Love and Marriage in the Empire State…
|New York State Capitol, Albany (wikipeida)|
Before New Hampshire and Vermont, gay marriage, or rather the kinder term, marriage equality was only made possible by judicial fiat. Well again to be kind, the Supreme Courts of Connecticut, Iowa, Massachusetts and, for a time, California had determined that under their constitutions, marriage, both the term and the rights promised therein, could not denied to same-sex couples. Then Vermont, who had had civil unions for years already, and New Hampshire legislated marriage equality on their own. Maine got in on the act, too, but a voter referendum squelched it. A legislative effort in Maryland to extend marriage right to same sex couples was scuttled in Maryland after support evaporated in the State House and opponents promised a citizens’ veto. Even Rhode Island’s openly gay Speaker of the House could not get passage in his state despite support from Gov. Lincoln Chaffee.
|N.Y. Gov. Andrew Cuomo (wikipedia)|
The road to marriage equality has been fraught with passionate arguments on both sides. The opposition, however, tended to draw its strength from either religious sources or a visceral response from many as to what marriage really is. That latter push, which very probably is what tips the scales of polls against same-sex marriage or keeps the split near-even, has been given too much credit by politicians. It would not be hard, even now, to find a majority of Americans opposed to same-sex marriage, but the next question, often unasked, is how much they care. If the electorate really cared, then half the Massachusetts legislature would have been dumped after they rejected sending a Constitutional amendment to voters banning the marriages.
|Pres. Obama (wikipedia)|
During the run-up to last night’s vote, many wondered if same-sex marriage would be passed while Pres. Barack Obama was in New York for an LGBT Democratic fundraiser. The president has been criticized by many in the gay community for being too timid on gay rights. Indeed, many worried that were it not for a late push by opponents of DADT, the president would not even have that victory in hand. The situation flared again last week during the Netroots Nation conference in Minneapolis when Lt. Dan Choi‘s declared that he would not support the president unless he comes out for marriage equality.
|Chaz Bono (wikipedia)|
Specifically, the Employment Non-Discrimination Act must be made law. Less than half of all states offer protection from discrimination in employment and elsewhere and a federal law could correct that. What makes the fact that ENDA is not law all the more frustrating is the fact that several Republicans have voted for it including Mary Bono Mack, whose district is believed to have the largest concentration of homosexuals represented by a Republican. Bono Mack is also the widow of Sonny Bono, whose child has been the focus of media attention of late as she, and now he, transitioned from female to male.
Another bone of contention is the Defense of Marriage Act. That law, passed with Pres. Bill Clinton’s signature in 1996, did two things. The first part essentially cemented the right of states to make their own decision on marriage. In other words, a federal judge in Alabama could never rule that that state has to recognize a same-sex marriage from Massachusetts under full faith and credit because Congress essentially ceded full discretion to the states.
The other feature is currently under review in the courts. That section said that as far as the feds were concerned marriage could only be between a man and a woman. This is the only section challenged in court, particularly in two cases originating in Massachusetts. One was filed by Martha Coakley, the other was an independent action. US Attorney General Eric Holder, with Obama’s approval, did the legally correct thing by announcing they could not defend the law without arguing the discrimination had a compelling state interest. Since DOMA had been passed before more recent Supreme Court jurisprudence on gay rights, the Justice Department’s defense of the law could itself be ethically as well as politically damaging for the AG and the president. Of course repealing the section in DOMA would be ideal.
|The Stonewall Today (Wikipedia)|
The passage of New York’s marriage equality bill came just short of the forty-second anniversary of the Stonewall riots, which are widely seen as the beginning of the gay rights movement. That bar was a nexus of celebration Friday night when the final Senate vote was announced. There are renewed hopes that New York’s law, which will double the number of Americans living in state that permit same-sex marriages, can pass in Maryland and Rhode Island.
Massachusetts’ role cannot be overlooked as well. The impressive thing is not that the Supreme Judicial Court ruled as it did in Goodridge v. Dept. of Public Health. Rather it is that the electorate shrugged after it became clear the issue would not go to voters and more politicians “came out” themselves in support of marriage equality like Gov. Deval Patrick.
|Empire State Bldg after Vote (Moveon.org)|
There are other battles ahead, most notably the cases against the government on DOMA and the challenges to the California’s ban on same-sex marriage. For our money, the former has a great chance of getting overturned. Justice Anthony Kennedy has been a reliable vote on the court for gay rights from Romer v. Evans to Lawrence v. Texas. The latter will touch on more difficult questions that may slip through strict scrutiny, but only barely. Either one may ratchet up pressure for a federal constitutional ban, but it will not matter. New York’s step into the twenty-first century on civil rights all but assures Capitol Hill will never be able to reverse the tide of history.