Are Utah and Arkansas the New Centers of the Gay Rights Movement?
University of Pittsburgh School of Law
Jurist Legal News and Research
by Douglas NeJaime
December 3, 2008

JURIST Guest Columnist Douglas NeJaime of UCLA School of Law says that in the wake of California voters' endorsement of Proposition 8, amending the state Constitution to restrict the definition of marriage to a union between a man and a woman, the battle for gay rights may now shift to other states and focus on issues other than marriage equality...

I haven’t heard this much about Arkansas since Bill Clinton ran for president. Recently, I shared a cab with a woman from a relatively conservative part of the country. Our discussion quickly headed toward Proposition 8 and California’s fresh ban on same-sex marriage. She explained that she was surprised by the result, but what she really found shocking was the vote in Arkansas, where gay couples (and straight unmarried couples) now can’t foster or adopt children. I couldn’t help but wonder whether this woman, who admittedly had no connection to the gay rights movement, would even have known what happened in Arkansas if it weren’t for the passage of Proposition 8 and the fallout that ensued. Was the potentially narrow activism around marriage actually producing a more comprehensive consideration of the rights of lesbians and gay men?

For years, progressive observers of the mainstream gay rights movement have criticized the increasing attention to marriage equality. They point out that advocates devote the bulk of their financial and rhetorical resources to marriage. Indeed, California’s Proposition 8 added more fuel to the fire. Gay rights supporters from around the country contributed almost $40 million to fight the constitutional amendment. That was $40 million that wasn’t going to the anti-gay initiative in Arkansas that hurt both straight and gay unmarried couples. And that was $40 million that hasn’t gone to fight for family law reform, anti-discrimination protection, and non-marital relationship recognition in other states where lesbians and gay men enjoy very few rights.

Now, the passage of Proposition 8 has focused even more attention on marriage equality. In a state that already boasted a comprehensive domestic partnership regime, Californians have centered their attention on the significance of the word “marriage,” leading to robust public dialogue about the role of religion in public life. Proposition 8’s passage set off marriage equality protests around the country, from cities like New York and Chicago to Sioux Falls, South Dakota and Salt Lake City, Utah. Suddenly, marriage equality occupies a primary position in gay rights discussions in every part of the country.

This nationwide marriage movement, though, might have the ironic and beneficial effect of helping to focus attention on other potential gay rights advances. Marriage – for years presented as the issue for the gay rights movement – had functioned as a serious debate mostly in states with relatively supportive legislation and often significant relationship recognition regimes (e.g., California, Connecticut, New Jersey). Now, by focusing attention across the country, marriage equality has made gay rights part of the dialogue in states where marriage is nowhere near a realistic goal. Citizens and officials might now seriously consider issues facing the gay community and might begin to appreciate the importance of family law reform and anti-discrimination law.

Moreover, the marriage debate has forced some gay rights opponents into uncomfortable positions, distinguishing objections to use of the term “marriage” from potential support for other rights and responsibilities. Indeed, following passage of Proposition 8, the Church of Jesus Christ of Latter-day Saints issued a statement explaining that it “does not object” to rights for same-sex couples. In response, Democratic lawmakers in Utah have introduced legislation that would provide some rights to same-sex couples. Forming the so-called Common Ground Initiative, the legislative efforts would create a domestic partner registry, provide health benefits for domestic partners, and allow unmarried partners to sue for wrongful death.

Of course, there is an element of wishful thinking to all of this. Perhaps the grassroots activism surrounding gay rights issues will soon subside. Perhaps it won’t translate into progress on the ground, especially in states like Arkansas and Utah. And perhaps the current court challenge to Proposition 8 will succeed, which might extinguish the flames of outrage and, worse yet, produce backlash.

But perhaps not. People are talking about Arkansas and its treatment of potential lesbian and gay parents in a way that wouldn’t have happened in the absence of Proposition 8 and the public discussion following its passage. And the first piece of Utah legislation, which addresses the wrongful death statute, recently passed a committee vote. As more people wake up to the real obstacles lesbians and gay men face in states outside of California, perhaps the situations in those states might improve because of – and not despite – the recent attention to marriage.

Douglas NeJaime is the Sears Law Teaching Fellow at the Williams Institute at UCLA School of Law