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Wednesday, November 19, 2003

A Punchup At A Wedding?

Why couldn’t I celebrate the landmark ruling of the Supreme Judicial Court of Massachusetts in Goodridge v Commonwealth, the way perhaps I should have?

It’s not because I disagree with anything in the court’s decision. Just reading it nearly brings tears to me eyes. Here was another judicial decision that, in stronger language than I had any right to expect, recognized the dignity of same-sex relationships. Amazingly, all this comes less than 20 years after Bowers v. Hardwick legitimized anti-gay bigotry in the laws of the land.

I’m just scared of what comes next.

There are a lot of people who are extremely angry, and they have a lot of political power. I’m ashamed to share a country with many of them, and I’m especially embarrassed that such people are allowed to have such power. But they are out there.

I can’t say for sure when would have been a better time, but I thought that perhaps in another decade or so, when Lawrence v. Texas would have receded more into memory, when gay men and lesbians would have had ten more years to make their case to the straight majority. Don’t get me wrong; I’m not saying that the gay community should have to wait quietly for a majority, since they may have indeed waited several lifetimes without one. I only merely that seeking a higher level of public support before shopping for the most liberal high court in the land might have been a more prudent course.
I mostly agree with the analysis found in this National Review article, though I obviously don’t share Mr. Kurtz’s anti-gay viewpoint.

Though it was my opinion at the time that Lawrence v. Texas would likely be forgotten about (see July 12) in fairly short order, I see a backlash coming here.

Don’t get me wrong. I don’t agree with said backlash.

I hear the “recognizing same-sex marriage/union/whatever will undermine marriage, the family, and the fabric of society” argument a lot, but I have never heard it explained exactly how it would do such a thing. I don’t think this change would do anything to cause heterosexuals to stop marrying and reproducing. If there were to be is any effect at all on the larger society, I would expect it to be positive. Perhaps gay men, or at least a higher percentage of them, will tend more often to settle down and form lasting, monogamous partnerships, which would in turn reduce the transmission rate of sexually transmitted diseases. Perhaps same-sex couples would make conduct their financial lives in a more coordinated fashion, leading to more home ownership, particularly in central cities, which would in turn benefit the local economy in those areas.

The “common wisdom of the ages” argument, as expressed by Governor Mitt Romney“I agree with 3000 years of recorded history. I disagree with the Supreme Judicial Court.” could have been used, and in fact was used, in defense of segregation. It was an argument that was used in defense of slavery. Once upon a time, it could have been used in defense of human sacrifice and a whole host of other things that we in the 21st Century find abhorrent.

Others invoke the Bible, which ignores the fact that the Bible is not now and has never been the law of the United States. After all, if it were, not only are gays in trouble, so is anyone wearing polycotton, eating shrimp, or going to work on Sunday.

The Chicken Littles currently sucking up airtime, ink, and bandwidth, clamoring on about the end of civilization and so forth have no truly rational arguments on their side. They have arguments based on religious faith and emotion. It is my hope that perhaps a few fence sitters will watch some of the television programs and see reasonable people making a rational case for equal treatment while not really asking for any real sacrifice from the straight majority on one side, and the hate-filled ranting of people who clearly want their personal hang-ups written into law on the other side. Maybe there is a silent majority (or at least a plurality) that is willing to give the gay community a chance to exercise a right heterosexual couples take for granted and wishes the theocratically inclined would mind their own business. My fear, however, is that the population will respond more to the emotional arguments of the right, the appeals to stereotypes, to phobia, to prejudice.

But this is not about men parading about in bridal dresses screaming “Get used to it!” at the top of their lungs, demanding the right to have sex in public or anything like that.

As it stands, same-sex couples who have been together for decades are in many respects complete strangers in the eyes of the law. In some instances they are denied to the right to visit each other in the hospital. It can be more difficult to inherit property from one’s partner in this situation, where the law may instead place power in the hands of hostile relatives.

All the gay community asks of the rest of the nation is simply to cease trying to write their own prejudices about sex, about relationships, about everyday life, into the law of the land.

Taking off the activist’s hat and replacing it with that of the analyst…

1. Massachusetts.

The legislature has been instructed by the Supreme Judicial Court to remove the restriction against same-sex marriages within 180 days. They will likely choose to resist as much as possible.

There has been a move afoot to place restriction in the state Constitution. After getting the approval of at least 25% of the Massachusetts legislature in two consecutive sessions, the issue of amending the state constitution to ban gay marriage could be brought directly to voters.

Though it is a liberal state, Massachusetts has its share of cultural conservatives, mostly among Catholic and older voters. Those voters are well represented in the legislature, and one of them, House Speaker Tom Finneran (D-Boston), is arguably the most powerful legislator in the state. Though Republicans are not a large factor in the legislature, if they were to lend bloc support to the amendment, they could easily get the issue on the ballot. By some miracle, a particularly harsh proposal put forth by religious conservatives did not receive the necessary votes last session, in part because the possibility of a legalization controversy seemed theoretical at the time.

If it could be done in day, the SJC’s decision would have a good chance of being reversed. 25% is a low threshold. And as it stands now, the proponents would have a good chance of prevailing at the polls, though it would be no sure thing; unlike in some states, where conservative Republicans are the most reliable voters, the high-turnout voters in Massachusetts are more liberal on cultural issues. Gays and their friends would have a particular incentive to turnout and maximize the “no” vote.

Moreoever, the earliest Massachusetts could amend its Constitution to bar same-sex unions is 2006. By then, I do get the feeling that voters, at least in Massachusetts, may realize that the world was not going to end and that the whole issue wasn’t a big deal. Many of the people who thought that perhaps their church was going to be forced by the state to perform marriage ceremonies for same-sex couples will realize they were mistaken. The straight people who thought that this decision would make some huge deleterious impact on their family or their life will realize that very little, if anything, has changed for them.

2. The U.S. Supreme Court

Since the state court in this case ruled primarily on the basis of state constitutional law and not on the United States Constitution, the Supreme Court has no real role here. The doctrine of “equal and independent state grounds” applies here.

However, a court challenge to the Defense of Marriage Act is likely coming, whenever a same-sex couple attempts to have their civil union/marriage recognized by a state that does not recognize such unions. The DoMA, among other things, purports to free states of the obligation to recognize same-sex unions from other states.

Article IV, Section 1 of the Constitution mandates that a state give “full faith and credit” to the laws of other states. That provision is why states whose principal places of businesses are outside Delaware can incorporate in Delaware, and why people can get married in Las Vegas and have their marriage recognized elsewhere, even if they might not have been otherwise eligible in their own state.

My guess is that the Supreme Court would try to find away around the problem, perhaps by upholding DoMA despite its apparent straightforward conflict with the clear language of the Constitution.


3. The United States of America.

However, even if Massachusetts voters are inclined to allow same-sex unions, the same cannot be said of the nation at large.

So far, the Marriage Amendment has not been pushed hard, in part because the idea of gay marriage seemed more a theory than anything else, Vermont notwithstanding. President Bush, though eager to appeal to his base of religious conservatives, would prefer not to turn off more mainstream suburban voters, who are in general made somewhat uncomfortable by the far right’s obsession with homosexuality, if he could help it. The typical middle-class, white-collar worker, the foundation of the GOP in many states, may have a gay friend or relative, or be gay himself.

But, in some senses, push has come to shove. The base smells blood in the water, so to speak, and demand action. The issue will probably get a few anti-gay conservatives elected somewhere where they otherwise may not have. Less than a decade ago, the Defense of Marriage Act passed easily with overwhelming public support. The whole affair is likely a boon to Bush’s re-election chances in 2004, as it will motivate religious conservatives to turn out and vote Republican. While the issue will not singlehandedly sink the Democratic challenger, since there are many more issues more likely to be on voters’ minds, the administration will now have some cover to move to the center on some issues in order to help them win the 2004 election. (However, as national attitudes change, being seen as the anti-gay party may not be a benefit to the national GOP over the long run.)

To pass a Constitutional Amendment, you need two-thirds of both houses of Congress, and then ratification by the legislatures of three-fourths of the states.

The proponents probably have plenty of votes in the House, where the can count on near-unanimous support from the Republican majority (maybe 10 defections at most) and somewhere between 40% and 50% of the Democratic caucus, mostly from the South and Midwest.

Though the Senate may provide them with a little drama, they should be able to clear 67 votes there by combining nearly all the Republicans with somewhere between 20 and 25 Democrats, mostly from the Red States.

That leaves the states. Proponents will need ratification by the legislatures of 38 states. Opponents will probably focus on California, Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New York, Oregon, Rhode Island, Vermont, Washington, and Wisconsin. Some of these states seem like longshots, particularly GOP-controlled New Hampshire.

What gives me hope? Well, history shows that it’s not easy to pass an Amendment. It takes more than a majority. In some cases, even a strong supermajority would be insufficient. Plus, some people who might be sympathetic to the proponents’ cause might flinch at the thought of enshrining this issue in the Constitution.

I am reminded of the battles over the Equal Rights Amendment and the Child Labor Amendment. Both causes had at least as much popular support as a Defense of Marriage Amendment would enjoy now. And yet both those other proposals were ultimately defeated. Of the six amendments (Presidential term limits, a ban on poll taxes, lowering the voting age to 18, modification to the rules of Presidential succession, voting representation in the District of Columbia during Presidential elections, and curbs on Congressional pay raises) that have passed since the Second World War, none inspired the sort of organized opposition that an anti-gay amendment would inspire.

(Of course, one problem was these parallels is that the proponents got much of what they wanted without going the the amendment process – the ERA proponents via various Supreme Court decisions and civil rights laws, the Child Labor Amendment proponents through various laws.)

Either way, the great civil rights struggle of our time has commenced in earnest.

It is my belief that 50 years from now, everyone who supported the anti-gay cause will be remembered by history the same way the segregationists of the 1950s and 1960s are today. I can only imagine with horror how bad a black mark a “Marriage Protection Amendment” will look on the Constitution of the United States of America would look then, if it proves successful.


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