The states of marriage and the state of the marriage fight
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.