as long as we all shall live

[topaz]

The 2004 election cycle included referenda on 11 state amendments that would prohibit those states from recognizing same-sex marriage. All 11 amendments passed.

It's depressing, but I find myself not that bothered by this result as I might otherwise be. I'll try to explain why here. Those of you who have already heard me ramble about this in your journals, I beg your patience.

The entire same-sex marriage issue hinges on the principle that each state is obligated to recognize marriages performed in other states (the "full faith and credit" clause of the Constitution). Were it not for this, same-sex marriage would be barely a blip on the radar. A marriage performed in Massachusetts, or Vermont, or Idaho, would not necessarily be recognized elsewhere. It would still stir up conservative alarm, but not nearly so much as it currently does. The full faith and credit clause makes a very strong case that same-sex marriage, once performed in one state, would have to be recognized by the rest of the union.

There are roadblocks to this, of course -- the federal Defense of Marriage Act, the individual state marriage bans, and now the state amendments. The validity of these acts are guaranteed to be heard, eventually, by the Supreme Court. But in the meantime:

So there is enormous significance on the first state to perform same-sex marriage. It becomes the wedge state. Once same-sex marriages start happening somewhere, it's conceivable that it might happen anywhere.

We had thought that state would be Hawaii. Then we thought it would be Vermont. It has turned out to be Massachusetts (and man, just imagine my civic pride). The conservative element that wants to stop same-sex marriage now faces a choice: find a way to block it from being recognized in the other 49 states of the country, or put a cork in the bottle by killing it in Massachusetts before it can get any farther. If Massachusetts' state constitution can be amended to prohibit same-sex marriage, that's almost as good as banning it in all the other 49 states combined.

That is why the most immediately important of the marriage races is here in Massachusetts. The anti-marriage constitutional amendment passed the legislature in the last Constitutional Convention. It has to pass again this winter, and then be passed by referendum in 2006, in order to be ratified. If they succeed in amending Massachusetts' constitution to prohibit same-sex marriage, it's game over. We have to start all over again, from scratch, somewhere else.

The good news, therefore, is that the anti-marriage crowd in Massachusetts suffered bitter setbacks this election season. Every single incumbent supporter of same-sex marriage was re-elected. Every single one. Moreover, there were eight open races in which one of the candidates opposed same-sex marriage. We won six of them. The marriage opponents faced an uphill battle in the statehouse last year; this year, with a new speaker of the house who opposes amending the constitution, it is all but finished. Same-sex marriage has survived the most immediate threat.

This will not be very comforting to those who live in Ohio, or Michigan, or Oregon, or any of the other states that have amended their constitutions. I can't give you any words of consolation. It sucks, badly, and it's going to suck worse before it gets better. But I am confident that it is a desperate backlash, a cynical ploy by the GOP to get out the conservative vote, and little more than that. We are still closer today to achieving nationwide marriage equality than we were on Monday.

Comments

[boutell.livejournal.com]

Nice analysis. I must mention, though, that eight of the proposed bans covered civil unions and other laws offering benefits comparable to marriage. Ouch. I mean, ouch.

And as for the full faith and credit clause, don't forget about this little gem (http://www.livejournal.com/users/boutell/121023.html) of Edwards'.

We're not entirely knuckle-dragging bigots

[pi3832.livejournal.com]

If it makes you feel any better, here in Cincinnati, while folks overwhelmingly support the "Protect Marriage" thing (protect it from what? Always sounds to me like they're banning divorce) we also managed to repeal Article XII of the city charter:

"Article XII. NO SPECIAL CLASS STATUS MAY BE GRANTED BASED UPON SEXUAL ORIENTATION, CONDUCT OR RELATIONSHIPS
The city of Cincinnati and its various Boards and Commissions may not enact, adopt, enforce or administer any ordinance, regulation, rule or policy which provides that homosexual, lesbian, or bisexual orientation, status, conduct or relationship constitutes, entitles, or otherwise provides a person with the basis to have any claim of minority or protected status, quota preference or other preferential treatment."

That's history, at least.

[ckd]

There's another aspect to consider. The only amendment that can pass this year in Massachusetts, even if it gets through the Constitutional Convention (House + Senate, but voting as one body) and the voters, is one that specifically enshrines civil unions. Anything other than that would require going back to square one, costing the anti folks even more time, and allowing even more people to see that Cambridge City Hall still stands, their marriages haven't been destroyed, etc.

This is good news and bad news.

Good news, because the absolute "best" that the anti forces can do is enact "separate but equal", which sucks, but sucks less than "no soup for you"...and would have been considered great progress before the Vermont civil unions came along. (And is still better than 8 of those 11 would allow--allow, mind you, not create!)

Bad news, because the anti forces may wind up going for their "half a loaf" and saying yes to civil unions to stop it from being "marriage", and it's still close.

Only one amendment to the Massachusetts Constitution has ever removed rights, but that one passed the voters in 2000; I can be hopeful, I can't let myself be complacent.

[desdenova.livejournal.com]

Re: half a loaf civil unions.

They did that in France, and one of the upshots is that far fewer heterosexuals get married, and get civil unions instead.

[qwrrty.livejournal.com]

Yeah, but, you know, well, France.

</sarcasm>

[qwrrty.livejournal.com]

I'm still encouraged. See this article from the Boston Glob, when DiMasi inherited the speaker's seat from Finneran: (http://www.boston.com/news/local/articles/2004/09/28/prospects_shift_as_dimasi_takes_over_for_finneran/)

A key legislative backer of the proposed amendment to ban same-sex marriage and establish civil unions yesterday all but declared defeat, saying that Finneran's exit from Beacon Hill was the final straw in an effort that already was in trouble because the state has legalized same-sex marriage with little of the uproar predicted by opponents.

"It is pretty much over," said Senate minority leader Brian P. Lees, a Springfield Republican who cosponsored the amendment with Finneran and Senate President Robert E. Travaglini. The House and Senate, sitting in a constitutional convention, must vote a second time in the next session before it could go to the voters on the 2006 ballot.

"In fact, there will be a question as to whether the issue will come up at all," Lees said. He said the issue has faded to the "back burners of Massachusetts politics," because few problems have surfaced with the implementation of the Supreme Judicial Court's decision to legalize gay marriage.

"With the fact the law has been in effect for a number of months and with the change in the House leadership, it would appear any change in the constitution to ban marriage is quickly fading," Lees said.

And that was before the election cycle, when they held more supporters in the statehouse. It's just not going to happen.

[qwrrty.livejournal.com]

Yeah, I've seen that reasoning before. I think he was essentially trying to have it both ways: oppose the amendment and mollify conservatives within their target audience.

The "public policy exemption" shows up a lot in the anti-marriage acts that have been passed in the last few years. The text of them often says things like "It being strongly against the public policy of this state..." which is clearly an attempt to invoke the exemption.

[wolfkitn.livejournal.com]

But I am confident that it is a desperate backlash, a cynical ploy by the GOP to get out the conservative vote, and little more than that.

one question on this, something i've been asking myself.

i believe that it is very possible that the overall conservative force was pushed into greater action as a result of the massachusetts SJC ruling and the nationwide fear/controversy that was sparked as a result. i have been asking myself: if the MA SJC had *not* passed gay marriage, would the conservative vote not have been so strong? and in this case, would kerry have had a better shot at winning the presidency (and would several senators, such as daschle had a better chance at winning their races), given the overall strength of the democrat numbers this year (even without the youth vote being as strong as we had hoped)?

i don't have the answers myself, and there are a lot of "ifs" there. but i wonder. and if there is that chance, i'm not sure where i would have stood. i *want* legal gay marriage. but i also *wanted* bush et al gone.

[lhn.livejournal.com]

I considered this plausible, since it does seem an effective way of getting a subset of Bush voters to the polls. But this e-mail to Andrew Sullivan (http://andrewsullivan.com/index.php?dish_inc=archives/2004_10_31_dish_archive.html#109968333683256538) indicates that states with initiatives on the ballot didn't go for Bush with a detectably greater margin than nearby similar states that didn't. If it mobilized them, you'd think that having the issue on the ballot would do so disproportionately. On the other hand, the margins were thin in some key states (notably Ohio), so a few thousand less-motivated Republican voters might have made a difference. Odds are it'll never be possible to know for sure.

[qwrrty.livejournal.com]

I think it's not just possible but certain. Look at some of the states that put anti-gay amendments on the ballot: Ohio, Michigan, Arkansas. The GOP needed to get the vote out in those states in order to assure them for Bush. Lots of people won't vote in a presidential election but will vote on issues that they feel are more immediately relevant. By putting a marriage amendment on the ballot, they were able to bring hundreds of thousands of evangelicals out to vote for it -- and, you know, as long as you're here, might as well vote for President anyway.

I'm firmly convinced that this represents the total interest that the Republican party has in the issue. Hence Bush's lukewarm support for the Federal Marriage Amendment and his wishy-washy statements about civil unions in the final week of the campaign. It's not a real issue for them -- it's kibble for conservative Christians.

In terms of turning out the corresponding Democratic vote, I don't think this hurt Kerry as much as: failing to articulate a strong, clear message, or letting the Bush campaign frame the campaign and put them on the defensive. We failed to recognize the real significance of the gay marriage issue and respond with appropriate tactics. Even with the overall results of the election I'm not sorry that the SJC ruled as it did. But it definitely made our task harder and we failed to rise to the challenge.

[vito-excalibur.livejournal.com]

Ah, this is good to hear. Thanks for a bit of a bright spot.

[ckd]

I agree that it's hopeful, and I also don't expect it to get through. I just don't want to get so certain that it won't, that I don't notice when the antis pull some stunt.

[qwrrty.livejournal.com]

You're right not to get complacent. Eternal vigilance, etc. etc. etc. And certainly there's lots of work still to do.

Michigan amendments

[queenmomcat.livejournal.com]

It is mildly comforting to me (in Michigan) that there seems to be such support for same-sex marriage in Massachusetts; at least there is such support *somewhere* in the country, for one thing, and for another it's a state to which we might well move. Someday.

Is anything of the sort ever going to happen in Michigan? Possibly, but after pigs fly and turkeys recite Shakespeare. (turkeys being the only bird dumber than chickens)

[nitouche.livejournal.com]

Saskatchewan just became the 7th Canadian province or territory to allow same sex marriages.

Amazing how the sky continues not to fall. Guess that'll have to wait until we get dragooned into joining stupid missile defence schemes.

[crouchback.livejournal.com]

States don't always recognize marriages performed in other states. Full faith and credit has always had exception for marriages. In part, this was so that states that would not allow interracial marriages did not have to recognize them, but it was also so that states which were uncomfortable with different ages of consent and people marrying close relatives didn't have to recognize those marriages.

Jerry Lee Lewis' marriage at the age of 23 to his third wife, who was his cousin and 13 at the time, was legal in the state he lived in, but not recognized much of anywhere else.

Nowadays, this isn't so much of an issue (most state make it hard to marry when you're under the age of 18), but I'd prefer same-sex marriages to be adopted on a state by state basis so that, in the event that, say, Mormon polygamy with pre-pubescent girls (which are generally marriages forced on the woman) becomes legal in Utah, we don't have the precedent that all the other states in the union have to recognize it.

[lhn.livejournal.com]

An interesting data point from a New York Times op-ed piece (http://www.nytimes.com/2004/11/06/opinion/06brooks.html?ex=1257483600&en=b4613533d9a1bdde&ei=5090&partner=rssuserland):

As Andrew Kohut of the Pew Research Center points out, there was no disproportionate surge in the evangelical vote this year. Evangelicals made up the same share of the electorate this year as they did in 2000. There was no increase in the percentage of voters who are pro-life. Sixteen percent of voters said abortions should be illegal in all circumstances. There was no increase in the percentage of voters who say they pray daily.

While as I said above, I found the idea that the anti-marriage initiatives mobilized the Republican base plausible, it's beginning to look to me as if the data to support it aren't there. (Does anyone have pointers to different results elsewhere?)