In Praise of Activist Judges, or The Land of Lincoln Gets with the Times

Note: Green States have taken some concrete step(s) towards passing marriage equality.


Today the Illinois legislature finally passed Marriage Equality.  Governor Pat Quinn will sign it soon, and Illinois will then become the 15th state in the Union with gay marriage.  The map tells the tale pretty well. Marriage equality dominates the North East, and the West Coast, and has a solid foothold in the progressive upper Midwest.

How we got here.

In 2004 the Massachussetts Supreme Court held that denying marriage rights to gay couples violated the state's constitution.  To give you an idea how radical this seemed, even I was less than happy about it because I thought the issue might hurt the Presidential campaign of its Junior Senator, John Kerry.  That proved correct in the short term, but the longer term effects have been much happier.

The reason for this change is simple gay marriage was no longer an abstraction.  It was an experiment.  And in a very short time, the opponents of gay marriage faced their worst nightmare: evidence.  Before too long people realized that no one was hurt by their gay neighbors having the right to marry.  Massachusetts still had the lowest divorce divorce rate in the nation.  The vast majority of marriages remained of the one man, one woman variety.  So voters came around to say, well, if there's no harm in it, then there's no reason to ban it.  So the idea spread.  Mostly in the Northeast, but the Iowa Supreme Court planted the Rainbow flag deep in the heart land, and still, no one suffered.  At all.

In 2010 New York made history by becoming the first state to approve gay marriage through the legislative process.  In 2012, Washington and Maryland became the first states to do so by direct popular vote.

And last month New Jersey courts joined the hit parade.  Today, Illinois' elected representatives did the same.  And as the map show, we have a handful of states that have taken at least some affirmative steps to repeal their laws against gay marriage.  Hawaii seems likely to be the next state to go Blue on my map, but the New Mexico may beat them to the punch.  When those two states fall in line, Marriage Equality will be the law of the land in 200 Electoral College votes.

Democracy in Action.
But what's really great about this process is that those activist judges in Boston didn't upend the democratic process so much as prod it along.  Consider this chart.  The left/blue column are the states that Barack Obama carried in 2012.  The Dark Blue states are the ones that have marriage equality.  The right column are the states that voted for Mitt Romney. There is no need for two shades of Red,because none of those states have marriage equality.  (Or even civil unions, for that matter.)

Thirteen of President Obama's best 14 jurisdictions have marriage equality.  And the state of his birth will soon make it 14 of 14.  His 29 weakest states do not have marriage equality at present and it's also not on the immediate horizon in any of those places*.  So the law reflects the political leanings of the people, and that trend will continue for the next few years.  Most likely this will eventually be federalized by the Supreme Court.  But in the meantime, the law increasingly reflects the political affiliations of the voters.  But without those "activist judges" in Massachusetts, the cause of equality would probably be in much worse shape.

*One last encouraging fact on the Red States.  A recent Poll of South Carolina found that only 52% of voters in that state oppose gay marriage.  Just six years ago, SC passed a constitutional amendment to ban gay marriage by referendum that got 78% of the vote.  So if the Land of Lincoln can get there in 2013, maybe the Birthplace of Succession can get there sooner than we think.