Missouri could learn from Minnesota

History was made on November 7, 2012. I stood in a ballroom in downtown St. Paul and watched the elections results come in. We were voting for a president, but also on a ballot measure that would have amended our state constitution that would have permanently enshrined discrimination in it. I stood glued to the large screens completely surrounded by hundreds of avid supporters. We spent so much time, so much money, so much effort. We made millions of phone calls. We knocked on hundreds of thousands of doors. I personally drove 1,600 miles from my home in California simply to help out with boots on the ground in the final days of the campaign.

It was like nothing I’d ever seen. I worked alongside amazing people, young and old. They were relentless. I can’t tell you how many times I had someone tell me I was going to hell. Doors slammed in our face. It stopped absolutely no one. Because we had so much love, so much support. For every one negative, we had many people cheering us on, telling us how much they were supporting us. So many young people were spurred to action. So many people got off their butts to actually do something about it.

And we made history. We were the first state to hold back an attempt to amend a state constitution to permanently ban same sex marriage.

It was the proudest thing I’d ever done in my life. And I twice rode a bicycle 545 miles from San Francisco to Los Angeles.

And it was probably the dumbest thing the Minnesota Republican Party had ever done in theirs.

A year and a half earlier, Minnesota was facing a similar situation to Missouri. Republicans controlled both houses of the state legislature. A Democratic governor was refusing to rubber stamp their agenda. To bypass the governor, Republicans proposed to constitutional amendments. The process, like Missouri’s, was simple: It required a mere majority of voters in each house. If passed, it would go to the voters and a mere majority would enshrine the bill into the constitution.

Not only did both proposed amendments failed at ballot box, as those voters were deciding on the amendments, the voters were deciding the fate of their representatives as well. Colleges across the state mobilized the youth vote. People knocked across doors in every suburb. Offices in opposition to the amendment popped up in the most unlikeliest of places. My mother’s small home town home to a very aged population had “No” placards across many yards along Main Street.

And I’ll let you in on not so much of a secret: The people mobilized to oppose the amendment weren’t going to vote for Republicans either.

Republicans lost their majority in both houses. It was an absolute routing. Republicans had a 37-30 lead in the senate, and only half the seats were up for grabs. And they still lost their majority. In total, 25 Republicans lost their reelection bids. Not a single Democrat lost their seat. A mere two years into their majority status and it was gone, cast away by an insistence to put discrimination before the voters. 

The sweep was so stark, a few months later, just two years after Republicans had planned on permanent and constitutionally ban it, the Democratic majority was able to legislatively legalize gay marriage. It was precisely the opposite of what they intended to happen.

So, it’s 2016. And Missouri is also considering enshrining discrimination in their constitution. And sure, like those Republicans in Minnesota who are pressured by religious conservatives to support discrimination in the constitution, they may face pressure to support it.

But that wrath will have absolutely no fury like they will at the polls if they place such discrimination before the voters.

Missouri Republicans have a choice: They can learn from the past. Or they can be doomed to repeat it.

No, it wasn’t just “five judges”

A common talking point since Friday’s Obergefell decision has been some variation of just “five judges” decided the case. (They’ve also included some modifier on that, such as “unelected”, which it’s been that way since the nation’s founding, or “black-robed,” as if attire had something to do with it.) 

That’s ridiculous. Court cases don’t just magically show up at the Supreme Court door. They go through an exhaustive process, and few cases have been more exhaustive than Obergefell. In fact, more amicus briefs were submitted in Obergefell than in any other court case in history. 

The truth is the one case that finally was decided was actually four cases (Obergefell was in Ohio, but other cases were in Michigan, Kentucky and Tennessee), each one with its own legal history, seen by many judges, with appeals and other judges reviewing the cases, then consolidated a reheard before a circuit of judges before finally being heard by the Supreme Court.

In addition, the same process has occurred outside the sixth circuit. In the fourth, seventh, ninth and tenth circuits too had multiple cases that went through the same process, each reviewed by multiple judges. Each of these cases too went to the Supreme Court. But the Supreme Court refused to hear the cases for one reason: There was no disagreement. Almost all of the judges (and there were many) in those circuits agreed that marriage equality was a fundamental right. That is why marriage equality was already law of the land in 36 states: The courts ruled it was the law of the land and the Supreme Court agreed to let the decisions lie, and the two times the vote for that was published, it was actually SEVEN judges who voted in favor of letting the lower court decisions stand. In fact, up until the sixth circuit disagreed, it looked like there may be a possibility the Supreme Court might not even have to hear any case, as there was no disagreement. Scores of judges had already ruled in favor of marriage equality. If there was no disagreement, the Supreme Court wouldn’t have even taken it up.

In addition, there were quite a number of cases in other circuits that didn’t make it all the way to the Supreme Court, but they too were almost unanimous is ruling in favor of marriage equality (save one judge in Louisiana). Those too were heard by numerous judges. (What attire they wore, I cannot attest to each instance, but I won’t make the case it made any difference.) 

So as a history lesson, here’s the path they took to get up to the Supreme Court, how the judges rules, and who appointed them to the bench (since certain people seem to define “liberal” or “conservative” based on who appointed them to the court). 

The fourth circuit

• Virginia, July 28, 2014, Bostic v. Schaefer, judge Arenda Wright Allen (appointed by Obama) rules in favor of marriage equality
• North Carolina, October 10, 2014, General Synod of the United Church of Christ v. Cooper,  judge Max Cogburn Jr (appointed by Obama) rules in favor of marriage equality
• South Carolina, November 12, 2014, Condon v. Haley, judge Richard Gergel (appointed by Obama) rules in favor of marriage equality

• Upon appeal, the fourth circuit affirmed the district decisions in a 2-to-1 ruling

• Without comment, the Supreme Court refused to hear the case, letting the lower rulings stand and made marriage equality law of the fourth circuit

The seventh circuit

• Indiana, June 25, 2014, Baskin v. Bogan, judge Richard Young (appointed by Clinton) rules in favor of marriage equality
• Wisconsin, Wolf v. Walker, judge Barbara Crabb (appointed by Carter) rules in favor of marriage equality

• Upon appeal, the seventh circuit (with judges appointed by Reagan, Obama and Clinton) affirmed the district decision in a unanimous ruling 

• Without comment, the Supreme Court refused to hear the case, letting the lower rulings stand and made marriage equality law of the seventh circuit

The ninth circuit

• Nevada, November 26, 2012, Sevcik v. Sandoval, judge Robert Jones (appointed by W Bush) rules against marriage equality
• Idaho, May 13, 2014, Latta v. Otter, judge Candy Dale (appointed by W Bush) rules in favor of marriage equality
• Oregon, May 19, 2014, Geiger v. Kitzhaber, judge Michael McShane (appointed by Obama) rules in favor of marriage equality. (The state did not appeal the ruling)
• Arizona, October 17, 2014, Connolly v. Jeanes and Majors v. Home, judge John Sedwick (appointed by HW Bush) rules in favor of marriage equality. (The state did not appeal the ruling.)
• Montana, November 19, 2014, Rolando v. Fox, judge Brian Morris (appointed by Obama) rules in favor of marriage equality 
• Alaska, Hamby v. Parnell, October 12, 2014, judge Tim Burgess (appointed by W Bush) rules in favor of marriage equality

• Upon appeal, the ninth circuit affirmed the district decision in a 3-to-0 ruling

• Without comment, the Supreme Court refused to hear the case, letting the lower rulings stand and made marriage equality law of the ninth circuit

The tenth circuit

• Utah, Kitchen v. Herbert, judge Robert Shelby (appointed by Obama) rules in favor of marriage equality.
• Colorado, July 1, 2014, Burns v. Hickenlooper, judge Raymond Moore (appointed by Obama) rules in favor of marriage equality.
• Oklahoma, July 18, 2014, Bishop v. United States, judge Terence Kern (appointed by Clinton) rules in favor of marriage equality.
• Wyoming, October 17, 2014, Guzzo v. Mead, judge Scott Skavdahl (appointed by Obama) rules in favor of marriage equality
• Kansas, November 4, 2014, Marie v. Moser, judge Daniel Crabtree (appointed by Obama) rules in favor of marriage equality 

• Upon appeal, the 10th circuit affirmed the district decision in a 2-to-1 ruling

• Without comment, the Supreme Court refused to hear the case, letting the lower rulings stand and made marriage equality law of the tenth circuit

The sixth circuit

• Ohio, July 22, 2013, Obergefell v. Hodges, judge Timothy Black (appointed by Obama) rules in favor of marriage equality
• Michigan, March 21, 2014, DeBoer v. Snyder, judge Bernard Friedman (appointed by Reagan) rules in favor of marriage equality
• Kentucky, July 1, 2014, Love v. Beshear, judge John Heyburn (appointed by HW Bush) rules in favor of marriage equality.
• Tennessee, March 14, 2014, Tanco v. Haslam, judge Aleta Trauger (appointed by Clinton) rules in favor of marriage equality

• Upon appeal, the 6th circuit overturned the district decision in a 2-to-1 ruling

• The Supreme Court agreed to take up the case upon appeal

The fifth circuit

• Texas, February 26, 2014, De Leon v. Perry, judge Orlando Luis Garcia (appointed by Clinton) rules in favor of marriage equality
• Louisiana, September 3, 2014, Robicheaux v. George, judge Martin Feldman (appointed by Reagan), ruled against marriage equality, the first lower judge post-Windsor to do so
• Missisippi, November 25, 2014, Campaign for Southern Equality v. Bryant, judge Carlton Reeves (appointed by Obama) rules in favor of marriage equality

• These decisions were appealed, and arguments were heard, but the case was put on hold pending the Supreme Court decision in Obergefell

The eighth circuit

• Missouri, November 7, 2014, Lawson v. Kelly, judge Ortrie Smith (appointed by Clinton) rules in favor of marriage equality
• South Dakota, January 12, 2015, Rosenbrahn v. Daugaard, judge Karen Schreier (appointed by Clinton) rules in favor of marriage equality
• Nebraska, March 2, 2015, Waters v. Heineman, judge Joseph Bataillon (appointed by Clinton) rules in favor of marriage equality

• Appeals were on hold pending the Supreme Court Decision in Obergefell

The eleventh circuit

• Florida, August 21, 2014, Brenner v. Scott, judge Robert Hinkle (appointed by Clinton) rules in favor of marriage equality
• Alabama, January 23, 2015, Searcy v. Strange, judge Callie Granade (appointed by W Bush) rules in favor of marriage equality

• Appeals were on hold pending the Supreme Court Decision in Obergefell

As you can, it clearly was not “five judges” who heard that case. It was 43 judges, representing 31 states across eight circuits, judges liberal and conservative ruling in favor of marriage equality. In fact, of all those 43 judges, a mere 6 ruled against marriage equality, 6 of 43 judges it went up against. The judicial history is so overwhelmingly for marriage equality, it would have been unprecedented for the high court to overturn that. 

Anyone who claims it was “five judges,” well, you’re just being deliberately ignorant of your history.

The phrase "lifestyle choice" is bigotry

In Wednesday's ruling declaring Louisiana's ban on same sex marriage to be constitutional, conservative Judge Martin Feldman made the argument:

"This national same-sex marriage struggle animates a clash between convictions regarding the value of state decisions reached by way of the democratic process as contrasted with personal, genuine, and sincere lifestyle choices recognition."

The term "lifestyle," or the even worse "lifestyle choice," has always gotten in my craw, as it has most people. Unless you're talking about "desert living", the term is almost always applied by anti-gay people to refer to gay people. That alone tells you something. But that's not why the term itself is bigoted.

For one, if we were talking about "sincere life choices," the argument doesn't sound nearly as convincing. After, few would ever refer to heterosexuals getting married as a "lifestyle choice", or having children as a "lifestyle choice." And yet, without fail, the term is almost always used to gay people when they do those exact same thing. Why is that?

For one, the term "lifestyle" evokes a particular vision. And for heterosexuals, there is no one way to be straight. Maybe you have children. Maybe you don't. Maybe you get married. Maybe you don't. Maybe you take up back packing with your girlfriend and hike across Europe. See! There's absolutely no one way to be straight. There is no such things as a "heterosexual lifestyle" because there's no one way to straight.

And it's the exact same way with gay people. Maybe gay people get married. Maybe they have children. Maybe they don't. Maybe some girl takes up backpacking with her girlfriend and hikes across Europe. See! There's absolutely no one way to be gay either!

And this gets to the crux of the argument. There is absolutely no such things as a "homosexual lifestyle". "A" is a definite article meaning "one". To even imply there is "a" homosexual lifestyle is bigotry. The term is designed so when you think "homosexual lifestyle" (or even "lifestyle" by itself since the two terms are so synonymous), you think of only one thing, and more often that not, that term is designed to whip up stereotypical, negative images about that particular group, whether it's warranted or not, whether it applies to the individual you're talking about or not.

Did you get that? The term is designed to stereotypically paint broad strokes about members a group with little regard to whether it actually applies to the individual you're talking about.

That's the very definition of bigotry.

For after all, don't all of us have a constitutional right to be able to make our own determination about how we live our lives? In fact, I know many same gender couples who have a far more similar "lifestyle" with their heterosexual counterparts than they do with many gay people. To call getting married and raising kids a "homosexual lifestyle" ranks as absolutely preposterous.

And so it's about time we called a spade a spade. The term "lifestyle" is bigotry. And bigots, you're on notice: If you continue to use a bigoted term, you're going to get called out on your bigotry. It's not a "lifestyle". It's a life. And unless you apply it equally to gay and straight people, as in "desert living", you're going to get called a bigot.

The fatal flaws in "right to discriminate" laws

Across the country, there have been several states that have proposed supposed "right to discriminate" laws under the guise of "religious freedom." The latter is an interesting concept, since I'm not really sure where in the bible it calls upon Christians to discriminate against anyone. But that's besides the point.

Luckily, most have failed. Kansas came closest so far, but Arizona passed both the state house and senate. But it too has a fatal flaw.

Truth be told, discrimination against gay people is already quite legal. In 29 states, you can be fired because you're gay. A federal ENDA would resolve that issue. Most states don't have protections against other discrimination against gay people such as in public accommodations, which is misunderstand by many. You don't need to pass a "right to discriminate" law when the law doesn't ban it in the first place. Of course, that doesn't stop many from attempting to do so in ignorance.

No, what isn't known is that federal law already prohibits the exactly kind of discrimination that they are attempting to allow. While it's true that it is legal to discriminate on the basis of sexual orientation, it is against federal law to discriminate against people in public accommodations on the basis of race, gender, religion and national origin.

Stick with me here. It's illegal to discriminate against people on the basis of race. For example, if a different race couple were to ask for wedding services, it is illegal under federal law to deny them simply because of their race.

Similarly, if a same gender couple were to ask for wedding services, it is already illegal under federal law to deny them simply because of their gender.

This isn't an unimportant distinction. Many people who provide wedding services readily admit they'll fully serve people who are gay. Bakers have said they'll totally bake birthday cakes for gay people. Florists have sold flowers to many gay people over the years. What they refuse to do is sell to couples for a same sex wedding.

And it is illegal under federal law to deny public accommodations to anyone simply because of their sex.

And so therein lies the problem. Interestingly enough, the laws that have been proposed have been quite varied. Some specifically target same sex weddings. Others target only weddings banned by the state constitution. Arizona's is by far the most expansive being able to deny anyone for any religious reason. Others narrow it to only anything not illegal under federal law.

But it's still illegal under federal law to deny services because of their gender.

For even as many wedding vendors will tell you, they'll totally serve any gay person who comes in their door. It's only same sex weddings they won't do.

What is wrong with civil unions for all?

Every now and then in the debate about marriage equality, someone will come up with an idea: Make civil unions for everybody. This would apply to all couples, same or opposite gender. It would promote equality without using the religiously-connotated term "marriage."

The idea in and of itself isn't a bad one. It's just never going to happen. And I'll tell you why.

First off, let me say it hasn't been about the word I've been after. It's about equal rights, equal status and equal dignity for myself and other same-gendered couples. So, using the term "civil union", if that's the same as what other, opposite-gendered couples used, is entirely fine by me in that case.

The problem would be the enormous lift it would take in order to make that happen with little will to do so. Let's riddle a moment and take a look at what that would entail.

First off, every state in the country would have to change their laws. The federal government would have to change their laws. Other countries that currently legally recognize "marriage" would have to change their laws. Or if you got married in, say, Australia, would that be recognized as "married" or as a "civil union.

I suppose the easy route to take would be instead of changing every instance of the word "marriage" to "civil union", you could pass one law that would say "marriages" would be recognized exactly like "civil unions" would be. But then you're not really replacing "marriage", you're just using "civil union" in addition to it. And so the heavy legislative lifting would be required.

Then there's the issues of the state constitutions. Thanks to the National Organization for Marriage, in 29 states, the term "marriage" is defined in their state constitution. In 20 of those states, "civil union" or "any other legal term equal or similar to marriage" is banned in their constitution. In other words, the state constitutions would have to be amended again in order to make it happen.

Finally, there's the political will in order to make all of this happen. As it turns out, it's a pretty small group of people who want it. Most people are either a) All for marriage equality for same-gendered couples or b) Against all legal recognition of relationships of same-gendered couples. It's only a small minority who are for some legal recognition of relationships of same-gendered couples and opposed to using the term "marriage". I mean, yes, it could be tens of millions of Americans, but that's compared to the estimated 50%+ of Americans who are for letting gay people get "married". Yes, there is also a sizable group of people opposed to either, but many of them are not going to take up the will in order to pass "civil unions for all" until they're backed into a corner where they have to legalize some recognition for gay couples, but oppose "marriage". And those who oppose any recognition and live in states where it's not yet an issue aren't going to take it up either. And places that have legalized civil unions for gay couples only have done so only where there was some impediment to doing so (such as a constitutional amendment banning marriage or insufficient political will to legalize marriage equality). These are all marginal cases, not some overwhelming movement. In fact, only 2 of the 50 states have civil unions without marriage equality, Colorado and Oregon, and only there because "marriage" is banned in their constitution. Nevada has domestic partnerships with all the benefits of marriage, but it's not called "civil unions". Illinois and Rhode Island had civil unions, but changed those to "marriage" once the political will to do so presented itself.

The issue has been discussed seriously a couple times in the legislature. In Minnesota, a state without marriage equality or a constitutional ban on it, found that when they were discussing marriage equality, a few in the middle seriously took the issue of "civil unions for all" up. It was put to a vote on the entire floor, and only about 10% of the legislative body voted in favor of it. Those opposed to any recognition and those opposed to secondary status defeated the measure overwhelmingly.

Unlike those who favor one extreme or the other (no recognition versus full marriage rights), there is no national group organized to make it so. There is no fundraising. There are no Facebook pages or Twitter feeds dedicated to it. The political, legal and social giants have divided themselves into the two camps, and very few, except those who are still evolving on their stance on this issue, are there to champion "civil unions for all" to fruition. I don't even think a #CUFA hashtag would even ever be trending.

So no, in and of itself, there isn't anything wrong with civil unions for all. Except the enormous lengths and the complete lack of political will it would take to make it happen. It's not a bad idea. It's just never going to happen.