The FMA helps gays more than it hurts us
If the goal of the sue-for-marriage strategy is to provide as many protections for American same-sex couples as possible, it has been a massive failure. The two already gay-friendly states with same-sex marriage provide lesbian and gay couples with few additional protections beyond those that already existed. In California, in fact, the only new right for same-sex couples is the word “marriage.”
However, an unintended result of the nationwide push for court-imposed marriage equality has been constitutional amendments barring not just marriage but any sort of relationship recognition for same-sex couples in 18 other states, including Texas, Ohio, and Georgia. This means the marriage-litigation approach has succeeded in offering benefits to same-sex couples in states representing 14.0 percent of the American population while preventing any sort of benefits for those in states making up 33.5 percent of the country. Also, the amendments aren’t limited to barring future recognition for same-sex couples. They have canceled hard-won protections for lesbians and gay men in places like Ann Arbor, Michigan. How can anyone think the lawsuit strategy is working?
And it’s not like the “freedom to marry” movement was unaware of a possible backlash. I personally attended a crowded town hall meeting in West Hollywood, California, in 1996 or so, at which Lambda Legal director Evan Wolfson urged the gays and lesbians present to get behind his group’s big lawsuit known as Baehr v. Miike, which demanded same-sex marriage in the state of Hawaii. At the time, marriage was barely on the gay community’s agenda, but most of the crowd seemed intrigued at the possibility same-sex couples in at least one state might soon start marrying.
I wasn’t so sure. Though at the time I was one of the top membership recruiters for the nation’s largest gay-rights group, the Human Rights Campaign Fund, and I was thus committed to protecting same-sex couples, the plan seemed quite rash to me. So during the question-and-answer period, I asked Wolfson if he was concerned about the risk of provoking anti-gay-marriage constitutional amendments that could very well mean the lawsuit strategy would do more harm than good. I remember his answer clearly (the following is not word-for-word, but it’s pretty close for a 12-year-old conversation):
“People can come up with all kinds of nightmare scenarios about constitutional amendments and other repercussions. Right now, it’s important to push for equality before the law, and we can worry about the ramifications later.”
Of course, Wolfson didn’t speak for every marriage activist since 1996. But it is unquestionable that he was one of the architects of the sue-for-marriage strategy that made it very hard for same-sex couples in more than a third of the country to ever achieve any sort of rights.
The results of the marriage litigation have been so overwhelmingly harmful for our community that I actually think the best way to provide the strongest protections for the greatest number of same-sex couples in the country would be for GLBT people and our sympathizers to switch sides in the debate over the Federal Marriage Amendment (FMA). Without passing that constitutional amendment, I see no way for fair-minded legislators in states like Michigan, Virginia, and Oklahoma to persuade their colleagues to extend same-sex couples basic rights like visiting each other in the hospital and inheriting each other’s property.
The gay community needs to get over its cheap slogans about “Don’t write discrimination into the Constitution” and realize that its leaders made a horrible strategic error that same-sex couples in moderate and hostile states are paying for every single day. Since gay organizations have already quashed at least one promising lawsuit seeking a federal right to same-sex marriage, I can’t come up with a more practical way to provide at least some protections to the same-sex couples who need them the most – while providing all or nearly all the benefits of marriage to gays and lesbians in the most welcoming states – than to pass the FMA. Surely a coalition of legislators who support the present definition of marriage allied with legislators looking for quick relief for gay partners in tough environments could shepherd the FMA through the process for amending the Constitution.
But alas, it’s highly unlikely to happen. The marriage-equality movement has never really been about helping as many same-sex couples in as many places as possible. Instead, it’s been focused on stroking LGBT egos, and reassuring people who have always felt like second-class citizens that their government considers them completely equal. It’s not a bad goal, but for gay and lesbian activists to prioritize technical equality in two already accepting states over the real distress and unfairness faced by same-sexers in places like Tulsa, El Paso, and Kalamazoo can only be described as horribly selfish and shortsighted.
LGBT people who think helping their brothers and sisters in distress is more important than feel-good lawsuits with few tangible advantages would be wise to start supporting the FMA – or at least putting a halt to the counterproductive lawsuit strategy.