Annual Update 2009 - Relationships

One Iowan celebrates marriage decision.
(Photo: Alan Light, Creative Commons)

Within a week, the Iowa Supreme Court decided that it is unconstitutional not to let same-sex couples marry, and the Vermont legislature voted to let same-sex couples marry. Together, these two events are a much needed shot in the arm for marriage.

Iowa is the first win in a flat state without an ocean view. And the decision was unanimous. Vermont is the first time a state legislature (as opposed to a court) has opened marriage, and it did it by a stunning veto override.

Iowa and Vermont don’t erase the damage from losing Proposition 8 in California. They don’t have either the cultural or economic influence that the Golden State has. Still, there’s nothing like winning big to put the wind back in your sails.

Marriage supporter outside the California Supreme Court during arguments for Strauss v. Horton, our challenge to Proposition 8.

Where the marriage movement heads now, though, is complicated. Iowa and Vermont will not be the start of same-sex marriage all over the country because that simply isn’t possible.

Winning marriage in four states has been politically expensive; in getting it, we also got amendments to state constitutions that block marriage in 29 states. There are just two ways to get marriage now in those 29 states. First, you could go to the voters to get the amendments repealed. That’s a very costly process, and one not likely to work in many of the states with amendments (like Alabama and Mississippi).

You could instead go to the federal courts, and ask them to rule that the state constitutional amendments violate the federal constitution. But that’s not a very good bet. A few years ago, the ACLU and Lambda Legal sued to set aside the most egregious amendment, Nebraska’s (it bans every form of relationship recognition for same-sex couples, and none for heterosexuals). We lost, in a moderate federal appeals court.

Moreover, any federal case in which we win will surely wind up in the Supreme Court. Winning there is a long shot anytime soon. As I have explained before, losing could prevent us from winning state cases and might even hurt us in cases about parenting, schools and jobs.

That means that the landscape for change right now is 21 states, not 50. Six of those of course already have marriage or soon will. Six more are states like Pennsylvania and Indiana, which don’t even have civil rights laws banning sexual orientation discrimination. They’re unlikely to move to marriage anytime soon. In a couple, like Wyoming and North Carolina, any progress on marriage seems a long way off. So the immediate playing field is more like nine states.

Some of those nine states are ready for marriage, or could be soon. We should have several additional marriage states over the next few years. At some point though, if we are going to get marriage in America, we’re going to need to do something about those state constitutional amendments. There are three things we can do.

First, in a couple of states like California and Oregon, we probably can get the voters to repeal constitutional amendments in a few years. But we have to be careful, particularly in California. A second loss there would be very damaging to the movement, both in terms of the resources it would consume and the extent to which it would discourage our community and our allies. We should go back to the ballot when we can win.

Second, in some of the other amendment states we can lay the groundwork for future repeal by getting either civil unions or domestic partnerships now. But in most of the amendment states, even that isn’t possible. Of the 29 constitutional amendments, 19 also ban anything similar to marriage; some ban any recognition. Outright repeal isn’t likely in this third group of states in the near term. In some, we could probably get partial repeal, allowing civil unions. But doing a repeal that doesn’t allow marriage may be deeply unsatisfactory to many in our own community.

It would be nice if there were an easy way to get rid of these amendments, or if we could get marriage despite them. But there isn’t. Our work is going to have to include some repeals, some fights for domestic partnership and civil union instead of marriage, and likely some fights for partial repeal.

Iowa and Vermont make this prospect a little less daunting than it was just a few months ago. Most Americans believe that marriage for same-sex couples will come some day, and deep in their hearts know that it really is a simple matter of fairness and equal treatment. Because both Vermont and Iowa are so politically eloquent— such strong wins—they give us the opportunity to tap into those feelings.

In the states that are ready for marriage, we should take the opportunity these wins have given us to press ahead and press hard. In the other states, this is the moment to lay the groundwork. The hardest thing about laying that groundwork is the truth about the best way to do it. The best way to change people’s minds is to talk to them about gay people. The best way is to talk not about abstract issues, but about the ordinary lives of gay people, and the way being gay makes life more challenging.

That’s frustrating because it isn’t easy to have conversations like that. But the Iowa and Vermont give us all a pretty fabulous conversational hook. And if the bad news is that no outside force is going to do this for us quickly, the good news is that, to a great extent, we have the power to make it happen ourselves.