The High Water Mark

"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 Death Throes of Civil Unions

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-sex marriage, Governor Otter asserts, is part of a shift towards a consent-based, personal relationship model of marriage, which is more adult-centric and less child-centric.(12)

Footnote (#12) Reads:

He also states, in conclusory fashion, that allowing same-sex marriage will lead opposite-sex couples to abuse alcohol and drugs, engage in extramarital affairs, take on demanding work schedules, and participate in time-consuming hobbies. We seriously doubt that allowing committed same-sex couples to settle down in legally recognized marriages will drive opposite-sex couples to sex, drugs, and rock-and-roll.

Latta v. Otter D.C. No 1:13-cv-00482-CWD