Earlier last week, the overturning of Proposition 8 in a federal appeals court demonstrated the persistent societal progress toward marriage equality for the queer community. Furthermore, another victorious leap in the fight for equality came as the Washington State Senate approved a measure that brought the state one step closer to allowing same-sex marriages. Both milestones were marked with emotional upheaval on each side of the debate—gay couples rejoiced while opponents cried out at the prospect of a country wherein rights are administered in an equitable fashion.
Although achieving victories in the quest for same-sex marriage equality at the state level has been a key part of reversing discriminatory policies, it is not enough. If all states were to legalize same-sex marriage (even Arizona!), federal statues will continue to prohibit the recognition of key rights that often go overlooked. The Defense of Marriage Act, a policy that has marginalized queer families since 1996, institutionalizes discrimination on a level that is unaffected by the continued achievements in the fight for marriage equality.
For instance, even if the legalization measure passes in the State House of Representatives, same-sex couples in Washington will still be unable to garner immigration rights at the federal level. In heterosexual couples, an individual can sponsor his or her married partner so that he or she may become a naturalized citizen after three years. However, due to the policies implemented by DOMA, a gay immigrant married to a United States citizen of the same sex can still be deported. In a country that touts freedom and opportunity as hallmarks of American society, this injustice faced by same-sex couples is an affront to the concept of “equal treatment under law.” We cannot be oblivious to the persistent struggles faced by couples in states that we believe are safe spaces for the LGBT community.
In a popular 2011 federal case, a Venezuelan immigrant married to an American citizen faced deportation although he had married his partner in Connecticut, a state where same-sex marriage has been legal since 2008. Despite not following through on deportation orders, Attorney General Eric Holder indicated that the state would continue to enforce the immigration law against same-sex couples. Currently, gay individuals are barred from even attempting to sponsor their same-sex partners to become United States citizens—federal immigration forms still read “husband” and “wife.”
A plethora of further federal statutes propagated by DOMA partially nullify the victories gained at the state level. Social security benefits cannot be transferred between same-sex married partners, a restriction that continues to place gay couples in financial risk in the event of a spouse's death. Even further, military policy prevents same-sex partners from receiving healthcare and pension benefits for the husbands and wives of those who, as politicians love to applaud, “defend our freedoms.” For politicians, it is disgustingly convenient to proclaim “Support our troops!” while financially crippling those of our nation’s heroes who happen to love someone of the same sex.
If Hillary Clinton were being fully genuine in her widely publicized condemnation of anti-gay discrimination at the United Nations, she would have addressed the tragic irony that it was President Bill Clinton who defined marriage as being between one man and one woman in DOMA. Although the “Don't Ask, Don't Tell” policy has been successfully repealed, the federal norms established during Clinton’s administration continue to harm gay soldiers. Thankfully, as legislators begin to change their outlook on same-sex marriage in an attempt to avoid being on the wrong side of history, such policies will be eroded. Same-sex marriage will become recognized throughout the country, eventually, as San Francisco Mayor Gavin Newsom put it, “whether you like it or not.”
However, to move the process forward, politicians at the federal level must take bold action in order to set a current precedent against discrimination. Although education was considered a state issue, Dwight Eisenhower had the fortitude to utilize federal power to promote the desegregation of schools in Little Rock, Arkansas, in 1957. Today, at a time when federally-based discrimination continues to threaten the access of Americans to the equal pursuit of happiness, politicians must not be afraid to intervene. Although same-sex marriage accomplishments in State Congresses move us closer to a country devoid of legal segregation, only the courage of the federal government will reverse the history of oppression experienced by the queer community.
The overturning of Proposition 8 has given the Supreme Court the opportunity to definitively rule against marriage inequality. In affirming the rights of the individual as the court has done in landmark cases such as Lawrence v. Texas and Roe v. Wade, the court must take an activist stance in once and for all eliminating discriminatory state practices. The time will come when close-minded pundits and politicians look back in disgust at their stance against social progress. Now, it is up to the courts to ensure that that moment comes sooner rather than later.
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