November 8, 2012
By Jacob Combs
Now that we’re two days out from our incredible, historic wins for marriage equality and the LGBT community on Tuesday night, equality activists are already starting to ask what’s next for the movement. It’s worth taking some time to savor this moment of victory, since it really does mark (as my dad put it aptly in a conversation I had with him last night) a sea change for marriage equality. But despite our incredible progress, it’s worth remembering that marriage equality is still only a reality in less than 1/5 of American states. The fight continues, and we should feel energized and excited about looking ahead to our next wins.
Back in June, as part of my multi-post series arguing why the Supreme Court should hear the DOMA cases before the Prop 8 case, I concluded with this look at the future of marriage equality advocacy:
Marriage equality is already the law or on its way in the states which are politically most disposed to equal marriage rights (that is, the bluest states, with the exception being Iowa). The top tier of blue states that do not currently have marriage equality, in my mind, includes California, Maine, Maryland, Washington, Rhode Island, New Jersey, Hawaii and Oregon. Of these states, Maine, Maryland and Washington, of course, could have marriage by the end of the year through ballot measures, while California could see marriage return by Supreme Court intervention (or lack thereof) by the end of 2013.
New Jersey’s legislature passed marriage equality earlier this year, and now has until 2014 to overcome Gov. Chris Christie’s veto; a marriage equality case is also working its way through the state’s courts. Rhode Island is dragging its feet, but this November’s elections could change the makeup of the overwhelmingly Democratic legislature and make marriage equality a real possibility, since public opinion in the state is strongly supportive of equal rights. Litigation seeking marriage equality has been filed in Hawaii, and advocates in Oregon are considering a ballot initiative in the next few years. In short, these states are all moving towards marriage equality in one way or another, and within the next 5-10 years, it seems likely they will provide equal marriage rights to all couples.
We can now check Maine, Maryland and, I believe, Washington off that list. California, of course, is a special situation, and I remain confident that it is unlikely the court will take up the case for review–in fact, I think it’s possibly even less likely it will do so now that three states have affirmed marriage equality at the ballot box. The Court could well see this as a sign that public opinion is shifting and that it does not need to wade into the issue now, although it will almost certainly have to rule on marriage equality sometime in the next few decades to bring equal rights to the reddest states. I predict that we’ll have marriage equality in California by the end of 2013, either through a remand of the Prop 8 case to the Ninth Circuit in light of a Supreme Court decision on DOMA, or because the Court decided not to hear the Prop 8 case–and we could very well have equality by the end of this year, as well.
That leaves us Rhode Island, New Jersey, Oregon and Hawaii. In Rhode Island, pro-equality lawmakers picked up seats in both the General Assembly and the state Senate. Openly gay House Speaker Gordon Fox says he will call a vote on marriage equality when the legislature reconvenes in January, telling the AP, ”This election shows there’s been a real change on this issue. I’m hopeful. There’s definitely a trend here. There’s a wave and we should ride it.” Senate President Teresa Paiva Weed, who opposes equal marriage rights, remains an obstacle, but advocates in the state say they will focus on winning marriage equality legislatively and not through a popular vote. It will be interesting to see if Gov. Lincoln Chaffee, an independent who supports marriage rights for same-sex couples, takes as proactive and engaged a role in the effort as governors have in other states.
Speaking of governors, New Jersey Gov. Chris Christie remains the big obstacle to marriage equality in that state. Although the state legislature passed a marriage bill earlier this year, Christie vetoed it in February, calling instead for a referendum on the issue. Lawmakers have until the end of the legislative session in January 2014 to override the veto with a two-thirds margin in each house. In February, Senate President Stephen Sweeney, a Democrat, said in a statement that there was “not a chance in hell” he would bring up a bill to put the law on the ballot.
New Jersey Democrats remain opposed to a referendum on marriage equality, even as many observers believe that such a measure could pass in the Democratic-leaning state. Senate Majority Leader Loretta Weinberg told the New Jersey Journal, ”I still don’t believe we should put civil rights onto a referendum.” The pursuit of equal marriage rights in the Garden State will continue on two fronts: in the legislature, as Democrats seek a veto override, and in the courts, where a case is currently pending before the state Supreme Court. Steven Goldstein, chairman of the equality group Garden State Equality, thinks there’s a chance that Christie could be persuaded to change his mind: ”The governor, who frankly is the best political strategist I’ve ever met in my life — and I say that with admiration — is a master at straddling the center-right. I hope the election of 2012 has taught him that his two goals — keeping New Jersey happy and keeping his presidential prospects on fire — are no longer mutually exclusive.”
Marriage equality advocates in Oregon, which has a history of progressive politics, specifically chose not to opt for a ballot initiative on the issue this year. But Jeana Frazzini, executive director of Basic Rights Oregon, told The Oregonian that this year’s wins in Washington, Maryland and Maine set the stage for a win in Oregon in 2014, saying, “I am more confident than ever that we will be the first state to overturn a constitutional ban on marriage.” House Democratic Leader Tina Kotek, who will become the House Speaker next session after Democrats regained the Legislature on Tuesday, says that a decision on marriage equality should be made by the people. ”It will not be a legislative referral,” she said. “At the end of the day, this is a community decision.”
In Hawaii, there is currently a marriage equality case making its way through the federal courts. A judge in Hawaii upheld the state’s marriage laws, which do not allow same-sex couples to marry, earlier this year. That decision is on appeal with the Ninth Circuit. A state marriage equality lawsuit is currently underway in Illinois.
Although it’s slightly off topic, I also wanted to point out that this Tuesday included another little piece of history, as New Hampshire elected its first openly transgender lawmaker in the state’s history. Stacie Laughton, a Democrat, plans to pursue legislation that would benefit New Hampshire’s transgender individuals, facilitating gender changes on state IDs and allowing trans individuals to use the bathrooms of their choice. Too often, we leave the T out of the discussion of LGBT rights, and I do think that’s a big thing that our community must keep in mind as we move forward and continue to pursue full equality for everyone, not just gays and lesbians.
And, last but not least, I wanted to share this wonderful video from Minnesota of the moment when the campaign to defeat that state’s constitutional ban on marriage equality found out the AP had called the race in their favor. It’s a moment of sheer joy and passion, and it’s one to relish in. On to the next victory!
Update: Thanks to jpmassar for pointing out my omission of Delaware, which was completely unintentional. I wrote about marriage equality progress in Delaware in September, where a bill may be introduced to the legislature in 2013. Gov. Jack Markell, a Democrat who supports equal marriage rights, easily won reelection on Tuesday.