The Gay Missouri Compromise

Here’s how Edith Windsor, the plaintiff in the Defense of Marriage Case described the Supreme Court’s ruling yesterday, “The beginning of the end of stigma, of lying about who we are. It’s different level of dignity that what we’ve had.”

But for those of you who still remember your American history — it was more like the Missouri Compromise — except applied to gay people. Like this person, who was very happy. “We’re actually equals, which we haven’t been for years!”

Except not quite…

The Supreme Court’s decision to overturn the heart of the Defense of Marriage Act would seem to mean that the act’s definition of marriage as a man and a woman just went “poof.”

The Constitution is pretty clear when it comes to discrimination: Americans are entitled to equal protection, and no citizen can be deprived of life, liberty or property without due process of law.

DOMA violated those rules, and deprived a legally-married American citizen, Edith Windsor, of her property – that being the federal estate tax she had to pay when her same-sex spouse died. Something that would NOT have happened had her spouse been male.

But the court didn’t use a straightforward constitutional argument.

If it had issued a straightforward ruling that the Defense of Marriage Act violated gay people’s rights without due process, and that gay couples were an arbitrarily-targeted group deserving of protection to assure equal treatment – if it had done that, every state law prohibiting gay marriage would’ve gone poof, and we’d have had an instant national crisis. It would have been another Roe v. Wade, which pre-empted state laws and remains an intense debate to this day.

So the majority came up with the novel logic that in this case, FEDERAL law must conform to STATE law. If a state tells a married couple they’re legit, they are; if a state says they’re not, they’re not.

It’s kind of a Gay Missouri Compromise – where for gay people, America has the free states, and the not-so-free states.

I don’t think it will lead to the same consequences the Missouri Compromise finally did in 1861, but I am pretty sure it will lead us right back to the Supreme Court.

Exterior photo courtesy The Oregonian by Allison Milligan, via the Associated Press

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