On Tuesday, Nov. 4, 2008, I was standing in a bar in San Jose, California watching the election results with other LGBT advocates. America was about to make histo- ry—voters would choose for the first time a non-white person to be her leader. Between the two candidates, Mr. Obama was significantly better on LGBT issues, and so for those of us who placed an extremely high importance on those issues when deciding for whom to vote, the choice was rather easy . His victory came with a sigh of relief for LGBT Americans who felt ignored by the George W. Bush administration and resented being used as a wedge issue to anger the electorate into voting.
However, the victory was bitter- sweet. That same day, the people of California passed Proposition 8, which amended the state’s constitution to revoke marriage equality, which the Supreme Court of California had earlier found their constitution required. The rights of a community were put to a public referendum and failed. The proponents of Proposition 8 were elated because democracy was on their side.
LGBT advocates knew that between the three avenues of change available to them—public vote, legislative acts, or judicial action—the courts were the best option. To close off the progress being made in that area, the constitutional trump card was being played at every opportunity. Over half the states in the Union now have constitutional amendments banning marriage equality. Watching the results of Proposition 8 come into focus was an hour-long punch to the gut.
Four years later, the picture of LGBT rights in America looks to have changed completely. Like many elections before it, the slate of issues up to a vote last Tuesday included marriage equality , but with one big difference: marriage equality won in every instance—a clean sweep. Voters in Washington and Maryland approved the laws passed by their legislatures that granted marriage equality. Maine voters approved marriage equality without legislative action, a stark reversal from a previous vote in 2009 that had repealed a marriage equality law before it went into effect. Most notably, however, Minnesotans rejected an amendment to their constitution that would have banned marriage equality; it was the first time such a constitutional amendment failed to pass.
The pollsters have been telling us for a while now that public opinion on marriage was slowly changing in favor of equality. The LGBT community was asked to be patient, but the wave of constitutional amendments was still alarming. Even if public opinion changed in our favor, would Americans care enough to repeal the amendments already passed? People might say in a poll they were in favor of equality, but not care in practice. The question remained if opinion was going to change into a more proactive sentiment like “give them marriage equality” or something closer to a neutral sentiment of “we just don’t care anymore either way.” The clean sweep is important because it suggests that public opinion is changing into proactive sup- port for equality .
The impact of the results may even be felt at the top of our legal system. Since that fateful day in 2008, California’s Proposition 8 has been embroiled in legal battles, and on November 20th, the U.S. Supreme Court will deliberate on whether to hear the case, with an announcement of its decision by the 26th. The Court will also consider whether certiorari should be granted to cases challenging provisions of the Defense of Marriage Act. Many feel that the Supreme Court acts with an eye to preserving the perception of its own legitimacy , and thus think it might be unlikely to hear the challenge to Proposition 8 because it is a deeply divisive political issue. In fact, many think the Ninth Circuit opinion was written deliberately in a way so that the Supreme Court is more inclined to deny certiorari, thus preserving marriage equality in California. Election Day demonstrated that pub- lic opinion is changing on this issue, and changing with lightning speed. At the very least, it shows the Court that it needn’t be afraid of speaking on the issue because the issue isn’t as divisive as it used to be—plenty of Americans are in support of marriage equality. In the best interpretation, it shows the Court that it would damage its legitimacy by not hearing the case because it’s worthless to find a protected right only after everyone has been granted it democratically; the court would have failed its job as the guardian of minorities.
As for what this means for LGBT advocacy , it’s frankly one of the greatest developments in recent memory for two reasons. First, it unsurprisingly makes advocacy easier. The path to equality through the courts was criticized as illegitimate judicial activism because there was no democratic action, and where there was, it was in opposition to equality. The LGBT response was that the issue was about rights, which is a topic the public doesn’t get to vote on. A right is something enforced against the majority—a sanctuary upon which the majority cannot tread, and so it would defeat the purpose of a right if they were up to public referenda. The argument is valid, but as a practical matter, people don’t like being coerced and the fight is harder when what you’re asking for is going to result in a lot of coercion.
Lastly, the change in public opinion means opponents of marriage equality have to take their licks; if a public vote is the source of legitimacy on this issue, then it looks like they have to concede defeat and give up the fight because they’ve been backed into a corner by their own reasoning. Call me crazy, but some- thing tells me that’s not going to happen.