Legal Commentary

There are now 30 states whose state constitutions ban same-sex marriage. (Arizona and Florida also adopted such provisions last week.) But there are still two states, Massachusetts and Connecticut, that have same-sex marriage. A proposal to call a convention to amend Connecticut?s constitution, which might have abolished such marriages there, was defeated. There are also five states that give same-sex couples all the rights of married couples: New Hampshire, New Jersey, Oregon, Vermont ? and California, whose domestic partnership law was left undisturbed by Proposition 8. That?s a big chunk of the country, comprising a fifth of the population; it will become a quarter of the population if New York joins them.*

The long-term trend favors same-sex marriage. Public opinion increasingly regards homosexuality as an acceptable lifestyle and supports some recognition for gay relationships. Proposition 8 passed with 52% of the vote. A similar provision eight years ago got 60%.

It is revealing that Amendment 8, which was drafted by the religious right, leaves California?s domestic partnership law untouched. I?ve had candid conversations with religious right activists about domestic partnership laws. They loathe and fear those laws, which give same-sex couples a recognized status in society (even if it is a second-class status). They think that, if domestic partnership laws are in place for a few years, gay activists will return to the legislature and ask, why don?t you just call our relationships marriages? And by then no one will remember any more why it was important not to.

It must have been terribly painful for them to write such a relatively modest provision. I?m sure there were internal arguments about it. In other states, they have produced astonishingly broad bans on any recognition of same-sex relationships. Texas now has a provision in its constitution declaring that the state and its subdivisions ?may not create or recognize any legal status identical or similar to marriage.? This is so clumsily drafted that, taken literally, it abolishes all marriages in Texas. (I discuss other, similarly broad state provisions here.)

Why did they restrain themselves in this way? The answer is obvious: they didn?t think that a broader provision could pass. Even the religious right, then, recognizes the direction that the country is moving. Proposition 8 is a nasty setback, but it doesn?t change the long-term trend. Same-sex marriage is the future.

* Based on U.S. Census population figures for 2007: U.S., 301,621,157; California, 36,553,215; Massachusetts, 6,449,755; Connecticut, 3,502,309; New Hampshire, 1,315,828; New Jersey, 8,685,920; Oregon, 3,747,455; Vermont, 621,254. The five states combined add up to 60,875,736, or 20% of the U.S. New York has a population of 19,297,729. All figures are taken from http://factfinder.census.gov.

Full post as published by Balkinization on November 08, 2008 (boomark / email).