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Gay Marriage: We Lost The Battle, But Here's Why We'll Win The War

By L. K. Regan

The election's over, the champagne's been drunk, for some the sobbing has slowed to sniffles, and all that's left is to figure out how the outcome of the longest, most expensive election in U.S. history is going to! Today, we present a wrap-up of the fall-out from yesterday's elections, from gay marriage in California to the projected future of hate-crime legislation.

As of right now, the future of gay families has taken a big step backward. Arkansas voters passed a measure to ban unmarried couples from fostering or adopting children, a law clearly aimed at same-sex couples. And, a number of states took up the subject of gay marriage, in each case with negative outcomes. In Florida, Arizona and California, voters considered ballot measures that would eliminate same sex marriages by instituting language in state constitutions defining marriage as being between "one man and one woman." Amendment 2 in Florida passed by a wide margin (62 percent to 38 percent, with 60 percent required for passage). In Arizona, Proposition 102 passed 56 to 44 percent, putting language prohibiting same sex marriages out of the reach of the legislature and judiciary. And, in California, the most expensive social issue ballot measure in the nation's history (over 73 million dollars were spent on both sides) resulted in the passage of Proposition 8, which also amends the state constitution. In the case of California, the measure puts an end to the gay and lesbian weddings that have been taking place for the several months since the state supreme court declared prohibitions against gay marriage to be unconstitutional.

This is a pretty grim tale on its face—but there are signs of hope in the election returns as well. The Prop 8 vote was very close (it passed by a 52 to 48 margin); eight years ago, a similar measure, but one that did not amend the state constitution, passed by a much wider margin (61 percent) before being overturned by the California Supreme Court. The substantial movement in the polls suggests rapidly changing attitudes. And, that trend is likely to continue, as young voters stood against Prop 8 by a two-to-one margin (voters over 60 overwhelmingly voted for the measure, emphasizing the age trend-lines). Finally, the last word on gay marriage is almost certain to come from the U.S. Supreme Court—where the election of Barack Obama is expected to lead to appointments much more sympathetic to LGBT rights than the current Court. It's important to keep our eyes on the future, and the bigger fight ahead.

On the broader legislative level, there is reason to hope for substantive improvement on LGBT issues. ENDA—the Employment Non-Discrimination Act—faces an uncertain future even under a more sympathetic congress and president. ENDA would offer employees protection against discrimination on the basis of sexual orientation, which currently is a protected category in only a minority of states. ENDA has been hung up since 2007, however, on language that would cover not only sexual orientation but also gender identity. Two versions of the bill—one with gender identity protections and one without—were introduced to congress in 2007. Resolving the conflict over how far ENDA should go will provide an obstacle to its advancement in the new administration. Still, President-elect Obama is on record in favor of the version of ENDA including gender identity protections; there is hope that, should the congress resolve the different versions of the bill, President Obama would sign it.

The recent 10-year anniversary of the murder of Matthew Shepard has brought hate crime legislation back into the public consciousness, reminding us that in the years since his death, no federal hate crime law protecting gays and lesbians has been passed. The Matthew Shepard Act made its way successfully through the House of Representatives in 2007, but stalled in the face of certain veto should it reach the desk of President Bush. President Obama, however, has been an advocate for the Shepard Act, and this summer promised that his administration would push for the bill in congress. Now, we will see the test of this commitment.

Finally, the military's "Don't Ask, Don't Tell" policy may be on borrowed time in the new government. During his campaign, Barack Obama said that he anticipated being able to end the policy, which he described as "a counterproductive strategy." But, he said, he would not make opposition to the policy a requirement of serving on the Joint Chiefs of Staff, and did not expect to be able to get language permitting transgendered people in the military through congress. So, while DADT may die in the new administration, it is likely to do so in stages.

The picture for LGBT rights in the new government is, therefore, cautiously optimistic. Now is clearly the moment for LGBT activists to seize the opportunity to go to work on an administration that is likely to be sympathetic and, at least for a while, have a wave of popular opinion behind it.