Abstract
Election Days 2008 and 2009 proved to be largely disappointing ones for gay (2) rights advocates, and specifically supporters of civil same-sex marriage rights in the United States. Although Election Day 2008 brought the historic civil rights milestone of the election of the first African American president, it also brought with it the passage of statewide ballot initiatives targeting the gay and lesbian minority in four states. Voters stripped gays and lesbians of the civil right to marry in California, after all three branches of state government had affirmed the right and 18,000 Californian same-sex couples had exercised it. (3) Voters also prohibited gays and lesbians from adopting or serving as foster parents in Arkansas, prohibited the civil recognition of same-sex marriage in Arizona and banned both civil same-sex marriage and any "substantially equivalent" relationship in Florida. (4) The Election Day 2009 results were more mixed overall, but no different with respect to same-sex marriage. Maine voters, who had been expected to make the state the first to uphold civil marriage equality through a ballot initiative, ended up voting in favor of a ban. (5) Maine's defeat of same-sex marriage represented the thirty-first loss at the ballot box for same-sex marriage. (6) By contrast, voters in Washington State approved what was popularly referred to as an "everything but marriage" statute, granting same-sex couples many of the civil benefits of marriage while withholding the right to marry. (7) Many in the gay civil rights movement reacted to the defeats of marriage equality at the ballot box with understandable alarm and frustration. Others responded with anger and misdirected blame. This Article aims to transcend the superficial analysis of what went wrong and why in the various ballot initiative battles, and turn towards an examination of the deeper lessons proponents of LGBT rights and marriage equality specifically should take from these defeats. My goal is not primarily to engage the theoretical and doctrinal arguments in favor of civil same-sex marriage rights, nor to reconsider whether the gay rights movement should have prioritized the pursuit of marriage equality in the first place. (8) Instead, proceeding from the premise that the struggle for marriage equality is constitutionally, politically and socially compelling, (9) this Article is a meditation on the tactical lessons embedded in the movement's recent electoral defeats, written so that those lessons might inform future plebiscitary campaigns that have at stake the basic rights of LGBT Americans. With those ends in mind, Section I below provides an overview of what occurred in the various statewide ballot initiative battles in 2008 and 2009 and then describes the preliminary analyses of the reasons for the gay community's defeats. Section II presents five interrelated lessons that the movement should glean from these ballot initiative losses, which, if used to inform pro-gay campaign strategies going forward, should result in better outcomes at the polls. First, I discuss how and why the LGBT rights movement must remedy its failures by incorporating diversity--especially racial, ethnic and class diversity--in its institutional leadership. Second, I propose that the LGBT rights movement engage religious arguments and communities much more substantively and authentically, instead of ceding religious arguments and circumventing faith communities in favor of what may appear to be a more hospitable, putatively secular ground. Third, I examine the need for more LGBT people of color (POC) (10) to share our identities and family lives with other members of our respective POC communities. Fourth, I discuss the need for better and more proactive movement strategies to contend with the new atomized digital media environment, which poses difficult challenges in countering political misinformation, responding to anti-gay defamation and promoting public education. …