After DOMA’s Defeat: Two Americas, and The Five Year Plan


The AP's David Crary looks at the other side of the DOMA coin:

But the court's rulings have no direct effect on the constitutional amendments in 29 states that limit marriage to heterosexual couples. In a handful of politically moderate states such as Oregon, Nevada and Colorado those amendments could be overturned by ballot measures, but that's considered highly unlikely in more conservative states.

With the goal of having another case before the Supreme Court, LGBT advocates say they want same-sex marriage nationwide within five years:

To sway the justices in such a time frame, activists plan a multipronged strategy. In addition to possible ballot measures in a few states, they hope lawmakers will legalize same-sex marriage in states which now offer civil unions to gay couples, notably New Jersey, Illinois and Hawaii.

There also will be advocacy efforts in more conservative states, ranging from expansion of anti-discrimination laws to possible litigation on behalf of sex-couples there who are denied state recognition even though they married legally in some other jurisdiction.

The Supreme Court's decisions "underscore the emergence of two Americas," Griffin said. "In one, LGBT (lesbian, gay, bisexual and transgender) citizens are nearing full equality. In the other, our community lacks even the most basic protections."

(map via The New Yorker)


  1. disgusted american says

    Meanwhile – Canadians LAUGH at Merikkka’s BLATANT Hypocracy….Liberty this, Freedom that…blah blah blah……..Pathetic Merikkka, Pathetic!!!

  2. MiddleoftheRoader says

    They need to bring a lawsuit involving a married lesbian couple with children who were born to one member of the couple in a state which says that if one married spouse gives birth to a child, then both of the spouses are considered parents (without any need for adoption). For example, the couple marries in NY, but moves to Alabama (first mistake!). All of a sudden, in Alabama, the children only have one mom – the birth mother – because Alabama doesn’t recognize same-sex marriages. So the non-biological mom can’t pick up her children at school, can’t sign medical consent forms for them, can’t register them for camp, etc. Does anyone really think that the US Supreme Court would say that it’s perfectly valid for Alabama to tell these children that they now have only one parent when they moved to Alabama?

    Pick some good, compelling cases — and the rest of DOMA (and state laws that refuse to recognize same-sex marriages from other states) will be found unconstitutional in regard to validly-married same-sex couples who move to states like Alabama, Texas, Oklahoma, Idaho, Ohio.

  3. Fancy says

    Another thing they need to do (though I imagine Lambda Legal and GLAD will lead the efforts here) is build a strong factual record to counter the (few) claims opponents have made in prior cases regarding the necessity for marriage to be defined one man + one woman. The Court seemed skeptical in oral arguments that there was solid evidence that children raised in same sex couple homes are better/worse than those not. There were a lot of suggestions that the data is too sparse/too new and that society really does not know what the impact will be. Establishing a long, thorough factual record on the sociological impact of married gay couples and their families will be vital to showing that even under the lowest level of scrutiny – rational basis – laws banning gay marriage fail. I think the Boies/Olson team did a wonderful job of this at the district court in California. But this will win the day. I think if you erase all arguments for the Court that there is any reason to define marriage in a traditional way, then it becomes clear these bans on marriage are driven solely by animus to gay people. And the harm done to children is greater when their parents’ relationships go unrecognized by the government than any alleged benefit derived from defining marriage as one man + one woman.

  4. ernstroehm's ghost says

    I think marriage rights in all 50 states will come, but I don’t expect to see it in five years.

    The progress that has been made started with humanizing/normalizing us in the eyes of the straight majority. Ironically, thank AIDS for that. Then came TV: “Will & Grace.” Simultaneously, BIG-BUSINESS began to treat gays equally, even though the law didn’t require it. This dovetailed with the fact that everybody has a gay relative or at least knows someone gay whom he doesn’t hate.

    The actual legalities of granting gays full rights gets us into thorny ground. Naturally, those who hate us take full advantage of this rough terrain. Many middle-of-the-road people are uncomfortable with a Supreme Court that can overrule states and even “lord it over” the congress and presidency. One of the SCOTUS justices expressed this view in his dissent.

    As I understand it, the PROP-8 “non-decision” is every bit as important as the DOMA ruling. Prop-8 was part of California’s constitution. If a federal judge can declare California’s constitution illegal, why can’t the same action apply to the other stubborn states?

  5. DB says

    If two people get married in Massachusetts and moves to Alabama, will they still receive the 1,000 benefits of federal marriage, even though they won’t receive the 300 benefits of state marriage?

  6. Marco Luxe says

    DB’s question shows the untenable nature of the status quo novus.
    The NY married couple that moves to AL will lose some federal rights and responsibilities but not others. Each federal agency uses its own standard to determine marriage status. Some agencies follow their own internal administrative rules, some agencies have their rules defined by law. The two main variations ask if the marriage is valid where celebrated [licensed],like the military, or valid where domiciled. Thus, the couples will be both married and unmarried for different federal purposes at the same time in AL. SCOTUS did anything BUT make it clear when they had the chance. Why’d they give so little guidance never mentioning level of scrutiny?

  7. CAnaivePeter says

    I’ve got to agree with Middleoftheroader.
    Pick compelling cases like Edie Windsor’s and it will only take a few cases and marriage injustice will crumble. Edie put a wonderful face on the realities of the situation–a human, full of life and love, face. That case was perfection.

  8. peter pickles says

    Everyone move to the Northeast. Let the rest of the country turn into a cesspool of trailer parks and woman married to closeted men (Bachman). We’ll have great parties – do it quick – I expect real estate prices to go up fast as we take over more neighbourhoods.

  9. Gary47290 says

    I think 5 years is optimistic, but possible.

    My Game plan is:
    2013: CA wins equality, MN, RI, DE statues take effect
    13 states

    2014: Petition initiative puts repeal votes on the ballot in OR, CO, OH, possibly MI, AZ (MI and AZ on 2016 ballot if not 2014)
    2014: NJ legislature overrides Christie veto, or knuckles under and gives him his vote. NM and HI legislatures enact equality
    21 states

    2014: Sue VA to overturn their ban. Include MI if they are not on the 2014 ballot. Both states makes private contracts illegal, a prima facie violation of the Contracts clause.
    22 states

    2016: Petition in MT to overturn the ban (the libertarian nature of MT should make it a reasonable sell), and possibly ND and SD as well.
    23 to 25 states

    At this point sue under equal protection to overturn the remaining bans.

    THis isn’t a slam dunk road map, but is plausible.

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