Section 2 of DOMA, which was not challenged, lets states refuse to recognize same-sex marriages performed by other states. If two women get married in Massachusetts and move to Florida, they’re no longer legally married. The benefits of marriage, such as tax deductions and the ability to visit a hospitalized loved one, disappear.
I understand that Fox News, MSNBC and others must simplify legal issues for a general audience, but their complacency about this provision is deeply disturbing. Section 2 deprives same-sex families of their basic rights and mobility. That’s a big deal.
Some gay rights activists say Section 2 is inconsequential because popular support for same-sex marriage is growing. I’m optimistic, too, because about half of Americans support it, up from 32 percent in 2003, according to an NBC and Wall Street Journal poll.
Sadly, civil rights laws don’t always evolve in step with national public opinion. With Section 2 of DOMA letting each state decide if it recognizes same-sex marriage, conservative states may deprive couples of marriage rights for years or even decades.
A landmark case in 1967 also dealt with banning minority groups from getting married. Virginia sentenced a white man and a black woman to a year in jail for trying to elope, but the U.S. Supreme Court reversed the ruling, requiring that all states recognize interracial marriage.
What if Loving v. Virginia, like Section 2 of DOMA, let each state make up its mind? It’s unlikely that southern states, where black-and-white couples had little actual legal protection from hate speech and violence, would have taken the initiative to recognize interracial marriage.
Patience may be a virtue in general, but not in the realm of civil rights. Advocates of marriage equality shouldn’t settle for a shift in public opinion or a partial repeal of DOMA. We should challenge Section 2 to let same-sex couples move freely among states without fear of losing their marital status.
The opponent, DOMA, is stunned and staggering in the center of the ring. Let’s think about a knockout punch.