In 1970, two gay students at the University of Minnesota attempted to obtain a marriage license. When they were denied, they took their case to the state’s court system. When the suit reached Minnesota’s Supreme Court, the students lost.
Forty years later, the push for basic marriage rights for same-sex couples has eclipsed employment non-discrimination, hate crimes legislation and repeal of the “Don’t Ask, Don’t Tell” military policy to become the number one advocacy issue of national LGBT organizations and influential LGBT activists.
There’s no doubt that civil marriage — and the plethora of federal, state and local rights and privileges that come with it — would allow same-sex couples to better care for themselves and their children. Full marriage equality would also further assimilate the gay community into mainstream American society.
On May 15, the push toward these ideals was given an enormous boost when the California Supreme Court ruled unconstitutional state laws limiting marriage to one man and one woman. After surviving a right-wing attempt to have a stay placed on the decision, on June 16 at 5 p.m., the ruling becomes effective and same-sex couples will begin to marry.
Massachusetts already allows same-sex marriage. New York doesn’t currently permit them, but the State does recognize marriages performed in other states, Canada, Spain and The Netherlands.
For LGBT citizens in California and Massachusetts, it might seem as though the battle is over (analysts say it will be hard for anti-gay forces in California to pass the constitutional marriage amendment that will appear on the Nov. 4 ballot). For others, though, the battle for marriage equality has just begun.
“As California goes, so goes the nation,” San Francisco Mayor Gavin Newsom, an ardent supporter of LGBT equality, told hundreds of citizens shortly after the ruling was published. “It’s inevitable. This door’s wide open now. It’s going to happen, whether you like it or not.”
Despite Newsom’s optimism, LGBT citizens in the Carolinas know that because of the California marriage ruling’s potential to generate backlash across the country, the struggle to end basic inequities — much less an end to marriage discrimination — might be more difficult in the short term.
Backlash at home
“The California decision is a historic step forward for our movement, but it will also spark backlash here in North Carolina,” Equality North Carolina Executive Director Ian Palmquist told Q-Notes. “Proponents of the discriminatory, anti-marriage amendment in North Carolina are using the California decision to build support.”
However, even though Palmquist feels the California ruling is motivating religious conservatives in North Carolina, he still has doubts that they will be successful in their long campaign to get a discriminatory constitutional amendment through the N.C. General Assembly and onto the state ballot.
“I’m sure we’ll see the anti-gay industry using this issue to rile up their base and raise money, but their leaders know they stand little chance of passing the bill this year,” he said. “They haven’t even re-introduced the bill in the state House this year, as they have in each of the last four years.
“In the long-term [the ruling] will show North Carolinians that married same-sex couples are simply living their lives and not affecting anyone else’s marriage,” he added.
A bill for the marriage amendment has been submitted in the N.C. Senate, where extremely anti-gay state legislators like its sponsor, Sen. James Forrester (R-Gaston), intend to wage legislative war against LGBT citizens. While they might not be successful in passing the amendment, Forrester and his allies will likely bolster enough support to continue their assaults on other progressive pieces of legislation.
Palmquist said legislators and community leaders in North Carolina’s coalition of progressive causes are ready to do battle.
“We refuse to allow these right-wing attacks to prevent us from working on proactive issues that are up this session like safe schools, HIV prevention and treatment, and addressing the problems with REAL ID,” said Palmquist.
Legal questions abound
In South Carolina, Attorney General Henry McMaster joined with eight other state attorneys general to request the California Supreme Court stay its ruling. Because the Court declined, the worry for McMaster and the others is that California, unlike Massachusetts, does not prohibit out-of-state couples from marrying.
The friend of the court brief submitted by the attorneys general outlined their concern that same-sex couples from around the nation will travel to California and get married, then return home and cause legal confusion as they attempt to have their weddings recognized.
In reality, their biggest fear is of losing their entire movement. When newly married LGBT couples come back to their home states and sue for recognition of their civil marriages under the U.S. Constitution’s Full Faith and Credit Clause there will be no stopping the spread of marriage equality.
It is a legal strategy that has been successfully used before. In August 2007, the 10th Circuit Court of Appeals ruled that Oklahoma government agencies must recognize same-sex parents with adopted children from out-of-state. The federal Court of Appeals ruling was based, at least in part, on the Full Faith and Credit Clause.
“I think [McMaster] is seeing the handwriting on the wall, as officials are in every state,” SC Equality Executive Director C. Ray Drew told Q-Notes. “When a cumulative mass of states pass marriage laws or rule that same-sex marriage is legal, federal intervention will become the issue in much the same way that Loving v. Virginia spurred federal intervention for interracial marriage.”
The State of Oklahoma decided not to appeal the adoption case. If they had, the issue would have landed in the lap of the U.S. Supreme Court, something LGBT activists expect will happen sooner or later with marriage.
“If a Democrat is elected as President, they could appoint as many as three Supremes in 8 years,” added Drew. “No one of sound mind doesn’t expect this to end up in the Supreme Court in 10-15 years, maybe sooner.”
Activists, most notably those who work in rural areas and in the South, understand fully the threat of conservative backlash. Unprecedented blowback — in the form of a rash of federal and state laws designed to limit marriage recognition — followed the 1996 Hawaii court ruling that flirted with gay marriage and ultimately led to legalization of civil unions in that state. Today, “Defense of Marriage” acts are commonplace in states across the nation.
However, Lara Schwartz, legal director and chief legal counsel for the Human Rights Campaign, told Q-Notes she thinks the chance for backlash this time around is slim.
“It’s not a foregone conclusion that [the Massachusetts marriage ruling) had an impact in 2004,” she said in an email. “That said, we’re in a new place. Several states have passed civil unions since 2004, loving couples in Massachusetts have shown the country that their families are just like anyone else’s, and the hysteria that the right-wing tried to create is gone.”
Schwartz added that the Federal Marriage Amendment is “not going to be a question in this presidential election.” Mainstream America, she said, does not want to hear about it.
“The right-wing has always favored this amendment and will continue to do so,” Schwartz claimed, “but for most people, this is not a priority.”
She believes, as do many other political analysts, that American voters are more interested in health care, the economy, global warming and the war.
“In poll after poll,” she said, “Americans say loud and clear that this discriminatory amendment is simply not their priority.”