Gay marriage politics, as New York joins the party

Two weeks after the California Supreme Court injected gay marriage back in the national discussion by legalizing gay marriage, New York State joined the party last night when recently promoted Governor Paterson issued a directive instructing state agencies to recognize same-sex marriages performed elsewhere (read: California, Massachusetts, Canada and a few European countries). In other words, a couple married in Boston will be allowed to file a joint tax return in New York even though they are not able to get wed in the Empire State, making it the only state which does not allow gay marriage but recognizes those of other states.

Eliot Spitzer and now David Paterson are both favorable to gay marriage, but the state Senate, still controlled by Republicans by the tiniest of margins, blocked the legislation introduced by Spitzer intended to legalize it. Without the backing of the legislature, issuing a directive to recognize out-of-state marriages is the only move Paterson could have made.

This development changes the national debate a bit, since an important reason given by advocates of constitutional amendments banning gay marriage at the state level is that states who are against gay marriage might be forced to recognize those performed in "hippie" states with loose morals like Massachusetts and now California. That is also one of the main rationales for the Defense of Marriage Act passed in 1996 and signed by Bill Clinton. But here is now the first state that recognizes out-of-state marriages, and does so voluntarily, without any court injunction (in fact the New York court system already ruled against cases that demanded the legalization of gay marriage).

These recent developments are creating two widely diverging state of affairs within the same country. On the one hand are states that are coastal states that are taking a very progressive position and in which gay couples now have most if not all of the rights reserved to straight couples. On the other hand are states like Virginia and many of the places that passed gay marriage amendments where gay rights are worsening, as many of the rights that gay couples were able to claim until recently were undermined by the amendments that were supposedly concerned with gay marriage but that banned all sorts of other arrangements, making it impossible for couples in states with "super-hate amendments" to have any sort of rights.

Electorally (this is, after all, an electoral blog), this creates a curious situation: If gay rights become so differentiated regionally, will the issue have as much of an impact in states that now have strong constitutional provisions against gay marriage and that are thus not at risk of having their supreme courts rule in favor of it? The only way in which gay marriage could be introduced in places like that is if the federal Supreme Court intervenes and, given the court's composition, that is unlikely to happen before many decades.

In brief, the GOP might have overplayed their hand. The reason abortion remains so powerful an issue is that it is still legal everywhere, even though Republicans had many chances to actually do something about it (given how many Justices they appointed over the past thirty years, the road to an anti-Roe majority was open to them). But with constitutional amendments taking the issue off the table in many states, gay marriage is unlikely to replace abortion as the wedge issue the GOP will use to hammer Democrats. Not to mention that the amendment's defeat in Arizona in 2006 showed that the tide might be turning.

As for the more progressive states, the shift in public opinion is even more obvious as gay rights are now increasingly removed from the realm of issues the GOP will even think of exploiting given that it is they who would come to look regressive. The latest Field Poll, California's most trusted and reputable pollster, found this week that a majority of Californians now favor gay marriage: 51% versus 42%. That's a stunning turnaround from past years, as it was 30% support in 1985, 37% in 1997 and 44% in 2006. Among the 18-29 year old age group, 68% support gay marriage, suggesting that its recent emphasis on social issues contributed to the GOP's losing its grip on an entire generation.

The Field Poll also finds that a majority of Californians would oppose a gay marriage amendment if it makes its way to the November ballot, striking a blow to Republican hopes that they can overturn the Supreme Court's decision at the ballot and confirming that the referendum is not likely to influence the presidential election or threaten Obama with the loss of California's 55 electoral votes.

Update: As a new New York Times article reveals, it looks like David Paterson will be remembered as a key player in the gay rights movement given the obstinacy with which he advocated these issues since the 1980s.

Same-sex marriage legalized in California

In a decision that will have obvious consequences on the presidential race, the California Supreme Court rejected state marriage laws as discriminatory, making California the second state in the country after Massachusetts to legalize same-sex marriages.

The ruling was closely divided, 4 votes to 3, but this is a moderately conservative court, dominated by Republican appointments (6 to 1). An appeal is expected to the federal Supreme Court but they have never taken up the issue of gay marriage and it is unlikely they will do so now. Thus there is nothing to stop licenses from being issued later this spring. Note that California already had a domestic partnership program that was among the most ambitious in the country, as it granted pretty much all marriage rights to gay couples.

Opponents are already gearing up for a showdown at the polls to pass a constitutional amendment banning gay marriage in November -- though even that will be too late to stop the marriages that will take place until then. A coalition of religious and conservative groups had already submitted a petition to place the issue on the fall ballot; the petition is being currently reviewed by the Secretary of State's office. 763,790 signatures out of 1,1 million have to be valid, and past rates of signature validity don't guarantee that this one will make it.

Predictably, Republican leaders are enraged against these "activist judges." Rep. Roy Blunt, who is high up in the GOP's House leadership, issued a statement lamenting that "the decision of unelected judges to overturn the will of the people of California on the question of same-sex marriage demonstrates the lengths that unelected judges will go to substitute their own worldview for the wisdom of the American people." He added that "these California values are not the values of the majority of the American people."

But the GOP is in a bind here. First, these California judges are confirmed by voters -- so they are dependent on the democratic process. Second, the California legislature twice passed a law legalizing gay marriage; twice Governor Schwarzenegger vetoed the bill saying that the matter should be settled by the judiciary and that the matter was already making its way through the courts. That's not going to stop Republicans from denouncing the activist judges, but the fact that the state's Republican governor declined to listen to the legislature and asked the court to rules makes their argument weaker. To his credit, Schwarzenegger did not criticize today's decision and stated that, "As I have said in the past, I will not support an amendment to the constitution that would overturn this state Supreme Court ruling."

The presidential campaigns, meanwhile, have stayed largely silent on this issue today. Today's ruling brings back the debate over same-sex marriage in the political discussio; it had largely faded since 2004. That year, George Bush benefited from two factors: (1) Discussion of gay marriage made values and social issues crucial to the campaign and (2) a bunch of states passed constitutional amendments that Republicans helped put on the ballot to boost conservative turnout. It has been debated whether these referendums actually changed turnout rates and helped Bush that much, but there is no question that heavy discussion of those issues did not help John Kerry.

This year is likely to be different, however. For one, gay marriage is already less polarizing than it was 4 years ago. Arizona rejected a constitutional marriage amendment in 2006, South Dakota almost did the same. Schwarzenegger's opposition will make it even more difficult for conservatives to win the battle. It is true that anything that will drive conservatives to the polls will be welcome by McCain considering that his campaign is worried the most die-heart conservatives will be reluctant to support him, but I remain skeptical that this will impact the field of battle in California.

Second, gay marriage is unlikely to make that successful a comeback at the national level as well for the simple reason that John McCain is reluctant to campaign on any social issues, let alone gay marriage. If he rarely brought up abortion during the primary -- though this was the one issue on which he had the most conservative record, he is even less likely to campaign on gay marriage in the general. After all, he voted against the federal marriage amendment when it came up in the Senate a few years ago. Also, Democrats are much less shy about the issue than they were in 2004, when Kerry shockingly said that he would vote in favor of the Missouri anti-gay marriage amendment if he were a Missouri resident. Both Obama and Clinton are stronger on gay rights this time, testifying to the change of climate just in the past 4 years.

Update: It looks like the new conservative strategy is the constant deferral of the decision from the legislative to the judiciary power. Here is how the New York Times describes the dissenting opinion in today's ruling:

Justice Marvin R. Baxter, dissenting, said the majority had should have deferred to the state Legislature on whether to allow same-sex marriage, particularly given the increased legal protections for same-sex couples enacted in recent years.

“But a bare majority of this court,” Justice Baxter wrote, “not satisfied with the pace of democratic change, now abruptly forestalls that process and substitutes, by judicial fiat, its own social policy views for those expressed by the people themselves.”

Given that the legislature had legalized gay marriage, bills that had been vetoed because the Republican governor said he wanted to defer to the state Supreme Court, it's hard to make any sense of Justice Baxter's prescription.