Full moon is rising
The Sky is black
I need your call, I'm coming back
The road is straight cast
Wind's in my eyes.
The engine roars between my thighs
From desert plains I bring you love
From desert plains I bring you love
Desert Plains, written by Glen Tipton, K.K. Downing and Rob Halford, 1981
Judas Priest was my favorite band in Junior High. Rob Halford was technically in the closet at the time, and being a typical 12 year old straight boy, I wanted him to not be gay. But the one song that just gave it away for me was Desert Plains. It was pretty clear to me, even at that age, that he was singing about a man. There is no pronoun that gives this away; it just feels gay. And not in a campy or flamboyant way. It's just a love song and it's not about a woman.
Halford lived in Arizona at the time. Yesterday, Arizona became a marriage equality state pursuant to a ruling by federal district judge John Sedgwick. This happened just one year after the Arizona legislature passed a law that would have allowed businesses to refuse service to homosexual people on religious grounds. The governor vetoed that law but she wanted the attorney general to appeal this ruling. He declined.
So choosing a song to celebrate this one was easy. The other option, after all, was an Eagles song.
"No matther whether th’ constitution follows h’ flag or not, th’ Supreme Coort follows th’ election returns” Humorist Finley Peter Dunne, writing as his alter ego, Mr. Dooley, in 1901.
This post was supposed to go up yesterday. But a clerical error at the Supreme Court threw things into chaos for about 24 hours. But by the close of business today we had two big developments; marriage equality in Nevada and in West Virginia.
Meanwhile, the of Idaho charged forward with an almost certain to fail appeal of the recent decsioin by the ninth circuit. The actions of the Governors of Idaho and Nevada are completely consistent with my basic premise: the march of marriage equality tracks with the will of the voters. West Virginia is a slightly more complex example. Although the President only got 36 percent of the vote in 2012, its governor is a Democrat and I think it's safe to say that opposition to gay marriage is now untenable in national Democratic party politics.
As of this writing, 27 states (and DC) with marriage equality and 24 states without. All but three states that voted for Obama have marriage equality. Michigan is the only state where the President got more than 51% of the vote that does not have marriage equality. Only four Romney states have marriage equality and one of them, Indiana, was carried by Barack Obama in 2008.
Today, I re-crunched the numbers I had prepared for this blog yesterday. It would have been inaccurate and wrong to not give West Virginia it's due place in history. Thankfully, West Virginia is a small state so it didn't move the numbers much. So I crunched the numbers. In the 27 jurisdictions with marriage equality, President Obama got 55.8% of the vote and Governor Romney got 42.3%. That's a 14 point blowout, with a margin of nearly 10 million votes. In the 23 states without marriage equality, the President got only 45.1% and Romney netted 53.4%. That's an eight and a half nine point deficit for the President totaling over 5 million votes.
So the equality states are solidly Democratic and the other states are solidly Republican. This disparity will level off in the coming weeks. Idaho's stay of the 9th Circuit's ruling could be lifted as soon as tomorrow. Officials in Kansas and North Carolina have hinted that they might not pursue their appeal further. In a matter of weeks, if not days, we'll have another handful of states with marriage equality. I'll probably update the numbers once again when those results are in. But my point has been made. This movement has been driven by the people and their representatives and even the judges appointed to serve them are not immune to popular sentiment. In this instance, that happens to be a mitzvah.
The states in the left column were carried by Barack Obama. The states in the right column were carried by Mitt Romney. Dark Blue indicates marriage equality. Nevada is green because as of this moment, it only has civil unions. The light blue and red states have no legal recognition of gay relationships.
Another exciting day for marriage equality, with two major developments. To keep up with these changes I have added a new wrinkle to the above table. The states with yellow font are states where gay marriage is still not permitted but that are in circuits which have ruled to strike down state bans on gay marriage. (Colorado became the first to do so earlier today.) Most likely these states will begin to flip in the coming days and two weeks from now, the chart will be mostly blue.
The most western states might take a little longer. Today that the Ninth Circuit upheld two trial court rulings against state bans of gay marriage. But that means these rulings are not directly affected by the Supreme Court's surprising decision to not hear appeals from other circuits. Alaska, Montana and Arizona can probably hold off the inevitable for a little while, although I'm sure there will be an expedited movement to change that fact in all of those states.
Idaho and Nevada also had an option to delay the inevitable. Today's ruling came from a three judge panel of the Ninth Circuit. Those states could have requested a hearing in front of the entire Ninth Circuit but it is a virtual certainty that the result would be the same. The early indications are that they will not waste their taxpayers money on that. So as soon as tomorrow, I hope to update my chart again.
But today is truly historic. We now have 25 states with marriage equality and 25 without. Throw in DC and we can say that a majority of jurisdictions in this country have full marriage equality, barely ten years after Massachusetts became the first.
Another point of history is that today might be the very last day that this country has "civil unions" as the closest facsimile of marriage available to gay people. Colorado went past that point today and Nevada is expect to do the same tomorrow. Soon, my map will be just blue or red. And it's trending blue, in a hurry.
UPDATE (and it's awesome): The Opinion from the Ninth circuit in the Idaho case includes the following sentence, which ends with a footnote: Same-sexmarriage,GovernorOtterasserts,is partofashifttowardsa consent-based,personalrelationshipmodelofmarriage,whichis moreadult-centricandlesschild-centric.(12) Footnote (#12) Reads:
Blue for Equality, Green for Civil Unions, Red for Neither
This morning the Supreme Court declined to hear seven pending appeals related to gay marriage bans. The immediate consequence is that gay marriages are legal in Virginia, Indiana, Wisconsin, Utah and Oklahoma. Within weeks, it will also be legal in West Virginia, North Carolina, South Carolina, Kansas, Colorado and Wyoming. That latter group of states is not reflected in the above chart because I've been trying to track the gradual progress of this issue in order to show that the law is following the will of the people. More about that later.
The news caught me by surprise. It only takes four of nine justices to hear a case and my assumption was that the four conservative justices, who voted against Windsor, would vote to hear it. But at least one of them chose not to hear all of these cases. We may never know how the vote went, but there are three plausible scenarios:
1. Chief Justice Roberts didn't want to deal with this case just yet. He might not want the headache and publicity of a high-profile gay marriage case. I'm pretty sure that deep down, he does not give a shit about this issue, and would much prefer to go back to handing out privileges to corporations and chipping away at the rights of criminal defendants.
2. The Justices are waiting for a circuit split. Perhaps he would rather wait until next year or until a circuit split arises.The Sixth Circuit, which covers Michigan, Ohio, Kentucky and Tennessee, might soon rule in favor of the right of states to ban gay marriages. If that happens, then the issue will be more pertinent a year from now and even some of the liberal judges might vote to hear that case.
3. Antonin Scalia had a moment of integrity. Well, stranger things have happened. In his Windsor dissent, Justice Scalia predicted that the Court's opinion would inevitably lead to a ruling that states did not have the power to ban gay marriages. After all, the Windsor majority held that the federal government could not deny the due process rights of American citizens. It's not much a of a leap to infer that state governments also could not do so. By that logic, the principled thing to do would be to let the lower court opinions stand. Tony, if that's what you did....I salute you. But let's just say I have my doubts.
Where we Stand and Where We Go Next.
Whatever the reason, the headline is that more than 50 million people will live with marriage equality. For the first time, some permanent damage has been done to my underlying theory about the spread of this freedom tracking with democratic trends. It's obvious at a glance that blue states are nearly unanimous in allowing gay marriage. But now a small number of red states have marriage equality too. Included among them is Utah, the state where the lowest percentage of voters chose the President last time out. Wyoming, the President's 2nd worst state in 2012, will soon join Team Equality too.
The next big decisions will come from the sixth and ninth circuits. If Marriage Equality prevails in both, only Deep South and a swath of the Great Plains will not have full marriage equality. If there is a split, then the state by state fight will resume for another year. And this time next year, I'll probably be blogging about how the Supremes are going to take a case and give us a final answer. And that opinion will come out at the start of the next next general presidential election.
