I've been both very busy and traveling a lot since the election, so this is my first chance to lay down a few thoughts on the post Prop 8 world for lgbt rights. Irony of ironies, my travels have taken me first to Los Angeles and now to Utah, where I arrived Friday night too late for this massive demo outside the LDS temple (photo credit Lisa Duggan). Now I'm in southern Utah, taking a break, looking out at red rock formations that look otherworldly to a lifelong east coaster like me, like gigantic board game symbols for mountains, or abandoned art projects.
Even in the midst of my own personal rediscovery of the world of John Ford westerns, Prop 8 stings like a MFer. Sure the movement will move on; and at some point in the future, when re-raising $35 million seems like a fun thing to do, we can recapture marriage equality in CA. Right now, it feels like the first days after our team lost Bowers v. Hardwick in the Supreme Court. The silver lining of that defeat was that it launched a series of challenges over the ensuing 10 years to sodomy laws in state courts. Our team won almost all of them. Those state supreme court decisions proved to be the legal tipping point for persuading the U.S. Supreme Court in Lawrence v. Texas in 2003 to reverse Hardwick and find all sodomy laws unconstitutional. In effect, that ended the criminalization of gay identity in the U.S.
Losing Prop 8 leaves one litigation challenge to exclusionary marriage laws pending, in IA, where oral argument will be held in a month, on December 9. Then the marriage battles will shift to state legislatures. In NY, where the Dems now control both houses of the legislature as well as the governor's office, passing a marriage bill is a possibility (although far from a certainty; it will probably take some time). The political situation in NJ might be more propitious. And certainly the most powerful comeback to the loss in CA would be a victory in a political, not judicial, branch. Legislative branch victories will be the silver lining of losing Prop 8.
Not that the movement won't pay a price for Prop 8. My prediction – and again, this post is only about the legal side of things – is that the other side will try to capitalize on its victory by repeating the ARK victory that barred same-sex (and other unmarried) couples from adopting children or serving as foster parents. After all, they've already succeeded in banning marriage in almost all states; not much room for them to grow on that issue. So my hunch is that they will target super conservative states, and move on the adoption front. Repelling those will certainly soak up some time and money.
The place for our team to concentrate – the location of our greatest strength – is the non-marriage front. After all, if we had not had a Republican president and congress for these last years, we would have enacted ENDA in the first year or two of the Gore presidency. The legal movement's priority would have been securing and implementing a national anti-discrimination law. I don't think that the focus we have seen on marriage would have mushroomed in anything like the way that it has. At the very least, Gavin Newsom would not have been sitting in the audience for a Bush State of the Union address that would have angered him into going home and launching a gay marriage initiative.
The upside potential for lgbt rights is enormous right now, although it may not have a lot to do with marriage. Two goals seem obvious:
Enact an inclusive ENDA. Of the 10 largest states in this country, only 3 have a statewide law that prohibits discrimination based on sexual orientation or gender identity. And most state – and certainly local – laws that do cover such discrimination have weaker remedies than ENDA would provide.
Repeal DoMA (what is critical is the portion that prohibits federal recognition of same-sex marriages) and enact a federal law that provides for federal recognition of marriage equivalent statuses. That change would provide full material equality to same-sex couples who live in civil union states (as CA now is, again). And it would give us all a fresh start on relationship issues.