The New State-by-State Fight for Gay Marriage

By Molly Ball
prop8.banner.reuters.jpg
Paul Katami and Jeff Zarrillo, plaintiffs in the Prop 8 case, get married in Los Angeles on June 28. (Lucy Nicholson/Reuters)

For advocates of gay marriage, the Supreme Court's two recent decisions on the subject were a watershed moment. Now the question is: What next?

With jurisprudence, public opinion, and state laws all seeming to be moving in their direction, the future looks bright for their cause. But the campaigners at Freedom to Marry, the only national group solely devoted to gay-marriage advocacy, believe it is time not to rest on laurels but to fight harder than ever. And they have a plan to do just that.

The group's new strategic plan, revealed exclusively to The Atlantic and scheduled to be formally announced Tuesday, sets ambitious targets for the near term: By 2016, it says, the majority of Americans should live in states where gay marriage is legal, and national public approval should top 60 percent. (Currently, 30 percent live in such states, and the issue generally polls between 50 and 58 percent.) The group also hopes to see passage of federal legislation fully repealing the Defense of Marriage Act, only part of which was invalidated by the recent Supreme Court challenge.

The group, which was instrumental in funding and directing four winning gay-marriage ballot campaigns in 2012, has set its sights on four states where it will push for legal same-sex marriage in 2013-14, whether through state legislation or ballot initiative: Illinois, New Jersey, Hawaii, and Oregon. This year alone, it will devote $2 million to these efforts. In 2015-16, Freedom to Marry plans to work in as many as six additional states, and it has hired a respected operative with experience in both ballot and legislative campaigns to oversee all its state-level efforts.

Evan Wolfson, Freedom to Marry's founder and president, said it's important to keep up the momentum in favor of same-sex marriage. "The only thing I come close to worrying about is that people think it's going to take care of itself," Wolfson, a veteran activist and litigator who has been working for gay marriage for three decades, told me. "I am very confident we're going to get there, but it just doesn't do itself. We have to do the work."

Three states voted to legalize gay marriage in November 2012 -- Maine, Maryland, and Washington -- while another, Minnesota, voted against a proposed constitutional amendment that would have banned gay marriage in the state. It was the first time such an initiative had been voted down; the Supreme Court recently invalidated California's ban, known as Proposition 8, but 29 states still have constitutional bans on gay marriage.

The Minnesota vote did not legalize gay marriage in the state, but activists pushed on to the Legislature -- which flipped from Republican to Democratic control in 2012 -- and won passage of a gay-marriage law in May. Both the ballot campaign and the legislative push were led by Richard Carlbom, a young operative who got his start in politics when he served as mayor of the small Minnesota town of St. Joseph at age 23. Carlbom, who will marry his partner in St. Paul in December, has just been hired by Freedom to Marry to serve as its state director.

With the many recent victories, activists all over the country are eager to move their states forward, Carlbom told me. But the successes to date have depended on a deliberate, strategic approach, and it will be important to proceed in the same careful manner, he said.

"We understand the excitement [of all the recent progress] is going to trigger an incredible amount of activity in various different states," he said. "We have to go in and make sure there's a plan to win in place."

Freedom to Marry is backing a 2014 ballot initiative in Oregon and will announce Tuesday a $250,000 contribution to that campaign. The group will donate another $250,000 today to three other states where it hopes to see gay marriage achieved through legislation:

* Illinois: Earlier this year, the state Senate passed a gay-marriage bill, but the state House declined to take it up. If the measure can get through the legislature, Democratic Governor Pat Quinn says he will sign it.

* New Jersey: The legislature passed a gay-marriage bill last year, but Governor Chris Christie vetoed it. Legislators could either pass a new bill, challenging Christie -- who is up for reelection in a liberal-leaning state -- to veto it again. Or they could try to override his veto, which would require more votes from Republican lawmakers reluctant to go against Christie.

* Hawaii: One of the first gay-marriage battlegrounds, Hawaii saw a state Supreme Court ruling in favor of same-sex marriage in 1993 superseded by a public vote that threw the measure back to the legislature, which banned it. Legislators in the state, one of the most Democratic in the country, hope to reverse the ban.

In four more states -- Colorado, Nevada, New Mexico, and Ohio -- Freedom to Marry is already working toward legalization in 2015-16. (One of the lessons of the 2012 victories was that it's important to lay groundwork far in advance, before the heat of a campaign's final months.) In two more, Arizona and Michigan, it is considering whether to invest.

In 2012, state-based gay-marriage campaigns were testing an untried strategy; now, they have a proven template. "We are really well equipped to play a lead role with our partner organizations in the next round of states," said Marc Solomon, Freedom to Marry's national campaign director. "We have it down pat in some respects -- how to win in a state legislature, how to win at the ballot."

At the federal level, the push to pass the Respect for Marriage Act, which would undo DOMA and other federal marriage restrictions, is gaining steam. Supported by just 18 senators and 108 representatives when it was introduced in 2011, the bill now has 42 senators and 161 representatives publicly backing it. The group also has an initiative, Mayors for the Freedom to Marry, which it hopes to grow from more than 300 mayors in 30 states to 500 representing all 50 states.

All this activity is, in a way, pointless: Every gay-marriage campaigner expects the Supreme Court eventually to determine that bans on the practice violate the U.S. Constitution, a judgment that would legalize same-sex marriage nationwide -- and render the efforts at state-by-state legalization moot. The recent DOMA decision, written by Justice Anthony Kennedy in sweeping, empathetic language that invoked the 14th Amendment, lent credence to this view.

Wolfson expects the big decision to come within the next decade (his friends at the Human Rights Campaign put it at five years). But the ways of courts are murky and unpredictable. And courts, Wolfson says, are reluctant to impose sweeping changes on a society that doesn't seem receptive. There were, he noted, two decisions in which the Supreme Court declined to rule broadly for interracial couples before it finally decreed, in the famous 1967 case Loving v. Virginia, that interracial marriage could not be banned.

From his days as a gay-rights litigator, Wolfson said, he learned that good lawyering is not enough -- you need politics. "The legal arm of our movement has always been the strongest. We have terrific lawyers who know how to advance the cause at the courts," he told me. "But we need to make the same strong case in the court of public opinion. Otherwise, the courts are afraid to get it right." From Hawaii in 1993 to California in 2008, history is full of legal victories for gay marriage that were snatched away by a countervailing political assault.

Today, the politics and the jurisprudence seem to be in lockstep, and progress has come shockingly fast. If Freedom to Marry hits its newest targets, it will be well on the way to the ultimate objective. "It has always been my goal," Wolfson said, "to put Freedom to Marry out of business."

This article available online at:

http://www.theatlantic.com/politics/archive/2013/07/the-new-state-by-state-fight-for-gay-marriage/277557/