State Opposition to the MLK Holiday: Which State Opposing Marriage Equality Wants to Reprise the Role of Arizona?

By William K. Black

New York’s adoption of marriage equality is the end of the beginning of the struggle on behalf of marriage equality. Ultimate success is never certain, but it is now highly likely though it will take over a decade to attain. The opposition to marriage equality has four crippling legal, social, and policy problems that I will briefly review. This article emphasizes an economic problem for the States barring marriage equality that will become intense given New York’s adoption of marriage equality and near certainty that California will soon do so.

The four legal, social, and policy problems that increasingly confront opponents of marriage equality include:

The brilliant strategy of “coming out.” Instead of the sinister unknown, over a hundred million Americans realized that they knew homosexuals who were exceedingly, boringly normal.
Much of the history of the West since the Enlightenment has been the recurrent broadening of the concept of “us.” We continue to transfer members of the hated and feared “other” into the category of “us” to whom we owe respect and care. Increasingly, those who grew up in a Western culture include homosexuals as “us.”
The opponents of marriage equality have lost the young. Overwhelmingly young conservatives are embarrassed and amazed at their older counterparts’ homophobia. Strong majorities of younger people support marriage equality. The present is already untenable for the opponents of marriage equality in many blue states – the future is terrifying.

Red Families v. Blue Families, Naomi Cahn & June Carbone (Oxford University Press 2010).

The opponents of marriage equality have no arguments that will convince the unconvinced. Worse, their inability to come up with any convincing argument as to why marriage equality would harm society has led them to base their policy arguments on their prejudices – exposing and focusing attention on those prejudices. This is why, when writing to friendly audiences, opponents of marriage equality have emphasized the vital need to avoid any trial at which they would have to make and defend a claim that marriage equality harms society. They describe the effort to defend such a claim in Hawaii as a “disaster.” Instead of the sin that dares not speak its name, we have the indefensible prejudice that dares not be tested in any court. Here is the link to my prior column explaining this point.

In that article I also quote Gerard Bradley with regard to the economic dynamic that is the focus of this column.

“What then is to be done? Conservatives must hold the defensive lines — in state courts, in legislatures, in corporate America — as best they can. These efforts will come to naught, however, if the [Supreme] Court stays its course.”

The problem with Bradley’s strategy is “corporate America.” Corporate America will provide the impetus for ending state opposition to marriage equality. Recent articles have explained the strong role that business elites played in achieving the passage of New York’s marriage equality law. The CEOs who helped produce the passage were not motivated by economics. Their motivation arose from the four legal, social, and policy factors that I discussed. They had homosexual family members and understood the demonization that their kin faced and the pain of denying them the right to marry the life partner they loved. They believed that the denial of marriage equality was inhumane, unethical, and intolerable.

The rise of CEOs who are strongly motivated to be politically active in defense of marriage equality was a critical development in New York. It is likely to be replicated in some of the bluest states, particularly California. Even if the decision overturning California’s Proposition 8 is reversed there will be a prompt introduction of a proposition to overturn Proposition 8. Opinion in California has continued to swing to towards greater majority support for marriage equality since the Passage of Proposition 8. The role of pro-marriage equality CEOs in countering the LDS’ funding of the anti-marriage equality effort is likely to provide an extra margin of victory at the polls.

The political attraction of demonizing homosexuals will continue for years. Opponents of marriage equality will continue to introduce laws attacking it in the hopes of raising the saliency of the issue in order to increase the turnout by voters who are most strongly opposed to equality. There will be a series of legislative mixed legislative wins and losses on marriage equality. Losses will likely dominate for several years. But here is where the second aspect of economics and corporate America will prove decisive.

The bluest states have enormous populations and their economies are disproportionately large. They are home to tens of thousands of multinational and multistate businesses that have sophisticated pension and benefit provisions. The states that bar marriage equality will become increasingly unattractive places for many of these businesses. Regardless of the nature of their laws, states that deny marriage equality will become nightmares for these businesses if the states attempt to deny full faith and credit to the bluest states’ marriage equality laws. Executives and professionals who are homosexuals will either refuse to relocate to hostile states (damaging both the business and states denying marriage equality) or they will relocate and (often) live out and proud. That will lead to recurrent national publicity about intolerance. Their employers will either back them or fail to do so. Either response will only increase business pressure on the states refusing to respect marriage equality. Businesses and professional firms located in the diminishing pool of states that prohibit marriage equality will find it more difficult to recruit and will increasingly view their location as a competitive disadvantage.

Religious opponents of marriage equality consider it deeply unfair that most supporters of marriage equality view their opposition as bigoted, but that is the reality. Supporters of marriage equality will be repeatedly energized by each act of intolerance against same sex couples who end up living in states barring marriage equality. They will demand that businesses make a choice and they will demand that associations refuse to meet in states that are hostile to equality. As the number of states adopting marriage equality grows – and it will – the third economic pressure on businesses, and by businesses, in favor of equality will grow.

Arizona’s refusal to honor the Martin Luther King holiday offers an example of how acute this third economic pressure can become as the ranks of states barring marriage equality diminish. Arizona rescinded recognition of the holiday after it elected an ultra conservative Governor. Arizona voted to refuse to reinstate recognition of the holiday in 1990. That action led the NFL to move the Super Bowl from Arizona to the Rose Bowl in Pasadena, California. Arizona became a national embarrassment because its refusal was widely perceived as the product of bigotry. Arizona businesses demanded that the State stop this insanity. Prominent Arizona politicians like Senator McCain flipped their position and demanded that the state recognize the holiday. The question we will face, though it may take two decades, is which State wishes to reprise Arizona’s starring role as the symbol of intolerance? The time has come to start the betting pool to predict which State will be the last to abandon laws forbidding marriage equality.