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The states of marriage and the state of the marriage fight

A Commentary

Timothy Kincaid

November 7th, 2012

For some reason I woke up humming this song:

Winning four marriage battles last night was a victory I had not dared expect. It’s a joyous day, a true turning point, and a moment in history I think we will all remember.

But our fight isn’t over, and the battles we won yesterday were fought on our own turf. And while they are enormously important, we need to see them in context.

Here is the map of American states which offer some recognition of same-sex couples as of January 2013. Green states offer full marriage equality, blue states offer domestic partnerships or civil unions with all or nearly all the rights of marriage, and orange states offer some form of formal registration with limited rights. (There is also some legal argument that New Mexico and Wyoming might recognize out-of-state marriages).

It is great to see three more green states. However, yesterday’s vote did not color in any states that were not already in one of these categories. Washington had all-but-the-name domestic partnership rights, Maine had limited domestic partnership rights, and Maryland recognized out-of-state marriage.

I don’t bring up this point to throw a wet blanket on our celebration, but to remind us that the hardest battles will still be in front of us and encourage us to be prepared. We will win (time and justice are on our side) but it will not be easy.

Frankly, the quick and easy numbers say that we should have done better. National polls have shown for a few years now that a majority of Americans support marriage equality. And as we know our supporters aren’t dominating Texas and Alabama, it would seem logical that the blue states should support marriage in numbers around sixty percent or more.

But I don’t think that this means that the polls are wrong. I think it means that the polls and the votes reflect two different things. Polls taken away from election cycles reflect the emotional “what I want to believe” response while votes reflect “what I think is best” response and, at the moment, those who oppose equality are able to deceive or scare those who want to support equality into thinking it is a threat.

In other words, a hefty chunk of our support is weak support. And, other than a few states, the upcoming battles will be in places where scare tactics and lies may be most effective.

Of course the courts could rule marriage-bans to be unconstitutional (as they obviously are), and our legal issues would be over. And yesterday’s vote will heavily weigh in our favor in their upcoming deliberations.

Nor will any victories won in the courts be reversed by Congress. There simply will not be sufficient political will to get a two-thirds vote in the Democratic Senate – or even in the Republican House – for a Federal Marriage Amendment. And ratification by three-fourths of the states is a near impossibility.

But should such legal protection not be forthcoming in the next year or so, let’s consider at our political choices. Looking at the map, I cannot identify too many white states that are poised to join the equality states.

Minnesota has a long history of support for liberal ideas and politicians and, having just defeated an anti-gay amendment, is ripe for some legislation for civil unions or perhaps even marriage equality. New Mexico and Arizona are also likely candidates for some recognition of same-sex couples. Arizona has a constitutional ban on marriage, but the people rejected a ban on other forms of recognition. I suspect that these two states might be receptive to domestic partnership legislation.

I’m going to offer one odd possibility that may seem bizarre: Utah. Right now this state has a constitutional ban on marriages and civil unions. But Utah is unique in that public opinion on pretty much any issue can change in one day due to the announcement of one church’s leadership. And it is my belief that the Mormon Church hates that it is to a great extent considered to be the voice of intolerance and bigotry. I would not be entirely surprised to see the Mormon Church seek to diffuse this impression by having Utah change their constitution to provide some limited measure of rights to same-sex couples.

Beyond that, the only states where I think we hold much hope right now are Indiana, Pennsylvania, and West Virginia and I may well be delusional about those. And, some distance down the road, Ohio, Michigan, Idaho, Montana, Wyoming and the Dakotas. As some of these will require reversing constitutional amendments, this won’t be easy or straight forward. Otherwise, the geography doesn’t look good.

Our strategy will likely be to seek increased status in domestic partnership or civil union states. A legislative vote in Hawaii, Delaware and Rhode Island seems likely and 2014 will probably see an effort in Oregon to reverse their constitutional ban. And so on.

The likely eventual scenario is one in which there are states which offer marriage and states which offer nothing. And I believe that at that point, the civil union compromise would be off the table and our fight will be all-or-nothing battles state by state. We will eventually win, but it won’t be easy in Alabama and Texas. Or even Nebraska and Florida.

But I don’t want to leave us in a gloomy spot on this glorious day. Should they not do so before, it is almost certain that after we have won victory in the popular vote in several states, the Supreme Court will discover that there is no asterisk in the Constitution that excludes gay people from the rights granted to citizens (they tend to delay civil justice until there is healthy support). And, if nothing else, time favors us. Younger voters are overwhelmingly supportive of equality.

We have a hard difficult road ahead of us, but yesterday’s voting was the best possible stride down that road that we could have hoped for. We are energized and our opponents are shocked.

Oh what a beautiful day.

Comments

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Robert
November 7th, 2012 | LINK

Good post. I just moved back to California after having lived in New Mexico for the last two years (one in Albuquerque and one in Santa Fe), and they do not recognize out of state marriages, but they also do not have laws against it. There is a movement to try to find the right case, and the right timing to challenge the law in Court. They have tried a number of times to have a constitutional ammendment but it has failed each time. But Under Martinez the outlook for any such case would be poor. But the HRC and the ACLU were looking for challenges last year.

Robert
November 7th, 2012 | LINK

oh, and I think we will win National Marriage Rights by the defeat of Doma. I think marriage equality will be found to be Constitutional Right, and as such, the States Constitutional bans would no longer be valid as any conflicts with the US Constitution automaticlly goes to the Federal Constitution. This road worked for inter-racila marriage, I think it’s going to win with us as well. But some states will change it on their own. But I’m thrilled to have a few more places I can safely visit without having to worry about my legal rights with my husband.

(I wish there was an edit feature on here so we didn’t have to write a whole new post when something gets forgotten).

Secret Advocate
November 7th, 2012 | LINK

@Timothy:

First of all, I’d like to join you in saying how great today feels. We may have just witnessed the greatest victory for LGBT rights in American political history. It surpasses, in my estimation, the repeal of Don’t Ask, Don’t Tell in 2010, and the defeat of the Briggs Initiative in California in 1978.

As for one of the states on your list, I add a point about Minnesota. As I said in another thread, another great victory last night was that the Democrats (called the Democrat-Farmer-Labor Party, or DFL, in Minnesota) re-took control of both houses of the Minnesota state legislature. (The reason why the anti-gay marriage amendment was on the ballot this year in Minnesota was that the state legislature unexpectedly flipped Republican in the 2010 “red tide” election, and Minnesota is one of 10 states in which only a simple majority of both houses of the state legislature is needed to send a proposed constitutional amendment to the voters.)

Now, with the DFL in control of the legislature and with Mark Dayton as the governor, Minnesota may actually get marriage equality soon. The vote on the amendment yesterday was a “mandate” in the literal sense of the term.

After all, the proponents of the amendment kept saying that “the people” should decide the issue. Well, now the people have spoken. It will be interesting to see how the NOM and its ilk try to argue that the people now should not be heard.

However (and, like you, I don’t want to throw a wet blanket on the celebrations today), could you explain why you think that Indiana could be in line for a victory in the foreseeable future? Actually, I think that Indiana could be the site for the next vote on an anti-gay marriage constitutional amendment — and it could be in 2014. In yesterday’s election, the Republicans kept control of the Indiana state legislature. In the last session of the legislature, it overwhelmingly approved such an amendment. It is my understanding that, if both houses approve the amendment again this session, it goes to the voters.

Finally, there is another big state that I would add to the list — California. If our side is unsuccessful in the litigation that is now be considered by the Supreme Court, all eyes will be on the next big prize: an effort to reverse Proposition 8 at the ballot box. I sense that such an effort would probably be at the presidential election year of 2016 (to avoid the smaller and older electorate that tends to turn out in mid-term elections).

Maine showed that reversals of fortune are doable.

Jim Burroway
November 7th, 2012 | LINK

My morning was similarly musical and technicolor.

BobN
November 7th, 2012 | LINK

“And it is my belief that the Mormon Church hates that it is to a great extent considered to be the voice of intolerance and bigotry.”

Emphasis on “considered”. They don’t mind BEING bigoted, they just don’t want people to see them as bigots. I have no doubt the Mormon hierarchy will utterly reverse position in a few years, once their position becomes a distinct outlier in public opinion.

cowboy
November 7th, 2012 | LINK

I wouldn’t hold my breath, BobN. Mormons always want the gays to sit in their pews and pay their tithes like the rest of the Saints but I would never expect to see in my lifetime two men sealed to each other in a Mormon Temple. Nope. Not gonna happen. It would counter everything about the “Families are Forever” mantra they keep spouting off about.

On another topic: Why would people think they need an Amendment to the Constitution if they didn’t already think all the State anti-gay-marriage statutes are unconstitutional.

Mark Cross
November 7th, 2012 | LINK

Timothy’s analysis of the LDS Church is spot on. I was a Mormon for 17 years, I’m a former missionary, BYU grad, etc. All it takes is an old man hearing a voice or having a dream or a special feeling and suddenly the doctrine can change. It happened with polygamy in 1890 and blacks holding the Melchizedek Priesthood in 1978. As we saw last night, the unimaginable can happen. And the LDS Church HATES negative publicity or being an outlier.

Mark Cross
November 7th, 2012 | LINK

The LDS leadership could say, as they did with black males holding the priesthood, that Heavenly Father always had it in His Plan to extend the responsibility and privilege of marriage to His gay children, but the time had to be right. Why would they do that? Because, as you said, cowboy, Mormons want the gays to sit in their pews and pay their tithes like the rest of the Saints . Inclusion is a great way to increase your potetial pool of converts. That’s why the priesthood was offered to black males finally in 1978. Marriage equality would effectively grant the LDS Church access to a new market: the queers. And if there’s one thing the LDS Church LOVES, it’s new markets. They’ll figure that out, sooner than later. Utah is the key to marriage equality in all the Great Basin states.

F Young
November 7th, 2012 | LINK

One of the strategic options that should be considered is for LGBTs, in states that have marriage equality now but allow intiatives (eg Maine), to initiate state constitutional amendments to invalidate future attempts to restrict minority rights through initiatives, or to at least require a super-majority, such as 2/3 majority.

On the other hand, it probably would be easier and just as effective to get the SCOTUS (after at least one conservative jusdge has been replaced by a liberal or moderate judge) to invalidate section 2 of DOMA or amendments such as Proposition 8.

F Young
November 7th, 2012 | LINK

(cont) …or maybe the threat of a such an intiative might be a bargaining chip: e.g. if you start an initiative to overturn marriage equality, we will start an intiative to ban initiatives that limit minority rights.

Matt
November 7th, 2012 | LINK

Tim,

As a former 8-year resident of the Hoosier state who fought very hard against the passage of SJR-7 back in the early 2000’s (which would have banned recognition of both same-sex marriage and civil unions), I sadly have to tell you that you’re delusional about Indiana. That’s one state that is going to have to be dragged kicking and screaming to recognize equality. :(

TampaZeke
November 7th, 2012 | LINK

It IS a beautiful day!

I think New Jersey, Illinois and Wisconsin are our next best bets. Then Oregon, Ohio and Pennsylvania.

I do think this shift in America will benefit us in the upcoming Supreme Court cases even though I think it will hurt us in getting the Supreme Court to recognize the GLBT community as a suspect class deserving of heightened scrutiny.

Joel
November 7th, 2012 | LINK

What surpised me most of all was the huge margins by which most won =O

JohnAGJ
November 7th, 2012 | LINK

Dang Mark, you beat me to it! Ah well, whether that convenient word to the Mormon Prophet/President comes in my lifetime or not I have no doubt it will one day. It’s up to them really because I really don’t care since I’m not a Mormon.

F Young
November 7th, 2012 | LINK

You might want to consult these stats compiled by Nate Silver last year.

http://fivethirtyeight.blogs.nytimes.com/2011/06/29/the-future-of-same-sex-marriage-ballot-measures/

Among the states that do not already have marriage equality, he predicted that Rhode Island, Oregon, Hawaii, Alaska, Colorado, Nevada, New Jersey and Delaware would be the states least opposed to marriage equality, in that order.

Of these states, the only ones that do not have constitutional bans are Rhode Island, Hawaii, New Jersey and Delaware.

Utah is quite low on the list, and has a constitutional ban. There is quite a bit of popular opposition to marriage inequality. However, I agree that opinion there could change quickly based on direction from the Mormon Church. Mormons generally follow the directions of their church, unlike Catholics, who tend to do the opposite.

cowboy
November 7th, 2012 | LINK

Mormon High Priests have said they would be amiable to something where gays can have all rights and privileges as long as their gay marriage isn’t exactly like ‘marriage’.

I have yet to have a Mormon sufficiently explain what would be the difference(s) between a gay civil marriage and a ceremony they perform in a standard LDS Wardhouse/Chapel or a Mormon Bishop performs in a outdoor wedding reception hall. It has never been made clear except (if I can paraphrase from South Pacific): We ain’t got dames.

It’s not like I am chaining myself to the East door of some Temple of theirs and demanding a ‘sealing’ in their precious Celestial Room. The Temple is a whole other ball game.

So, we can work on defining and determining what specifics we might need to wrestle (sternly-forcibly negotiate) with the upcoming 2013 Utah Legislature and maybe chip away at the hard-and-fast anti-gay marriage statute in the Utah Constitution…with LDS blessings.

Speaking of South Pacific: I think some Mormons need to listen to the lyrics to You Have Got to Be Carefully Taught. Though, I think, it goes right over their heads.

Ryan
November 7th, 2012 | LINK

I think the Right’s attempts at scare tactics will prove less and less effective as more and more states approve equality and straight Americans see that absolutely nothing has changed for them.

Ben in Oakland
November 8th, 2012 | LINK

. Should they not do so before, it is almost certain that after we have won victory in the popular vote in several states, the Supreme Court will discover that there is no asterisk in the Constitution that excludes gay people from the rights granted to citizens (they tend to delay civil justice until there is healthy support). ”

This is my belief why the Supreme Court decided to wait on the prop.8 case. They really wanted to see what would happen in the election. My guess, if they decide to hear it at all, will be 6-3, with the usual/ suspects dissenting.

Hunter
November 8th, 2012 | LINK

Just to add a note: Although Illinois has civil unions, we’re in the running for marriage equality in the next couple of years. The state DOMA is being challenged, and the state has refused to defend it. There are also marriage bills being introduced in the house and senate, with the full support of the governor.

No one here ever thought civil unions were the final step.

(Oh, and ballot referendums in Illinois are strictly advisory.)

ZRAinSWVA
November 8th, 2012 | LINK

Besides us achieving equal rights by popular vote–which I do think is the best way they could be obtained–there’s always legal challenge to state constitutional law. Virginia’s amendment to its constitution, for example, is so extreme (e.g., no recognition of SS relationships that even approximate the benefits of marriage; see http://en.wikipedia.org/wiki/Marshall-Newman_Amendment) that I think it could be challenged. There’s also potential for additional lawsuits to be filed regarding the lack of federal recognition of SSM–and some cases that were won recently are very promising!

I have to say that I did approach the ACLU, the HRC and others several years back–just after my husband I got married–but was told, ‘not yet’. I’m getting older, though, and my patience is waning…

That being said, we did make great progress in the past days! And I am so happy for the families in those states who can now be officially recognized.

Michael
November 8th, 2012 | LINK

According to the Washington Post: “Colorado will have gay leaders in charge of both the House and the Senate in 2013, after winning the lower chamber Tuesday. Republicans defeated a civil unions bill in the state Senate this year; Democrats will have the power to pass it next year.”
http://www.denverpost.com/politics/ci_21953099/democratic-led-legislature-could-create-blues-gov-hickenlooper

As an aside, I think that is another milestone of this election: Colorado will be the first state to have gay men leading both legislative chambers.

Boo
November 8th, 2012 | LINK

Mormon theology can turn on a conveniently timed revelation, but acceptance of gay marriage would be a much bigger revision than accepting non-whites into the priesthood. In Mormon theology heterosexual marriage is not only required to attain the highest level of salvation, but, if I understand them correctly, to populate planets with people. I could be wrong but I don’t look for that to happen any time soon.

Patrick
November 8th, 2012 | LINK

Wyoming may see a civil unions bill in the next legislative session. Based on the last vote in 2011 and on Tuesday’s recomposition of the Legislature, we believe that battle may well be successful. The Equality state may be the first in the Mountain West to grant legal status to same sex couples. In the region, only Wyoming and New Mexico have thus far avoided enshrining homophobia into the state constitution.

I’d also like to offer a correction: there isn’t a “legal argument” that out of state marriages might be recognized in Wyoming, there is a clear legal precedent, specifically in the form of a Supreme Court decision instructing a local court to grant access to a same sex couple seeking a divorce. Wyoming’s statute is quite clear: all marriages legal in the jurisdictions in which granted are legal and recognized in Wyoming.

We’ve received reports that the religious right will once again attempt to change the wording of the Wyoming statute once the Legislature convenes in January. We’ve seen the draft of the bill and it makes clear that we’re all on the same page about what the law says and means, and cites the recent Wyoming Supreme Court decision. If the law were unclear or the recognition granted to married couples from out of state merely theoretical, I don’t believe we’d be facing this battle.

Patrick
November 8th, 2012 | LINK

I would also disagree with your analysis of the possibilities of change in Utah. While you’re correct that the LDS leadership continues to have a tight grip on state politics, this could change in the next few years. The change would come from the rapidly changing demographics of the state, not from a change in LDS thinking. The recent election illustrates how this change will likely occur.

In Tuesday’s election, Obama received about 35% of the votes in Utah, but these were not spread evenly. If you subtract Salt Lake County votes, Romney garnered 81 percent to Barack Obama’s 16 percent. In Salt Lake County, Barack Obama got 39 percent compared to Mitt Romney’s 58 percent. But in the precincts comprising Salt Lake City (which has been gerrymandered and reduced to only about 10% of the County), Obama won.

Not only did Obama win in Salt Lake City, voters in the valley elected a Democrat to represent them in the House. Scott Matheson will represent the citizens of a district that had been recently gerrymandered into what the LDS commission in charge of redistricting believed would be a Republican stronghold. They ran Mia Love, whose star power earned her a spot on the floor of the RNC in Tampa. It wasn’t enough.

They were wrong about the district and it cost them a member of their DC delegation. The odds of making similar errors in the future increase substantially as the state becomes less and less LDS and as Salt Lake County becomes increasingly Democratic. It’s only a matter of time before they lose their iron grip on the state Capitol.

Oh, and Salt Lake City already recognizes same sex partnerships (in a manner similar to Colorado), as do a handful of communities along the Wasatch front, in Summit County and in places like Moab.

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