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And that may be the unspoken truth behind the calls for abstinence when it comes to litigation. With the religious right lukewarm about John McCain, the prospect of a gay marriage lawsuit popping up in a swing state like Pennsylvania or Ohio could energize indifferent Republicans and hurt Obama.
“If I were a Democratic player at the national level,” says Sragow, “I would definitely be speaking to gay advocates and saying, ‘Please think through what you’re going to do next.’”
SO DOES THAT MEAN GAY ADVOCATES, like Lambda, are playing election politics on behalf of Barack Obama’s candidacy?
A Clinton-era law, DOMA states that the federal government isn’t allowed to recognize same-sex marriages performed at home or abroad, and that no individual state can be forced into recognizing these marriages. In other words, Mississippi has no federal obligation to recognize gay marriages performed in California, even if the married couples are residents of Mississippi.
This provision is especially important. Were Obama to follow up on his stance and have the law repealed, gay couples could sue to have their California marriages recognized in their home states, without fearing their case would move to the U.S. Supreme Court — where they could easily lose.
“Getting rid of DOMA is one of our top priorities,” Davidson says. “Lambda is a nonpartisan group, so we don’t favor one candidate over the other, but I would encourage people to think about all the repercussions of their actions before choosing to sue.”
Davidson’s implication, of course, is that “President Obama” may be the best chance for gay-rights advocates to get rid of DOMA anytime in the near future.
Miki Jackson agrees with Davidson to an extent, but says, if there are ways to capitalize on the California decision now, sacrificing them to aid an Obama presidential run is probably misguided. If Obama is elected, “He’ll have a raging war to deal with and a crumbling economy,” she says. “His heart may be in the right place, but if I were his adviser, I would tell him not to put gay marriage at the top of the list.”
Tyler agrees: “Our (GLTB) community should not get excited [about Obama] yet,” she says. “The ‘change’ Obama talks about does not happen from the top down, it happens from the ground up .... We need to challenge the Democrats rather than just accept a pat on the head. For 35 years we’ve been told to suffer so the party can prosper. We’re done waiting.”
That said, even Tyler doesn’t think couples should take their cases to the Supreme Court, saying, “This isn’t the time to pursue a federal lawsuit.”
Michael Maroko, a member of Robin Tyler’s legal team, agrees, and warns that things are different from how they were in California in 2004. “Federally, the climate isn’t there yet,” he says. “The makeup of the Supreme Court isn’t such that a lawsuit would have much of a chance.”
However, Moroko doesn’t think all legal maneuvering should be out of the question. “Lawsuits should be considered carefully, on a state-by-state basis.”
That’s exactly what Davidson and other gay advocates say they are working on now. A gay-marriage suit already filed in Connecticut is working its way through the court system, and last summer in Iowa, Polk County Judge Robert Hanson ruled that the state’s 1998 Defense of Marriage Act was unconstitutional — a decision that legalized gay marriage in the heartland for four hours, before Hanson stayed his ruling, pending an appeal to the state Supreme Court. Iowa is set to become the next major battleground in the gay-marriage struggle.
As for bringing suits in other potentially gay-friendly states: “We’re asking that people consult with us first,” Davidson says.
Gay-rights activist Jackson generally agrees with Lambda’s stance. “You have to mix pragmatism with idealism,” she says. But, she cautions, sooner or later, risks will need to be taken if gays expect to achieve full marriage equality. “You can’t always have social change and consensus. A lot of people are rightly nervous about taking our case to the federal courts, but at the same time, you don’t want a roomful of wonks paralyzing the movement. We can’t afford to wind up sitting around the negotiating table forever.”
Tyler puts it more succinctly: “Power is never given. It has to be taken.”