1. Gay Marriage: Perseverance May Pay Off In the End.
Earlier this year, a three-judge Ninth Circuit panel ruled 2–1 in Perry v. Brown, declaring
Proposition 8, California’s ballot initiative banning same-sex marriage, unconstitutional. The
case was a calculated move by LGBT rights advocates to force a Supreme Court decision; one
they presumably believe will result in same-sex marriage rights granted nationwide. Not all
LGBT advocates were happy with the initiation of the lawsuit, which features veteran Supreme
Court lawyers, David Boies and Ted Olson, opposing counsel in Bush v. Gore, as plaintiffs’
attorneys. The largest LGBT advocacy organizations, including the Human Rights Campaign
and Lambda Legal, opposed forcing a Supreme Court case at this time, fearing an adverse
decision will undermine decades of legal work.
The chief dilemma for marriage equality advocates is the desire to win at the ballot box, a
sign of political strength as a cause, and the seeming inability to do so. Gaining allies in the
political branches and prevailing in courts is helpful, but winning elections is necessary for true
social equality. Proposition 8 was an all too familiar tale for gay rights proponents and some
LGBT advocates have grown restless with the pace of progress, particularly in the wake of yet
another defeat at the ballot box. At present, only eight states plus the District of Columbia
recognize marriages between people of the same sex. In none of these states was the right to
marriage granted by the voters. In fact, two states, California and Maine, had marriage equality
only to have it subsequently banned by voters. In contrast, 39 states ban same sex marriage, 29 of
which are constitutional bans. In 2012, constitutional measures banning same sex marriage are
on the ballot in Minnesota and North Carolina, both of which are polling well.

2. Research points to deep seeded social hierarchal reasons why pro-gay issues may have a
hard time winning elections. Researchers documented high levels of resistance to civil rights
legislation based on gender, race, and religion. Research demonstrates that individuals are often
motivated to political action by the prevention of a perceived threat rather than by the support of
an opportunity for something good especially when a key political issue is involved. Election
results often reflect deep seeded prejudice toward gays and lesbians.
A mere twenty year ago, the people of Colorado approved Amendment 2, earning the ire
of gay advocates and the nickname, “the hate state”. This week, the Colorado Senate approved,
with bipartisan support, legislation that would allow same-sex couples to register as domestic
partners. This year alone, the New Jersey, Washington, and Maryland legislatures approved gay
marriage, indicating there is a popular movement toward marriage recognition.
While these victories show signs of progress, these victories are piecemeal, taking a great
deal of resources and time to pass legislation in each state. With Americans split on the issue of
marriage equality and given the current make up Congress, a national legislative solution is
nearly impossible. Legislative solutions are relatively easy to reverse, arduous, and costly. Civil
rights laws that are easy to reverse create instability in the law and are not in the best interest of
marriage equality advocates, especially when faced with the prospect of continually having to
protect the right at the legislature, once granted.
Winning at the ballot box limits cries of counter majoritarian action by the judiciary and
limits the amount of time and money spent defending legislation from potential repeal.
Proponents of LGBT rights must engage in direct democratic lawmaking. Direct democracy
mechanisms are here for the foreseeable future and the LGBT community must learn to be

3. successful in it. LGBT leaders must focus on strategies for winning at the ballot box if there is
any hope for marriage equality. Regardless of how marriage equality is achieved, gaining
favorable public opinion will ultimately allow gay and lesbians to live complete and full lives as
they so choose. The win in Perry v. Brown is exciting and advances the cause of LGBT
Americans, but the real social change will occur when majorities of Americans are willing to go
to the ballot box, challenge the religious and cultural norms, and vote to expand rights for their
fellow citizens.