Over the past few months, federal and state courts have been finding that state bans on marriage equality or recognizing LGBT marriages are unconstitutional. Utah was the first, and it’s since been followed by Texas, Oklahoma, Virginia, Kentucky, and New Mexico. While most of these are being appealed, Virginia’s is not, and in Kentucky, the Attorney General has refused to appeal, so an outside counsel will be used. In reaction, several states are attempting “religious freedom” bills to allow people to refuse LGBT’s on the basis of “religious objections.” Arizona, Kansas, and Indiana have all attempted it, with … poor results. Arizona’s governor vetoed the bill after massive backlash, while Kansas and Indiana allowed their bills to die in the legislatures. It’s not unexpected that there is going to be this sort of reaction, particularly in the “Red States,” where Republicans hold control and are acting on their base’s demands.
Despite those attempts, and as painful as they are in the short term, in the long-term view they are simply the final throes of a losing effort. It’s worth noting that 17 states and the District of Columbia recognize marriage equality. That causes the legal factor, legal one, which the courts have been ruling on. One of the clauses in the Constitution is Article IV, Section 1, the “full faith and credit” clause:
Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.
In other words, once states began to allow LGBT’s to marry, other states, even if they didn’t allow it themselves, are to recognize those marriages – or should. By failing to recognize those marriages because of their banning it, they fell afoul of the 14’th Amendment’s equal protection clause. While the legal challenges will take time to wend their way through the courts, the problem for conservatives is that the trend towards acceptance of it has been growing. The change in attitudes can be seen in an interview with Kentucky’s Attorney General:
Conway, who opposed same-sex marriage during his failed run for the U.S. Senate in 2010, wouldn’t pinpoint when he changed his mind to support full marriage equality. He said he came around “over the last few years” after conversations with friends in the gay community, and after thinking about how his two daughters would come to view his decision.
“I thought long and hard. I thought about the arc of history,” he said. “I thought about the fact that at one time in this country we discriminated against women. At one time we discriminated against African-Americans and people of color. At one time we discriminated against those with disabilities. This is the last minority group in this country that a significant portion of our population thinks it’s OK to still discriminate against in any way. And I didn’t think that was right.”
While there are still many places where attitudes have not changed (Kentucky is one of them), the shift is happening. Part of that is what happened in states that have passed marriage equality: Nothing. As I pointed out in a previous post, after bitter political battles accompanied by dire predictions of the social consequences, once marriage equality became the law, none of the dire consequences happened. As a political “hot button” issue, it’s rapidly fading. It still is one, but the polling and percentage changes say that in the not-too-distant future, it won’t be.
Several years ago, when New York’s marriage equality law was being debated (again) prior to its passage, a conservative friend asked me what I thought about it. That was because it had been brought up every year – our Assemblywoman was the principal author – and each time it came closer to passage. I told her that while I was for it, I didn’t see the point in wasting effort opposing it. That it was” going to happen sooner or later.” Which is what I believe the states who are currently fighting it should decide. Conservatives need to learn the lesson of King Canute:
The third, that with the greatest vigor he commanded that his chair should be set on the shore, when the tide began to rise. And then he spoke to the rising sea saying “You are part of my dominion, and the ground that I am seated upon is mine, nor has anyone disobeyed my orders with impunity. Therefore, I order you not to rise onto my land, nor to wet the clothes or body of your Lord”. But the sea carried on rising as usual without any reverence for his person, and soaked his feet and legs.
Social conservatives can kick and scream all they want, but the tide of public opinion, and the legal system is rising against them. Their demands that the tide not rise will not stop it, and they can either accept that or stand there getting wet.