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

Critical mass for same-sex marriage

Last July I wrote an item — prematurely, as it turned out — noting that one in five Americans lived in a state where same-sex marriage was legal to a greater or lesser extent. I made that observation not long after the California Supreme Court recognized a right to same-sex marriage, overturned in a voter referendum last November.

With New Hampshire becoming the fifth New England state to embrace gay marriage, it’s time to do the math again. California was an enormous setback, so the numbers don’t look as good as they did a year ago. Bit by bit, though, marriage equality is moving forward.

First, let’s take the six states where same-sex marriage is explicitly recognized or soon will be — Massachusetts, Connecticut, Maine, Vermont, New Hampshire and Iowa. With the exception of Massachusetts, all are low-population states, adding up to about 14.8 million people, according to the most recent U.S. Census estimates from July 2008. They account for a shade less than 4.9 percent of the total U.S. population, which is about 304 million.

But now let’s consider New York. Already, thanks to an order last year by Gov. David Paterson, same-sex marriages performed in other jurisdictions are recognized. With nearly 19.5 million people, New York has a higher population than the other six states combined. Put them all together, and you’ve got about 22.8 million people — 9.6 percent of the total population, close to the proverbial one in 10.

Moreover, the state seems to be moving toward outright legal recognition for same-sex marriage. The process has gotten bogged down, and a New York Times editorial today urges the state senate to get moving. Overall, though, there’s reason to be optimistic.

There’s no question that the constitutional amendment California voters approved last fall to ban same-sex marriage was an enormous blow. The recent decision by the state’s supreme court not to overturn the amendment was unsurprising.

At some point, though, it seems inevitable that liberal, blue California will re-enshrine same-sex marriage. And with more than 36.7 million people, it remains the big prize. Add them to the other six states plus New York, and you’ve got 58.9 million people, or 21.7 percent of the U.S. population.

Interestingly, marriage-equality advocates seem dubious, to say the least, about a bid by celebrity lawyers David Boise and Theodore Olson to take gay marriage to the U.S. Supreme Court. The votes almost certainly aren’t there now, and with liberal justices more likely to retire than conservative ones over the next few years, it could be a long time before the court’s make-up changes in a fundamental way.

More immediately, would anyone care to predict how Justice David Souter, who’s retiring, would vote on same-sex marriage, and how his likely replacement, Judge Sonia Sotomayor, would vote?

The good news is that the country is gradually moving toward allowing same-sex couples to marry. At some point, federal intervention will be needed because, as with mixed-race marriages, there are some states that will never recognize fundamental human rights.

For the time being, though, the state-by-state process is helping to normalize an idea that was alien to many Americans just a few years ago.

Photo (cc) by Scubaben and republished here under a Creative Commons license. Some rights reserved.

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35 Comments

  1. nosepail

    And of course the most important part of this normalization process is that the ideological orthodoxy has now crystallized: If you are a defender of the traditional definition of marriage, you are publicly reviled and scorned. (Witness some of the comments out of Hollywood recently). So an idea that was perfectly normal to hold a few years ago as Dan points out — that marriage is between a man and a woman — is now a hateful thing to believe. Can we please drop the idea that gay marriage is some crowning achievement in the history of civil rights? In my opinion, it is a strange novelty foisted on us because we are so disoriented by the dizzying pace of change in the modern world that our sense of tradition and culture have been destroyed.

  2. Dan Kennedy

    nosepail: If you don't want to marry someone of the same gender, then don't. Pretty simple, eh?

  3. nosepail

    Dan, if you dont want to gamble in the new-fangled Massachussetts casinos, then don't. Pretty simple, eh? This kind of argument is very condescending. If you want to overlook the fact that gay marriage is a pretty fundamental change in the history of human civilization, then so be it. But claiming that it's no skin off my nose, is no great convincer.

  4. Esther

    I wouldn't call gay marriage a "strange novelty" but rather an acknowledgment of loving, committed relationships between same-sex couples and the recognition that they're entitled to the same rights as every other citizen. Whether you like it or not, gay couples are spending their lives together, building families. The question is whether they deserve the protection of the law and I believe that they do.And I don't think I even have to mention ideas that were once "perfectly normal" but are now considered hateful.

  5. Dan Kennedy

    nosepail: Casino gambling hurts all of us with respect to crime, traffic, even increases in the suicide and divorce rates.Same-sex marriage hurts no one, and helps gay and lesbian couples.

  6. David

    There has never been a "traditional marriage". For a long time men owned the women they married. Throughout history different groups have not been allowed to marry based upon race, religion, etc. Marriage is a man-made concept and in this day and age it's all about rights. The concept of marriage is always evolving. Like Dan Kennedy said, if you don't want to marry someone, then don't. If religious institutions don't want to marry people then they don't have to, that's their right too. But it should be everyone's right to be able to get married to whoever they want to marry.

  7. Michael Pahre

    Your text is unclear: "The good news is that the country is gradually moving toward the right for same-sex couples to marry."I suspect you mean that the country is moving towards recognizing that individuals have a right to marry, not that the country is moving to the political right on the issue.It is truly amazing to look at how elected officials in Massachusetts have responded to the issue.Seven years ago you could only find a few elected officials who would openly state that they supported gay marriage. The ruling by the Supreme Judicial Court gave the politicians cover such that now most will openly express a support for gay marriage. And they're mostly the same politicians in office now as were in office then. I bet many now see support for gay marriage as a litmus test for seeking public office (as a Democrat) in this state.The Massachusetts experience has shown how a court decision can generate a sea change in political will on a potentially divisive social issue. I will not be surprised if we see similar "flip-flops" going on amongst California elected officials in the wake of their state's court ruling.

  8. Dan Kennedy

    Michael: Good point, and I just tweaked it.

  9. Neil

    re David: But it should be everyone's right to be able to get married to whoever they want to marry.That would be the consistent principle, but since when do proponents of gay marriage actually believe that? Should I be able to marry my brother? My mom? The cute sisters across the street? Gay marriage just re-arranges the arbitrariness in one particular dimension, that of gender. But as long as we're going to do away with one arbitrary restriction, we should by that principle do away with the others too. Granting me the right to marry my twin brothers hurts no one.

  10. nosepail

    "Gay marriage just re-arranges the arbitrariness in one particular dimension, that of gender"I would argue that gender is the only non-arbitrary dimension in the entire concept of marriage. As correctly pointed out above, the concept of marriage changes radically from culture to culture. The only constant through thousands of years of civilization has been a male and a female. With gay marriage, we throw the ancient historical meaning away because a vocal minority wants to throw it away, and a wishy-washy "rights" argument. That's what passes for progress nowadays.

  11. O-FISH-L

    Thankfully, the idea that was alien to many Americans just a few years ago is still alien to most, despite the hatred and labeling aimed at those who don't acquiesce to the gay agenda.With the chief political enabler of gay marriage in Massachusetts likely headed to prison for a long time, and NY Gov. Patterson on political life support, it might be time to revise your numbers yet again in a year or two. With studies showing life expectancy for gay men 8 to 20 years less than heterosexual men, can you really argue that gay behavior doesn't hurt anyone?

  12. Aaron Read

    Dan, those of us in New York are not hopeful that gay marriage is going to happen at all.If you think the minority party wreaks havoc in California's legislature, you should see Albany! Governor Paterson just shouted a giant "F&@K YOU!" to everyone in the state by vetoing a 20-plus-year-old "temporary" sweetheart pension plan for police and fire unions. That's cemented his image as a lame duck and he knows it, and so does the entire legislature. Since there's a few key holdouts on gay marriage that will blanch until someone horsetrades with them, and now Paterson has zero power to horsetrade, it's all game over for gay marriage this session.There's a lot of really important stuff that's being pointedly ignored by Albany right now because the legislature smells blood in the water and is a lot more interested in pursuing their own interests as opposed to, y'know, governing the state.Yeesh…I lived in Boston for 13 years and I thought Beacon Hill was bad! Trust me, you know NOTHING until you've covered Albany!

  13. Al

    as Dan said, don't want to have a gay marriage, don't have one and mind your own business otherwise. If my friend from California wanted to marry her long-term partner, she should have that right. And it's no one else's business. If that's condescending, tough. I'm standing up for my friends–they have the same right to happiness as anyone else.

  14. Aaron Read

    I wish the marriage debate wasn't about civil rights. Because it's not at all, really…nobody has a RIGHT to be married, after all. It's a religious tradition.The problem is that this country, like many in the world, has tied the concept of marriage to a great number of civic and legal obligations and benefits. That's what makes what should be a purely religious choice into a civil rights problems.I do honestly believe that most of the anti-gay-marriage folks are just homophobes hiding behind "family values", but regardless…I'd be more impressed if these states didn't go down the "gay marriage" route and instead got the state out of the marriage business entirely. I've got enough problems with the state sticking its nose into my bedroom as it is.In other words, from a legal standpoint – EVERYONE gets a "civil union". If you want a "marriage", well la-de-da and more power to you…off to your preferred religious institution that will grant you a marriage…gay, straight or otherwise. But as far as the legal and civic benefits – that province of the state should be civil unions and everyone should get the same thing.BTW nosepail, this is why your argument comparing casinos and gay marriage doesn't work. It's not like your state NOT having a casino means you can't get the same legal rights as the next state over that does. Certainly there are economic and societal benefits and detriments…and I happen to think the detriments far outweigh the benefits, having lived through the casino debate in Connecticut…but just because there's no casinos in Massachusetts doesn't mean you can't get better rates on health insurance, or legal representation for end-of-life issues, or spousal privilege in court, or child custody, or different options on your tax forms, etc etc etc.If states specifically were tying all these civic/legal benefits to the presence of casinos, then yes – your argument would be 100% valid. But AFAIK, they are not.

  15. Aaron Read

    Hey Fish, when they start beating straight men and women to death for being straight, I think you might find the life expectancy numbers would even out somewhat.Y'know, being black means you've got 5 or 6 years LESS life expectancy than being white. Does that mean we ought to start making it illegal to be black in the US? Oh, yeah…oops.

  16. O-FISH-L

    Aaron, you're not really suggesting life expectancy for gay men is 8-20 years lower than straight men due to hate based assaults and murders of gays, are you? C'mon!I have to agree with President Obama on this one. No to gay marriage.

  17. Dan Kennedy

    Fish: I'm pretty sure lesbians have a higher life expectancy than heterosexual women. Unless you're prepared to say lesbians can marry but gay men can't, I think you need to find another line of argument.

  18. O-FISH-L

    Dan, any credible link(s) to back your claim that lesbians outlive heterosexual women? Until then, I stand with Mr. Obama. Gays shouldn't be allowed to marry.

  19. bostonmediawatch

    You mean gays shouldn't be allowed to marry a person of the opposite sex if they want to? Obama never said that.I think your true bigotry is showing.Gay = "not allowed to"

  20. mike_b1

    No point in arguing with O-Fish on this one. He's struggling with his projection. Think Kevin Kline in In & Out.

  21. dupedyetagain

    Fish and others–Name one reason, one real, actual means by which allowing gay people the right to marry would harm you. If you can't think of one (and don't dare say sanctity of marriage – drive-thru Elvis chapels and our country's staggering divorce rate have that one covered), explain how banning gay marriage mitigates that life expectancy statistic (allowing sanctioned monogamous relationships would presumably lower any AIDS-related deaths). I pick on you folks because in the years these debates have been going on, I have yet to hear a single anti-gay marriage argument that made any logical sense. If gay marriage hurts no one, and those offended on a religious level can simply attend one of the numerous churches refusing to marry gay people, then how can anyone justify depriving a certain group of people of civic rights granted to every heterosexual person?

  22. mike_b1

    dupedyetagain: Isn't it obvious? Because if gays marry, God will make them go straight to Hell, and without their supper. O-Fish and other closet gays are simply trying to save those who are out from eternal damnation (and empty stomachs). He condemns out of love for their eternal souls.It would never, ever, have anything to do with the fact that he is gay and afraid to admit it.It's OK, O-Fish. Your secret is safe with us! Keep reaching for that rainbow!

  23. Neil

    dupedyetagain at the risk of being labelled a homophobe, or being gay and afraid to admit it (or of course, both), I'll have a go. It's not necessarily a matter of being "against" gay marriage, so much as it's a matter of thinking that it's inherently impossible. Because it's not what the word means. So it's an objection to the appropriation of the meaning of the word, in the name of "rights".What is the consistent principle at play here? That the current definition of the word is arbitrary so can be modified, and that instead anybody, as another commenter noted, should be able, indeed should have the "right", to marry anybody else? Is that the principle? Then you should be making the same argument for the elimination of other mere arbitrary aspects of the definition too, and be likewise against the banning of incestuous and polygamous marriages. That the numbers of those may be small is irrelevant, if you're arguing on the principle.To paraphrase your own words, I have yet to hear a single anti-civil union argument that made any logical sense. It seems likely to me that the reason popular votes consistently reject gay marriage is that most people simply consider the notion to be an oxymoron. That is not homophobia. The rights meanwhile are sitting there on the table, available via civil union, and most Americans have no trouble with that. That anybody would refuse the rights granted to them by a civil union, in favor of holding out for the foisting of the word "marriage" onto the unwilling majority, in the name of "rights" smacks of, dare I say, "drama queen" behavior.

  24. Al

    it's humorous how some of the most vehemently anti-gay Republicans end up coming out of the closet, either willingly or unwillingly–Rev. Ted Haggard, for instance. Or Senator Larry Craig.

  25. mike_b1

    Al, exactly my point. It's called projection.

  26. Ryan

    Neil–I understand the difficulty of many, particularly those with strong religious convictions, of comprehending a same-sex union within the scope of "marriage," but why such opposition when that term is state-sanctioned?Aaron hit it on the head earlier when he said all state "marriages" should be "civil unions," with "marriages" reserved for religious ceremonies. Obviously, the line between church and state is not as defined as many would like, but wouldn't it be fair to give all Americans legal civil unions, with religious marriages optional?Further, labeling the debate one of syntax skirts the issue. If you frame the issue by dictionary, marriage is "between one man and one woman." Such a definition allows incestuous marriage just as much as gay marriage would, so that argument is out. Such a definition is certainly malleable too — remember when marriage meant forever? Certainly, it was OK to add "divorce" to the definition with no "impossibility" problems. And saying civil unions are OK is not in line with the greater opposition, which would exclude even civil unions. Why do opponents of gay marriage continually go to the "definition" of marriage when "marriage" has become a generic civic term? Civic terms change with the times. Remember when "person" meant white? When "voter" meant man? Sorry, but generic terms change as society changes. Next?

  27. Neil

    Ryan right, generic terms do change as society changes. The most obvious measure of which would be a popular vote. But gay marriage only exists where it does thanks to the "good thing laws aren't left to the people" route. Which is not exactly evidence that society has changed.I agree with Aaron's comment too and yes, govt-sanctioned civil unions for everyone without regard to gender, number, related DNA etc, with "marriages" performed only by the local mullahs, would indeed be the proper solution. The overall majority, opposed to gay marriage, doesn't oppose civil unions to the same extent. Our President's stance being pretty typical I think. Civil unions would pass a popular vote in many places, where gay marriage passes a popular vote nowhere. So, it isn't just a matter of terminology–it's the crux of the issue. And it works both ways. If it's only a matter of terminology, then there should be no objection to calling the set of rights at issue a "civil union", putting it to popular votes state by state, and seeing it pass.

  28. Ryan

    Neil–If indeed you are right that civil unions would be acceptable to popular majorities around the country (which would be a new fact to me), then you would be correct that the crux of the issue is language. I guess I just don't understand the animosity over the word "marriage." When I think "marriage," I don't think "oh, that means union of man and woman." I simply think, "oh, that's what people do when they are in a loving and committed relationship." I think most people do, until confronted with an idea they are uncomfortable with.And being of the school of thought that American democracy must represent the opinion of the majority while protecting the interests of the minority, I just don't see what great harm allowing gay unions to be "marriages" would do. Straight couples would be unaffected (and the idea that the addition of gay marriage to "cheapen" marriage is nothing but bigotry), and gay couples could consecrate relationships with a serious word (civil unions for some, marriages for others smacks of Plessy "separate but equal"). Why the fuss? Straight couples can continue enjoying the word "marriage," and gay couples could enjoy it too, harm-free.Then again, as a believer of the other opinion, I may just be missing something. If civil unions are OK, and would admittedly be marriage in everything but a name, why make a proactive effort to prevent gays from using the word too?

  29. Neil

    Ryan to your last question, it's the difference between a good likelihood of getting buy-in for the rights from the general public using one term, vs the grinding state-by-state process of getting judiciaries to push those same rights, using the other term. The latter generates a degree of popular resentment (it's "liberal" judicial activism, it's undemocratic) against the foisting of a new and different usage of a common term, onto a society that hasn't come naturally to a point in which that new usage would seem normal. It's unnecessary polarization and I think that's where the harm lies. That resentment is too easily conflated with the religious and plain homophobic objections, but it is distinct (again, Obama) and seems to me that for those who actually wish to have their relationships sanctioned by the state, that conceding the freighted label "marriage" and using instead the colorless "civil union" provides a path around the problem, by both eliminating the resentment against judicial activism, and marginalizing the objections of the religious nuts and the bigots.

  30. nosepail

    Neil, you epitomize calm, even-handed reason. God bless you. Those on either side of the question (myself included) are screeching ideologues compared to you. You've hit the nail on the head.

  31. Ryan

    Neil (if this thread is still actively watched)–Perhaps it would be easiest for gays to accept their rights as civil unions and, as you say, "concede" the term "marriage" in exchange for equal legal rights. However, that is a compromise that I would think many understandably find insulting. The Plessy metaphor just becomes stronger — separate but equal is not really equal because it classifies one group of rightful citizens as a lesser group; during segregation, should blacks have conceded to use "black only" restrooms?Perhaps this misconstrues your personal opinion, but how else could a gay person interpret such a position? Most consider marriage to be sacred. Wouldn't it feel like a cop-out if tomorrow your were told your legal rights will remain the same but your marriage is now called a civil union? How would you feel other than degraded and attacked? You say allowing gay "marriage" would foist "a new and different usage of a common term" on an unprepared society. Even assuming this is true, what harm is ACTUALLY done? Your argument says that a straight person being told that a civic marriage is now between "two people" rather than "a man and a woman" is important enough to tell a gay person that "we are obliged to provide you with equal rights, but you cannot obtain what many consider to be the proudest label one can hold: married."I consider it irrelevant that opponents would feel resentment toward "liberal" judges. There was a lot of resentment toward the Court when it overturned Plessy, and I don't hear anyone arguing that it was the wrong decision. I won't use the term "bigot." But to say civic unions are equal to marriages, and justifying it with "common usage" of a nonreligious civic term, is to say blacks should use a different bathroom. There is absolutely no distinction between Plessy and your argument.

  32. nosepail

    Again the comparison with the black civil rights movement. Can't you, even for a minute, contemplate how disproportionate those two situations are, and how insulting the analogy is? Wow. The victimization claims of the gay marriage ideologues are astonishing. Can you really equate the history of slavery and Jim Crow laws and racial segregation in the country with the "suffering" of gays not being allowed to marrry? Please tell me: when was the first time you even heard of the idea that gay people en masse were interested in marrying each other. Where is the long glorous struggle here? For me it is essentially a manufactured goal, and not some long striving to rectify a historical injustice. Please stop it with these ludicrous comparisons.

  33. Ryan

    Nosepail–I'm not comparing homosexuality with race, nor am I equating their struggles, or even their civil rights movements. Clearly, this country's history presents an overwhelmingly tragic suppression of minority peoples, the suffering of whom is not even in the ballpark of the marriage question we are discussing. So I apologize if I have offended you, as I did not mean to represent the two scenarios, their histories or their effects as equal.However, I do maintain that the tone of argument I have heard in favor of allowing civil unions but not marriages are strikingly similar to historical arguments for racial segregation. Each states that the distinction is not due to hatred or bigotry, but an unprepared society. Each claims that the minority class should concede pure equality for substantially "equal" legal and civic rights. Each argues that giving full equality to the minority group should be decided by popular vote, not "activist" judges.Each, in essence, argues that separate can be equal, and each by the nature of the argument alienates and dehumanizes a certain class of people. Separate, but equal. Is not an argument for civil unions but not marriages separate but equal? Contemplate that for a moment.As for my personal experience Nosepail, I am straight, and have not heard of a long struggle of gays to marry "en masse." I have no personal or numerical data to support a struggle even remotely similar to the black civil rights movement. However, I believe that a minority shouldn't have to suffer a certain period of time, due to nothing but discomfort and prejudice, before receiving justice. I believe our culture and history represents a duty to protect those too few in number or popularity to obtain equal rights (unless those rights would affirmatively harm the rights of others).Gay marriage harms absolutely nobody. Regardless of your reasons, fighting to prevent gays from exercising rights which we ourselves did not earn is unfair at best, bigotry at worst. You can blame it on syntax, or say you only oppose the work of activist judges, or you can say that civil unions are just as good as marriages. You can be a bigot, a closet gay, or neither. You can be President Barack Obama or President George W. Bush. No matter how you frame it, it is unfair and heartless. And like the comparison or not, it is separate but equal.

  34. Erasure25

    @NosepailI'm not sure why comparing the gay civil rights movement to the black civil rights movement is an affront. You cannot deny that the LGBT community faces discrimination at every turn – from housing to employment to hospital visitation rights to tax benefits, etc. We know for a fact that gays are targeted for verbal and physical violence simply because of their sexual orientation. I have experienced verbal harassment based on my perceived sexual orientation many times. I have been fortunate to not have experienced physical violence as of yet.So, are you suggesting that because the "blacks had it much harder," that the LGBT civil rights movement should be less demanding in their call for equal treatment in the eyes of the law? Surely you are not suggesting that a little bit of discrimination is okay?

  35. Erasure25

    @NosepailAlso, gays have been fighting for equal rights since the Stonewall riots. You have to realize that being gay a few decades ago was much harder that it is today. One could not fight for gay marriage rights 30 to 40 years ago because that would have significantly increased your chances of being killed. Harvey Milk learned that lesson. Furthermore, 30 to 40 years ago we had no rights. No employment rights. No housing rights. It would have been impossible to fight for gay marriage back then when you could be fired from your job for simply coming out as gay.So your questing of asking about our history of the glorious fight for marriage is a question that seemingly displays your lack of knowledge about the LGBT movement and really lacks any rational basis.

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