After the drubbing gay-marriage proponents took last November,
conservatives could be forgiven for considering the drive for
unisex nuptials a textbook example of liberal overreach alongside
Hillary Clinton’s national health care plan and the 1972 McGovern
campaign. Constitutional amendments reaffirming traditional
marriage passed in 11 states and, even if one takes the
significance of the 2004 “values vote” with a grain of salt,
mobilized a key Republican constituency.
Since the mid-1990s, whenever courts have even threatened to
impose gay marriage in a state — including such Democratic
bastions as California and Hawaii — the voters have rebuffed them
at the first opportunity. Vermont ended up with civil unions
largely because it lacked such a referendum process, but it’s still
worth noting that the legislature (and then Gov. Howard Dean)
flinched from approving full same-sex marriage and enough pro-civil
union legislators lost their seats in the next election to give
Republicans control of the state house of representatives. In all,
18 states have passed constitutional amendments defining marriage
as a union between a man and woman, and 24 have protected marriage
by statute.
It was beginning to look like the same-sex marriage debate
consisted of liberal judges on one side and the voters on the
other. Yet recent events indicate that social conservative
triumphalism on marriage isn’t justified.
For one thing, state referenda won’t necessarily deter federal
judges from handing down rulings in favor of gay marriage. Last
week, a federal court overturned Nebraska’s state marriage
amendment, which had passed with 70 percent of the vote. The
decision did not hold that same-sex marriage was a constitutional
right, but basically accepted the arguments for it at face
value.
Even some legal analysts sympathetic to those
arguments predict that this ruling will be overturned, either by
the Eighth Circuit Court of Appeals or the U.S. Supreme Court. For
now, this is likely to be true. The debate is still at a point
where swing justices like Anthony Kennedy and Sandra Day O’Connor
might be reluctant to flout public opinion in such a spectacular
fashion.
But if judges increasingly accept the argument that traditional
marriage discriminates against same-sex couples out of animus, the
logic of Romer v. Evans and Lawrence v. Texas
will move us closer to a national version of Massachusetts’s
Goodridge v. Department of Health.
Goodridge is another reason conservatives should avoid
complacency in the marriage debate. Massachusetts has now been
issuing marriage licenses to same-sex couples for a year. The state
Democratic Party celebrated this anniversary by endorsing gay
marriage in its platform, following in the footsteps of Democrats
in Iowa and Colorado.
The party of John Kerry and Michael Dukakis has of course been
out of step with the rest of the country before. But Bay State
Democratic apparatchiks aren’t just goo-goo liberal idealists.
There are plenty of opportunists among them who would have blocked
the new platform plank if they had thought gay marriage was a
losing issue — they
don’t.
And for good reason: the Bay Staters’ reaction to
Goodridge can fairly be described as the backlash that
wasn’t. To be sure, the legislature did assemble a constitutional
convention that ultimately gave initial approval to an
amendment reversing gay marriage and replacing it with civil
unions. But plenty of legislators voted against the amendment
without getting the heave-ho in November and conditions have slid
slightly leftward since then.
Since last year’s vote, the speaker’s gavel for the
Massachusetts House of Representatives has shifted from the
socially conservative Thomas Finneran to socially liberal
gay-marriage supporter Salvatore DiMasi. The amendment needs to
pass again in this legislative session in order to make it onto the
ballot in November 2006.
Even if the amendment clears this hurdle, it isn’t certain that
Bay State voters will pass it. A March Boston Globe poll
found that 56 percent of the commonwealth’s residents supported gay
marriage while only 37 percent were opposed. Registered
independents, now a plurality of this bright-blue state’s voters,
were in favor by 53 percent to 35 percent.
Just as gay-rights activists have tried to impose same-sex
marriage by judicial fiat, social conservatives have tried to
democratically pre-empt it. So far, the latter strategy has been
more successful. But the law can be a teacher, even when
misinterpreted. Can the temporary imposition of gay marriage alter
popular opinion in a jurisdiction enough to change the terms of the
debate?
Massachusetts is a liberal state, but that doesn’t mean it is
always anomalous. Connecticut recently became the first state to
democratically enact civil unions without being ordered to do so by
a court; Republican Gov. Jodi Rell signed the legislation. “Two
years from now,” the columnist Maggie Gallagher recently wrote,
“one-third of the country is likely to be living with gay
marriage.”
Despite the success of state constitutional amendments, social
conservatives will need to continue to make the case for
traditional marriage. They can’t take victory for granted in
federal courts — or the court of public opinion.
