By Jena Ardell
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The national arena, of course, is where this will eventually and inevitably be resolved. As Molly McKay of Marriage Equality USA puts it, "islands of equality" cannot continue to exist from state to state. Just as the Supreme Court eventually forced backward states to accept interracial marriages in 1968, so, ultimately, the Supreme Court will find that denying gay marriage rights violates the equal protection clause of the 14th Amendment. When that happens, California's Proposition 8 and Maine's recent vote will be swept away and gay couples will be able to marry in every state. But how long before the Supreme Court is ready to make that obvious step is a question of aging justices and their replacements.
Ironically, it is George W. Bush's solicitor general who is most progressive about charging down this legal path: Ted Olson—yes, Bush's lawyer in Bush v. Gore, who has been joined by Gore's lawyer, David Boies—is representing California couples in a federal lawsuit charging that Proposition 8 is a violation of their right to equal protection. But with the same fear that has paralyzed Albany, the thought of possibly losing in the Supreme Court terrifies some marriage advocates so much that they don't think the risk is worth the gamble.
McKay doesn't see it that way, and is fully supportive of the California case. "Courage," she says, "is the act of facing action despite your fears." (Too bad the New York State Senate has never been much for profiles in courage.) Regardless, while the federal case incubates, she says, "You have to have a vote in the New York Senate. If you lose, then you know who you have to lobby, and you have a vote again next year." Plus, "you might win." To pass a marriage equality bill in the California State Assembly, McKay needed each of four undecided Democrats. She got all four, but not until they were forced to actually vote on the floor.
Governor Paterson also promises a vote by the end of the year. He may lack the political clout to make it happen, but he's taking the long view on this one, even if there are setbacks along the way. He mentioned that the Emancipation Proclamation was signed just five years after the Dred Scott decision, then added, "In my opinion, historically, I think we have lost touch with how movements for equality are reached. There are a lot of ups and downs."