Tag LGBT Rights

Marriage Equality at the Ballot Box

by Geoffrey Wertime

On May 6, 2009, I excitedly called my aunts in Maine to tell them that their state was finally going to recognize their longstanding relationship, which Massachusetts had first recognized several years earlier. Shortly thereafter, I had to call again to inform them that Question 1’s presence on the ballot had put the new law on hold.[1] That November, by a vote of 53 to 47 percent, the citizens of Maine rejected the marriage law, telling the state’s same-sex couples that their relationships didn’t count.

Question 1 was an unhappy loss for same-sex marriage advocates, but it was hardly a surprise. At that point, LGBT rights had only survived one single statewide referendum. Arizona’s Proposition 107 asked voters to amend the Arizona State Constitution to limit the state’s definition of marriage to opposite-sex couples and to prevent the state from recognizing unmarried couples in any official way. That proposition lost in 2006, but just two years later, Arizona voters passed a very similar measure. Proposition 102 changed Arizona’s constitution so that the state may only recognize monogamous, opposite-sex marriage.

Going into the elections this year, LGBT rights advocates had reason to be more hopeful about the questions on state ballots: it seemed the tide might finally be turning in favor of civil rights. The Second Circuit Court of Appeals had just recently become the second of the circuit courts to find the “Defense” of Marriage Act (“DOMA”) unconstitutional, in Windsor v. United States.[2] The Supreme Court was set to consider whether to take up any or all of several cases from lower courts that had ruled in favor of same-sex marriage. (The Court has yet to decide whether to hear any of three challenges to DOMA or Perry v. Schwarzenneger, a Ninth Circuit case which struck down California’s Proposition 8.)[3]

Yet given the movement’s troubled history with referenda, there was still reason to be concerned. Maggie Gallagher, former president and chairperson of the anti-LGBT “National Organization for Marriage,” has regularly touted her side’s previously perfect record on voter initiatives. Indeed, their latest victory was May 8, 2012, when voters in North Carolina enacted a same-sex marriage ban in  the state constitution by an overwhelming margin of 61 to 39 percent.

The elections this November represented a sea change in the politics of same-sex marriage, and possibly LGBT rights more broadly. Not only did voters approve (or refuse to deny) statewide LGBT rights for the first time in our nation’s history, but they did so in four referenda: MaineMaryland and Washington all voted to legalize same-sex marriage, while Minnesota voters rejected an anti-marriage amendment proposed for their state’s constitution. In Iowa, State Supreme Court Justice David Wiggins retained his seat despite a campaign targeting him after he voted with a majority in 2009 to recognize the right to same-sex marriage in the Iowa constitution.[4] At the same time, Wisconsin voters elected the nation’s first openly LGBT senator, current House Democrat Tammy Baldwin, and we have finally elected a president who openly supports marriage equality.[5]

It bears noting that these are only partial victories because the protection of civil rights should never be left to a popular vote. Had that been the case during the Civil Rights Movement of the 1960s, we might never have achieved even the formal, albeit practically limited, level of racial equality we have today. The key of this year’s election is that the primary strategy right-wing groups have used to attack same-sex families is no longer a reliable win for them, but we are far from establishing full equality for LGBT people.

Loving v. Virginia, the case that struck down the last of the old anti-miscegenation laws, came after all but 16 states began to allow interracial marriage.[6] With 31 anti-same-sex marriage amendments still in place, it is still unclear whether the Supreme Court will author another groundbreaking opinion like Loving, or whether it will falter as it did in Pace v. Alabama, an 1883 case upholding the state’s anti-miscegenation statute.[7] Until the Court gets it right, LGBT rights advocates will continue  fighting one state at a time. In the meantime, same-sex couples will continue to have their rights shift as they travel between states with varying levels of respect for their relationships.[8]

Still, these state referenda are great victories for LGBT rights. When the Court takes marriage equality cases, it will be in a vastly different landscape. With these latest additions, nine states and the District of Columbia recognize (or soon will) same-sex marriage. That stands in stark contrast to the cultural landscape the last time the Supreme Court took up LGBT rights; no state had yet successfully legalized same-sex marriage by the time the court issued its Lawrence v. Texas opinion in 2003.[9] Now, along with our legislative victories, queer characters are more common than ever on television; gay, lesbian and bisexual people may now serve openly in the military; and same-sex couples now have the right to visit their loved ones in hospitals receiving federal funding.[10]  Those advancements, and others like them, mean that the next Supreme Court case will come at a time when political and social acceptance of LGBT people is at its highest point ever, and history will clearly be on the side of equality. Whether the Court chooses to acknowledge those advancements remains to be seen.

Geoffrey is currently a 2L at NYU School of Law.  He is a Staff Editor on the Review of Law & Social Change and Co-Chair of OUTLaw.

[1] Ironically, the amendment was listed on the ballot as “An Act to End Discrimination in Civil Marriage and Affirm Religious Freedom” (emphasis added).

[2] Windsor v. United States, 12-2335-CV L, 2012 WL 4937310 (2d Cir. Oct. 18, 2012).

[3] Perry v. Brown, 671 F.3d 1052, 1063 (9th Cir. 2012), was the focus of the N.Y.U. Review of Law & Social Change’s symposium in October.

[4] Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009).

[5] During his 1996 Illinois State Senate campaign, President Barack Obama wrote on a questionnaire that he supported legalizing same-sex marriage. However, he changed his stance to supporting only civil unions when he ran for the U.S. Senate in 2004. He again reversed course and openly supported legalizing gay and lesbian unions, albeit on a state-by-state basis, in May 2012. See, e.g., President Barack Obama’s Shifting Stance on Gay Marriage, PolitiFact, http://www.politifact.com/truth-o-meter/statements/2012/may/11/barack-obama/president-barack-obamas-shift-gay-marriage/ (last visited Nov. 8, 2012).

[6] Loving v. Virginia, 388 U.S. 1, 6 (1967).

[7] Pace v. Alabama, 106 U.S. 583, 585 (1883).

[8] Imagine a gay coupled married in New York who is taking a trip to Pennsylvania. They will be treated as married in New York, civil union partners in New Jersey, and strangers in Pennsylvania. Compare them with a lesbian couple who has a civil union in New Jersey. They will be treated as strangers in both states that don’t recognize same-sex unions, such as Pennsylvania, and in states that only recognize same-sex marriages, since a civil union is not a marriage. See Defense of Marriage Act, Pub.L. 104-199, 110 Stat. 2419 (1996).

[9]  Lawrence v. Texas,539 U.S. 558 (2003).

[10] Presidential Memorandum – Hospital Visitation, 75 Fed. Reg. 20,511 (April 15, 2010).


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