Thursday, March 28, 2013

Standing on the Threshold of History

Sometimes I think about what it might have been like to experience the great historical events of the modern day. What it would have been like to be a woman on June 4, 1919, when the Senate passed the Nineteenth Amendment, granting women the right to vote. The horror of atomic bombs falling on Japan. The pride of watching men walk on the moon for the very first time. How it must have felt to stand at the Lincoln Memorial and hear Martin Luther King speak about his righteous dream. The confusion of Dealey Plaza in Dallas, Texas at 12:30 pm on November 22, 1963.

These are among the days the helped define us as a nation. Events that divided our timeline into "before" and "after." Events that made our future profoundly different than our present. Events that would leave us forever changed, for better or worse.

I believe, and I hope, that another one of those days is before us now.

This week, the U.S. Supreme Court heard oral arguments in two landmark marriage equality cases. The first is the appeal of the Ninth Circuit Court of Appeals' decision overturning California's Proposition 8 - which added a section to the California Constitution defining marriage as between a man and a woman - and the second is the appeal of the Second Circuit Court of Appeals' decision finding Section 3 of the Defense of Marriage Act unconstitutional insofar as it defines marriage as "a legal union between one man and one woman as husband and wife" and spouse as "a person of the opposite sex who is a husband or a wife."

Nine states, the District of Columbia and the president of the United States support same sex marriage. A majority of the people living in this country support the right of same-sex couples to marry.

And yet the fight continues. This fight for love. For family. For equality.

And it is equality - and the argument to overturn DOMA - that is really the crux of the issue.

Because even in states where gay marriage is legal, equality remains elusive. Because when a same-sex couple gets married in New York, they have to file separate federal tax returns since under DOMA, the federal government doesn't recognize gay marriage. Because when I plan an estate for a gay couple, I have to think about what happens if they move to another state where their marriage isn't recognized and I have to add special provisions into their documents to ensure that they can benefit fully from the federal estate tax benefits that heterosexual couples enjoy as an automatic right - and sometimes they just can't, no matter how carefully we we draft their wills and trusts. Because when a married gay soldier dies in the line of duty, the death certificate says "single" rather than "married," and the surviving spouse is ineligible for death benefits.

So you'll forgive me if I find the "just leave it to the states" argument a ridiculous cop-out. Love and family are great and important, but equality matters. Legal rights matter. As a lawyer and as a married person who just filed a joint tax return I understand that. And gay couples deserve more than just the ability to get married. They deserve the right to be married the same way I'm married. With full recognition by the federal government and enjoyment of all the federal benefits of marriage. Because right now, no matter how married a same-sex couple may be under the laws of the state of New York, the federal government still treats them as strangers rather than spouses.

During Wednesday's oral argument on the constitutionality of DOMA, Justice Ginsburg asked the lawyer arguing in support of DOMA, "if we are totally for the States' decision that there is a marriage between two people, for the federal government then to come in to say no joint return, no marital deduction, no Social Security benefits; your spouse is very sick but you can't get might well ask, what kind of marriage is this?"

I think that the answer is, one that is not good enough.

This isn't - and shouldn't be - a religious issue. Religions are free to define marriage in any way they see fit and marry or not marry any kind of couple they want. This isn't about religion. This is a legal issue and a civil rights issue. This is about treating all people as equal under the law. About ensuring equal access to the federal benefits and privileges of marriage.

This country can't continue to systematically deny an entire population equality under the law, and then promise LGBT kids that it gets better.

We have to do better before it can get better. And equality seems like a decent place to start.

The Supreme Court is standing on the threshold of history this week. I hope that when their decision comes down in June, we find out that they walked through the door.


  1. I love it when you bring your legal expertise into these issues I feel so strongly about. There is no way I could write about marriage equality so eloquently. You are awesome!

    1. Thank you so much. As a trusts and estates lawyer, this is an issue I see all the time, and I find it legally untenable. It's great that certain states are legalizing same-sex marriage, but from a legal standpoint, it doesn't do much good if the federal government won't recognize the marriage.

  2. Very well done here. I see it in my line of work as well. Since part of what I do is pre-tax benefits, I have many conversations explaining that while you can be on someone's insurance, you can't benefit in all the ways unless you're married in the eyes of the federal government.

    I hope that we can move past this and have our laws reflect the way most of the country feels.

  3. I love this post. You hit on so many important points. I hate that this has become a religious/moral issue when it really is anything but. I'm anxious to see how this plays out.

  4. Love my lawyer bloggers! Great post.