24 February 2011

The Prolifieration of Gay Marriage

I've been pretty down about the grand state of politics today, despite the encouraging signs of life from the pro-democracy movements in the Middle East and the pro-union protests in Wisconsin.  Mainly it's because I learned today that Wisconsin has already been killed by the teabaggers, and they don't even know they're dead yet.  The shameless lying and hypocrisy out of Washington is worse than ever, to the point that it would be hilarious if anyone in the major news media ever actually called them on the bullshit.  But there was one story today that perked me up a bit about the future, so I'm going to run with that tonight.

Social conservatives are terrified of the creeping specter of gay marriage taking over the United States, as well they should be.  All indications are that they are on the losing side of history, just as they were with civil rights for women and blacks and other minority groups throughout American history.  Honestly, they should be used to it by now, especially because "being on the losing side of history" is pretty much the definition of conservatism.

But in the recognition that the roller coaster of life goes faster than their delicate fear centers can handle, social conservatives have endeavored to head the gays off at the pass over the past two decades.  To give the political architects of the right their maximum amount of credit, the lawyers among them have to have known that all of the same arguments that destroyed Jim Crow would eventually come to destroy discriminatory laws against homosexuals as well.  I mean, anyone who has read the Supreme Court decision in Loving v Virginia, 388 U.S. 1 (1967), could plainly see that substituting the issue of race for gender would eventually lead a court to find that laws restricting same-sex couples from marrying were plainly unconstitutional. 

The first major salvo in the fight did not secure the unconstitutionality flank, however.  The "Defense of Marriage Act" ("DOMA"), passed by the Republican controlled Congress and signed by President Clinton in 1996, sought to allow states to avoid recognizing same-sex marriages or civil unions performed in other state (which at the time was being done in no states), and it also defined marriage as "only a legal union between one man and one woman as husband and wife". 

For a variety of reasons, DOMA does not solve any of the constitutional issues that it sought to block.  The avoidance of recognition is designed as a direct challenge to the "Full Faith and Credit" clause of the Constitution, which among other things, is what requires a marriage performed in one state to be recognized by the government and courts of another.  I've always believed that it was beyond the power of the Congress to legislate this clause away, and that it would require an Amendment to accomplish the goal of DOMA.  Of course, just as it could not happen now, it was already too late in the mid-1990s to get the required votes in Congress or in the state legislatures to pass a federal marriage amendment.  It's also very contentious legally whether the federal government is within its authority to define marriage and whether attempting to do so violates the10th Amendment (which should always be taken with a pound of salt), and/or the "Due Process" and "Equal Protection" clauses of the 14th Amendment. 

Earlier today, the White House and Department of Justice announced that they would no longer be defending DOMA's 3rd clause in future lawsuits because it was their legal opinion that the clause was unconstitutional.  For the time being, they will continue to defend suits challenging the 2nd clause, but I believe it's merely a matter of time before that too will fall.

While a few states had enacted domestic partnership laws granting some legal protections of marriage to non-married couples (gay or straight), the fireworks really began in 2004 when the Supreme Court of Massachusetts ruled that the hundred year-old state law banning same-sex marriage in Massachusetts was unconstitutional under the Massachusetts Constitution.  This is what the social conservatives had feared, and what they had been waiting for. 

In a well-coordinated attack, measures amending the various constitutions of many states to define marriage as "one man and woman" were placed on the ballots in time for the 2004 general election.  All passed with wide margins, and some credit George W. Bush's reelection to the huge turnout of social conservatives in Ohio, the electoral votes of which were the difference in the election.  In fact, in all of the ballot measures put up for vote, only the 2006 measure in Arizona has failed to pass (and a barely watered down version did pass there in 2008).

With today's DOMA decision from the DOJ, I saw a question asked on a blog about how many people have actually voted to ban gay marriage in their states.  The implication was that since many of the states banning gay marriage are small in population, that they may actually be outnumbered by those enjoying same-sex marriage rights.   So I set to work crunching the numbers.  Unfortunately, the comment section had become such a flame war by the time I got back, that I couldn't even find the original comment that I wanted to respond to, not that anyone would see my response anyway.  Actually, it wasn't a flame war, because a flame war involves armies on both sides.  This was just a single troll that completely fucked up the comment section of a blog posting.

Anyway, I found that there are several ways to look at the data.  Let's begin with a map:

As you can see, it's a rather complicated patchwork of laws these days.  I also needed some census data to estimate populations, and I used the July 2009 estimates based on the 2000 census, since the numbers from the 2010 census don't appear to be available yet in neat Excel format.

Now, if you want to look at the numbers in a simplistic way, sort of a red state/blue state kind of way, here are the numbers broken down into a "same-sex marriage is banned" vs "same-sex marriage is legal" spreadsheet.

Here we see that 82.84% of Americans live in a state where there is either a Constitutional Amendment banning same-sex marriage, or a statute doing so.  Only 16.82% live in a state where same-sex marriage is legal, or where a civil unions law is in effect that grants all of the legal rights of marriage.  Clearly the conservatives have won and set up their firewall against teh gayz, right?

Well, let's look at those numbers with a bit more subtlety, and see what is really happening on the ground (my colors do not match the map above):

When you break it down into all of the categories shown on the map, the picture becomes much more nuanced.  Now, there are only 59.83% of Americans who live in a jurisdiction where same-sex unions are completely non-existent, and 37.34% who live in a jurisdiction where either same-sex marriage is recognized, or civil unions with full legal rights of marriage are recognized.  Not quite so bleak.

There are several other subtleties that should be addressed as well.  I counted Wisconsin in the most restrictive group, even though there are domestic partnership laws on the books there.  The question of whether those domestic partnership rights would be trumped by the Constitutional amendment has not been decided by the courts there.

Then there are the states that are actively in motion and could change at any time.  One is Maine, which enacted same sex marriage by legislation in 2010, only to have the law struck down narrowly by a voter initiative later in the year.  Maryland and New York are strong candidates to have same-sex marriage laws on the books within the current legislative session, as is Hawai'i. 

Perhaps most critically, California is now the center of the judicial universe when it comes to gay marriage.  The CA Supreme Court had ruled that the state's marriage ban statute was unconstitutional in 2008, only to have a full Constitutional amendment banning gay marriage pass by the slimmest of margins that fall.  On a night of celebrations for liberals, this was by far the toughest blow.  However, the ballot measure's constitutionality was immediately challenged, and has been found to be unconstitutional by a US District Judge under California law.  That verdict is currently under appeal to the 9th Circuit, which has stayed the ruling pending its decision, which may take months, since they have certified a standing question back to the CA Supreme Court.  If the standing issue goes one way, the case is over and gay marriage is legal in California.  If it goes the other way, the 9th Circuit could potentially make a ruling that could affect nine states.  If the 9th Circuit ends up ruling on this issue, it's a virtual guarantee to be in front of the Supreme Court of the United States within a couple of years.

I believe that the victory of Prop 8 in California in 2008 was the high water mark for the anti-gay marriage people.  Anything that happened in 2010 was more the result of the generally low turnout of the left across the country (such as in Maine).  All the momentum in the future is against the conservatives, and their walls will eventually crumble, because they have never managed to get their federal marriage amendment, and they never will.  As strong as these state bulwarks are, they will not stand forever.  On top of that, younger people are much more open to gay marriage than older people, and to be blunt, older people will die sooner.  You can't fight those demographic changes (note to conservatives: learn to speak Spanish).

This has been a bit dry as a posting, I know.  Lots of history and legal stuff and figures and graphs.  Not much ranting or even opinion from me.  So I'll just finish with a challenge that I have made to people for several years.

As my views on gay marriage evolved from the adolescent "ick" factor, through the post-collegiate libertarian "the government should just get out of the marriage business" stage, to "if everyone has equal legal rights, who cares what it's called", to the ultimate "civil unions are like separate drinking fountains for second class citizens", I have solidified my arguments in favor of gay marriage and accepting nothing less as enough. 

In my experience, there are some political issues that the more your think about the two sides, the more you come to a moderated understanding of the competing merits of the arguments.  This is NOT one of those issues.  I find that the more people think about it, the more they tend to shift towards the side of gay marriage rights, and that is because this is a rare case where one side is completely right, and the other is completely wrong.

So, here's the challenge.  I have asked friends and political debate opponents to give me one good argument against gay marriage that is not based in religion, emotion, or some other sentimentality for a past that probably never was in the first place.  In six or seven years, I've never had anyone come up with one that could not be completely dismantled, not merely countered or outweighed, but utterly laid to dust. 

That is my challenge to you.  Think about it.  Be honest with yourself.  Examine your feelings and your arguments.  And then do the same for everything else you think or believe.

Now how about some music celebrating gay love!

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