Moving slowly on marriage equality is a step toward chaos

The Senate Judiciary Committee begins consideration of the Gang of 8’s Immigration Reform Bill today. C-SPAN’s coverage should be must-see-TV for an audience of one: Supreme Court Justice Anthony Kennedy.

Among the potentially contentious issues facing the committee is the inclusion of the Uniting American Families Act (UAFA). Under current law, special immigration provisions available to the spouses of U.S. citizens are not available to LGBT Americans. Originally drafted to get around the Defense of Marriage Act (DOMA), UAFA would give equal immigration access to LGBT couples in state-recognized relationships, be they marriages, civil unions or domestic partnerships.

The need to even discuss UAFA should make one thing clear to Kennedy as he considers his decision on DOMA and Proposition 8: moving slowly on marriage equality is more a step toward chaos than justice.

Until same-sex marriage is a reality nationwide, changes in the tax code, military benefits and more than 1,000 other federal rules we learned about in the DOMA debate could all require a UAFA-esque patch to deal with same-sex relationships. Every time that patch could be used to hold a bill hostage, despite Chief Justice Roberts’ rosy assessment of the political power of the LGBT community. Every time the patch fails, the status of same-sex couples and straight couples becomes more separated and less equal.

Striking down DOMA will help LGBT couples in states that have marriage equality, but without a broader ruling against same-sex marriage bans, it will also add to the confusion. As part of the DOMA decision, or shortly thereafter, the courts will be forced to decide whether same-sex spouses are eligible for federal benefits based on where they live or where they were married.

Under DOMA, same-sex couples married in Massachusetts file joint state tax returns and individual federal returns. If DOMA is repealed and they move to Kansas, they could well be filing joint federal returns and individual state returns. Presuming, of course, that Kansas allows the federal recognition of same-sex marriages. Gov. Brownback recently signed a law aiming to exclude guns made and owned in Kansas from federal laws. A similar law blocking the recognition of same-sex relationships wouldn’t be out of character, and could make a temporary mess of things even if it is eventually overturned.

Divorce and estate law can be even more fun. Picture it … Maryland … 2013 … a male federal worker marries another man, and then crosses the Potomac to Virginia, where his same-sex marriage isn’t recognized. There, he marries a woman. They move to California, where he dies. Which marriage is recognized by California? Who gets his federal benefits? What if DOMA was struck down right before he dies?

During the oral arguments on Proposition 8, Kennedy expressed concern about moving too quickly. Instead, he should watch the UAFA proceedings and think about the current patch-don’t-work of conflicting state and federal laws.

Then, perhaps he’ll more clearly hear the voices of 40,000 children in California telling him to fix it all by ensuring that their parents, and all Americans, have the right to marry the person they love, and have it recognized by their state and their country.