What Straight Allies Need to Understand About Gay Marriage and States' Rights

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The fight for gay marriage rights is not like the fight against anti-miscegenation laws. It's more like the fight for divorce law liberalization, and that's why it needs to stay a state issue.

Reuters
Reuters

I'm getting cranky about how many people have been criticizing President Obama's breakthrough position on marriage equality without knowing what they are talking about.

He's for it, Obama told Robin Roberts, as we've all heard by now: same-sex couples should be able to get married just like our heterosexual siblings. When the president of the United States said that my marriage should be treated as the equal of his own, I was moved far beyond what I might have expected. The announcement had tremendous cultural power. And he hit precisely the right political notes in his statement, too, talking about his emotional shift on the issue, offering others the same path.

But too many people whose marriages are not up for debate have been griping that his announcement was too little, too late. He's endorsing federalism, argued Adam Serwer in Mother Jones. He's championing state's rights, complained left-of-center blogger Digby: "This is the essence of retrograde, reactionary politics and there's a long history of these 'sovereign' states exercising their 'rights' to deny minorities their freedom." Even House Assistant Minority Leader Jim Clyburn was upset with the president's approach. "I depart from the president on the state-by-state approach. If you consider this to be a civil right, and I do, I don't think civil rights ought to be left up to a state-by-state approach," he said Monday.

Such critics of Obama are wrong. They are wrong about what the administration has done and said, wrong on the politics of gay marriage, and -- most important -- they are wrong on the law.

To start with, here's what Obama actually said. He talked about his Justice Department's refusal to defend DOMA, the Defense of Marriage Act, against legal challenges, taking the position that it is unconstitutional. His administration was "no longer defending the Defense Against Marriage Act, which tried to federalize what is historically been state law," Obama said in announcing his support for same-sex marriage on ABC News last week.

He went on to explain that he feared (accurately, in my view) that by taking a stand in favor of marriage equality he could actually set the cause back: "I have to tell you that part of my hesitation on this has also been I didn't want to nationalize the issue. There's a tendency when I weigh in to think suddenly it becomes political and it becomes polarized."

And he accurately described the reality of American legal approaches toward same-sex couples -- and reaffirmed that that's precisely how marriage law works in this country:

And what you're seeing is, I think, states working through this issue -- in fits and starts, all across the country. Different communities are arriving at different conclusions, at different times. And I think that's a healthy process and a healthy debate. And I continue to believe that this is an issue that is gonna be worked out at the local level, because historically, this has not been a federal issue, what's recognized as a marriage.

Does that mean he's supporting "states' rights"? No, it does not. He's taking a position that will help my Massachusetts marriage actually end up being recognized in every state in the country sooner rather than later.

Let me explain.

States have always written their own marriage laws -- and if they didn't, if we had national marriage laws, I would not be married right now, as I have explained in great detail over at The American Prospect. I'm married in my state of Massachusetts only because the states are the laboratory of marital change.

Here's the technical caveat: the question of interstate recognition of another state's marriage is a federal question, mostly. And there, Obama is in favor of knocking down the federal DOMA, which as he noted was a federal incursion into state territory. And that's exactly what we need now: for the federal government to repeal its unprecedented incursion into marriage law -- DOMA, which defines marriage for federal purposes as between one man and one woman -- and to recognize all marriages that have already been made by the states.

What would de-federalizing marriage law do? It will make it possible for same-sex marrieds to be treated not just as married in their home states, but also in the United States. That's what would happen if DOMA is either repealed by Congress -- and Obama openly supports the Respect for Marriage Act, which would do just that -- or is knocked down by the federal courts, as a number of lawsuits are seeking -- and, again, which the Obama Justice Department also actively supports. Let us be 100 percent clear on this point: The administration is refusing to defend DOMA in court, and is filing briefs supporting the same-sex couples' stands. When marriage law is de-federalized, returned to the states, then mixed-nationality couples will be free to marry in the six (and expanding) states that now marry same-sex couples -- and the federal government will have to recognize that marriage for the purpose of the foreign-born partner's immigration status.

Will other states have to recognize those marriages as well? That's the open question: the lawyers tell me that full faith and credit doesn't necessarily apply if another jurisdiction's marriage law violates that state's public policy. Would it be valid for a couple living in Texas to go to Connecticut or Iowa specifically to evade their home state's marriage laws? Obama hasn't weighed in on that yet. And thank God -- if supporters of marriage equality want to win, it's better to keep that question from being called up for public debate just yet, and better to keep Obama out of polarizing the debate. But given the administration's record, my guess is that an Obama Department of Homeland Security and an Obama Justice Department would be on the right side of that legal question. It's equally clear that a Romney administration would not. When Romney was my state's governor, he put his administration to work unearthing and enforcing a 1913 law that refused Massachusetts marriage licenses to anyone from states where that particular marriage would not have been performed -- a law written to prevent out-of-state mixed-race couples from marrying in Massachusetts if they couldn't marry back home.

And yet anti-miscegenation laws are not a good parallel with state laws and constitutional amendments, like North Carolina's, which ban recognition of same-sex marriages.

Anti-miscegenation laws were closer to anti-sodomy laws: they actually criminalized marriage between races. The famous case that brought down interracial marriage bans, Loving v. Virginia, was brought by Mildred and Richard Loving after they were arrested in their own bedroom, charged, prosecuted, and sentenced to a year in prison unless they left the state. If my aunt and uncle -- an interracial couple -- had visited Virginia in 1958, they could have been arrested and jailed for their marriage. If I visit Virginia or Florida today, no one will arrest me for being married to my wife, Michelle. No state has yet made it illegal for me to be married to another woman. The state just doesn't have to treat me as married.

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E.J. Graff, a resident scholar at the Brandeis Women's Studies Research Center, is a contributing editor and daily columnist at The American Prospect and the author of What Is Marriage For? The Strange Social History of Our Most Intimate Institution.

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