First published December 27, 2004, in The Wall Street
Journal.
President Reagan, ever the optimist, loved a story about a boy
who yelps with delight at a pile of dung, digging into it eagerly
with both hands. "With all this manure," says the boy, "there must
be a pony in here somewhere!" Nearly two months after the election,
gay Americans and supporters of same-sex marriage - count me among
both groups - are digging hard, but still no pony.
When people ask how I feel about the election, I tell them that
this must be what it's like to be worked over in a dark alley by a
couple of loan sharks. Gay couples and their children (more than a
fourth of households headed by same-sex couples have kids,
according to the 2000 census) need the legal protections and the
care-giving tools - not, mostly, "benefits" - that marriage
uniquely provides. Gay individuals, coupled or not, need the
prospect of marriage, with its sustaining promise of a
destination for love and of a stable home in a welcoming community.
In 13 states the dream of marriage has, for gay Americans, receded
far over the horizon.
On Nov. 2, 11 out of 11 states passed constitutional referendums
banning same-sex marriage. Another two such amendments had already
passed earlier in the year. Many of the amendments also ban or
impinge upon "civil unions" and domestic-partner benefits: programs
that provide some of the perquisites of marriage for same-sex
couples. As striking as the amendments' clean sweep were the
lopsided margins by which they prevailed. The public was not just
firm, it was vehement.
So now what? In the near term, the new state amendments will
initiate a round of court tussles as gay organizations and couples
bring suit against some or most of the new state amendments. Any
couple can sue (two lesbian couples in Oklahoma already have), so
anything could happen; but the organizations, if wise, will focus
their challenges on the amendments that seem to ban civil unions or
domestic-partner benefits. That's good politics, spotlighting the
unnecessary and vindictive overbreadth of some state amendments. It
is also the more winnable battle, since the public's vehemence on
Nov. 2 will make judges wary of overturning bans on gay marriage
per se. My guess is that some amendments will run into trouble on
technicalities (as Louisiana's, passed in September, has already
done), and a number will be narrowed inscope, but most if not all
of the bans on same-sex marriage will stand.
How the election will affect the proposed U.S. constitutional
ban on same-sex marriage - which failed to win the requisite
two-thirds majority in either house of Congress earlier this year -
is harder to read. The triumph of all 13 state amendments, plus the
Republicans' net gain of four very conservative senators, will
increase enthusiasm for a national amendment at the "grasstops"
level (that is, among politicians, activists, and other
conservative leaders). On the other hand, the passage of those same
13 amendments, plus the fact that all but seven states have now
banned same-sex marriage statutorily or constitutionally or both,
plus the prospect of President Bush's appointing the next several
Supreme Court justices - all of that subtracts urgency from the
issue, probably reducing enthusiasm for the amendment at the
grass-roots level (that is, among voters, who are typically
reluctant to tamper with the Constitution). I would bet more on the
latter vector, but who knows?
The consensus has shifted rapidly, meanwhile, toward civil
unions. The 2004 exit polls showed 35% of voters supporting them
(and another 25% for same-sex marriage). Particularly after the
Nov. 2 debacle, civil unions look to many gay-rights advocates like
the more attainable goal. It is not lost on them that Vermont's
civil-unions law and California's partnership program have proved
surprisingly uncontroversial. For their part, social conservatives
increasingly, if grudgingly, accept civil unions as deflecting what
they regard as an attack on marriage. John Kerry endorsed civil
unions, and in October Mr. Bush accepted them, saying, "I don't
think we should deny people rights to a civil union, a legal
arrangement, if that's what a state chooses to do."
This year may be remembered as the time when civil unions
established themselves as the compromise of choice. For an
indicator, watch whether there is an outcry if state courts narrow
the scope of the new amendments to allow civil unions and other
partner programs. My guess is that few people will fuss.
One reason is the long-term trajectory of public opinion. The
fact that 60% of voters support some legal provision for same-sex
unions represents a sea-change. Still more significant are the
issue's demographics. Americans of middle age or older
overwhelmingly oppose same-sex marriage, which they view as a
contradiction, if not an abomination. Among people under 30, the
situation is reversed; in a Los Angeles Times poll in March, fully
three-fourths of under-30 respondents favored gay marriage or civil
unions, with the larger group (44%) supporting marriage proper.
Young Americans tend to view the ban on same-sex marriage as simple
discrimination, and non-discrimination is their ethical pole
star.
Not even a U.S. constitutional ban on same-sex marriage, I
think, would hange their view. Indeed, a federal ban would lead
many of these younger people to shun marriage as a discriminatory
club that they'd prefer not to join. Cultural change, as George F.
Will likes to remind conservatives, is autonomous. People who hope
to settle this issue peremptorily, either with a constitutional ban
or a Supreme Court mandate, are dreaming. The public's realization
that gay people cannot reasonably choose straight unions has
shattered the cultural consensus on marriage, and building a new
consensus, whether around gay marriage or civil unions or something
else, will require years of political skirmishing and individual
soul-searching. As Robert Frost said, the only way out is
through.
The public is right to want to avert another abortion-style
culture war, right to want to move deliberately (in all senses of
the word), and right to resist being hustled toward an
all-or-nothing national policy. The best chance of averting a
culture war is to localize the issue by leaving it to the states,
letting them go their own way at their own speed. Between the
court-ordered legalization of gay marriage in Massachusetts, the
elation and outrage over San Francisco's gay weddings, and the
crushing repudiation of same-sex matrimony on Nov. 2, Americans
have been whiplashed in 2004. What the country needs is time to sit
and think.
Mercifully, we may now get some time. Republicans' continued
control of Supreme Court nominations makes it nearly unimaginable -
and it was always unlikely - that the court will overrule the
states on gay marriage. The Supreme Court recently sidestepped an
opportunity to intervene in Massachusetts' gay marriages, and the
election returns will give lower federal courts second thoughts
about butting in. The enactment of those 13 state amendments
demonstrates that popular sovereignty is alive and well in the
states. I am dismayed by the amendments' passage, but I can't
complain about the process. Nov. 2 showed that our federalist
system is working exactly as it should, and it made the case for
federal intervention weaker than ever.