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:
  1. 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.
  2. 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.”
  3. 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). 
  1. 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.      

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

  1. Now you are arguing that all those evil CEOs that must be regulated in the minutest detail are really good guys, and that states shouldn't have the right to block federal ideas – like the consumer protections that would have prevented most of the mortgage meltdown?I think the CEOs aren't being altruistic, they want to attract the young people you cite, and being able to offer "spousal benefits" on an equal basis might make that easier.I would note that the IRS hasn't budged on filing as married.For me, I am against ANY role of the states in defining marriage. It is a religious matter, not a civil one (beyond what might be in an explicit or implicit marriage contract). There are other forms of marriage – why only "gay" marriage? Marriage is a sacred institution, the state is a profane one.I would also be cautious. The demographic majority – those who vote – tend to be on the other side. You might end up with more things like the Defense of Marriage Act on the federal level the more things like this happen. I don't think it will turn out as well as you think.

  2. "Now you are arguing that all those evil CEOs that must be regulated in the minutest detail are really good guys, and that states shouldn't have the right to block federal ideas – like the consumer protections that would have prevented most of the mortgage meltdown?"You need to read more carefully. He's arguing that the CEOs are acting in their, and their families, own interests.

  3. Regarding:For me, I am against ANY role of the states in defining marriage. It is a religious matter, not a civil one (beyond what might be in an explicit or implicit marriage contract). There are other forms of marriage – why only "gay" marriage? Marriage is a sacred institution, the state is a profane one."In the U.S., a license to marry is a legal document issued by any of the fifty state governments, and marriage is a civil contract. Anyone can perform any kind of religious ceremony they want, or none at all – they can just go before a judge and say "I do." Then, they are married in the eyes of the state and a large number of rights, duties and privileges accrue to them on account of this fact. Civil marriage is what gay people have been denied and what they are demanding. They already have the right to form any kind of church they please and get "married" in the eyes of whatever they take to be their deity. But without that license from they state, it's just their own private understanding. It has no force or meaning in any court of law.

  4. Actually it is worse than I thought (you will find comments from TZ1 on this site in other articles noting the irony of invoking St. Thomas More about the issue, where the question was whether the church or king had the final say over marriage – and lost his head).Where the people voted, 31 states have voted against gay marriage, Minnesota might be 32, and North Carolina 33.You have two states where it was politicians or judges imposed it. to "a license to marry", why should there be one? The "large number of rights, duties and privileges" are part of the profanation and tyranny. Yes, I am very specifically saying that the state ought not discriminate based on a license and/or contract, or not deny the license and/or contract to anyone on any basis (including multiple people). Some states even recognize "common law marriage".The only reason for the state to license marriage is to meddle with it. The first laws were to prevent interracial marriages, so it has a history of discrimination.As to the Banksters, they, by accomplishing both the control fraud and bonuses paid by the taxpayer also were "acting in their, and their families, own interest".I rarely think those same CEOs when acting in their own interest are "moved by an invisible hand" to act in the interest of the society at large. Whether it be mortgage laws or marriage laws.

  5. I was in error above – six states recognize gay marriage – and in New Hampshire those who supported it were booted out, as were 3 (so far) of the State Supreme Court judges in Iowa, whose legislature is working on a constitutional amendment.As I'm with More and not Hank7, I detest this power struggle as it is destroying the separation of powers, subsidiarity, and many other things, but I suppose those don't matter when all of them, like marriage itself, is whatever the current mob's latest fad or whim says it should be today.Celebrate your victory, but also note that there are sufficient states of a different opinion which might write a marriage amendment into the constitution.If you don't understand "blowback", 9/11 doesn't make any sense. There will be a backlash if you persist.Perhaps if let alone, in a generation it would simply become common and the law would naturally recognize it. If instead, you want a roe-v-wade, you will get a civil cold war like the one on abortion. Where the senate nomination process is corrupt, and stealth candidates are brought forth (like Roberts – how did that work out?).I'm a libertarian because I fear government power over anything – for if it has power, I cannot expect it to be used prudently or wisely, or even in my favor.If you want a large army of jackboots going forth to impose gay marriage, they can also go forth and impose its contrary.I would not give any power to government that I would not want to be wielded or administrated by Hillary Clinton or Karl Rove. That makes the list very small.

  6. Never has an argument been made, albeit unintentionally, that more strongly attests to the class basis of support for so-called "marriage equality" than Black's here. And "progressives" wonder why there is no mass support for traditional working class interests in the United States, why it is that their natural constituency has been lost to the Tea Party? The sense of tz's point above that "you are arguing that all those evil CEOs that must be regulated in the minutest detail are really good guys" is particularly well taken. "Marriage equality", like abortion, is and always has been the cause celebre of elites, of university educated, by-in-large highly paid whites that have an outsized influence in our institutions and who regularly bring this influence to bear, often coercively, in the circumstances they most directly control. Hence the ubiquity of "sensitivity training", as repulsive a version of thought control as any that ever emerged in the former Soviet Union. Working people, particularly those working people who see their religious convictions as central to their lives, rightly regard the New York developments as ominous. The politicians in the New York State Assembly and their elitist, corporate controllers may be one set of facts here, but the people are another.Lavrenti Beria

  7. What astounds me is the LGBT and media silence on Obama's position against gay marriage. No claims of homophobia when the big O is against it.Oh, did I say it astounds me? I meant how predictable and hypocritical…..

  8. Some family models are only sustainable in good economic conditions. The traditional husband / wife / multiple children model ensures self care for infirm family members (such as parents when they get old). General prosperity and safety nets in the West have reduced the need for families that can be self sufficient giving rise to all sorts of new family models such as childless homosexual couples. If Western prosperity and safety nets suffer sustained declines, it's quite possible these alternative lifestyles will be abandoned out of necessity. For this reason, childless couples, single adults, single parents, etc. should be especially active in trying to promote sustainable economic policies (including fighting banking fraud and bail-outs) because that will best ensure their lifestyle can be sustained. We're all in this together, but some have more to lose than others.

  9. "Where the people voted, 31 states have voted against gay marriage, Minnesota might be 32, and North Carolina 33."TZ – you seem clueless about the US Constitution. It's written to protect minorities from the tyranny of the majority. So do support bringing back slavery if it's supported by the majority?