Decision 2012: Obama, Baldwin, Maloney, Marriage Equality, and What It All Means

We talk a lot about the Defense of Marriage Act cases and the federal challenge to California's Prop 8. On behalf of the freedom to marry, we are waging a federal fight in the courts. But, as we argue in the DOMA cases, marriage is a state issue, so winning the right to marry will only come if we organize on the state level, galvanize voters, elect our allies, and spend money where it can do the most good.

Marriage freedom was possible in Maryland and Washington because Democrats overwhelmingly controlled the legislative branches and held the governors offices. Chris Christie's presence in New Jersey stopped us from having another state on our side and although we owe New York Senate Republicans thanks for voting their consciences and not their party, we only won the freedom to marry in New York because of a Democratic Assembly, overwhelming Democratic support in the Senate, and a strong Democratic governor in Andrew Cuomo.

MNThat is why the state legislative victories in Minnesota, Delaware, Illinois, Colorado, and Hawaii are my sleeper picks in a night full of bright stars and amazing victories. In Minnesota, where Republicans took the legislature in the Tea Party eruption of 2010, Democrats regained control yesterday and will control all levers of political power in the Twin Cities for the first time in 22 years. In Delaware, Democrats control every state-wide office and held the legislature. The First State's governor, Jack Markell, is a vocal marriage freedom supporter and a really nice guy, too! Illinois is blue through and through. In Colorado, where we had trouble getting a civil union bill passed in the last session, Democrats took control of both the state senate and house. Governor John Hickenlooper has voiced some support for the freedom to marry, as well. And, in deep blue Hawaii, there is only one Republican in the state senate. Democrats also control a super majority in the House.

This sets up our efforts nicely. After taking a much deserved night off, the leadership at Freedom to Marry will likely take a look at the state legislative map. They will see that California will soon join the ranks of the enlightened because the American Foundation for Equal Rights did its job. And, they will see windows of opportunity in, at a minimum, Hawaii — where Governor Neil Abercrombie has already said that civil unions are not enough; Illinois — where Governor Pat Quinn and the state legislative leadership have all come out in favor of marriage; and, Delaware — where Governor Markell can bring in the always amazing Vice President (and former Delaware Senator) Joe Biden to preach to an electorate already on our side. In Colorado, civil unions may be a more likely first step. There is also Oregon, which may have said no to recreational use of marijuana, but is still a progressive stronghold like its neighbor to the north.

Needless to say, 2013 gives us options and it may give us another unprecedented series of marriage victories.

This is important for several reasons.

First, it would allow thousands more committed and loving gay couples to marry. Never forget that.

Second, it deprives our opponents of their last talking point — namely, that every time the freedom to marry is put up for a vote, it loses. The "people," they say, don't want it. No one can say that anymore, and when four more states join the family in the next few years, the old canard will sound funny, antiquated, and pathetic.

Third, every additional state that approves of the freedom to marry makes it easier to win a federal constitutional right to marry. Federal courts are supposed to be insulated from political whims, which is why we appoint our federal judges to life tenure. But, there is no doubt that politics can move law. A voice no less prescient and insightful than former Justice Sandra Day O'Connor said, "Rare indeed is the legal victory that is not a careful byproduct of an emerging social consensus." And, she was right. There are exceptions, but generally, legal changes reflect trends of change in social norms.

Yesterday, we made a strong statement about the trend in this country regarding the freedom to marry. On hot-button issues, many courts have little inclination to jump out onto rickety limbs that are too far afield from public opinion, so you can bet that future court decisions recognizing the freedom to marry will cite popular victories in Maine, Maryland, and Washington as evidence that the world has changed since 2004. When we win our next four, five, or six states, it will be easy for every court to see an "emerging social consensus" on anything the freedom to marry for all.


Ari Ezra Waldman teaches at Brooklyn Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. His research focuses on technology, privacy, speech, and gay rights. Ari will be writing weekly posts on law and various LGBT issues. 

Follow Ari on Twitter at @ariezrawaldman.



  1. Taxpayer says

    No, Gary, it’s equality for people.

    (It’s curious that your mind goes to “sex acts” and “an ass.”)

  2. says

    Letter to SCOUTS:
    Miss Ginsberg you can retire now and look after your health. Thank you for staying on so long.

    Mr. Scalia, you are partisan, ‘unjudicial’ and uncouth; you should now do the honourable thing and resign.
    There are many better judges more than ready to replace you.
    Mr. Thomas, quite simply have you no shame ?


    It will take us another President in 2016 to finally get a SCOTUS which will have a true majority of liberal progressives. We may get to replace two Justices now , but they will be liberals replaced by liberals; the Neanderthals will still hang on…….
    That’s why we must get to work for Hillery Clinton tomorrow, Thursday.

    On a more comforting note , is it not sweet schadenfreude that the Koch Brothers Grimm spent all their money for no Return On Investment ?

    They have been told unequivocally by the American people that elections cannot be bought by angry white men.
    and all you TV and other media outlets must have mad a big windfall of profits on the stupidity and greed of the Citizens United camp followers.
    Well done.

  3. Sean in Dallas says

    As GARY demonstrates, there is much work left to be done.

    I’m cautiously optimistic–I remember the “gay backlash” from ’05/’06 a little too well. However, I can’t help but be elated at the number of wins we experienced last night. Exhilarating!

  4. Ken says

    Great summary of all the wins last night, the greatest election night for gay rights in history. We need to keep working an keep up the momentum.

  5. nn says

    Will the 4 wins influence Scotus when it comes to Prop 8? I think it will . I don`t think they will hear prop 8.

    I can`t understand that it is possible to take away a group right they have. If that is so, then peoples rights like marriage equality will never be safe?

  6. MiddleoftheRoader says

    This was very good analysis, but we need to be careful about over-reaching and timing of the next steps. This election was a “good perfect storm”, featuring things that simply are not going to happen in 2014. So if marriage legislation is enacted and forced to public referenda in some states in 2014, there could be a huge reversal from these 4 victories in 2012. Why do I say this? Many reasons.

    (1) 2012 was a Presidential election, which means good turnout compared to mid-term elections (compare 2008 vs. 2010)…… and a good turnout means larger numbers of young voters and minority voters, partly because the Presidential ground-game is so strong in Presidential voting years (witness Obama in 2008 and 2012, vs. 2010). Marriage laws that come up for public vote in 2014 won’t have this benefit.

    (2) Also, in this election we had a President, part African-American, who affirmatively and vocally preached our rights to the electorate, and specifically to African-American voters. That made ALL the difference in the world in Maryland where enough African-Americans abandoned those church leaders who preached hate and instead listened to the President who preached equality (I hope some of you have listened to the ads that played on African-American radio stations in Maryland where two black women are debating marriage, and finally one of them says “Well, if Obama’s for it, then I’m for it” and their “debate” ends). Marriage laws that come up for vote in 2014 may not have the President preaching as hard or as often because he won’t be running.

    (3) The public votes took place in the “right” demographic states. Except for parts of Maryland which could just as well be in Alabama, the rest of Maryland, Maine, Washington State and Minnesota are way north of the Mason-Dixon line. Ignorance, religious fundamentalism, and anti-gay peer pressure had minimal effect. That won’t be the case in most of Illinois that’s outside of Chicago, and Colorado Springs is a national HQs of many fundamentalist groups. And although the victory in Minnesota was good, just because 50% of voters wouldn’t put an anti-marriage amendment into their constitution does not mean that more than 50% will vote to actually approve marriage equality.

    (4)The unanimous court rulings (so far) against DOMA had a positive effect on voters, especially because many of the judges were Republicans. But the Supreme Court could pull the rug out from under us by a ruling that upholds DOMA on the basis that marriage is a special institution — imagine our opponents preaching that language to voters. Yes, a negative Supreme Court decision may energize us and our supporters, but there are too many independents and Republicans (and some Dems) who will take solace in rejecting marriage equality on the basis of Supreme Court language (REMEMBER, in the Lawrence case it was Justice O’Connor who said that the pro-gay Lawrence ruling should not affect how marriage is analyzed because marriage is something different….. and her words could become a big part of the majority opinion in the DOMA cases when they try to prove that a pro-DOMA ruling really isn’t reactionary but instead is in line with Justice O’Connor’s views!). (Note: Maybe some reader who knows Justice O’Connor can convince her to publicly retreat from her statement in Lawrence, just like retired [now dead] Justice Lewis Powell did in regard to his awful vote in the Bowers case). So, we need to see what the Supreme Court says about DOMA if we are going to face more referenda in mid-term elections.

    (5) Mid-term elections are often dangerous because the right-wing can take them over …..witness 2010 when the Tea Party helped Republicans capture state legislatures, and then re-district Democrats out of office, pass anti-women / anti-gay / anti-immigrant legislation, etc.

    I could say more, and many will disagree with this analysis. But all I’m saying is that we need to be very careful and not let the 2012 victories go to our heads. it might be that Hawaii and Delaware are poised for marriage (and yes, Markel is a great guy and very pro-gay, and the Dems have a lock on both states, but southern Delaware is also like Alabama). But things get dicier if we don’t carefully analyze whether we can truly win popular votes in Illinois and Minnesota and even Colorado.


  7. says

    Of course, I’m thrilled he was reelected defeating Troglodyte Romney, but could you PLEASE stop with the hagiography?

    If he were ACTUALLY “a true, unflinching, and fierce ally of our community” he would not have agreed to the gutting from the DADT repeal bill of the clause creating a new federal law banning discrimination against gays IN the military—nor not done ANYTHING since to clean up that mess.

    He would have already signed an order requiring federal contractors not to discriminate against LGBT employees, and he wouldn’t have only finally stopped defending DOMA in court—he would also be refusing to enforce it.

    Your cherry-picking of the facts might have served a purpose pre-election, but there is NO excuse now.

  8. Gary says

    Fill me in on the infinite myriad of sexual variety and nuance in gay male sex. I am blunt because the enemy will focus on that. There’s no “far to go” for me I’ve been there in a much freer time. You speak as though everyone must be “brought into the fold.” A “collective’ view of sexuality was always the fear. SAME SAME all must be. Once gays had their own lives — now we mustn’t spoil it for the marrieds. What a self-conscious sphere in which we now must exist. Thank God for the 70’s. Youth and decadence was living.

  9. EchtKultig says

    Mike…yeah…hagiography…nice big word, I like it too. Unfortunately it’s totally inappropriate in this case. Obama has perfectly modulated over the past 4 years to avoid appearing too pro-gay. Sorry, that matters. There are a lot of homophobes out there…many more of them in the Republican party, but there are even some in the Democratic party. He can’t enact everything on the HRC wishlist. He’s done the best he could. I don’t worship him for it, but I admire him for it.

  10. jpeckjr says

    While the outcomes in these four states removes the last talking point that voters vote against equality, it also undermines our argument that basic civil rights should not be voted on. We made that argument when we lost at the polls. Now that we’ve won, it’s more difficult to make it, I think.

    Besides, legal protections of basic civil rights are voted on somewhere, whether in the legislative bodies, the various supreme courts (I’m including states here), or at the polls.

  11. says

    @ Middle Of The Roader

    You’re not really stating any solutions, or resolutions, or ideas on how to proceed in gaining equality for LGBT. You’re basically just saying “don’t get too excited, you’ll be losing in the future, and that’s that” which makes me clearly believe you’re not nearly as ‘pro gay’ as you’d like us to believe. You outline all these ways (most exagerated to the core) about how LGBT are bound to lose in the future, and yet don’t offer ideas on how you’re working to help us. That is slightly telling.

  12. Steve-ATL says


    Come on now, be honest. Given how you went out of your way to try to deflate our clear victories in long winded rebuttals about the future lack of successes for LGBT, we both know had we lost all these four ballot measures, you’d be harping the same tune. How LGBT are doomed. How we should realize there’s more homophobes out there than we’d like to believe. Wah. Wah. Wah. Sound to me like you had a canned responses ready to spin this for a negative, regardless of yesterday’s outcome.

    By all estimations. We won. The tides have turned. Equality will be the law of the land, and the LGBT movement is extremely energized. Those things won’t regress. Of course LGBT have to work together and actively volunteer to sustain and better this progress. But it’s nowhere near as doom and gloom as you’re painting it out to be, or seemingly like for it to be.

  13. Duration & Convexity says


    Nice try NOM. But not a single LGBT organization has come out and said that the majority should vote on the rights of the minority. Not before or after this election. It’s possible to celebrate this clear win WITHOUT changing that position.

  14. says


    Wrong. Since these ballot measures were going before states as is, it’s logical to vote to have them win by voters. It would not be rational for our side to sit back and say “well, we don’t believe the tyranny of the majority should dictate rights of the minority and until that’s changed, we won’t campaign.” It’s possible to campaign to win in the popularity contest, AND recognize that we shouldn’t have to in the first place.

  15. 2 Dads says

    It’s not an either or. Our inherent rights as a minority in terms of government approved benefits and rights should not be mandated by the approval of the majority. That is something most who grasp the fundmental principles of our nation understand. And yet, the effort to get out on the streets, and motivate the public to empathize and vote for our rights does not undermine the point above. Getting the public to vote for us does not alter our goals of being recognized as a demographic worthy of complete equal rights on a federal level. Something that should and eventually will be done by the courts.

  16. Michelle says

    Uhmmm….no, as a matter of fact, civil rights should not be voted on by the tyrants of the majority. Why? because in many parts of this country, interracial marriages would be outlawed tomorrow if put up to a vote. The Bill of Rights as well as this thing called the Constitution can be used to combat the opressive tyranny of the majority to stiffle a minority group like LGBT.

  17. Cali Mike says

    we still have inequality and lack of equal access to basic human rights in many states, regardless of how these few states voted. and that is wrong, unjust, and worthy of our fight. your logic is we should take our equality where we get it, and “get over it” in places where we are treated like barbaric second class citizens. that’s not how the Constitution works, and sorry to break it to ya bud, but many prominent courts are siding with us. soon, our segment of the population will have full equal access to full equality.
    not just in some parts, or not just in regions where we have to campaign for it. but through & through- across the country. be sure of that.

  18. says

    @ EchtKultig: even if I agree with your characterization and defense of Obama’s strategy during the last four years—and I don’t—YOU can’t be right AND Mr. Waldman right, too, in characterizing him as ” unflinching and fierce” for those are, by definition, the opposite of “modulation.”

  19. Bill Perdue says

    We won partial but very welcome victories in 4 states, but we lost in 50 states. his election was a failure. At a time of deep economic crisis it produced no mandates, no solutions and no winning party.

    About 206 million Americans were eligible to vote.

    Of the eligible voters a total of 146 million Americans, or about 75%, actually registered to vote. That’s an unusually high ratio that reflects mounting rage about the depression and insistent demands for positive action by voters. Of those registered voters Obama got roughly 54.5 million votes or a bit under 50% of the total final vote (as distinguished from both the eligible and registered votes). Romney got about 53.5 votes or just under 49% of the total vote. Approximately one quarter didn’t register and among registered voters about one third didn’t vote. Obama and Romney split half of the eligible vote and non voters comprised the other half of eligible voters.

    It was clear throughout the campaign that working people were desperate for solutions to unemployment, the Depression and for an end to wars of aggression and high GI causalities. It was clear that workers wanted socialized medicine. They were offered no solutions. Obama said he was for excellence in education, which we know from their actions in Chicago means busting teachers unions.

    As for the rest Obama and Romney engaged in personal attacks and little else. Romney correctly accused Obama for forgetting the unemployed but conveniently omitted the fact that many of them are victims of his own corporate piracy. Obama was telling the truth when he accused Romney of having a callous attitude towards workers but declined to say why he’s done nothing real or substantial to reduce the nearly 15%, four year long run of the violence of unemployment, poverty and homelessness.

    Both ignored their insurance reform plans because there are so few differences. Romney because he wanted to attract Teaparty voters and Obama because he didn’t want it known that he and Romney agreed on making insurance companies, HMOs and big Pharma richer at the expense of workers, especially poorer workers and seniors.

    During the next four years Democrats will do anything and everything to please the rich and so will Republicans. Both pretended to have differences about the prosecution of mad dog wars of aggression against Arabs and muslims and out did each other in promising to supply more bullets and phosphorous bombs for the mad dog zionist ethnic cleansers.

    Both promised to increase the level of forced austerity and continue attacks on the last shreds of the Bill of Rights. They aim to gut entitlements like Social Security and Medicare/Medicaid.

    Both agreed to continue to attack teachers unions under the guise of ‘excellence’ in education. Neither will let up on their attack on unions because it’s the key to driving down workers wages and engorging the rich at the expense of workers.

    Working people are out in the cold with gutless union leaders and another failed elections with not solutions in sight. We have no choice but to build workers parties and create a workers government.

  20. anyone for bundt cake? says

    The Republican ranters are very bitter. Not unexpected. Would tea and bundt cake help? (Maybe tea is no longer the beverage of choice among you-know-who anymore.)

    As to economics, I’ll trust an MIT PhD in economics (that would be Bernanke, just in case you’re not up on Federal Reserve hierarchy) before I’ll accept some simple-minded Republican’s principle of “lower taxes” and the market place will flourish. How nineteenth century!!

    With Obama’s win we really dodged a bullet. Forward in the 21st century rather than going back to the 19th.

  21. Bingo says

    Read the whole thing. Didn’t see any analysis. Some predictions based on nothing much (like the Prop 8 decision). And a few possible targets for legislative action over the next two years, sure.

    Might add the Colorado will do civil unions, because repealing the anti-marriage equality constitutional amendment there requires going to the voters. That’s a good example of the step-by-step process that’s going to be required in dozens of states.

    We’ll have some defensive fights too, as we did in NH this year. That one at least is over now that we got a great new governor there.

    Despite a fine Nov. 6, we’ll be clawing our way to equality for another generation. Note the milestone. Celebrate it. But the road remains as twisty and bumpy as ever.

  22. MichaelJ says

    One more pro-gay victory: 54% voted in Iowa to retain state Supreme Court justice David Wiggins, one of the Court’s judges who in 2009 joined the landmark unanimous decision to legalize same-sex marriages in the state. The well-funded campaign by social conservatives to oust him failed, in contrast to their success two years ago when three justices were removed by 55% of the voters.

  23. says

    It’s been very interesting to see the GOP pundits, bloggers and lemmings fret these last two days. I’d have actually thought there’d have been a sobering regroup of thoughts. It doesn’t seem to be happening.

    Rather than look at the campaign, and the election results, and realize “Wow. If we run on anti-woman, anti-gay, religiously-dogmatic and racist and xenophobic campaigns, we can’t win” – it’s become “intolerant liberals and the liberal media refused to accept the apologies of all the GOP male politicians who made light of rape and human equality issues.”

    or something. but very little actual “wow, we can’t win if we continue on this path” thinking.

    which i suppose is a good thing, as it means they won’t be able to get their act together next time, either. you can’t court the Bigot Vote and then act shocked when the rest of the world has moved forward.

    the Romney/Ryan campaign, more than any other i can think of, harkened back to a 1950s-America ideology.

    the rest of the country is, however, firmly in the 21st Century and looking forward.

    I’ve seen angry posts from gay republicans, furiously saying (hoping?) that “Obama will do nothing for gay people”. of course. because when he does it’s one more steel spike through their hearts – one more instance of The Black Liberal President doing for them what their own white conservative families and communities and political allies won’t do.
    Rather than relax and trust the president and see the good he does, they actually get ANGRY when he has success for this country, as they dont want to be proven wrong.

    republicans first. americans second. human beings last.

  24. andrew says

    I am thrilled with Obama’s victory. However, many of the posters on this site may be missing the fact that the U S House is still firmly in the hands of the Republicans and among them are about 70-100 tea party types who are in no mood for compromises or concessions. Also, while the Senate is controlled by the democrats (55-45) at least ten of those democratic senators come from red states or very conservative swing states. They are not always going to support the national democratic party’s more liberal agenda. And it really takes 60 votes to move important legislation through the senate. While we progressives dodged a bullet in this presidential election, the promised land for progressives is not in sight.

  25. daftpunkydavid says

    middleoftheroader actually makes sensible points; we have to be realistic, that’s just a fact. we should not overreach. that being said, we do have the momentum, and we should push forward for marriage, in new jersey, in rhode island, in illinois, in delaware, and maybe in minnesota. yes, timing does matter. and no, we shouldn’t resort to these ballot initiatives without exhausting the other possibilities…

  26. Diogenes Arktos says

    @Anyone for Bundt cake?: The Congressional Research Service was recently commissioned by suitable Republican types to analyze their fondly held view that tax cuts for the wealthy really were good for the middle and lower classes. Said report found that view to be utterly untenable. The result? The requesters ordered the report suppressed.