Marriage equality has enjoyed a number of breakthrough victories this past year, but looming is a brick wall that, if not tackled carefully, could stop progress dead. So, we need to talk about it.
How Do You Solve a Problem Like Arizona, Virginia or Michigan?
While Arizona’s current administration and presiding crop of lawmakers are about as hostile to same-sex partnership recognition as it is possible to be, a new poll from the Arizona Behavior Research Center shows that a majority of Arizona residents (55%) now support allowing same-sex couples to marry. What’s more, this support unites several key demographics.
Briefly, 60% of women say they back gay and lesbian couples marrying while Hispanics as a demographic poll overwhelmingly in favor at 75%. That’s a problem for the Republicans as their binders aren’t exactly full of women or Hispanic supporters, and even the Republicans are divided on the issue 53% – 36% against.
Why do these polls matter? Two key reasons.
One, it suggests the above states’ administrations and legislators may be radically out of step with their residents.
More than that, though, Arizona is an example of a significant problem facing the marriage equality movement: Arizonans may now support same-sex marriage but the damage of past hostility is already done. In 2008, residents enacted a constitutional amendment banning marriage equality. That’s not easily fixed, and this fact speaks to a wider issue.
The marriage equality movement is running out of states where a simple legislative act can recognize same-sex marriage. Proponents now face the prospect of tackling the 31 states where constitutional amendments have been enacted, to varying degrees, to ban marriage equality. Undoing these bindings will not be easy. In some states, though, the process is actually already underway and so taking a look at how they are making the change is important.
Nevada and the Marriage Equality Battles Ahead
In April, and following emotional testimony, Nevada senators passed a bill that would amend the state constitution to reverse a constitutional ban on same-sex marriage. That bill must now gain approval in the state House but, because amending a constitution by its nature must be a laborious process, a victory this year is only one part of the battle.
The next set of lawmakers to grace the state legislature must then approve the same measure in 2015 before finally allowing the measure to go before voters in 2016 who will need to ratify the change.
Obviously this provides several chances for sabotage and failure, and this shows the precarious nature of the road ahead. True, not all the battles will be as laborious. Due to the differences in the kinds of amendments and the different ways they can be overturned, some fights are still within easy reach.
For instance, Hawaii’s ban on marriage equality, Constitutional Amendment 2, is unique in that it grants the state’s legislature the power to define marriage as a heterosexual union — or not. Therefore, a simple act of legislative change could enable marriage equality. Expect Hawaii, with bills already in the legislature, to be one of the next states of focus, then.
What does this tell us? We know that states do not react well to court intervention on the issue of same-sex marriage –Massachusetts and Iowa being prime examples — so in states like Nevada and Ohio where victory is possible by other means, the legislative and public referendum battle is certainly worth investing time in.
This is especially true because, with public opinion rapidly increasing beyond even the 50% threshold, time is marriage equality’s friend. It will see legislators on both sides of the political divide grow in courage and cast a vote in favor of same-sex marriage rights, and the public at large provide support for the recognition of what is already granted heterosexual couples.
The Nevada fight also shows where a slightly wilting but nonetheless potent olive branch could be drawn.
Republicans in the state legislature originally backed the repeal of the amendment because, they said, that marriage should not be in the constitution at all. Many later refused to support the language once same-sex marriage was added, but this may point to where a compromise could be reached: repeal the constitutional bans first and then let the democratic process start afresh on this issue. It would take a great deal of time but may be a way forward in some conservative states.
In other states the temptation will be to turn toward the courts. Sadly, if recent cases are anything to go by, there’s no guarantee this will yield quick results.
Next page: No guarantees, and the upcoming Supreme Court decisions >>
No Guarantee When it Comes to Same-Sex Marriage and the Courts
In terms of court action, Nevada and Hawaii both have warnings for us. In the past year, two conservative federal judges have upheld constitutional bans on marriage equality, Nevada’s in Sevcik v. Sandoval and Hawaii’s in Jackson v. Abercrombie.
In both cases, the judges used different tones but much the same prejudice to declare there is a legitimate interest in preserving the status quo and that it is not unduly discriminatory to do so. Gay rights and the marriage question still hinge, to a large degree, on the interpretations of the law offered by individual judges, and this continues to be a problem for change advocates.
That’s not to say all court action is out of the question, however. Some constitutional amendments banning same-sex marriage are more vulnerable than others due to their being more wide-ranging and heavy handed, and court victories in those cases may be advantageous.
For instance, those in Nebraska, Texas, Alabama and the 15 other states that have banned marriage equality and civil unions would now appear open to challenge given the widening field of case history that says states, at the very least, must offer marriage-equivalent partnership rights.
Even more vulnerable are those bans like North Carolina’s where all partnership recognition for same-sex couples is outlawed.
A court challenge, framed correctly with mind to equal protection under the law, still wouldn’t be likely to overturn the amendments in their entirety but could chip away at them and win significant, if not broad, victories. Obviously, though, this would take time. A lot of time. If we are interested in gaining ground quickly, what can be done?
Establishing at the Supreme Court of the United States that there is a fundamental right to same-sex marriage could be the most powerful victory and one that could topple every remaining same-sex marriage ban in the United States. There’s a roadblock to such a victory, however, and it has to do with an entirely different topic of debate: abortion rights.
Proposition 8 and the Supreme Court
This summer, America’s top court will decide the fate of California’s voter-enacted marriage equality ban, Proposition 8. Much has been pinned on this as a potential blockbuster victory. A broad ruling giving a definitive answer striking down marriage equality bans across the country, or even within the Ninth Circuit’s jurisdiction, seems incredibly unlikely however. Why?
As articulated by Justice Ginsburg this week, even the Supreme Court’s liberal wing is keen to avoid a repeat of the Roe v. Wade backlash which has destroyed the right to choose in many states and continues to escalate with ever growing restrictions on women’s rights. That’s not to say the Proposition 8 case won’t be important, however.
Even if the justices confine themselves to a ruling solely dealing with California — and there are strong signals that the Court will allow the lower court ruling striking down Proposition 8 to stand — it will be the precise language of the decision and the boundaries it draws, alongside the other SCOTUS case Windsor v. United States, that will be scrutinized as a means to predict the likelihood of success should marriage equality advocates take to the courts in the future.
Make no mistake, the Proposition 8 case could be vital to mapping out the road ahead. True, though, that the case is unlikely to be what will yield immediate victories beyond California. In fact, as one looks to the probable avenues of how advocates can start to tackle the constitutional bans on marriage equality, a certain irony starts to emerge.
While it was a popular vote that curtailed marriage equality in California in 2008 in the same way it has in many other states throughout the land, and despite fierce protests from marriage equality advocates that we should not put civil rights to a public vote, it is likely that in moving forward the ballot initiative or public referendum process will increasingly be the method employed to gain marriage equality victories. So how to win at the ballot?
Getting to the Grassroots: Why Maine and Minnesota Are Important For Future Victories
Maine’s victory was, and still is, an important one. The voting public went from rejecting same-sex marriage at the ballot in November 2008 to enacting same-sex marriage in November 2012. This was the first time marriage equality had ever prevailed at the ballot, a victory solidified by Washington and Maryland victories that same night. Moreover, it was the first time the voting public had ever made this change by itself, and that sent a powerful message across the United States.
No longer could opponents dismiss the marriage equality victory as lawmakers or activist judges acting against the will of the people, as this was equality for the people and by the people.
The recent Minnesota victory also spells a powerful testament to grassroots power. True, marriage equality was enacted by lawmakers and signed by Governor Mark Dayton, but advocates had already paved the way for this victory.
They had defeated a constitutional amendment to ban same-sex marriage at the ballot in 2012, and they then became the engine to compel lawmakers to capitalize on the energy raised in that fight and make marriage equality the law. Couple this with the fact that religious conservative-led opponents had exhausted their arguments in 2012 and the victory, while not easy, was within reach.
A majority of Americans now back marriage equality. This is a fact. It is also a fact that it is with the American public — with you as advocates — that the marriage equality fight will soon rest, and that it will be the kinds of victories above, raised from public action, that the marriage equality movement needs if it is to keep advancing.
The question is, whether marriage equality movement is ready to go through this change? Given that changing hearts and minds at a local, personal level has always been a mantra for the movement, the early signs are positive.
So maybe not this year Arizona, Michigan or Vermont, but soon. In fact, let’s make that very soon.
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