12.11.09

The Gay Marriage Fiasco

New Jersey is the latest state to bail on same-sex marriage. Linda Hirshman on how the gay community’s strategy is failing and why they’re running out of options.

Facing certain failure, the sponsors of a bill to legalize same-sex marriage pulled it from the state Senate schedule in New Jersey Thursday. The Garden State thus joined an ominously lengthening list of supposedly liberal states—most recently, California, Maine and New York—hostile to the proposal.

The defeats are obviously disheartening for the gay community. What's worse: the setbacks in the state-by-state strategy for winning same-sex marriage are taking a toll on other avenues for achieving the goal.

"The odds in the Supreme Court look a lot worse with the states having expressed themselves 44 to 6 as opposed to gay marriage," says Kevin Cathcart of the LAMBDA Legal Defense Fund.

Maybe the U.S. Congress, dominated by Democrats and prodded by the Democratic president, could be persuaded to repeal the federal Defense of Marriage Act (DOMA), which allows all states to reject the marriages formed in the few favorable jurisdictions that allow them. Or maybe gays who want to marry should rely on the federal lawsuit started by camera-ready litigators David Boies and Ted Olson to challenge the constitutionality of California's anti gay-marriage law as a matter of fundamental right. But Congress and the courts aren't oblivious to what's happening in the states.

Though the federal courts are supposed to protect against bigoted majorities, the conventional wisdom is that the Supreme Court often actually does "follow the election returns." For instance, Kevin Cathcart, the longtime executive director of the gay advocacy group, Lambda Legal Defense Fund, believes that the steady march to decriminalize sodomy in the states after gays lost the sodomy case in the Supreme Court in 1986 heavily influenced the Court to reverse itself in 2003. Although he hopes that Boies et al. succeed, as Cathcart puts it, "the odds in the Supreme Court look a lot worse with the states having expressed themselves 44 to 6 as opposed to gay marriage." (At the moment, the count stands at 45 to 5, since Maine overturned its gay-marriage law.)

Certainly, Congress follows the election returns. The losses at the state level also imperil the already slim possibility of getting Congress to repeal the DOMA, EVEN now that the Democrats are in charge.

In effect, DOMA creates a kind of firewall, preventing the spread of same-marriage laws across state borders. But the state losses would hurt even if DOMA were repealed. Without the federal law, a gay couple married in Massachusetts could move to Maine and ask that their newly adopted state honor Massachussets' marriage law. But Maine STILL has an escape hatch-in the form of the "public policy exception" to the Full Faith and Credit Clause of the Constitution. Under that exception, Maine could refuse to recognize the Massachusetts marriage, arguing that it violates Maine's public policy. When the voters of Maine rejected same-sex marriage, they helped make a record that same-sex marriage violates the state's public policy. This record could come back and bite gay-marriage advocates.

The gay marriage movement turned to the state-by-state strategy only after the hit it took going federal early on—with the challenge to the sodomy laws in the 1980s that Cathcart mentioned. The states had slowly been eliminating their criminal sodomy laws, as a result of gay activism, in part, as well as a general move to eliminate victimless crimes, when the Georgia police caught Michael Hardwick in the act in his own bedroom, after coming into his house on another matter entirely. Hardwick's desire to fight his conviction—and the feeling that the Supreme Court was ready to extend decriminalization to the remaining states—motivated the movement lawyers to take a chance and appeal all the way. They lost, in Bowers v. Hardwick, by one vote. But it was a defeat, nonetheless.

That loss cast a shadow that lasted 17 long years, until the Court reversed itself in Lawrence v. Texas. And it affected the gay community's strategy on marriage-a far bigger cultural step than decriminalizing sodomy. The Court wasn't getting appreciably more liberal. Nor was Congress, which passed the DOMA in 1996. In the eyes of gay-marriage advocates, DOMA effectively ended any hopes that they would find support anytime soon on Capitol Hill.

So the gay community's leadership decided to take the fight to the state level. The move made a certain amount of legal sense. Family law has, after all, traditionally been the province of the states. Nothing in the U.S. Constitution speaks obviously to the substance of family law, and, for most of American history, Congress has remained silent on the subject.

There was a long dry period after the Hawaii Supreme Court raised the issue in 1992. But by the time Massachusetts opened up its altar in 2004, 6200 couples rushed in the first year. Six more states signed on in the next five years, and the lines around the San Francisco City Hall stretched for blocks. But when the supposedly liberal voters of deep blue California amended their Constitution to roll gay marriage back, it was a sure sign that the path to true love would not run smooth. The marriage movement lost three battles in the next year.

So now what? Do strategists seek to take the fight to Washington? It's true, the new, more liberal Democratic crew in charge looks more promising. But the Obama administration, swamped with war, financial crises, and a massive health-care battle, has not done much for gay-rights activists so far.

Not surprisingly, Cathcart did not say a global change of venue was on the table, suggesting instead that the movement had to keep figuring out what kind of campaigns-political as well as educational-were needed to move the middle in the states where the question remains open. Cathcart admitted that on the ground, "a certain degree of success is essential to keep people motivated, and, if they see that the promised successes are not forthcoming, they will stop believing the messengers." The leaders of gay organizations are meeting shortly after the first of the year, and there will, as Cathcart, says, "surely be a lot of conversations about this new information, as there were in California."

But Cathcart, who has a lot of years in the gay movement behind him, still sees reason for hope. Despite losing in California in 2008, activists are gearing up for another try, although they are still debating when to go. And the Washington D.C. City Council earlier this month approved a same-sex marriage law for the Capitol city. "As 2009 draws to a close, people are getting married in Iowa; on January 1, they will start marrying in New Hampshire, and maybe soon in D.C.," he says.

Linda Hirshman is a retired professor of philosophy. She is the author of Get to Work: A Manifesto for Women of the World. She is writing a book about the gay revolution.