First published in The Wall Street Journal, December 27, 2004
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 caregiving 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 in scope, 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 change 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.
