IGF CultureWatch

Years from now, Proposition 8 is going to be thought of as the tragedy that sparked a revolution.

We've seen it before. Stonewall, 40 years ago this month. AIDS 25 years ago. It has always been the case that our greatest community successes were built on the backs of what at first seemed like disasters.

Our strength is that setbacks prod us to work together even more closely.

Before last November, most gays and lesbians who wanted equal marriage weren't very active about it. We might talk to each other about inequality, but except for our activist wing, we weren't taking to the streets.

Marriage across the United States seemed like a pipe dream. When New England's Gay and Lesbian Advocates and Defenders launched their 6 X '12 campaign - pressing for gay marriage in all New England states by 2012 - I almost laughed. No way, I thought.

At the time, only Connecticut and Massachusetts had equal marriage. California was taking it away. And New York, while it recognized marriages performed elsewhere, looked blockaded by religious Democrats in the state senate.

But after the November vote for Proposition 8, gays, lesbians and our allies started marching in the street. We started boycotting. We started writing letters. We started telling our stories. And it became clear: there are ramifications if citizens and legislators vote against us. We are paying attention. And we will act.

Then we started to see states jump forward with equal marriage. Iowa. Maine. Vermont. Soon New Hampshire. The District of Columbia started recognizing marriages performed elsewhere - and Maryland might go the same way in a few weeks. The Nevada state legislature overturned the governor's veto of domestic partnership rights. Pennsylvania is taking up a marriage bill.

Some insiders are even predicting that New York may vote for equal marriage before Pride.

What felt like a Sisyphean struggle a year ago now feels like a landslide. Even last week's California state Supreme Court decision felt something like a victory. The judges, in upholding Prop 8, ruled as narrowly as they could. Minority rights can't be taken away, they said. They can only be called something else.

Said the opinion:

"Instead, the measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term marriage for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple's state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.

"Among the various constitutional protections recognized in the Marriage Cases as available to same-sex couples, it is only the designation of marriage - albeit significant - that has been removed by this initiative measure."

They didn't overturn the 18,000 marriages. And they didn't overturn gay rights. Gays and lesbians have all the rights of married couples, they said. Just not the word "marriage."

And yes, that's "separate but equal." But - good news! - that's SEPARATE BUT EQUAL. And in our country we have a 50-year understanding that separate but equal is not equal at all. Which means that the decision is even more likely to be overturned the next time voters head to the polls.

June is Pride month, and we have a lot to celebrate. We still have to fight. We still have to do the difficult personal and political work of reaching our to communities of faith and of color to reassure them that by supporting us, they don't lose anything.

Forty years ago this month, we had Stonewall. Now we have Prop H8. It is exactly what our movement needed.

No sooner had the supreme court of California issued its 6-1 ruling last week upholding the constitutionality of the voter-approved Proposition 8 than gay activists called for mass protests across the country. As legal experts pored over the decision on the courthouse steps, hundreds of demonstrators directed chants of "Shame on you, Shame on you" at the court's justices, four of whom, it should be remembered, ruled last May that the state's constitution obligated the government to allow same-sex couples to marry. That the legal reasoning for the court's decision to uphold Proposition 8 might have been sound - as the limiting of marriage rights to opposite-sex couples constitutes an "amendment" rather than a "revision" to the state's constitution and is thus subject to popular approval - did not factor into these preplanned rallies.

Emotion ruled triumphant.

This is not to downplay the legitimate frustration and sorrow of last Tuesday. The anger of gays nationwide - especially those in California, who saw their rights ripped away before their very eyes - is understandable. And publicly expressing that anger, albeit peacefully and with respect for those with opposing views, serves as a useful reminder to the country's straight majority that gay people face serious burdens due to the lack of equal protection under the law. For too many heterosexuals - especially those who do not count openly gay people among their family, friends, or coworkers - gay rights are an abstract subject, something to vote on once every four years.

But at this point, gay rights advocates in California have the opportunity to fulfill the inevitable promise of their movement: Convince the majority of their fellow citizens that their cause is just and win equality with a resounding - and democratic - victory.

To see the silver lining in last week's court decision, it's instructive to weigh the costs of the ruling against its (perhaps, to some, utterly inconceivable) benefits. Let's start with the bad news: Gay Californians have lost the right to marry. That's disappointing, but there is an even chance that Proposition 8 will be repealed by 2010, and if not then, 2012. For a variety of reasons - the increasing number of young people becoming part of the electorate, the slow acclimation of heterosexuals to gay people living normal lives - the inexorable trend of gay rights issues is progress toward the equality position.

But the best case for why equal marriage will soon become reality in the Golden State has nothing to do with changing voter demographics, sociology, or better organizing: It is the 18,000 gay couples whose marriages remain legally valid (some of these 18,000 are out-of-state, though just how many is unclear). Their loving commitments to one another, rearing of healthy children, and enriched involvement in their communities will be the best case for preserving and extending marriage equality to all of California's gays and will put to rest fears that allowing same-sex couples to marry will somehow bring the sky crashing down.

So let's keep things in perspective: The worst that gay Californians will suffer as a result of this ruling is the inability to marry for the next year and a half to three years, at most. Meanwhile, gays in California can still enter into domestic partnerships (as they have been able to since 2004), which afford "the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law" as marriage, excepting, of course, the voluminous federal benefits. The inevitable bestowal of marriage rights to same-sex couples in California will be only a change in name, at least until the federal government repeals the Defense of Marriage Act or decides to recognize state-sanctioned legal partnerships.

The obsession with winning court decisions obscures the reality of how civil rights struggles are ultimately won. "While Brown v. Board enunciated important values, real change came through the politically enacted Civil Rights Act of 1964," writes Yale law student and gay marriage supporter Aaron Zelinsky at The Huffington Post. He also reminds us that insidious laws like the Defense of Marriage Act and the military's ban on openly gay soldiers must be repealed legislatively, that is, by the people's elected representatives. Convincing citizens in the country's largest state of the justice behind marriage equality will make that job much easier.

How is forcing gay marriage advocates to the ballot box a boon rather than a chore? Winning equal marriage democratically in the country's largest state will help the national gay rights movement. Immediately, the attack on "activist judges" will be neutralized. Since last November the gay activist community has been awash in controversy over the manifold failures and incompetence of the No on 8 campaign. Now comes the opportunity to right those wrongs and perfect the working model of a statewide pro-gay initiative campaign, the likes of which can be replicated by activists in states across the country. And however "fatigued" voters may about the issue of gay marriage, in the words of Sacramento Bee columnist Marcos Breton, that weariness is more likely to lend itself to support for what most people realize is its inevitable passage rather than continued opposition, which only ensures that the controversy is debated more and more.

Judging by the increasingly pathetic arguments of the anti-gay-marriage right, the momentum is well behind pro-equality forces. In the short time between the passage of Proposition 8 in November and the California supreme court's decision to uphold its enactment last week, Iowa, Maine, and Vermont legalized gay marriage and the New York State assembly passed a gay marriage bill championed by Gov. David Paterson. The New Hampshire legislature passed a marriage equality bill expected to become law this week after successful haggling between the governor and representatives. On Monday the Nevada legislature overrode the gubernatorial veto of a domestic-partnership bill, making it the 17th state to recognize same-sex unions. When the injustice of the status quo is so transparent, it can seem fruitless to counsel patience in a civil rights struggle. But in this case, determined patience in the short term will produce everlasting benefits.

President Truman's quip about wanting a one-handed economist-so that he would cease being told, "On the one hand…on the other hand…"-pretty well sums up my reaction to the news that Ted Olson and David Boies are spearheading a federal lawsuit challenging California's Prop. 8.

Olson and Boies are two of the most prominent constitutional lawyers in the country-as evidenced by the fact that they represented George W. Bush and Al Gore, respectively, before the U.S. Supreme Court in "Bush v. Gore," which decided the 2000 election. And yes, they are from opposite sides of the political spectrum.

Olson-who initiated the alliance-is a well known conservative heavyweight. In addition to representing Bush against Gore, he was the 43rd president's first solicitor general, has served on the board of the right-wing American Spectator, and defended President Reagan during the Iran-Contra scandal.

On the one hand, WTF?

On the other hand, there are increasing numbers of political conservatives who think that the standard right-wing position on gays is not just silly, but profoundly unjust. Olson appeared sincere and determined as he announced the lawsuit, together with Boies, at a press conference last Wednesday. As he put it,

I suspect there's not a single person in this room that doesn't have a friend or family member of close acquaintance or professional colleague and many of them who are gay. And if you look into the eyes and hearts of people who are gay and talk to them about this issue, that reinforces in the most powerful way possible the fact that these individuals deserve to be treated equally like the rest of us and not be denied the fundamental rights of our Constitution.

I couldn't have said it better (which is exactly how Boies responded to Olson's words, patting his colleague and erstwhile nemesis on the back.)

On the other hand (that's three, and there will be more), doesn't the timing seem wrong? That's what many veterans in this fight-including folks at Lambda Legal and the ACLU-are saying. Olson and Boies seem determined to press this all the way to the U.S. Supreme Court. Call me a pessimist, but I can't imagine the current or any near-future SCOTUS deciding in favor of full marriage equality. (I'd of course love to be wrong about this.)

Pushing this case too soon could be both judicially and politically risky. A loss at the Supreme Court would create binding negative precedent for ALL states, not just California. Such precedent is hard to undo. Moreover, if the case is pending during the 2012 presidential election, it could be a rallying cry for right-wingers.

On the other hand, assuming this case does reach SCOTUS, much will depend on the idiosyncratic Justice Kennedy-a swing vote who stood up for gays in both Romer v. Evans (which struck down Colorado's amendment barring pro-gay ordinances) and Lawrence v. Texas (which reversed Bowers v. Hardwick and eliminated laws against sodomy). Romer, in particular, may be key backdrop for this case.

And even if we lose, forcing justices to put their arguments against equality in writing, for generations of legal theorists and law students to dissect, is bound to have a salutary effect long-term.

Moreover, the bipartisan nature of this legal team, and particularly Olson's conservative bona-fides, could be just what's needed to nudge pro-gay conservatives out of the closet in supporting marriage equality. If-and I mean IF; a big, fat, entirely hypothetical IF-anyone could convince someone like Chief Justice Roberts to reject the constitutionality of Prop 8, Olson's the guy to do it.

Olson is no fool. This is a high-profile case, and that's doubtless part of his and Boies's motivation for taking it. They will be working "partly" pro-bono. It is unclear who's paying for the other part, which surely won't be cheap.

On the other hand, unlike the push for a ballot initiative to overturn Prop. 8 in 2010 or 2012, this case won't require substantial monetary contributions from the cash-strapped grass roots. And if Olson and Boies don't take up the case, someone else less well-positioned would likely do so.

On the other hand, Prop. 8 may not be the ideal case on which to pin this battle. Olson and Boies plan to argue on equal protection and due process grounds. But California still allows gays and lesbians to enjoy virtually all the statewide legal incidents of marriage, just without the name "marriage." I'm not suggesting that the name is unimportant, or that "virtually" and "statewide" are the same as "all." I am saying that it seems easier to make an equal protection case where the legal incidents, and not just the name, are substantially unequal.

On the other hand, I'm no constitutional scholar. And there's momentum surrounding Prop. 8. And you gotta dance with them what brung you.

And it's the momentum, more than anything, that gives me hope here. A super-prominent conservative attorney makes a strong and very public stand in favor of marriage equality, recognizing it at the key civil rights issue of our day. Even if we end up losing this particular battle, it's hard not to grow more optimistic regarding the war.

We have this idea in the gay community that Christianity is against us. We think that every clergy member everywhere is combing the Bible on Saturday nights, trying to find new ways of convincing their congregations the next morning that gays and lesbians are not equal citizens, that we are condemned by God.

We imagine a Berlin Wall of churches between us and our full civil rights, poking their spires into the sky like impassable spikes.

We think that churches inspire people only to hate us.

We are wrong.

"On a range of policy issues, Mainline Protestant clergy are generally more supportive of LGBT rights than the general population," according to a report released last week from the progressive think tank Public Religion Research.

It says that 67 percent of Mainline clergy support hate crimes legislation; 66 percent support workplace protections for gays and lesbians; 55 percent support gay and lesbian adoption rights; 45 percent support the ordination of gays and lesbians with no special requirements (like celibacy). One third support same-sex marriage and another third support civil unions, meaning that only a third doesn't think that gays and lesbians should have full civil partnership rights.

When pastors are assured that churches will be free to perform marriages for gays and lesbians or not, according to the doctrine of their denomination and the feeling of their congregations, 46 percent support equal marriage.

Mainline denominations are those, like Episcopal, Presbyterian, Methodist and Obama's own United Church of Christ, that identify themselves as Protestant but are not born again or evangelical.

We tend to hear a lot about evangelical pastors - Rick Warren, for example - in the media, and a lot about evangelical and born again beliefs. But evangelicals, with their conservative, literal view of the Bible, do not equal all of Christianity.

And even evangelicals are starting to move leftward on gay rights (including Rick Warren, who has started publicly softening his previous anti-gay stance). The "New Evangelicals" think that their churches should focus on poverty and improving the environment. In 1987, 73 percent of white evangelical Protestants thought that a teacher should be fired for being gay, according to a Pew Research Center poll. This year, only 40 percent thought so.

Younger evangelicals are, like the rest of the country, more likely to approve of - or just not care about - equal marriage. Last summer, a Faith in Public Life poll found that 24 percent of evangelicals 18-34 support gay marriage, up from 17 percent just three years ago. That's a seven-point difference and that's huge.

For a while, I was in conversation with a minister of a small evangelical congregation who was trying to find a way to keep his church's theology while also welcoming gays and lesbians into the pews.

"Know that I'm not the only one," he said. "There are more evangelicals where I am than most people realize."

There are more religious leaders of all denominations who are for gays and lesbian rights than we realize as well. In New York, for example, hundreds of ministers have joined together as part of Pride in the Pulpit to advocate for equality and justice for gays, lesbians, bisexuals and transgenders.

"Religion" is not a monolith, especially in the United States. There are religious leaders who are for gay and lesbian rights and they are voicing their support in the pulpit.

Take my friend's pastor, a Lutheran minister who on Mother's Day said in his sermon, "I have a very hard time finding any reason to be afraid of what is happening in Massachusetts and Iowa and elsewhere. The institution of marriage is strong; it cannot be damaged by extending it to others who want to get married. On the contrary, marriage is strengthened by doing so."

Christianity is not out to get gays and lesbians, despite the popular perception. Not all churches are barring our way to equal rights. Indeed, some are opening the door.