Note: The original title of this piece was
BREAKING: California Supreme Court legalizes same-sex marriage!
But as it is no longer Sunday and someone might wake up tomorrow morning and see this diary on a Monday when such an announcement would at least be theoretically possible, it seems appropriate to undo the title now
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Such were the headlines on May 15th, 2008.
Three years ago today the California Supreme Court declared, in In Re: Marriage Cases:
The right to marry is not properly viewed simply as a benefit or privilege that a government may establish or abolish as it sees fit, but rather that the right constitutes a basic civil or human right of all people.
Offering a legal relationship called "marriage" to opposite-sex couples while consigning same-sex couples to "domestic partnerships" impinges upon the fundamental right to marry by denying such legal relationships equal dignity and respect.
Three years ago today I was proud of my state for the first time since I had moved here in 1999. In that time they had elected a Governator, and the State Legislature was (and is) a bunch of clowns. But on May 15th, 2008 there it was, embodied in the proclamation of the State's highest court:
-- Discrimination on the basis of sexual orientation was wrong, and strict scrutiny would be applied to any attempt to do so.
-- Equal protection under the law meant just that.
Of course it all quickly went to hell. Proposition 8 came. Straus v. Horton made it official -- you actually could put discrimination directly into the California Constitution -- who knew?
Perry v. Schwarzenegger happened. Judge Vaughn Walker issued his decision declaring Proposition 8 unconstitutional in the eyes of the US Constitution, and there was much rejoicing -- for a day -- until the stay was issued.
And so here everyone sits -- in limbo -- waiting for the California Supreme Court to rule on a question of standing asked of it by the Ninth Circuit Court of Appeals so that they can rule (or not) on an appeal of Walker's ruling that, someday -- perhaps not until we are all dead -- will finally reach and be decided by the US Supreme Court. The suspense would make a snail bored.
But in those three years the world has changed.
- Three years ago, the majority of Americans did not believe that same-sex marriage should be legal. By a significant margin. Now they do.
- Three years ago no one would have envisioned the President and the Attorney General of the United States declaring that gay and lesbian discrimination cases should be subject to heightened scrutiny and that therefore the Defense of Marriage Act was unconstitutional. But they did.
- Three years ago, shows like Glee and a popular culture accepting of LGBT equality was in its formative stages. Now it's mainstream (50,000,000 views!) and the homophobes attack Glee and other shows with gay threads with righteous anger, denouncing the fact that such popular and culturally important shows support "the homosexual agenda." (Little do they know how right they are -- just replace the scare quotes with "basic fairness.")
What hasn't changed in three years is that the homophobes are still winning most of the political battles. Despite majority support for marriage equality and overwhelming supermajority support for Non-Discrimination in the Workplace (ENDA), the opposition is still able to influence politicians far more than the LGBT community and its allies. Even with a quasi-victory on Don't Ask, Don't Tell nearly complete and supermajority popular support it would not be surprising if a current majority of the House of Representatives would vote to repeal the repeal.
What to do about this is the $64,000,000 (inflation, you know) question. The LGBT community needs to exploit the new social reality, figuring out how to translate it into political power. That such has not been done is empirically obvious: despite popular majorities, equality failed its first two tests in 2011 -- spectacularly in Maryland and more quietly in Rhode Island.
Now the opportunity arises again. In New York State, the stars may be aligning to produce a successful marriage equality vote in the legislature after the failure in 2009.
Will a coalition of LGBT advocacy groups, determined political allies such as Governor Cuomo and Senator Gillibrand, and socially liberal Republican moneymen be able to exert enough pressure to overcome the religious right? Or will there be, as with California, three more years and counting until equality?