DOMA Didn’t Go Away — It Just Went Local

The fight for marriage equality has become a war with many fronts. It could last for a long time.

Two brides are send on a wedding cake at a press conference in Los Angeles, after the United States Supreme court ruled on Californias Proposition 8 and the federal Defense of Marriage Act, June 26, 2013. The US Supreme Court on Wednesday struck down a controversial federal law that defines marriage as a union between a man and a woman, in a major victory for supporters of same-sex marriage.The Defense of Marriage Act (DOMA) had denied married gay and lesbian couples in the United States the same rights and benefits that straight couples have long taken for granted. 
AFP/Getty Images
Fawn Johnson
Sept. 26, 2013, 4:10 p.m.

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.

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