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Welcome to the next 10 years of the gay marriage debate | Hunter of Justice

Welcome to the next 10 years of the gay marriage debate

by on May 15, 2009  •  In Marriage

At least so far, 2009 seems to be the year that the marriage equality debate broke the speed barrier. (All the more ironic since the loss on Prop 8 six months ago looked at the time like the Mount Everest of speed bumps. We will soon find out whether the election result will stand – maybe Thursday?) But – thanks to Connecticut, Iowa, Vermont and Maine – it is now a cliche on the pundit circuit that legalizing gay marriage is all over but for the shouting in the less enlightened neighborhoods.  Granted, it's going to be very lengthy mop-up operation, but mop up is the phase we've entered. Or so the new conventional wisdom goes.

I don't think so. My three reasons follow. Because of them, although I agree that we've entered a new phase, it ain't mop-up. In 10, 15, 20 years, we might be very close to where we'll be next year. Put another way, windows of opportunity open. And then they close.

1. With a few lucky breaks, there could be 8 to 10 states with marriage equality within a year. That's pretty amazing.  But then we hit a lavender ceiling, in the form of the 29 states with state constitutional provisions barring same-sex marriage (and sometimes also recognition of any form of marriage alternative). There are only three ways to achieve marriage in those states: a U.S. Supreme Court decision, a congressional enactment that provides a federal workaround in some form, or a ballot-box campaign in which the voters of each state collectively experience a change of heart.  Enough said.

2. The most feasible of those three – attempting to secure a federal workaround – plays to a new strength: Democratic control of the Congress by a comfortable majority and a POTUS who will sign whatever progressive bill makes it through Congress (although how much more than that he is willing to do remains to be seen). But the only way the Dems achieved this bigger majority was by winning districts that recently sent Republicans to Congress.  Think of it this way: the new margin depends on Dems who represent districts that probably voted for Bush four years ago. They aren't secure for progressives, and those new members know that. The other factor in Congress is that we don't get to limit our fight to carefully researched and selected jurisdictions like the New England states. A big chunk of the members, including the Dems, come from those 29 states that have amended their state constitutions to prevent recognition of same-sex marriages.

3. When you've just hit the accelerator, it's easy not to notice that someone else is suddenly also going very fast, in a different direction. That someone for our purposes is the group of modern traditionalists who have put the issue of religious rights on the same plate as marriage rights. Our success rate in state legislatures this spring (without a prior judicial victory on marriage) looks like it will be at least three for three: Vermont, Maine and New Hampshire. And the success rate of the modern traditionalists in state legislatures this spring … funny thing; it's the same three for three. 

New Hampshire Governor John Lynch issued a statement yesterday saying that he would sign the gay marriage bill into law, but only if it included stronger protections for persons who want an exemption from any civil rights laws if they refuse to participate in a same-sex couple's marriage.  Similar provisions were part of the Vermont and Maine bills. (More on that in a future post.) Some of the religious liberty language is a no-brainer: religious denominations and clergy can decline to perform marriages (of any sort). Everyone agrees on that. But what about a county clerk or a state government employee?  To me, that's a horse of a totally different color.  If you're working for a public entity, and you object to serving the entire public, you really ought to consider another line of work. And then there are commercial businesses, or non-profits that receive public funds.

Welcome to the new debate.

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One Response to Welcome to the next 10 years of the gay marriage debate

  1. Mad Professah May 22, 2009 at 3:29 AM

    I agree with you that the fight for marriage equality is “NOT all over but the screaming” but I also think it is helpful for us to be having the debate on this terrain (i.e. the impact of what recognizing same-sex marriages will have on other people) as opposed to the previous battle which was about whether this group of people deserve equal treatment or not.

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