In a single day last week, the number of Americans living in a state that allows gay marriage doubled. But, beside the New York vote's tangible effect on 20 million state residents, the win is also a potent symbolic victory that has reinvigorated the movement nearly two years after its last wins in New Hampshire and Washington, D.C. It's a watershed.
"New York is one of the iconic American states, so it has national and international implications," says Mark Solomon, campaign director for New York-based Freedom to Marry, the largest national organization dedicated to fighting for marriage equality. "We've heard from all over the world on how this is pushing things forward."
The benefits, gay-rights advocates say, redound on a number of fronts: The New York win is likely to accelerate the rate at which public opinion shifts in favor of same-sex unions and sends a signal to legislators and judges that supporting gay marriage is politically palatable. With the inevitable rush of news coverage one can expect when the New York law takes effect in 30 days, it will also serve to highlight the stories behind the fight.
New York is a key part of the broader gay-marriage game plan. Aside from the federal lawsuit against the California law banning same-sex marriage -- passed by voters in 2009 through a ballot measure known as Proposition 8 -- advocates for marriage equality have so far kept their fight at the state level, either in the courts or in the legislatures.
While prominent members in the gay-rights movement are careful to say they are pushing on every front possible, the goal is not to win nationwide piecemeal. The movement just needs enough states to sign on before taking the case to the nation, and New York is a huge leap forward. "We don't need to go to every state; that's been the history of civil rights," says Solomon. "You need to win a critical mass of states to get to a place where either Congress or the courts will rule in your favor."
The Prop. 8 Effect
Doubts about whether a critical mass of support existed when outsiders Ted Olson and David Boies, attorneys best known for facing off against each other in Bush v. Gore, filed the Prop. 8 lawsuit in 2009 was initially a source of conflict. But gay-rights advocates have rallied behind the case after District Court Judge Vaughn Walker ruled it unconstitutional last year.
The case has advanced to the Ninth Circuit Court of Appeals, where it's been bogged down for the last few months by questions about whether the anti-marriage groups that put the ban on the ballot even have a right to defend the law in court (former California attorney general, Jerry Brown, now the governor, refused to do so). If the case is allowed to continue, the liberal Ninth Circuit is expected to rule in favor of gay marriage, priming the suit to go on to the Supreme Court and putting every gay-marriage ban in the country at stake. If it ends there, the lower-court ruling would stand, restoring same-sex marriage in California.
Overall, the effect of the Prop. 8 lawsuit has been to take states with constitutional amendments banning same-sex marriage out of play. In light of the legal wrangling at the federal level, efforts to overturn the 29 state constitutional bans on same-sex marriage are on hold; in California, a push to put the issue to another popular vote in 2012 is on the back burner in deference to the suit.
That's not to say, however, that all efforts to enact gay rights via popular vote have ground to a halt. For the first time, national leaders are planning to take the gay-marriage issue directly to the electorate in Maine, where voters vetoed the legislature's passage of a gay-marriage bill but, crucially, did not amend the state constitution.
So Who's Next?
A constellation of factors -- the level of public and legislative support for gay marriage, the existence of a referendum process to amend the state constitution, and having a champion in the governor's office -- figures into determining whether a state is ripe for a final, concerted push. While there are a number of places where the stars seem to be aligning -- Rhode Island, Delaware, and New Jersey, for instance -- eyes have turned to Maryland as the next battleground.
A few months ago, it appeared that gay-marriage advocates were narrowing in on a victory. Maryland's governor, Martin O'Malley, was on board. The typically more conservative state Senate passed a same-sex marriage bill by a narrow 25-to-21 margin. Lobbyists had the votes in the assembly. But at the last minute, three key legislators in the assembly -- including the bill's co-sponsor -- withdrew their support, effectively killing the bill until the legislature resumes its term next January. The effort failed, advocates say, in part because of successful lobbying efforts by the National Organization for Marriage, but also because legislators feared it lacked support among voters in key districts with large percentages of religious African American voters.
Until the new legislative term resumes, advocates are trying to drum up public support for same-sex marriage in the state. "We're working on rebuilding support in those areas and looking at how we're going to proceed," says Patrick Wojahn, chair of the Equality Maryland Foundation. "We're trying to get [legislators who defected] back on board or get other people on board."
The New York model, adds Wojahn, also shows how important the strong involvement of the governor is.
Beyond Maryland, same-sex-marriage advocates point to states that currently have civil unions like Rhode Island, Delaware, Illinois, and Hawaii as potential targets for a push. "We always view civil-union states as in the process of moving to marriage," says Solomon.
The nationwide strategy for gaining marriage rights, of course, is also defensive, fighting constitutional bans -- Minnesota will have one on the 2012 ballot -- and defending laws once they're passed. That's true in New Hampshire, where both chambers of the legislature flipped into Republican hands following the 2010 elections. In the previous session, the Democratic-controlled legislature voted to allow gay marriage, which went into effect in 2010. Most state residents support same-sex marriage, but some fear NOM and other outside groups could succeed in lobbying the strong Republican majorities in the legislature to repeal it with enough votes to override a veto by the governor. Even if the legislative effort to overturn gay rights is unsuccessful, anti-gay-marriage activists plan to put it to a popular vote there in 2012.
Newly enacted laws tend to be the most vulnerable, but same-sex marriage advocates say there's little chance of turning back the clock in New York, where a legislative repeal would face strong opposition from Democrats in the legislature and the governor; state law doesn't allow putting a legislative act to a popular vote. NOM President Maggie Gallagher says the organization is pursuing a "multi-year effort in New York to put this issue before the people in the form of a constitutional amendment," but this would require the legislature to pass one in two consecutive sessions (with an intervening election) before finally putting the question to voters. In the alternative, legislators could call a constitutional convention, which requires a public vote not only to approve the legislature's call for a convention, but also to ratify the amendment if the legislature passes it.
NOM has also pledged $2 million in support of candidates running against Republican legislators who voted for the bill, which may sway legislators in other states that are considering legalizing gay marriage. "We ... hope to make it clear to Republicans, not only in New York but nationally that voting for gay marriage is a very bad idea if you are a Republican," Gallagher said in an e-mail.
That both sides of the gay-marriage debate are now taking their case directly to voters underscores how much the fight has become a race against time. Earlier this year, Gallup reported that for the first time, a majority of Americans favor same-sex marriage. Since 1996, attitudes on the issue have shifted 1 to 2 percentage points per year, inching closed the window during which opponents of same-sex marriage can enshrine prejudice in state constitutions. With New York, that will only happen faster.