There is work to be done in 2011, but marriage equality advocates are betting on improved odds with a Republican senate majority in New York State.
As 2011 dawns, observers identify three states with strong prospects for achieving marriage equality in the new year: Maryland, New York, and Rhode Island. Among the three, New York boasts the largest population by far, with nearly 20 million residents, and as the media capital of the country, the state guarantees to put an even more intense spotlight on marriage equality as landmark legal cases make their way to the U.S. Supreme Court.
"If some of the federal cases do wind up getting to the court in 2012, one of the main things we can all do to help shape good results in the Supreme Court down the road is to have more wins in 2011 in places like New York," said Evan Wolfson, executive director of Freedom to Marry, one of many groups working on lobbying and public education campaigns in the state. "Everyone has a stake in winning."
Last December, New York got closest to flirting with marriage equality, which ended in heartbreaking defeat at the hands of a Democratic-controlled senate elected with millions of dollars in gay support in 2008. Marriage equality lost by a vote of 38 to 24, with all 30 Republicans and eight Democrats, including some who seemed to hint otherwise, voting against the measure. The state assembly has already passed the bill three times, and polls indicate that solid majorities of New Yorkers support marriage equality.
Although Democrats could still dispute the November election results, Republicans expect to be in control with a 32-30 majority when the senate convenes in early 2011. Some observers view the new dynamic as a reason to feel pessimistic about marriage equality, but many more seem to think the leadership change, combined with evolving public attitudes and other favorable political developments, leaves advocates in their strongest position to date. Cautious optimism rules the day in New York, the state with the legislature repeatedly ranked as the nation's most dysfunctional, and where the lottery motto once proclaimed, "Hey, you never know."
First and foremost, despite the all but assured loss of the Democratic majority, the senate saw a net gain of two votes for marriage equality this election cycle, bringing the total number of anticipated yes votes to 26. Where many insiders believe the winning formula involves a bipartisan effort with anywhere from 27 to 29 Democrats and three to five Republicans in favor, the numeric victory of 32 votes now appears more within reach.
More important than the raw vote count, however, is the way the new votes were won. Groups like the Tim Gill-financed PAC Fight Back New York, the Empire State Pride Agenda, and the Human Rights Campaign demonstrated their ability to harness money and human power toward the defeat of incumbents who voted against marriage equality. Targeted efforts in November ended the careers of two long-term incumbents, a Republican from Queens and a Democrat from Buffalo. The Queens victory in particular, coupled with pro-equality candidates' sweep of statewide offices, sends a signal to lawmakers in nearby neighborhoods that it is time to support the bill, or else.
"Even more significant than doing the head count is the way that those victories were achieved," said Ross Levi, executive director of the Pride Agenda. "The remaining legislators on both sides of the aisle have to be thinking that they don't want the strength of our community turned on them in a similarly negative way."
In realpolitik the flip side of punishment is reward, where the same substantial resources that defeated incumbents who vote against marriage equality can also be allocated to protect lawmakers who support the bill. The lesson could prove critical in courting Republicans, as at least four and possibly as many as eight GOP senators are believed to be willing to support the bill under the right conditions, which their camp argues failed to materialize last year.
"There were at least four Republicans who would have considered voting yes if the Democrats could get close, but they had no interest in committing political suicide if the Democrats were as short as they were," said Republican strategist Roger Stone, who this year advised gubernatorial nominee Carl Paladino but publicly rebuked the candidate for his antigay comments.
Simply put, prospective Republican allies need to be assured the bill will pass and that advocates can provide cover in the event their vote prompts a primary or general election challenge from the right.
"We're confident that if Democrats are able to provide the margin of victory for a handful of Republicans, that those votes will be there," said Gregory T. Angelo, spokesman for the New York chapter of the Log Cabin Republicans. "There are certainly enough to put the vote over the top."
Angelo said his group plans to use the instructive example of assembly member Janet Duprey in conversations with lawmakers. The Republican from the upstate North Country lost the highly coveted nod of the Conservative Party over her vote for marriage equality, but with the backing of Log Cabin and other groups, she won a three-way general election with 62% of the vote in November.
In addition to carrots and sticks, observers point to the larger history of gay rights legislation under Republicans in New York. The Sexual Orientation Non-Discrimination Act of 2003 and the hate-crimes bill of 2000 passed under a Republican senate and were signed by a Republican governor, George Pataki.
"The Republican Party has a huge opportunity to become the majority party once again," said consultant Tom Doherty, who served in the Pataki administration. "They have a real opportunity to not be secondary citizens anymore if on the social issues, particularly gay marriage, they send a signal of what should be their conservative beliefs: We want less government. That includes what two adults do in their own home."
On the other hand, even as they acknowledge mounting losses in the public opinion wars, marriage equality foes project confidence with the brute fact that, as of now, no majority exists for marriage equality in the state senate. One such group is the New York State Catholic Conference, which advocates for the public policy agenda of the state's bishops, who represent some 7.3 million Catholics. Even more than the National Organization for Marriage, which has sought inroads into the state, the conference is seen as a significant obstacle to the marriage equality bill given the historic influence of the Catholic Church in New York.
"You never know until the votes are counted, but right now we're pretty comfortable that the votes aren't there," said Dennis Poust, communications director for the conference. "Until we hear otherwise, we assume that the senators who voted no are still nos."
However, advocates hope the math will change quickly after the inauguration of governor-elect Andrew Cuomo, a reform-minded Democrat expected to find allies among senate Republicans who share his agenda of fiscal restraint. Cuomo vowed to make marriage equality a "priority" in his campaign against Carl Paladino, the ostracized Republican nominee who seemed to implode after reading antigay remarks before ultra-Orthodox Jewish leaders.
"He's a very adept politician," said assembly member Daniel O'Donnell, the Manhattan lawmaker who carried the marriage equality bill in his Democratic-controlled chamber. "When you look at where the polling has been and where it has gone, it's yesterday's politicians who are against it. Governor-elect Cuomo is a tomorrow kind of politician."
Previous pro-equality governors met their Waterloo in the legislature, as happened with Eliot Spitzer, the sharp-elbowed former prosecutor and self-declared "steamroller" who resigned because of a prostitution scandal. His weakened successor, Gov. David Paterson, also tangled with the senate, which shut down for a month in summer 2009 when a trio including Sen. Ruben Diaz Sr., a Democrat and outspoken homophobe, orchestrated a coup.
Analysts say that with their reputation for more disciplined leadership, senate Republicans could build a rapport with Cuomo starting on the all-important budget this winter and spring and then move to consider issues like marriage equality, where the gap between the players is wider.
"I think that we're in a time period now where the government recognizes that the governor and the state senate need to work together and find common ground on a bunch of things and they have to barter back and forth," said Doherty, who added that he did not expect a marriage equality vote in the first few months of the year.
"You don't want to have a battle early on for something you know is controversial," he said.
The new calculus also includes an encouraging recent announcement from presumptive senate majority leader Dean Skelos, who said in October that, subject to speaking with his Republican conference, he would recommend that the marriage equality bill be brought to the floor for another vote. For the first time, a pathway to marriage equality exists independent of which party controls the senate.
"No matter what the political makeup of the senate, we will work with everybody to do what's right so that all New Yorkers can be equal," said Brian Ellner, senior strategist for HRC's Campaign for New York Marriage, in an e-mailed statement. "Both Republicans and Democrats can and should be for equality."
Others, however, parse the bit from Skelos about consulting with his conference. They contend that the majority leader is vested with complete authority, and that any reference to polling his members suggests hedging.
"When a legislative leader says, 'We'll see if my conference wants to post it to a vote,' that's Albany speak for 'fuck you,'" said the strategist Stone.
Asked for additional comment on the senator's position, a spokesman e-mailed, "While Senator Skelos is personally opposed to same-sex marriage, he believes that it should be easier to bring bills to the floor for an up-or-down vote."
But with the presumptive majority leader in the no column and not a single Republican on record as supporting the bill, forward-looking observers press the practical question of who exactly would champion the measure and bring it to passage under the new leadership.
"In the end, bills of this kind don't get passed without effective, competent sponsors to navigate them through the system," said assembly member O'Donnell. "It's unclear to me who would be the sponsor if to date no Republican senator has said, 'I want to vote for this.'"
Until now, the marriage equality bill's lead sponsor has been Sen. Thomas K. Duane, the out Democrat from Chelsea. Although unavailable for comment, his office said through a spokesman that "Senator Duane is confident that marriage equality is ultimately going to win in New York, and he is going to fight to make that happen regardless of which party is in the majority."
For now, advocates plan to double down on their efforts in 2011. Next up is the annual marriage equality lobby day organized by the grassroots group Marriage Equality New York in Albany. Sponsors hope to amplify their voices in the state capital on February 8.
"Last yea, it was just us," said MENY board president Cathy Marino-Thomas. "This time we're bringing our grandmothers, aunts, and cousins."