(No straight marriages have been harmed in the making of this blog post.)
As your TEP Public Policy Chair, I want to send a huge hug of congratulations to all of the couples here in Tennessee and around the country that have had legal marriage ceremonies performed in states that recognize marriage equality. These couples are now recognized as “spouses” for purposes of federal law. All 1138 rights that were denied to them under the Defense of Marriage Act of 1996 are now available to them, just as they are to straight married spouses. It is a victory for LGBT Americans and a victory for LGBT Tennesseans…at least some of them.
I’d like to tell you that this means marriage equality for all LGBT Tennesseans, but I can’t do that. The Supreme Court did not decide that states couldn’t deny marriage to same sex couples. The decision says that the federal government has to recognize marriages that are legally valid in the eyes of the state that issued the marriage certificate. Tennessee does not issue valid marriage licenses to same sex couples. We have what is called a “miniDOMA”, an amendment to our state constitution, which states:
“The historical institution and legal contract solemnizing the relationship of one man and one woman shall be the only legally recognized marital contract in this state. Any policy or law or judicial interpretation, purporting to define marriage as anything other than the historical institution and legal contract between one man and one woman is contrary to the public policy of this state and shall be void and unenforceable in Tennessee. If another state or foreign jurisdiction issues a license for persons to marry and if such marriage is prohibited in this state by the provisions of this section, then the marriage shall be void and unenforceable in this state.”
In US v. Windsor, the Court looked at DOMA and noted that a decision about marriage was a state issue all the way back to the founding of the country. It was DOMA that turned this idea on its head. As the Court put it on page 3 of the decision:
“The State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. But the Federal Government uses the state-defined class for the opposite purpose—to impose restrictions and disabilities.”
“Its unusual deviation from the tradition of recognizing and accepting state definitions of marriage operates to deprive same-sex couples of the benefits and responsibilities that come with federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of a class recognized and protected by state law”
To sum it up, if a state believes you have the right to marry and issues you a valid marriage certificate, it is not the place of the federal government to deny you the status of marriage and deny you the benefits of marriage under federal law.
So what does this mean for those LGBT Tennesseans who are legally married in other states but live here? Well, Tennessee does not have a state income tax, so that is not an issue for us. For your federal income tax, you may now file “Married, Filing Jointly”. Next April, we will see the largest number of US citizens that will be ecstatic to file income taxes in the history of tax filing. Besides income taxes though, what else will this affect?
Social Security, Disability, Medicare, Medicaid, Family Medical Leave, and a host of other federal benefits and privileges associated with marriage will be available to all spouses. That will not depend on whether or not you and your spouse live in a state with marriage equality. That is federal, and follows you and your spouse regardless of domicile. If you or your spouse is a veteran, you will be treated just like any other married military family for federal benefits. By the way, while hopefully you will never have to use it, you are also now entitled to spousal privilege in federal court, and cannot be compelled to testify against your spouse.
So how do we bring marriage equality to Tennessee? That is a great question. Unfortunately, the answer is not an easy one. The earliest we could get the Tennessee miniDOMA repealed would likely be 2018, given the long process we have in this state to get an amendment passed or repealed. That will take a great deal of time and effort, and the chances of success, while growing every year as more people show support in this state for LGBT equality, are still about 50-50.
This is not the only battle we are fighting in Tennessee, though. This state is a battleground for many issues affecting LGBT Tennesseans that are unrelated to marriage equality. It is still legal to be fired from your job on the basis of sexual orientation in this state unless your employer has a policy forbidding discrimination on that basis. It is still legal to be denied housing unless the property falls under the jurisdiction of the Department of Housing and Urban Development (HUD), a federal agency. Bullying is still a HUGE problem in our schools, as is harassment in our workplaces. In some parts of Tennessee, local law enforcement and the local judicial system still have an antagonistic relationship with the LGBT citizens in their jurisdiction, making it harder to get crimes against our community investigated, solved, and reported.
These are the battles we fight every single day here in Tennessee. But the work is worth it. Every member of the LGBT community deserves the same rights and privileges as their straight counterparts in the state. That is what the Tennessee Equality Project is fighting for, and we could use your help. As wonderful as it is that the federal government now recognizes all legal marriages, the daily life of most LGBT Tennesseans is still a battle against prejudice and discrimination.
Today was a good day. It really was a good day. Enjoy it. Celebrate it. Tomorrow your Tennessee Equality Project folks will be back at work protecting your rights at the state and local level, albeit with smiles on their faces and a spring in their step that will last quite a while.
*If I could just add a personal note, I am a bisexual woman married to a wonderful man who supports the work I do for equality without reservation. I called my husband as I began writing this post and said, “So, are we still married?” He snarkily replied, “Oh so THAT’S what’s wrong, I KNEW something was different!”
DOMA never defended our marriage; DOMA attacked the marriages of our LGBT friends. DOMA never defended anyone’s marriage, it just denied the benefits and privileges of marriage to LBGT Americans. If DOMA defended marriage, then someone please explain to me why the divorce rate has not fallen since the act was passed in 1996?
And again, No straight marriages have been harmed in the making of this blog post.