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.