As today’s marriage equality developments demonstrate, the marriage movement is wise to focus its attention on state legislatures, where real change can be accomplished through persistence and education. One of the most important facets of the marriage movement is state-by-state gains: the more Americans who live in communities where gay and lesbian couples can marry, the more that learn what marriage really means to these couples.
Nevertheless, American government is a federalist system, and nationwide, federal activism is just as important as state activism. Today, Freedom to Marry launched a petition campaign urging the Democratic Party to adopt full support of marriage equality in its 2012 platform, which will be voted on at the Democratic National Convention taking place in Charlotte, North Carolina in September. Here is Freedom to Marry’s proposed platform language:
The Democratic Party supports the full inclusion of all families in the life of our nation, with equal respect, responsibility, and protection under the law, including the freedom to marry. Government has no business putting barriers in the path of people seeking to care for their family members, particularly in challenging economic times. We support the Respect for Marriage Act and the overturning of the federal so-called “Defense of Marriage Act,” and oppose discriminatory constitutional amendments and other attempts to deny the freedom to marry to loving and committed same-sex couples.
Freedom to Marry’s position is important because it is unequivocally time for the Democratic Party to support full marriage rights for all. Polls throughout 2011 have demonstrated that a majority of Americans supports marriage equality. Even more strikingly, a CNN poll found that among Democrats, a full 64 percent are in support of marriage equality, along with 55 percent of independents. When almost two-thirds of a party’s voters support an issue, it’s time for that party to include the issue in its platform.
Even more significantly, Freedom to Marry’s suggestion wouldn’t just be the right thing for Democrats to do, it’s the smart thing to do politically as well. As we’ve written about before here on P8TT, there is no reason that marriage equality should be seen as a partisan issue, and Republicans like Ted Olson (and the Republican senators who voted for marriage equality today in New Jersey) deserve commendation for their support. Nevertheless, it is to the benefit of Democrats to be seen as the party that supports an issue that so many Americans (and particularly young Americans) are in favor of.
As we reported here at P8TT, Australia’s Labour Party amended its platform in early December to include full marriage equality. Just yesterday, two new marriage bills were introduced in the Australian legislature, one by a Labour politician and another by a member of the Greens party. This isn’t to say that gay and lesbian couples will be able to marry in Australia any time soon: none of the bills has the support yet to pass. But with a new poll showing 62 percent support for marriage equality in the country (a number that jumps to an incredible 81 percent among voters aged 18-24), the bills mark a promising development. Labour, the ruling party, opposed marriage equality until just a few months ago; now, one of their members of parliament has introduced legislation to make equality a reality. Could the same thing happen in the U.S.? First, one of our political must amend its platform. For the Democrats, it looks like that time might finally have come.
Prop 8′s unconstitutional, Washington’s passing its marriage equality bill, Illinois just introduced a bill of their own, we’re making more progress in Maryland, and now New Mexico has pulled a proposed anti-gay marriage law. I told you 2012 was going to be busy.
There are four big things you need to know about last week’s ruling.
First, it is a huge deal that for the first time ever, a federal appeals court has said that it’s unconstitutional to ban marriage equality. Second, the court ruled that there is no legitimate reason for singling out LGBTs for denying equal protection.
Third, this ruling isn’t just for California. The Ninth Circuit is the largest circuit in the country, and this ruling is a binding precedent from Alaska to Nevada. So if any of those states ever grant marriage equality and then try to take it away, this ruling says, in essence, “stop. Don’t. The 14th Amendment protects minority groups.”
We’ll talk more about that in just a minute.
And fourth, it’s a big big deal that the court rejected the homophobic argument that the District Court judge should have recused himself when he disclosed that he’s gay. Each of those points is a huge victory, and they won’t be our last.
So now let’s talk about Washington. By the time you watch this, the Governor will probably have signed marriage equality into law. But just like in California with Prop 8, the law doesn’t take effect right away. Anti-gay activists have a few months to gather signatures to stop us from marrying. They could try to overturn the law with a referendum, which requires about 120,000 signatures and would delay the law’s start until after the election in November. Or they could try to invalidate it with an initiative, which would require 240,000 signatures, but it would probably allow marriages to start sometime between now and the election. Or they could do both, but that could work against them if voters get confused about two competing anti-gay measures.
Right now, it’s unclear how the ruling in the Prop 8 case will affect Washington State. But Washington is in the Ninth Circuit. And our ruling says that it’s unconstitutional to take away marriage once it’s been granted. So we’ll be keeping a close eye on those developments.
Meanwhile, a new survey in New Hampshire shows that 62 percent of residents oppose attempts to take away that state’s marriage rights.
Visit MarriageNewsWatch.com for up-to-the-minute news alerts on all these stories and more. And for more on the federal fight to overturn Prop 8 and win full federal marriage equality, visit AFER.org. I’m Matt Baume at the American Foundation for Equal Rights. We’ll see you next week.
The New Jersey Senate approved a marriage equality bill today, passing the measure by a vote 0f 24 to 16. Two Republicans, Senators Jennifer Beck and Diane Allen crossed the aisle to join the majority. In addition, three Democrats who voted no in 2009 voted yes today, and three other Democrats who abstained in 2009 also joined the majority. Those numbers are significant: in just a little more than two years, eight state legislators changed their mind on the issue. Whether those changes of heart were truly substantive or rather merely political is largely irrelevant–what matters is the marked shift in momentum in the chamber on the issue.
The marriage equality bill nows goes to the state Assembly on Thursday, where it is expected to pass. Regardless of whether the bill is vetoed by Gov. Chris Christie, today’s vote shows that the balance is shifting in our favor. Congratulations, New Jersey!
It’s become accepted conventional wisdom that the opinions written by Judges Walker and Reinhardt have been aimed at winning over Justice Anthony Kennedy’s “swing vote” should the Perry v. Brown case regarding the constitutionality of Prop 8 make it to the Supreme Court. Attorney Adam Bonin, writing at DailyKos, says Judge Reinhardt’s opinion as written “in Justice Kennedy’s sweet spot.” Courage Campaign’s Rick Jacobs remarked to me the other day how the little hints and winks in such opinions are like Kremlinology, part of a subtle strategy.
In today’s Los Angeles Times, University of Minnesota law professor Dale Carpenter fleshes out exactly why Prop 8 would fall at the Supreme Court — and it’s not necessarily, he argues, because of Romer v. Evans (a 1996 decision striking down Amendment 2 in Colorado), but because of Lawrence v. Texas (a 2003 decision striking down anti-gay sodomy bans across the country). The majority opinions in both cases were written by Justice Kennedy. Carpenter:
The 9th Circuit relied heavily on Justice Anthony Kennedy‘s opinion for the Supreme Court in 1996 in Romer vs. Evans, which invalidated a state constitutional amendment forbidding any law protecting homosexuals from discrimination in any area of life. In a 6-3 decision, the court held Colorado’s Amendment 2 unconstitutional, in part, because it was “at once too narrow and too broad,” identifying “persons by a single trait and then denying them protection across the board.”
But is the Supreme Court likely to apply the reasoning of Romer to the Proposition 8 case? As the 9th Circuit panel conceded, the initiative did not deny homosexuals legal protection across the board. Unlike the blunderbuss Amendment 2, Proposition 8 used what the opinion aptly called “surgical precision” to remove the title of marriage from otherwise fully protected relationships. In other words, the court seemed to argue, Proposition 8 violated the principle of Romer because it was at once too narrow and too narrow. That is a curious, and I think strained, application of Romer vs. Evans.
To the extent the 9th Circuit relied on the distinct harm caused by withdrawing six months’ worth of court-ordered recognition, the opinion is even more shaky. California voters closed the window as soon as they could; surely their rebuke of state courts can’t by itself constitutionally immunize judicial decisions.
Nevertheless, the root question will be why the window was closed at all. Romer makes clear that it is not constitutionally acceptable to disadvantage a class of persons simply to express animosity toward them. But Proposition 8′s proponents certainly did not agree that the initiative was motivated by dislike of gay people. And though anti-gay arguments were made in high-profile campaign ads, it would be difficult to know what really motivated 7 million people to vote as they did.
If Proposition 8 is ultimately declared constitutionally unacceptable by the Supreme Court, it might have to reach beyond Romer, to a decision mentioned only sparingly by the 9th Circuit. That is the Supreme Court’s decision in Lawrence vs. Texas, which struck down a law banning homosexual sex.
The sorry history of this country’s legalized discrimination against homosexuals is striking for the absence of reasoned justifications, for arbitrary lines between conduct allowed and conduct forbidden, and for a tendency to use the asserted immorality of homosexual acts to justify widespread opprobrium of homosexuals. History certainly suggests that an unreasoning prejudice or aversion motivated some laws shutting out gay people.
Texas, for example, prohibited gay sex in 1973 in a so-called homosexual conduct law, but in the very same year the state legalized consensual heterosexual sodomy, adultery and even bestiality. One Texas appeals court judge, a Republican and self-described “country lawyer” who had no schooling in gay rights causes, saw that contradiction as nonsense. In an interview about the Lawrence case, he told me that when it reached his court, he wondered how the state could justify a surgically precise ban on gay sex.
“I kept thinking that if they decriminalized all those things that one would normally say are immoral, then why did they leave this one in? There had to be a reason,” he recalled thinking, obviously still baffled. “And nobody could explain to me why.”
In Lawrence, the court ruled that the state could not impose the majority’s moral code on homosexuals. It could not “demean their existence or control their destiny” by driving them away from relationships. Homosexuals, the court observed, enter relationships for the same reasons heterosexuals do: to share intimacy with a partner, to show affection and obligation, to have and raise children, to establish a place they call home and to love people they call family. California recognized this reality through its broad domestic partnership law.
But just as Texas prosecutors could no longer explain in constitutionally acceptable terms why the law excluded homosexuals from an otherwise transformed codification of sexual morality, the proponents of Proposition 8 cannot explain the titular exclusion of gay couples from an otherwise transformed landscape of family law and marital practice. California has, for very good reasons, abandoned a seamless worldview of legally recognized relationships from which gay couples and their families must be absented. Proposition 8 in California, like the homosexual conduct law in Texas, is an anachronism.
So what potentially dooms Proposition 8 as it nears the Supreme Court is not necessarily the distinct whiff of prejudice but a lingering impression of incoherence. Despite what some critics last week charged, to challenge the sufficiency of the reasons offered for Proposition 8 is not to indict traditional marriage itself as bigoted and irrational. There are many rational, indeed compelling, reasons to support marriage between one man and one woman. Among others, getting heterosexuals to take responsibility for the children they conceive is a powerful reason to encourage them to marry.
But encouraging heterosexuals to take seriously their familial obligations is no reason by itself to deny same-sex couples the full social and legal incentive to settle down. And to confer parental rights, marital rights and marital obligations on same-sex couples without giving them “marriage,” Proposition 8′s proponents must more convincingly answer one question.
Why?
It is not certain whether the Supreme Court will even take the case, but if it does, the question arises on which holding the Court will rely on — if it strikes down Prop 8 at all.
After the whirlwind of marriage equality developments that took place last week, this week shows no signs of slowing down that momentum. Here are the two big marriage quality events to watch today.
First, at 12 p.m. EST, the New Jersey Senate will debate and vote on a proposed marriage equality bill. Senate President Steve Sweeney, speaking on public radio last Friday, expressed confidence that the votes were there in his chamber to pass the bill, although it is still uncertain if there are enough senators committed to override Gov. Chris Christie’s promised veto. A link to the video feed for the New Jersey Senate can be found here.
Also today, at 11:30 a.m. PST, Washington Governor Chris Gregoire will sign marriage equality into law. Video of that event can be found on TVW. As in New Jersey, the course of equal rights will likely not run smooth. The law is not scheduled to go into effect until June 7, but if opponents of marriage equality gather the 120,000 signatures required by June 6 to place a referendum on the ballot (which they are expected to succeed at), it will be suspended until after the election. A separate anti-marriage equality initiative has also been filed, which would require 241,153 signatures to be collected before July 6 to qualify. (In an intriguing twist of timing, the extremely anti-gay GOP presidential candidate Rick Santorum will be in Washington today, and plans to meet with marriage equality opponents.)
We’ll have an update here at P8TT about the vote in the New Jersey Senate later today!
Lyle Dennison, a Supreme Court reporter with the website SCOTUSblog, has an interesting look at the long and winding road that could be ahead for Prop 8 as it makes its way through the appeals process. Of course, there is no guarantee that the Supreme Court will take the case at any point, but as Dennison points out, Prop 8 could spend a good deal more time in the 9th Circuit. From SCOTUSblog:
Under federal rules applying to all Circuit Courts, a majority of the active judges can either order an en banc review in response to a request from lawyers to do so, or it can order it on its own. The effect of a vote in favor of such review is to set aside the panel decision, so that there is no final ruling of the Circuit Court until the en banc court finishes with it. Under a special local rule that only the Ninth Circuit has, only 11 of the 25 currently active judges on the full court might sit on a “limited” en banc court — the more common kind — or, all 25 of them might join in on a “super” en banc court. (There are actually 44 judges serving on the Ninth Circuit, but 19 of them are doing so in senior status and can’t vote on en banc matters; the Court has four vacancies.)
Under that local rule, if the court is thinking about going en banc, and no one has asked for it, it ordinarily will give the lawyers involved an opportunity to comment on whether they think the court should go that route. If such further review is sought by a petition, the other side usually will get a chance to comment before the court does go en banc.
Another complicating factor — and one that could stretch out the review in the Ninth Circuit — is whether the en banc court would ask for new written briefs. An en banc court can proceed just on the briefs filed in a three-judge panel proceeding, but it can seek new arguments on its own.
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