Same-sex marriage has never won an election. Maine was our 33rd loss. On the other hand, domestic partnership has never, on its own, lost an election. Washington state continued that winning streak, barely. The attempt to repeal comprehensive domestic partnerships was too close for liberal Washington State, 47 percent. This means trouble for us. Our enemies, undoubtedly, are already planning domestic partnership repeals in more conservative areas. Even in California, instead of fighting for the rites of marriage, we may be forced to defend the rights of marriage we have already won through domestic partnerships. (California law says that all laws, regulations, and court decisions that apply to spouses in a marriage equally applies to registered domestic partners.) Even if California's domestic partnership law is not in jeopardy, certainly other states with domestic partnerships or other forms of recognition are at risk.
National polls say 55 percent to 60 percent of Americans support marriage equality, all of the federal and state rights of marriage, just as long as it is not called "marriage." These polls also say that only about 40 percent support same-sex marriage. However, that does not necessarily translate into who shows up to vote, particularly in special or off-year elections. Washington state's polls initially said 66 percent supported domestic partnerships but only 50 percent of registered voters bothered to vote.
Our marriage-only strategy created a tsunami of reaction: the federal Defense of Marriage Act, 45 states passing same-sex marriage bans, 18 of those bans extending to civil unions and domestic partnerships, and 30 of the bans are by constitutional amendments. What a mess! However, before our marriage-only strategy we had a different strategy for achieving marital rights. It worked well, made remarkably steady progress, and had little opposition. Comprehensive domestic partnerships, which are legally indistinguishable from marriage, have rarely faced a significant challenge. And it has never lost. Unfortunately, our enemies, having won every same-sex marriage election, now have domestic partnerships in their sights also. Our only chance of success is to stick to our values but create a new strategy.
Our original long term strategy for achieving marital rights was to create a parallel and legally equal category, domestic partnerships. Eventually people would say, "It is stupid having two categories doing the same thing. Let's combine them." No tears, just a housekeeping measure. Much less flashy than the current marriage-only strategy but it was working. More important, comparing the trajectory domestic partnerships was on when the strategy was halted with the continuous defeats and heartache the marriage-only strategy has given us, it is clear that the domestic partnership strategy would have brought us to one, unified category of marital rights for both heterosexuals and LGBT folk much, much sooner. Unfortunately, like the previous presidential administration, which left the country in a mess, our current marriage-only strategy has left our community in an electoral mess. Our community's unquestioning devotion to the marriage-only strategy, which is only a strategy, not a cause or an ideal, has given our enemies the opportunity to undo our progress. Our enemies attacked Washington's domestic partnership law as if it was marriage, which it is not, but it almost worked. We must have a new strategy.
One of the saddest effects of the marriage-only strategy has been the devaluation of one of our community's significant accomplishments. Domestic partnerships bring tangible benefits and security to tens of thousands of LGBT families, but now, it has been denigrated in the eyes of our community. The marriage-only strategy has, in reality, become a marriage-or-nothing strategy. Well, the LGBT community of Washington state proved by their hard work that is wrong.
The term, "separate but equal," was always a lie. The racist who promoted it never really wanted African Americans treated equally. Everyone, with a wink and nod, knew that. But its opposite, that "separate can never be equal," is also a lie. If that were true then men and women would share the same public toilets and affirmative action would not exist. Domestic partnerships were invented by LGBT folk to obtain the benefits of marriage when most of us viewed marriage as a discredited patriarchal institution. Comprehensive domestic partnerships and civil unions are now specifically designed to avoid any inequalities. This painstaking legislative word-smithing gives lie to the notion that separate cannot be equal.
All civil rights struggles have had a series of steps and compromises along the way. Our struggle is no different. But, what if I am wrong and separate is not equal? What if comprehensive domestic partnerships are only "almost" equal? At this point in time, I would still love to be "almost" equal because, as of today, we are nowhere near equal! Let us get to equality (or almost equality) first. Once we have achieved that, we can start to worry about possible inequalities. We may not find any. Until then, it is just academic ruminations. (Commissions in New Jersey and Vermont "proving" that civil unions were not equal to marriage were cleverly stacked with marriage-only advocates whose conclusions had been decided upon before each commission met.)
The question I have for our community's leaders (you know to whom I refer, the alphabet soup of NCLR, HRC, NGLTF, GLAD, EQCA, Lambda, etc.): "Are we so used to losing that we now want to add domestic partnerships and civil unions to the list, or, are we going to wake up and realize we need a new strategy?" The clarion call of "marriage, marriage, only marriage" has not worked and seems unlikely to in the near future. We need a new strategy (possibly, our old one) which, will, first, defend the rights we already have won and, second, create a strategy that expands our rights. A new strategy might also spare us from our new annual ritual of having a gut-wrenching cry when we have lost another election. This year we were lucky. We only lost Maine. Last year we lost California, Arizona, and Florida.
Our losses will not stop if we keep repeating our failures without changing our strategy. Sadly, I see many in our community clinging to the marriage-only strategy with the same irrational religious zeal of a born-again Christian. I understand such zeal for our goal, which is equality. But I do not understand why so many in our community are wedded to a strategy that has repeatedly failed us. We need a new strategy.
Leland Traiman chaired Berkeley's 1983 Domestic Partner Task Force, which wrote the world's first domestic partnership policy enacted into law. Traiman founded Rainbow Flag Health Services and Sperm Bank (http://www.GaySpermBank.com) and successfully defended the rights of gay sperm donors against the Food and Drug Administration. He blogs at www.NationalMarriageEquality.blogspot.com and lives in Alameda, California with his husband of two decades and their two children, ages 10 and 4.