2012 Election | Gay Marriage | News

Looking At The Future Of Gay Marriage

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With voters in Minnesota, Maine, Washington state and Maryland all weighing in on marriage equality this November, Paul Waldman at The American Prospect offers a great, concise history of the same-sex marriage debate here in the States and looks forward to a not-so-distant future in which enshrined discrimination may be a thing of the past:

…Just as with laws on interracial marriage, legalization of same-sex marriage is likely to spread toward the center and south of the country, though how fast is hard to say. In 2009, Nate Silver attempted to project how long it would take for each state to be ready to vote to allow same-sex marriage; the final two in the projection were Alabama in 2023 and Mississippi in 2024 (consider that Alabama didn't officially repeal its law banning interracial marriage until a referendum in 2000, and 40 percent of Alabamians voted to keep it). As Silver acknowledges, this kind of projection could well be wrong, but it does give us an idea of the path we're on.

Unless, that is, the Supreme Court intervenes. Earlier this year, an appeals court panel declared California's Proposition 8 unconstitutional, paving the way for the case to be taken up by the Supreme Court. The Supreme Court could also take up a lawsuit against the Defense of Marriage Act, which Congress passed in 1996 and Bill Clinton signed (provisions of DOMA have been declared unconstitutional by two federal judges).

In either case, the Court could affirm discrimination of gay couples, outlaw it, or take some middle course that puts off a definitive decision. That all may hinge on whether Anthony Kennedy has come around to believing that marriage is an inalienable right that all Americans should enjoy. I wouldn't bet the farm on that—the Court seldom gets too far ahead of public opinion. But the direction of that opinion is unmistakable, as all but the most deluded conservatives activist will tell you.

But they'll still try to tell you.

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Comments

  1. I need more than a little bit of light, if you can’t fully lit me, you just don’t come to mess with me.

    Posted by: asian oil paintings | Aug 23, 2012 11:10:54 PM


  2. In my humble opinion as a mathemetician and statistician, this graph merely reflects the divided country we've become, and the fossilization of both sides to an immovable position. About half the country in favor of equal rights for the LGBT community, and abou half against it. Of course current events, demographic changes as the older generations die and younger generations become voters, could change the trajectory of this debate. I'm just not sold on the idea that in just a short 15 years, the entire United States will be embracing a platform of inclusion and full equality for all its LGBT citizens. Call me a pessimist or skeptic if you wish, but even in liberal-leaning California (my home state), I doubt we would win at the ballot box if a repeal of Prop H8 were put up for a vote. Very few people are changing their minds or hearts on this issue, and fewer and fewer Californians even think about this issue since the constitutional ban was enacted. We have to do a lot more work, be more visible, and continue to argue our case if we expect to break this tie in our favor if we choose to follow the state-by-state approach. Just my opinion. . .feel free to rip it apart.

    Posted by: Keith | Aug 23, 2012 11:45:58 PM


  3. The DOMA cases, which are likely to be heard, do not present the issue of whether states can refuse to issue marriage licenses to same-sex couples. As for the Prop 8 case, (a) it is considerably less likely that the Supreme Court will agree to hear the appeal than that it will agree to hear a DOMA appeal or appeals and (b) if the Supreme Court does agree to hear the Prop 8 case and rules in our favor, it is most likely that it would do so with a narrow ruling, such as by upholding the Ninth Circuit's narrow ruling, which would mean that Alabama and Mississippi and similar states would not need to start issuing marriage licenses (even if it would make the writing on the wall all that much clearer).

    Posted by: Patric | Aug 23, 2012 11:57:21 PM


  4. Keith. Now answer honestly :) Back in 1999 did you think we would be at 50-48 in favor of marriage equality in a mere 13 years' time?

    Saying the country is now "solidified" at 50-50 when we only reached 50% in the first poll about 2 years ago seems a bit hard to believe.

    Looking at the chart, someone could have easily said back in 2008 that we were "solidified" in the low 40%. And how fast did that change?

    Posted by: Matt N | Aug 24, 2012 1:13:47 AM


  5. I think there's no question that support for same sex marriage will continue to grow in this country, but the biggest growth will come from areas that are already gay friendly, ie the northeast and west coast. Most of those states already have gay marriage, and the percent of the population against it in those areas will continue to shrink. I can see us picking up some mountain states and possibly some midwestern states in the next ten years as well. But no matter how optimistic I try to be, I just don't see Alabama and Mississippi voting in gay marriage in ten years (or anywhere else in the deep south for that matter).

    Posted by: Brian | Aug 24, 2012 1:29:44 AM


  6. The single most important thing is getting rid of DOMA. We don't have equality even in states that have legal same sex marriage because DOMA prevents federal recognition. And this will have to happen through the Supreme Court because it will be decades before we have the votes in Congress. I'm optimistic we will get a favorable court decision on the DOMA cases and expect a narrow decision to repeal Prop 8. After that it will be a state by state battle. The only good news I see for people in places like Alabama and Mississippi is that once DOMA is gone there will be other places in the USA to move to where there is full equality. It's a lot easier than immigrating to Canada.

    Posted by: Ken | Aug 24, 2012 1:58:56 AM


  7. The only thing I see when I look at this graphic is that every election year, the trend reverses, thanks to the billions pumped by the various religious anti-gay organizations, and it doesn't look like 2012 will be any different.

    Posted by: G.I. Joe | Aug 24, 2012 5:49:37 AM


  8. I find it abhorhant that in the "supposed" land of Liberty & Justice for All.....this has to take years???? Its Pathetic, and Blatant hypocracy of this nation.....Liberty & Justice for All my ass, this country Blows....its a LIE,not all..but alot of America(ns) is a Greedy Hateful, discriminatory country

    Posted by: Disgusted American | Aug 24, 2012 7:47:55 AM


  9. canadian guy here with a question: does anyone know how it's possible that alabama still had a law banning interracial marriage in 2000, when the US supreme court deemed it unconsitutional in 1967? wouldn't that law automatically be considered void?

    Posted by: stephen | Aug 24, 2012 7:59:17 AM


  10. Hi Stephen - these laws are kind of symbolic for the Southern bigots. It's like Kansas - they still have anti-sodomy laws there despite the 2003 Lawrence v. Texas ruling. They can't enforce them.

    I'm sure anti-gay marriage laws will stay on the books in states for decades, but I think the amount of time the states half left to actually enforce them may be down into the single digits of years.

    Posted by: kpo5 | Aug 24, 2012 8:10:17 AM


  11. thanks for the clarification, KPOS!

    Posted by: stephen | Aug 24, 2012 8:12:49 AM


  12. ahh stephen just be glad you don't live here in Hateville, Greedyville, bigotsway, or anywhere near Discriminatory Drive.....aint America Grand???

    Posted by: Disgusted American | Aug 24, 2012 8:57:39 AM


  13. Stephen; you're correct, an argument about law between the Fed and the States, is like rock-crushes-scissors.

    The law may satisfy their bigotry, but it goes nowhere.

    Posted by: Pete N SFO | Aug 24, 2012 9:28:30 AM


  14. Like I said people, the more exposure gay people have, the better. And yes, we do need to engage the opposition, because we can't all wait for them to die out. Life doesn't work like that if you want things to change quickly in the country.

    Posted by: Anthony | Aug 24, 2012 10:12:56 AM


  15. Polls have a lot of inherent problems, so I'm inclined to agree with Keith up above. First, some people give the answer they think is the most socially approved. The shift in the numbers above might not actually be a shift in heart or mind, but a recognition by the respondent that a certain answer is less favorable now. Similarly, some states sampled would have had legal same sex marriage. Over-sample those states, and I would imagine you're more likely to get a "yes." Second, I'd like to know more about the non-respondents, but we can't. Are some just disinterested in answering that kind of question because they're against gay rights? Third, we know nothing about the opinion toward civil unions. Fourth, and most importantly, these polls have shown little predictive power for actual voting behavior. For all those reasons and thinking about the results of referendums and the current political climate, I tend to think Keith's opinion is fairly pragmatic.

    Posted by: Stefan | Aug 24, 2012 10:20:31 AM


  16. @Stephen

    Same thing happened in Alberta, Canada. Its human rights law was not amended to add "sexual orientation" until 2009, 11 years after the Supreme Court of Canada had decided in the Vriend case in 1998 that it must be read into the law due to section 15 of the Canadian Charter of Rights and Freedoms.

    Laws can only be amended by legislatures, not courts. Alberta's law was not amended because it was a hot potato for right wing politicians, who even considered overruling the court decision via the Charter's "notwithstanding" clause.

    In the meantime, starting in 1998, the Human Rights Commission applied the law as if the words "sexual orientation" were present.

    http://www.albertahumanrights.ab.ca/publications/bulletins_sheets_booklets/sheets/history_and_info/amendments_human_rights_legislation.asp

    Posted by: FYoung | Aug 24, 2012 11:14:39 AM


  17. @Patric

    I agree with you, and I'll boldly predict that California will get marriage equality in a month or so, no later than early October, when I predict the US Supreme Court will decline to hear appeals on Proposition 8, and will instead agree to hear appeals on DOMA.

    That will be big news and will influence the referenda in November.

    The SCOTUS decision in Sept/Oct will bring the US population with marriage equality to one fifth. Then, in November, the referenda in Maine, Maryland and Washington will bring it to one fourth. This will create a good momentum in 2013 and 2014 for the various states that do not have a constitutional amendment banning marriage equality.

    And, while I'm at it, I also predict that federal DOMA section 3 will be struck down by SCOTUS in June 2013.

    Posted by: FYoung | Aug 24, 2012 11:39:26 AM


  18. "They can't enforce them."

    But they still use the threat of charging people with the outdated law to extort confessions and pleading to lesser charges. Enforceable or not, the charges go on your record.... and in the papers in a lot of the country.

    Posted by: BobN | Aug 24, 2012 12:31:42 PM


  19. @BOBN

    Actually, once a law has been voided by the Supreme Court, it's really most sincerely dead.

    As an example from civil law, the California Supreme Court voided racially restrictive covenants in 1948. When I bought a house in 1972, it was still in my deed -- my Japanese friend and I had a good chuckle over it.

    I don't remember the precise year, but it was in the current century that the California Legislature mandated the removal of this language from all deeds.

    Posted by: Rich | Aug 24, 2012 4:12:27 PM


  20. Although marriage is technically a matter of state law, most of the legal consequences flow from Federal action. Should DOMA be nullified, it strikes me as highly unlikely that the IRS would refuse to recognize the marriage of an Alabama couple that had tied the knot in New York.

    IIRC, that hypothetical conforms fairly closely to the facts in the Loving case.

    As a Californian, I will have won even if SCOTUS upholds Prop 8 and overturns DOMA, since California recognizes out-of-state marriages as domestic partnerships and those are legally equivalent under state law and the interpretation of Prop 8 that the California Supreme Court made.

    Posted by: Rich | Aug 24, 2012 4:27:19 PM


  21. Interesting perspective on the post and comments after the ballot victory four months ago. It is now even more plausible that in 15 years, the world of opinion will be unrecognizable to us. One generation change and it will no longer be viewed as unusual, except in the most religiously fervent of places, for a gay couple to get married. Of course, popular opinion does not guarantee a change in the law. A lot of European countries without marriage equality have overwhelming majorities for it. Fortunately, many conservative states have the ballot initiative to make constitutional amendments. About a dozen conservative states do not, which is likely the point where the country will crystallize.

    Posted by: Matt K | Feb 2, 2013 3:33:39 AM


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