When my spouse and I drove cross-country, our marriage blinked on and off like a traffic light as we crossed state borders. We were married in Vermont and New York but not Pennsylvania, Ohio or Indiana. We had a civil union in Illinois, and we were married again in Iowa but not in Nebraska. Wyoming was a wild card, because even though it prohibits marriage between same-sex couples, the state court did grant a divorce to a same-sex couple who had married elsewhere. So maybe we were married in Wyoming, but once we entered Nevada, it was off again until we reached California, where we were once again married. No Supreme Court decision on the Defense of Marriage Act will change this rights-stripping trip that gay and lesbian couples take every time they travel to a state that refuses to recognize their marriage.
The Supreme Court's decision on whether to review the constitutionality of Section 3 is an important first step in dismantling DOMA. In Section 3 Congress mandated that the word "spouse" or "marriage" in any federal law or regulation be interpreted to apply only to a marriage between one woman and one man. As a result, legally married same-sex couples aren't recognized as "married" for any federal purpose. Section 3 is why Edith Windsor had to pay a $300,000 federal estate gift tax, and why Dean Hara, the spouse of Rep. Gerry Studds (D-Mass.), wasn't awarded federal employee survivor benefits upon Studds' death. It's why legally married gay and lesbian couples pay more for health coverage and more in taxes and are denied the basic Social Security and military benefits afforded to opposite-sex married couples (to name just a few of the federal benefits and rights associated with marriage). It's why binational same-sex couples live under the threat of deportation. A Supreme Court decision declaring Section 3 unconstitutional would be a giant step forward for legally married same-sex couples.
But Congress included another provision in DOMA under the heading "Powers Reserved to the State." This provision authorizes states to not only ignore any law or judicial proceeding "respecting a relationship between persons of the same sex that is treated as a marriage" but any right or claim arising from such relationship. After Congress passed this law, states issued laws or amended their constitutions to prohibit marriages between people of the same sex, to refuse to recognize marriages validly performed in other states and, in some cases, to refuse to recognize any right or claim arising from that marriage. And this all happened before even one state had authorized any such marriages. It brings new meaning to the phrase "homosexual panic."
These state laws have very real and tragic consequences. For more than a decade Janet Jenkins has been fighting to see the daughter she had with her former partner, Lisa Miller. Although Vermont granted Ms. Jenkins visitation rights when the civil union was dissolved, a Virginia state court refused to recognize her as a parent, citing the state's "Marriage Affirmation Act." For two years the Vermont and Virginia courts issued conflicting orders until Virginia finally conceded that a federal parental kidnapping law required it to enforce Vermont's original child custody order. But Ms. Miller continued to refuse to allow Ms. Jenkins to see her daughter, and a Vermont court eventually granted Ms. Jenkins full custody. Sadly, the case didn't end there. Ms. Miller has fled the country with her daughter, and the Rev. Kenneth Miller (no relation) was recently convicted of aiding the kidnapping and faces up to three years in prison. The Miller-Jenkins story is not an isolated incident. Gay and lesbian couples face a myriad of obstacles to asserting fundamental rights because of state laws that deny their marriages' existence and state policies that consider them repugnant.
Ironically, some advocates and courts have relied on a "states' rights" argument to bolster their position that Section 3 of DOMA is unconstitutional. The Commonwealth of Massachusetts argued that Congress violated the Tenth Amendment -- powers reserved to the state -- when it refused to recognize a state's decision to grant marriage licenses to same-sex couples. The First Circuit Court ultimately rejected this argument, but in declaring Section 3 unconstitutional, it did find that "DOMA intrudes extensively into a realm that has from the start of the nation been primarily confided to state regulation -- domestic relations." It is a scary statement in an otherwise helpful opinion. It broadly supports a state's power to regulate domestic relations whether the state authorizes or prohibits marriages between same-sex couples.
"States' rights" is a weak foundation on which to build a modern civil rights movement. Individuals pushing a "states' rights" agenda have traditionally been opposed to civil rights. The States Rights Democratic Party's 1948 platform stated, "[W]e oppose the elimination of segregation, the repeal of miscegenation statutes, [and] the control of private employment by Federal bureaucrats called for by the misnamed civil rights program." Southern Democrats formed the party after walking out of the Democratic National Convention in response to Hubert Humphrey's now-famous call for Democrats to support civil rights and to "get out of the shadow of state's rights and to walk forthrightly into the brighter sunshine of human rights." Nearly 65 years later we are fighting the same battle on a different front -- segregation is now (as it was then) the "freedom to associate," the miscegenation laws are now defense of marriage acts and based on the 2012 party platforms the States Rights Party is now the Republican Party.
The Supreme Court's decision to review Section 3 of DOMA will not change the state laws prohibiting marriage. States will still be free to refuse to recognize my marriage and deny me the rights associated with marriage. But advocates should be wary about the arguments they present to the Court. While relying on "states' rights" as a basis for declaring Section 3 unconstitutional may be a successful short-term strategy, in the long run it will make it more difficult for us to find the "brighter sunshine" that Humphrey talked about nearly 65 years ago.