DOMA lawyer weighs in on what’s next for marriage equality movement
Metro caught up with American Civil Liberties Union attorney James Esseks last Wednesday as he and his client, Edie Windsor, and the other attorneys representing Windsor in her case against the United States government were celebrating their long-awaited victory: the Supreme Court had just struck down the Defense of Marriage Act after years of litigation on Windsor’s behalf.
Windsor sued the United States government when she was forced to pay estate taxes after the death of her partner, Thea Spyer. She would not have had to pay anything had the federal government recognized her and Spyer’s marriage as equal to heterosexual marriages. Now Windsor will get her money back, with interest—and married same-sex couples in the United States will finally have their marriages recognized by the federal government.
But the fight is not over, Esseks told Metro: the marriage equality movement has now set its sights on making same-sex marriage legal in every state in the nation.
What a huge day for you! Did you see this coming?
Well, of course we were hoping for a win. You don’t file a lawsuit hoping to lose, obviously. But it’s a 5-4 decision, so it was close. But it’s a win—and it’s right. The decision recognizes the dignity that’s inherent in marriage and the importance of marriage in people’s lives, and it also recognizes how devastating it is to be told by the federal government that your marriage never happened or your marriage doesn’t count, and that the person, in Edie’s case, that you spent 44 years with and that you spent two years with as spouses, is a legal stranger to you. That’s a horrible thing to say to anybody and anybody who is married in America and anybody who wants to get married in America can understand that, how harmful and hurtful that would be, to say your relationship doesn’t matter and didn’t happen.
So to have those principles recognizes and reaffirmed by the Supreme Court is a wonderful day in America.
What’s the next stage here? Is it on the state level? How is this going to affect states?
So, what we got today is if you’re married under state law, you’re married under federal law. And ending discrimination in marriage was a supreme goal for the Freedom to Marry movement.
The other goal of the movement is to ensure that we have the freedom to marry for same-sex couples in every state in the country. And with today’s ruling in the Prop 8 case, we’ve got 13 states plus the District of Columbia, and that’s a big deal. 30 percent of the United States population lives in a freedom to marry state—almost a third. And that’s a big deal too. So the next thing we’ve got to do is we’ve got to win more marriage states.
How are you going to do that? What’s the plan?
The way we’re going to do that is in part through state legislature. We’re now pushing marriage laws in New Jersey and Illinois and Hawaii and I’m hopeful that we’re going to pass those laws within the next year.
We also have to take back some of the constitutional amendments, and there are 29 of them right now that exclude same-sex couples from marriage in their constitutions. So in 2014 we’re going to be on the ballot in Oregon and we’re going to try to win the freedom to marry and put the freedom to marry in the state Constitution. We’re going to do the same thing in Nevada in 2016 and we’re working with state and national coalition partners to see where else in the States it makes sense to go to the ballot.
And we’re going to win some more states through litigation. We have a case pending in the New Mexico state courts seeking the freedom to marry under the state constitution.
So there are many different paths to the freedom to marry in more states, but getting more states is the goal.
Follow Danielle Tcholakian on Twitter @danielleiat