IGF CultureWatch

What if.

What if, posed John Tierney in a New York Times op-ed, what if the red states and blue states were divided into different countries? What if the Confederacy had won the Civil War and been allowed to secede?

"Northern liberals wouldn't be ranting at George W. Bush and Pat Robertson," Tierney wrote. "They wouldn't be frantically trying to find a candidate who appealed to the Bible Belt."

He continued, "Southern conservatives wouldn't have to fight for moral values against Godless Yankees. �Politics in both countries might be less partisan, even civil."

Imagine that world. We could leave that counterfactual Confederacy to battle Mexican immigration and impose fascist Christian rule. The North would have more equality and thus a richer culture.

Let's ignore the small inconvenient fact that red states stretch up to the northern border in the Great Plains and mountain states and imagine that a Civil War the United States lost would be a Civil War that divided us nicely in half, with the blue liberals on top and the red conservatives swimming along beneath.

Our more liberal United States would have stopped fighting over abortion years ago. It would be a non-issue now. We'd teach science in schools without ever having to explain why we weren't also teaching creationism; we'd have socialized health care like our neighbor to the north; we'd have had a woman president.

Plus all those benefits for gays and lesbians. Gay marriage would now be a given, and we would be serving openly in the military. There would be gay equality everywhere. It would be like living in Canada.

But here's the thing.

Canada's not the paradise it seems.

Last week, for example, thousands of Christians descended on Ottawa to pray for the overturning of the country's gay marriage law. Seems like something that would happen in the South, doesn't it?

Then I started thinking about trouble areas.

Illinois went easily to John Kerry. We're blue. Lincoln made his home here, for heaven's sake-we'd be the proudest of the Northern United States. Yet in Springfield, our capital, the Episcopal bishop recently signaled strong distaste for the church's new presiding bishop because she's in favor of blessing same-sex marriages.

And it's well known that southern Illinois might as well be Tennessee.

And those Southern states? They're not all as anti-gay as we imagine. A federal court recently ruled that a gay-straight alliance must be allowed to meet in Gainesville, Ga. The Supreme Court in Arkansas affirmed that there must be no ban on gay foster parents. The University of Louisville, in red Kentucky, voted to offer domestic partner benefits. The Tennessee Supreme Court challenged a proposed ban on same-sex marriage.

Let's take a look at our blue states, shall we?

A Rochester, N.Y., judge ruled that a transgender man couldn't change his name from Sarah to Evan. Connecticut's legislature said no to same-sex marriage, because residents already had watered-down civil unions. Gov. Arnold Schwarzenegger vetoed a bill giving California same-sex marriage last year. The Massachusetts legislature took up a gay marriage ban.

And New York ruled that gays and lesbians didn't deserve marriage because-and this is the strangest thing I've ever heard-their unions are too stable.

The lesson?

Life for liberals-and gays and lesbians-wouldn't in fact be easier if America had no red states, because America isn't so easily divided between red and blue, conservative and liberal, Christian and secular, homophobic and gay-friendly.

Instead, we are a patchwork of local feeling, with blue municipalities tucked within red counties hidden in states that are more purple than primary-colored.

Gays and lesbians are in a battle for equality. To win any sort of battle, you need first to see the enemy truly. So let's dismiss the myth that blue states are good and red states are bad-or that red and blue states even exist as solid entities.

If the South had seceded, the North would have the same troubled mix of conservatives and liberals it does today, as would the Confederacy. Red and blue is an easy shorthand, but it's a false one. We are not a divided country. We are families struggling over issues that are important to us; we are individuals trying to get our communities to see things our way.

There is no magic bullet-not now, not in a counterfactual world where the North lost the Civil War.

There is no what if.

There is only what now?

In the past few weeks, gay marriage advocates pursuing their goal by filing lawsuits have suffered several defeats. The most surprising and most significant of these came in New York, where the Court of Appeals rejected state constitutional claims to same-sex marriage. I want to explore some effects of the decision on the cause of same-sex marriage.

First, the New York decision may be followed by other state courts. Right now, litigation is pending in eight state court systems. We await decisions from the high courts of two states, New Jersey and Washington. New York is a large state and its courts are well regarded.

At the same time, it's a politically liberal state. The New York decision could provide cover, jurisprudentially and politically, to judges in other states who want to reject gay marriage claims but who are concerned about the perception of legal elites that they are denying the next great civil-rights cause. If New York's high court can do it, it can't be blind bigotry or ignorance to reject these claims, can it? Thus, the New York decision could be influential on this issue in a way that, say, the Alabama Supreme Court would not be. The New York opinion may therefore damage the prospects of gay marriage litigants elsewhere.

I would not make too much of this, however. Judges will tend to have a view of the issue going in, and I doubt that they'll be converted by the opinion of four judges in Massachusetts in one direction or four judges in New York in the other direction.

A second effect may be to soften the remedial demands made by future gay marriage litigants. Instead of insisting on full marriage or nothing, as the New York plaintiffs did, perhaps litigants will be more likely to settle for an alternative status, like civil union or domestic partnership, that offers the benefits and rights of marriage without the name. This might marginally increase their chances for success.

Future state courts might see the current landscape as offering three models for resolution of gay-marriage claims: Massachusetts (full marriage), New York (nothing), and Vermont (civil unions, with directions to the state legislature to work out the details.). They might see the Vermont resolution as a middle position between the extremes of New York and Massachusetts, allowing them to give gay couples the benefits and protections of marriage without risking the political backlash that comes with the word "marriage."

A third effect should be to reduce and to delay litigation arising from inter-state conflicts in marriage law. New York is the third most populous state, with a high concentration of homosexuals. Its residents, especially in the city, are highly mobile. In short order, its gay married residents would have moved to or traveled in other states, gotten into legal conflicts with each other or with third parties, and sought some out-of-state recognition for their relationships.

I think discordant state policies in this area can be dealt with under traditional legal principles. And these conflicts will occur anyway, since we already have gay marriage and alternative statuses in a few states. But there is no doubt the sheer number of such issues coming from New York would have heightened tensions over the gay marriage issue very quickly and added to calls for a national resolution via constitutional amendment.

Fourth, perhaps there's a silver lining in the New York loss. Losing such an important judicial decision may force the gay marriage movement to emphasize legislative progress, which will produce gains that are more durable and less likely to infuriate opponents than are court victories. In past columns, I have argued for an emphasis on legislative progress toward gay marriage.

Will the New York decision re-order priorities toward legislation? Certainly in New York the legislature is for now the only available arena. But with Republicans fairly comfortably in control of the state Senate and presently the governor's mansion, gay marriage is not coming to New York anytime soon. Instead, New York will have to be one of the states where, if progress is to be made in the near-term at all, it will have to be made by degrees.

Outside New York, the decision might be the beginning of the end for the strong emphasis on litigation that has marked the early part of the gay marriage cause. Despite the exaggerated claims of some federal amendment supporters, there aren't that many state court systems likely to be hospitable to gay marriage claims for the foreseeable future. (The federal courts are hopeless, as litigation strategists know.) While gay marriage litigation strategists might once have hoped to build momentum for a state-by-state judicial sweep, producing a few initial court victories in very friendly states that would lead to later court victories in less friendly states, that hope has been diminished by the New York defeat and even more by the political backlash to gay marriage.

Once existing litigation has worked its way through those few state court systems where litigants have a reasonable prospect of success, as such litigation is now doing, gay marriage advocates will have to turn primarily to legislatures.

As in other social and political movements in this country, the courts will have helped along the way by highlighting the strength of the principled arguments and especially by getting some isolated experiments started. But there will be no substitute for making the case to the people and their representatives.