Surveying the scene fourteen years after the Defense of Marriage Act.
Last week, U.S. District Judge Joseph Tauro of Massachusetts ruled in two separate cases that the federal Defense of Marriage Act (DOMA) was unconstitutional. Though his decision had little immediate impact, it was a reminder of how much has changed since DOMA was enacted in 1996.
DOMA passed the Senate by a vote of 85 to 14 and sailed through the House by a margin of 342 to 67. A large majority of Democrats in Congress voted for it; President Bill Clinton signed it into law. It is impossible to imagine a similar initiative claiming such bipartisan support today.
In fact, as late as 2008 every Democratic presidential candidate with a serious chance of winning the nomination claimed to believe that marriage is between a man and a woman. That included Barack Obama and Joe Biden. Only fringe candidates with no realistic path to the nomination dissented. Obama may well be the last Democrat to, however nominally, oppose same-sex marriage and become his party’s nominee for the presidency.
Back when DOMA first passed, most Americans not only opposed same-sex marriage but viewed it as an oxymoron or definitional impossibility. Less than a third of Americans disagreed with this consensus. Fourteen years later, a much smaller majority rejects same-sex marriage. It is now a partisan, left-right issue, with liberals and Democrats perfectly within the mainstream of their side of the political spectrum believing the traditional definition of marriage is now inadequate or even unjust.
Tauro’s decision reminds us that some things haven’t changed, however: same-sex marriage still fares much better in the courts than at the ballot box. Despite an uptick in public support, judges still remain the most reliable constituency for changing the public meaning of marriage. Five states — Massachusetts, Vermont, Connecticut, New Hampshire, and Iowa — plus the District of Columbia have approved same-sex marriage. At least 31 states have rejected it, by either statute or state constitutional amendment.
Many of the states that have enshrined traditional marriage in their laws or constitutions have done so by popular vote. Zero states have popularly approved same-sex marriage, not even in places where the polls predict it could pass. Only two — Vermont and New Hampshire — have successfully redefined marriage by democratic acts of the legislature. Maine’s legislature and governor gave their imprimatur to same-sex marriage, only to see the voters reject it through a “people’s veto.”
New England became what supporters of same-sex marriage hoped would be a “marriage equality zone” because outside of Maine the voters had little recourse. The process for getting the issue on the ballot was either cumbersome or nonexistent. (Though it is worth noting that few New Englanders outside of Maine took advantage of the democratic recourse they did have: voting out legislators who either supported same-sex marriage or opposed letting the people vote.) Rhode Island may well be next if the Republicans lose the governorship there this fall.
Gay rights activists have successfully resisted attempts to put the issue on the ballot in Massachusetts, Connecticut, and the District of Columbia. Some have sued to try to overturn Proposition 8 in California, the state’s second ballot initiative on marriage in a decade. A statewide ballot initiative defining marriage as between a man and a woman has lost only once, on a technicality: voters narrowly turned back a broadly written Arizona initiative that they feared would have implications beyond same-sex marriage. When the question was rewritten to address these concerns, it passed easily.
Every other statewide defense-of-marriage initiative has also passed, by margins ranging from 52 percent to 86 percent of the vote, in red and blue states alike. This process began in Hawaii, the very state whose supreme court prompted Congress to pass DOMA in the first place.
Yet there is a growing divide on marriage in this country. On one side, there are those who believe that marriage should be between one man and one woman because that is the only combination whose unions regularly and naturally produce children; that moving away from this definition will have unintended consequences; and that in any case they should at least have the opportunity to vote on the matter.
On the other side, there are those who believe that marriage should just as obviously be extended to any loving adult couple; that allowing same-sex marriage does not change matrimony so radically as to yield any adverse consequences for the heterosexual majority; and that in any case this is a matter of equal rights for a minority that should not be subject to a popular vote any more than we should be allowed to vote on the First Amendment.
Advocates of these competing visions are on a collision course. For if there is no moral difference between opposing same-sex marriage and interracial marriage, then the majority of Americans — and their religious traditions, some of which show no signs of changing — are morally equivalent to racists. American law for good historical reasons deals harshly with racists. Ask Rand Paul what people think of abstract discussions about their freedom of association.
Compromise has always seemed possible, as few Americans want to deny a gay man the company of his partner as he lies dying the hospital. But if qualms about this new marriage regime are morally equivalent to racism, then civil unions represent a return to Plessy v. Ferguson’s doctrine of “separate but equal.” Some gay rights activists believe that the polls show time is on their side as attitudes shift in their direction. But if this issue is as clear-cut as racism, then why not agree with Dr. King’s complaint from the Birmingham jail, “For years now, I have heard the word ‘wait’”?
Judge Tauro issues his edicts from Massachusetts, which has had same-sex marriage for six years now, the Defense of Marriage Act notwithstanding. Based on his musings about states’ rights, he probably doesn’t know what he is doing. Hopefully the next officials to entertain this issue will think it through a little more carefully.
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