Understanding the gay marriage debacle

Same-sex marriage efforts have taken a big hit. What went wrong, and what can be done about it

by Steve Charing
Senior Political Analyst

The recent spate of unfavorable court decisions concerning the drive to achieve marriage equality for same-sex couples seemingly has thrown a wet blanket over the movement. Discouraging rulings particularly in New York and Washington—both states with liberal leanings—makes some wonder if same-sex marriage will ever exist anywhere in the U.S. except for Massachusetts (and that’s not a sure thing anymore).

Activists were hoping that the judicial branch would provide relief where the legislative and executive branches have failed us so far. But with these recent decisions in a half dozen states, same-sex marriage advocates must re-group and re-think their strategy.

Despite the fact there has been a favorable trend in recent years towards acceptance of gays by the general population, it is becoming clear why same-sex marriage did not gain the necessary momentum for widespread legalization. Here are some of the reasons:

The issue jumped out in front of the education. When the Massachusetts Supreme Judicial Court ruled in February 2004 that the state’s constitution illegally discriminated against gays and lesbians by denying them marriage, the question of gay marriage was thrust into the spotlight. Before pro-marriage individuals and organizations could mobilize, opponents went on the offense and successfully framed the debate as "protecting marriage from activist judges." Marriage was a lightening rod, and the opposition was determined to make a stand.

This strategy gained traction during the 2004 presidential campaign, and constitutional amendments were placed on the ballots of 11 states to ensure that "activist judges" don’t do to their states what they did to Massachusetts. All won.

To educate the public and mitigate their reflexive opposition, same-sex marriage proponents have failed to convince the general population that marriage was more threatened by heterosexuals with their 50 percent divorce rate, adultery, children born out-of wedlock, etc. than by what gays and lesbians could ever do.

They have not sold the public that the objective was civil marriage—marriage that can be performed in city halls or by town clerks—and they were not imposing marriage rituals on religious institutions.

They have not persuaded the country that same-sex marriage was legitimate on the grounds of equality and fairness—key principles in the founding of our nation. Over 1,100 rights and benefits are being denied gay couples and families simply for being who they are.

Same-sex marriage advocates have not acceptably discredited the myth that the "one man, one woman" concept existed since the beginning of time and instead point out that the institution of marriage evolved over centuries. They failed to successfully expose those in the religious right of cherry picking biblical passages to suit their homophobic needs while they blatantly ignore or dismiss a host of other "sins" contained in Scripture.

They also haven’t sufficiently argued that marriage is not about procreation—it’s about commitment. Tens of thousands of legally married couples choose not to have children or they cannot have them. Yet their marriage licenses remain valid.

We don’t have the numbers. The lgbt community is, in fact, a tiny minority within the U.S. population. While many gay activists claim we represent 10 per cent, we’d be lucky if the actual total amounts to half of that. Moreover, the number of lgbt people engaged in the debate is even smaller. Many gays and lesbians have not been motivated to be active on this issue because: 1) they don’t see themselves as ever being in a long-term relationship; 2) those that are in such a relationship don’t care to change the status quo; 3) a large segment of the community opposes marriage and favors lesser victories, such as civil unions; or 4) they are simply indifferent on the issue or apathetic in general.

Without a significant number of supporters butting heads against a highly energized, vocal opposition, it is easy to understand why state legislators and even governors can safely oppose any drive towards same-sex marriage. It’s all about the votes and getting elected. The numbers aren’t there for us yet. We have to exceed the 50 percent threshold of pro-same-sex marriage sentiment for elected officials to take us seriously.

Judges appear to be intimidated. The judges, especially in New York and Washington states, should have ruled favorably for the plaintiffs based on, if nothing else, equal protection. However, they used tortured, bizarre rationales to strike down the lawsuits, such as procreation and protecting the welfare of children as well as citing public opinion polls on the issue. It is becoming obvious that the "activist judges" mantra is affecting their decisions for the sake of retaining power and not doing what is normally considered right.

"The way most judges see it, though they won’t ever say it, there is no point to ‘doing the right thing’ if their decision faces a veto from the people in the form of a constitutional amendment," wrote Chris Crain, executive editor of the Washington Blade. "Not only is it pointless to risk prestige and rule one way, only to see it reversed by amendment, but their authority to rule on countless other issues, including other civil rights cases and even gay rights cases, has been irreversibly undermined."

With state after state codifying their constitutions to ban same-sex couples from marrying, the momentum for a Massachusetts-style breakthrough has been thwarted at this point. We still expect an imminent decision from New Jersey, which could end this bad streak, and the case before the Maryland Court of Appeals will be heard around December. Without a favorable ruling from at least one of these states, the push for same-sex marriage will sink deeper.

What needs to be done? As Dan Furmansky, executive director of Equality Maryland, pointed out to Baltimore OUTloud, "While we're all discouraged because of the decisions out of New York and Washington State, our social justice movement must look forward and continue our work in the judiciary, in the legislature, and in our communities."

Any such movement requires strong, enthusiastic and convincing supporters. Reaching out beyond the lgbt community and forming coalitions is crucial in getting our numbers up. Politicians tend to vote to maintain their seats. Few will buck their constituencies to do what their inner conscience tells them. Therefore, getting more allies on our side is key.

A significant group is the African-American community, whose homophobic conservative ministers have hurt the cause. They should be reminded of the pro-gay stances of Coretta Scott King, Julian Bond, Rev. Jesse Jackson and Rev. Al Sharpton for example. They should also be reminded of the strong role the lgbt community played in helping to achieve civil rights for African-Americans.

As important as reaching out is, motivating our own community is also critical. If being attacked as second-class citizens doesn’t resonate, then I don’t know what will. We need to eradicate the prevailing political apathy within the community.

Get the lgbt youth to join the fight; they’re our future. Many of these young people don’t think there should be a controversy at all. Says Dan McCarthy, a PFLAG Dad from Columbia, "It gives me great solace to hear [the younger generation] talk and see them interact because it is very clear that when their generation comes to power, they will absolutely crush this discrimination against gays and lesbians and they will poke fun at us for ever debating it."

Another step is to elect gay and gay-friendly candidates and to work hard and contribute to their campaigns. Filling the state houses and governors’ mansions with allies will be a major step towards achieving equality.

This will be accomplished by educating the public on the flaws of the opposition’s arguments and the merits of our own, as outlined earlier. Separate religion from the issue as much as possible by stressing civil recognition over the religious one. Demonstrate that the children of gay couples are being victimized by homophobic politicians and judges.

Emphasize the traditional doctrine of fairness and point out how the country grew up and witnessed interracial marriages without the feared collapse of society. Criticize the religious right as homophobic bigots, which most are. Frame the issue as a civil rights matter despite what some in the African-American community contend.

And most importantly, convince the general population that gay people are a legitimate minority, that our orientation is not a choice, and that we should not be defined by perceptions and stereotypes. This is the root cause of all the discrimination against the lgbt community.

The outlook may not be that bleak. In looking at the broader picture there are other issues in which the lgbt community is realizing gains. The repeal of the widely criticized "Don’t Ask, Don’t Tell" policy for one is gaining momentum. Other states and jurisdictions are extending protections for lgbt people. Corporations and universities are doing the same. Domestic partnership benefits are proliferating.

But like any other major civil rights initiative, the quest for same-sex marriage will take time, patience and lots of effort. "Every year we are seeing that the country is on a clear trajectory towards equality as more and more Americans understand that same-sex couples and their children deserve to be treated equally under our nation's Constitution, nothing more and nothing less," Brad Luna, spokesperson for the Human Rights Campaign, told OUTloud.

"Acceptance and progress won't happen overnight; it happens in small and big steps with setbacks along the way and the recent court rulings have been a speed bump along the road towards equality."

Marriage rulings may not be welcome news to GOP either

By Steve Charing
Senior Political Analyst

Same-sex marriage proponents suffered a major setback when the New York State Court of Appeals ruled that the state constitution does not provide a legal basis for members of the same sex to marry. The bizarre, almost illogical, rationale for the 4-2 majority decision made it even more frustrating.

"The Court's archaic reasoning is rooted in ignorance and completely contradicted by the facts of today," said Human Rights Campaign President Joe Solmonese in a statement. "The Court threw the expert advice of child welfare professionals and years of scientific evidence out the window with its ruling against fairness." The HRC is the largest lgbt civil rights organization in the U.S.

Court of Appeals Chief Judge Judith S. Kaye dissented on the ruling and wrote, "I am confident that future generations will look back on [this] decision as an unfortunate misstep."

At the same time, a Georgia court upheld its ban on same-sex marriages. The Georgia decision was not unexpected; to a larger degree, the New Your one was. Recent polls have shown that a majority of New Yorkers favor marriage rights for same-sex couples. The New York decision allows for the legislature to consider changing the existing law.

More recently, there were similar setbacks in Connecticut, Tennessee and Nebraska that stymied the pro-same-sex marriage movement.

These defeats prevented, at least temporarily, an opportunity to turn the corner, move forward, and establish a venue in addition to Massachusetts as a place where gays and lesbians can legally marry. Moreover, the rulings could embolden other judges to make similar decisions on pending cases. In Maryland, the Deane and Polyak v. Conaway lawsuit is headed to an appeals court to determine if the ruling by a lower court that found the state’s marriage law is discriminatory should be upheld or tossed out.

Yet as bad as these court outcomes are for the lgbt community, the Republican Party may not be whooping it up either. Sure, they got their way: the drive for the legalization of same-sex marriage hit a major speed bump. Innate homophobia that defines the religious conservative-dominated GOP drives the anti-gay sentiment.

During the 2004 election cycle following the Massachusetts Supreme Judicial Court’s ruling that legalized same-sex marriage in the Bay State, the Republicans under Karl Rove used the fear of "gay marriage" as a rallying point to dredge up and motivate otherwise apathetic religious conservatives (read: bigots) to head to the voting booths.

Republicans were successful in positioning the issue of gay marriage on the ballots of 11 states so that the people would decide its fate, not "activist judges," whom were demonized by Rove, Bush and their loyal minions. Many political observers credit this fear tactic as persuading a sufficient number of Catholics, African-Americans and evangelical Christians to vote and may have had a crucial impact in such battleground states as Ohio.

The 2006 elections, of course, do not involve a run for the presidency. But all of the members of the House of Representatives and one-third of the U. S. Senate are up for re-election. Then you have the Governors races (including Maryland) and state legislatures that are up for grabs.

The Republicans are hurting. They are beset by the low approval ratings for President Bush and the Republican-controlled Congress, the war in Iraq and other international hot spots, the economy and its burgeoning deficits, oil prices, myriad scandals and ethics issues (including the military), environmental concerns, healthcare, immigration reform, our standing in the world community, and a gaggle of other issues important to the American people.

Furthermore, Congress has been widely criticized in the media for wasting time on such peripheral issues as gay marriage, flag burning and protecting the words under God in the Pledge of Allegiance rather than tackling the more important matters.

As a result of the recent court rulings that have impeded the drive for same-sex marriage, the GOP cannot assail "activist judges" who are undermining the so-called institution of marriage. They cannot legitimately argue that unless Republicans are elected, these judges will go wild on American values.

The scare tactics used in the past may not hold water this time around although several more states will have the ant-gay marriage amendments on their ballots. The recent court decisions, while discouraging to lgbt activists, may have quelled temporarily the urgency created by the fabrication that society is collapsing because of actions taken by Massachusetts-type judges. Accordingly, the New York and Georgia decisions may douse the right-wing crazies’ "enthusiasm" come November.

What matters most is that the GOP record is out there to be judged, and without the use of fear, they are in trouble.

Left, Right, Left: Ehrlich Marches to His Re-election Beat

By Steve Charing
Senior Political Analyst

His TV commercials say that Governor Robert L. Ehrlich, Jr. doesn’t govern from the left or the right, but from the center. But that’s not entirely true: Ehrlich actually governs from the left, the right AND the center.

As a candidate in 2002 when President Bush’s approval rating was at a gaudy 85 percent, the right-leaning former Congressman ran for governor of Maryland as a Bush-type "compassionate conservative" and became the first member of the GOP to hold such an office in Maryland in a generation.

He entered the race as an underdog and came from behind to knock off a weak candidate, Lt. Governor Kathleen Kennedy Townsend, who had the shadow of the political pariah Parris Glendenning, as well as a severe state budget deficit, cast upon her. In doing so, he attracted many moderate and conservative Democrats—a must in a state that has registered Democrats outnumbering Republicans two to one.

Through his three and a half years in office, Governor Ehrlich returned to his pro-business, right wing roots and was virtually all over the map on social issues. For example, he is pro-choice but also pro-death penalty. He publicly was an advocate of an amendment that would enshrine discrimination into the state’s constitution on the matter of same-sex marriage. Yet he signed, albeit reluctantly, a measure that allows for stem-cell research.

He vetoed a sensible and sought-after Medical Decision-Making Act during the 2005 General Assembly that would have conferred key healthcare rights to unmarried couples and families, particularly lgbt couples where marriage was not an option. He also vetoed the Transfer & Recordation Tax Exemption Bill, which would have allowed same-sex couples to transfer real estate to each other without paying recordation and transfer taxes—a privilege granted to married couples.

During the 2006 legislative session, he marched to the beat of the right-wing conservatives who insisted on a constitutional amendment barring same-sex marriage. He strongly and vocally supported the measure. That initiative failed, but the Governor has not backed off from his position.

But recently, the Governor dismissed an appointee to the Metro Transportation Board, Robert J. Smith, for characterizing gays as deviants on a talk show. And a week later he appointed an openly gay judge, Christopher Panos, to the Baltimore District Court.
These actions that seemingly go counter to Ehrlich’s earlier positions provide a glimpse into his re-election strategy. He is trying to appear moderate while still holding his conservative values.

He has no choice.

Maryland is a Democratic state. Bush’s poll numbers have sunk to the mid-thirties from the mid-eighties, and the Governor is an unabashed supporter of the President. That is not good news for a Republican with a sketchy record of accomplishment trying to renew his lease in the Governor’s mansion.

To retain those Democrats who supported him last time around, Ehrlich has no option but to move towards the middle. Even if the dismissal of Smith and the appointment of Judge Panos irked the Don Dwyer's of the world, Ehrlich knows all-too-well that they will still vote for him in November. Those right wing bozos, who still believe Iraq attacked the World Trade Center, will reliably be there for the GOP, if not enthusiastically.

His surprising choice of Kristen Cox, a legally blind woman to be his running mate, was an attempt to further burnish his moderate credentials. This selection is aimed at appealing to women, minorities and those with disabilities.

With Doug Duncan dropping from the race, Mayor Martin O’Malley emerged as the sole opponent to Ehrlich. O’Malley angered many gay activists during the debate in the General Assembly when the constitutional amendment was the issue of the day. He issued a statement in January following Judge Murdock ruling that it is unconstitutional to ban gay couples from marrying.

"I was raised to believe that marriage is between a man and a woman," the statement read. "This is a fundamental issue of the state’s public policy, and a decision that ultimately should not be made by a single trial court judge. The Court of Appeals should review this matter, and any legislative action would be premature until the court acts."

However, during the course of compiling questionnaires from the candidates on lgbt issues in advance of candidate endorsements, a source in Equality Maryland told OUTloud that O’Malley is totally opposed to an amendment and that "the lgbt community would be happy with his positions on other lgbt issues."

With Ehrlich’s campaign marching down the center lane, should the lgbt community believe that he has seen the light and will now be in our corner? Not likely. His recent gestures, while welcome, were part of a political calculation designed to present himself to be a moderate. Should he be re-elected, he will undoubtedly return to the right lane—perhaps more so—during his final term.