By Dan Kennedy • The press, politics, technology, culture and other passions

One in five

With the Massachusetts Legislature on the verge of repealing a 1913 law that’s made it difficult for out-of-state gay and lesbian couples to marry here, we’ve reached a remarkable moment in the rise of same-sex marriage — more remarkable than perhaps most people realize.

Yes, only two states allow same-sex marriage: Massachusetts and California. But, since May, the state of New York has recognized same-sex marriages performed in other jurisdictions, making it possible for New York couples to marry in, say, Canada or Massachusetts.

The combined population of Massachusetts, California and New York is 62.2 million — nearly 21 percent of the total U.S. population of 299.4 million. That means one in five Americans lives in a state where same-sex marriage is recognized.

California voters might repeal same-sex marriage this November. But given that the state’s Republican governor, Arnold Schwarzenegger, opposes the anti-marriage referendum, there’s reason to be optimistic.

A final observation about Massachusetts. Yesterday’s state Senate vote to repeal the 1913 law was unanimous. The vote in the House is expected to be overwhelming. Can we finally stop the charade that gay marriage was forced on us by “unelected judges,” as critics inevitably charge?

It may have taken the state’s Supreme Judicial Court to start the debate. But last year opponents failed to win over the mere 25 percent of legislators needed to place the question on the ballot. And now our elected legislators are taking the final steps toward normalizing same-sex marriage, secure in the knowledge that most of their constituents either support marriage equality or don’t strongly object.

More: Esther offers some observations at Gratuitous Violins.

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  1. Esther

    Great post Dan! It is pretty amazing that it was a unanimous voice vote in the Senate. I mean, it just shows how much the tide has turned. It’s been four years since gay marriage was legalized and people realize the sky hasn’t fallen, that giving gay and lesbian citizens their rights doesn’t take away rights from anyone else. And hopefully they also realize that these aren’t some “other” we’re talking about, but our friends, neighbors, coworkers, family members.

  2. Anonymous

    Gay marriage was forced on us by unelected judges. As usual our cowardly elected Representatives passed on the issueforcing judges do the work they didn’t want to do.I don’t know how you can say otherwise.

  3. Anonymous

    No argument that gay marriage is long overdue. But to hang your argument on the MA Senate’s actions, (great month they’re having!) doesn’t really help much.

  4. Anonymous

    Unelected judges also, in much the same spirit, forced desegregation on us in Brown v. Board of Education.Bob in Peabody

  5. Rich

    Can we finally stop the charade that gay marriage was forced on us by “unelected judges,”No, we can’t, because that’s exactly what happened (and in a tortured, sophist, and totally results-oriented “opinion”, too), and no amount of ex post facto whitewashing can negate that very simple fact. And I’m saying this as someone who is pro-gay marriage.However, in holding a vote on the gay marriage ban initiative and then failing to have even 25% of the Legislature vote for sending the ban to the ballot, I would submit that the Legislature legitimized the illegitimate act of the SJC and therefore at a theory-of-government level, gay marriage now properly exists in MA.

  6. Nial Liszt

    “It is pretty amazing that it was a unanimous voice vote in the Senate. I mean, it just shows how much the tide has turned.”My guess would be that there were twenty “ayes” and 180 pairs of eyes staring at shuffling feet.This tide would seem to consist of 27 popular vote, state constitution amendments passing in three years–against! The only exception being Arizona (51/49) where the (scare) campaign involved threats to retired elderly “living arrangements” common there. CA and FL this year will probably make 29.

  7. Dunque

    Dan – Enjoy your blog a great deal but your “charade” comment is a long way down the street from reality. Yes, the clean up of the MSJC decision is being handled by the legislature but to pretend that gay marriage in this state was anything but judicial fiat is either blatant ignorance or blatant denial.

  8. Bill Siroty

    Dan-Let’s not forget that New Hampshire is the first and only state where civil unions were passed into law without judicial action. All marriages and civil unions from other states will also be valid here. The law gives civil unioned couples the same rights as married couples – but unfortunately does not call it marriage.I do not know if civil unioned couples from NH are recognized elsewhere.

  9. Anonymous

    It’s worth noting that the California State Assembly has passed a gay marriage law twice. Both times, Gov. Schwarzenegger vetoed it, saying it was a matter best decided by the courts. Well, the court did. Case closed. What gets tiring from the anti-marriage folks is that they don’t seem to allow any argument or process where the outcome could indeed be in favor of gay marriage. The courts imposed it here; they say the voters should have decided it. California lawmakers decided it there; they say the courts should have decided it. But any result that allows gay marriage is then attacked as flawed. Spare me.It’s also worth noting that voters in Massachusetts DID have a chance to sound off about gay marriage– it happened in November, and it was called an election. The anti-marriage people ran at least eight legislative candidates to undo the marriage ruling. They all lost.

  10. Anonymous

    The voters of Massachusetts also endorsed the reign of former Senate President Billy Bulger by continually reelecting the state senators who kept him in power.

  11. Neil

    It’s not surprising that the eight candidates that the “anti-marriage people ran” lost. Those who might oppose gay marriage in favor of say NH-style rights-wise-identical civil union, wouldn’t likely vote for a candidate whose sole reason for running was to undo the marriage ruling. Because although they may not agree with the ruling, as a single-issue it’s not compelling enough to cause people to vote for someone who might otherwise be unqualified for office. So their defeat doesn’t mean much one way or another I think. “Popular vote” is the process you have left out, because I guess, it would merely favor civil union (as in NH), as opposed to marriage. Which is apparently intolerable.

  12. Anonymous

    **Gay marriage was forced on us by unelected judges.**…because that’s their job….to decide reight/wrong without political consideration.**As usual our cowardly elected Representatives passed on the issue**Passed? Or stood up for what was right?**I don’t know how you can say otherwise.**I guess it all depends on your perspective.

  13. bunkosquad

    I’m concerned about this “forcing gay marriage” on people. Who has this happened to? I know a few same-sex couple who are married, but they all willingly chose to do so. If people are being plucked off the streets and forced into marriages they don’t want to be in, I oppose that.Unless you mean what’s been “forced” on you is the realization that gay folks exist and deserve equality, in which case it’s really hard for me to feel sorry for you.

  14. Don, American

    The Arnold is about as much a Republican as John McCain. I think the word is pragmatist, or RINO.

  15. Anonymous

    Neil’s comment proves my earlier point: the anti-marriage folks will keep insisting on some other political process to vet the idea of gay marriage, until they get the only outcome acceptable to them, which is no gay marriage. If the elected legislature approves it, let the courts settle it; if the courts approve it, let the people settle it; if the people settle it– well, I dunno. Maybe the anti-marriage folks will want an arm-wrestling match or something. I also love how the anti-marriage folks, who claim to be proud conservatives in so many ways, discard strict constructionist views of the law instantly to keep hawking their cause. Popular referenda were viewed with deep skepticism by the Founding Fathers, who feared the tyranny of the majority over minority groups; that’s why no referenda are allowed under the U.S. constitution, and they’re so carefully vetted in the state constitution. If we want to re-interpret political activism, why not just discard the Legislature entirely and let everything be settled by popular vote?

  16. Neil

    anon 9:15 I’m not a conservative. My earlier comment doesn’t prove your point because the third option (let the people settle it) works for me–no arm-wrestling required. You say “no gay marriage” as if civil union (merely the rights and not the name) is nothing at all. So a person in favor of civil union is simply another “no gay marriage” enemy. This is similar to Ralph Nader’s comparison of Al Gore to George Bush in 2000. This absolutist attitude bothers me, but not to the extent of voting for a candidate running specifically to overturn the ruling.

  17. Esther

    You know, amid all of this talk about “judicial fiat” and “cowardly elected representatives” and gay marriage being “forced on us,” I think we’re losing sight of the fact that these are real people’s lives. We’re talking about people who pay taxes, adults who ought to have the same rights as any other citizen. And I think calling the court’s and legislature’s actions illegitimate denies how progress is made in this country. Sometimes, yes, it takes the courts or the legislature to guarantee those rights – whether it’s striking down “separate but equal” or passing the Voting Rights Act. A hundred years after the end of the Civil War, it took an act of Congress to ensure that black people could vote. If you put it to a ballot question today, would any state take away the right of African-Americans to vote? Of course not. At least I hope not. But of course, we don’t put people’s civil rights up for a vote.

  18. Anonymous

    **My earlier comment doesn’t prove your point because the third option (let the people settle it) works for me–no arm-wrestling required.**But if the people gave you a result you didn’t like, then you’d be claiming that the courts should uphold your position, etc.

  19. Amanda

    Frankly, I don’t care if the law was forced on people. If we are all, as citizens, supposed to have equality, then lawmakers should enforce that, contrary to the will of the people if necesssary. I’ll bet there were quite a lot of people who thought the same thing when they were being “forced” to recognize interraccial marriages, too. In fact, I’m hoping that some of this stuff in Massachusetts and California stir up enough trouble that eventually all the states will be forced, whether or not they like it, to uphold gay marriages.

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