University of Miami Law School University of Miami School of Law Institutional Repository Articles Faculty and Deans 2010 Taking Initiatives: Reconciling Race, Religion, Media and Democracy in the Quest for Marriage Equality Anthony E. Varona University of Miami School of Law Follow this and additional works at: https://repository.law.miami.edu/fac_articles Part of the Civil Rights and Discrimination Commons, and the Law and Society Commons Recommended Citation Anthony E. Varona, Taking Initiatives: Reconciling Race, Religion, Media and Democracy in the Quest for Marriage Equality, 19 Colum. J. Gender & L. 805 (2010). This Article is brought to you for free and open access by the Faculty and Deans at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in Articles by an authorized administrator of University of Miami School of Law Institutional Repository. For more information, please contact [email protected]. 19.3 Columbia Journal of Gender and Law TAKING INITIATIVES: RECONCILING RACE, RELIGION, MEDIA AND DEMOCRACY IN THE QUEST FOR MARRIAGE EQUALITY ANTHONY E. VARONA 1 Election Days 2008 and 2009 proved to be largely disappointing ones for gay 2 rights advocates, and specifically supporters of civil same-sex marriage rights in the United States. Although Election Day 2008 brought the historic civil rights milestone of the election of the first African American president, it also brought with it the passage of statewide ballot initiatives targeting the gay and lesbian minority in four states. Voters stripped gays and lesbians of the civil right to marry in California, after all three branches of state government had affirmed the right and 18,000 Californian same-sex couples had exercised it.3 Voters also prohibited gays and lesbians from adopting or serving as foster parents in Arkansas, 1 Professor of Law and Associate Dean for Faculty and Academic Affairs, American University Washington College of Law (WCL); member of the national board of directors, Gay and Lesbian Alliance Against Defamation (GLAAD); former general counsel and legal director and national board of directors member, Human Rights Campaign (HRC). This article benefited significantly from discussions following its presentation at the COLUMBIA JOURNAL OF GENDER AND LAW 2009 Symposium, the Yale Law School 2010 Rebellious Lawyering Conference, and at the Universit6 de Paris X - Nanterre/American University WCL Faculty Scholarship Colloquium in Paris, as well as from the very thoughtful and helpful reviews of Jarrett T. Barrios, Daniel Borrillo, Angela J. Davis, Caroline Fredrickson, John R. Gill, Dean Hansell, Darren Hutchinson, Shannon Minter, Angela Onwuachi-Willig, Nancy Polikoff and Jamin Raskin. Dean Claudio Grossman, as always. provided generous research support and encouragement. The author thanks Laura Stafford, Tess Cohen, Ezra Corral, Christina Golden, Sarah Kupferman, Sean Nelson, Ariel Toft and Kimberly Walters for their excellent editing, and Carina Clark, Kathryn Coniglio, Nicholas Federico, Tami Martin, Samuel Pearson-Moore and Jessica Ritsick for their superb research assistance. 2 1will often use the term "gay" in this article as a synecdoche referring to gay men and lesbians in relation to same-sex marriage, and in certain other contexts to the broader lesbian, gay, bisexual and transgender (LGBT) community and civil rights movement. I See infra notes 11-32 and related text. 19.3 Columbia Journal of Gender and Law prohibited the civil recognition of same-sex marriage in Arizona and banned both civil same-sex marriage and any "substantially equivalent" relationship in 4 Florida. The Election Day 2009 results were more mixed overall, but no different with respect to same-sex marriage. Maine voters, who had been expected to make the state the first to uphold civil marriage equality through a ballot initiative, ended up voting in favor of a ban. 5 Maine's defeat of same-sex marriage represented the thirty-first loss at the ballot box for same-sex marriage. 6 By contrast, voters in Washington State approved what was popularly referred to as an "everything but marriage" statute, granting same-sex couples many of the civil 7 benefits of marriage while withholding the right to marry. Many in the gay civil rights movement reacted to the defeats of marriage equality at the ballot box with understandable alarm and frustration. Others responded with anger and misdirected blame. This Article aims to transcend the superficial analysis of what went wrong and why in the various ballot initiative battles, and turn towards an examination of the deeper lessons proponents of LGBT rights and marriage equality specifically should take from these defeats. My goal is not primarily to engage the theoretical and doctrinal arguments in favor of civil same-sex marriage rights, nor to reconsider whether the gay rights movement should have prioritized the pursuit of marriage equality in the first place. 8 Instead, proceeding from the premise that the struggle for marriage equality is 4 See infra notes 33-43 and related text. 5 See infra notes 44-47 and related text. 6 See Abby Goodnough, A Setback in Maine for Gay Afarriage, but Medical Marijuana Law Expands. N.Y. TIMES, Nov. 5. 2009. available at http://www.nytimes.com/2009/11/05/us/ politics/05maine.html. 7 See infra notes 48-49 and related text. 8 My colleague Nancy Polikoff has written powerfully and convincingly about the significant costs of the same-sex marriage movement to the legal recognition of family diversity in the LGBT and general communities. See NANCY D. POLIKOFF, BEYOND (STRAIGHT AND GAY) MARRIAGE: VALUING ALL FAMILIES UNDER THE LAW 98-109 (2008); see also John D'Emilio, The Marriage Fight is Setting Us Back. GAY & LESBIAN REV., Nov Dec 2006, available at http:// www.glreview.com/issues/13.6/13.6-demilio.php (arguing that the marriage equality movement has done more harm than good, both by "creat[ing] a vast body of new antigay law" and by counteracting the progress of feminist and gay rights movements in de-institutionalizing and de- centering marriage for everyone) (emphasis in the original). 19.3 Columbia Journal of Gender and Law constitutionally, politically and socially compelling, 9 this Article is a meditation on the tactical lessons embedded in the movement's recent electoral defeats, written so that those lessons might inform future plebiscitary campaigns that have at stake the basic rights of LGBT Americans. With those ends in mind, Section I below provides an overview of what occurred in the various statewide ballot initiative battles in 2008 and 2009 and then describes the preliminary analyses of the reasons for the gay community's defeats. Section II presents five interrelated lessons that the movement should glean from these ballot initiative losses, which, if used to inform pro-gay campaign strategies going forward, should result in better outcomes at the polls. First, I discuss how and why the LGBT rights movement must remedy its failures by incorporating diversity-especially racial, ethnic and class diversity-in its institutional leadership. Second, I propose that the LGBT rights movement engage religious arguments and communities much more substantively and authentically, instead of ceding religious arguments and circumventing faith communities in favor of what may appear to be a more hospitable, putatively secular ground. Third, I examine the need for more LGBT people of color (POC)I0 to share our identities and family lives with other members of our respective POC communities. Fourth, I discuss the need for better and more proactive movement strategies to contend with the new atomized digital media environment, which poses difficult challenges in countering political misinformation, responding to anti-gay defamation and promoting public education. In the fifth part of this Section, I attempt to show that although the gay community's travails in the recent ballot initiative battles illustrate both the dangers of and constitutional infirmity inherent in direct democracy, more strategic and proactive engagement by the LGBT rights movement in direct democratic lawmaking may actually accelerate progress towards marriage equality, both by building favorable support for 9 For excellent arguments in favor of marriage equality for gay and lesbian Americans, see generally WILLIAM N. ESKRIDGE, JR.. THE CASE FOR SAME-SEX MARRIAGE: FROM SEXUAL LIBERTY TO CIVILIZED COMMITMENT (1996) [hereinafter "ESKRIDGE"]; JONATHAN RAUCH, GAY MARRIAGE: WHY IT IS GOOD FOR GAYS, GOOD FOR STRAIGHTS, AND GOOD FOR AMERICA (2004); EVAN WOLFSON, WHY MARRIAGE MATTERS: AMERICA, EQUALITY, AND GAY PEOPLE'S RIGHT TO MARRY (2004). 10 1 refer to all LGBT ethnic and racial minority members including Latinos/as-as "people of color" for ease of reference, acknowledging that the Latino/a community is comprised of individuals from all races. See OVERVIEW OF RACE AND HISPANIC ORIGIN, CENSUS 2000 BRIEF, U.S. DEP'T OF COMMERCE, (2001). at 1, available at http: //www.census.gov/prod/200 1pubs/ c2kbr0l -1 .pdf. 19.3 Columbia Journal of Gender and Law plebiscitary campaigns and by catalyzing support for legislative and judicial advances. Finally, Section III concludes by discussing the importance of patience and perspective in the movement for LGBT equality. I. WHAT HAPPENED AND WHY A. The 2008 and 2009 Election Day Results 1. California Proposition 8 (2008) In California, voters by a slim margin (52% in favor to 48% against) passed Proposition 8, a ballot initiative that amended the state constitution to prohibit same-sex marriage in the state. "1 Eighteen thousand same-sex couples had already married in California in the six months before Election Day 2008.12 The outcome became all the more bruising to many gay and lesbian Californians when it was reported that Proposition 2, another statewide ballot initiative proposing to require more humane conditions for the caging of livestock, passed 1 3 by nearly a two-to-one margin. California's path to the recognition and ultimate banning of same-sex marriage was an especially circuitous one.