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."