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April 10, 2009
The politics of marriage
Posted by: Andoni
Following the victories in Iowa and Vermont this past week, Matt Coles, Head of the ACLU LGBT and AIDS Project sent out an email analyzing the future of our continuing battle for marriage equality. With his permission I post his comments here:
"Iowa
and Vermont: The Politics of It
Some week. The Vermont legislature voted to let same-sex couples marry, and the Iowa Supreme Court decided that it is unconstitutional not to let same-sex couples marry. Together, these two events are a much needed shot in the arm for marriage.
Some week. The Vermont legislature voted to let same-sex couples marry, and the Iowa Supreme Court decided that it is unconstitutional not to let same-sex couples marry. Together, these two events are a much needed shot in the arm for marriage.
Iowa is the first win in a flat state without an ocean view. And
the decision was unanimous. Vermont is the first time a state legislature
(as opposed to a court) has opened marriage, and it did it by a stunning veto
override.
Iowa and Vermont don’t erase the damage from losing Proposition 8 in
California. They don’t have either the cultural or economic influence that
the Golden State has. Still, there’s nothing like winning big to put the
wind back in your sails.
Where the marriage movement heads now,
though, is complicated. Iowa and Vermont will not be the start of same-sex
marriage all over the country because that simply isn’t
possible.
Winning marriage in four states has
been politically expensive; in getting it, we also got amendments to state
constitutions that block marriage in 29 states. There are just two ways to
get marriage now in those 29 states. First, you could go to the voters to
get the amendments repealed. That’s a very costly process, and one not
likely to work in many of the states with amendments (like Alabama and
Mississippi).
You could instead go to the federal
courts, and ask them to rule that the state constitutional amendments violate
the federal constitution. But that’s not a very good bet. A few
years ago, the ACLU and Lambda Legal sued to set aside the most egregious
amendment, Nebraska’s (it bans every form of relationship recognition for
same-sex couples, and none for heterosexuals). We lost, in a moderate
federal appeals court.
Moreover, any federal case in which we
win will surely wind up in the Supreme Court. Winning there is a long shot
anytime soon. Losing could prevent us from winning state cases and might
even hurt us in cases about parenting, schools and jobs. (I explained this
in greater detail in Don’t Just Sue the Bastards).
That means that the landscape for
change right now is 21 states, not 50. Four of those of course already
have marriage. Six more are states, like Pennsylvania and Indiana, which
don’t even have civil rights laws banning sexual orientation
discrimination. They’re unlikely to move to marriage anytime soon.
In a couple—like Wyoming and North Carolina—any progress on marriage seems a
long way off. So the immediate playing field is more like 11
states.
Some of those 11 states are ready for
marriage, or could be soon. We should have several additional marriage states, some by the end of this
year, some over the next few years. At some point though, if we are going
to get marriage in America, we’re going to need to do something about those
state constitutional amendments. There are three things we can
do.
First, in a couple of states like
California and Oregon, we probably can get the voters to repeal constitutional
amendments in a few years. But we have to be careful, particularly in
California. A second loss there would be very damaging to the movement,
both in terms of the resources it would consume and the extent to which it would
discourage our community and our allies. We should go back to the ballot
when we can win.
Second, in some of the other amendment
states we can lay the groundwork for future repeal by getting either civil
unions or domestic partnerships now. But in most of the amendment states,
even that isn’t possible. Of the 29 constitutional amendments, 19 also ban
anything similar to marriage; some ban any recognition. Outright repeal
isn’t likely in this third group of states in the near term. In some, we
could probably get partial repeal, allowing civil unions. But doing a
repeal that doesn’t allow marriage may be deeply unsatisfactory to many in our
own community.
It would be nice if there were an easy
way to get rid of these amendments, or if we could get marriage despite
them. But there isn’t. Our work is going to have to include some
repeals, some fights for domestic partnership and civil union instead of
marriage, and likely some fights for partial repeal.
Iowa and Vermont make this prospect a
little less daunting than it was just a few days ago. Most Americans
believe that marriage for same-sex couples will come some day, and deep in their
hearts, know that it really is a simple matter of fairness and equal
treatment. Because both Vermont and Iowa are so politically eloquent—such
strong wins—they give us the opportunity to tap into those
feelings.
In the states that are ready for
marriage, we should take the opportunity these two wins have given us to press
ahead and press hard. In the other states, this is the moment to lay the
groundwork.
The hardest thing about laying that
groundwork is the truth about the best way to do it. The best way to
change people’s minds is to talk to them about gay people. The best way is
to talk not about abstract issues, but about the ordinary lives of gay people,
and the way being gay makes life more challenging. (Click here for
“Tell 3,” a website that
explains why individual conversations are our best chance to make change, and
how to go about having them.)
That’s frustrating because it isn’t
easy to have conversations like that. But the Iowa and Vermont give us all
a pretty fabulous conversational hook. And if the bad news is that no
outside force is going to do this for us quickly, the good news is that to a
great extent, we have the power to make it happen ourselves."
Matt Coles
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Comments
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Meanwhile, it looks like New York could be the next state to approve same sex marriage, thanks to efforts being made by Governor Paterson.
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Charles FRench on Apr 10, 2009 4:44:49 PM:
Spot on!