Last month, Rhode Island came over into the marriage equality column. Last week, it was Delaware. Yesterday, it was Minnesota. There’s progress expected in New Jersey, Illinois, and at the Supreme Court. Pick your favorite cliché or metaphor about winning—being on a hot streak, passing the tipping point, bending the arc of history—and feel free to apply.
And yet few Americans are aware that in 29 states, you can still be fired for putting a same-sex partner’s picture on your desk, or rejected for a job because the hiring manager doesn’t like homos. That’s right—it’s perfectly legal in most of the country to fire, refuse to hire, demote, or otherwise discriminate against someone for being gay.
In July of 2010, Russ Feingold did the principled thing. After weeks of markup and debate, the liberal Wisconsin senator voted against Dodd-Frank. "My test for the financial-regulatory reform bill is whether it will prevent another crisis," Feingold said at the time. "[The bill] fails that test." Ironically, Feingold's fortitude only served to further weaken the legislation. In order to break a filibuster, Dodd-Frank's sponsors had to appease conservative Massachusetts senator Scott Brown, who opposed a "bank tax" that would have made financial institutions pay for the new regulatory regime. The provision was stripped from the legislation, costing taxpayers $19 billion.
Gay-rights advocates should keep this scenario in mind as the Gang of Eight tries to push immigration reform through the Senate. Given that more than a quarter million undocumented immigrants are LGBT, the movement has a broad interest in seeing comprehensive reform with a path to citizenship succeed. But gay-rights supporters have also been pushing for a specific provision in the bill recognizing LGBT families, who under current law are ineligible for family-based immigration. President Obama's immigration proposal, released in February, contained such a provision. But few were surprised that the bill unveiled by the bipartisan group earlier this month contained a legalization program for the undocumented but made no mention of LGBT families. This is no doubt a shortcoming in the current proposal, and one that groups like Immigration Equality, which advocates on behalf of gay and HIV-positive immigrants, should fight to fix. Immigration Equality has already said that the current Senate bill "does not reflect the values or diversity of our country" and that "we are watching—and we will remember—which lawmakers stand with us, and which stand to the side, when this critical vote happens." The Human Rights Campaign and other prominent gay-rights groups have similarly condemned the current Senate bill.
At this point, it’s almost a yawn: The last and most Catholic New England State, tiny Rhode Island, population just over one million, passed marriage equality last week. Just nine years after Massachusetts set off moral panic nationwide and triggered the final wave of state constitutional amendments banning same-sex marriage, all of New England has now followed the Bay State’s lead. Rhode Island has recognized same-sex marriages performed in other states since 2010; nowhere were you more than an hour’s drive from a state where you could marry—the Ocean State is bordered by Massachusetts, Connecticut, and New York, all equal-marriage states.
Same-sex marriage advocates have had their eyes on Rhode Island for a long time. Wednesday afternoon, they’ll very likely see the last barrier to marriage equality fall away, as the state Senate is scheduled to vote on a measure legalizing same-sex marriage. It’s already passed the House, receiving vocal support from Governor Lincoln Chafee, and most expect that the Senate has the votes to pass it by a big margin.
Last week's oral arguments in two landmark cases involving same-sex marriage will likely not be followed by opinions until late June. In the interim, there will be a great deal of speculation about what various rulings might mean. With respect to the legal challenge to Section 3 of the Defense of Marriage Act, speculation about the outcome will be less common because most legal observers (including me) expect a comfortable majority of the Court to strike it down. With respect to the challenge to California's Proposition 8, however, the outcome is less certain. Each outcome will lead to markedly different developments for gay and lesbian rights. For this reason it's worth teasing out the implications of the possible rulings in the challenge to Prop 8.
When it comes to any issue, it's important to remember that there's no even distribution of support or opposition. A majority of Americans may support same-sex marriage, but that doesn't translate to a majority of people in a majority of states. In Virginia, for example, a new survey from the University of Mary Washington—which polled 1,004 adults living in the state—45 percent of respondents favored marriage equality, while 46 percent were opposed. This is a dramatic shift from seven years ago, when Virginians passed a constitutional ban on same-sex marriage, 57 percent to 43 percent.
Outside of the Supreme Court this week—where the nine justices were hearing oral arguments about the constitutionality of California's ban on same-sex marriage—a young woman and an old woman were arguing.
"If you put all the gay people on an island," began the older woman, who looked to be in her fifties.
"See, this is why people think you guys are like the KKK!" interjected the young woman. "You're talking about rounding us all up—"
"Let me finish! If you put all the gay people on an island, in a generation there would be no gay people. They would die out."
"That's not a realistic scenario. We all live in this country together."
As I sat in the press gallery off to the side of the Supreme Court yesterday morning, waiting for the justices to file in and begin hearing arguments about the constitutionality of the Defense of Marriage Act (DOMA), I had that sickly excited feeling that you get when the roller-coaster car is climbing the first hill. The day before was easier for me: I didn’t want the Court to take Perry, the Prop. 8 case, to begin with. I was relieved when very quickly we all could hear that the justices had no appetite for a broad ruling. But the DOMA case—and here please let me confess that I’m terribly human—the DOMA case is about my marriage. As regular readers will know, I’m married to my wife in Massachusetts, but because DOMA bars the federal government from recognizing same-sex marriages performed in the states, I’m not married in the United States. The justices were going to discuss whether to end that split identity. This morning, it was very personal again, as it hasn’t been in awhile.
By now you've heard from the various news sources that, in this week’s Supreme Court arguments on California's Proposition 8 and the Defense of Marriage Act, a majority of justices expressed skepticism over both. So it's imaginable—even probable, if you believe the news—that we will find ourselves at the end of June with DOMA in the junk pile and marriage equality back on the books in California.
Here's a contrast: At the same time the Supreme Court held oral arguments on a case that could legalize same-sex marriage, North Dakota lawmakers passed one of the most restrictive abortion bans in the nation. It's a sign, argues Sarah Kliff in The Washington Post, that the two have decoupled as issues of controversy, "Younger Americans have become increasingly supportive of gay marriage in a way that hasn’t necessarily happened for abortion rights."
It’s a strange thing, living on the cusp of social change—miraculous and dizzying. Ten years ago to the day, on March 26, 2003, I sat in the tiny hallway that functions as the Supreme Court’s press gallery, off to the justices’ right, trying to hear the oral arguments in Lawrence v. Texas, the case in which the Supreme Court—years after the rest of the developed world—knocked down the country’s 13 remaining anti-sodomy laws. Yesterday morning, I sat there again to hear the justices consider the constitutionality of California’s ban on same-sex marriage, written into the state constitution by Proposition 8. I’ve spent my adult life writing about LGBT issues; back in the mid-1990s, I was the first lesbian to write broadly in favor of same-sex marriage, and in 1999 I published a book explaining how same-sex couples fit into marriage’s shifting historical definition.
It's always dangerous to read too much into oral arguments at the Supreme Court. You can certainly get a general sense of which way the justices are leaning by the tone of their questions, but it's also easy to be misled, particularly when the case in question affords them a number of options for a ruling. So it was in today's case testing the constitutionality of Proposition 8, the California initiative banning same-sex marriage in the state. Justice Anthony Kennedy, the presumed swing vote, spoke in rather emotional terms about the "40,000 children in California that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don't you think?"
This morning's gathering at the Supreme Court in favor of marriage equality was matched—in numbers if not intensity—by a march against marriage quality on the National Mall, organized by the National Organization for Marriage. A long line of people, two columns deep, walked from one end of the Mall to the other, and then made their way to the steps of the Supreme Court, where they demonstrated against the push for same-sex marriage.