In part one, I wrote about the policy problems with the argument that, in the wake of the loss in Maine and the victory in Washington State, the focus for the LGBT movement should shift to domestic partnerships. In this piece, I want to hit on some political issues.
I don't believe the argument that the movement for marriage equality has failed or is failing. Reasons:
The oft-quoted number, one I've used myself, is that we are 0/31 on statewide marriage votes. I've used that number in the sense that it's a streak we need to break. One colleague used that number as evidence that the strategy for marriage equality isn't working. When you're batting .000, you have to change the strategy, the argument goes.
I would actually argue that only two of these losses were the result of the execution of a strategy. From 2004-2006, something of the dark ages for marriage equality, 24 states adopted constitutional amendments banning same-sex marriage. But during that time, we were playing defense, and not in venues in which we chose to fight under a strategy. They were reactionary moves set off by a court decision in Massachusetts and a unilateral move by Gavin Newsom, and with an assist from George W. Bush, not the failure of some comprehensive state-by-state strategy.
The two I will say were evidence of failure are California and Maine. In CA, we passed it through the legislature twice, it was vetoed twice. A court challenge coordinated by Lambda Legal resulted in a favorable decision. Each of these were executions of strategy that resulted in Prop 8. We lost with 47.53% of the vote. In Maine, the we passed a bill through the legislature, which Gov. Baldacci signed. It went to the ballot, where we lost with 47.18% of the vote. Okay. But both losses were by a field goal, not three touchdowns. We lost by 31,909 votes in Maine. I still believe a better No On 8 campaign could have won in California. In reality, the execution of this strategy has failed on two fronts, not 31. Not evidence to argue a wholesale change in strategy.
I'm not sure yet that domestic partnerships should be our Grand Strategy based on Washington State's success. In 2006, Colorado voters rejected a statewide referendum to authorize domestic partnerships, 47%-53%. In 2009, Washington State voters approved a more comprehensive law, 53%-47%. While it is true domestic partnerships/civil unions have been extended in many other states without a successful move to repeal it on the ballot, there isn't a lot of evidence yet that this is successful at the ballot box itself.
The fretting over the 0/31 statistic has also ignored how we can move on marriage without that streak growing. We fought off a ballot vote several years ago in Massachusetts. Neither Vermont nor Connecticut will have a ballot vote. Nor will New Jersey, if we are successful in the lame-duck session. The same is almost assured in New York and DC. In Iowa and New Hampshire it remains to be seen, but a lot of the 0/31 talk ignores that where we are close, we can continue the work without losing a repeal at the ballot.
The movement for marriage equality has actually led to incrementalist measures in several states as a compromise. And if you start by asking for half a loaf, you are more likely to end up with a quarter loaf, so making domestic partnerships our stated policy goal across the country perhaps isn't wise.
I am concerned that if you push for some type of federal recognition of domestic partnerships, it could be embraced a compromise measure by those squeamish about repealing DOMA, and we are forced to wait even longer before moving on that. In the meantime, what about same-sex married couples in Massachusetts and other states who need full federal benefits? You effectively write in a separate-but-equal status at the federal level.
While it's true that civil rights advances have, in many cases, historically been done in incremental approaches, there isn't evidence yet that we are far, far away from enacting full marriage equality in more states. There may be repeal fights in New Hampshire and Iowa in 2010, which will further test this argument. But as I see it, incremental steps should be taken where necessary, not as a comprehensive strategy for the future. As I wrote in part one, there are too many policy problems that do not actually result in full equality. The movement for marriage equality remains successful in many places, and should continue.
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.
Referendum 71 in Washington State, which I had been working a little bit, was called last night by the AP for the Yes side (i.e. the good guys won) with 52.05% of the vote (county-by-county results are here). Josh Friedes, the campaign manager, told me the numbers are actually expected to increase, as about half of the 500-600K ballots still left (WA is, with the exception of one county, a vote by mail state) are from King County, where the LGBT community and more progressive voters are concentrated. We have 67% in that county so far.
LGBT couples will retain adoption rights, the ability to use sick leave to care for one's partner, and a number of other important rights. Congrats to them and to the Referendum 71 campaign. Congrats to Josh and the rest of the folks on that campaign for a job well-done in what was essentially an eight-week lightning-speed campaign.
I neglected to mention the other LGBT issue that we won with an astounding 65% of the vote, which was the One Kalamazoo campaign to protect the ordinance twice-passed by the city commission to ban discimination on the basis of sexual orientation in employment, housing and public accomodations. We wanted a Yes vote, and the other side used slimy tactics like door-hangers that said "No to Discrimination!" to muddle the issue and TV ads with gay men stalking little girls in the bathroom. Perhaps the latter turned voters off in the end. Also a campaign well-run.
It is now Election Day around the US, and one ballot question that is attracting national attention is Washington State's Referendum 71.
Voting "yes" on the Referendum would codify in law various protections for same-sex domestic partners, and it is similar to a measure that the citizens of Maine are also voting on today.
We have polling data that is fairly fresh, so let's take this last chance to look at where we might be, and what you should be looking for over the next few days as you attempt to judge how this one is going.
I have to honestly say that this ad and yesterday's are two of the strongest, if not the strongest, ads I've seen yet from our opponents. And the fact that they're coming just a few days away from Tuesday, Election Day, really scares me. The opposition is pouring it on- they also went to the statehouse yesterday to hold a presser with groups like Americans for Truth that made its way into the local media.
I'm going back up myself on Saturday and will be there for the duration for GOTV. I just got off the phone with campaign folks, who shared this ad and said there is still a major need for calls and volunteers. The campaign is even providing free housing if you sign up to drive to Maine. If you can't drive, you can call from home.
I am not exaggerating when I say that after watching this entire thing, between yesterday's and today's ads, and the presser, this is the strongest I've seen our opposition play ball in the entire campaign. Please help out.
We are now about two weeks away from the November election in Washington State, and one item on the ballot that has national attention is Referendum 71, the so-called "everything but marriage" proposal that would give same-sex couples more rights and protections than they have today.
There has been a lot of conversation about whether it will or won't pass-and a lot of conversation about whether it should pass.
I hope it does, and if you live here I encourage you to vote "yes" November 3rd.
But that said, you may not be aware that Washington has an electoral system in transition, and that as a result of the transition Washington has some idiosyncrasies that will make forecasting the results a bit tougher, and determining the results a bit slower.
We'll talk about that today, and by the time we're done you should have an appreciation of the odd way in which things can work out-and that, absent a landslide, we aren't likely to know the results on Election Day.
I don't have a lot of reaction to the news that Obama will speak at the HRC dinner this weekend, except a few recommendations by channeling my inner David Gergen "Well, Wolf, here's what Obama has to do tonight" pre-speech prognosticating.
Announce something, and announce something big. Karen Ocamb has some recommendations. This is not the kind of dinner where you can do the "we'll get there one day on x issue!" and expect an uproar of "Yes we can!"'s. This is not a place where you can expect anyone to celebrate your accomplishments mostly symbolic gestures. You have to make news, or people will line up at the bar and their laptops and grumble.
Talk about the referenda in Maine, Washington, Kalamazoo, and since it's in DC, maybe even our own DC marriage bill that will be introduced tomorrow. It would help to demonstrate that you're focused on battles around the country and not just federal legislation. And it would also help our side win those campaigns.
Provide a timeline. We all know there's a full plate of issues, but there's an expectation that something, anything, big will be done on the LGBT plate. No one knows when that will be and all we have are tea leaves to read, and that generates anger and vitriol instead of help. "I am determined to get hate crimes and an inclusive-ENDA done by Valentine's Day so you have something to celebrate while in each other's arms" beats "I need your help to pass hate crimes and ENDA".
For those who've read my writing on LGBT before, you know I adopt a more patient outlook on all this, but I think we need a better performance from the President, including a timeline, and not just words.
We have yet another front to defend in the fight to secure equality for LGBT families this fall. In Washington State, Referendum 71 looks like it will qualify for the ballot with just over the 120,000 signatures needed. The final certification will come Wednesday in a court case filed by our side challenging it, but it appears all but certain at this point that it's going to the ballot, according to the Secretary of State. The measure would overturn a major expansion of LGBT partnership rights passed in the legislature and signed by Gov. Gregoire, including:
The right to use sick leave to care for a domestic partner
The right to wages and benefits when a domestic partner is injured, and to unpaid wages upon the death of a domestic partner
The right to unemployment and disability insurance benefits
The right to workers' compensation coverage
Insurance rights, including rights under group policies, policy rights after the death of a domestic partner, conversion rights and continuing coverage rights
Rights related to adoption, child custody and child support
Essentially, a major part of life, liberty and the pursuit of happiness.
The good news is that the campaign will be fought hard. Josh Friedes, a friend who just left Equal Rights Washington, the organization in large part responsible for Washington State's comprehensive domestic partnership laws (which provide all the rights and benefits of marriage under state law), is managing it. And my good friend Josh Cohen, who did a lot of volunteer work around Prop 8 and general all-around tech guru, is helping with new media for the campaign. Josh C., in his capacity working at Microsoft, worked hard to help me set up a great event there for The Progressive Revolution book tour when Mike went to Seattle a few months ago. Both Joshes came to Netroots Nation two weeks ago to reach out and ask for help, and ask what they could do for us, too. They both get it, and need a hand now.
The bad news is that this will be less than a nine-week campaign- Washington State is vote by mail, so ballots start coming in during mid-October. Although you could argue the other side has the same problem, our side needs to vote yes on Referendum 71, in an electoral quirk, in order to approve the rights. Because "yes" efforts are always harder to win on ballot campaigns, we face an uphill challenge. I also have concerns the public will be willing to approve new rights with opposition likely messaging about added costs to businesses in a recession.
The first step to any campaign you want to support is to help give them the capacity to win. Washington Families Standing Together is the organization on our side working to defeat this attack on LGBT families. Please sign up for their e-mail list here, and ask several friends you know to do the same. If you are able, contribute to get them seed money. There are some legal hoops they need to jump through still to be on ActBlue. Josh F. tells me Washington State has a large donor ban that bans any $5,000 contributions or more at the 21-day mark before the election, so there will not be any last-minute Melissa Ethridge fundraising concerts here where all the big donors wake up like during Prop 8. They need help as early as possible.
Their Facebook fan page with over 7,500 members is here.