Historic Vote by Four States for Marriage Equality

“Can’t you feel a brand new day?”

Based on the available results, I am thrilled to note that on November 6, 2012, the voters of four states reversed a dramatic and discouraging pattern of popular votes against same-sex couples’ freedom to marry.   The people of Maryland and (it appears as of this writing) Washington voted “yes” on referenda approving measures their state legislatures had passed to open civil marriage to same-sex couples.  The people of Maine approved an initiative to remove the mixed-sex requirement from their marriage law, just three years after a referendum there defeated a bill the Maine legislature had passed to do the same.  And in Minnesota, the voters defeated a proposed constitutional amendment that would have entrenched the state’s present statutory exclusion of same-sex couples from marriage.  This is an especially welcome development, as it interrupts an unbroken string of thirty-two marriage “definition” state constitutional ballot measures.  (Although Arizona voters rejected a discriminatory initiative in 2006, that measure would have gone further and amended the state constitution to block any legal status for same-sex couples “similar to marriage.”  A narrower ‘marriage only’ amendment was approved by a majority of Arizonans voting on it two years later.)

Coupled with the first-ever election of an openly LGBT person to the U.S. Senate (Tammy Baldwin, a lesbian and member of the U.S. House of Representatives from Wisconsin), these four states’ voting for marriage equality may well mark the beginning of a sea change in the country’s views of LGBT people and issues affecting us.  It certainly reinforces the view that nationwide marriage equality is, with the continued hard work of equality supporters of all sexual orientations, an eventuality and not a mere pipe dream.  I fervently hope that a majority of the Justices of the Supreme Court of the United States see that and welcome this shift toward fuller justice, and that they rule accordingly in whatever they do with the cases challenging the discriminatory federal law restriction on marriage in Section 3 of the so-called Defense of Marriage Act (DOMA), one or more of which the Court is certain to take up, and in the Perry litigation thus far holding unconstitutional California’s Proposition 8, which amended our state constitution to strip same-sex couples of the right to marry, which the Court could well decide not to review in light of the careful, narrow opinion written by Ninth Circuit Court of Appeals judge Stephen Reinhardt.  We may know shortly after November 20 whether the Supreme Court will hear any of those cases.  Today, though, feels like a brand new day.

Everybody look around

'Cause there's a reason to rejoice you see

Everybody come out

And let's commence to singing joyfully

Everybody look up

And feel the hope that we've been waiting for

Everybody's glad

Because our silent fear and dread is gone

Freedom, you see, has got our hearts singing so joyfully

Just look about

You owe it to yourself to check it out

Can't you feel a brand new day?

[“Everybody Rejoice (Brand New Day),” by Charlie Small, from the soundtrack of The Wiz]


[date typo corrected 20121107 8:23 p.m. PST]

Marriage Equality Defeated (for now) in Maine

Andrew Sullivan Misreads the Situation in the Pine Tree State

A majority of voters in Maine yesterday chose to repeal the state’s law allowing same-sex couples to get married before it even went into effect, the Bangor Daily News reports here. Following last year’s debacle of Proposition 8 stripping same-sex couples of the right to marry, Maine becomes the second state to have (almost) had equal state-controlled rights for lesbigay persons only to lose them to the expression of fears or prejudice at the ballot box.

Thus Andrew Sullivan is wrong to write in his blog that “in Maine, … gays do have equality but may now merely be denied the name.” Unless he is writing about the abstract moral equality that underlies claims to human rights, or the abstract political equality of persons and citizens ostensibly protected by the U.S. Constitution, Sullivan is simply wrong to assert that lesbigay people in Maine “have equality,” for several reasons.

First, same-sex couples in Maine are now relegated to state registered domestic partnerships but, unlike California’s domestic partnerships, these are decidely weaker than civil marriages. The Maine Department of Health and Human Services, has even cautioned in bold print that "[i]t is important to remember that a registered domestic partnership is NOT the same as a marriage and does not entitle partners to rights other than those for which the registry was intended. This registry is intended to allow individuals to have rights of inheritance as well as the rights to make decisions regarding disposal of their deceased partners remains."

Second, even if Maine attached all the same state-controlled rights, benefits, and obligations of civil marriage to domestic partnerships, the voters’ decision to deny marriage to same-sex couples imposes a legal burden on them that different-sex couples don’t face. When a married couple goes to another state, there is a well established body of interstate marriage recognition law that they can appeal to. Granted, the “Defense of Marriage Acts” (DOMAs) adopted in many states make it harder to invoke this body of law successfully. But same-sex couples in Maine now will face the additional hurdle of having also to argue that their non-marital status should count as a marriage for purposes of this body of law. Likewise, if Congress were to repeal the federal DOMA, which Barack Obama has said he supports, then married same-sex couples would automatically be governed by the estimated 1,138 federal laws that make marital status relevant; same-sex couples from Maine, however, would have additionally to try to argue that their domestic partnership, intentionally distinguished from marriage, should nonetheless be treated as a marriage for federal law purposes.

And third, Andrew Sullivan here seems to be making the same volte-face as the California Supreme Court did this past spring when it upheld Proposition 8 , which stripped same-sex couples in California of the right to marry. When Chief Justice Ronald George wrote for the Court in 2008 in striking down the marriage exclusion as violating the California Constitutionl, the Chief Justice penned eloquent passages about the importance of being included in the institution of “civil marriage” as such for the equality and dignity of lesbigay people. Yet when he wrote for the same court a year later and upheld California’s pernicious ballot measure, his reasoning seemed to many to hold that this was a sufficiently non-fundamental change to the state constitution – even though it targeted a minority group defined by a suspect classification for deprivation of a fundamental right, the right to marry – because the “sole” effect of Prop 8 was to deny same-sex couples the “designation” of “marriage.”

Andrew Sullivan seemed to appreciate the stakes when the California Supreme Court first invalidated the discriminatory marriage exclusion. In his blog mere days after the decision, he wrote:

“Equality is equality is equality. And a marriage license is a marriage license is a marriage license. Calling it something else for a few is a way of saying it is something else for the few, and something lesser for the few. There is no way around this, and in many ways, I am grateful that the California court put it so bluntly.”

Nothing has changed about the nature of equality, so it is not apparent to me why Sullivan seems to have changed his mind about equality in Maine.

Marriage Equality In Maine

"There's no stopping us now/Our love is here to stay"

The Associated Press has reported that Maine has just become the fifth state to allow same-sex couples to marry. Like Vermont, they did so through a vote of their state legislature. The Northeast is once again proving itself a leader on liberty and equality, and it's easy to understand why so many people feel a sense of momentum behind the drive for marriage equality.

Maine joins move towards marriage equality

"I must be dreaming"

The Associated Press has reported that the Maine legislature has voted in favor of a bill to allow same-sex couples to marry. If they vote "yes" a second time and Maine's governor, who has not decided whether to sign it, approves it, Maine would become the first state allowing same-sex couples to marry and the fourth in New England!