The last time I discussed LGBT rights, I talked about the states where marriage equality has been realized. This time out, I want to focus on the other side of the coin, states where same-sex marriages have been banned. Unfortunately, that side of the coin has come up a lot more often.
Massachusetts, the first state to legalize same-sex marriage, did so by judicial ruling. The courts ruled that according to the Massachusetts constitution, it was unconstitutional to restrict marriage to opposite-sex couples. This was a galvanizing moment for the opposition. It was too late to do anything about Massachusetts, but they'd be certain to close this loophole in other states. If the problem was that state constitutions didn't say anything against it, then that would have to change.
And so, in state after state, the equal rights of an historically disadvantaged minority were put up to a public vote. Some states had same-sex marriage bans in place before Massachusetts legalized it, but the number of states that put the issue on the ballot afterward was staggering.
As of today, 31 states have bans in their constitutions against same-sex marriage (including my state of Colorado, which passed the ban in 2006). No legislative action can change this, which was exactly the intent of the opposition. There are only two ways these bans can change: either the issue can be put back to a public vote in the future, where a majority would have to reverse the ban; or the ban itself would have to be ruled a violation of constitutional rights that was never legal to enact in the first place. Both are significant hurdles to surmount.
Many of those 31 states went even farther than simply banning marriage, and have either constitutional bans (or state statues) that restricts any recognized relationship for a same-sex couple -- no civil unions, no domestic partnerships. And in a sad example showing how far we haven't come, the latest example of this occurred just earlier this year in North Carolina, where voters passed a measure so draconian that many legal experts contend it also restricts opposite-sex civil unions that have been legally recognized in the past.
Marriage equality opponents regularly trumpet a big talking point here. The question of banning same-sex marriage has been put to 31 states, and all 31 states have chosen to ban it. Opponents point to this as proof of the justice of the bans. (The truth is that there is a slight asterisk on this statistic. The state of Arizona had a Proposition for a same-sex marriage ban in 2006 and actually rejected it, but another one was put on the ballot in 2008 and passed. The opposition won in the end.)
One state, Minnesota, has a same-sex marriage ban up for voter approval in the coming election. Just as Washington, Maryland, and Maine are all poised to approve equality by ballot this November, Minnesota could take that asterisk off of the talking point and turn it into a full-fledged counter-example. If the state fails to pass their ban, the "31-0" victory record touted by the opposition will no longer be perfect. This too would be a significant step for LGBT rights, not only for its symbolism, but for the fact that will be one less state where an enacted ban will later have to be overturned to pave the way for equality.
Of all the state bans on same-sex marriage, the most well known is California's Proposition 8, passed in 2008. (I've written about it before, in reviewing the documentary film, 8: The Mormon Proposition, and 8: The Play.) Proposition 8 came about in a rushed reaction to a judicial ruling early in 2008 that declared it unconstitutional in the state to deny marriage to same-sex couples. As marriages began to be performed all over California, opponents got Proposition 8 onto the ballot, and campaigned hard for it. Just months after equality had been granted, Proposition 8 passed in November, and the right was taken away again.
Proposition 8 has been going through a lengthy challenge process in court. In the first level of review, the judge struck it down as a violation of the U.S. Constitution, arguing that the Supreme Court had historically acknowledged a fundamental right to marry, and that denying this right to same-sex couples was a violation of the Equal Protections Clause. Opponents appealed that ruling to the next highest Appeals Court, where a supportive but narrowed ruling was issued. This court refused to acknowledge (or refute) the inherent right of same-sex couples to marry, but struck down the ban anyway on the grounds that it was not constitutional to pass a law specifically to take away rights that had already been granted.
This ruling in turn has now been appealed to the Supreme Court, which may decide by the end of this month whether or not to hear the case. There's a lot to say about the Supreme Court, enough that I plan to devote a subsequent post just to that topic. For today's post, I'll simply say that we're waiting to see what will happen next -- and until the Supreme Court either rules on the case, or decides not to hear it and lets the Appeals Court ruling stand, same-sex marriages remain banned in California.
As I've mentioned, public polling indicates that this year is the first time when a majority in the U.S. have stated they're in favor of marriage equality for gays and lesbians. But there has been in the past a visible gap between what people say in a poll and how they vote at the ballot box. The needle still has far to move. And then, even once it has, a long process will still remain to strike all these bigoted bans out of the constitutions of the majority of the states.
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