On Gay Marriage, Will High Court See a "Tipping Point"?

As Maine goes, so goes the nation.

— Traditional political adage

      The press release hit e-mail boxes shortly before midnight on election night (Nov. 6): “Mainers Approve Marriage for Same-Sex Couples; First Time Freedom to Marry Passed in Ballot Measure.” For gay rights advocates, the vote in Maine broke a string of 31 consecutive defeats in statewide voting on marriage equality. By the next morning, however, they could claim a four-state winning streak, as voters in Maryland and Washington state also approved measures to recognize same-sex marriages and Minnesotans rejected a measure to ban same-sex marriage in the state.
      Voting in all four states was close, but not razor-thin. The gay marriage proposals won with 53 percent in Maine, 52 percent in Maryland and Washington. In Minnesota, the constitutional amendment to define marriage as the union of one man and one woman failed with a little under 48 percent of the vote.
      The margins were far smaller than the 2-to-1 majorities that gay marriage opponents typically gained in their string of victories dating from 1998 in Alaska and Hawaii. Still, a win is a win, however close, whether in baseball or politics. Gay rights organizations were trumpeting the results even as gays and lesbians around the country were hailing the victories as a watershed event. “The word tipping point comes to mind,” Ian McCann, a gay journalist in Dallas, posted on his Facebook page.
      LGBT Americans had other grounds for celebrating. Tammy Baldwin, a Democrat, will become the first openly LGBT member of the Senate in January after defeating her Republican opponent, popular former governor Tommy Thompson, by a 5 percent-plus margin. Baldwin’s House seat was won by another openly gay Democrat, Mark Pocan. Mark Takano, a Japanese American, became the first openly gay person of color to be elected to Congress by winning a House seat in California. In all, the Gay and Lesbian Victory Fund counts six openly gay members of the U.S. House and seven candidates who won election as the first or the only out members of their state legislatures. “This was a breathtaking leap forward,” said Chuck Wolfe, president and CEO of the fund.
      Gays and lesbians were also celebrating President Obama’s re-election. Obama had disappointed the LGBT community in his first two years in office by moving slowly on repealing the military’s “don’t ask, don’t tell” policy and failing to get behind a federal bill to ban anti-gay discrimination. But he solidified support after signing the “don’t ask, don’t tell” repealer in December 2010 and then again when he endorsed marriage equality for same-sex couples in May 2012.
      More important than any individual race or ballot measure, gay marriage appears to have achieved majority support nationwide, according to several recent polls, and with that support appears to be receding as a political wedge issue. Republican strategists used anti-gay marriage amendments in 2004 to help drive the GOP base to the poll. The tactic may or may not have helped George W. Bush carry Ohio and with it win re-election, but regardless there was little evidence in the 2012 balloting that support for gay marriage carried a political cost. At the head of the ticket, Republican Mitt Romney said he opposed gay marriage but did not highlight the issue.
      The victories in Maryland and Washington came after state legislatures voted to recognize same-sex marriages; in both states, Democratic governors pushed the measures through Democratic-controlled legislatures, but won only thanks to a handful of votes from Republican lawmakers backing the party lines. Opponents forced referendums on the measures, professing confidence that voters would reject the laws; they were wrong.
      Once the newly approved laws take effect, gay marriage will be legal in nine states — Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, Washington — plus the District of Columbia. Of those 10 jurisdictions, elected lawmakers voted their approval in eight — all but Iowa and Massachusetts. Opponents can no longer blame activist judges alone for “redefining” marriage; the change is now coming through the political process.
      The argument over the litigation strategy versus the political strategy has simmered within the LGBT community. Those who favored going to courts argued for boldly claiming constitutional rights now, not later; those who stressed the political route warned of a backlash that could harm, not help, the cause. From the perspective of 2012, it appears that both sides can claim vindication. Without litigation, the issue would never have risen to the top of the national agenda. Without victories in legislatures and at the ballot box, favorable court rulings will be hard to win and — as in California, with Proposition 8 — at risk of reversal.
      The wall of anti-gay marriage constitutional amendments, adopted in most red and a handful of blue states, now poses a daunting obstacle for marriage equality advocates. Reversing them through the political process is out of the question today, and perhaps for the foreseeable future. For that reason, the focus of attention must inevitably shift to the Supreme Court, which could decide to hear the constitutional challenge to Proposition 8 later this term. As Mr. Dooley wisely observed, the Supreme Court reads the election returns. It remains to be seen whether the justices will look to Maine as a bellwether on this issue.

Drone War Needs Close Look From Next President

      Barack Obama campaigned in 2008 on a promise to turn the country’s back on the Bush administration’s war on terrorism policies. Guantánamo was to be closed, “enhanced interrogation techniques” ended, and a friendlier face presented to the Muslim world. Four years later, Guantánamo remains open, military trials continue to be used, and remote-controlled U.S. drones are targeting suspected al Qaeda operatives in three Islamic countries — Pakistan, Somalia, and Yemen — with the inevitable risk of collateral damage to innocent civilians.
      With the present campaign dominated by a single domestic issue — the U.S. economy — human rights concerns have gone all but unaddressed. But U.S. human rights groups have presented Obama and his Republican challenger Mitt Romney with ambitious agendas for the next president. In separate papers, Amnesty International USA and a coalition of groups led by Freedom House renew the call to close Guantánamo, urge more accountability on the use of drones, and ask for stronger U.S. measures to support democratization and protect human rights abroad.
      Both papers stress the importance of U.S. leadership on international human rights issues. That theme should resonate with internationalist liberals as well as conservative adherents to the doctrine of American “exceptionalism.” And Freedom House takes time to pat the Obama administration on the back for taking a lead role on such issues as LGBT rights, Internet freedom, and general women’s rights. Perhaps those policies will be maintained whichever candidate wins.
      Conversely, many of the proposals in both papers are unlikely to make much if any progress whatever the outcome of the presidential election. The next Congress seems all but certain to look much the current one: a Republican-controlled House, Democratic-controlled Senate, and no sudden outpouring of bipartisanship. On that basis, it seems unlikely that Congress will relent in its stubborn opposition to closing Guantánamo or trying the suspected “enemy combatants” in civilian instead of military courts. And Amnesty International is all but certain to be disappointed in its wish list of human rights treaties for the Senate to ratify. Nor is the United States likely to join the International Criminal Court in Obama’s second term or in a Romney administration.
      By contrast, the president himself is the decision-maker on the common demand in both papers for a re-evaluation and recalibration of the Obama administration’s expanded use of drones to target al Qaeda. Amnesty asks the two candidates: “Will you end unlawful killings, bring the use of drones in line with international human rights and humanitarian law, and make public the Department of Justice memo that reportedly details the legal rationale for ‘targeted killings?’”
      In like vein, the Freedom House-led coalition calls on the next president to “reevaluate and publicly clarify the criteria and the basis for targeting . . . decisions, the process by which such decisions are made, and the mechanisms in place to ensure compliance with international law and the protection of civilians.” Amnesty International USA signed on to the coalition’s letter, which also drew support from such leading human rights groups as the American Civil Liberties Union, Human Rights First, and Human Rights Watch.
      Obama’s embrace of the drone war discomfits his supporters on the political left even as it strengthens his national security credentials with centrist Democrats and independents. For his part, Romney endorsed the use of drones in the final presidential debate, but with a significant caveat: “We can’t kill our way out of this.”
      The human rights groups’ call for greater transparency echoes the view of news organizations that have attempted to report on the drone war. “Accurate information is hard to come by,” Margaret Sullivan, the New York Times’s newly appointed public editor or ombudswoman, wrote in a column in mid-October. The Washington Post endorses the use of drones, but called in a Nov. 1 editorial for “greater disclosure, more political accountability, more checks and balances and more collaboration with allies.”
      In her column, Sullivan cited a report by the Bureau of Investigative Journalism in Britain that what Sullivan calls this “push-button war” claimed between 282 and 535 civilian lives, including 60 children, during Obama’s first three years in office. The administration insists the number is far lower. Sullivan goes on to quote Sarah Knuckey, a human rights investigator now at New York University Law School, as having found widespread fear of drone strikes among Pakistanis when she visited Pakistan recently.
      The casualty count of al Qaeda militants is likewise a subject of sharp dispute. The government appears to count any adult males killed in drone strikes as militants unless there is exonerating evidence. A new report by human rights investigators for Stanford and New York University law schools urges journalists to make that notation in any body-count stories. The report also contends that the drone strikes have aided recruitment for anti-American groups and, on that basis, questions how valuable they are in making the United States safer.
      With Obama and Romney in seeming agreement, the conflicting accounts and assessments went unexplored in the presidential campaign. But the next commander in chief would be well served to heed the calls from many quarters to take a clear-eyed, hard-headed look at the drone war before deciding how much further, if at all, to extend it.