Advocates see this month's election results as sign of changes to come. | Jay Westcott, Reuters Gay marriage takes next steps

Gay activists are preparing to quickly use the momentum from this year’s election to try to legalize marriage in at least seven new states and force Congress and the president to make major changes in discrimination laws.

Advocates have identified Oregon, Rhode Island, Delaware, Minnesota, Colorado, Hawaii and New Jersey as states where they believe that as early as 2014 they’ll see gay marriage legalized through ballot measures, court decisions or state legislative action.


And the U.S. Supreme Court is set to decide next week whether to consider legalizing gay marriage.

The Court will decide which cases they’ll hear in what’s expected to be a landmark decision. There are several options: five separate Defense of Marriage Act challenges that could be rolled together, the constitutional challenge to California’s Proposition 8 and the case challenging Arizona Gov. Jan Brewer’s attempt to stop gay couples from receiving domestic partnership benefits.

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Meanwhile, activists are aiming to quickly use the momentum from this year’s election to boost marriage legalization efforts in at least seven new states and force Congress and the president to make major changes in discrimination laws.

They sense a major change from this year’s election victories — which included successful gay marriage referendums in Maine, Maryland and Washington state, the defeat of a Minnesota ban, the first successful retention of an Iowa Supreme Court judge who favors gay marriage, the election of Tammy Baldwin as the first openly gay senator, the election of two new gay House members and the reelection of the president widely praised by advocates as the most pro-gay rights ever.

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Together, there’s clear proof that opponents to gay marriage and gay rights have lost support, said Human Rights Campaign president Chad Griffin.

“Now that they’re on the defensive on all fronts and we’re on the offensive on all fronts, we’ve got to take this momentum and turn it into our next victories,” said Griffin, whose organization has already prepared a four-page “post-election agenda” memo detailing an administrative, legislative and personnel agenda. “At times like this, you can’t slow down. You’ve got to double down.”

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Inspired by post-election conversations in Congress on immigration reform, gay leaders believe there’s hope on passing the Employment Non-Discrimination Act, as well as succeeding in getting President Barack Obama’s signature on a long-sought executive order to ban discrimination among government contractors. Changes in military benefits, tax measures and health care provisions are also in their sights.

Leaders see the election results as a sign of quickly impending symbolic victories like increased judicial appointments, as well as the first openly gay Cabinet secretary and ambassador to a G-8 nation. They’re hoping as well for substantive changes on taxes and workplace protections, but those issues are more arcane and change the government’s relationship to the private sector.

While Obama adviser Valerie Jarrett joined a post-election Human Rights Campaign conference call to tell supporters how pleased the president was with the election results, a White House aide said there were no announcements to make about the fate of an executive order banning sexual orientation discrimination for government contractors. That’s been holding since the spring, when Jarrett told advocates gathered at the White House that the president wouldn’t be signing the measure.

Even gay leaders are surprised that opinions have turned so quickly. But now that they have, they’ve set bigger goals in preliminary strategy conversations, and more are expected for the end of the month, when many of them gather in Long Beach, Calif. for the international leaders conference of the Gay & Lesbian Victory Fund.

“When we look to the future, it’s about saying yes, that was an incredible night, incredible progress. And we will celebrate, and we will get back to work,” said Rea Carey, executive director of the National Gay and Lesbian Task Force. “With all of our wins — the elected officials, marriage in the states — the irony is that two women can choose to get married, return to work the next week, put a picture of themselves on their desks and be fired for doing it.”

Much of that strategy will be shaped by next Monday, when the Supreme Court announces which cases to hear — even though any decisions wouldn’t be expected until the end of its term in June.

Lambda Legal executive director Kevin Cathcart predicts that the Supreme Court will take at least some of the DOMA challenges, since opting not to would uphold several circuit court decisions, creating a confusing legal patchwork of a federal law invalidated in certain parts of the country but valid in others.

The most important factor in favor of those hoping to see DOMA overturned, he argued, might be the relative youth of Chief Justice John Roberts. Given the quickly changing opinions on gay marriage — Gallup found 53 percent of Americans who back it in May, up from 27 percent in 1996, when 68 percent of people opposed it.

Cathcart believes Roberts faces a dilemma that puts him in the position of being the swing vote on the issue: if he follows the conservative line and that secures an anti-gay marriage decision now, Roberts could face the embarrassing prospect of eventually seeing that decision overturned while he’s still on the bench. After all, the court took just 17 years to reverse itself on the laws that criminalized sodomy, overturned in 2003, and public sentiment on gay issues have been changing even more quickly since.

“Does Roberts want to rule one way now and still be chief justice when the decision comes back?” Cathcart said.

Meanwhile, advocates are looking at putting a gay marriage referendum on the ballot in Oregon in 2014. But given the cost involved in any referendum effort, they’d prefer to go either the route of state-level court decisions in Rhode Island, Illinois, Delaware and Hawaii, where they’re optimistic about judicial opinions. Some have their eyes on Nevada as well.

They believe there’s a path paved for legalizing marriage in Colorado given state election results in 2012, where there’s a legislative civil union ban in place but Democrats just won the House, and in Minnesota, where voters both defeated a gay marriage ban and took control of both chambers of the legislature.

Then there’s the bigger reach: gathering enough legislators’ votes to overturn Gov. Chris Christie’s February veto of the gay marriage bill in New Jersey.

They’re continuing to organize and fundraise, and to convince private companies to file amicus briefs under the thinking that they should favor a single national standard for what’s recognized as marriage and what isn’t.

They’ve carefully managed their relationship with the White House — while they’re always pushing for more action, they’ve done so while still heaping praise on the pro-gay rights record of a president who’s often proven prickly when interest groups have attacked him for falling short. Even after all the money and support the gay community put toward Obama’s reelection, they’re not pushing for immediate payback.

Instead, many see the fight for marriage as part of an indirect strategy to get that and Congressional action on the ENDA on the books.

“It’s harder to get people to pay attention to employment discrimination,” Cathcart said. “So if we can move them on marriage, we can get them to move along on unemployment discrimination, even if they’ve never thought about it.”

Christopher Barron, the co-founder of GOProud, says he believes the election results will bring a change in the Republican approach to gay marriage.

“For years, same-sex marriage was looked at as a wedge issue that benefited Republicans — we saw that in 2004, to a lesser extent in 2006,” said Christopher Barron, co-founder of GOProud. “The National Organization for Marriage can scream all they want that gay marriage barely won in four states, but it won.”

But the conservative National Organization for Marriage president Brian Brown pointed to the massive money advantage same-sex marriage advocates poured into 2012, nonetheless producing narrow margins of victory.

“In this sort of election where in each of these states we greatly outperformed the Republican presidential candidate, that shows that marriage far from being a divisive issue, is pulling significant support for Democrats,” Brown said.

Ralph Reed, president of the Faith and Freedom Coalition, said Tuesday’s results are no indicator of what will happen in the future when marriage is put on the ballot again, this time without Obama’s coattails.

“You can’t extrapolate the results of one election to the next one,” Reed said.

Gay leaders believe that these opinions miss a fundamental shift in public opinion that makes the fight for gay marriage remarkable for the speed with which the cause has gathered support.

Still, the fight is far from over, said Evan Wolfson, co-founder and president of Freedom to Marry.

“The challenge is that we’ve gone in a very short amount of time from people thinking that this was impossible to thinking that this was inevitable,” Wolfson said. “That leaves out the middle part where you need to do the work.”

CORRECTION: An earlier version of this article identified Nov. 20, rather than Nov. 30 as the day when the Supreme Court would hear the gay marriage cases.

CORRECTION: Corrected by: Bridget Mulcahy @ 11/20/2012 08:02 AM CORRECTION: An earlier version of this article misstated when the Supreme Court will now consider the gay marriage cases. That will be Nov. 30.