Monday, May 20, 2013

On Gay Marriage, No Walk-Off Win Yet

      Gay marriage advocates were celebrating last week as though their favorite baseball player had just smashed a walk-off grand slam home run against the team’s most hated rival. In the span of less than two weeks, three more states — Rhode Island, Delaware and Minnesota — completed the enactment of laws granting full-fledged marriage rights to gay and lesbian couples.
      There was reason to celebrate. The latest additions bring to 13 the number of marriage equality jurisdictions in the United States: 12 states plus the District of Columbia. Ten years ago, there were none; the pioneering decision by the Massachusetts Supreme Judicial Court to constitutionalize gay marriage rights was still six months away.
      Around the world, only two countries — the Netherlands and Belgium — recognized same-sex marriages a decade ago. Today, 15 countries have national laws allowing gay and lesbian couples to marry. Brazil may now be the 16th unless the national Congress or Supreme Court reverses the decision by the National Judicial Council last week (May 15) requiring notaries to allow gays and lesbians to wed.
      The advances for gay marriage advocates are easy to exaggerate, however. In the United States, about 57 million people live in marriage equality jurisdictions, but more than 250 million others live in states where gays and lesbians cannot marry. Counting Brazil, around 500 million people live in marriage equality countries, but that is a small fraction of the worldwide population of 7 billion.
      Advances on other gay rights issues are also incomplete. Twenty-one states and the District of Columbia have laws prohibiting discrimination against gays or lesbians in the workplace. But in the 29 other states, it is still legal to fire or refuse to hire someone on the basis of sexual orientation. And Congress is nowhere close to enacting the Employment Non-Discrimination Act (ENDA) to make anti-LGBT discrimination in the workplace illegal nationwide.
      Despite the renewed attention over the past few years to the problems of anti-gay bullying in schools, only 13 of the 49 state laws that prohibit bullying in the schools specify coverage of anti-LGBT harassment or intimidation. A different but partly overlapping list of 13 states plus the District of Columbia have laws prohibiting discrimination in schools on the basis of sexual orientation; the rest do not.
      From the opposite perspective, six states have laws that prohibit school-based instruction of LGBT rights and issues in a positive manner. Texas, which has an outsized influence on school textbooks, is one of them. In effect, a Texas school teacher risks breaking the law by telling pupils about Harvey Milk’s political activism or Walt Whitman’s gay identity. California is unique in the country in requiring schools to teach gay history.
      Gay rights advocates face a wall of Republican Party opposition in making further progress at the state level. Republicans control both legislative chambers in 26 states and at least one chamber in five others. Nebraska’s unicameral chamber is nominally nonpartisan but reliably conservative.
      In those states, gay marriage is a loser, at least for now. In Minnesota, only one GOP state senator joined in the final vote last week clearing the gay marriage bill for Gov. Mark Dayton to sign. Dayton and the other governors who have signed gay marriage into law are all Democrats except for Rhode Island’s Lincoln Chafee, a former Republican turned independent. And even in blue states, gay marriage is not assured of legislative passage. In Illinois, gay marriage supporters appear to be shy of the votes needed to complete passage of a bill in the Democratic-controlled state House of Representatives.
      The same partisan division obtains in Washington. President Obama and the Democratic Party support gay marriage rights; the Republican Party and its leaders are opposed. House Republicans took up defense of the Defense of Marriage Act (DOMA) after the Obama administration concluded the law is unconstitutional. Republicans are all but completely absent as cosponsors on any of the gay rights measures in Congress, including ENDA. And GOP supporters of immigration reform say any provision to help binational same-sex couples will kill the bill.
      The Supreme Court may be on the verge of giving gay marriage supporters one or possibly even two legal victories. In the DOMA case, United States v. Windsor, the liberal justices plus Anthony M. Kennedy appeared ready during oral arguments March 27 to strike down the law. A ruling to that effect would get the federal government out of the business of discriminating against same-sex couples legally married in their own states.
      In a second case, Hollingsworth v. Perry, the court may either strike down California’s gay-marriage ban, Proposition 8, or leave in place the federal appeals court decision that ruled the measure unconstitutional. Either action would bring marriage equality to California and its 38 million people. But Supreme Court watchers doubt that the justices are ready to constitutionalize marriage rights for same-sex couples nationwide.
      In short, for gay marriage — and gay rights generally — the great work has only begun. Public opinion has shifted: polls now uniformly show a majority of Americans favor allowing gays and lesbians to marry. But the political process lags — and will continue to lag until more Republicans decide to help form a bipartisan consensus. Until then, gay rights fans can cheer, but the game is not won.

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