Marriage update – around the states

Timothy Kincaid

November 29th, 2010

The 2010 election has changed the dynamic in a few states and presents both opportunities and challenges for supporters of marriage equality. Here are how I see the current landscape:

Hawaii – Neil Abercrombie, the newly elected governor of Hawaii, is a strong advocate for civil unions. Earlier this year the legislature overwhelmingly approved a civil unions bill and such a bill is likely to be presented again.

Illinois – it is expected that the state legislature will vote this week on a civil unions bill during a lame-duck session. There is adequate support in the Senate, but the House vote is uncertain. Should it pass, Governor Pat Quinn, a strong supporter who was just reelected, will sign the bill. This bill seems to be taking on the impression of a Catholic v. Protestant fight, with NOM and the Catholic Bishop serving as the public face in opposition to civil unions, while a great many Protestants ministers have endorsed the bill.

– Mark Dayton holds a lead in the governor’s election over anti-gay Tom Emmer, but the election will not be determined until a recount is completed. Republicans took control of both houses of legislature, so no pro-equality bills are expected; but if Dayton is confirmed there also will be no anti-equality bills either.

The one concern might be that Republicans could try and put a constitutional amendment on the 2012 ballot that bans both marriage and civil unions. While that may seem like a great idea to anti-gay activists, Emmer ran a homophobic campaign designed to appeal to those who oppose marriage equality and it does not appear to have been successful. I think it likely that an anti-marriage amendment would pass, but anti-civil unions may be too much, and it is becoming increasingly more risky for anti-gays to make such assumptions. Additionally, attitudes can change dramatically in the next two years.

Meanwhile, three couples are suing the state claiming that laws restricting marriage to opposite-sex couples violate the state constitution. Today, a judge rejected the request of the Minnesota Family Counsel to intervene:

“The Council’s alleged injuries would occur solely due to its sincerely-held belief that principles rooted in its interpretations of religious texts are best for the well-being of children and families, and that marriage only between one man and one woman accords with these principles,” wrote Minnesota Fourth District Court Judge Mary S. DuFrense (PDF). “The Court certainly understands that the Council feels strongly about the social issue of same-sex marriage. Strong feelings, however, do not establish a legal interest in a lawsuit.”

Iowa – after three Supreme Court Justices were denied confirmation, anti-gay activists were celebrating. But as the Senate majority leader has committed to blocking any changes to the Iowa constitution, it is unlikely that marriage will be reversed.

New Hampshire – NOM is crowing that anti-marriage activists have taken over both houses. However, my analysis suggests that any reversal of marriage equality is unlikely. While Republicans took a veto-proof majority, a significant number have already voted against any repeal of the law.

Maine – Republican Paul LePage was elected governor, effectively eliminating any forward movement on marriage equality. However LePage supports the current domestic partnership laws so things will remain status quo for a while.

New York – this one is a big question mark. Incoming Governor Cuomo has promised to get marriage legalized. And after the last vote, state legislators have discovered that “things as they are” may well be the most dangerous position to hold; gay activists refused to play the “any Democrat is better than a Republican” game and set their sites on defeating anti-marriage votes.

Going by last year’s vote count, the current best case scenario is that we are three votes shy of what we need (there are still some undecided elections). However, this time our side is taking to the airwaves to drum up public support, and polls show that New Yorkers support marriage equality. What was a party-line vote last year may well be viewed this year in terms of tolerance and New York values and there may be an entirely different dynamic.

Rhode Island – Former-Republican Lincoln Chafee, who ran as an Independent, beat both the Democrat and the Republican candidates to take governor of the tiny state. And one of his first actions was to inform NOM that their opinion on marriage was not of any value to him. Rhode Islanders support marriage equality, and with Chafee’s backing there is a good chance that RI will be the next marriage state.

Maryland – another contender for next marriage state, Maryland did not suffer party reversal. A plurality of voter support marriage equality, and gay State Sen. Richard Madaleno is guardedly optimistic that marriage will be voted in, perhaps as early as January.

His optimism stems from a number of developments on Election Day 2010, some of which ran absolutely counter to national trends. In the Maryland Senate, Democrats actually expanded their majority to a 35-12 advantage over Republicans. And some Democrats who lost their seats did so in primary fights with more progressive challengers, many of whom vowed to be even stronger champions for marriage equality.

And, of course, all of the above could be impacted by Perry v. Schwarzenegger should the courts find that marriage laws which restrict gay people from participation are contrary to the Due Process or Equal Protections clauses of the 14th Amendement.

Emily K

November 29th, 2010

my Aunt, a Rhode Islander, said of the previous governor: “yeah, we all hate him – he’s outa here.” She was right! She’s also confident equality will soon come to the Ocean State.

As to the recall “victory” in Iowa – have the anti-gays and NOM not noticed that it was a unanimous decision and 4 of the previous justices (a majority) remain on the bench? Isn’t it likely that at least one of the new justices to be confirmed will uphold the legal right to equality?

Tony P

November 29th, 2010

NOM is flipping out about Chafee here in RI. Too bad, he won, and the NOM candidate John Robitaille lost.

Glad he lost too. He was a clone of current Governor Carcieri. An a$$hole to boot!


November 29th, 2010

Exactly Emily. Also before Culver even leaves, he can:

-reappoint the same 3 judges

-appoint 3 equally progressive judges

Patrick Garies

November 30th, 2010

@Stefan: Apparently, an independent commission nominates judges, so the governor can’t reappoint the same judges unless the commission just so happens to renominate them.

I suppose it’s possible that they could get re-appointed though since the commissioners are term-limited to one term and therefore don’t have to worry about re-appointment.

Jason R

November 30th, 2010

I’d also like to add that in NC should also be on the radar. Currently it is the only southeastern state which does not have a DOMA amendment in it’s constitution, mainly because democrats kept it bottled up in committee each year. Here both houses of state assembly are going to switch to republican control (68R vs 52D in the house, 31R vs. 19D in the senate). There is already talk of trying to get a DOMA amendment up for a vote presumably on the 2012 election cycle (

Such an amendment would require three-fifths in both houses, plus a majority popular vote, and would not be subject to gubernatorial oversight. Republicans need just 4 more votes in the house, but control enough seats in the senate to put the amendment to the people. The previous minority leader in the house is already promising a swift vote on this if he becomes majority leader. Short of something drastic, NC could easily lose it’s title of being the only southeastern state without a DOMA amendment. EqualityNC, the state LGBT organization, is working to ensure this doesn’t happen, but the likelihood of success isn’t very high and likely hinges on wooing moderate republicans as well as keeping democrats in line. I expect we may quickly become a prime target for NOMing.


December 2nd, 2010

thanks for the round up. i suggest we also keep an eye on Deleware.

i did my own analysis of the NH house and share your conclusion. here are the details for those interested:

2/17/2010 marriage repeal vote:
39 Rs voted NO (22% of caucus)

11/02/2010 election:
298-102 R advantage = 74.5%

therefore, on a theorhetical 2011 repeal vote:
party line -39 Rs = 64.8%
party line -22% of Rs = 58.1%

both are well short of a veto override.


December 2nd, 2010

Good analysis, but 3 key items are missing, and there is one error:

Hawaii – A referendum state. As happened with WA last year, HI seems destined for a ballot fight on CUs in 2011 or 2012.

Maryland – Also a referendum state. Same as above. The two may go on the ballot in the same year, just as Maine and Washington gave us a marriage battle and a CU battle during the same cycle.

Washington DC – Although it has been ignored by the gay blogoshere, there is a petition for certiorari pending before the US Supreme Court, filed by Harry Jackson and the other anti-gays who want to force a referendum. This is not a frivolous appeal. The DC Court of Appeals was split, and we won by only 1 vote. DC requested an extension on its time to respond to the petition, so we probably won’t know whether it wil be granted until January. If it is granted, then it would be an opportunity for the Justices to indicate their leanings on marriage prior to getting the Prop 8 case. If we lose the case, then there will be the nastiest and most racialized ballot fight ever.

New York – Unfortunately, your senate head count is in error. If you look only at the no votes that we bumped off, you are exactly right. However, a number of yes votes will have lost their seats. The final number is not yet known b/c 3 races are too close to call and are being litigated. Those losses wipe out a lot of the progress we made in bumping off the no votes. I am not certain of the exact number, but assuming the 3 cases in litigation come out the way most expect them to, I believe that we would be short 6 or 7 votes.

However, we would have succeeded in putting the fear of gay into the Dems hearts. So it is possible that several of the remaining no votes could turn. And supposedly there are a few Repubs who would be willing to switch if they were properly and legally bribed as is the New York state practice. If we can get to 31 votes, the pro-gay Lt. Gov. can break the tie. So NY remains a prospect, albeit a long shot.

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