At lunch a friend asked me for my take on the First Circuit opinion striking down part of the Defense of Marriage Act. He expressed some disappointment, which I’ve heard elsewhere on the web, that the ruling would only apply to states that recognized marriage. I heard some of the same complaints when President Obama endorsed same-sex marriage, since he said states would continue to make their own laws on marriage. At the time I really wondered what else they were expecting – federal troops sent in to perform same-sex marriage ceremonies, perhaps? That would do wonders for the movement.
A court ruling requiring all states to honor same-sex marriage is almost equally unlikely, and ultimately I’m not sure it matters all that much. I don’t subscribe to the fashionable belief among some liberals that such court rulings are somehow illegitimate or counter-productive. A court decision guaranteeing marriage equality, like the court decision striking down sodomy laws (which has yet to produce the sort of backlash these legal theories would predict) would probably produce a small backlash from those who already strongly oppose gay rights while accelerating the steady movement of public opinion toward full equality.
But I think a decision that requires the federal government to recognize all valid marriages in a state is an important step, not just for the families affected but for the entire country. Right now I live in Oregon, where gay marriage is prohibited by a misguided amendment to the state Constitution (although the state’s domestic partnership law gives us virtually all the same rights as a married couple at the state level). Ten minutes away, in Washington state, same-sex marriages are legal. At the moment the difference is not enough to make us relocate across the Columbia River, but suppose the IRS and the Social Security Administration start recognizing marriages in Washington state. That creates a pretty strong draw for same-sex couples, and for any employers looking to hire gay or gay-friendly employees. Suppose a big technology company is deciding between locating in Oregon and Washington, and the latter choice will let it save accounting costs by treating all its married employees the same way for tax purposes. At the margins, these factors make a difference, and it’s hard to imagine Oregon voters are going to want to lose jobs just for the privilege of denying the word “marriage” to their gay neighbors.
The same dynamic could play out in New York and Connecticut vs. New Jersey, D.C. vs. Virginia, Iowa vs. Indiana, and anywhere that wants to attract young, educated, affluent residents, which is to say everywhere.
None of these things will persuade hard-core opponents of gay rights, but they are not the main obstacle to equality. According to analysis of the vote on California’s Proposition 8, the main problem is socially liberal married people with children, who generally favor gay rights but get a little uncomfortable about marriage. With nothing concrete hanging in the balance, those voters are more likely to think domestic partnerships are good enough. But when you can say the difference between “marriage” and “domestic partnership” is going to cost the gay couple next door thousands of dollars in higher taxes and lower Social Security benefits, and may cause large employers to locate elsewhere, the scale tips a bit more toward justice. It won’t happen overnight, but the resulting dynamic makes full equality almost inevitable for any locality in which people actually want to live.