The vox populi says No
Despite a recent victory in New York, same-sex marriage is far from being mainstream.
In June the New York State Assembly approved same-sex marriage, 33 votes to 29, making New York the sixth state out of fifty to issue marriage licences to gay couples. The press of the entire world conveyed the impression that gay marriage has become mainstream in American culture and therefore it is only a matter of time before it is recognized in the whole country.
The truth, for the time being at least, is the exact opposite. Every time the issue has been put to the people in a referendum, the outcome has been a round “NO”. This has been the case everywhere, even in states that are in the vanguard of modernity and permissiveness, like California. Thirty-one states out of fifty have held referendums and in every case the majority of ordinary people voted against same-sex marriage.
If this is the case, then why did it pass in those six states? Thanks solely to either courts of law or to politics pressured by intense campaigns, capable of mustering huge amounts of capital.
The current federal law was signed in 1996 by President Bill Clinton and is known as DOMA, an acronym for Defence of Marriage Act.
DOMA defines marriage as a union between one man and one woman and also asserts the constitutional right of each state to deny recognition to same-sex marriages celebrated in another state. Following the passage of DOMA, a majority of the fifty states (37 out of 50 and counting) have defined marriage in their own constitutions as a union between one man and one woman.
It was only in 2003 that gay marriage was first recognized. The breakthrough came in ultra-liberal Massachusetts, which set an example for other liberal North Eastern states: Connecticut (2008), Vermont (2009) and New Hampshire (2010). In 2009 it was approved in the Midwestern state of Iowa, followed now by New York (2011). Add to these the District of Columbia (the area surrounding Washington that does not belong to any state) and the decision by Maryland in 2010 to automatically recognize same-sex marriages celebrated in other states, and you have the sum total of US jurisdictions that recognize same-sex marriage.
But none of these decisions have ever come from the people.
In the 31 states where the people were consulted, what prevailed was always the will to defend marriage between man and woman, even when this opposed verdicts or laws that had already been passed.
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In 2012 look for more victories to come at the ballot box as North Carolina and Minnesota affirm marriage.
The premise is fundamentally flawed: there’s no legal or logical reason to permit a majority to vote on the rights of a minority. In fact, the US Constitution’s 14th Amendment essentially prohibits it. We’ve seen time and again that a powerful majority will act to preserve rights and advantage for itself, to the detriment of a minority. That’s why we have judges and constitutions, in part: to protect the rights of minorities.
I don’t think that anyone would claim that the right to gay marriage is “mainstream” (yet), given that only 10% of Americans now live in states that allow gay couples to wed. However, SUPPORT for the rights of same-sex couples to wed is definitely going mainstream. Even if it’s not half of the country yet in every poll, it’s pushing that boundary for sure. And to think this support has happened this quickly just warms my heart.
Emma lives in a dream world. The majority do not support SSM. It has not gone mainstream as evidenced by the results at the ballot box. I see more pushback and see the homosexuals losing by even greater numbers in the future.
Baker v. Nelson specifically raised the 14th amendment issue and the case was dismissed. There is no legal or logical reason permit a group, majority or minority, to invent new rights that the courts have previously dismissed without the approval of the governed by passing a new law or constitutional amendment. Every amendment was subject to a vote, including the bill of rights. Suddenly stare decisis and the consent of the governed are considered illogical, illegal, and flawed. That is the path to tyranny. Every dictatorship has courts. No dictatorship has a functioning democracy.
Emma and the legislature of New York are also making the case that this is not a matter for strict scrutiny. The highest court in New York properly rejected SSM, but the legislature passed a new law allowing SSM.
@Leo
“Emma and the legislature of New York are also making the case that this is not a matter for strict scrutiny. The highest court in New York properly rejected SSM, but the legislature passed a new law allowing SSM.”
How does that jive with previous posts and comments about SSM only getting through due to “activist judges” and “legislating from the bench”?
“Baker v. Nelson specifically raised the 14th amendment issue and the case was dismissed.”
Many, many changes since Baker: gay sex is no longer illegal, some states have legal same-sex marriage, majority of Americans support it, federal and state governments have laws against discriminating against gays, etc.
The government can’t favor one group of citizens over another without a rational public purpose. There is no rational public purpose in giving marriage licenses to straight couples, but not to gay couples.
@Sean
The 14th amendment hasn’t changed since Baker. Baker came after Loving. None of the changes you mention require a reinterpretation of Baker. Indeed, they fatally undermine your claim for strict scrutiny.
This whole site has been about the rationality of marriage as a heterosexual institution. It is hard to imagine a historical institution existing without having an evolutionary advantage for a society that explains its universality and endurance. Imagine, in contrast, a society where everyone was gay or encouraged to act like gays. Then estimate its long term demographic viability. You have to believe that every historic society was irrational and that their survival is accidental.
There is no rational public purpose in favoring gay couples over singletons or threesomes or other multiples.
New York proved that the judicial route is not the only route possible. That doesn’t justify judicial activism. In fact, it undermines the case for it.