A year or two ago it seemed that legalized same-sex marriage was inevitable, and would be coming to a justice of the peace near you soon. The Massachusetts Supreme Judicial Court had declared bans on same-sex marriage unconstitutional, and several others states had similar cases in the pipeline. Several other NATO countries had legalized same-sex marriage. The next logical step in the civil right movement was about to be consummated.
But that is not how things look today. When the Massachusetts court made its ruling, it gave the conservative opponents of "liberal judicial activism" a perfect weapon, which they promptly used in the 2004 election. I think that decision was the most important factor in President Bush's victory. And those judicial cases in the pipeline didn't pan out as the egalitarians had hoped, either. The top courts in New York and Washington states upheld their state constitutions' bans on same-sex marriage. The Massachusetts decision prompted 20 states – including my state of Kentucky – to amend their constitutions to make the traditional understanding of marriage perfectly clear, and another 8 or 9 are likely to adopt such amendments this year. Only a handful of states have gay marriage now, and it appears likely to stay that way.
When I was a teenager one of the biggest issues of the day was the Equal Rights Amendment (ERA). The ERA, written by Alice Paul (a Swarthmorean, by the way) in the '20s, was quixotically proposed in the Congress for 40 years. Suddenly, in the early '70s, the world changed. The ERA passed the congress in 1972, and was sent to the states for ratification. 30 of the needed 38 states quickly passed it in the first two years. Then the reconsideration set in. The ERA tide peaked at 35 states in Jimmy Carter's first year, then stopped. Some states even rescinded passage, including Kentucky. The time limit ran out just before Ronald Reagan ushered in a new era without the ERA.
The Equal Rights Amendment, having come within a whisker of being added to our Constitution, is dead. My students have never heard of it. What once seemed an inevitable revolution in the law died aborning. To be sure, legal equality of the sexes was achieved in other ways. And perhaps equal marriage-like unions might be achieved in other ways, too.
Don't count your legal revolutions until they hatch. The good ship SSM may sink into the sea like the ERA.