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by Dana Rudolph
One leading advocate called 2011 an “epic” year for marriage equality. Was it?
While only one state – New York – enacted full marriage rights for same-sex couples, it was the most populous state to do so. Five other states also moved closer to marriage equality than ever before. Public opinion shifted dramatically towards supporting equality. And the Obama administration announced that it no longer considers a key part of the Defense of Marriage Act constitutional.
On the negative side, however, three states failed to pass marriage equality bills that had been introduced in their legislatures, and two states passed bills to put measures on their ballots in 2012 that will seek to ban marriage for same-sex couples under their state constitutions.
Despite the negatives, Evan Wolfson, president of the national Freedom to Marry group, said in an interview that 2011 was “an epic year of real transformation.”
On the federal level, Attorney General Eric Holder wrote a letter to Congress in February, stating that the administration believes Section 3 of the Defense of Marriage Act is unconstitutional and will no longer defend it.
Section 3 of DOMA states that the federal government will not, for any federal purposes, recognize the marriages of same-sex couples.
Holder’s letter said the administration believes laws disfavoring persons based on sexual orientation should have to pass the most stringent judicial review – heightened scrutiny. And it said the administration would argue so in two cases challenging DOMA in the 2nd Circuit.
LGBT legal advocacy group Lambda Legal, in its December “State of the Law 2011” report, called Holder’s letter “game changing.”
Wolfson said it represented “an immense historical shift.”
Another sign of this shift, he said, was the repeal of “Don’t Ask, Don’t Tell,” the military’s ban on openly gay servicemembers. DADT repeal will help fuel the marriage equality effort, Wolfson said, “because Americans are now going to see the women and men serving our country as openly gay members of couples and openly gay members of families.”
New York, New York
On the state level, the biggest win in 2011 was in New York, where the legislature passed a marriage equality bill in June. When Governor Andrew Cuomo (D) signed the bill, he doubled the percentage of same-sex couples living in states that allow them to marry. New York is also the only state to have passed marriage equality through a Republican-led legislative chamber, its state Senate.
Governor Cuomo, by adding his vocal support to the bill, “put his political capital on the line,” Wolfson said. His success prompted politico.com to call him a “national contender” and leader of the Democratic Party’s progressive base. The Washington Post said his triumph made him “a first among equals when it comes to the jockeying for the 2016 Democratic presidential nomination.”
“The freedom to marry went from being a perceived and presumed ‘third rail’ that politicians ran from to now being a pathway to political gain,” said Wolfson.
Five other states came closer to marriage equality than ever before. Maryland for the first time passed a marriage equality bill out of a legislative chamber, its Senate, although the measure fell short of winning in the House. And Delaware, Hawaii, Illinois, and Rhode Island each passed civil union legislation.
But there were disappointments. In Colorado, a civil union bill was killed on a party-line vote in the Republican-led House Judiciary Committee, after passing the Democrat-controlled Senate.
And in Rhode Island, the civil union bill disappointed many because a bill for full marriage equality had been on the legislature’s agenda. It was dropped after it failed to gain enough support, despite large Democratic majorities in both chambers and Gov. Lincoln Chafee’s (I) promise to sign it.
LGBT groups were also disappointed with a provision in Rhode Island’s civil union bill providing extensive exemptions on religious grounds for those who don’t wish to recognize those unions. Chafee himself said the civil union law “fails to fully achieve” the goal of providing same-sex couples with equal rights.
Lawsuits to equality
Two states saw progress in lawsuits that could lead to marriage equality. In New Jersey, marriage equality advocates have sued the state, claiming that the state’s existing civil union laws do not provide them with full equality – an equality the state Supreme Court said, in October 2006, is guaranteed by the state constitution.
In California, a three-judge panel of the federal Ninth Circuit Court of Appeals heard oral arguments Dec. 8 on procedural matters related to the case to determine the constitutionality of Proposition 8, the state’s ban on marriage for same-sex couples. Regardless of the outcome, the case will almost certainly be appealed to the full 9th Circuit court and/or the U.S. Supreme Court.
Three states successfully played defense in 2011.
Iowa, New Mexico, and Wyoming held firm against attempts to pass bills for ballot measures that sought to ban marriage for same-sex couples under their state constitutions. If passed, Iowa’s bill would have taken away the right to marry that same-sex couples gained in 2009.
But there were some clear setbacks in 2011 as well.
2011 setbacks, polling progress
North Carolina and Minnesota passed bills for ballot measures in 2012 that seek to ban marriage for same-sex couples under the state constitutions. And Indiana and Pennsylvania started the process for such ballot measures, which could see further action in 2012.
In Maine, however, LGBT advocates gained enough signatures to place a measure in favor of marriage equality before voters on the 2012 ballot although advocates in California and Oregon decided to postpone such attempts and continue to build support.
These ballot measures could be impacted by what was perhaps the most significant win in 2011: a shift in public opinion towards support for marriage equality.
Support for marriage equality nationwide rose about one percent per year between 1996 and 2009, but jumped to a rate of five percent per year in 2010 and 2011, according to a July analysis of over a decade’s worth of polling data by Joel Benenson, President Barack Obama’s lead pollster, and Dr. Jan van Lohuizen, President George W. Bush’s lead pollster. Freedom to Marry commissioned the study.
The average level of support for marriage equality was 41 percent in 2009, but 51 percent in 2011, based on four leading national polls – CNN-ORC International, Gallup, Pew, and Washington Post-ABC News.
This change is driven in part by “overwhelming generational momentum,” Wolfson explained, with almost 70 percent of voters under 40 supporting marriage equality.
But the analysis also concluded that since 2006, support has risen 15 percent among seniors, 13 percent among Independents, and 8 percent among Republicans.
Additionally, it found that marriage equality supporters now hold their views as strongly as opponents, which was not the case in the past.
“The politics of the freedom to marry have changed dramatically, as has public support,” said Wolfson.
All told, he said, the events of 2011 mean that “We now have real wind in our sails as we go forward.”