(I wrote this for my Mombian newspaper column right after the U.S. Supreme Court ruled on the Defense of Marriage Act (DOMA). While their decision is definitely a reason for celebration, we still have a long way to go before equality.)
My 10-year-old son throws around the word “epic” on a daily basis. His newest Pokémon card? Epic. His latest zombie-defeating battle in Minecraft, his favorite online game? Epic. The word seemed in danger of losing its original clout—and then the U.S. Supreme Court struck down part of the Defense of Marriage Act (DOMA). That, I told him, was epic.
It’s felt like a party at our house all week as the ramifications sink in—most notably, that our son will no longer have to wonder why his country (a country I want him to love and respect) was also treating his family as second class.
Justice Anthony Kennedy, writing the majority opinion, indicated that the interests of children were much on the mind of the court, too. He wrote, “DOMA . . . humiliates tens of thousands of children now being raised by same-sex couples. . . . The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”
I couldn’t have said it better. But there is one big caution that same-sex parents and prospective parents should still keep in mind, no matter what state we live in: second-parent adoptions (or court orders of parentage) are still necessary.
Here’s why: Even if you live in a state with marriage equality or civil unions and can put both parents on a child’s birth certificate, your ability to do so rests on the state’s recognition of the adults’ relationship to each other. States that don’t recognize that relationship may not recognize the second parent’s right to be on the birth certificate—and that could be a problem for families that move or travel.
Remember, it is still unconstitutional in 29 states for same-sex couples to wed. Section 2 of DOMA, which says states do not have to recognize marriages of same-sex couples from other states, still stands.
LGBT family law expert Nancy Polikoff, a professor at American University Washington College of Law, explained in an e-mail, however, that the lack of interstate recognition for same-sex marriages goes beyond just Section 2 of DOMA. “It is traditional family law that states don’t need to recognize marriages that are against their strong public policy,” she said. “Since states DO have to give full faith and credit to court judgments of adoption or parentage, parents should get such judgments to guarantee that all states recognize the parentage of their children.”
That’s one more reason we cannot rest now. It is still insulting that a same-sex spouse must adopt a child (and go through the expense and hassle of a home study) in circumstances when opposite-sex ones need not. And joint adoption of children should be equally possible for all couples everywhere, too. Full marriage recognition in every state would help shift this—but we should remember that opposite-sex couples do not have to be married in order for both people to be recognized as parents, and neither should same-sex ones.
Despite this caution, the DOMA ruling will still have immediate positive, practical impacts on our families, beyond the warm and fuzzy emotional aspects. As Justice Kennedy wrote, “DOMA also brings financial harm to children of same-sex couples. . . . And it denies or reduces benefits allowed to families upon the loss of a spouse and parent, benefits that are an integral part of family security.”
Imara Jones, who writes about economic justice for Colorlines.com, said on the day of the decision that the ruling was “a major victory for the economic justice of LGBT Americans of color.” He explained, “That’s because LGBT couples of color have higher rates of poverty and are more likely to have children in their household than white LGBT couples. Consequently, LGBT couples need the financial shot in the arm that the legal recognition of marriage can give.”
And the benefits for some families are even more immediate. Minutes after the decision, a New York City immigration judge stopped deportation proceedings for a Colombian man married to a gay U.S. citizen. Other members of bi-national couples, including ones with children, are now receiving green cards so they can stay together.
Similarly, the military has said it will immediately begin the process for issuing military identification cards to same-sex spouses, and to provide the spouses with equal benefits, including medical coverage, housing, and internment at Arlington National Cemetery—all moves that will benefit couples with and without children.
We have the momentum to keep pushing for marriage equality everywhere, along with protections against employment discrimination—but we may still feel some insecurity knowing the Supreme Court also just struck down a key provision of the Voting Rights Act of 1965—a measure that had been designed to prevent racial discrimination and voter suppression. The arc of the moral universe will bend, but it may oscillate first.
We have far to go, then, before all in this country are truly equal in law and people’s perception. But the marriage victories show that change is possible—and that gives me hope that we will someday achieve justice for all. That would be, as my son has said, the “epic-est” outcome of all.