In 1990, three same-sex couples sued for the right to get married in Hawaii. You may have heard of the case: Baehr v Miike. The statutes governing marriage in Hawaii didn't specifically restrict it to mixed-sex couples and the Hawaii Constitution specifically protects equal rights on the basis of sex. Ergo, gay people should have the right to get married. In the process of hearing the case, a constitutional amendment was put in place that restricted marriage to mixed-sex couples, rendering any decision by the court moot.
This led to a panic among the rest of the states. If Hawaii could come that close to letting gays get married, then it was only a matter of time before some other state did so. A bunch of states then started passing laws and amendments that restricted marriage to mixed-sex couples only if they didn't already have them and the US Congress passed the Defense of Marriage Act: DOMA.
Now, the majority of Democrats voted for DOMA. So did the majority of Republicans. But who voted against it?
Well, there was Bernie Sanders in the House, an Independent. However, Sanders' nay vote wasn't based upon his support for marriage equality but rather because he felt it was something that should be left to the states. As his wife and Chief of Staff, Jane Sanders, told the AP in 1996: "We’re not legislating values. We have to follow the Constitution. And anything that weakens the Constitution should be (addressed) by a constitutional amendment, not by a law passed by Congress."
I'll get back to that in a moment.
There was Steve Gunderson in the House, a Republican. However, Gunderson was gay. Not surprising that the gay Republican might vote against a law banning him from getting married.
And every other congresscritter who voted against it was a Democrat. 65 in the House and 14 in the Senate. Biden was one of those voting for DOMA.
I'll get back to that in a moment, too.
Notice the breakdown: The Democrats were the ones voting against DOMA. Yes, the majority of them voted for it, but they were also the ones voting against it.
Now, Clinton, who signed DOMA, also put Ruth Bader Ginsburg and Stephen Breyer on the Supreme Court. Remember that.
Obama's record on marriage equality is checkered. When he was in Illinois, he was for it. In 1996, in a questionnaire put to him by Outlines, he responded, "I favor legalizing same-sex marriages, and would fight efforts to prohibit such marriages." But just two years later, in 1998, his response to Outlines is that he's "undecided" about marriage equality and any efforts to overturn Illinois' law banning it. In 2004, Obama claims he is for civil unions but that marriage is not a fundamental right: "Marriage is between a man and a woman, but what I also believe is that we have an obligation to make sure that gays and lesbians have the rights of citizenship that afford them visitations to hospitals, that allow them to transfer property to each other, to make sure they’re not discriminated against on the job.... We have a set of traditions in place that I think need to be preserved." An odd choice for someone who is the product of an interracial marriage and would have the exact same arguments put against their marriage as he is putting forth for gay couples. That same year, he states his opposition to DOMA but reaffirms his opposition to marriage equality.
But in 2006, he wrote in _The Audacity of Hope,_ "And I was reminded that it is my obligation, not only as an elected official in a pluralistic society but also as a Christian, to remain open to the possibility that my unwillingness to support gay marriage is misguided … that Jesus' call to love one another might demand a different conclusion." However, in 2007, he still throws his support behind civil unions.
This is because states had started providing the separate-but-not-equal contracts of "civil union," starting in Vermont. Sanders approved of it but again, it was based in a state-originated result rather than a national, fundamental right. These unions did not provide all the rights of marriage, they were managed differently, and since they only applied to the state in which they were issued, couldn't be taken anywhere else in the country or overseas.
And yet, gay people entered into them. Pay attention to that. Despite the fact that it wasn't equal treatment under the law, gay people still entered into civil unions. Having some protections was better than having none at all.
They didn't stop fighting, though. Despite supposedly "liberal bastions" like California which passed laws restricting marriage to mixed-sex couples. And lawsuits were filed and we ended up with Obergefell v Hodges.
By this time, Obama is in the White House and he has put Kagan and Sotomayor on the Supreme Court.
And interestingly, Obama is claiming he has "evolved" on the subject.
Why?
Because Biden has forced his hand. Remember when I asked you not to forget that Biden voted for DOMA. During the 2008 VP debate, he said, "Barack Obama nor I support redefining from a civil side what constitutes marriage. We do not support that. That is basically the decision to be able to be left to faiths and people who practice their faiths the determination what you call it." Well, now he's fighting to have it repealed. Just four years after that 2008 statement, he goes on _Meet the Press_ and says, "I am absolutely comfortable with the fact that men marrying men, women marrying women, and heterosexual men and women marrying one another are entitled to the same exact rights, all the civil rights, all the civil liberties." Obama had signed the legislation to overturn DADT, but it was Biden who was at the forefront for marriage equality.
And so when Obergefell got before the court, we had four justices who had been appointed by problematic Presidents. Kennedy, appointed by Reagan, was the 5th vote. This despite the fact that Obergefell is precisely the same case as Loving v Virginia, the case that overturned miscegenation laws that affected Obama's parents. It should have been unanimous like Loving.
But you take what you can get. Despite the fact that it had been 25 years since Baehr v Miike, gay people had continued the fight, even accepting non-ideal solutions from candidates who fought against equality, because the fight is never over.
Not even now. Despite the fact that marriage equality has been the law of the land for five years, the fight is not over. Because Trump got elected, Scalia is now Gorsuch and Kennedy is now Kavanaugh. What was once a tenuous 5-4 decision that would favor equal rights for gay people is now solidly 5-4 against. And just like after Loving, there are cases seeking to undo the effect of Obergefell.
Texas has passed a law saying that yeah, gay couples can get married in Texas, but they don't have to honor that contract with any of the rights that mixed-sex married couples get. The Texas Supreme Court upheld the law, saying in the case of Pidgeon v Turner, "the Constitution requires states to license and recognize same-sex marriages to the same extent that they license and recognize opposite-sex marriages, but it did not hold that states must provide the same publicly funded benefits to all married persons."
That case has been up to the Supreme Court which didn't laugh it out of existence but instead sent it back down. That was in 2017 when Kavanaugh wasn't on the court. It only takes four justices to take up a case. So despite the fact that we have four justices on the court, they didn't want to take it up. Now, I'm enough of a judicial wonk to understand it a bit: Jumping to the SCOTUS the way Houston did is rushing things a bit. But, I also understand that the ramifications involved are significant and have national significance. The law remains in effect and Texas couples are being harmed as we speak while we wait for this case to make its way up the court system.
Where it will be met by Thomas, Roberts, Alito, Gorsuch, and Kavanaugh.
Do you really think they're going to say that married couples are married couples no matter what and you can't deny one couple if you allow another? The "religious freedom" cases are coming up. Do you really think they're going to side with civil rights?
So that's where we are now, but with regard to different issues: You have a candidate that supports a lot of what you agree with but isn't your preferred candidate (to put it diplomatically). Are you going to vote in such a way that the candidate that actively fights all the things you claim you value wins? Or do you realize that this is more about just this one election, that there is more at stake, and vote in such a way that you get to keep the progress you've made and keep working to make more?
Democrats used to be against marriage equality, on the whole. Now it's part of the party platform.
And if Sanders' opinion is allowed to evolve on the question, why can't Biden's? That's the other point I wanted you to remember. People can change. If we take back the Senate and keep the House, it's possible to craft bills that folks like Sanders and Warren would approve of and do we really think that Biden would veto them?
Because Trump will. By voting to ensure Trump wins, you ensure that you never get anything you want. He has already engaged in a massive packing of the courts. He has destroyed our governmental institutions that protect us. We are literally in the middle of a pandemic that was exacerbated because he fired the CDC pandemic disease personnel in China and the Global Health Security and Biodefense unit of the NSC.
Trump is literally killing us.
Don’t let him keep killing us because you can't get the preferred candidate you want.
The candidate who needed to evolve himself.