Tag Archives: marriage equality

Marital Blitz

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Really interesting piece on long-term same-sex marriage strategy.

Despite the fact that Americans keep voting for DOMAs, there is no anti-gay backlash…. [In 2005,] Illinois and Maine passed anti-discrimination laws. California’s legislature voted to gender-neutralize marriage — a historic first — despite Governor Arnold Schwarzenegger’s veto. Massachusetts’ legislators upheld marriage equality. Connecticut’s legislature passed a civil unions law. Cincinnati, Indianapolis, and Topeka — hardly liberal bastions — passed LGBT antidiscrimination laws; Virginia’s governor and Salt Lake City’s mayor extended health-insurance coverage to government employees’ same-sex domestic partners; and Alaska’s Supreme Court unanimously ruled that — despite the state’s DOMA — local governments must offer equal benefits to employees’ married spouses or same-sex partners. That’s why the religious right is so eager to run anti-marriage measures. “We were so close to winning completely on basic nondiscrimination that the discussion had to go to this completely new level in order to shock and create pause among the general voters,” said Thalia Zepatos, a National Lesbian & Gay Task Force field organizer in California….

The 2004 marriage initiatives and the subsequent Democratic gay-bashing had a salutary effect on LGBT organizations. “People had a strategic epiphany that [victory] wasn’t going to come in an avalanche,” said Evan Wolfson, founding director of the national group Freedom to Marry. “We would need a fifteen-year plan, not a two-year plan. That sunk in in a much more grounded way, with a sober awareness that it would be much longer and harder.”

The 2004 votes woke the community up to the fact that the LGBT legal superheroes (Lambda Legal Defense and Education Fund; Gay & Lesbian Advocates & Defenders; National Center for Lesbian Rights; and ACLU’s Gay Rights Project) could not defend their marriage gains. “[W]ith all the brilliant legal scholars that we have — and there are many — for whatever reason, there’s been a blind spot on the political side.”

The answer:

By the year 2020 (give or take five years), the goal is for 10 states to have full-marriage equality; 10 states to have civil unions or the equivalent; 10 states to have nondiscrimination laws and be repealing (or peeling back the effects of) their anti-gay marriage amendments; and the final 20 states to show progress.

You know the fortunate thing about state DOMAs? The people created them; with enough education and political effort, the people can also get rid of them. It will happen. Over time.

The Definition of Marriage

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Arguing against same-sex marriage based on the “definition of marriage” is problematic.

Arguments based on the “definition of marriage” could refer to two different things: a traditional definition or a legal definition. I’ll address both.

(1) The argument based on the traditional, dictionary definition of marriage.

This is not a useful or valid argument. Dictionaries were not created ex nihilo. Definitions arise from the way we, as a society, use particular words. It is backward to argue that our culture is constrained by the definition of a word. Human society decides how a word is defined; human society is allowed to change the meaning of a word. Granted, a majority of people in the U.S. right now want marriage to mean “a union between a man and a woman.” But that has nothing to do with any inherent meaning in the word itself. Definitions are changeable.

(2) The argument based on a legal definition set forth by a state.

Gay marriage really should be a federal issue, based on the Equal Protection clause of the 14th Amendment, which of course trumps all state laws and state constitutions. See the supremacy clause. The federal constitution is superior to all state constitutions.

If one believes there is a federal constitutional right to same-sex marriage, then a state ban on same-sex marriage is unconstitutional and illegal.

If one does not believe there is a federal constitutional right to same-sex marriage, then a state ban on same-sex marriage is not federally unconstitutional. But you must then ask: does the state ban same-sex marriage via a law, or via the state constitution?

(a) If the state bans same-sex marriage in its constitution, then that’s that. (If, of course, you believe there is no federal constitutional right to same-sex marriage.)

(b) If the state bans same-sex marriage only via a regular state law, then you must analyze the state constitution and see if the same-sex marriage ban violates the state’s constitution.

My point is that the issue of same-sex marriage is a constitutional debate. If you are against same-sex marriage, it’s because you don’t think there’s a federal or state constitutional right to same-sex marriage, not because you think the “definition of marriage” doesn’t allow it. The “definition of marriage” has no useful role to play in this debate. Arguments based on the “definition of marriage” only blur the issue, and it would be more helpful if such arguments weren’t made. The debate turns on the interpretation of federal and state constitutions.