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OutRight: The Meaning of Massachusetts

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When Bay Staters legalized same-sex marriage, they meant it.

By an overwhelming vote of 151–45, on June 14 the Massachusetts legislature rejected a proposed state constitutional amendment banning gay marriage. The vote is significant in two ways. First, it means that a reform that began as a narrowly decided court mandate now has some democratic backing. Second, it means that a fledgling experiment will be allowed to continue and that we can learn from it.

The amendment needed 50 votes to get on the ballot for a November 2008 referendum. Though it’s still possible for antigay marriage activists to press for an amendment in the next session of the state legislature, they would have to begin the long, multi-year process all over again. That means they could not even get an amendment on the ballot until 2012 at the earliest. By then, gay marriage will have been in place for eight years in the state. And the political fortunes of gay-marriage opponents have been moving steadily in the wrong direction for three years now.

What’s so striking about the vote was how dramatically support for gay marriage has grown over time in the legislature since the state supreme court ordered the recognition of gay marriages to begin in 2004. Back then, before the state had any experience with such marriages, there was overwhelming opposition to the idea. Only about a third of the state’s 200 legislators fully supported gay marriage.

The only real disagreement back then was whether the state should constitutionally ban both civil unions and gay marriages or just ban gay marriages. Opponents of gay marriage gambled in 2004 that they could hold out for a broad ban. It was a strategic decision that cost them.

The delay allowed gay-marriage supporters time to mobilize politically and to let the initial anxiety subside. More than 8,500 same-sex couples have gotten married in the state with no obvious or immediate effect on Massachusetts families or existing marriages.

Gay-marriage opponents attempted to come up with credible examples showing that it had caused harm. They pointed, for example, to Catholic Charities of Boston’s exit from the adoption business. But most people understand that, however regrettable, that was a consequence of pre-existing state anti-discrimination law and of Catholic Charities’ own decision to reverse its previous practice of serving gay couples. It was not caused by gay marriage.

Anti-gay marriage legislators were defeated in state elections. Others, like the Republican senate minority leader, actually became gay-marriage supporters. “Gay marriage has begun and life has not changed for the citizens of the commonwealth, with the exception of those who can now marry who could not before,” he told the New York Times in 2005, a year after he’d been a lead sponsor of the amendment.

While gay-marriage opponents gathered 170,000 signatures for a petition to have the issue placed on the ballot, the state’s amendment process requires that at least 50 state legislators, one-fourth of the 200 legislators in the state house and senate, vote to send such a citizen initiative to the ballot and to do so in two consecutive sessions. Legislators correctly understood that in such a process, by design, they are not merely a “pass-through” for a ballot fight. Under state law, they were entitled to, and did, exercise their own judgment about the issue.

Now, even the watered-down ban on gay marriages has only anemic and collapsing legislative support. As recently as January, the amendment was approved by 62 legislators. By mid-May, through good old-fashioned politicking, support had dwindled to the low 50s. By the day of the all-important vote, to the surprise of everyone, it had sunk to only 45.

An even bigger win for gay marriage, in my view, would have been a successful referendum vote in November 2008. But it’s clear there’s now a secure beachhead for gay marriage. And thanks to this decisive legislative support, it now has a democratic imprimatur it would not have had absent a strong political challenge.

The political consequences of allowing gay marriages to continue in Massachusetts are enormous. Much opposition to gay marriage has been based on hypothetical and not completely unreasonable fears about an important and untried reform. As time passes, it is growing more and more difficult to make these arguments. Doomsday scenarios are no longer believable, if they ever really were. In one state, at least, gay marriage is here to stay.

Writing from the conservative side, Dale Carpenter began his column for OutSmart in 1994, when he lived in Houston. Now residing in Minneapolis, Carpenter is a University of Minnesota Law School professor.

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