On March 14, a San Francisco County judge ruled that a state law banning same-sex marriage violates the California constitution. His ruling comes a month after a Manhattan trial court judge determined that there is no ban on same-sex marriage under current New York State law. Enforcement of both decisions has been suspended, pending appeal; even so, these bicoastal cases have given advocates of same-sex marriage great reason to cheer.
These cases also bring cause for concern, as they are part of a strategy that same-sex marriage advocates across the U.S. have embraced wholly, quickly and without much regard for its negative consequences. The strategy is litigation; the goal is a U.S. Supreme Court edict making equal access to marriage the law of the land.
At first blush, such a decision may seem appealing, due to its finality and far-reaching scope. Even if a majority of the Supremes would jump the broom for same-sex marriage on some distant day, the very way such litigation is pursued creates a series of political problems in the here and now. Presumably, these difficulties would fall away on that glorious day when equality for gay and lesbian Americans is handed down from on high. The question that must be asked is whether the damage in the meantime can be so easily reversed - even more so if that glorious day never comes to pass.
The litigation strategy would seem to bear the fullest fruit when the lawsuits are filed in cities like New York and San Francisco - the bluest epicenters of very blue states. Local judges in Kansas or Indiana would be far less inclined to rule in favor of the plaintiffs. At the same time, this strategy of focusing on liberal bastions sets up same-sex marriage advocates for a major backlash in more conservative states. When "judicial activism" takes root in the big coastal cities, state legislators in heartland capitals like Topeka and Indianapolis follow suit with state constitutional amendments banning same-sex marriage. Indeed, Kansas and Indiana are among states that have renewed efforts to pass such amendments in recent weeks.
Perhaps this dynamic can be written off as Newton's third law of American politics: A legal action in the blue states yields and equal and opposite legislative action in the red states. Many on the left view this dynamic and say, so what? If gay couples want to get married, they're better off moving to states like Massachusetts, California or New York, where things are much more progressive, anyway. What self-respecting gay person would ever want to set foot in a state like Kansas, where they've made such a name for themselves fighting the radical theory of evolution?
The answer, of course, is that there are gay and lesbian couples living at this very moment in Kansas, Indiana and all the other states, even those that voted for President Bush by double-digit margins. In fact, some 23 percent of gay and lesbian voters cast their ballot for W. this time around. Thus, it's vital to remember that marriage is not a partisan issue - it's a matter of the humanity and dignity of Americans of every political stripe in every state.
If litigation in some states leads to equality in marriage, resulting in legislation in other states that makes that same equality much more difficult to achieve, isn't it worth it? In practice, this is a false choice, because litigation is far from the only option. For all the flurry of anti-marriage legislation, there have been very few attempts to enact state recognition of same-sex relationships through the legislative process. Beefed-up domestic partnerships have gone into effect in California, and Connecticut is about to enact civil unions both passed by the legislature and signed by the governor, rather than signed by the judiciary.
I admit, these civil unions are not exactly the same as marriage; the states enacting them have strived to make them separate but equal. This is not the ideal, but it's darn close and historically impressive, especially considering that states could arrest gay people for having consensual sex in private until two years ago. If the only impediment to state recognition is the word marriage, why not work to pass civil unions now and save full marriage for the next generation?
Because there is a third element to achieving marriage equality: education. For all of the furor over gay marriage and moral values in last year's election, I remain surprised by how little time and energy advocates for same-sex marriage spent making their case to the public. When they got their moment in the spotlight, too often such advocates wasted precious airtime. They could have demonstrated how same-sex couples currently function and thrive in communities in every state, and why their relationships are worthy of recognition. Instead, they lambasted President Bush for changing the subject from the war in Iraq to gay marriage. Unsurprisingly, this strategy failed miserably.
True social change means changing hearts and minds. Laws will have to change as well, but solid and lasting equality will come when revisions to the law are backed by the will of the people. When new laws are imposed from on high, there is no guarantee that the mass of citizens will follow suit.
The place to start is not a court of law, but the court of public opinion. And the process should not be a struggle. There are still a lot of Americans who don't know a gay person very well - or don't know they know one. It is a grave moral and political error to confuse the uncertainty of such people - even when underpinned by fear - as a kind of hate. The better avenue is one of openness and dialogue that starts with the people next door. That's something no court can hand down.