IGF CultureWatch

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.

The year 2004 was not kind to the country's leading national gay-rights organization. It stumbled badly on the three essential P's of a civil rights organization: people, policy, and politics. It needs to address its deficiencies in all three areas if it is to be an effective voice for gay equality.

Start with HRC's leadership crisis. For years, HRC was guided by the articulate, intelligent, moderate-sounding Elizabeth Birch. She helped transform the group into a real political powerhouse, dramatically enlarging its staff and budget, and for the most part guided it successfully among the tricky shoals of Washington politics.

But Birch stepped down in early 2004 and was replaced by Cheryl Jacques, a Democratic state legislator from Massachusetts. Jacques was newly out of the closet and had no experience in Washington politics. But she seemed like a quick study.

By all accounts, the choice was terrible. Jacques had a management style that irked HRC's staff. As a partisan Democrat, she seems to have had no taste for the compromise so essential in a Capitol dominated by a party hostile to her cause. Her rhetoric was often shrill; worse, she presided over some truly dreadful policy shifts and political maneuvers.

Next, consider policy. In the summer of 2004, after years of principled resistance, HRC announced that it would not support the legislative centerpiece of the national gay rights movement, the Employment Non-Discrimination Act (ENDA), unless it protected transgenders as well as gays from job discrimination. This decision followed years of protest against HRC on the issue by transgender activists and gay leftists.

The reason for HRC's previous unwillingness to add transgender protections to ENDA was obvious: adding "gender identity" would greatly weaken the prospect of passing the bill anytime soon. Jacques penned a column for the gay media defending the about-face for two reasons. First, she offered a lot of blather about respecting the movement's "diversity," as though effectively killing ENDA would enhance diversity.

Second, she argued that protection for gays would be incomplete without protection for transgenders. This appeal to gays' self-interest was untrue, as any honest person familiar with the law should know.

Most irresponsibly, HRC made this symbolic gesture apparently without conducting any research about what its political impact would be. How many congressional sponsors might be lost? How many moderate Republicans and even Democrats would support a transgender-inclusive ENDA? We were never told. When HRC insisted for the first time in 2004 that senators sign a nondiscrimination pledge including "gender identity," many fewer senators signed the pledge than when it had previously included only "sexual orientation." Under Jacques, HRC had done exactly what it resisted doing under Birch: it had sacrificed practical goals for therapeutic grandstanding.

Finally, consider politics. In 2004, HRC sounded and acted in a more partisan Democratic fashion than ever before. Part of this can be attributed to how bad the Republicans have become, especially with the GOP push for a Federal Marriage Amendment (FMA). But HRC overreacted, endorsing John Kerry in the spring of 2004 and thus ending any leverage its endorsement might have given it over him.

That leverage would have come in handy. Kerry backed a state constitutional amendment in Massachusetts to end gay marriage there, said he had "no problem" with a similar measure on the ballot in Missouri, waffled on the ban on gays in the military, hardly ever even used the word "gay" during the campaign, and never repeated his earlier-stated support for pro-gay measures like ENDA. On gay issues, he was the worst Democratic nominee since Michael Dukakis. But HRC had nothing to say about these matters during the campaign.

The other big political mistake was HRC's failure to endorse the most important gay-friendly Republican in the Senate, Arlen Specter of Pennsylvania. Specter is hated by social conservatives for his pro-gay policy positions, including his opposition to the FMA. He's also in line to become chair of the important Senate Judiciary Committee, which vets judicial nominees.

So why no HRC endorsement? Because Specter voted for a motion to close debate and bring the FMA up for a vote in the Senate. Voting against this procedural "cloture" became the be-all and end-all of HRC's endorsement process (except when it came to the national Democratic nominees, who didn't even bother to show up for the vote but kept HRC's endorsement). It was a wooden and silly decision with ramifications we have yet to appreciate.

Can anything be done to save HRC from the political wilderness? Here are three suggestions. First, HRC should hire a Republican executive director. This will be unpopular among gay leftists, but it should help repair relations with Republicans like Specter and help moderate the group's image and rhetoric in a national political climate likely to be dominated by the GOP for some time.

Second, the group should back off on transgender inclusion in ENDA. HRC can offer the excuse that it had not fully gauged how much opposition there would be to the move. To quell the outcry on the left, have a member of Congress introduce a separate, transgender-inclusive bill supported by HRC.

Third, refocus time and energy on state issues and legislatures. In the current climate, little can be done at the national level except to fend off anti-gay proposals like the FMA. The real action has moved to the states, where some progress toward the legislative recognition of gay relationships may be made and where will be fighting anti-marriage initiatives for several election cycles to come.

Alas, HRC seems unlikely to do any of these things and so its distressing slide into irrelevance will probably continue.