The tide has turned on marriage equality in the United States. From now on, activists will be fighting an offensive battle for civil rights; the days of defending against state-level constitutional amendments are over.
For years, marriage equality activists mostly played defense against the slew of laws around the country aimed at outlawing same-sex marriage. While there would be an occasional win in the courts or legislatures, they were sporadic and the odds were stacked against us.
Then, Edie Windsor took her case to the Supreme Court and won. Since that time, there have been 12 marriage rulings handed down in various courts and we have won every single case. Six other court cases have addressed other LGBT issues and activists won all six of those, as well. In case after case, conservative and liberal judges are acknowledging that bans on same-sex marriage are unconstitutional and other forms of LGBT discrimination are being scrutinized with a jaundiced eye.
Some state attorneys general are abandoning the defense of cases challenging existing amendments. Virginia, Nevada and Pennsylvania’s top solicitors have declined to justify discrimination. Virginia Attorney General Mark Herring went so far as to join the court case, but on behalf of the plaintiffs and a federal court ruled last week that Virginia’s amendment is unconstitutional.
The momentum has changed politically, too. Instead of considering it a win when a state votes down an amendment, states like Washington, Minnesota, Maine and Maryland are voting to legalize same-sex marriages. Even things that don’t appear to be a win just need a little context to see the progress we’ve made.
At first glance, this week’s vote in the Indiana General Assembly to approve a state constitutional amendment may look like a defeat, but since a change in the wording makes it ineligible to appear on the ballot this fall, activists can easily claim a solid win.
What makes the situation in Indiana uniquely important is that it marks the last time activists will have to defend against mean-spirited attempts to outlaw marriage for gay and lesbian couples. It is a milestone in queer history.
Hoosier activists also used a new technique to keep the amendment off the ballot. With the GOP holding super majorities in each chamber of the legislature, the campaign knew they had to target Republicans. They gathered together Fortune 500 companies, business organizations, and faith and civic leaders to shape a formidable coalition to oppose the amendment. It was led by a well-known Republican campaign manager, employed several Republican lobbyists and flipped several Republican votes in both chambers.
Since the Indiana legislature would need to revisit and pass the proposed amendment again for it to appear on the ballot in 2016, there’s a good chance that a court case could make the issue moot by then. If not, religious right darling Governor Mike Pence has said he doesn’t want to share the ballot with an issue sure to bring out and energize progressive voters.
Even the religious right is starting to shift strategies in the face of reality. Instead of aiming for blatant second-class citizen status, they’ve now started wrapping themselves in the mantle of “religious liberty” and are demanding the right to discriminate based on their religious beliefs. They’re giving up the civil arena in general to focus on seeking an exemption for themselves.
As the polling numbers for marriage equality continue to rise quickly, court cases stack up, and former opponents from both sides of the aisle flip their positions on the issue, advocates can expect the winning streak to continue. It won’t be an easy slog, but victory is in sight.
We’ve turned a corner in the fight for marriage equality nationwide, but let’s not get complacent. When you’re winning, you don’t let up — you push twice as hard to the finish line.
Bil Browning is a long-time gay activist and writer. He is the founder and publisher of The Bilerico Project. Known for his political and social commentary, Bil does consulting work for political communications and new media projects.