"If you put it up to the vote of the people, we'd have slavery again." --Jesse Ventura on CNN, 11/3/2009
I don't much care for Ventura, but he has a point here. Most civil rights protections in the states have been expanded via case law, not by the ballot box. In fact, I think the whole concept of civil rights is at odds with voting on them. The idea is to protect minorities from majorities. When we say something is a civil right, we take an abstraction of principles that we mostly all agree on and then apply them to the specific. Most Americans think freedom of religion is a pretty good idea, so that must also apply to Mormons and Muslims and Pagans. Our agreed-upon principles lead us to protect actions and people who would not necessarily receive such protections if things were put up for a vote.
Interracial marriage became legal with the court case Loving v Virginia, decided by the Supreme Court. This decision was not popular, but it wasn't unpopular enough to amend the Constitution over. If it had been put up for a vote even five years after it became law, it would not have passed. Honestly, I would be worried about what people would vote on this even now. In that decision, the court found that marriage was a fundamental right, something I think we all agree upon. And we're all supposed to be equal under the law. And there's not a compelling state interest to keep people of different races from marrying. Therefore, it must be allowed.
The SCOTUS needs to rule on gay marriage. This is not a battle that's going to be won by voting. It needs to be a combination of activism and case law. That winning combination is what desegregated buses and then later protected our speech. March and sue!
Eventually, gay rights will be a settled question, but right now, it's still legal to discriminate in several states and on a federal level. We don't have ENDA (nor have we been added to the Civil Right Act, which would give us full protections. Even after we have ENDA, we won't be done.). We can't serve openly in the military. Hate crime legislation is less than a month old. It's not surprising that people feel comfortable discriminating against us in the ballot box, when they're fully allowed to in other contexts. Indeed, these other contexts are somewhat more vital for many LGBT people. I'm certainly in favor of Same Sex Marriage, but even more, I'm in favor of not being fired from a job for being trans.
I think there's more resources going towards marriage right now, and that might be because people who have enough resources to pay for political campaigns are not worried about losing their jobs. There are people who are still in the closet at work, who are afraid to come out or to transition. If they get fired for being LGBT, they have no recourse and they can kiss their health insurance goodbye. A legally recognized marriage is not the top agenda for people in that situation and I don't know if it should be top agenda for the LGBT community in general. Let's pass the gender-inclusive ENDA, make it clear that discrimination being wrong is a matter of law and then sue for marriage. Or hell, let's sue to get rid of having legal sexes at all, then we'll get marriage by default.