Same-sex marriages (SSM), civil unions, & domestic partnerships
Attitudes towards the LGBT community
seem to have
a tipping point in
the U.S. during
early 2011, followed by rapid change:
We use the acronym "SSM" throughout this section to represent "same-sex marriage"
We use the acronym "LGBT" to refer to lesbians, gays, bisexuals, transgender persons and transsexuals.
About "tipping points:"
Malcolm Gladwell's book "The Tipping Point: How Little Things Can Make a Big Difference," 1 describes how:
"... little changes can have big effects. When small numbers of people start behaving differently, that behavior can ripple outward until a critical mass or 'tipping point' is reached, changing the world."
"Gladwell's thesis that ideas, products, messages and behaviors 'spread just like viruses do' remains a metaphor as he follows the growth of 'word-of-mouth epidemics' triggered with the help of three pivotal types. These are:
- Connectors, sociable personalities who bring people together;
- Mavens, who like to pass along knowledge; and
- Salesmen, adept at persuading the unenlightened.
"Paul Revere, for example, was a Maven and a Connector. Gladwell's applications of his 'tipping point' concept to current phenomena ... may arouse controversy." 2
Two previous examples of "tipping points:"
- Human slavery: Anabaptists started to criticize slavery in the late 17th century. They were eventually joined by Quakers and Mennonites. All three were very small Christian denominations and had little effect on society. But then, John Wesley (1703-1791), founder of the Methodist movement, became actively opposed to slavery. The small protest became a mass movement for the abolition of slavery.
- Interracial marriage: This is an another example of the slow movement towards equality: this time for interracial couples. Acceptance of such marriages in the U.S. increased gradually over about four decades:
- In 1948, about 90% of American adults opposed interracial marriage.
- Also in 1948, the Supreme Court of California legalized it. 3
- In 1967, about 72% were opposed to interracial marriage and 48% felt that marrying a person of another race should be prosecuted as a criminal act.
- Also in 1967, the U.S. Supreme Court legalized interracial marriage throughout the U.S. 4,5 This was probably the tipping point when Americans realized that interracial marriage was here to stay, and was about to come to a church or court house near them.
- In 1991, adults opposed to interracial marriage became a minority for the first time. 5
Has another tipping point happened -- this time for same-sex relationships?
According to the National Association for Marriage -- the main para-church group opposed to same-sex marriage --no tipping point has happened or is likely to happen in the future. They have repeatedly emphasized that all 32 voters' referendums, voter initiatives, propositions, and state constitution amendments on this topic have resulted in the banning of same-sex marriage in a state. They seem to imply that this past behavior would continue into the future, indefinitely.
However, the vote margin has been very small in recent years:
- California's Proposition 8 of 2008-NOV that banned SSM in the state passed by a vote of 52% to 48%. If only 2% of the voters changed their minds, it would have failed. Meanwhile, support for SSM in the state is increasing by 2 percentage points per year. So, if Prop 8 had been voted upon in 2009-NOV, it would have been too close to call; in 2010-NOV or later, it would have likely failed to pass.
- Maine's Question 1 of 2009-NOV that banned SSM in the state passed by a vote of 53% to 47%. However, support for SSM in the state is increasing by about 1.6% per year.
According to Jon Davidson of Lambda Legal -- a major pro-equality LGBT group --a tipping point was reached on 2011-FEB-23 when the Obama Administration publicized their decision to no longer defend the Defense of Marriage Act (DOMA) against constitutional challenges in court. He wrote:
"When future generations look back on Wednesday, February 23, 2011, there can be little doubt that they will see it as such a tipping point in the quest for equality for lesbian, gay, and bisexual people. We still have far to go, but that day is a sure sign that it is only a matter of 'when,' not 'whether,' the promise of equality under the law will be fulfilled, regardless of one’s sexual orientation."
"What hit the most headlines, of course, was the statement of the Department of Justice that it will no longer be defending the so-called Defense of Marriage Act because it has concluded that that law is unconstitutional. What was an even bigger development, however, was the conclusion of the president, the U.S. attorney general, and the Department of Justice that all laws that discriminate based on sexual orientation should be presumed to be unconstitutional.
"With the reasoned analysis we should expect from a president who once taught constitutional law and an attorney general who was once a judge, they have concluded that courts should treat anti-gay laws with suspicion, based on the nation’s long history of discrimination based on sexual orientation, gay people’s relative lack of political power, and the unfairness of discriminating based on such a core characteristic that is unrelated to the ability to perform or contribute to society. As a result, as the attorney general has explained, courts should give 'heightened scrutiny' to laws that treat lesbians, gay men, and bisexuals unequally [to heterosexuals]. Under that test, he has continued, courts should strike down anti-gay laws as unconstitutional unless the government can prove both that those laws' unequal treatment of gay people is at least substantially related to the advancement of an important government objective and that advancing that objective was the actual reason for the law, not some hypothetical or after-the-fact rationalization."
"This is an about-face from arguments made by the executive branch for decades that laws that treat gay people unequally should be presumed to be constitutional and should be upheld if any conceivable argument might be made that they further a legitimate state interest, regardless of whether that was the reason for a particular law’s enactment or not." 6
Various information sources interpreted the reason why the Obama administration chose this time to announce that it would no longer defend DOMA in court:
- Some religious and social conservatives suggested that the timing was chosen to fire the first shot leading up to the 2012-NOV elections.
- Some religious and social liberals pointed to Massachusetts federal District Court Judge Joseph L. Tauro's ruling that said in part:
"... this court is convinced that 'there exists no fairly conceivable set of facts that could ground a rational relationship' between DOMA and a legitimate government objective. DOMA, therefore, violates core constitutional principles of equal protection."
The equal protection clause in the 14th amendment to the U.S. Constitution normally requires governments to treat people equally. However, this is not an absolute requirement. If a government has a valid objective that requires that it treat people differently, then it can discriminate either in favor of or against one or more groups. Judge Tauro's ruling, and a later one by a bankruptcy court in California found that no valid objective existed for the active discrimination against LGBT persons in Section 3 of the federal DOMA law. Thus it was unconstitutional.
Many federal District Courts and U.S. Courts of Appeal eventually concurred with this belief. Finally, the U.S. Supreme Court agreed in the case Wilson v. United States. They declared Section 3 of the federal DOMA laws unconstitutional. Married same-sex couples whose marriages were recognized where they lived in the U.S. had equal access to 1,138 federal marriage benefits, grants, protections, etc. for themselves and their children on a par with opposite-sex couples. The arguments used by the Supreme Court in this case were used in many subsequent lawsuits to legalize SSM.
There were many developments affecting same-sex marriages (SSMs), same-sex parenting, and other LGBT matters following the decision of the Obama Administration. One major development was the finding by many respected polling agencies that a solid majority of American adults now support SSM. The margin between those supporting SSM and those opposed has reached 8 or 9 percentage points. Historical trends between 1996 and 2011 show that support for SSM has been rising at about 1.7 percentage points a year, while opposition has been dropping by about 1.5 percentage points a year. Thus, the margin can be expected to increase at over 3 percentage points a year, or about 32 percentage points a decade.
We have documented other events showing a movement towards equality from month to month during:
The rate of change towards marital equality and similar steps towards other equal treatments of LGBT individuals and couples does seem to have accelerated since 2011. Consider the following :
- The military's Don't Ask, Don't Tell policy (DADT) has been terminated, so that lesbians, gays and bisexuals can freely serve.
- Multiple federal court declarations that the main section of the federal Defense of Marriage Act (DOMA) is unconstitutional,
- The availability of SSM in New York State in mid-2012,
- The legalization of SSM in Maine, Maryland, and Washington State by referendums on election day in 2012-NOV,
- The defeat of a constitutional amendment to ban SSM in Minnesota on 2012-NOV. This was followed by the legalization of SSM by the Legislature in 2003-MAY.
- The legalization of SSM in 2013-MAY by the Rhode Island legislature. More details.
- A ruling by the U.S. Supreme Court that legalized SSM in California on 2013-JUN-26.
- A second ruling on the same day by the U.S. Supreme Court that overturned the main section of the federal Defense of Marriage Act and gave equal benefits to married same-sex couples.
- Legalization of same-sex marriage in various states by legislative action, court decisions, or citizen initiatives, reaching a total of 19 states and the District of Columbia by the end of 2014-AUG.
- Decisions by two U.S. Circuit Courts of Appeal in three lawsuits which favor of an end to the SSM ban in Oklahoma, Utah and Virginia. The decisions were based on the courts; conclusions that the state bans violated the Due Process and/or Equal Protection clauses of the 14th Amendment of the U.S. Constitution. By the middle of 2014-AUG, all three cases had been appealed to the U.S. Supreme Court. Whether the Court will grant certiorari (agree to hear a case) is a matter of speculation by 2014-SEP.
The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.
- Malcolm Gladwell, "The Tipping Point: How Little Things Can Make a Big Difference," Back Bay Books, (2002). Read
reviews or order this book safely from Amazon.com online book store.
- Publishers Weekly's review of the above book, at: Amazon.com
- John Rogers, "Kung Fu Monkey" blog, 2005-MAR-16, at: http://kfmonkey.blogspot.com/
- Gail Mathabane, "Gays face same battle interracial couples fought," USA Today, 2004-JAN-25.
- Sean Robert Cahill, "Same-sex marriage in the United States: Focus on the facts," Lexington Books, (2004), Page 12. Read reviews or order this book safely from Amazon.com online book store
- Jon Davidson, "Marriage Equality's Tipping Point," the Advocate magazine, 2011-FEB-24, at: http://www.advocate.com/
- Goeffrey Fowler & Evan Perez, "Shift on Gay-Marriage Law Will Affect Array of Policies," Wall Street Journal, 2011-FEB-25, at: http://online.wsj.com
- Nathan Black, "Christians Need to Prepare for Normalization of Gay Marriage," Christian Post, 2011-FEB-26, at: http://www.christianpost.com/
- Sandhya Somashekhar and Peyton Craighill, "Slim majority back gay marriage, Post-ABC poll says," Washington Post, 2011-MAR-18, at: http://www.washingtonpost.com/
Copyright © 2011 & 2013 by Ontario Consultants on Religious Tolerance
Latest update: 2014-DEC-01
Author: B.A. Robinson