IGF CultureWatch

The two guideposts in the battle for gay marriage in the coming years must be federalism and incrementalism. Federalism means focusing on the states.

Incrementalism means taking things slowly. Fortunately, we have a successful template for the recognition of gay relationships. While others were grabbing headlines with dramatic judicial victories, gay Californians were quietly and patiently persuading state legislators to experiment with increasing degrees of legal protection for gay couples. There's still no gay marriage in California, but we're getting awfully close. Here's how it was done.

When first created in 1999, California's domestic partnership program was little more than a formal registry. Two adults of the same sex could sign up as domestic partners if they lived together, agreed to be responsible for each other's basic living expenses, and promised "to share one another's lives in an intimate and committed relationship of mutual caring." A domestic partner could terminate the partnership simply by writing a note to the other partner.

That first year, the program created few tangible protections. Domestic partners were given hospital-visitation rights. And cities in California were allowed, but not required, to offer the domestic partners of their employees the same benefits as spouses. That's it.

The next year, 2000, voters in California passed the Knight Initiative, which banned gay marriage. Progress in adding to the rights of domestic partners that year was exceedingly modest. Domestic partners were permitted to secure housing in specially designed accessible residences for the elderly. The legislature also passed a bill allowing domestic partners to use family medical leave to care for a sick partner, but Gov. Gray Davis vetoed the bill, insisting on an "off-season" for gay-related legislation.

The following year, 2001, saw more dramatic progress. Among many other advances, domestic partners were given the right to use stepparent adoption procedures; to sue for the wrongful death of a partner; to make medical decisions for an incapacitated partner; and to use sick leave to care for an ill partner. The state also agreed not to tax the value of domestic partner health insurance coverage.

In 2001, legislators also proposed to treat a domestic partner as a "spouse" for purposes of inheritance when a partner dies "intestate," that is, without a will. But the idea was shelved when Davis threatened to veto it.

In 2002, in the wake of the September 11 attacks, Davis reversed his position and signed the intestacy bill. Other minor progress was made that year, including a law allowing domestic partners to receive the birth and death records of a partner.

In 2003, the California legislature dramatically expanded the rights and duties of domestic partners. Effective January 1, 2005, domestic partners will be treated like spouses under state law, except for state income tax purposes. (A proposal to allow domestic partners to file joint state income tax returns was withdrawn after a state agency estimated it would cost more than $5 million in lost revenues in the first year alone.) A domestic partner can no longer terminate the relationship simply by sending a note to the other partner. Now the partners will have to get the equivalent of a divorce.

What started as almost nothing for gay partners in 1999 will have become shadow marriage by 2005. Yet there has been no great public outcry in the state, in contrast to the political upheavals that followed the revolutionary judicial victories in Hawaii (1993), Vermont (1999), and Massachusetts (2003).

Two factors account for the difference. First, California domestic partnerships were created democratically. California is so far the only state to enact legislation of general applicability recognizing gay relationships without being forced to do so by courts. This gives people, including losers in the political process, the satisfaction of having been heard by their representatives. As we have seen, courts can be overruled by constitutional amendments. When victories are earned democratically, they're seen as more legitimate and are therefore more secure.

Second, California's gay lobbyists and openly gay legislators proceeded incrementally. They compromised, backing off when necessary. In retrospect, we should thank Gov. Davis for occasionally applying the brakes for us.

Incrementalism does a couple of important things. It forces those uncomfortable with gay relationships to deal with concrete questions rather than abstractions. While it's easy to oppose "gay marriage," it's politically difficult to oppose any single one of the benefits and responsibilities that comprise the legal status of marriage. Sure, gay marriage will destroy civilization. But will it destroy civilization to recognize, for example, the right to file for state disability benefits on behalf of a mentally ill domestic partner, as California did in 2001? It's very difficult for anyone but the most hardened homophobe to oppose that.

Incrementalism also gives the public time to adjust to each advance. One fear of gay marriage is that it will destabilize families. Proceeding by degrees, we can demonstrate that measures to shore up gay families do not threaten heterosexual ones.

With the federal government firmly in the hands of anti-gay conservatives, and with the courts growing fearful of backlash, it's time to pour resources into state legislatures like California's. In a few states, like Connecticut, it may be possible to achieve a near-marriage equivalent in one piece of legislation. In most other states, we'll have to move gradually. There's just no excuse now for legislative inaction in friendly places like New York, Illinois, and New Jersey.

Think big. Start small.

First published November 22, 2004, in The New Republic.

It would be hard to understate the pervasive despair that gripped gay Americans as the results of Nov. 2 began to trickle and then flood into their consciousness. With the victory of 11 state amendments banning relationship rights, and with the religious right exultant that its opposition to homosexuality had brought an already anti-gay administration to power with a new mandate, the mood tipped close to dread. The playwright Larry Kramer, with his usual gift for moderation, told a packed house in downtown Manhattan, "I hope we all realize that, as of Nov. 2, gay rights are officially dead. And that, from here on, we are going to be led even closer to the guillotine." He was not the only one feeling that way.

For their part, the Democrats also seemed poised to blame their small but decisive loss on the push for equal marriage rights. Sen. Dianne Feinstein proclaimed that the movement had gone "too far too fast." Rep.Barney Frank pinned responsibility on the shoulders of San Francisco's Mayor Gavin Newsom, arguing that his extralegal sanctioning of marriages for gay couples had unleashed a backlash that had swept George W. Bush back to power. That was the sentiment, and that was the spin. In the immediate aftermath of the election, with Bill Bennett calling the result a mandate for a new culture war, it was very difficult to resist.

But resist it we should, not least because it is morally cowardly. We should also resist it because it is untrue. By any objective measure, the civil rights movement of this generation has accomplished more in a short time than any civil rights movement before it. Yes, fear of homosexuality and the apocalyptic rhetoric of some religious right leaders propelled some rural and suburban voters to the polls. Yes, the way in which homosexuality was deployed as an issue by a whole array of Republican candidates was obvious and, at times, repulsive. In Ohio, the critical state, that may have made a difference. But, nationally, the trend is toward approval of gay unions, not away from it - and that can help Democrats, provided they don't shy away from their convictions.

To be sure, 22 percent of the electorate said moral values was their prime concern. But "moral values" encompass not only marriage rights, but also abortion rights, divorce rates, presidential faith, and the powerful symbolism of tradition in a time of great danger and insecurity. The category has long been picked by voters in exit polls. In 1992, if you add the issues of abortion and family values together, the percentage claiming their vote was based on "moral values" was 27 percent. In 1996, when voters could pick two categories of concern to them, it soared to 49 percent. In 2000, it was again 49 percent, in part a reflection of Bill Clinton's character.

Broad moral issues have long been salient in U.S. elections. This year was no different. There were anti-gay union ballots in three swing states. Kerry won two of them. In eight out of 11 states with gay-union amendments, the increase in Bush's share of the vote compared with 2000 lagged behind the increase in his share of the national vote. Moreover, the broader climate showed remarkable acceptance of the union rights of gay couples. According to the exit polls, a full 62 percent of Americans favor either full marriage rights or civil unions for gay couples. Only 35 percent want what eight state amendments and the Federal Marriage Amendment (FMA) promise: no legal protections whatsoever. In the week before the election, the president himself came out in favor of civil unions.

When you look at the context, what is striking is how weak the backlash was, not how strong. Marriage rights for gays were unheard of two decades ago. Only an 11-year span marks the length of time since the first court decision for marriage equality came down in Hawaii. That effort failed, of course. Actual marriage equality in America has been around for a mere six months. Six months.

Backlash is not a rarity in civil rights movements. It is the norm. If the backlash against equal marriage rights extends to only 11 state bans a mere six months after the critical breakthrough, then the real story is how quickly those rights have become a part of the landscape, not the reverse. In Congress, the FMA fizzled. In Massachusetts, the epicenter of the struggle, the legislature tilted on November 2 toward those who favored marriage equality, rather than toward those who voted against it. In California, the civil unions that will come into effect next year as a result of legislation will carry with them almost all the rights that the state can apply to same-sex relationships, and the Republican governor has endorsed them.

Not only is the movement for marriage equality not on the brink of reversal, it is poised to grow stronger. The younger generation supports gay unions in far higher numbers than any other age group - and is more likely to vote Democratic. Gay rights, in other words, (as opposed to, say, Social Security) is one issue on which Democrats actually have a position that will become more popular in the years ahead. Bush understands this. And that is why the ugly appeal to homophobia was conducted at the grassroots level and under the national radar and why Bush's own rhetoric rarely diverged from positive comments about marriage to negative ones about gays or gay couples.

How do Democrats successfully deal with this issue? First, they must assert the federalist nature of the problem. In a country where San Francisco exists as well as Mobile, Alabama, a single national rule on this contentious issue can only provoke social conflict of the deepest kind. That means Democrats should oppose legalizing marriage rights nationally as strongly as they oppose banning them nationally. Let each state decide. That means opposing the FMA as an abuse of the U.S. Constitution and an infringement on states' rights (the FMA would void Massachusetts' marriages and Vermont's civil unions). This federalist point is not a liberal argument. It's a conservative one - and it will divide Republicans as effectively as it will unite Democrats.

Secondly, the Democrats should be relentless in exposing the real agenda of the religious right. That agenda is not about marriage. It is about stripping gay couples of all legal protections for their relationships. Eight of the state amendments that just passed do exactly that. So does the FMA, in banning not just marriage for gay couples but all of the "legal incidents" that go with it. That agenda is a national loser for the Republicans, which is why they never mention it, and even deny it outright. They must not be allowed to get away with it any longer. The extremism of the FMA needs to be broadcast from the rooftops. If it is, it will fail.

Lastly, the Democrats need to get over their squeamishness and defensiveness on this issue. The movement for equal marriage rights is, in fact, a centrist issue, and should be framed as such. Instead of speaking of it nervously as a matter of ending discrimination and implying that all opponents are somehow prejudiced, Democrats need to use the positive language of faith and family to defend the reform. It should be framed as a way to bring all members of the family into the unifying institution of marriage; it must be spoken of as an issue that upholds responsibility and fidelity. The very existence of gay people in every state and every city and every family in this country should always be mentioned. Bush is able to get away with his policies precisely because he never mentions the actual human beings they wound and marginalize. Democrats and inclusive Republicans must keep mentioning these people - their sons and daughters, brothers and sisters. If they do, the inherent decency of the American people will win out.

This country is not a repository of bigotry. At its heart, America is a compassionate, inclusive place. But Americans need to hear the case for gay inclusion clearly and calmly and with conviction. That means resisting the easy option of proclaiming the heartland a bunch of rubes and morons, and it must mean a greater commitment by gay people and their families to explaining their own lives. It means less reliance on courts and more reliance on democratic persuasion. Every movement that has fought for those goals in this manner has won in the end in America. It will happen again. And it will happen sooner than anyone now thinks.

Given our losses in the last election - all eleven states with same-sex marriage bans passed them, some by a wide margin - is it time to put aside the marriage fight?

You're probably expecting me to say, "No, of course not!" But I won't.

Let me be clear: I believe in equal marriage rights for gays and lesbians. I believe that we will eventually achieve them in this country - maybe even in my lifetime. I also believe that we never make progress unless we're willing to push ourselves and others outside of our "comfort zones."

But I'm fundamentally a pragmatist, and my pragmatic side is telling me that we need to put aside equal marriage rights for now and instead focus on civil unions.

The concept of civil unions perplexes many people. It differs from "civil marriage":

marriage performed and recognized by the state.

Civil marriage, in turn, differs from "religious marriage":

marriage performed and recognized by some religious institution.

(Most people want both, so they get married by a clergyperson who is also licensed by the state.)

"Civil union" is a term invented by the state of Vermont in order to grant all the (statewide) incidents of civil marriage to gays without using the M-word.

Civil unions are not necessarily recognized by other states. But neither are same-sex civil marriages (such as those in Massachusetts). Thus, with respect to state-level legal protections, civil unions and civil marriages seem identical.

What, then, is the difference?

It would be wrong to answer "just the name." Names are powerful, and the difference in names seems to indicate a difference in reality. Polls suggest that many Americans who strenuously oppose same-sex civil marriage are willing to accept same-sex civil unions.

I used to think that such Americans were simply confused. Doubtless, many are. But I think there's more to be said.

To understand why, let's distinguish three things: (1) relationships, (2) legal rights and responsibilities, and (3) social endorsement. (Naturally, these things are related: relationships don't occur in a vacuum, and legal recognition is often tied to social recognition.)

Now compare Adam and Eve, who have a heterosexual civil marriage, and Adam and Steve, who have a civil union. What's the fundamental difference between them?

Despite what our opponents may claim, it's not a difference in their relationships. Adam and Steve may be just as committed to each other as Adam and Eve. Adam and Eve can be married even if they can't have children or don't intend to, so it's not that either. (And don't even get me started about the "complementarity of the sexes," as if the only or most important way in which partners complement each other were through gender.)

Nor is there a difference in legal rights and responsibilities-�at least not at the state level. True, Adam and Steve lack important federal legal benefits-�but that problem could be fixed with a federal civil union bill.

So we're left with door number (3): social endorsement. It turns out that the M-word carries a blessing that most Americans are not yet prepared to grant to Adam and Steve.

Now here's the kicker: you can't force social endorsement. You can argue for it, fight for it, plead for it - but you can't force it. Indeed, attempts to do so often backfire (as they arguably have in the last year, as over a dozen states created constitutional bans that they previously lacked).

If I'm correct, then there's a sense in which marriage is not a fundamental civil right. For there is no civil right to social approval. The government can make and enforce laws: it cannot control minds and hearts.

To say this is not to deny that we have a moral right to such approval. Nor is it to deny that we have a civil right to the legal incidents of marriage - and thus to civil unions. These should be our focus now.

Many of us have long viewed civil unions as a compromise: fight for marriage, settle for civil unions. But the fight for marriage may have made civil unions less likely in some states. In my home state of Michigan, the constitution will now prohibit not only same-sex marriage but also "similar union[s] for any purpose." And that's unfortunate, since many people who voted for the amendment reportedly have no objection to civil unions.

So I suggest a different strategy: fight for civil unions now - with all the legal incidents of heterosexual marriage - and let marriage come as it will. We have a decent chance of securing legal protections for our relationships. In the long run, focusing on those protections may be our best strategy for securing the genuine equality that we want and deserve.

First published on Nov. 17, 2004, in the Chicago Free Press.

Many gays and lesbians, even after two or three weeks, are all too obviously having trouble coming to terms with the results of the national election and state ballot initiatives prohibiting gay marriage.

As National Gay & Lesbian Task Force director Matt Foreman said at a post-election conference in St. Louis, "There is hurt, there is bewilderment, there is trauma, there is betrayal." No doubt - and all sorts of histrionic behavior like wailing and moaning and whining and finger-pointing and victimhood-clutching and enemy-mongering as well.

Well, some people - and you know who you are - need to get a grip. We have what bureaucracies like to call a "situation," meaning a serious problem, and wailing and moaning dissipates energy that needs to be channeled into productive effort.

It is not as if there was reason to doubt that 11 anti-gay amendments would pass. Nowhere did opposition poll at 50 percent or more, and polls usually overstate gay supportive sentiment because people lie about politics almost as much as they do about sex.

But it was news to Kate Kendall, director of the National Center for Lesbian Rights, who told the St. Louis conference, "I had thought as a matter of just public education that the nation was further along," Well, it's probably a little hard to judge those things if you live in San Francisco.

As for the national election, it was plausible to predict as far back as July that Bush would win, although those predictions were denounced by the pure of heart as loathsome, shameful and reprehensible. Yes, by all means let us protect our illusions from awareness of how the world really is.

People living in the urban bubbles insisted they knew Bush voters in 2000 who were switching to Kerry in 2004 and none switching the other way. But at the same time the Wall Street Journal's "Best of the Web Today" column was hearing about heaps of switches from Gore in 2000 to Bush in 2004. And indeed Bush in 2004 won 8.6 million more votes than he did in 2000 - obviously a large number of switches as well as new voters.

We can draw three quick conclusions:

1. The fact that with just 140,000 more votes in Ohio Kerry could won in the electoral college even though he would still have lost by more than 3 million votes nationwide will cool Democratic ardor to abolish the electoral college.
2. Even if every gay voter who told exit pollsters he or she voted for Bush had voted for Kerry, the results would have been the same. Even in Ohio the result would be the same.
3. Whether or not Karl Rove's succeeded in drawing 4 million new evangelical voters to the polls, it seems likely that concerns about terrorism and Islamic fanaticism played a bigger role in Bush's victory than anti-gay evangelicals.

In any case, there is a more important conclusion to draw from the election. Many years ago, after an election that portended a move in the opposite direction from policies and values she believed were just and moral, the revolutionary philosopher and novelist Ayn Rand wrote an essay to hearten her dismayed colleagues. She titled it, "It Is Earlier Than You Think."

Rand's point was that the election showed that her and her colleagues' efforts to promote their views had not been sufficient. They needed to continue working to make their ideas part of the national culture, to reach new people, to present their ideas through new means, and offer clear reasons. And this process would take far more time than they had initially expected or hoped.

For Rand, in short, the vote was less a defeat than a valuable index of how much more work they needed to do and where they needed to put their effort.

In our case, it seems clear that same-sex marriage, as distinguished from civil unions, is not going to happen very fast. Legislatures will not enact it and court decisions mandating it will be reversed by popular referendums in almost every state. To hope for gay marriage with the full panoply of federal rights any time in the next 20 years seems a pipe dream.

But some rights are better than no rights. Most European countries began with partial civil unions and have moved by steps toward gay marriage. The same thing is happening now in California where each legislative session adds new rights to the civil unions legislation. And in Vermont, where voters would likely have overturned gay marriage, civil unions were grudgingly accepted and now command considerable public support.

So the best tactic seems to be to get a law passed with some single component of partnership rights, and then add to it over time as public sentiment accustoms itself to the change.

But this can only be accomplished in tandem with unceasing, labor intensive, and time-consuming personal and personalized outreach programs designed to familiarize more people with our lives, ourselves, and our positive contributions to the wider community.