There are right ways and wrong ways, helpful ways and counterproductive ways, to win. In Connecticut, advocates for gay marriage won the right and helpful way by persuading state legislators to enact civil unions for same-sex couples. While Connecticut is in some respects exceptional, this has been a lesson in democratic politics that can and should be exported to other states. Several rules from that lesson follow.
Rule #1:
Advance through legislatures, not courts.
Connecticut becomes the first state in the country to recognize gay relationships in such an exhaustive fashion without being ordered to do so by a court. While religious opponents of gay marriage intend to challenge pro-civil-union state legislators in the 2006 election, I doubt that effort will succeed. Connecticut is a gay-friendly state dominated by liberal Democrats and moderate Republicans. Six of the 12 Republican state senators voted for the civil-union law and the Republican governor signed it. The response among the electorate has been muted.
Contrast that to the reaction when courts have forced gay marriage on states. In the 1990s, courts in Hawaii and Alaska ordered the recognition of gay marriage only to have the people in those states ban it by state constitutional amendment, a precedent that would soon be followed. Vermont enacted civil unions in 2000 under compulsion of a court order, which produced a toxic political upheaval. Civil unions survived, but no further progress toward gay marriage has been made there.
Massachusetts recognized gay marriages in 2004 only because the state's highest court ordered it. That led directly to consideration of a state constitutional amendment (still pending) and indirectly to the passage of state constitutional amendments in more than a dozen states last fall.
Until recently, California was advancing steadily and democratically toward gay marriage. From 1999 to 2003 the state legislature added annually to the benefits and responsibilities conferred on gay couples. By the beginning of this year, California's domestic partnerships offered gay couples legally much of what marriage offers. Those democratic gains for gay couples induced only a statewide yawn.
Recently, however, a state judge in San Francisco threatened that progress by declaring the state's marriage law unconstitutional. Unless the decision is reversed by the state's highest court, as I expect it will be, California too will face a possible referendum banning gay marriage. And that referendum might be broad enough to eliminate not just gay marriage, but much or all of the painstaking legislative progress already made.
Connecticut has so far followed a wiser path. However, even in Connecticut this progress is threatened by a pending lawsuit challenging the state's marriage laws. It might be fair to say that judicial victories have primed the legislative pump in Connecticut and elsewhere. Even so, more such judicial pump-priming just now will only fuel a backlash not just in Connecticut but further kindle the fire consuming gay-marriage advocates across the country.
There's something about representative democracy that makes even losers accept the legitimacy of the result. There's something about courts that makes losers want to dump tea in Boston Harbor.
Rule #2:
Incremental steps to gay marriage are necessary, but the steps can
be large.
No state has yet authorized gay marriage by legislative action. That suggests that almost everywhere progress will have to be made piecemeal. In California, the legislative pace has been glacial in some years, lightning fast in others.
While incremental legislative steps toward gay marriage are often necessary, they can sometimes and in some places be very large. By recognizing civil unions, Connecticut has taken a huge leap to gay marriage. It will now be easier, in just a few years, to argue that granting Connecticut's gay civil unions the legal and social dignity of "marriage" poses no threat to society.
In this respect, however, the Connecticut model has limited application. Polls showed that 56 percent of the state's residents already favored civil unions. That level of support may be present or quickly obtainable in most of the northeastern states. Beyond those core states, any legislative progress will have to be much slower. For example, Illinois should probably be on the slow track.
Rule #3:
Compromise.
Reform movements need both idealists and pragmatists. Without idealists, the pragmatists have no idea where to go. Without pragmatists, idealists have no idea how to get there. The early years of the gay marriage struggle have necessarily been dominated by idealists, people who thought the revolutionary thought that gay couples should be allowed to marry. Now that this idea has been implanted in the political culture, and has awakened a fierce resistance, it's time for a season of pragmatism.
Pragmatism means compromise. If we stamp our feet and demand marriage, and nothing less, we will get nothing. That was initially the stand taken by Love Makes A Family, the Connecticut group supporting marriage equality. The group opposed civil unions as "separate but equal" and a "dead end" that would never lead to gay marriage. Yet the state legislature was unready for gay marriage, and even getting civil unions required a reaffirmation of the principle that marriage is for "one man and one woman."
After universal criticism in gay circles, Love Makes a Family pragmatically ended its opposition to civil unions. The legislation then passed. Now even the group's president admits that civil unions are not a dead end, but part of a "conversation about marriage equality [that] will continue."