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.
