I've so far heard two arguments I've heard that have come out of the loss in Maine. The first is that we'll never win statewide ballot votes on marriage equality until demographics change, e.g. older, more socially conservative people become a smaller part of the electorate. The second is that the game is fixed because voting on civil rights of the LGBT community amounts to tyranny of the majority, and the majority will always vote to oppress the minority. I've dissented with both arguments.
A third argument is that, given the success in Washington State this year, the LGBT community should focus on a system of domestic partnerships for same-sex and opposite-sex couples that have full federal equality under the law. Currently, if you are in a domestic partnership arrangement- lesbian, gay, bisexual or heterosexual- the Defense of Marriage Act restricts the extension of more than 1,100 federal benefits, as it does for same-sex married couples. So you can't use unpaid sick leave to care for your partner. You can't file federal taxes jointly. You can't receive Social Security survivors' benefits. Opposite-sex couples don't take such arrangements because when they find out they don't get the federal benefits, so they opt for marriage.
But, the argument goes:
- Members of Congress are more likely to "compromise" at approval of extending full federal benefits to those in domestic partnership arrangements, since such arrangements affect heterosexual couples too, thus diminishing the argument that these are "special rights for homosexuals". Examples include two single, heterosexual sisters living together who wish for each other to have medical decision rights, or opposite-sex couples who do not believe in the concept of marriage, or want some basic rights like hospital visitation until they decide to marry.
- By focusing on comprehensive domestic partnerships, there is a potential to mobilize non-LGBT couples (the sisters, or opposite-sex couples who don't want to be married) who want full federal benefits. Straight allies exist as advocates for same-sex marriage, but are not as invested.
- Advancing this strategy is more likely to win benefits in the short-term than fighting battles that will only be won when anti-equality older people become a smaller share of the electorate. Rights are more important than the "m"-word.
On the other hand, there are a multitude of problems:
- Implementation. In New Jersey, where civil unions enacted in 2007 exist, hospitals, employers, etc. have refused to recognize any certificate that doesn't say marriage. You can argue that's a personnel problem rather than a policy problem- for example, federal laws ban discrimination in housing on many bases, but it still occurs in practice. But the problem still remains that many couples cannot use their newfound rights, so these incrementalist measures do not always work in practice.
- Domestic partnership-type arrangements don't work across state lines. A married couple can vacation in another state and still have medical decision rights if something happens. A couple in a domestic partnership from another state do not.
- The potential difficulty of creating a class that is lesser than marriage at the federal level and administering it. Which state programs would qualify? What about same-sex married couples?
I am always open to incrementalism, and favored that approach around ENDA and gender identity in 2007. But in this case, domestic partnerships/civil unions in practice do not work as fully as they should or are expected to. It is also dangerous to push for this as the policy goal in lobbying, and creating the impression among legislators looking for an "everything but marriage" compromise that this is the same thing in all but name. In looking at the policy execution, it's clear that it's not.
In more conservative states where it's possible to achieve these rights, we should absolutely push to do so if it's clear we are far away from marriage equality. In places where we are close- like New York, or where incrementalist measures have already been implemented, like New Jersey and DC- the push should continue. I discuss the politics of this in part two.