Tuesday, November 6, 2012 was an historic day for those who are in favor of allowing people of the same gender to marry each other and suffer just like heterosexual couples have been able to do for centuries. (Okay, I’m divorced…but from a wonderful woman. I can make jokes can’t I?)

In any event voters in three states—Maryland, Maine and Washington—approved marriages between gays. It is the first time such ballot issues have resulted in the expansion of gay marriage.

In addition a measure on the ballot in Minnesota that would have banned gay marriage was soundly defeated.

Millions of Americans applaud these new laws, including friends of mine with long term gay relationships and/or marriages. One couple in particular lives in Maryland and had to go to Canada several years ago to formalize and make official the love they have shared for over thirty years.

I am so happy for their happiness over these laws. I can appreciate that many of the legal benefits of marriage previously unavailable to them may now be enjoyed  in the same way that other married couples have been able to enjoy them throughout their lives and that are taken for granted.

Yet there is a an element of these developments that quite disturb me.

I’ll preface my explanation by openly declaring that there should be no question that gay marriage is a simple matter of recognizing the basic humanity of individuals regardless of whom they romantically love.

I suppose if I had been asked if that were my position fifteen or twenty years ago I may not have been quite as adamant in that regard. But in those intervening years I personally have become more exposed to people I know who are affected by this issue. In addition gays themselves, together with their families, have become much more forthcoming…even aggressive…in expressing their experiences of being made to feel they were outsiders, not just to certain exclusionary groups but to the human race.

For the most part gone are the days when open scorn heaped upon gays could be witnessed in almost any context. Of course violence against them was very common. I don’t doubt that violent episodes still occur but…just as in racial bias…prejudice is more likely to manifest in subtler ways.

Instead of physical violence legislative violence was committed. Many states eagerly moved to block gay marriages or refused to ban discrimination of any kind against gays even as more and more gays revealed themselves to be in loving long-term relationships that emulated heterosexual ones.

We have also had the pleasure of hearing stories about gay marriages or from gay couples or from the childen of these relationships told passionately and eloquently and convincingly. Zach Wahls, the young man from Iowa with two loving, nurturing mothers comes to mind.

Human dignity is a precious quality. Demonstrating that quality on a consistently non-violent,  basis was truly the key to the success of Martin Luther King, Jr. and his associates and followers in not only gettting the Civil Rights Act passed but also in garnering greater public acceptance of the basic rights of black Americans.

So it is with gay Americans. But instead of a federal legislative mandate that guarantees their rights, they have had to rely on the whims of voters on election day.

NO…and I do mean NO basic right of human existence should ever be subject to a popular vote.

It is difficult enough to procure the courage of sufficient legislators who will enact protective or corrective legislation. But to submit these same rights to a popular referendum is dangerous.

This election cycle three states had the votes to do the right thing and a fourth had the votes to prevent a wrong thing. But the 800 pound gorilla occupying this room is something called the United States Constitution.

Article IV Section 1 reads

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Section 2 reads

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

The acts, records and judicial proceedings of some states now include the validation/legalization of marriages between persons of the same gender. The only control Congress has in this regard is to prescribe the manner in which these acts shall be recognized.

But, in 1996, Congress passed the Defense Of Marriage Act (DOMA) with this pertinent provision

Section 2. Powers reserved to the states
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
DOMA has been found unconstitutional in several federal courts though The Supreme Court has declined to hear appeals from any such rulings as yet. That may be good news. On occasion SCOTUS will not accept cases where the lower court rulings are clear and there are no conflicting rulings from other courts.
Enforcing DOMA invites chaos. The decisions against it involve issues of bankruptcy, immigration, estate taxes, and public employee benefits. Yet the law allows different application of the principles entailing married couples on these issues simply because of the lack of diversity in the gender of the couples.
So under DOMA if you reside in Maryland and are a legally married gay couple and move five miles across the border into Pennsylvania which has no such law, you lose all the rights specific to married couples. On the other hand, Pa. recognizes common law marriages (not merely living together…couples must put themselves before the world as married) which entitle the couple to all rights, even absent a formal ceremony or license, and those marriages will be recognized everywhere.
The simplest thing would be for SCOTUS to strike down DOMA which is clearly unconstitutional besides being morally bankrupt legislation. Yet, at present our nation is still faced with loving and decent human beings, joined together as a couple, being dependent on lower court rulings, accommodating state legislatures, or the broad-mindedness of the majority of voters in order to be certain that the rights and privileges they enjoy in one state are available to them in all states.
Forty-five years ago the ban on interracial marriages was struck down. Those couples in violation could usually be determined by viewing the color of their skin. We still have oppressive laws where one must determine violators by the more invasive examination of their genitals.
The people opposing fairness, given the opportunity, would elect to continue the oppression.
Do not give these Abominable No-men the chance to do so.
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