The New Hampshire model for pushing marriage equality
Mar 23, 2012

The New Hampshire model for pushing marriage equality

For most progressives, the issue of accepting gay marriage is an easy one. It is also widely recognized that at some point in the future, gay marriage probably will be accepted and that the momentum in public opinion and the nascent process of state level legalization is going to continue until it is legal across much of the country. There is, however, a question of process. Namely, how do we expect we will get to full marriage equality and how would we prefer we got there?

Consider the example of New Hampshire. In 2009, a bill recognizing gay marriage was passed into law under a Democratic governor who personally did not support gay marriage but after much pressured signed the bill anyways. However, Democrats lost badly in the legislature in 2010 and Republicans pushed for a repeal bill. Last week, the culmination of that effort failed. Enough Republicans broke ranks and supported marriage equality that the bill held. Approximately 60% of New Hampshire citizens support the bill, a fact that was clearly recognized and resulted in the win. This example shows us a stable situation where because of public sentiment and direct activism, a Democratic state can institute marriage reform and then manage to hold onto it when the state flips Republican because of the strength of public support.

There are three major levels on which the gay marriage issue is fought. There are bills passed in legislatures and signed by governors; there are referendums and ballot initiatives voted on directly by the electorate; and there are court decisions. In California, where gay marriage has been a perennial battle in the last decade, all three of these levels has seen the fight wage on.

Of these, the court decisions are in some sense the fastest method. A best case scenario might be one where a specific case makes itself up to the Supreme Court (especially if Obama wins re-election and appoints more nominees but perhaps even without this) and overnight marriage equality is instated country wide on the back of the equal protection clause of the constitution. Baring that, court cases at the state level can provide - as they already have - a quick method of instituting marriage equality.

I don't want to win the gay marriage fight in a court room decision. We are right on this issue. I want to win by persuading everybody else that we are right. I want Americans of all stripes, right across the country, to change their opinion, as they are, and vote in overwhelming pluralities to get rid of this bigoted, homophobic, anachronistic aspect of our society. I want the putative moral leaders of the free world to collectively come together and take a simple step into modernity that embraces our fellow humans as equals. Having it unwillingly forced on them by a court is, while certainly an improvement over what we have today, a distinctly lesser victory.

Whether it is implemented via a vote of the people or by their representatives in a legislature matters less to me. In the same vein as my dislike of the court decision, having the people vote directly is a purer and more direct form of democracy. While I think it is ridiculous that this is even an issue, it is nonetheless going to be a historic and monumental change in societal attitudes when gay marriage is finally implemented nation wide.

The more directly the people are involved the better. However, votes will happen in legislatures when it is recognized by politicians that gay marriage is a winning political issue; this is precisely what is happening already.

There should also be a recognition that LGBT issues are more than just marriage equality. Indeed, I think there is a case to be made that myopically focusing on the marriage equality issue detracts from other legitimate issues such as the LGBT teen suicide rate. When marriage equality is forced on the people by a court of law, it is not a reflection that many of the underlying sources of homophobia in society have been addressed and are on the decline. It is probably true that enacting marriage equality will help to de-stigmatize being LGBT and can help with these other issues, however, we should recognize that our work is certainly still cut out for us and that at some point we still need to persuade a large plurality of people of the righteousness of our views even if we get them a few years earlier from a court ruling.

Several of the most significant changes in society have come from a court of law. Brown v Board of Education which eliminated segregated schools and kicked of the Civil Rights Era or Roe v Wade which legalized abortion provided more change far faster than legislative action ever could. In the case of abortion, however, the battle has not really been won almost four decades later. Abortion remains a super controversial topic and legislatures are proposing increasingly draconian methods to try and restrict or undermine Roe v Wade. I don't want a similar saga with marriage equality and fear that a court imposition without winning the hearts and minds of the people is problematic. Ultimately, since I believe that we will win this battle in the not so distant future, I prefer the legislative/direct voting route. If I didn't believe we would win, then I would take the court battle and go with that lesser victory.

One problem with the legislative model is that any time we legislate that a certain group deserves or gets some special set of specific rights, we are implicitly saying that they did not have them without the legislation. While it is not yet recognized by the courts federally, the equal protection clause of the constitutions protects LGBT equality as it does any other group. So in some sense there is no need to go through this rigmarole with legislating marriage equality when the courts can and probably at some point will do just this. More importantly, jumping the gun on that process leaves open the idea that opposing marriage equality is not a clear and obvious constitutional violation and would require legislative action to be fixed. This is along the lines of the argument some conscientious right wingers may make against other forms of legislation such as bills against sexual discrimination which are unnecessary and in a sense insulting given that the constitution already protects women just as much as it protects men.

Rachel Maddow once remarked in an interview that while she cares about the issue deeply, her shows that talked about gay rights issues usually rated low not because her MSNBC audience necessarily disagreed, but because people have made up their minds on gay marriage and they don't want to talk about it but just kind of want the issue to go away. Except, we need to keep talking about it in order to push change along so that the vast majority of gay Americans who currently cannot get married someday can. The issue is simply too important.

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