyond that. This is a family equality issue. There are over 900,000 same-sex couples in this country. I want to give you a statistic about how tall they would all be if we stacked them on top of each other, but that feels degrading and I don't know how tall they all are anyway. In 30 states, these couples are systematically denied rights that heterosexual couples enjoy, like hospital visitation rights, social security benefits, immigration rights, health insurance under their partners' plans, family leave to care for their partners, and rights to partners' pensions in the case of their death. I'm lucky to have found someone to whom I want to be married (and continue to want to be married, nearly 5 years after the fact) who is the opposite gender.

When I said "I do," I really meant for better and for worse so long as we both shall live. I meant that I wanted to become a family with him. Clearly, the most compelling reason for so closely intertwining my life with my husband's is that when it is time to do so, I get to delegate "the talk" with our kids to him, not so much because I don't want to do it, but because I want to laugh at him while he does it. A close second is growing old with him, and building a life with him without worrying about the structural soundness of that life if something should happen to one of us.

Happily ever after aside, I married my husband because heaven forbid anything happens to him, I want to be able to sit in his hospital room outside of visiting hours to hold his hand and whisper to him about our first date and the bike ride we took through the Vietnamese countryside on our honeymoon and about the time that he accidentally left me dead flowers for Mother's Day, but I forgave him because he spent the next fifty years showing me just how important it was to make it right. If it comes to this, I want to have the right to make the decision about when it's time to let go, and then I want to lie with him in his bed and stroke his hair (or his bald head—after all, I promised to love him no matter what) and reassure him that it will all be okay until he is gone and I am alone. And he wants the same from me, and will do the same for me, because we are two grown-ups and we love each other enough to laugh at the other person talking to an awkward teenager about condoms and responsibility and STDs.

Marriage to me, as to most people, is not about the wedding (though weddings are awesome and I cry at every single one I go to), or even about just the two people getting married. It's about the chance to start a family, to blend families, and the security of knowing that if anything happens to me or to my husband, my family, both nuclear and extended, will remain intact. If our kids are still young enough to be living at home (i.e. under 30) if something happens to one of us, marriage is our insurance that their lives will remain as stable as possible amidst the chaos of loss. Because we all know how hard it is to place a 26-year-old Humanities major in an adoptive family.

While publicly declaring our devotion to each other is important, the stability and rights that our marriage affords our family are more important. I would love my husband if we weren't married; however, I would not have hospital visitation rights, health insurance, the ability to take leave to take care of him if something happens to him, or rights to his pension to provide for our daughter if he dies. And let's not even start with the "different nomenclature for different types of families" thing, because that's just dumb. Seriously, what is the logical and legal basis there? If we're sure enough about our relationships (or our chances of being able to cash in on our wedding for our reality TV show) to get married, our relationships should all be called the same thing in the eyes of the government.

At its core, marriage equality is a civil rights issue. This week has opened discussions about whether same-sex marriage should be an issue left to states, or whether it is a federal issue. My strong conviction that marriage equality needs to be a federal issue stems from my discomfort with states putting the civil rights of a minority up for voter referendum. In each of the 28 states that have put initiatives on the ballot to amend their state's constitution as defining marriage as between a man and a woman, voters have approved the amendment. Regardless of what your view of marriage is, think about the consequences of this precedent. If you are doing something of which a majority does not approve, and you are not a suspect class (i.e. a racial or religious group) under the fourteenth amendment, your rights can be put to the whims and passions of voters in your state. Aziz Ansari has a particularly compelling point on this issue:

By default, everything that the president touches is going to be polarizing; I don't begrudge him hedging his first statements. Working incrementally to change the culture in order to change the politics is the least inflammatory move for Obama to make at this juncture. But this doesn't mean that the rest of us can't work at both state and federal levels to ensure that the rights extended to heterosexual families are also extended to LGBT families. While some argue that anti-miscegenation laws are not a viable parallel for the same-sex marriage debate, the Supreme Court ruling (Loving vs. Virginia) states:

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law.

At the heart of the aforementioned Fourteenth Amendment, in case you haven't caught up on the episodes of Schoolhouse Rock that you have stored on your DVR, is the Equal Protection Clause, stating that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws." If this isn't relevant, I don't know what is. Marriage is a basic civil right, and under our constitution, we all have equal protection of the law (though sexual orientation is not yet one of the categories of people granted special protection under this amendment). Legislating against same-sex marriage at the state level denies to gay and lesbian families the fundamental rights afforded to straight families. Even more abhorrent is states opening marriage rights to a popular vote. Opening a vote on the rights of a minority to an impassioned majority goes against what our country stands for. Isn't it about time that we set a federal precedent that states should not be allowed to open to referendum the rights of their citizens? This is the crux of why marriage equity is, and must continue to be, a federal issue.

Granted, a federal ruling like Loving may be some years off, as only 17 states had laws on the books opposing interracial marriage when the Loving decision came down. I can see that leaving same-sex marriage to the states (while working to repeal the Defense of Marriage Act) is a powerful incremental tool for change. Public opinion of the issue is changing and continues to change---even Obama calls this a generational issue---and it is tempting to work state-by-state and hope that all states will come to their senses. But let's face it. Those last states aren't going to tip without a push from the federal government. Further, I fundamentally believe that states should be prohibited from putting the civil rights of their citizens up for a vote.* This is why I refuse to believe that pushing for same-sex marriage state-by-state is the end push. After all, legislation is about evolution---evolution of thoughts, ideas, and policy. It is about putting into writing and into law our fundamental beliefs of what is fair, what is right, and what rights and responsibilities we have as citizens of our towns, states, and country.

As a secular and democratic nation, we have built into our governmental structure a tremendous power to evolve, and to plan for evolution. At this juncture in time, we as a nation have an opportunity to decree that no minority should have their civil rights decided by the vote of a majority. This could be the legacy of the movement for marriage equity. There will no doubt be social issues that come to the forefront of American policy in the next 10, 20, 50 years and beyond. When we have seen that leaving civil rights up to state referenda nearly always leaves states on the wrong side of history (see: school integration & women's suffrage), why would we continue to let this be an option? We may not all agree on policy, but we should all be able to agree that this egregious practice needs to stop. A federal ban on civil rights referenda would be a fitting legacy for the marriage equality movement, strengthening our democracy and protecting all families' rights from the whims and passions of the majority.

*If you want to see an exceedingly handsome man who saves people from burning buildings make essentially the same point, you can watch this: