I’ll have the pleasure of participating in two debates on SSM this week at student Federalist Society chapters. One will be with Ryan Anderson tomorrow at the University of Nebraska Law School. The second will take place at Creighton University Law School on Tuesday. Please say hi if you see me at either.
You can watch it here now. It’s the second of three readings of the proposed law allowing same-sex couples to wed.
On Monday, I’ll be arguing the conservative case for same-sex marriage at the Federalist Society chapters of two law schools in Baton Rouge. The first dabte will start at noon at the Southern University Law Center, where my sparring partner will be Judge Duke Welch, a Louisiana appellate court judge. The second debate will be with a faculty member at the LSU Paul M. Herbert Law Center, starting at 3:30.
The state legislature is debating a same-sex marriage bill. It’s almost entirely a debate among Democrats, since the RI legislature is heavily Democratic. Watch the proceedings here.
UPDATE: It passed the state house, 51-19. It now moves to the state senate. The governor supports it.
In light of the Court’s decision to ask for jurisdictional arguments in both cases, Art Leonard considers some intriguing possibilities. They go well beyond a simple 5-4, up-or-down vote on the recognition of gay marriage.
Opponents of same-sex marriage are trying to get the Court to review their recent win against SSM in the district court in Nevada, skipping any consideration of the case in the Ninth Circuit. In their petition for certiorari before judgment, they argue:
Of the “marriage” cases now before this Court, this case is optimal for resolving the fundamental issue for several reasons. This case is the only one that cannot be resolved without answering the fundamental issue. Further, this case has developed most comprehensively and thoroughly the societal interests justifying preservation of marriage’s man-woman meaning; the record here will thus be most helpful in judicial review. Moreover, important collateral issues that may be the basis for resolving the other pending marriage cases will be more prudently and intelligently answered after this Court resolves the fundamental issue. Finally, this case is free of standing issues.
I expect the petition to be denied for at least three reasons. First, granting review before judgment is an exceedingly rare act reserved for the most compelling circumstances. Second, unlike the pending petitions in the Prop 8 case and in the Defense of Marriage Act cases, the decision below in the Nevada district court upheld the state marriage limitation. And finally, the fact that the Nevada case presents the “fundamental issue” of whether same-sex couples are constitutionally entitled to marry actually cuts against immediate review. The Court usually likes to move in a more minimalist fashion, reserving the largest issues for resolution after more development in the lower courts. With the DOMA cases and the Prop 8 case, it can issue more cautious and theoretically less ambitious opinions to resolve those matters either way, leaving the underlying question of marriage for another time.
The effort by gay-marriage opponents to get the fundamental issue before the Court now is understandable strategically. Gay-marriage opponents are now on a losing streak, both in courts and in elections. Time is not on their side. Delay is not their friend. The trend lines of public opinion are not pointing in their direction. And President Obama’s reelection is unlikely to bring them new allies on the court. The recent win in the Nevada district court, albeit in a remarkably rhetorical and shallow opinion, helps interrupt the narrative of inevitable victory for same-sex marriage around the country. The Supreme Court is unlikely to accept arguments right now for the immediate nationwide imposition of same-sex marriage, a fact known by supporters and opponents alike. Witness the opposition of the Prop 8 litigation team to certiorari in the Perry case, a win limited on its face to California, which is well short of their initial stated goal to bring SSM to the whole country via their lawsuit. The Perry team can count votes on the Court and the votes aren’t there for a nationally applicable pro-SSM ruling. But SSM opponents can count votes, too. And that’s precisely why they would like the “fundamental issue” decided now, with the current justices as the deciders.
The Mexican Supreme Court ruled today that excluding same-sex couples from marriage is unconstitutionally discriminatory. This follows a 2010 pro-SSM ruling that applied only to Mexico City. It’s unclear how broadly this new ruling will apply beyond the Mexican state of Oaxaca, but the news story suggests that individual suits brought in other states will gradually bring same-sex marriage to those jurisdictions.
In Uruguay, the lower house in the national assembly appears poised to approve a bill on Monday that would define marriage as “the union of two parties, regardless of gender identity or sexual orientation thereof at the same terms with the same effects established in the Civil Code.”
Same-sex marriage licenses will begin to issue at midnight tonight in Washington State. Marriage ceremonies will start on Sunday after the state’s obligatory three-day waiting period, which for many gay couples will follow a years-long waiting period.
SSM is now legal in Argentina, Belgium, Canada, Denmark, Iceland, the Netherlands, Norway, Portugal, South Africa, Spain, Sweden and Mexico (where same-sex marriages for now are allowed only in Mexico City but are recognized nationwide). It’s also legal in nine U.S. states – Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont and Washington — and in Washington, D.C.
Tom Goldstein at SCOTUSBlog presents the matter succinctly:
At their Conference today, the Justices will consider petitions raising federal constitutional issues related to same-sex marriage. These are the most significant cases these nine Justices have ever considered, and probably that they will ever decide.
I have never before seen cases that I believed would be discussed two hundred years from now. Bush v. Gore and Obamacare were relative pipsqueaks. The government’s assertion of the power to prohibit a loving couple to marry, or to refuse to recognize such a marriage, is profound. So is the opposite claim that five Justices can read the federal Constitution to strip the people of the power to enact the laws governing such a foundational social institution.
On the eve of the Supreme Court’s consideration of some major gay-marriage cases, Nevada District Court Judge Robert Jones has publicly released a decision (dated three days ago) in which he rejected a challenge to Nevada’s exclusion of same-sex couples from marriage. I haven’t closely read all of Sevcik v. Sandoval, but a quick skim suggests it’s a rhetorically charged decision. Claiming that “the homosexual-rights lobby” has “great political power,” and specifically citing what he called the national media’s support for President Obama’s endorsement of gay marriage, Jones ruled against the parties’ Equal Protection claims. In a press release, Lambda Legal was withering:
This entire decision rests on the ridiculous premise that a ‘meaningful percentage of heterosexual persons’ will decide not to get married if same-sex couples can. Not only is this not true, but it is settled law that the government is not allowed to cater to private biases — which is all that imagining that ‘some couples won’t join this club if those people are admitted’ amounts to. We are confident this ruling will be overturned on appeal to the Ninth Circuit Court of Appeals.
Of course, by the time the Ninth Circuit gets to it, the Supreme Court may have spoken.
For an example of a pure, spontaneous eruption of joy it’s hard to beat the moment we learned that the anti-gay marriage amendment had been defeated in Minnesota. At 1:45 the staff and board of Minnesotans United For All Families, was gathered in a conference room just across from the hall from where thousands had gathered for the main victory party taking place. We had started out with a big lead of 60%-40% early in the night but had seen that lead dwindle hour-by-hour until the “yes” and “no” votes were almost tied. Still, we’d heard that votes in Minneapolis were not yet in and that these should bring good news. So the mood was cautiously optimistic, intense, focused, and nervous.
Richard Carlbom, the campaign manager, stood up on a chair and began addressing the room of perhaps 100 staff, volunteers, and board members. They had given everything they could for months to beat the amendment. Since my phone’s battery was dead, I asked my partner to video what he said. Nobody expected what happened next. Carlbom told us how much we’d accomplished as a campaign. He said he was hopeful we’d win but that the race was still too close to call. Since we had to be out of the convention hall by 2 a.m., he said, we wouldn’t know the result for sure until morning. As he was about to close, he was interrupted by the campaign communications director, Kelly Schwinghammer, who had been busily checking her smart phone for the latest news. “Hey Richard,” she said calmly, ”the AP just called it.” To see the speech and the reaction to the announcement, follow the link below (see especially beginning at about the 2:55 mark):
This is the only video that I’m aware of capturing the precise moment when we learned we’d become the first state ever to defeat an anti-SSM constitutional amendment.
Most of the post-election attention to the gay-marriage ballot fights has focused on the inspiring wins in Maine, Maryland, and Washington state, where same-sex marriages will now be legal. But equally important in the long-term is what happened in Minnesota on Tuesday. Eighteen months ago, when the state legislature voted to place a ban on same-sex marriages on the ballot, I wrote that “on November 6, 2012, Minnesota will become the first state to reject one of these amendments.” Many people (myself included) were skeptical of that prediction. It was more a hope than a forecast. Until midnight or so last night, I still doubted we’d win. Losing Minnesota, for me and for my family and friends, would be a punch to the gut even harder than losing California.
In 30 states, same-sex marriage had never won a popular referendum. Minnesota is reliably blue, but is more socially conservative than people realize. The state GOP had taken both the state senate and house in 2010, which is what permitted the issue to go to the ballot. Minnesota is more religious, with a higher percentage of weekly churchgoers, than places like Maine and California. It’s in the middle of the country, not on one of the coasts. In 2006, neighboring Wisconsin had approved a broader amendment by 59%-41%. Polls on gay-marriage amendments had always been notoriously unreliable, underestimating opposition by an average of seven percent. The public polls never showed us beyond that error rate. Opponents had a devastating, if misleading and exaggerated, message about how gay marriage would mean the loss of religious freedom, kids would be “taught gay marriage,” judicial activists would impose their will, and family structure would unravel. Somehow all of this would be caused by the marriages of people like two of my best friends, a gay-male couple of 25 years living in Minneapolis. Gay marriage advocates had never found the combination to crack the code of these anti-SSM messages.
Over the next 18 months, with the clock ticking toward November 2012, we built a political movement from the ground up. Under the banner of Minnesotans United For All Families, and led by an incomparable tactician and campaign manager in Richard Carlbom and a ferociously smart board chair in Cristine Almeida, we organized a campaign that was unprecedented in size and scope for a ballot fight in the state. We put together a coalition of more than 700 faith groups and churches, political allies across the spectrum (including prominent conservative and libertarian Republicans), labor groups, people of color, and businesses.
I was told we’d never raise a million dollars in Minnesota and that national donors would stay out because of our poor track record around the country and because the Midwest was a lost cause. Some national donors did stay out. But we still raised $12 million. And while hundreds of thousands of dollars were donated by national groups like the Human Rights Campaign and Freedom to Marry, and more by some wealthy individual donors, the vast majority of the money was raised from some 65,000 individual donors in the state.
The message fused conservative and libertarian themes and was honed from the experience of many losses and much research by groups like Freedom to Marry and Third Way. The socially conservative idea was that marriage enhances and cements the shared social values of love, commitment, and strong families. The libertarian argument was that government has no business limiting the freedom of gays and lesbians to make that commitment. We took the issue of gay marriage head-on. We didn’t avoid religion, but instead agued that the religious beliefs of many faiths were being attacked by the proposed ban. Ads featured Catholics, older couples with gay sons and daughters, former opponents of gay marriage, and identified Republicans. The most powerful ad, which closed the campaign, excerpted an anti-amendment speech by wounded Iraq war veteran and married father John Kriesel. Kriesel, a Republican state representative, recounted the sacrifice by Cpl. Andrew Wilfahrt, a gay soldier killed-in-action in Afghanistan. The campaign’s messaging was informed by Grove Insight and the ads were executed by 76 Words.
Money and messaging were not the only important factors. In the past, advantages in money and sophistication were not enough. In earlier contests, intensity was always on the anti-gay-marriage side. My anecdotal experience is that the intensity gap was erased in Minnesota and, I suspect, in the other 3 states that fought out the issue this year. The campaign against the Minnesota marriage ban was infused with a level of dedication and energy that must be rare in politics. That intensity came from young people, and especially from heterosexuals, who seemed as committed as gay activists to beating the amendment. There is no question that a generational shift has occurred and that that shift is moving itself up the demographic ladder. It’s not a “gay marriage” issue anymore. For increasing numbers of Americans, it’s a marriage issue.
In the last week, the Minnesotans United campaign made 900,000 calls to voters; it knocked on the doors of 400,000 homes; it enlisted 27,000 volunteers. I don’t know what the comparable numbers were on the other side, but Minnesota had never seen anything like it.
This has been a long time coming. When gay couples sued to get married, opponents laughed at them and courts dismissed them. When they won a few victories in court, opponents countered that the issue was appropriate only for legislative decision. When legislatures started approving gay marriages, opponents argued that the matter shouldn’t be forced on people by elite politicians. “Let the people decide” became their mantra in Minnesota and around the country.
Yesterday the people of four states decided. They affirmatively voted for gay marriage in three states, and rejected the proposed ban in Minnesota by 52.4% to 47.6%. (For county-by-county results, see this site.) In a fifth state, Iowa, they voted to retain a supreme court justice who had been politically targeted for voting in favor of a gay-marriage claim. The result, I expect, will be a profound change in democratic momentum. At the very least, it was the best single day yet for the cause of allowing same-sex couples to marry.
Winning means more state legislators willing to vote for gay marriage. Winning means a greater willingness to take this issue to the ballot in more states, including some where we’ve previously lost. Winning means more investment by national donors. Winning means more enthusiasm and energy, more volunteers, more effective messages, more confidence. Winning at the ballot box had become a Sisyphean task. Again and again, we’d get tantalizing close to the summit, only to have the boulder fall back to the bottom of the hill. And then, as we looked down to take up the task once more, we’d be taunted for having failed.
Victor Hugo said that there is nothing as powerful as an idea whose time has come. The idea that marriage is good for all families, gay and straight, is taking hold in a religiously devout state in the middle of the country. Winning Minnesota, with the support of 1.5 million of our fellow citizens, means that our time is coming.
Nine down, 41 to go.
At the Federalist Society’s Supreme Court blog, I offer some thoughts on the Second Circuit’s decision in Windsor v. United States, which held the Defense of Marriage Act unconstitutional. The post concludes with a thought on what direction the Supreme Court might take when it confronts the constitutionality of DOMA:
Even if the Court is inclined to strike down the Defense of Marriage Act, it’s more likely the Court would do so in the more limited and incremental way suggested by the First Circuit than in the more ambitious way advanced by the Second Circuit. The federal-only rationale of the First Circuit focuses on what possible interest the federal government could have in denying equal treatment to a subset of married couples. It does not necessitate a ruling that state governments must equally recognize same- and opposite-sex couples as married. For a Court that wants to leave the marriage debate open in the states, but at the same time wants to ensure that the federal government does not inject itself into that debate with unusual discrimination, that may be a tempting option.
UPDATE: Ed Whelan argues that the analysis of the First Circuit in Massachusetts v. Dep’t of HHS would also result in the invalidation of state laws confining marriage to opposite=sex couples.
David Blankenhorn wrote the book on opposition to gay marriage. It was highly praised by the likes of Robert P. George, Stanley Kurtz, and Maggie Gallagher. It was, I wrote at the time, the best single book making the case against SSM. Later, David was the expert witness who defended Proposition 8 in the constitutional challenge to that amendment – a case now at the certiorari stage before the Supreme Court. He spoke and debated and blogged prolifically against gay marriage. But over time his opposition softened.
In June he announced that he now supported marital protection for gay families. Others, like Charles Murray and David Frum, had previously changed their minds on gay marriage. But David’s defection from the anti-SSM cause was by far the most significant and damaging. He was a leading intellectual voice for anti-gay-marriage activists, a serious and longtime family scholar who could not be dismissed as a simple homophobe. David explained his change-of-heart in an op-ed in the the New York Times. It’s no secret that his think tank, the Institute for American Values, paid a huge cost in lost donors when he publicly revised his view.
Now David has gone a step further, cutting an ad in opposition to the Minnesota marriage amendment, which would constitutionally limit marriage to opposite-sex couples. Says David:
I’ve spent a decade or more fighting gay marriage. Is this helping to achieve the goal that I really want to achieve? Is this helping the society renew its commitment to the marital institution? Is this helping more children grow up in a stable two-parent [homes]? It wasn’t.
Produced by Minnesotans United For All Families (of which I’m the Treasurer), the video can be seen here:
In a 2-1 opinion by Chief Judge Dennis Jacobs, a conservative appointed by the first President Bush, the Second Circuit has joined the unanimous chorus of federal courts striking down Section 3 of the Defense of Marriage Act, which bars federal recognition of same-sex marriages legalized by individual states. The dissenter was Judge Chester Straub, who was appointed by President Clinton. Applying intermediate scrutiny to sexual-orientation classifications, the court held that Section 3 violates the Equal Protection Clause. The decision comes as the Supreme Court is weighing whether to grant certiorari to determine the constitutionality of the Act. I may have more to say after I’ve had a chance to read the opinion.