The Struggle for Marriage Equality: A U.S. Update

I have made clear my support for marriage equality.  But this is not a post making the argument for legal recognition of same-sex marriages.  This is simply a report on the state of the struggle as of November of 2009. 

Hawai’i.  In 1993, the Hawai’ian State Supreme Court rules that the state law limiting civil marriage to heterosexual couples is unconstitutional unless the state can show (1) compelling state interests for the discrimination of same-sex couples and (2) that the limitation is narrowly drawn so that other rights are not impacted.  This case causes such panic that the U.S. Congress passes the so-called Defense of Marriage Act (DOMA) which forbids federal law from recognizing same-sex marriages–and any couples married in states which do recognize such from receiving any of the federal benefits which are given heterosexual married couples.  This “preemptive strike” was designed by the Republican controlled Congress to cause problems for Pres. Bill Clinton (D)’s reelection campaign against Sen. Bob Dole (R-KS), since it was presumed that Clinton would veto the legislation.  Instead, on 21 Sept. 1996, Pres. Clinton signed DOMA into law and went on to defeat Dole in November.  On 03 November 1998, Hawai’i voters amend their state consitution to allow the Hawai’i state legislature to limit marriage to heterosexual couples. In light of this, the Hawai’ian Supreme Court dismissed the suit challenging that law on 06 December 1998–so it was never decided whether the law would have been unconstitutional or not.  As of this writing, there have been no further efforts by marriage equality advocates to change the laws in Hawai’i in their favor and marriage remains reserved for opposite sex couples in the Aloha State.  Hawai’i has recognited “Reciprocal Benefits” for same-sex couples, having some of the legal recognitions of marriage, since 1997.

Massachussetts.  On 18 November 2003, the MA State Supreme Court ruled that banning same-sex mar riage violated the state constitution.  On 17 May 2004 same-sex marriage became legal in MA.  There was an abortive attempt in February 2004 to amend the state constitution to ban same-sex marriage, but it was never completed and there have been no further attempts.  The experience in MA seems to show that acceptance of marriage equality by a majority of the general public takes about two (2) years.

California.  California began recognizing same-sex Domestic Partnerships in 2000. At first these Domestic Partnerships had only a fraction of the legal rights of civil marriage, but they were expanded over time.  The mayor of San Francisco began offering same-sex marriage licenses in 2003 until the courts stopped him and ruled those marriages invalid.  29 September 2005, Gov. Arnold Schwarzenegger (R-CA) vetoes a legislative bill to legalize same-sex marriage. He vetoed a second such bill on 12 October 2007.  15 May 2008, the Supreme Court of CA rules that the state’s ban on same-sex marriage is unconstitutional.  Gay and lesbian couples begin to get married on 16 June 2008.  04 November 2008, CA voters pass Proposition 8, a ballot initiative that amends the state Constitution to outlaw same-sex marriage–it takes effect 05 November 2008 and marriage licenses to same-sex couples cease that day. A legal challenge to the law, claiming that this is more than an amendment, but a major revision of the Constitution (and thus cannot be enacted by simply ballot measure) is rejected by the CA Supreme Court (26 May 2009)–but the Court says that those marriages performed in the few months that same-sex marriage was equal will continue to be valid.    11 October 2009, CA Gov. Schwarzenegger signs into law the recognition in CA of same-sex marriages performed in other states.  Currently, marriage equality advocates are debating whether to try to repeal Proposition 8 in 2010 or wait until 2012 when electoral turnout will be greater because of the presidential election.  The 2012 date would give both advocates and opponents of same-sex marriage more time to mobilize supporters and try to change minds.

Connecticut.  Connecticut passed a Civil Unions law in 2005.  On 10 October 2008, the Connecticut Supreme Court ruled that discriminating against same-sex couples in civil marriage violated the state constitution.  The court ordered the legislature to legalize same-sex marriage.  12 November 2008, same-sex marriages began in CT.  23 April 2009, Gov. Jodi Rell (R-CT) signed into law the statutory recognition of same-sex marriages previously recognized only by court order.  On the same day, Gov. Rell signed a law that would convert existing same-sex civil unions into marriages beginning 01 October 2010.

Vermont.  On 20 December 1999, the VT State Supreme Court rules that denial of benefits and rights “incidental to marriage” to same-sex couples violates the states “common benefits” clause.  In response, the VT legislature created a same-sex “civil unions” law  in 2000 which grants same-sex couples the legal and civil rights and benefits of marriage, but without the name “marriage.” This civil unions law is signed by then-Gov.  Howard Dean(D-VT)–who later wishes he had pushed the legislature for full marriage equality.  The experience of VT with civil unions–and of many residents going to nearby MA for marriage ceremonies–over a 5 year period, leads for a strong push for same-sex marriage recognition, but this is opposed by Gov. Jim Douglas (R-V).  On 06 April 2009, the Vermont General Assembly passed legislation recognizing same sex marriages, but this was vetoed the same day by Gov. Douglas.  On 07 April 2009, the Vermont General Assembly overrode the governor’s veto with a two-thirds majority.  On 1 Sept. 2009, same-sex marriages began in Vermont.

Iowa.  On 03 April 2009, the Iowa State Supreme Court declared that civil marriage could not be restricted to heterosexual couples and, thus, recognized the legality of same-sex marriage.  An attempt to repeal this decision is underway, but amending the state constitution is not easy in IA.  An amendment must pass both houses of the state legislature two consecutive years running and then be confirmed by popular ballot.  Democrats currently control both houses of the state legislatur and the leadership has vowed to prevent any such legislation from reaching the floor. If the Republicans were to win back both houses of the state legislature in 2010, they could not introduce legislation to amend the constitution to ban same-sex marriage until January 2011. It would have to pass both chambers in 2011 and 2o12 and then be sent for ballot ratification. So, the earliest a repeal of marriage equality in IA could occur would be 2013 and marriage equality advocates are hopeful that state residents will be “used to” same-sex marriage by then and not go along with repeal.  The longer the law is on the book, the greater its chances for permanence.  As of 27  April 2009, same-sex marriages have been legally performed in IA.

Maine.  In 2004, Maine adopted a Domestic Parnerships law that granted same-sex couples some of the rights and benefits of marriage.  06 May 2009, Maine Gov. Baldacci signed the Marriage Equality Bill which would have allowed same sex marriages to begin on 11 September 2009.  However, Maine law allows for a People’s Veto by ballot initiative.  That initiative, called Question 1, hired the same firms that successfully repealed CA’s marriage equality through Proposition 8.  But marriage equality advocates were confident that they could defeat Q 1–and, initially, on election night 03 November, it looked like Marriage Equality won, but as the night wore on, the People’s Veto won 53-47%.  Thus, same-sex marriage was repealed without ever taking effect in ME on 03 November 2009.  Marriage Equality advocates are not sure where to start next in ME.

New Hampshire.  Same sex civil unions are legalized in 2008.  On 23 March 2009, the NH House of Representatives passes legislation recognizing same-sex marriage.  29 April, the NH Senate passes same-sex marriage with minor amendments designed to protect the religious liberty of churches, synagogues, mosques, etc. which have religious objections to same-sex marriage.  06 May, the NH House concurs with the amendments of the senate and the bill is sent to Gov. John Lynch (R-NH).  Lynch had previously said he would veto such legislation and there are not enough votes to override, but the amendments lead him to reconsider.  Lynch says he will sign the bill with a few further protections for religious liberty and outlines them.  On 03 June 2009, Lynch signs same-sex marriage into law–effective 01 January 2010.  There is an attempt at repeal in NH both by legislature and by ballot–they cannot start until 01 January 2010.  Because the law was passed so narrowly, nothing should be taken for granted.  Whether NH’s marriage equality law stays past January 2010 is yet to be decided.

New York.  New York passed legislation in 05 that recognized same-sex Domestic Partnerships with limited rights.  In 2007, New York’s State Supreme Court ruled that same-sex marriages performed elsewhere must be recognized by New York.  On 12 May 2009, the New York State Assembly (lower House) passed a law allowing same-sex marriages in New York and sent it to the New York Senate.  The New York Senate has 32 Democrats and 30 Republicans and it would take 32 votes to pass same-sex marriage.  The Senate has vowed a vote on the bill before the end of the year–presumably the delay is because they are currently 2 votes short. If the law passes the Senate, Gov. David Paterson has promised to sign it–has, in fact, been a strong champion of marriage equality.  Gov. Paterson faces a tough re-election fight in 2010 and it is not clear if any successor would sign the bill, so marriage equality advocates are pushing hard for passage this year.  Ballot initiatives are illegal in New York, so repeal would be more difficult–and the fact that NY already recognizes same-sex marriages performed out of state argues for the staying power of marriage equality if it can clear the senate this year.

New Jersey.  New Jersey legally recognized same-sex civil unions beginning in 2007 after the NJ Supreme Court ruled that same-sex couples were entitled to all the legal benefits of marriage.  Momentum has been growing for full marriage equality, but, originally advocates had not planned to initiate legislation until early 2010.  However, the defeat of incumbent Gov. Jon Corzine (D-NJ) by Atty. Gen.  Bob Christie (R-NJ) on 03 Nov. ’09 has led to a hurried run at the legislature.  Corzine is a GLBT advocate, whereas Christie has already promised to veto any such legislation.  NJ opinion is about evenly split.  If NJ passes same-sex marriage this year, Corzine will sign the law.  If not, they either have to wait until Christie is defeated, or build up enough support to override his veto. 

Washington, D.C.  In 1992, Domestic Partnerships for same-sex couples were recognized in the District of Columbia. Over the years these have been expanded ever closer to those of heterosexual marriage.  D.C. recognizes same-sex marriages performed elsewhere.  A bill to legally perform same-sex marriages in the nation’s capital cleared a key committee 4-1 this past Tues. ’10 Nov. 2009.  It is due to be voted on by the full city council on 01 Dec. and 10 of the 13 council members are co-sponsors of the bill, so passage is assured.  However, there may be a ballot initiative for repeal here as in ME.

Washington (state).  Domestic partnerships were approved in 2007 and expanded step-by-step until they now are civil marriage in all but name.  On 03 November, Washington residents voted by ballot initiative to keep this “all but marriage” law.  If the pattern of acceptance holds, Washington state will be ready to recognize same-sex marriages by 2012–especially if the legislature votes before then to recognize same-sex marriages performed elsewhere.

In 2004, as part of the effort to “re”-elect Pres. George W. Bush (R), who was in a very tight race with Sen. John F. Kerry (D-MA), Republicans pushed to drive up the conservatives at the polls by placing ballot initiatives in key states that would ban same-sex marriage constitutionally.  Between ’04 and ’08, over 20 states adopted amendments banning same-sex marriage.  Now, 2 of the states that banned same-sex marriage by constitutional amendment in ’04, are reconsidering.

Oregon.  Oregon was one of many states in ’04 which voted to amend its constitution to ban same-sex marriage, but, unlike some other states (e.g., Kentucky), OR did not ban civil unions or domestic partnerships, too.  In 2007, the OR state legislature passed legislation banning discrimination against LGBT persons and also allowed same-sex couples to register as domestic partners with limited benefits.  Marriage equality advocates are building on this base and are working for consciousness raising throughout the state in advance of plans to attempt to amend the state constitution, again, granting marriage equality in 2012.

Michigan.  Michigan was another of the many states which used ballot referenda to amend their constitutions to ban same-sex marriage in ’04.  But Speaker of the House Pro Tem (State Rep.) Pam Byrnes made good on a campaign promise last year and in June 2009 introduced an amendment to repeal the ban on same-sex marriage.  If the bill receives 2/3 support from both the state house and state senate, then it will go to voters for repeal in 2010.  I expect it to be a very close vote.

There are also civil unions or domestic partnerships in Nevada, Maryland, Colorado, and Wisconsin–which makes each of these states likely to be the next frontiers in the struggle for marriage equality.

In June, the Respect Marriage Act was introduced into both chambers of the U.S. Congress. If approved, the Respect Marriage Act would repeal the 1996 Defense of Marriage Act (DOMA), and allow the federal government to recognize same-sex marriages performed in the states that have them.

With the current makeup of the U.S. Supreme Court, I understand why marriage equality advocates are reluctant to challenge DOMA or state laws banning same-sex marriage in federal court.  I would like to see a friendlier Supreme Court makeup, first.  But it seems to me (a non-lawyer) that a good legal case can be made for ruling that banning same-sex marriage is unconstitutional.  1) Loving v. Virginia (1967) struck down state bans on interracial marriage–bans which, at that time, still existed in 13 states and the District of Columbia. Loving v. Virginia established that marriage is a natural right and that customs and prejudices cannot restrict the liberties of two people seeking the bonds of marriage.  Now, to date, that has only been applied to heterosexual couples.  2) Opponents of same-sex marriage argue that same-sex couples have never been recognized as marriage.  They compare it to other cases in which the courts have forbidden the relationships to be recognized as valid marriages:  cases of incest, or of an adult marrying a minor, or of bestiality.  But in Lawrence v. Texas (2003), the Supreme Court struck down the so-called “sodomy laws” of the various states–private homosexual acts between consenting adults cannot be made illegal.  Yes, there is far more to marriage than sexuality, much less sex acts, but this decision suggests that the Court already recognizes a difference between same-sex adult couples and the illegitimate relationships which opponents would use as an analogy: incestuous couples, liasons between an adult and a minor,  liasons between a human and an animal, etc.  If the law already distinguishes between same-sex couples (whose liberties to be a couple cannot be infringed) and other non-heterosexual couples (whose liasons can be declared illegal), then it seems that the argument made in Loving v. Virginia for heterosexual interracial marriages should apply to same-sex marriages.  3) The argument that marriage must entail the possibility of progeny fails on several counts–a. We would not marry any couple where the woman was past menopause or the man had any reasons to be infertile if the possibility of children were definitive of marriage.  b. Just as heterosexual married couples can adopt children or (now) use hi-tech means to become pregnant or hire a surrogate, so those options are also open to the same-sex couple, so that even if we consider children to be a usual component of marriage, same-sex couples are not thereby prohibited.   4) The argument that heterosexuality is a traditional component of the definition of civil marriage is irrelevant since definitions of marriage have changed over time.  Once marriages had to be arranged–and girls were married at ages we would now consider to be child sexual abuse.  Once interracial marriages or marriages between persons of different religious persuasions were considered null and void, but now they are not.  There is no reason that marriage cannot now evolve to include same-sex marriage.

If the Supreme Court were to rule in such a fashion, all the current state laws prohibiting same-sex marriage would be struck down.  Depending on how fast the makeup of the court changes, and who is confirmed (and how quickly) in judicial openings, I would think that such a ruling might occur sometime in the next decade–prior to 2020.  That’s my best guess.  In the meantime, the state-by-state struggles continue.

 

Is DOMA Unconstitutional?

From my series on GLBT inclusion in the church and other posts, regular readers will not be surprised that I believe that the 1996 law known as the [sic] “Defense of Marriage Act” or DOMA is unjust since it prevents the federal government from recognizing same sex marriages (even from states where they are legal) and from granting the normal federal rights which go with marriage (e.g., spousal benefits from Social Security; joint tax filings;).  But is it unconstitutional as well?  I write as an amateur.  I am neither a lawyer nor a constitutional scholar.  I invite those who are to check my reasoning.  But I think DOMA is unconstitutional.

First, let it be noted that in 1996 when DOMA was passed, not one state in the U.S. allowed same-sex marriages.  And most gay rights activists were focused on other issues than marriage equality.  But there was a fear that Hawai’i’s Supreme Court was about to rule in favor of same sex marriages (it didn’t) and DOMA was passed as a kind of preemptive strike. It was also designed very politically to hurt then-Pres. Bill Clinton because Republicans assumed he would veto it and then Sen. Bob Dole (R-KS) would campaign against him with that wedge issue all year.  But Clinton knew how to protect himself and so he calmly threw gays and lesbians under the bus by signing DOMA and robbing Dole of an issue.

We now have 6 states (MA, VT, ME, NH, CT, IA) which recognize same-sex civil marriages.  I expect the following states to follow within the next couple of years: NY, CA, NJ, WA,  and RI.  Several others will move to have civil unions,  which is often a first step to same-sex civil marriage.  New York and the District of Columbia have laws recognizing same-sex marriages performed in other states.

The Constitutional issues surrounding DOMA are mostly tied up with the “due process” and “equal protection” clauses of the 14th Amendment to the U.S. Constitution, which relate to the definitions of “marriage” and ‘spouse” in DOMA and the “full faith and credit clause” which refers to powers reserved to the states.  Public acts by one state must be recognized by the other states and by the federal government, unless those public acts are unconstitutional.  Supporters of DOMA argue that there is no right to marriage and thus DOMA is constitutional. But Loving v. Virginia (1967) found that marriage was an inalienable right–this case killed state laws that forbade interracial marriages. 

Defenders of DOMA reply that marriage has traditionally been defined as between a man and a woman. They imply that this definition has never been modified over the entire length of human civilization. This is patently false. Marriage has had numerous definitions.  In some societies plural marriages are still recognized as is concubinage, but these have long been banned in the United States.  Marriage today assumes that both parties are adults and legally able to enter into contractual relations, but traditionally women were married when they were barely post-pubescent (the Virgin Mary was probably no more than 14) and given away by their fathers to much older men–which today would be considered child abuse and pederasty.

Supporters of DOMA reply that if same-sex marriages are recognized the door is open to “marriages” between humans and animals (bestiality) or incestuous marriages (which have been rejected previously by courts).  But in Lawrence v. Texas (2003), which struck down state “sodomy” laws forbidding same-sex acts between consenting adults, the Supreme Court seems already to say that gay couples are NOT the same as pederasts or those practicing bestiality or other obscenities to which conservatives often  compare them. 

The logic of Lawrence v. Texas combined with Loving v. Virginia seems to me to give strong grounds for believing that DOMA is unconstitutional.  But defenders of DOMA claim that without something like it the religious liberty of those who believe same-sex marriage to be sinful will be violated.  I don’t think so. No church, synagogue, mosque, etc. which disagrees with same-sex marriage could be forced to perform them or allow their facilities to be used for them. The First Amendment protects them–just as it did for churches, etc. which believed that interracial marriage was wrong in the wake of Loving v. Virginia. Most churches and other religious institutions CHANGED their views and accepted interracial marriages, but neither change nor resistance to it is properly the concern of the courts or the secular government.

In fact, I would  argue that DOMA (and state bans on same-sex marriage) violates the religious liberty of faith groups who recognize same-sex marriages, like my church.  We can perform same-sex “weddings,” but our rites do not have the force of law. (Perhaps the solution is that the government should get out of the marriage business altogether and allow “marriage” to be a completely religious practice with no legal dimensions.)  Also, Christian marriage is not identical to legal marriage and never has been. Legal marriage allows me to sue my wife if I no longer want to live with her–not much Christian to that.

Nevertheless, as a civil, legal, matter, it seems to this amateur that the Defense of Marriage Act is  unconstitutional.

Frank Schaeffer on Anti-Abortionist Responsibility for Tiller’s Murder

I urge everyone to read this article by Frank Schaeffer.  I don’t support any claim that ALL pro-life groups support anti-abortion violence.  Just the opposite.  Nor do I want to infringe on the civil liberties of anti-abortionist groups.  I supported the Free Access to Clinic Entrance legislation, but I do not want to oppose silent (or even noisy) vigils outside clinics where abortions are performed.  Even if you are very pro-choice, far more than I am, please consider the consequences–we don’t want to lose the right to protest peacefully outside military bases or recruiting centers, right?  Free speech, even offensive or violent free speech, is to be protected.

But there is a far-right network of groups that supports anti-abortion terrorism that operates on the fringes of the pro-life movement.  Groups like Operation Save America, Operation Rescue, Missionaries to the Unborn, etc. celebrate people like the murderer of Dr. Tiller as HEROES–comparing them to those who tried to assassinate Hitler in order to stop the Holocaust or to John Brown who tried to incite a holy war against slavery.  They are NOT trying to persuade citizens to change the laws.  They are not trying to create the climate in which most abortions are rejected because babies are welcomed.  They are not trying to prevent unwanted pregnancies or make adoptions easier.  They are not, as Feminists for Life and others do, connecting abortion to the second class status of women, to male sexual predation (including date rape, incest, and much more).  They are not even trying to get <i>Roe v. Wade</i> overturned.  They are, instead, trying to create an atmosphere of fear in which women fear to seek abortions because of threatened violence, doctors and hospitals fear to provide abortions because of threatened violence, and even churches and other faith groups fear to welcome pro-choice members like Dr. Tiller because of threatened violence.  They are advancing their goals by means of terrorist violence–and it is working.

Frank Schaeffer shows that while most Religious Right leaders did not directly participate and usually condemn the murders, they contributed to the atmosphere that encourages this violence.  I remember reading Dr. Francis A. Schaeffer’s A Christian Manifesto in 1980–it encouraged the overthrow of the American government by force if all else failed in saving “Christian civilization.”  It justified violence against abortion providers and pro-choice politicians if all legal and nonviolent means failed.  The Religious Right still has members and even leaders who promote this–and far more who give ambivalent voices.

Dr. James Dobson gave away 100,000 copies of Frank Schaeffer’s A Time for Anger which counseled anti-abortion violence as a last resort.  During the 1990s, I engaged via the email list of  the Society of Christian Philosophers, a young student at Jerry Falwell’s school, Liberty University.  I was a seamless garment, consistent-ethic-of-life person at the time and, in dialogue with me, this student became one, too–eventually going to Duke Divinity School to study with famed pacifist theologian Stanley Haerwas.  But the student also revealed to me that the “bomb the clinic/kill the abortion doctor” view was widely held among both faculty and students at Liberty University.  When Jerry Falwell himself retreated from this view after a series of bombings in the ’80s and ’90s and called on Christians to use ONLY LEGAL MEANS to end abortions, the student (before I became his friend) led a petition drive among students to reverse this policy, calling it a sell-out to the unborn.

There are websites where rightwing anti-abortion groups make heroes out of the assassins of doctors who perform abortions–getting others to write to these assassins in jail, and even to emulate their actions.

If terrorism is the use of violence and the threat of violence to intimidate others for political gain, then this is terrorism.  And if al-Qaeda, Hamas, and Hezbollah are terrorist groups who promote terror tactics using warped forms of Islam, then many of these anti-abortion groups are terror networks who appeal to warped forms of Christianity for their justification.  They are Christian terrorists.

Suppose I am wrong in claiming that while all abortions are tragic, some are the lesser of evils.  Suppose the pro-lifers are right that all abortions are the moral equivalent of murder.  Then they are right to oppose this and to try to change this.  But they cannot do so by adopting violent means.  Violence just begets more violence in a downward spiral.

I have seen this before.  In the early 1960s, I saw the assassinations of the brothers Kennedy, Dr. Martin Luther King, Jr., and many more martyrs in the struggle against segregation.  By the late ’60s and into the early ’70s, the Left in America (including factions of the peace movement and the student movement, along with the Black Panthers and the American Indian Movement) had adopted the same kinds of violent terror tactics that the White Citizens Councils and KKK and John Birchers had done earlier.  The bombings of black churches led to the bombings of ROTC buildings and National Guards barracks–until by 1974 one had police in many cities as practically occupying armies.  The very fabric of our society threatened to unravel.

I don’t want to see this repeat–by either the right or the left.  Yet. the first reported arson on a clinic offering abortion goes all the way back to 1976.  Since that time there have been over 200 arsons or bombings of clinics and hospitals where abortions are provided.  Beginning with the assassination of Dr. David Gunn in 1993, there have been at least 10 assassinations and attempted assassinations in the U.S. and Canada of health personnel connected with providing abortions. (Dr. George Tiller himself was shot in both arms in 1993 and now has been killed in his Withita, KS church.)  Both clinic personnel and women seeking abortions have been attacked with acid in over 100 cases since 1993.  From 1998-2002 over 500 letters containing or threatening to contain the deadly virus Anthrax have been mailed to clinics and health care providers connected to abortion services.  Women seeking to enter clinics offering abortions have been punched, kicked, beaten (all the while people yell, “We love your baby!”), given abusive speech, and much else.

The result of this terrorism has not been to change the laws–but it has reduced greatly the number of places where women can seek legal abortions in this nation.  U.S. Marshals are having to provide protection to vulnerable doctors and other clinic personnel in the wake of Dr. Tiller’s murder.

If you and your church oppose abortion without making clear your opposition to all such violence, then you are part of the problem.  If you use terms like “Tiller the killer” and make comparisons to Nazis or talk about the the murder of abortion providers as “justifiable homicide,” then you are part of the problem.  You are contributing to an atmosphere of violence.

But you aren’t ending abortions, but merely driving them back underground.  You are not creating the kind of culture which can welcome life.  And, like the Left wing zealots that bombed ROTC buildings or the Rightist racists which bombed black churches, you are threatening the fabric of our democratic society.

Vigorous debate, yes.  Political organizing, yes.  Peaceful protests, yes.  Creating alternatives, yes.  In all issues of conscience this is our duty.  But violence, no.

Christians in this nation have been shocked by the recent Pew Report showing that all churches are declining and that “none of the above” is a growing religious category.  I’m not.  When the German churches backed Hitler, the next generation grew disillusioned with the churches–and they have never fully recovered.  When the American churches of the 50s and 60s supported segregation and the Vietnam war, they lost the next generation.  Now we have a generation which has seen huge church support for the Afghanistan and Iraq wars, for torture, for the demonization of Muslims and gays, and for anti-abortion violence.  So, we look to lose another generation. 

U.S. Christians,  it is time we took a long look in the mirror.  In the words of the famous Pogo, “We have met the enemy, and he is us.”

 Operation Rescue is a group that constantly tries to have it both ways.  It always bemoans clinic violence, but spends more time saying that the doctors like Tiller had it coming (Randall Terry,”He reaped what he sowed.”).  They also tend to share membership overlaps with the crazies in the fringe groups.  For instance, it seems that people in Operation Rescue helped Dr. Tiller’s assassin track his victim’s movements.

Groups encouraging anti-abortion terrorism in the name of being “pro-life” include:

The Army of God; American Coalition of Life Activists; 34 signers of the “Justifiable Homicide” statement celebrating the murder of Dr. David Gunn in 1993.  Operation Save America; Missionaries to the Unborn (has deck of “black heart” cards with “death merchants”–doctors who perform abortions–on them; rebukes pro-life groups for denouncing Tiller’s murder or for offering to aid the police in capturing those who would commit clinic violence);

Supreme Injustice in CA: Prop 8 Upheld

As expected (and dreaded by GLBT folks and allies), the California Supreme Court rejected arguments that ballot initiative “Proposition 8” passed last Nov. was more than an amendement, but a revision of the California Constitution.  If that argument had prevailed, Prop. 8., which bans same-sex marriage, would have been struck down since revisions cannot be made by ballot initiative alone, but must go through the state legislature.  The CA Supreme Court Judges, even those voting originally that the state constitution guaranteed marital equality, had indicated back in January during oral arguments that they were not open to the “revision” vs. “amendment” distinction.  The really bad news is that they relied on the argument of Prop. 8 litigator Ken Starr (of Monica-gate infamy!) that because the rights of convicted felons to vote can be stripped, so also can previously recognized rights of gay and lesbians be stripped from them.  Great. In effect, the court has just criminalized gayness.

However, the justices also ruled that the 18,000 same-sex marriages that took place in CA during the few short months of its legality (May-Nov. 2008) would remain valid.  As a gay friend (a pastor and fellow member of the Baptist Peace Fellowship) from CA emailed me:  This now creates a system in which some 18,000 gay couples in CA are in a situation analogous to that of free blacks in slave states before the U.S. Civil War–having rights denied to others “of their kind.”

This is not the last word.  Prop 8. supporters will work to get the marriages undone, too.  But  polling since last Nov. shows that Prop. 8 would probably fail (narrowly) if it were re-voted.   Marriage equality has gained ground since last Nov.  So, supporters of marriage equality will seek to undo Prop. 8 legislatively.  I think they will succeed, but if this is to stop going back and forth, I think CA may need a major constitutional overhaul which strengthens equal protections and makes it harder to strip rights from people.

This is one of the enduring tensions in the American form of government:  a democratic republic ordinarily means “majority rule.”  But the Framers of the Constitution also sought to protect the rights of minorities–to defend human rights and civil liberties against “majorities of the moment,” and “mob rule.”  Who and what is protected has been a debate for nearly 200 years, now.

Sen. Russ Feingold (D-WI) Rejects Military Commissions & Indefinite Detentions

In a letter to Pres. Obama, Sen. Russ Feingold (D-WI) of the Senate Judiciary Committee expressed support for the closing of the Gitmo gulag, and appreciation for the Obama administration’s continued rejection of torture and the many Bush admin. erosions of the rule of law.  However, Feingold rejected the use of even modified military commissions (Feingold and Obama both voted against the Military Commissions Act of 2006) and promised senate judiciary hearings as to whether the Obama modifications brought these tribunals within the rule of law. (Feingold sees no reason why normal federal courts or military courts cannot try all the detainees or terrorism suspects.  Neither do I.)

Feingold also challenges the Obama administration’s claim that a few Gitmo detainees cannot be tried or released.  Feingold alleges that the very concept of indefinite detention (or preventive detention) without trial is “almost certainly unconstitutional.”  I agree. 

I’m glad to see the Congress (at least in the form of Sen. Feingold) reassert itself as a separate and equal part of government.  And the only cure for the Obama administration’s move toward the right (in the face of pressure from Cheney and co.) is to give pressure from the left.  But  this still falls short of the need for the D.o.J. appointing a special prosecutor to investigate and try all involved in Bush-era war crimes (or any war crimes since the change of administrations).

Verdict: Obama is Weak on Human Rights and Civil Liberties

I have really been trying to give this administration a break. It is facing unprecedented challenges.  And we are only 5 months along.  But I have been around long enough to see progressive sold down the river by Democrats many times. So, the night of the election, even as I was celebrating and crying, a voice in the back of my head kept whispering, “So, do you think he will last longer than Bill Clinton before selling us out to the corporations and the military industrial complex?”

I want a well-functioning economy with economic justice.  I want a balanced ecology.  I want much. But I voted for Obama as someone who taught Constitutinal Law at the University of Chicago. I voted for “Change I Could Believe In” from the Bush era of shredding the constitution, ignoring international law, denying civil liberties and trashing human rights.  Obama began well:  Appointing good attorneys to the DoJ (the most progressive of which,  Dawn Johnsen, is still being held up by the Senate because she is supposedly a “radical”); ordering the closing of Gitmo (too slowly); cancelling the military commissions; cancelling torture; ended the “black sites”–i.e., secret CIA prisons overseas.

But since then, things have been more muddled.  There is far too much continuity between the Bush era and the Obama era on human rights and civil liberties.

• The “state secrets” defense is still used by the Obama admin. to try to get lawsuits dismissed.  Obama says this needs to be “modified.” I think Congress needs to modify it BY LAW.
• While we are no longer doing “extraordinary rendition” (kidnapping) and sending terrorist SUSPECTS to secret prisons in nations which torture, we are still practicing a form of “rendition,” the standards and legality of which are unclear because this is not transparent.
• While Gitmo is being closed, the Obama administration is using Bush claims about the legality of “indefinite detention without trial” for detainees held at the prison at Bagram Air Base in Afghanistan.
• I give high marks to the Obama administration for its continued declassification of the torture paper trail of the Bush era. We need to know just how bad things have been.  But his reversal on disclosure of the latest batch of photos of torture (which will probably leak anyway) is hugely wrongheaded. Now the photos will come out not as a nation trying to do the right thing and break with the policies of the past, but as a leak in a cover up.
• Obama is restarting the military commissions with some modifcations. That’s really BAD.  The modifications are designed to make the commissions less like star chambers (no evidence derived from torture, restrictions on hearsay evidence, prisoners get to choose their attorneys), but they still fall far short of international standards of justice.  Obama voted against the Military Commissions Act of 2006 and he campaigned on getting rid of them–not modifying them. This is a major flip-flop on a campaign promise.
• The Obama administration, through its attorney general, continues to be opposed to any trials for torturers or for those who authorized them.
• Obama still supports the warrantless wiretapping of Americans instituted by the Bushies (and retroactively legalized by Congress) even though tons of new evidence shows that it targetted journalists, peace activists, eavesdropped on the pillow talk between soldiers and their stateside sweeties, etc.–NOT just limited to intercepting calls to and from al Qaeda.
• Obama has kept Bush’s “faith based” outreach programs and other violations of church-state separation.

The struggle for justice, human rights, and civil liberties will continue.  But we now know that we do not have a reliable ally in Obama–just an untrustworthy on-again/off-again ally.

Here’s hoping and praying that by the end of 4 years, my complaint here looks very premature and overblown–but I’m not holding my breath.

NH Gov Seeks Way Forward on Marriage Equality/Religious Liberty

New Hampshire’s legislature has become the latest to enact legislation permitting same-sex civil marriages, after language changes that would protect the religious liberty of churches, synagogues, etc. which believe that participation would violate their deepest convictions.  Gov. John Lynch (D-NH) is set to veto this legislation because he believes the religious liberty protections are not enough.  But in a surprise move that should elate both GLBT rights advocates and champions of religious liberty, Gov. Lynch today decided not to veto the bill outright.  Rather, meeting with leaders of the legislature, he sent the bill back with  proposed amendment that, if adopted, he will sign into law.

This could be the way forward in the struggle for marriage equality.  I have been confident that the religious liberty concerns could be worked out, but doing so in advance avoids needless court cases in our already litigious society.  If it works,  NH’s law could be a model for other states where support for marriage equality is strong, but so are religious liberty concerns:  New York, New Jersey, Rhode Island, and even California.  When this inevitably reaches the federal level,  through the legislative repeal of the “Defense of Marriage Act” or through the courts or both, the NH “Lynch solution” may provide wisdom there, too. 

Below is the full text of Gov. Lynch’s speech, today, and the language he wants the NH law to include:

“The gay marriage debate in New Hampshire has been filled with passion and emotion on all sides.

“My personal views on the subject of marriage have been shaped by my own experience, tradition and upbringing. But as Governor of New Hampshire, I recognize that I have a responsibility to consider this issue through a broader lens.

“In the past weeks and months, I have spoken with lawmakers, religious leaders and citizens. My office has received thousands of phone calls, letters and emails. I have studied our current marriage and civil union laws, the laws of other states, the bills recently passed by the legislature and our history and traditions.

“Two years ago, we passed civil unions legislation here in New Hampshire. That law gave same-sex couples in civil unions the same rights and protections as marriage. And in typical New Hampshire fashion, the people of this state embraced civil unions and agreed we needed to continue our tradition of opposing discrimination.

“At its core, HB 436 simply changes the term ‘civil union’ to ‘civil marriage.’ Given the cultural, historical and religious significance of the word marriage, this is a meaningful change.

“I have heard, and I understand, the very real feelings of same-sex couples that a separate system is not an equal system. That a civil law that differentiates between their committed relationships and those of heterosexual couples undermines both their dignity and the legitimacy of their families.

“I have also heard, and I understand, the concerns of our citizens who have equally deep feelings and genuine religious beliefs about marriage. They fear that this legislation would interfere with the ability of religious groups to freely practice their faiths.

“Throughout history, our society’s views of civil rights have constantly evolved and expanded. New Hampshire’s great tradition has always been to come down on the side of individual liberties and protections.

“That is what I believe we must do today.

“But following that tradition means we must act to protect both the liberty of same-sex couples and religious liberty. In their current form, I do not believe these bills accomplish those goals.

“The Legislature took an important step by clearly differentiating between civil and religious marriage, and protecting religious groups from having to participate in marriage ceremonies that violate their fundamental religious beliefs.

“But the role of marriage in many faiths extends beyond the actual marriage ceremony.

“I have examined the laws of other states, including Vermont and Connecticut, which have recently passed same-sex marriage laws. Both go further in protecting religious institutions than the current New Hampshire legislation.

“This morning, I met with House and Senate leaders, and the sponsors of this legislation, and gave them language that will provide additional protections to religious institutions.

“This new language will provide the strongest and clearest protections for religious institutions and associations, and for the individuals working with such institutions.
It will make clear that they cannot be forced to act in ways that violate their deeply held religious principles.

“If the legislature passes this language, I will sign the same-sex marriage bill into law. If the legislature doesn’t pass these provisions, I will veto it.

“We can and must treat both same-sex couples and people of certain religious traditions with respect and dignity.

“I believe this proposed language will accomplish both of these goals and I urge the legislature to pass it.”

Attached is the language Gov. Lynch has proposed for the same Sex legislation.

# # #

I. Notwithstanding any other provision of law, a religious organization, association, or society, or any individual who is managed, directed, or supervised by or in conjunction with a religious organization, association or society, or any nonprofit institution or organization operated, supervised or controlled by or in conjunction with a religious organization, association or society, shall not be required to provide services, accommodations, advantages, facilities, goods or privileges to an individual if such request for such services, accommodations, advantages, facilities, goods or privileges is related to the solemnization of a marriage, the celebration of a marriage, or the promotion of marriage through religious counseling, programs, courses, retreats, or housing designated for married individuals, and such solemnization, celebration, or promotion of marriage is in violation of their religious beliefs and faith. Any refusal to provide services, accommodations, advantages, facilities, goods or privileges in accordance with this section shall not create any civil claim or cause of action or result in any state action to penalize or withhold benefits from such religious organization, association or society, or any individual who is managed, directed, or supervised by or in conjunction with a religious organization, association or society, or any nonprofit institution or organization operated, supervised or controlled by or in conjunction with a religious organization, association or society.

II. The marriage laws of this state shall not be construed to affect the ability of a fraternal benefit society to determine the admission of members pursuant to RSA 418:5, and shall not require a fraternal benefit society that has been established and is operating for charitable and educational purposes and which is operated, supervised or controlled by or in connection with a religious organization to provide insurance benefits to any person if to do so would violate the fraternal benefit society’s free exercise of religion as guaranteed by the first amendment of the Constitution of the United States and part 1, article 5 of the Constitution of New Hampshire

III. Nothing in this chapter shall be deemed or construed to limit the protections and exemptions provided to religious organizations under RSA § 354-A:18.

IV. Repeal. RSA 457-A, relative to civil unions, is repealed effective January 1, 2011, except that no new civil unions shall be established after January 1, 2010.

Maine Becomes 5th U.S. State to Permit Same-Sex Marriages

Gov.  John E. Balducci (D-ME) signed legislation today that puts Maine on the train of marriage equality.  With the signing of LD 1020, An Act to End Discrimination in Civil Marriage and Affirm Religious Freedom, Maine becomes the 5th U.S. State (not counting CA) to allow same-sex civil marriages and the 2nd (after Vermont) to do so by legislation rather than by decision of a state supreme court.  The ME law contained specific provisions that would protect religious groups who object to same-sex marriage from having their right to discriminate infringed, including protecting the right to refuse to use church (synagogue, etc.) property for a same-sex wedding ceremony even if the church (synagogue, etc.) was in the practice of renting out church property to non-church members for weddings.  With these provisions, the ME law takes notice of the religious liberty concerns that some people who are otherwise supportive of marriage equality had.  (I, myself, believe that these kinds of religious liberty conflicts could well have been handled by the courts in the same way that they were for interracial marriages after Loving v. Virginia in 1967, but if a law spells this out beforehand, it certainly saves time and trouble. 🙂 )

States with civil marriage equality now include Massachussetts, Connecticut,  Iowa, Vermont, and Maine.  Last year, California’s Supreme Court ruled in favor of marriage equality and same-sex marriages were legal for several months, but a ballot initiative known as Proposition 8 amended the state constitution to once more restrict civil marriages to heterosexual couples.  The legality of Proposition 8 itself (opponents claim that it is  not a simple amendment, but a major revision of the California constitution and thus cannot be made by simple ballot initiative) is itself being challenged in the state supreme court, but it is widely believed that Prop. 8 will stand.  (This will not end the struggle for marriage equality in CA, but will delay it.)

Next up is probably New Hampshire.  The NH legislature has passed marriage equality legislation,but the different versions between House and Senate (one chamber includes religious liberty provisions similiar to Me) have to be reconciled  [update] and today reconciled the two versions and this afternoon sent the final version (with religious protections similar to ME)  to the governor.  Gov.  David Lynch (D-NH) is an odd duck who hasn’t said whether or not he’ll sign the law and has said that his constituents SHOULD NOT call him with their opinions!!  Legislation supporting marriage equality has also been introduced in New York, New Jersey, and Rhode Island, but has yet to clear committee for floor votes in any of these states. 

It looks as if New England will be the first entire region of the nation where marriage equality will be the law of the land. Iowa is the lone state outside of New England where marriage equality is legal. Iowa is deep in the heartland of the nation and if the law stands there, then it will be a bellwhether for the rest of the nation.  What is happening in New England is amazing, but marriage equality supporters need to watch continued developments in Iowa to see how fast this victory will spread outside of New England–which is the most socially liberal region of the  nation.

Cf.: By contrast, the Louisiana legislature is moving to enact legislation that would prevent same-sex couples from both having their names on the birth certificates of children.  This would apply whether or not the children were by one partner from a previous heterosexual relationship, adopted by the couple, or conceived through in vitro fertilization.  In my view, this law seems particularly cruel:  A child learns to call both parents “mommy,” or “daddy,” but only one is legally entitled to that honorific?  And the practical implications are devastating; as one example, it would all but force hospitals to discriminate against the parent that was not legally “family” in cases where all but family are isolated from the patient.  Or, if the legal parent died, this law would make it hard for the other parent to have custody–she or he would have to adopt and there would be custody battles.  This anti-family law , if passed, will hurt the children most of all.

So, one sees that the struggle for equal treatment under the law continues–and not everywhere at the same speed or even in the same direction.

Replacing Souter: Criteria for a Supreme Court Justice

The Constitution of the United States does not give any binding criteria of eligibility for Justices of the Supreme Court.  This contrasts strongly with the President and members of Congress in which age and citizenship requirements are spelled out (the President and VP may not be naturalized citizens).  Theoretically, anyone could be appointed to the Supreme Court–provided the Senate approves for the Constitution requires the “advice and consent” of the Senate. Usually, this has meant a simple majority unless an attempt at filibuster means that 60 senators must agree to “invoke cloture” and end debate and go to a vote.

In practice, however, Justices have always been appointed who were familiar with the law of the land.  They were expected to be lawyers who had passed the bar exam and were licensed to practice law in one or more of the respective states of the union.  After law schools became common (19th C.), all Justices were expected to have law degrees.  Sitting judges from lower courts, especially appellate courts, have formed the bulk of the Justices.  (All of the current members of the Supreme Court were appellate judges, for instance, though both Souter and Clarence Thomas had only served briefly before being nominated to the Supreme Court of the United States [SCOTUS].) But that has not always been the case.  Beginning with the first Chief Justice, John Jay (1745-1829), there have been numerous justices who spent part of their careers as working politicians.  (Jay had been President under the Articles of Confederation, prior  to the adoption of the current Constitution, as well as minister (ambassador) to France and Spain and later Secretary of Foreign Affairs (i.e., Secretary of State).  A signer of the Constitution, he was also a co-author of The Federalist Papers.   Later he was Governor of New York.) In the 20th C., such working politicians who became Supreme Court justices included William Howard Taft (previously U.S. President), Charles Evans Hughes (former governor of NY and Republican candidate for U.S. president), Earl Warren (former governor of California), and Hugo L. Black (Democratic Senator from Alabama).  There have also been numerous legal scholars at law schools and high-ranking members of the Department of Justice–especially Attorneys General and Solicitors General.  (The great Thurgood Marshall, first African-American justice, had been Pres. Lyndon Baines Johnson’s Solicitor General. The Solicitor General pleads the government’s cases before the SCOTUS.)

So, Pres. Obama has a wide array of choices before him.  The Senate favors confirming appellate judges, but Obama has said he is looking for someone with real world experience, not just academic brilliance.  So, he might incline to reviving the tradition of appointing a working politician, or someone working as legal counsel for a human rights organization or for labor or for children.  We also know he favors brilliance and he favors legal appointments whose legal degrees come from the Ivy League schools (Harvard, Yale, Columbia, Princeton, ) or sometimes Chicago or Stanford.  In my view, this is a welcome change from the Bush administration’s habit of appointing legal people with degrees from fundamentalist diploma mills like Pat Robertson’s Regent University, but that Obama should work to diversify.  There are plenty of excellent legal minds which went to good law schools attached to state universities (e.g., University of Michigan) and from a much broader range of the country.  The Ivy League is excellent, but is not everything.

If I were a gambler (which I am not), I would wager a large sum that his appointment will be a woman.  We only have one woman on the Supreme Court and this is far inferior to other nations.  Further, we know from studying appellate courts that the presence of more than one female judge influences the judgments of the male judges.  Since women are 51% of this country, this imbalance is long overdue correcting. And women are nearly 60% of the Democratic Party,  so Obama will feel major pressure to appoint a woman–to say nothing of the fact that Michelle Obama, his wife, is also a Harvard-trained lawyer. 

There will also be pressure from African-Americans to appoint another African-American and from Hispanics to appoint the first Hispanic justice. (Asians and Native Americans are too small a fraction of the population to put real pressure on Obama in this way, but they will doubtless lobby for a member of one of their ethnic groups, too.)  Yet, Obama has never been the “quota” type of Affirmative-Action believer.  He has a diverse cabinet, but looked to qualifications first and foremost. (Those on the right who predicted he would fill his cabinet with African-Americans have been shown wrong. If anything, they are slightly under-represented.)

I would love to see greater diversity on the court, but my priorities are excellence, defense of civil liberties, and a tilt toward seeing the law on the side of the poor, marginalized, and weak, rather than on the side of corporations.

If I were advising the president (yeah, right), I would want someone who:

• Believes strongly in religious liberty and church-state separation.  Membership in Americans United for Separation of Church and State or a similar group would be a huge plus.  If the nominee is a judge, I would look for opinions that represent the previous high separation standards, prior to the erosion of the wall late in the BurgerCourt and all through the Rhenquist Court and continuing so far in the Roberts Court. 
• Believes strongly in civil liberties more broadly, especially free speech, assembly, privacy, the press.  I would want a justice that defends the civil liberties of suspects,  too, and keeps high standards for police and government agencies in the collection of evidence.
• Is suspicious of the very idea of corporations as persons (Santa Clara County v. Southern Pacific Railroad, 1886) and generally favors the rights of individuals over corporations and the common good, including the ecological common good, over corporations.
• Believes in equal justice for all regardless of race, religion, ethnicity, sex, gender identity, sexual orientation, or physical or mental disability.
• Believes strongly in the separation of powers and checks and balances and rejects the “unitary executive” idea of Yoo and co. which makes the president an elected dictator, at least in time of war.  Strongly reserves the right to declare war to Congress as Article 1 prescribes.
• Is more inclined to see democracy threatened by state secrets than by too much information in the hands of the people.
• I would love a true opponent of the death penalty, no hedging, on SCOTUS, since we have not had one since Marshall’s retirement. (We never had a majority of those believing the death penalty was wrong.)  However, if this was well known, I am not sure such a person could get confirmed by the Senate.  Fortunately, abortion comes up at senate hearings far more often than the death penalty.
• I would love someone who believes  that Article 1 of the Constitution means what it says–that ratified treaties share with the Constitution the status of “highest law of the land.”  Thus, no executive can decide that the “Geneva Conventions are outmoded and quaint”  as some of the Bush administration did.

Would such a nominee be able to be confirmed?  Hard to say. Much would depend on the person’s ability to articulately defend her or his views before the Senate.  It’s not the Republicans so much that Obama’s nominee would need to watch (now that they have only 40 seats in the Senate!), but the centrist and conservative Democratic senators who meet with Evan Bayh of Indiana.  If Obama’s nominee seems to them to be too far from mainstream legal opinion, s/he would be in trouble.  So, for instance, I think we could get a strong torture opponent, but not someone who was as outspoken against torture during the Bush years as Dawn Johsen, Obama’s yet-to-be-confirmed nominee for Deputy Attorney General for the Office of Legal Counsel.  Obama wouldn’t want to see such a long hold up. 

What criteria would you suggest for such a nominee?

Connecticut: 4th U.S. State to Allow Same-Sex Marriage (updated)

Update:  CT’s Supreme Court actually struck down the ban on same-sex marriage last fall.  This month, the CT legislature enacted the enabling legislation to implement that ruling. On Thurs.  Gov. Jodi Rell signed into law the new marriage equality standards.

A timeline of the recent struggle for (civil) marriage equality in the United States.

• 1992: The District of Columbia allows domestic partnerships of same-sex couples that qualify for a limited number of rights.  These rights are expanded in 2002, 2005, 2007, and 2008.
• 1997:  Hawai’i passes a law allowing “reciprocal beneficiary relationships” to qualify for  many rights of marriage.
• 2000: Vermont becomes the first state in the union to legalize same-sex civil unions which offer gay and lesbian couples many of the same legal rights as marriage.
• 2000:  California passes a “domestic partnership law” which allows same-sex couples (and non-married heterosexual couples) to have many of the same rights as married persons.
• 2004: The Massachusetts State Supreme Court rules that restricting civil marriage to heterosexual couples violates the equal protection clauses of the MA Constitution.  With that decision, MA becomes the first state in the U.S. where same-sex couples can marry. This leads to a storm of controversy that plays a major factor in the 2004 presidential election and several other elections, as many states (including, alas, my adopted home in the Commonwealth of Kentucky) rush to put ballot measures in place that will amend their state constitutions to rule out same-sex marriage. This increases conservative Republican turnout in several swing states, including OH (where many voting irregularities were reported) and is, at least, one factor in the narrow “re”-election of then-Pres. George W. Bush.
• 2004:  Maine and New Jersey pass laws allowing for domestic partnerships with some of the rights and benefits of marriage.
• 2005:  Connecticut allows for civil unions, but not marriage for same-sex couples.
• 2007: New Jersey allows for same-sex civil unions with many of the rights and benefits of marriage.
• 2007: Washington State  passes a Domestic Partnership law which is expanded in 2008.  In March 2009, Washington State updates its Domestic Partnership law to include all the legal rights and benefits of marriage, but the TERM “marriage” is left for heterosexual couples.
• 2008: Domestic Partnerships are granted in Oregon and Maryland.
• 2008: New Hampshire (which in 2004 saw the first openly gay Episcopal priest consecrated as Bishop) passed a civil union law that is nearly equivalent to heterosexual marriage.
• 2008: California had been gradually expanding its Domestic Partnership law, but in May the CA Supreme Court ruled that the state ban on same-sex marriage was a violation of the state constitution.  Many gay couples rushed to get married, but opponents of same-sex marriage struck back with a ballot measure amending the state constitution to forbid same-sex marriage.  That ballot measure, Proposition 8, passed on 04 November.  Proposition 8 itself has been challenged in the CA Supreme Court (with attorneys claiming that this is not a simple amendment, but a radical revision, to the CA Constitution and, thus, needed to go through the legislature and not directly to ballot). The Court has not yet ruled on this question, but from comments during oral arguments seems inclined to uphold Prop. 8, but reluctant to nullify the thousands of same-sex marriages performed during the few months of legality.
• 2008: New York’s legislature narrowly defeated a same-sex marriage law, but did vote to recognize same-sex marriages performed elsewhere.
• 2009: 03 April, the Iowa State Supreme Court unanimously ruled that the state’s ban on same-sex marriages violates the Iowa Constitution, thereby legalizing same-sex marriage. Iowa is the first “heartland” (e.g., not on either of the coasts; generally speaking the heartland  states are more conservative on social issues than states on either coast) state to legalize same-sex marriage.  It should be difficult to reverse:  In normal circumstances any amendment to the Iowa Constitution must pass in identical wording in both houses of the state legislature 2 years in a row and then be put on a ballot measure for voter approval.  The Democratic leaders of both houses have  said they will not let any such measure out of committee. But same-sex marriage opponents are pushing for a Constitutional Convention (and trying to make this a campaign issue for 2010 elections) which could radically alter the state constitution directly.
• 2009: 07 April, the District of Columbia city council votes to recognize same-sex marriages performed elsewhere.
• 2009:  07 April, Vermont’s legislature overrides the governor’s veto to legalize same-sex marriage. VT, which passed civil unions in 2000, became the 3rd state (after Prop. 8 reversed things in CA) to legalize same-sex marriage and the first to do so legislatively.
• 2009: 24 April, in a 4-3 decision, Connecticut’s Supreme Court strikes down its ban on same-sex marriage, thereby making it the 4th state to legalize same-sex marriage.

More on the way: 

• A Bill legalizing same-sex marriage has been introduced into the New York state legislature.  Last year this bill passed the House but failed in the Senate. This year there is the chance that it could narrowly pass the Senate. Gov. Patterson (D-NY), who introduced this year’s version, has promised to sign the bill.  53% of New Yorkers support same-sex marriage.  If this year’s bill fails to pass the NY senate, it will be reintroduced in 2011 after the 2010 midterms–and will be a campaign issue in 2010.
• A Bill legalizing same-sex marriage has passed the New Hampshire House, but is held up in the Senate.  The NH governor has not said whether he would sign or veto the measure.  Yet, a veto would merely delay, not stop the move to marriage equality in NH.  Much popular pressure is being placed on the NH governor to change his mind and sign the bill.  The bill goes to the Senate floor on Wednesday, but the vote will be very close. Everything depends on 3 very wobbly Democrats.
• A Bill legalizing same-sex marriage has been introduced into the legislature of New Jersey.
• A Bill legalizing same-sex marriage has been introduced to the Maine legislature which held hearings open to the public in early April. Although some spoke out against the measure, the reading of the bill was met with thunderous applause–something rare in legislative sessions anywhere.
• I expect the 1996 “Defense of Marriage Act” which forbids national recognition of same-sex marriage to be either repealed or challenged in the courts before the end of  Obama’s first term as president. (Not this year, however, and probably not before 2011.)  Because of DOMA, same-sex couples in marriages, civil unions, or domestic partnerships are denied the 1,138 rights  and benefits that heterosexual married couples have under federal law.

If the struggle continues on a state-by-state basis, FiveThirtyEight.com’s statistical genius, Nate Silver, predicts that by 2024 same-sex marriage will be legal in all 50 states (with Mississippi predictably being the last state to legalize same-sex marriage).  Here is his break-down.  Actually, after enough states legalize marriage equality, it is likely that a challenge will be raised in the Supreme Court of the United States (SCOTUS), although I hope we have more progressive justices on the bench before then.  But Nate points out that this state-by-state move shows that this will not be able to be used as a wedge issue by conservatives for much longer, and soon it may actually benefit progressives–although this will be at different rates in different  regions of the country. (I predict FL to be the first Southeastern state to legalize same-sex marriage, although it just amended its state constitution to ban it in 2008.  I think that will be reversed by 2014 at the latest.  Colorado will probably be the first non-coastal Western state to legalize same-sex marriage, although the struggle will be titanic because of the Focus on the Family headquarters in Colorado Springs. )

There are also seven (7) nations that recognize same-sex marriages:  The Netherlands (2001); Belgium (2003); Canada (2005); Spain (2005); South Africa (2005); Norway (2008); Sweden (2009).

Civil Unions and Domestic Partnerships are legal in 14 countries:

• Denmark (1989)
• Hungary (1995)
• Iceland (1996) In 2009, Iceland became the first modern nation to elect an openly lesbian prime minister, but with a financial crisis many times that of the U.S., she has her hands full!
• Portugal (n.d.)
• Switzerland (n.d.)
• Germany (n.d.)
• France (1999)
• Finland (2001)
• Croatia (2003)
• Luxembourg (2004)
• New Zealand (2004)
• United Kingdom (2005)
• Mexico (2006)
• Brazil (State of Rio Grande do Sul only–2006).

Congrats, LGBTQ folk!  This straight ally longs for the day when neither sexual orientation nor gender identity is a cause of discrimination anywhere in the world.  Marriage equality marches dances onward!