Since 1993, when Hawaii’s state supreme court began threatening
to inflict a radically new definition of marriage on an unwilling
populace, the gay marriage debate has generally played out along
predictable lines. Judges rule that marriage as it has always
existed in our society is somehow unconstitutional. The people,
either directly or through their elected representatives, reassert
the validity of existing constitutional and social norms.
By the time Hawaii’s highest court finally made good on its
threats in 1997, the federal government had already passed
legislation stating that it would not recognize same-sex marriage
and that no state had to do so. Enacted during an election year,
the Defense of Marriage Act sailed through the House by 342 to 67
and the Senate by 85 to 14. It was signed into law by Bill Clinton,
who had been more sympathetic to gay rights than any president in
history. Then Hawaii’s voters made it a moot point, amending their
state constitution to reaffirm traditional marriage through a
ballot initiative that won nearly 70 percent of the vote.
Every time the voters have gotten to rule on same-sex marriage,
their verdict has been the same: a resounding “I don’t.” This has
been as true in Democratic states like Hawaii, Oregon, Wisconsin,
and California, where Golden State African Americans turned out in
large numbers to pull the lever for both Barack Obama and
Proposition 8, as in deeply conservative states like Mississippi.
Arizona narrowly rejected a defense-of-marriage amendment in 2006
because opponents convinced a critical mass of voters that it would
affect benefits for elderly roommates. When the language was
clarified, Arizonans voted against same-sex marriage in 2008.
Vermont’s state legislature has fundamentally altered this
pattern by overriding the governor’s veto of a bill allowing
same-sex marriage in the Green Mountain State. For the first time,
marriage was being redefined democratically rather than by judicial
fiat. The old procedural arguments linking same-sex marriage to
activist judges will no longer suffice. Social conservatives will
have to see what is left of the “marriage culture” in this country
if they are to prevail.
In truth, the ground has been subtly shifting for the past
decade. De facto same-sex marriage first came to Vermont the same
way it did everywhere else. In 1999, the state supreme court
ordered the legislature to give same-sex couples the same benefits
as married men and women. Yet the elected officials in Montpelier
flinched from calling this new arrangement “marriage,” instead
creating the parallel institution of “civil unions.” The state
constitution gave the voters no recourse through ballot initiative,
but the Defense of Marriage Act confined the damage to Vermont’s
state lines.
Something similar occurred in Massachusetts when the
commonwealth’s supreme judicial court imposed same-sex marriage in
November 2003. The process for amending the state constitution was
difficult— an amendment must pass in two consecutive legislative
sessions before it can reach the ballot— allowing liberal
legislators to keep the issue away from the electorate. Thus
same-sex marriage endured in Massachusetts as well, though limited
to in-state residents by a 1913 statute as well as by federal law.
Since then, the state supreme courts of Connecticut and Iowa have
ruled in favor of gay marriage, bringing the total number of such
states to four.
Yet what started through judicial activism began to acquire a
kind of democratic legitimacy over time. There was a “Take Back
Vermont” backlash against a handful of pro-civil union legislators,
but it was insufficient. In Massachusetts, the backlash against
legislators who kept the people from voting on full gay marriage
was practically nonexistent. By late 2003, polls started showing a
plurality of Massachusetts voters in favor of same-sex marriage
even though a defense-of-marriage amendment had been considered
likely to pass in the commonwealth as recently as 2002 (the
legislature kept it from appearing on the ballot).
When Vermont’s legislators finally decided to go all the way on
same-sex marriage, they did so with the full confidence that there
would be no political consequences. Elected officials in other
liberal states have been similarly emboldened. Even though
Californians have twice voted against same-sex marriage, the
legislature has twice tried to redefine marriage by statute (Gov.
Arnold Schwarzenegger vetoed both bills). Connecticut is getting
ready to democratically legitimize its state supreme court ruling.
New York Gov. David Paterson isn’t doing much right, according to
the polls, but his bill to create gay marriage is one thing voters
seem to like: a Siena College survey showed 53 percent of New
Yorkers support the legislation while only 39 percent oppose
it.
Although the numbers have declined since the mid-1990s, a
majority of Americans still oppose same-sex marriage. In fact,
there hasn’t been much movement on this question in national polls
over the last five years despite the gay marriage juggernaut at the
state level. But support for same-sex marriage has become a
mainstream liberal position, like supporting abortion or gun
control. The late Sen. Paul Wellstone, arguably the most liberal
member of the Senate at the time, voted for the Defense of Marriage
Act in 1996. Today, President Obama’s opposition to gay marriage is
purely nominal—he even favors the Defense of Marriage Act’s repeal,
opening the door for judges to impose what he lacks the courage to
do himself.
WHAT HAS PROTECTED THE national consensus against same-sex
marriage for the past 16 years is precisely that it was not a blue
state vs. red state issue. Popular majorities defined marriage as a
union between a man and a woman virtually everywhere. Same-sex
marriage was possible only in a handful of easily isolated states
where there was no check against judicial activism, hemmed in by
federal law and 30 state defense-of-marriage acts. The old
consensus will quickly unravel if same-sex marriage is
democratically enacted in more liberal states on the two coasts
while being democratically opposed everywhere in between.
The ensuing debate has the potential to make our long national
conflict over abortion seem tame. “Say this for abortion: It’s a
geographically specific event, and once it’s over, it’s over,”
observed David Frum in his column for the Week. “By
contrast, there’s nothing like marriage for generating unceasing
litigation, with ramifications that are sure to cross state lines.”
The potential for conflict is even greater given how unpredictable
state and federal courts have been on the issue, and the fact that
the Obama administration can hardly be depended on to defend the
constitutionality of the existing federal law.
Supporters of same-sex marriage will try to use the courts to
impose their will on states where gay nuptials cannot be enacted
democratically. Opponents will redouble their efforts to push for a
federal marriage amendment, which would overrule the will of the
voters in states like Vermont. A scenario in which liberals on both
ends of Pennsylvania Avenue try to gut the Defense of Marriage Act
while courts overturn traditional marriage laws is easy to
envision. It is much harder to see how a constitutional amendment
against same-sex marriage could pass, since it went nowhere under
President Bush and the Republican Congress.
In 2004, the House did pass the Marriage Protection Act, which
would have stopped federal courts from imposing same-sex marriage
by stripping them of all jurisdiction over the issue. The Bush
administration said the president would sign the bill, but it
stalled in the Senate. Its author, Rep. John Hostettler of Indiana,
was swept out of Congress along with the GOP majorities in 2006.
Social conservative groups might be reluctant to support a new
version of the bill because it would not stop state judges, like
those on the Iowa and Connecticut supreme courts, from issuing gay
marriage rulings.
Gay marriage proponents sense that the momentum is on their
side, with New York Times columnist Frank Rich sneering
that even the sophisticated pro- marriage arguments of Princeton
University’s Robert George and syndicated columnist Maggie
Gallagher are merely “the bigots’ last hurrah.” The announcement
that John McCain’s campaign manager supports same-sex marriage
reveals that what passes for enlightened social commentary at the
Times is on its way to becoming the bipartisan
conventional wisdom. If social conservatives can’t adapt to the
marriage debate’s new terrain, it will become the official history
learned by their children.
