hail marys

Jared Polis’ Doomsday Scenario: No DOMA Repeal Until 15 States Have Gay Marriage

Had activists in California and Maine yielded wins in their gay marriage fight, then there might actually be momentum to repeal the Defense of Marriage Act in Congress. That’s according to Rep. Jared Polis, who says, “We simply need to have more states that have same-sex marriage … if we get up to 10, 12, 15 states it becomes a real issue, and that’s when Congress will act and repeal DOMA.” Well, that is quite a mission! And also: A horrible reality.

Particularly because we’re still in the single digits when it comes to states with legal gay marriage, and arguably years (decades?) away from reach the double digits Polis says we’ll need. “I think we could certainly be a lot further down the road if we had preserved marriage in Calfiornia and preserved it in Maine, we would probably be talking about repealing the Defense of Marriage Act,” he tells Bil Browning. “But because we weren’t able to win those battles, it really set back the agenda, certainly on marriage-related issues.”


Even more troublesome: Isn’t the White House’s current resident promising a DOMA repeal during his tenure? He’s only got, maximum, seven years left. And yet there’s still work to be done repealing state constitutional amendments banning gay marriage, let alone enacting same-sex marriage laws there. Then again, Polis isn’t alone in his assessment: Rep. Jerry Nadler, who’s the lead sponsor on the DOMA-repealing Respect for Marriage Act, says the shortest timeline we should expect is in 2011.

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  • george

    I have to agree with Mr. Polis. We have to make it happen in more states first (and try to get 4 true liberals on the Supreme Court).

  • Chitown Kev

    In this respect, I agree with Polis.

    Follow up wins in California and Maine with a win in New York followed by a win in New Jersey, then, yes, we would be in a much stronger position.

    Then the cherry on top of that would be Illinois. In California, New York, and Illinois alone you are talking about 90 electoral votes…

  • Robert, NYC

    I predict there will be no repeal of DOMA under this administration and we’ll be lucky if we get repeat of DADT. Marriage equality may have to happen via civil disobedience and unrest, even if a few lives have to be lost in the process. We need to end all political correctness and discontinuation of support of a party that takes our votes for granted and our money but delivers nothing.

    We won’t get four liberals/progressives on the Supreme Court with the conservative in the White House who kow-tows to the religious cults and disregards and delays our rights. He’s not the change we’d been duped into thinking he was. We were conned, don’t let it happen again.

  • Robert, NYC

    repeal of DADT I meant in the last post.

  • naghanenu

    I agree. Yep. I do.

    If you wanna win an argument as explosive as this one you gotta have ammunition. Obama,in my opinion, really meant his promise. What he did not realise is the number and ferocity of anti gay people in really high and infuential places. I mean, do you honestly see the McCain crowd leading the way on repealing DOMA…REALLY?

    I mean c’mon gay marriage was legal in California for like 10 minutes then it was not legal anymore. Maine would have had it too but thanks Yes on 1. How the hell are you supposed to convince people that this is the future when scare ads can scare them away so easily? I mean lets think about it. If people are really strong in their belief in something why were they swayed so easily? Is it maybe because they were not just being honest in the first place to avoid being called bigots and blacklisted? Food for thought.

    Anyway i digress. The people need to be convinced. The 18-30 CROWD WONT CUT IT. There just arent that many of them that can really make a difference. Whites only, nope. Get the minorities on board and throw in religious groups too, then we have a real march to marriage equality.

    This is a challenge people..so get crackin’

  • Cam

    How nice to know that bigotry, whats right, and civil rights mean absolutly nothing to members of Crongress. As always with them it’s all a numbers game about getting reelected.

  • Matt

    Incidentally, 15 is exactly the number of states that repealed their anti-miscegenation laws before the federal repeal came in 1967. I think Polis’ proposal is feasible, but that doesn’t mean there’s not a quicker way.

    It is a bit different this time: social conservatives lost the miscegenation battle, but they’ve taken what they’ve learned and gone the route of enshrining their bigoted ideology in state constitutions. For miscegenation, constitution-altering only happened in 2 states, probably under a eugenics-based rationale, and lasted until the late 1990s. (source: http://www.filibustercartoons.com/marriage.htm)

    As I see it, marriage inequality laws are as good as gone in a decade or two. But sooner is better than later.

    Also, Robert (#3), “even if a few lives have to be lost in the process”… WTF?

  • 1EqualityUSA

    Dear Matt, Are you figuring in the internet’s powerful role? Decades seems a bit lengthy.

  • Robert, NYC

    Matt….remember the civil rights movement in the 60s? Well, some were killed fighting for their full equality. We may have to go the same way to effect change. Right now, I don’t see full equality in a dozen or more states happening for many decades. There’s no political will at the federal level to change it as it now stands and with 5 republican catholics stacked against any moderate democrats on the bench, I don’t see how on earth that’s going to change, unless all five of them dropped dead or resigned. We need at least five progressives sitting there, and I just don’t see that happening. The problem with our society unlike most other western nations is that religion has permeated every level of the political system and its not going away so soon. I also don’t see a democrat in the White House after November 2012 either. The current resident has been disastrous for our people, ineffective, and not a proponent of full equality who in fact believes in sexual apartheid, legal segregation in the form of inferior civil unions that carry NO portability outside the country and not internationally recognized in western cultures.

  • Matt

    1EqualityUSA: based on Nate Silver’s estimates in http://www.fivethirtyeight.com/2009/04/will-iowans-uphold-gay-marriage.html

    Also, his dates are only statistics-based and do not account for the political momentum and organizational effort required to actually bring a marriage equality vote to fruition; they also do not consider the existence of a gay Bradley effect.

    Perhaps 15 states will repeal their amendments relatively soon, but for marriage equality to fully exist in the US (if the state constitutions are repealed one-by-one), it might take a decade or two.

  • AndrewW

    The US Senate is the problem. Polis should have acknowledged that. LGBT issues have support in the House, they are DOA in the Senate. The US Senate is much older (64 yrs.) and much more religious (86%) than America. Suggesting that losses in CA and Maine are preventing any progress is disingenuous. Of course, that shouldn’t come as a surprise to anyone who understands politics.

    Polis, like other politicians wants us to believe we can win if we just fight more and contribute more. Both of those assertions are false, because they do not change the Senate. Sooner or later, the Senate much change dramatically.

    There will be no “political solution” until we change minds. We have spent more than $2 billion and 40 years seeking a “political solution.” That money has been wasted. What we do in the coming years may be more waste of time and money, or the admission that we need to change our strategy and actually create our equality.

    We have been here before – 1992. When Clinton was elected it had a similar “Obama feel” to it. We had (false) hope that finally LGBT issues would be passed. But, the opposite happened – we got DADT and DOMA.

    It should make us all wonder why we “trust” politicians. I would rather trust our friends, neighbors, co-workers and even strangers. But, we’re not even talking to them. We have all our eggs in the Democrat’s basket. When will we learn?

  • 1EqualityUSA

    If this was handled federally, it would save the country billions of dollars and decrease rancor. This issue is tearing the country apart.

  • Kurt

    “Marriage equality may have to happen via civil disobedience and unrest”

    That is right. If we can get a few million young gay boys to cross their legs and announce they are “saving” themselves for marriage, then things will really start kicking!

  • AndrewW

    After you, Kurt.

  • spiritedrandy

    DOMA repeal might, if Congress were specific, include language, relying on Sections 1 & 5 of the 14th Amendment [pasted below], barring the State constitutional anti-gay amendments.

    14th Amendment

    Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    * * *

    Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

  • Prof. Donald Gaudard

    All of the comments so far focus on Congress or the legislative branch; you’ve forgotten about the Courts. Granted, the lawyers handling the numerous gay civil rights cases haven’t done much to make the public aware of the progress being made, but let me assure you that real change is going to happen in 2010.

    The federal Prop 8 case, being handled by Ted Olsen and David Boies (the 2 most brilliant Constitutional lawyers–Ted Olsen has argued 55 cases before the US Supreme Court and David Boies has argued 10 cases–both of which are a huge number), is scheduled for trial on Jan. 11. I have read the pleadings in the case and have read the trial briefs and the witness lists. Believe me, the proponents of Prop 8 don’t stand a chance. In addition, the case is being heard by Judge Vaughn who has already issued a number of gay-favorable rulings (including 3 really important ones). At the end of the trial, Judge Vaughn will issue a ruling in which he most likely will strike down Prop 8. It all depends on how broad his ruling is. There is also a pending preliminary injunction which would prohibit the State from enforcing Prop 8 which Judge Vaughn could grant pending the outcome of the appeal.

    The Prop 8 supporters will then likely appeal it to the 9th Circuit Court of Appeal (the most liberal of all of the Courts of Appeal). Already 1 of the judges on the 9th Circuit (Judge Reinhardt who is married to the head of the Southern California chapter of the ACLU) has ruled the Defense of Marriage Act (DOMA) unconstitutional, and the presiding judge has said that DOMA does not prevent gay married couples from getting federal benefits just like straight married couples. In fact, the presiding judge (Judge Kozinski) has given the Obama administration until Dec. 19 to provide the federal benefits or else.

    In addition, the Gay and Lesbian Advocates and Defenders (GLAD) in Boston have filed suit challenging a section of the DOMA. I have read the pleadings of GLAD and the government, and once again, the government doesn’t stand a chance. It all depends on who broad the ruling is.

    I wish the lawyers would keep the public better informed on what is happening since there is a lot of good stuff out there.

    Don Gaudard, Professor of Law Emeritus

  • Charles

    “This issue is tearing the country apart.”

    You need to get out more. It isn’t even on the radar of most of the country, pro or con.

  • AndrewW

    Polis is doing HRC-speak. It’s the States fault. HRC has been saying this privately for a few weeks. Trouble in the Congress is because of CA and Maine. Those “losses” have scared members of Congress.

    Remember, HRC doesn’t have to actually accomplish anything, they just need the right excuse(s). Then, they appeal for more money. People should realize (sooner or later) that with HRC, “more money” means “more of the same.” 28 years and $513 million is enough.

  • 1EqualityUSA

    Charles, Maine will never be the same. People who have been living together in the same community, eating at the same diners, worshipping at the same church are all knowing who was for and against equality. The same is true for Washington State and California and Iowa. It is tearing communities apart.

  • Fitz

    I really think that Leadership is the issue here. And yes, I am speaking specifically about Obama. Obama’s thinly disguised homophobic remarks and actions somehow make it okay with the progressive community to go with their most base-instinct of hating anyone who is not like them. “Obama is a good guy, and he doesn’t want the fagots getting married, so my bigotry is ok too.”

    And “tearing the country apart” might be strong… We aren’t that important to most people. It is hurting individuals and families though. I live in CA, and until Prop 8 I had a pleasant if superficial relationship with my religious family members.. haven’t spoken to one of them since Prop 8. Don’t plan to. I won’t go to family events where they will be present.

  • Brunonian

    Everyone knows, like every other civil rights issue, we’ll have to wait for the supreme court. Congress won’t lead.

  • 1EqualityUSA

    And after the Supreme Court determines that discrimination is unconstitutional, it will take 40 years to heal

  • Mike in Brooklyn

    @No. 16 Prof. Donald Gaudard

    Thank you for your analysis; it is difficult for ernest interested followers of these important issues relying on the media to give accurate information.

    Assuming that the judge nixes Prop. 8 and that that decision is upheld by the Court of Appeal, what are the chances at the Supreme Court? Now as a novice, I remember reading Scalia’s dissent in Lawrence (I think it was that case) that the majority’s opinion would effectively legalize same-sex marriage. Of course, Scalia notably regularly dismisses his own legal opinions when they disrupt his personal opinions.

    I hope you see this as I would like to know your view of how SCOTUS will rule (I’ll assume that either side will appeal their loss)?


  • QueerToday

    Shift the focus to ENDA. We’ve lost 100 million on marriage battles while everyone is suffering.

  • AndrewW

    Shift the focus to EQUALITY. We’ve lost $2 billion on “equal rights” and “political solutions” – with no results. If we want our equality we better do something different, isn’t 40 years enough? It’s time for new ideas and a real movement.

  • Peter

    I do not agree with Polis. WHY? When are the congress persons, the courts and the President going the abide by the U S Constitution? ( Your ‘morals’ are “your” morals. Your religion is ‘your’ religion.) Neither of those ideas are to have anything to do with “my rights” as a citizen of this country.

    This is the situation. Nothing else needs to be discussed. Hopefully the upcoming trial in California will get that point across.

  • terrwill

    Sorry guys this shit ain’t gonna make it to the toilet…….
    There are just too many rightwing-nutbag lunatics who just
    hate the Gays too much. And more disgusting is the jellyfish
    politicians who are kowtow to these lunatics. Look at recent NY defeat and in NJ the jellyfish were put on notice by incomming Gov Chris (bag ‘o donuts) Christie that he would weild his veto pen on any legislation penned by pro Gay marriage legislators, they are not even bringing the damm thing to a vote!
    The good news is that as the age of persons decreases the approval of the Gays increases. We basicaly need to wait until
    until they fuck off an die (literaly!)

  • TimNCGuy

    This statement by Polis just sounds like what politicians always say when they want to punt the ball down the field and at the same time keep the constituents holding on to hope in the future.

    Remember the past….

    Just give us control of the house and the senate and we will be able to get things done…

    then it was

    well, we need the presidency too in order to stop the vetos…

    then it was

    well, really we need 60 votes in the senate to stop filibusters to get anything done. Just give us that and we promise to get things done.

    Now, the dems have control of everything. We have given them everything they asked for and they still can’t do anything.


    well, really we need to have 10 or 15 states with legal marriage..

    and once we do that, they will come up with another excuse.

    WTF It shouldn’t take anything other than marriage in one state to stop denying the legally married citizens of that one state the federal benefits they are entitled to.

    I’m not even just talking about LGBT issues. They can’t get any liberal or progressive issues taken care of. Look at the clusterf*ck they have made of healthcare reform. When all it takes is one conservadem to screw up the works of healthcare and the party lets them get away with it, what makes anyone think they won’t learn their lesson from this and do the same thing on every piece of legislation for the rest of the Obama administration.

  • AndrewW

    @ TimNCguy:

    Polis is just doing HRC-speak. They are raising money for themselves, while shifting blame to “us.” Now, we need to win a bunch of States before the Congress will “act.” Bull-shit.

    LGBT issues are DOA in the US Senate. Until that changes, we should stop donating.

  • Joe Mustich, JP

    Professor Gaudard @ #16 makes some excellent points…

    And I’m looking forward to January 11’s court case……

    Onward, Joe Mustich, Justice of the Peace,
    Washington, Connecticut, USA

  • Robert, NYC

    Time to get touch with the Democrats, don’t allow them to ever take our votes and money for granted ever again. They need to be reminded at the next election, don’t expect our support until we get it in writing that they’ll deliver on the goods. If that doesn’t happen, they can go fuck themselves over and over. We also need to use the economic advantages of allowing same sex marriage. Right now, Connecticut is the nearest state to where I live. Every NY gay couple intending to marry should go there, spend and spend until you drop. Stop spending as much as you can in our own state. Deprive it of tax revenues and help Connecticut and others to prosper. In fact, the next time HRC, Lambda, GLAD, Empire State Pride Agenda, the DNC start sending out requests for donations, send it back with a message that instead of giving them any more financial support for othing, we’ll be spending our hard earned dollars in states that grant us equality. Hit them where it hurts, big time. In fact, that message needs to get out loud and clear in our state. That’ll scare the shit out of the 8 who voted against us and every republican who votes no.

  • Mark

    I agree with Robert. Stop giving Gay Inc. any money until we get a NEW Gay Inc., one that actually tries to achieve equality, not just their own fund-raising goals.

  • EqualityNow

    Polis sounds a lot like HRC. Ugh. I thought he was real.

  • Prof. Donald Gaudard

    @23 Mike in Brooklyn–Mike, I think we have a real good chance in the US Supreme Court for the following reasons. The vote will be 4-4 with Justice Kennedy casting the deciding 5th vote. Justice Kennedy wrote the opinion in Lawrence v. Texas which overturned the state sodomy laws. In addition, Justice Kennedy wrote the opinion in the case of Romer v. Evans. In Romer, the voters of Colorado passed by 62% an amendment to the state constitution which said that no governmental entity could pass a gay rights ordinance and that the 3 existing gay rights ordinances in Colorado were null and void.

    Justice Kennedy wrote that this state constitutional amendment passed by the voters was unconstitutional because you can’t pick out a group, such as gays and lesbians, and prohibit them from achieving benefits simply because you dislike them or have an animus toward them.

    This argument is 1 of 3 being used in the California Prop 8 federal trial–that Prop 8 was passed because the supporters dislike gays and simply picked them out to deny them previously held marital benefits.

    Also, Chief Justice Roberts, a conservative, is an unknown quantity. He was not on the Court when Romer was decided, but was in private practice. The law firm for which he worked required the attorneys to do pro bono (free) legal work. Justice Roberts worked with the gays and lesbians to refine their arguments in Romer. He pretended in a practice session that he was Justice Scalia and asked the gay attorneys the questions he thought Scalia would ask. This gave the gay attorneys a chance to practice their arguments before the actual hearing. In fact, he was instrumental in preparing the gay attorneys for their oral arguments before the US Supreme Court.

    So, I think, with Boies and Olsen arguing the case, with Justice Kennedy being the swing vote (with Roberts being an unknown), it looks like we’ve got a good chance. So, we have Iowa, Mass., Conn., Vermont, and New Hampshire. In addition, in another month we will have the District of Columbia. Moreover, Kennedy likes to look at what other courts around the world are doing with similar cases. In this situation, we have 5 countries approving gay marriage (Portugal coming in Jan or Feb which will make it 6), about 15 countries supporting civil unions, and with 28 countries approving of open gays serving in their military. So the trend world wide is in favor of gay marriage which would have some bearing for Justice Kennedy. Don

  • AxelDC

    DOMA is not going to be overturned by Congress; the courts are going to have to throw it out.

    Just having 6 states (including DC) with gay marriage makes it a logistical nightmare for the court system. A few cases are going to wend their way through the courts, and the Constitutional illogic of DOMA is going to become obvious. I don’t trust this Supreme Court to make the right decision, but the Constitution says that contracts made in one state will be honored in another, and you cannot stop gay couples from moving freely around the US.

    Bill Clinton knew that when he cynically signed this bill. How said that the entire gay rights agenda we expect from Obama is to undo Bill Clinton’s legislative legacy.

  • Sam

    Obama is the new Bill Clinton.

  • PopSnap

    I have to agree about the Boies/Olson thing. Say whatever you want about Supreme Court Justices, but they are smart. And Sotomayor has always been on our side; in college she was supposedly friends with their LGBT alliance and also expressed support for gay rights. Plus, dont forget that some of the most liberal democrats in Congress/Senate are also Catholic.

    I think it would be a 5-4 decision, in our favor, with Kennedy being the swing vote; and Kennedy is supposedly very good friends with Ted Olsen and almost always rules in his favor.

    Dont forget: a minority’s best friend is the Supreme Court.

  • FakeName

    “Dont forget: a minority’s best friend is the Supreme Court.”

    Yeah, just ask the WW2-era Japanese Americans.

    Professor Gaudard, I have not seen anything from Olson and Boies regarding how they plan to answer Baker v. Nelson. There is already binding SCOTUS precedent regarding same-sex marriage which lower courts are not simply free to ignore. Are O&B simply not asserting any 1st, 8th, 9th or 14th Amendment arguments foreclosed by Baker?

  • Prof. Donald Gaudard

    @FakeName: In their opposition to the Motion for Summary Judgment, Boies and Olsen spent 5 pages discussing why Nelson is not controlling. You can read this at the following web site:


    Boies and Olsen are arguing the Prop 8 is a denial of the 14th Amendments guarantee of due process and equal protection. What 1st, 8th, and 9th Amendment claims are you referring to?

  • FakeName

    Prof. I haven’t read the actual papers in Baker but from other sources my understanding is that they claimed that banning SSM violated 1st rights of free speech and association, 8th right against cruel and unusual punishment and 9th unenumerated right to privacy.

  • Prof. Donald Gaudard

    Baker v. Nelson was argued before the Minnesota Supreme Court as a sex discrimination case. Baker & McConnell had applied for a marriage license and the clerk refused to grant it. Baker appealed on 1st, 8th, 9th, and 14th Amendment grounds. The Minnesota Supreme Court addressed only the 9th Amendment as it was incorporated into the 14th Amendment, refusing to address the 1st & 8th Amendment issues. The US Supreme Court denied the mandatory appeal on the grounds the case failed to present a substantial federal question. That is, they issued no written opinion discussing the issues.

    In Wikipedia (Baker v. Nelson) it says: When dealing with precedents like Baker, lower courts may have to guess at the meaning of these unexplained decisions.[16] The Supreme Court has laid out rules, however, to guide lower courts in narrowly applying these summary dispositions:[17]

    * The facts in the potentially binding case must not bear any legally significant differences to the case under consideration.[18]
    * The binding precedent encompasses only the issues presented to the Court, not the reasoning found in the lower court’s decision.[19]
    * Of the issues presented, only those necessarily decided by the Court in dismissing the case control.[20]
    * Subsequent developments by the Court on the relevant doctrines may cast doubt on the continuing validity of a summary judgment.[21]

    Using the first example: in the federal Prop 8 case being argued by Boies & Olsen, there are legally significant differences to the Baker case (among other things, the Prop 8 challenge is based on both sex and sexual orientation discrimination). In addition, it is the application of a constitutional amendment denying a previously held marital right, whereas Baker dealt with a statute discussing marital rights by men and women.

    In the second example: the issues argued in the Prop 8 challenge are denial of due process and equal protection based on sexual orientation. These issues were not presented to the US Supreme Court in Baker.

    In the third example: only those decided by the Court in dismissing the case control–again, sexual orientation discrimination was not discussed in the Supreme Court decision in Baker.

    In the fourth example: Subsequent developments by the Court on the relevant doctrines may cast doubt on the continuing validity of a summary judgment. Here, we have the Lawrence v. Texas decision on the 14th Amendment substantive due process right as it applies to gays. We also have the case of Romer v. Evans decision on the 14th Amendment application of equal protection of gays. Both cases cast doubt on the continuing validity of Baker.

    For those reasons, I believe (as do Boies and Olsen) that Baker v. Nelson is not controlling. In addition, the Prop 8 supporters in the federal Prop 8 case filed a motion for summary judgment in which they argued that Baker was controlling. Judge Vaughn, the trial judge in the federal Prop 8 case, denied the motion which means the case can go to trial on Jan. 11. Of course, the Prop 8 proponents will argue, both at trial and on appeal, that Judge Vaughn is wrong and that Baker v. Nelson controls. But I think this is a losing argument for the 4 examples cited above and for the reasons Boies & Olsen presented in the brief to deny the Motion for Summary Judgment which I referred to in Comment #39. Don

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