By James Esseks, Director, ACLU Lesbian Gay Bisexual Transgender & AIDS Project at 11:56am
The nation has just had a marriage moment - a tipping point where voters in at least two states have affirmed the freedom to marry for same-sex couples. The vote illustrates that the country is getting squarely behind the notion that same-sex couples should be able to make the same legal commitment to each other that straight folks can. And this marriage moment provides immeasurable support for the prospect of another one next June, when the Supreme Court is likely to issue its views on marriage for same-sex couples.
Yesterday, voters in Maine and Maryland approved the freedom to marry for same-sex couples, and voters in Minnesota rejected a state constitutional amendment that would have excluded gay couples from marriage. And while there's no final result yet in Washington state, a referendum supporting the freedom to marry there was also ahead in the vote count.
Put it all together, and you've got an indisputable watershed moment in the movement for LGBT equality: the first wins after our side lost popular votes on marriage in 32 states. While the rights of a minority group should never be put up to a vote by the majority, that's the system we have in many parts of the country. In past years, it predictably worked against same-sex couples in those 32 states, which makes it all the more significant that popular majorities have now endorsed the freedom to marry in at least two states and rejected an anti-gay amendment in another.
The wins are not a fluke - they reflect the changing opinions of Americans all across the country. As more people think about the issue, they realize that loving couples who make the commitment that's at the heart of civil marriage should be able to declare their vows before friends and family and have them protected by the state. National polls this year show that 54 percent of Americans support the freedom to marry for gay couples, and the view is becoming increasingly mainstream: President Obama, the Democratic Party and the NAACP have all endorsed marriage for same-sex couples.
To be sure, the freedom to marry is not a reality nationwide (30 states still ban it for gay couples in their constitutions), but the constitutionality of restrictions on marriage for same-sex couples is likely to be before the Supreme Court in 2013. Yesterday's marriage moment should help create another, similar moment next June.
Although judges are sworn to uphold the Constitution, they do not decide cases in a public opinion vacuum. Courts are keenly aware that changing basic cultural institutions like marriage may lead to resistance that can strain their institutional credibility to the breaking point. Analyzing past court cases on marriage, theWashington Post concluded that judicial precedent limited how far courts could go, but "so did a cautious calculation that same-sex equality will ultimately be more durable if it is not seen as an imposition on an unwilling public by an unelected judiciary."
That's why yesterday's elections are so important and how this marriage moment is related to the next. This term, the Supreme Court is likely to hear a constitutional challenge to the federal Defense of Marriage Act (petitions for review are pending in the ACLU's Edie Windsor case and in three other cases now) and may take up the constitutionality of California's Prop 8 as well. Losses across the board yesterday would have flagged for the Supreme Court that the pro-marriage momentum of public opinion had stalled. And there's no surer way to make the justices timid than to ask them to impose a ruling - no matter how righteous and constitutionally well-founded - that the people don't support.
This is why the ACLU devoted an unprecedented level of resources to the 2012 state marriage campaigns, building on many years of working in each state's courts, legislatures, and in their courts of public opinion for incremental improvements in state recognition of same-sex relationships. We took leadership roles in the state campaigns, serving on the governing boards to shape strategy, activating ACLU members, talking to undecided voters, providing hundreds of thousands of dollars for polling, organizers, and communications experts, and fundraising. In Maine we led the outreach campaign to enlist supportive Republicans, in Washington state we spearheaded the effort to engage communities of color, in Minnesota we organized phone banks, and in Maryland we ran the campus outreach program and partnered with HRC to lead the campaign's communications team. All this because we knew that victories in these states would not only be significant progress in themselves, but also because we see the connection between success here and success eight months later in our litigation efforts before the high court.
Evolving public opinion and a lot of hard work have gotten us to this marriage moment. With more work and a bit of luck, June 2013 will bring another one as well.