Gay Rights Victories in Washington State and California Plus Defeat in New Jersey

We have two more victories for the gay rights movement and one defeat.  First, Washington state recently approved a law allowing gay marriage, becoming the seventh state to allow it (Connecticut, Massachusetts, New York, New Hampshire, Vermont, Iowa, and Washington DC already allow it).  The law won’t take effect until 7 June.  There will certainly be challenges to Washington state’s action.  I suspect that, if anything, these measures will merely delay and ultimately fail to stop the legalization of gay marriage in Washington state.

Also, Proposition 8 was struck down by the 9^th Circuit Court.  This upholds a lower court ruling.  Prop 8 is a ban on gay marriage passed by California voters.  In this most recent ruling, the court was careful to confine its ruling only to California and not to extrapolate it further (which makes sense given the scope of Prop 8).  Confining the ruling to California is important because this court has jurisdiction over multiple states. 

This is not a surprise to me.  It was struck down on the grounds that it violates the 14^th Amendment rights of gay people in California.  This is essentially the same exact rationale I’ve pointed out repeatedly in the past, so I won’t restate it.

Going forward, gay marriage will not yet be allowed in California, as Prop 8 supporters have been given time to formulate their next move.  Most likely, their next move will be to appeal to the entire 9^th Circuit Court (11 members, versus the three members who ruled 2-1 here).   Unquestionably, the ruling is a victory for the gay rights movement.  It’s about as total of a victory as could be expected, but the legalities are not over.

Despite the good news, there was still a defeat in New Jersey.  The state legislature passed a bill this week, but the governor, Chris Christie, vetoed it based on his belief that popular vote should decide the matter instead of the legislative process.  Note that a 2/3 majority in both houses of the New Jersey legislature could overturn the veto.  The bill passed the Senate 24-16 mostly on party lines (two Democrats votes against it and two Republicans voted for it) and 42-33 in the Assembly.  Both houses are short of the 2/3 requirement for a veto and I suspect this is how it will remain.  I view this as a minor setback and Christie delaying the inevitable in New Jersey, but still a defeat nevertheless.

On a side note, I suspect Christie has presidential ambitions, and not vetoing the bill would hurt future efforts to rise through the GOP.  In order to become president, you have to first become your party’s nominee.  This is all a whole other topic, of course, so I won’t delve further here.

There are other battlegrounds, too.  Maryland is shaping up to follow the lead of Washington and New Jersey with legislative debate.  Longer term, there could be a proposal on the ballot in Maine this year to allow gay marriage, along with proposals in North Carolina and Minnesota to ban gay marriage. 

As I’ve discussed previously, the biggest battle is on the federal level regarding DOMA.  The Obama administration is no longer defending DOMA, but merely refusing to defend the law doesn’t eliminate it as a threat because the refusal to defend DOMA can easily be reversed in the future.  Only a full repeal of DOMA works here.  Unconstitutional as it may be, don’t expect anything to happen on this front in an election year, but be aware of its importance.

In general, I’ve been content to leave aside the question of what is the most appropriate avenue for getting gay marriage legalized.  Even in this post, we’ve seen court rulings, the legislative process, and popular referendum discussed at the state level, along with DOMA on the federal level (the Supreme Court may even end up involved).  The issue is a whole post in itself and is now in my backlog.

Considering how many states have yet to legalize gay marriage, it’s kind of surprising that a pair of decisive wins (and potentially more) come so close together if we were to consider these events in a vacuum. Maybe it’s not so shocking if we consider them together because the Prop 8 ruling would have given the Washington state legislature and governor the necessary political push to pass a measure legalizing gay marriage.  Either way, these are two huge victories and one minor setback in a much longer struggle.