Tag Archives: same-sex marriage

The Marrying Kind

Here’s a quick quiz. Who said this?

“Legalizing same-sex marriage would also be a recognition of basic American principles, and would represent the culmination of our nation’s commitment to equal rights. It is, some have said, the last major civil-rights milestone yet to be surpassed in our two-century struggle to attain the goals we set for this nation at its formation.”

If you guessed this was part of a press release from HRC or Lambda, or a statement by a Democratic Congressman from a really safe district, you’d be wrong. This was from a recent Newsweek  column penned by none other than Theodore Olsen, the very conservative former Solicitor General who was also the lead lawyer representing George W. Bush before the Supreme Court in Bush v. Gore.

As readers of this column undoubtedly know, Olsen has teamed with his erstwhile opponent in that lawsuit, David Boies, to challenge the constitutionality of Proposition 8.

When these two formed their unlikely team and announced their decision to challenge the constitutionality of bans on same-sex marriage, I’ll admit I was torn.

On the one hand, these are two of the pre-eminent lawyers in the country—not only can we have confidence that the legal and constitutional arguments will be made forcefully, thoroughly and competently, but there is tremendous value in the symbolism of having such established (and establishment), highly respected legal figures as proponents of equality for same-sex couples. On the other hand, this is a case that is intended to go all the way to the Supreme Court, where victory will be anything but assured and defeat would set back the cause of gay rights for a generation.  Even a victory in the Supreme Court would undoubtedly bring backlash, and the predictable howls of the right-wing fringe about “imperial” courts and “unelected judges.”

So I was wary.

But the more I think about it, the less worried I am. First of all, as I have documented in past columns in these pages, the pace at which the culture is changing is breathtaking. It takes a long time for a case to work its way up to the Supreme Court—time during which those changes will continue, and the idea of same-sex marriage will seem less and less remarkable. Already, the popular culture is discounting the arguments against such marriages, particularly the allegation that permitting same-sex marriage will somehow harm “traditional” unions. As Olsen wrote,

“Another argument, vaguer and even less persuasive, is that gay marriage somehow does harm to heterosexual marriage. I have yet to meet anyone who can explain to me what this means. In what way would allowing same-sex partners to marry diminish the marriages of heterosexual couples? Tellingly, when the judge in our case asked our opponent to identify the ways in which same-sex marriage would harm heterosexual marriage, to his credit he answered honestly: he could not think of any.”

 Interestingly, pollster extraordinaire Nate Silver has crunched some numbers and come to a conclusion that undercuts assertions that same-sex marriage is detrimental to heterosexual marriage.

 “Over the past decade or so, divorce has gradually become more uncommon in the United States. Since 2003, however, the decline in divorce rates has been largely confined to states which have not passed a state constitutional ban on gay marriage. These states saw their divorce rates decrease by an average of 8 percent between 2003 and 2008. States which had passed a same-sex marriage ban as of January 1, 2008, however, saw their divorce rates rise by about 1 percent over the same period.”

 It takes time for the conventional wisdom to reflect such data. But if we doubt that conventional wisdom is now on the side of equality, we have one more bit of evidence from the Proposition 8 trial: The witnesses set to testify in defense of Proposition 8 have asked the Court to keep the media out. They claim they will be “endangered” if their identities are known. Really? These people base their defense of Proposition 8 on their assertion that tradition and morality and public opinion are on their side. If that is so, why not speak out publicly? Why not bask in the approval of the public? The only possible answer is: the public’s opinion has changed.

 And that is cause for celebration. Hopefully, wedding celebrations.

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Backlash

I’ve had two discussions lately that have raised—in very different ways—the strategic questions facing gay activists right now. One of those conversations was with a straight friend who is very savvy politically, and very “gay friendly,” but otherwise not connected to any of the campaigns for gay rights. The other was with a gay friend who spends virtually all his time on those campaigns.

 

My political friend and I were having one of our periodic lunches to discuss recent national and local politics. (Okay, the truth is, we meet every so often to swap political gossip…) Apropos of nothing in particular, he recounted a conversation he’d had with his wife about the apparent speed with which gay marriage is being accepted. “Who’d have thought Iowa! And who’d have expected that a state legislature—not a court, but a democratically-elected body—would support same-sex marriage to such a degree that it would be able to override a veto! It’s amazing! Does it seem to you that this issue is moving faster than other civil rights movements have moved?”

 

My response was the typical lawyer hedge: yes and no.

 

On the one hand, I know how long gay and lesbian people have struggled for the barest legal and social recognition. I remember vividly when the “Coming Out” movement was getting underway, and the amount of real courage it took for many people to simply live an honest, un-closeted existence. So the struggle didn’t just start a couple of years ago. On the marriage front alone, there have been enormous setbacks—just look at the number of states with constitutional amendments barring same-sex marriage. Think about Matthew Shepard, and the long history of vicious gay-bashing.

 

On the other hand, it does seem to me that the gay rights movement, and particularly same-sex marriage, has reached what I’d call “critical mass” more quickly than other civil rights efforts. Brown v. Board of Education was decided in the 1950s, and there are still plenty of schools where segregation is countenanced, if not officially legal. And there’s good reason we still have the Voting Rights Act on the books in a number of southern states. By way of contrast, as I write this, same-sex marriage is legal in four states and pending in another two—not to mention California, where it’s likely to win another referendum even if the California court leaves Prop 8 intact. Marriage advocates face a landscape that would have been unimaginable a mere ten years ago.

 

Mention of Proposition 8 leads me to the second conversation, the one with my activist friend. He takes the long view, as he should, and he worries about backlash. Nearly every advance in civil liberties, he reminds me, has come at a price. Roe v. Wade energized the anti-choice movement we face today. Brown led to a massive exodus from our common, public schools—an exodus from which we still suffer more than a half-century later. When the Hawaiian Supreme Court ruled that the state’s constitution required equality, the ruling triggered not only an amendment to Hawaii’s constitution, but the passage of DOMA and the so-called “little DOMAs.” My friend’s point was irrefutable, and I will admit I harbor many of the same fears. How do you achieve progress while at the same time minimizing the likelihood of reactions that could wipe that progress out and set the whole movement back? It’s a conundrum.

 

Or maybe not. Because this morning, as I began to write this column, I saw a brand-new CBS/New York Times poll that measured support for same-sex marriage. This poll was taken in the immediate aftermath of Iowa and Vermont—and it showed a level of support exceeding any that has previously been reported. According to CBS,

 

Forty-two percent of Americans now say same sex couples should be allowed to legally marry, a new CBS News/New York Times poll finds. That’s up nine points from last month, when 33 percent supported legalizing same sex marriage.

Support for same sex marriage is now at its highest point since CBS News starting asking about it in 2004.

Twenty-eight percent say same sex couples should have no legal recognition – down from 35 percent in March – while 25 percent support civil unions, but not marriage, for gay couples.

 

I think gay rights activists are “over the hump” in this country. It won’t happen tomorrow, but it won’t be very long. There may be some backlash here and there, among the remnants of the reactionary right, but this battle is over.

 

And the good guys won.