It’s starting to look a lot like the ERA all over again. [Last month’s ruling] by the New York State Court of Appeals denying constitutional status to same-sex marriage was a bellwether for the contentious issue. In a ruling that surely will stand as an apotheosis of muddled thinking the court majority, taking their lead from conservative opponents of liberalized marriage laws, held that there were rational grounds for excluding gays and lesbians from marriage because marriage, defined in New York law as a relation between men and women, aims to promote the welfare of children in nuclear families headed by heterosexuals (yes, it’s circular reasoning…). Chief Judge Judith Kaye, in an eloquent and impassioned dissent, handily demolished the shallow arguments of the majority — not incidentally, indicating where the next court challenge may arise: children of gay couples, now relegated to second class status — but the die was cast. The issue now goes to the legislature, where the Republican majority in the state senate will mothball it.
In a matter of days following the New York decision, court decisions in Tennessee allowed a constitutional amendment onto the November ballot and in Nebraska upheld their constitutional prohibition on same-sex marriage. At this point, according to the Washington Post, fully 44 states have instituted laws or amendments to prevent same-sex marriage. Perhaps most significantly, in the only state to legalize same-sex marriage, Massachusetts, a proposed law to be voted on in November would define marriage along the lines of New York law — a relation between men and women — neutralizing the court decision which legalized same-sex marriage there. Things aren’t looking good for gay marriage advocates.
The New York Times described the New York decision as a stunning reversal to advocates, but the initial public reaction of proponents like Matt Foreman of the National Gay and Lesbian Task Force was defiance and mock enthusiasm for legislative action. Andrew Sullivan [feigned joy] that the fight now goes to the voters, but surely he sees that the tide has turned. The professional advocates of gay marriage have overplayed their hand badly and set their cause back at least a generation.
Back in 2003, when Massachusetts was going through its paroxysm over marriage rights, gay activist and writer Michael Bronski [wondered] where the huge impetus for gay marriage had come from. How did an activist culture that began in the early 70’s allied with feminist critiques of marriage become so enamored of conventional ideas of family? The short answer is that many of the radicals he refers to burned out or died from the excesses of their time. That’s not to say that the validity of their critiques died with them, but they have been lost on the current generation of activists who are less imaginative, more conservative, more expedient and tone deaf when it comes to building alliances. Expedient, in that they weren’t willing to engage in the long slog to gain the constituent benefits of civil unions (parental custody rights, inheritence, next of kin designation, etc.), thinking they could win it all in one fell swoop by claiming a right to marriage — without seeing, or caring, that such a claim struck right at the heart of heterosexual identity. That’s the tone deaf part. So much turned on the word “marriage”.
Judge Kaye indicated something important when she brought up the overturning of Bowers v. Hardwick, remarking that Bowers had mistakenly ruled on the right of homosexuals to practice sodomy, when the case was really about the right of everyone to privacy. Similarly, the current issue is about the right of all citizens to have committed (monogamous, of course) relationships enjoy the benefits of civil sanction. But the approach, which should have been about the benefits of civil unions — for everyone gay and straight alike, was presented as “gay marriage”, with all the social, historical and religious trappings attached, that offended people who otherwise might have supported a gradual expansion of rights. Further, the constant drumbeat from the left that the situation for gays was tantamount to racial miscegenation implicitly likened those who opposed gay marriage to racists. That’s a bad way to make friends. In this case, where subtle issues of identity between homosexuals and heterosexuals had to be balanced against claims for civil equity, separate but equal might very well have been equal. Now we won’t know for a generation.
On the bright side, a defeat is always an opportunity to learn. And to roll a few heads. Perhaps the setbacks will lead to a reassessment of priorities and methods among progressive organizations, less tied to a single issue and to personalities, like Sullivan, who use the issue to settle personal conflicts between their homosexuality and conservative religious ideology. And, perhaps, there will be more appreciation of nuance in political dialogue. Words are important.