After reading the Supreme Court’s decisions in Windsor (the federal “Defense of Marriage Act of 1996″) and Shelby County v. Holder (the gutting of the Voting Rights Act of 1965), the common thread in both decisions is state sovereignty.* Furthermore, today’s Supreme Court decision in Windsor MAINTAINS the abrogation of the Full Faith and Credit clause found in the federal DOMA law (contracts entered into in one state MUST be recognized in another state–except now, for marriage). That remains Constitutional. Despite the soaring rhetoric of the Windsor decision, ultimately, it’s about the state of New York and how it constructs “citizenship”. There is NO remedy for any partnered queers in the hater states with state level DOMA laws (states with bans on marriage equity) or queers in half-baked hater states (states with only Civil Unions and/or Domestic Partnerships, but no marriage equity). Furthermore, if you get married in New York and then move to Texas, it is the state in which you reside that will determine your access to federal benefits–which is an overturning of the federal supremacy clause and it is a violation of the “full faith and credit clause.”
Consequently, as a resident of the state of New Jersey, I’m not happy that I am clearly a lesser citizen in the federal government’s eyes than the residents of the state of NY. Since my partner and I merely have a NJ Civil Union, which is now NOT legally equivalent to civil marriage, we are denied over 1,000 federal benefits. The state of NJ is actually setting terms of our access to federal benefits–which is to deny us that access.
Read with yesterday’s decision that guts the Voting Rights Act of 1965, which allows historic hater states to move towards restricting the voting rights of people of color (and that is the IMMEDIATE effect, pious intonations aside), my queer sisters and brothers of color are going to be at horrendous legal and political disadvantages if they reside in, oh say, South Carolina, Texas, etc. Taken together, these two decisions leave the federal rights of citizens to the capricious hateful whims of state legislatures and their knuckle-dragging governors. It’s a triumph of States’ Rights over Federal Rights, or, a rejection of the African American Civil Rights Revolution of the late 20th century, as well as a restoration of a Confederate understanding of civil rights jurisprudence. If you are queer, your day-to-day rights as a US citizen is now clearly shaped by your state of residence. If your state hates queers, you will see no federal benefits as well as no state benefits. If you live in a half-baked hater state like New Jersey, you will have access to state benefits, through the mechanism of Civil Union, but since you cannot be married in New Jersey, you will NOT receive any federal benefits. If your state hates people of color, good luck getting to the ballot box. If you’re a queer person of color living in a state that hates people of color and queers, well, good luck exercising those political rights, much less being able to access federal benefits.
And because most queer Americans of every ethnic and racial background are so accustomed to being treated badly by the US political and judicial powers that be, the Windsor decision is being treated as a landmark in gay rights history. No, it’s a sign of our own weakness. We’re so pathetically grateful that the Supreme Court isn’t outright criminalizing our lives (per Hardwick v. Bowers, 1986), that many queer “leaders” are acting like we’re finally equal to non-queers in light of Windsor. No, we’re not, we’re not even close–especially since hater states CAN now Constitutionally ignore legal contracts (marriages) of other states. So, please stop trying to gild a turd of a decision–a decision based on the civil rights norms of the US Confederacy. By invoking a states’ rights paradigm, the Supreme Court is forcing queers to fight for federal benefits through every single hater state court system AND THEN we’ll have to go through the federal court system to obtain (maybe, maybe, maybe) the federal benefits that non-queer Americans already have.
This pathetically horrendous decision in Windsor will take decades to fix. And at this point, I’ll probably be dead, as will many of my beloved queer sisters and brothers. I was always taught justice delayed is justice denied. To most queer Americans, there remains no equality and therefore no justice.
*This was also the reasoning that the petitioners did not have legal standing in the Prop 8 non-decision. They could not represent the State of California so the case was then kicked back to the lower courts. But this ruling, like the two others, is rooted in state sovereignty.