Tipping the Scales – In 2012, Gains Outweighed Losses
Unquestionably, 2012 will be remembered as a watershed moment for marriage, the tipping point when the tide of equality crested the hill of public opinion. Since spring 2012, polls consistently have found that support for equal marriage is the majority position.
Those polls were reflected in unprecedented wins at the ballot box in November 2012. While Minnesotans rejected a constitutional ban, majorities of voters in Maine, Maryland and Washington went further, explicitly ratifying the freedom to marry. In fact, Mainers approved marriage equality by nearly the same margin they had rejected it just two years earlier, one example among many of the incredibly rapid rate of positive change in public opinion and support.
Loving committed couples began marrying in Maine and Washington in December and in Maryland the first day of January, 2013. Moreover, outcomes like those in Maine, Maryland and Washington are important not just for residents of those states but are vital in further shaping public opinion. Where same-sex couples have the freedom to marry, polls show an increase in acceptance and approval of extending this right. By year’s end, almost one in six Americans was living in one of the nine states and the District of Columbia that recognize marriage equality.
The Democratic Party also made history in 2012 when it included language unambiguously supporting marriage equality in its national party platform, the first time a major U.S. political party had done so. Indeed, the platform committee unanimously endorsed the statement.
Across the aisle, many high-profile Republicans like Ken Mehlman, Paul Singer, Ted Olson and others gave generously of their time, energy, talents and dollars to fund marriage equality advocacy, pass equal marriage legislation and litigate marriage bans. One in four self-identified Republican voters bucked the party line to approve marriage equality in Maine, Maryland, Minnesota and Washington; without these voters, equality would not have prevailed.
However, the national Republican Party platform explicitly affirmed the so-called Defense of Marriage Act (DOMA) and recommended a federal constitutional marriage amendment, despite increased public support for marriage equality, the pro-equality policies of a growing number of states and the rising tide of same-sex couples already legally wed. In light of these factors and the party’s defeat in the Presidential election, some Republican insiders may urge the party to modify its position in 2013.
Our community also suffered a painful defeat at the ballot box last May when North Carolina became the 31st state to enact a constitutional amendment prohibiting legal recognition for same-sex couples. While passage of North Carolina’s Amendment One was heartbreaking, the wins in four other states meant it was the last time opponents could claim that whenever the public are allowed to vote on marriage, they vote to exclude loving same-sex couples from it. Marriage equality supporters in the South also are redoubling their efforts in light of the vote. In 2013, committed same-sex couples and the Campaign for Southern Equality are advocating for marriage equality through the “We Do” campaign in seven southern states, including North Carolina.
This year, advocates will work to secure full marriage equality in Delaware, Hawaii, Illinois, Rhode Island and perhaps Minnesota; to pass civil union legislation in Colorado; to repeal existing bans in Minnesota and Ohio; and to hold back potential bans in Indiana and Iowa. Very recently, marriage equality and domestic partnership bills also have been introduced in Wyoming, along with a marriage equality bill in New Mexico. Although we can’t yet predict their likelihood of passage, one very positive note is that the Wyoming bills have bipartisan sponsorship.
The Respect for Marriage Act (RFMA), which would overturn DOMA, also will be reintroduced in Congress in early 2013. Although chances for passing are slim given the makeup of the House of Representatives, the number of sponsors and supporters in Congress continues to grow and now includes both Democrats and Republican members.
I Always Rely on the Kindness of Allies
The President of the United States became the most famous, powerful and influential ally for marriage equality last year when, in a May 9 interview with ABC News, he publicly endorsed the freedom to marry, less than a week after Vice President Biden had done so on Meet the Press.
Citing conversations with his own friends, family and neighbors as a decisive factor in his oft-described “evolution” on marriage, President Obama remarked, “[W]hen I think about members of my own staff who are in incredibly committed monogamous relationships, same-sex relationships, who are raising kids together, when I think about those soldiers or airmen or marines or sailors who are out there fighting on my behalf and yet feel constrained, even now that Don’t Ask Don’t Tell is gone, because they are not able to commit themselves in a marriage, …personally it is important for me to go ahead and affirm that I think same sex couples should be able to get married.”
The President went further in his January 21, 2013 inaugural address by placing the movement for LGBT equality squarely among other American civil rights struggles in “Seneca Falls, Selma and Stonewall,” and by proclaiming that the ongoing journey to recognize our nation’s founding principle and “most evident truth” that all are created equal “is not complete until our gay brothers and sisters are treated like anyone else under the law – for if we are truly created equal, then surely the love we commit to one another must be equal as well.”
It is difficult to overstate the importance of President Obama’s support. However, marriage equality wins in 2012 would not have been possible without the perseverance and dedication of allies across the political spectrum and across all walks of life.
In 2012, Governors O’Malley and Gregoire of Maryland and Washington, respectively, provided critical political support both for the initial passage of legislation and throughout the resulting public referenda campaigns. Shamefully, New Jersey governor Chris Christie took an opposing approach, vetoing marriage equality legislation and stating he believes the issue should be put to public referendum. Many criticized him for his position, and legislators have until next January to attempt to override the veto.
The Marriage Equality USA (MEUSA) Campaign for 20 Million More leveraged the organization’s grassroots volunteer-driven strategy to forge a strong coalition of advocates and allies – LGBT and straight; Republicans, Democrats and Independents; faith leaders, religious believers and secularists – that put hundreds of volunteers from MEUSA and more than 50 partner organizations door-to-door in the four states and at phone banks across the rest of the country. Similar coalitions and campaigns, some already underway and others in development, will play a key role in passing marriage equality legislation in more states throughout 2013.
Moreover, ongoing market research identified conversations with straight family, friends, neighbors and colleagues who support equality as a particularly crucial component in moving undecided voters to a position of support and to a willingness to vote for love, commitment and marriage. In all four states with ballot initiatives last fall, such outreach by straight allies absolutely was critical to success.
President Obama’s bold public support for marriage was cited as a contributing factor throughout the fall election by others who moved from a position of opposition, or from support for lesser and unequal statuses of civil unions or domestic partnerships, to a position of full support for marriage. In Illinois, where we hope equality legislation will pass this year, Governor Quinn changed his position from favoring civil unions to supporting full marriage only after the president’s statement. More recently the governor said, in regards to marriage equality and quoting Dr. Martin Luther King, Jr., “[I]t’s the right time to do the right thing.”
The Ball’s In Your Court Now
This year, of course, all eyes are on the Supreme Court after its December announcement that it had granted certiorari for two high-profile marriage cases.
On March 26 and 27, respectively, the court will hear oral arguments in Hollingsworth v. Perry, the case addressing California’s Proposition 8 repeal of the state constitutional guarantee of equal marriage, and in U.S. v. Windsor, one of roughly a half-dozen cases landing on the high courts’ docket last year challenging Section 3 of DOMA. The remaining DOMA cases before the high court appear to be in a holding pattern awaiting resolution of Perry and Windsor. A mounting number of DOMA and marriage equality cases in various circuits specifically have been stayed pending those decisions, including cases contesting the constitutionality of marriage bans in Hawaii and Nevada.
By the end of June the court could hand down any number of decisions in the Perry case ranging from a sweeping nationwide win – e.g., a finding that the U.S. Constitution requires equal marriage for all Americans, regardless of the state in which they live – to a bitterly resounding defeat – e.g., an opinion that the freedom to marry for some citizens not only is neither constitutionally guaranteed nor protected, but in fact may be denied or repealed by public referendum.
Or the court could, to a degree, punt on the merits of the case, either by issuing a narrow opinion overturning Prop. 8 on the grounds that the right to marry once constitutionally recognized may not later be revoked by referendum, or by essentially refusing to rule at all based on a finding that the defendants had no constitutional right to appeal in the first place; that is, they lacked standing. In the case of such a procedural punt, the win for marriage equality would be a correspondingly smaller one – likely restoring marriage only to California, and creating no precedent – but a win nonetheless.
In Windsor, the court has given itself a similar procedural out, as it has asked a third party to brief the court on the issue of standing therein as well. Nonetheless, most analysts expect the court to issue an opinion on the merits regarding DOMA.
A win on the merits in Windsor would require the federal government to recognize the marriages of same-sex couples in those states and the District of Columbia where such marriages are valid. Legally married same-sex couples in those jurisdictions no longer would be denied the more than 1,100 federal rights and protections granted to married couples. A win in Windsor alone, however, would not require other states either to perform or recognize marriages of same-sex couples.
A loss in Windsor, conversely, would require the federal government to continue to discriminate against some married couples in the provision of rights and protections, granting them only to opposite-sex married couples while denying them to same-sex married couples, unless and until DOMA is repealed legislatively via the Respect for Marriage Act.
In an interview with Buzzfeed, Edie Windsor, the plaintiff in the DOMA case, expressed her optimism. “There’s a whole world of justice,” the 83-year-old widow noted. “And so, I’m not skeptical… I trust the Constitution. Sometimes there’s a mistake, but mostly we move forward. I think we’re going to win just because I think justice will prevail.”
In both Perry and Windsor, the court also has the opportunity to determine the degree of legal scrutiny to be applied to cases involving sexual orientation; that is, whether the constitutionality of laws that restrict rights based on sexual orientation should be examined with a higher degree of scrutiny, as are laws that target race, gender or national origin, and which make such laws much harder to justify, or whether laws restricting rights of lesbian and gay people are subject to lesser scrutiny, as traditionally has been the case.
In the past, the Supreme Court has stopped short of ruling that laws that target sexual orientation need be subjected to the same level of scrutiny as laws based on race or gender, but several of the lower courts in the Prop. 8 and DOMA cases have suggested that sexual orientation merits such heightened scrutiny. Should the high court agree with these lower courts, it would be very difficult in the future to defend any law that restricted rights on the basis of sexual orientation.
While we hope for positive Supreme Court decisions at minimum restoring marriage equality to California and overturning DOMA Section 3, even the least desirable outcomes will not stop our forward movement–at worst, only slow it. The hard work is not yet over, to be sure. And setbacks will occur. But in light of the momentous advancements of this past year and the unwavering commitment of so many advocates and allies, the inevitability of marriage equality for all has perhaps never been more clear. As MEUSA Executive Director Brian Silva said after marriage’s historic wins at the ballot box last fall, “There is no turning back now on the road to full equality.”
Thom Watson is the Social Media Director of Marriage Equality USA (marriageequality.org) and John Lewis is the organization’s Legal Director.