As noted in the Sunday Reading yesterday, Josh Marshall at TPM is seeing the marriage bower at the end of the tunnel. His optimism is based on the rulings by the 10th Circuit Court in Utah’s case, the ruling in Ohio that allowed for same-sex spouses married in other states to be listed as survivors on death certificates, and the 50% increase of the number of states allowing marriage equality since last summer.
In this sense – and not to be overly dramatic – it’s almost reminiscent of the Fall of the Berlin Wall – when actions on the ground, literally on the ground, swept a lot of details and technicalities before it and presented authorities with faits accompli, which they were likely to accept eventually, much more rapidly than they would have preferred.
So yes, this will percolate a bit, as they say. Decisions will come up through the individual Circuits. In pretty short order, the Supreme Court will be forced to revisit the issue. And their logic in the Windsor case will join forces with the march of public opinion to make it almost impossible for them not to issue a broad ruling which invalidates every gay marriage ban in country.
I think everybody, on each side of the issue, has realized for the past two or three years that it is only a matter of time until this happens. But the decade or so of different policies from state to state now appears quite unlikely. I don’t want to end without noting that a lot of lawyering remains to be done. Nothing is ever certain. And even when it’s all but certain it’s still not easy. But I see little way to look at the last week and not conclude that gay marriage will be the law of the land in every state in the country in the near future. Probably during the Obama presidency and maybe sooner still.
I wish I could share his outlook, but I don’t, despite the fact that I fervently hope he is right and I would love to be proved wrong. But I’m old enough — barely — to remember the impact of Brown vs. Board of Education and how long it took for school desegregation to become the true law of the land. That decision was handed down in 1954. It was a sweeping decision that invalidated every school segregation law in the nation, be it in Alabama or Massachusetts. But it was a full twenty years, through struggle, strife, riots and political upheaval before the public schools were integrated, and to this day there are still remnants of de jure segregation as seen in the crumbling schools in the inner cities as compared to their shining counterparts in the wealthy suburbs of the same school district.
Of course the implementation of marriage equality will not require the structural change and complete redrawing of school districts as mandated by desegregation; there will be no busing to achieve equality to and from the wedding sites. But overcoming the hatred, bigotry, and the many barriers that will be put in place by clerks and politicians who refuse to accept the ruling that equal rights under the law applies to marriage licenses will take time and further litigation. The bang of the gavel in the hallowed chamber of the Supreme Court did not change the minds of the men and women who were determined to never see a black face in the classroom next to their white child, and there are just as many people today with the same views about seeing two men and two women signing up for a marriage license at the county clerk’s office.
The straights-only marriage advocates such as the National Organization for Marriage and the homophobic groups with “Family” in their name (conveniently ignoring the fact that “marriage” and “family” applies to everyone, not just Ozzie and Harriet and Wally and the Beav) will fight tooth and talon to block marriage equality by trotting out (and raising money off of) the old canards about “traditional marriage,” ignoring the fact that their definition of marriage is barely older than this country, and marriage by force or arrangement is still customary in many parts of the world, including some notable western cultures. They will proclaim that their definition is based in biblical teachings, which also includes polygamy and the death sentence for independent-minded wives. The entire question of religion will be a large factor in the discussion since marriage is not just a civil contract between two people but a religious rite sanctified by practically every denomination.
The conservative religious movements claim that marriage equality violates their religious freedom: forcing them to accept same-sex couples at the altar or chuppah is a sacrilege. In certain churches and temples that may be true, but there are a large number of churches that welcome and sanction same-sex marriage, including the United Church of Christ, Reform Judaism, the Quakers — which, in true Quaker manner, depends on the meeting — and the Unitarians. For the Religious Right to claim that marriage equality violates their freedom of religion, by that same measure denying it violates the freedom of religion of others, including well-established faiths. The Quakers have been around a lot longer than the megachurch down the block.
More importantly, no one and no law is forcing any church to accept same-sex couples at the altar. The Catholic Church is perfectly within their rights (and rites) to refuse to marry a couple that does not hold to their teachings, just as the Quakers are within their rights to refuse a meeting for worship with a concern for marriage for the gang from Duck Dynasty. A marriage license does not require solemnization by a religious denomination; all it requires is a notary public and some witnesses. (And a tasteful reception later, one would hope.)
All of this combines to create the greatest weapon the marriage equality opponents have: the fear factor. Gay marriage will lead us down the slippery slope to people marrying their dog or polygamy and the degradation of “the family.” Chaos and hellfire will reign. Those arguments work as fear-mongering fundraisers and make great sound bites on Fox News, but the simple fact that in order for a contract to be legally binding, both parties must be able to agree to the terms, and a dog cannot do that. Also, contracts can be limited to the number of parties, and nothing can prevent a state from saying that a marriage license is valid only between two people. (The recent ruling in Utah overturning part of the state’s polygamy laws had nothing to do with marriage licenses. It was based on the laws of cohabitation, and the ruling did not invalid the law against bigamy.)
Since none of those arguments hold water, the last vestige is blind fear of the Other. Gay people are different, and they have icky sex that involves doing weird things that God never intended to be done. This mindset tells you more about the obsession — healthy or otherwise — a lot of people have with other people’s sex lives. As anyone in a long-term relationship — straight or gay — and who has achieved the mental maturity beyond that of your average fifteen-year-old will tell you, sex is far from being the reason for being together, and being gay or lesbian is no more of a “lifestyle” than being black, blond, or six feet tall is. But fear of the new, the different, and the unknown is a powerful force in human nature, and despite the fact that this nation was founded by people seeking refuge from religious tyranny and who had the courage to build a nation on an unknown continent, it can still be a crippling and devastating element in the inevitable progress of the reach for equality.
I hope I am proven wrong, but it’s not over yet.