It’s appropriate that the Supreme Court’s decisions in the marriage equality cases — the cases evaluating the constitutionality of the Defense of Marriage Act and Proposition 8 — came just days before the nation commemorated the 150th anniversaries of the irreversible Battles of Vicksburg and Gettysburg. In the war to obtain full marriage equality in the United States, it is the summer of 1863. As a result of these two defining cases, we know how this very different American war will turn out. We don’t yet know the date of its Appomattox. The closing period of the push for marriage equality in the United States will include a series of skirmishes that play out at both the federal and state levels in almost every institution of government, leading to the moment when the U.S. Supreme Court ultimately declares end to this chapter of the culture wars.
First, in the coming weeks, the victory in the Windsor DOMA case likely will be consolidated by executive actions by the Obama Administration. The Department of Homeland Security already has determined that same-sex partners can sponsor spouses for green cards. Importantly, “marriage” for purposes of immigration law focuses on the state in which the marriage ceremony occurred rather than where the couple is now residing. While the final directives related to those in the military have not yet been handed down, it appears clear that the Department of Defense will follow a similar logic when it comes to the treatment of military spouses for that highly mobile population.
The Obama Administration also appears to have legal flexibility in expanding rights to couples who were married in states where same-sex marriages are legally performed (the “state of ceremony”) in areas ranging from bankruptcy to financial aid and, perhaps most importantly, in the nearly 200 separate provisions of the federal tax code that are tied to marriage.
When it comes to the major benefits in Social Security and veterans’ spousal benefits, however, the administration has fewer options because marriage is defined by statute as the couple’s “state of domicile.” Even here, though, as shown by information released by the administration regarding Social Security benefits, the administration appears to be seeking a way around this limitation. A new subchapter to the Program Operations Manual on the Social Security Administration website instructs processors to “hold,” rather than deny, claims in which the state of ceremony recognized the marriage but the state of domicile does not.
Second, we will see efforts to expand marriage rights beyond the current list of 13 states and the District of Columbia. Advocates see this occurring through a series of legislative actions (in states like Illinois and Hawaii), votes of the people (in states like Oregon and Colorado), and state court decisions (in states like New Mexico). Their goal is to legalize same-sex marriage in 20 states by the time of the next presidential election.
Finally, a flurry of actions will be taking place in federal courts. The cases that seem to have the greatest chance of success are cases from couples in “non-marriage” states requesting their home state simply recognize their marriages from other states. As an early example, two Ohio men — one dying of Lou Gehrig’s disease — successfully sued in late July to get their Maryland marriage recognized despite a ban in their home state, so that the dying man could be listed as married on his death certificate. Other marriage recognition cases will emanate from a couple’s desire to divorce in a non-marriage state. Ultimately, though, it is federal court cases by couples wishing to be married in non-marriage states that will lead to the U.S. Supreme Court finally grappling with whether state bans violate the 14th Amendment. At some point, probably soon after the next presidential election, it seems likely that the Court will do just that.
So, what’s the role of Arkansas in these final stages of the marriage equality battle? While the courage of plaintiffs in two recently filed court cases should be applauded, there are more promising cases in other jurisdictions. More important are the efforts to overturn Arkansas’s constitutional ban by a vote of the people. Though such a campaign (most realistically in 2016) may still fail at the ballot box, the margin likely will be much closer than 2004’s 3-1 vote passing the ban. Such a campaign could remove a political cudgel from the hands of anti-gay advocates, while transforming the cause of LGBT rights into a true movement — which simply has never before existed in this state. While elections and the courts move closer to the inevitable, such a movement could help accelerate the generational shift in hearts and minds. That’s crucial if Arkansas is to become a state where LGBT citizens can openly and comfortably live, work and raise families.