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Same-sex marriage — protecting equality under the law

In just under a decade since the pioneering Massachusetts breakthrough for equality in 2004, the freedom to marry for lesbian and gay couples has gone from something unimagined, by most people, to growing a reality — some might say even commonplace. Nine states plus the District of Columbia have legalized it, Rhode Island recognizes marriages performed elsewhere, and this trend shows no signs of stopping.

No wonder opponents rushed legislation like the 1996 federal “Defense of Marriage Act,” along with dozens of similar laws and antigay constitutional amendments in states across the country. Deep down, they probably knew how weak their hand was, so they did everything they could to rig the game in their favor while they still could.


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For a while, I thought they had succeeded. When my home state, Wisconsin, passed an antigay amendment in 2006, my husband and I thought, “It’s over. This is probably going to be in place for the rest of our lives.” During the three-year campaign to stop it, I remember knocking on door after door as part of a massive effort to persuade voters to support equality, often encountering people who just didn’t care, or who even seemed to relish the idea of denying to others the rights that they enjoy.

That’s why we moved Massachusetts. Simply put, we didn’t want to live in a state that considered us second-class citizens.

Since then, dire warnings about someone’s wedding triggering the fall of straight marriages, civilization, and the sky, never came true. Once people see the freedom to marry become real for people who love each other, their hearts sometimes grow a size. They start letting go of fear and misgivings. Polls now consistently show a slight but growing majority of support for equal marriage rights across the nation.

Last fall, voters in four states also decisively broke the opponents’ winning streak. Voters explicitly said yes to the freedom to marry in Washington, Maryland and Maine, while voting to prohibit discrimination in Minnesota.

The main question at this point seems to be how long we will have to live with opponents’ attempt to stop time, and to sweep away the obstacles they placed in freedom’s way. That question is now before the US Supreme Court.

On Tuesday, the Court will hear arguments in a case challenging Prop 8, which amended California’s constitution to restrict marriage to opposite-sex couples. The next day, the Court will consider the challenge to DOMA brought by Edie Windsor, a widow represented by the ACLU and the firm Paul Weiss. Edie, age 83, had to pay more than $360,000 in federal estate taxes after her spouse Thea Spyer died in 2009. The couple spent 44 years together and legally married in New York. If Edie had been married to a man, she would not have had to pay any estate taxes after Thea’s death.

No matter what answer the Supreme Court gives, it will be historic. Nearly as important as the ruling itself will be the question of how the country will react to the Court’s decisions, now and especially in the future.

I think we already know the answer. Most Americans seem ready to understand and appreciate rulings that protect equality under the law. And as they have over the past remarkable decade, pockets of resistance to equal justice will likely shrink and fade away.

By Christopher Ott


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