The battlefield for same-sex marriage has shifted back to the trenches after gay-rights advocates declared victory in this summer's Supreme Court decision striking down a key part of the Defense of Marriage Act. But the win brought with it an awkward challenge: how to explain to the rank and file that the fight is long from over without discouraging them.
To accomplish this, gay-rights groups must move on from the much-cheered DOMA decision to focus their next organizing campaigns on the new inequities it presents. Yes, the government now must bestow federal marriage benefits on all legally married same-sex couples as a result of United States v. Windsor. The justices struck down the part of the law that stopped the federal government from recognizing same-sex marriages. But only 13 states and the District of Columbia allow such marriages. The high court's ruling let stand a portion of DOMA that expressly permits states to ignore same-sex marriages performed elsewhere.
The DOMA decision was a huge psychological and legal boost for the gay and lesbian community, but it left same-sex couples in 37 states with half a loaf. "We're not done," wrote Brian Sims, the first openly gay state representative in Pennsylvania, in an op-ed published by The Guardian last week.
"The realities of life for an LGBT Pennsylvanian today merit closer attention."¦ Pennsylvania does not provide a single LGBT civil right," he said. Gays and lesbians don't have that problem just in Pennsylvania, which expressly bans gay marriage. There are examples everywhere you turn.
For example, a married lesbian couple in Georgia, which has a constitutional ban on same-sex marriage, recently posted a petition on Change.org demanding that the state's motor-vehicle department allow them to put their married last names on their driver's licenses. An even larger looming issue: Gay married couples in all 37 states that don't recognize same-sex marriages could find difficulties around tax time because they are required to file jointly on a federal tax return and prohibited from doing so on a state return. "It's going to get weird for people who are married. New complexities are going to emerge in the post-Windsor decision world," said Brian Moulton, legal director for the Human Rights Campaign. "It actually, in many ways, more starkly illustrates the inequalities among the states."
The bigger fight to legalize same-sex marriage is arguably harder now, and definitely less glamorous than the national struggle. It is a state-by-state, lawsuit-by-lawsuit slog that requires dedicated local grassroots campaigns and complex, interweaving legal strategies. "It's exhausting," said Danielle McCollum, who started the Georgia driver's-license petition. "I thought they had handled it. It's aggravating. I need more."
Stories like McCollum's will be the key to keeping the same-sex-marriage movement alive, but they are scattered too widely to garner the broader resources that come from a focused, national campaign. It is now a war with multiple fronts. "You have to have a game everywhere. I think we have to have a ground game. You have to have a political game. You have to have a court strategy," said Vickie Henry, a senior staff attorney for Gay and Lesbian Advocates and Defenders.
Four states — Hawaii, Illinois, New Jersey, and Oregon — could conceivably permit same-sex marriage in the next year, either in the state Legislature or as a ballot measure. Gay-rights groups have organizers working in those places now. Other states, particularly those that have gay-marriage bans written into their constitutions, will take considerably more money and time. "It can be a multiyear, very difficult undertaking, particularly in a state that has a strong majority on the other side," Moulton said.
There are also dozens of cases in the lower courts challenging state bans. One of those could be before the Supreme Court in the next few years, but only if the justices are willing to wade into such a conflict so soon after Windsor. "Obviously, if we get a win in the Supreme Court, we've won on marriage equality. But that's not a guarantee, and if we don't win, we'll have a 37-state strategy," Henry said.
If gay couples are confused, imagine the views of the general public after reading headlines declaring that DOMA is finished. "The Court didn't strike down DOMA, no matter what CNN said repeatedly," said civil-rights attorney Abby Dees in an op-ed this month in the magazine Out In Jersey. She, like other gay-rights activists, wants to keep those sympathetic to the cause beyond the movement engaged.
Ironically enough, what makes this harder is that the public at large seems to believe advocates such as Dees have already won. Multiple polls show that just over half of the country supports gay marriage. Yet the month before the Supreme Court ruled, almost three-quarters of Pew Research Center's survey respondents (72 percent) said they considered nationwide same-sex marriage to be "inevitable."
The perception was helped along by Justice Antonin Scalia, who lamented the certainty of nationwide gay marriage in his emotional dissent in Windsor. Scalia accused the five-justice majority of providing a diamond-studded path toward a full overturn of DOMA when they said that the law was motivated by "a desire to harm" couples in same-sex marriages. "How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status," he said.
As heartening as Scalia's prediction may be for the LGBT community, it hasn't happened yet. And there remains no guarantee — without an exhausting extended fight — that it will.