Friday, August 11, 2006

Gay Marriage is Not Inevitable: Remember That the Equal Rights Amendment Failed

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 Some states even rescinded passage, including Kentucky.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.


Quotidian Grace said...

Excellent point! I remember the ERA, too. It was a big issue when I first got out of law school. Now I'm glad that equality for women was achieved in other ways.

SPorcupine said...

In the early 1970s, there were ERA bracelets. I wore one every day, going through three because they broke at the joint between the E and the R fairly often.

In the early 1980s, I wore a bright red t-shirt, with "Yale Law Women" on the front, and the complete text of the Equal Rights Amendment on the back. States were done voting and passage looked doomed for the forseeable future, but I come from a long line of doomed causes--some of which have since triumped mightily.

You've chosen a wonderful example of the apparently inevitable that really wasn't.

Public Theologian said...

Although SSM may not be inevitable, SS civil unions at the very least will be. The majority of the country already supports this (see the Pew Center's most recent poll) and frankly it is the only way to blunt the charge of discrimination. Yes ERA failed, but one fo the chief talking points was that it was not necessary due to the fact that there were already anti-iscrimination laws being put on the books at every level of government, which made a constitutional change unnecessary. Something like, I believe, will have to happen on this issue as well. There are over 1,100 federal benefits which heterosexual couples have which SS couples do not (the GAO maintains a running count), and the research clearly indicates that Americans don't want to discriminate agianst groups of people any more. Thousands of businesses, usually bastions of conservatism, have begun offering benefits to partners in SS relationships for more than a decade, with more taking the plunge every year. The moderate position, politically speaking, has thus become the support of civil unions, whereas just a decade ago this was the lunatic fringe. Even GOP politicans do not want to be seen keeping the partners of gays out of emergency rooms or preventing them from taking control of a partner's remains after death, so I think that something like this will have to appear soon, at least in blue states, to fend off the charge that they discriminate.

Gruntled said...

You may be right that a non-marital status for significant others will become the norm. I would like to see such benefits disconnected from sexuality altogether. This has already become a problem in places, such as the University of Florida, which extend benefits to same-sex partners in marriage-like relations, which now are asking people to prove that they are really gay and really having sex to get the benefit -- truly a bureaucratic nightmare.

The "1100 federal benefits to married people" is, by the way, something of an urban legend -- see Maggie Gallagher's analysis.

Public Theologian said...

Urban legend? Sorry but Gallagher is spiining. The full report, 18 pages in length, is available online to anyone who cares to see it for themselves.

In a letter accompanying the report to Senator Bill Frist summarizes the GAO's findings succinctly: "[A]s of December 31, 2003, our research identified a
total of 1,138 federal statutory provisions classified to the United States Code in which
marital status is a factor in determining or receiving benefits, rights, and privileges."

I am sure there are people who don't want this fact to be widely disseminated or failing that, like Gallagher, to make it sound like something other than what it is. But the truth is still there, for those who will see it.

Gruntled said...

Yes, the report exists. Gallagher's point was that many of those 1100 (or whatever the number will turn out to be) merely mention marriage, without specify benefits.

Still, there are some government benefits to marriage, so the legal issue of civil union status remains.

Mark Smith said...

I believe that it's just a matter of one generation before gay marriage (or some equivalent) is accepted in almost all 50 states.

If you look at polls, the young are increasingly in favor of it.

Gruntled said...

The young have a strong commitment to fairness. They are pretty volatile, though, on which precise policy is the best way to achieve fairness, and usually haven't really thought through the alternatives. They had majorities in favor of same-sex marriage before the Goodridge case, then when they actually read about it the exact consequences of the court mandate, there was an immediate 15 point or so drop in support.

Jon said...

The young have a strong commitment of doing whatever they want and ignoring the hard won wisdom of those who came before them.

Alan said...

Well, you hardly need to look to ERA to see which way the wind is blowing. Conservatives invented and exploited the gay marriage issue brilliantly to score political points. (Not a single major gay rights organization was pushing for marriage back in 1996 when conservatives came up with the Defense of Marriage Act -- a solution in search of a problem.) And it's an issue that's still working for them. One does wonder though, once all the states have passed anti-marriage amendments, who will conservatives beat up next?

"Still, there are some government benefits to marriage, so the legal issue of civil union status remains."

Yeah, God forbid gay people actually get the right to, oh say, visit a dying partner in the hospital, make financial decisions, or own a house together. At what point does the anti-marriage rhetoric finally get beaten by compassion?

And let's remember that those 1000 special rights are only the Federal rights, they don't include any special rights given by the states. Special rights which are earned, by the way, by straight people due to their "lifestyle choice" to get married. :)

(By the way, let's also remember that Ms. Gallagher's analysis is hardly objective, given that she was being paid by the Bush Administration. I think the GAO is a bit less partisan.)

D-rew said...

Ahhh yes Jon, the millenials (as i like to call them) are out to take away all the Gen X'ers moral values, or if you prefer we can look to the boomers for our moral support.
Give me a break.

Or if your point was a more general comment on youth rebellion in general let's consider the fact that all of the civil rights movements (or any advancements in society from plumbing to VCR programming for that matter) over the past...oh say 3000 years, have been the production of the younger generations moral ineptitude.

I am not saying that age doesn't bring wisdom, and i'm not touting a youth revolution, but i do think that it is important that the fallacy of age superiority be pointed out.

I know this has always happened, and always will happen, but the "I'm better than you" line seems a bit of a throwback to the playground.

Jon said...

"let's consider the fact that all of the civil rights movements (or any advancements in society from plumbing to VCR programming for that matter) over the past...oh say 3000 years, have been the production of the younger generations moral ineptitude."

That is such an incredibly odd comment that I honestly don't know what to say.

D-rew said...

Well...I guess i'm an odd guy. I still think that the statement communicates the theme of younger generations changing society and older generations saying, "You're not allowed to do that", in both constructive and destructive ways.

I also think its important not to leap to analogies of punk rock when I say that, because even though it is a good example of the youth changing the culture, it places unneccesary negative connotations upon the principle. In thinking about this theme its important to think of almost all major societal changes changes... ever, from electricity to computers to the Communist Revolution to (i'm sure though i doubt there is any documentation to show it) Christianity, Islam, and Buddhism.

So in short, if you couldn't translate the sentence from the previous post, I hope to have muddled my point even more.

Anonymous said...

i would like to state unequivocally that i support d-rew's statement in support of young people. youth are not simply self-centered, rebellious know-nothings. in fact young people are capable of great things. the continual discounting of youth by a particular segment of the older generation is, if anything, a tired and weary rant by those who are either afraid of change or simply fail to understand that youth, though perhaps not as experienced, have valid things to say. in fact, it is concievable that experience from previous generations does not always translate into knowlegde in the current context. the world today is, in many ways, vastly different than it was during my father's youth, even though there are universal constants that remain the same.

more often than not, young people can be seen as society's conscience. why do i say this? because young people tend to believe in the ideals of fairness, equality and justice, that others cynically dismiss or claim as impossible.

aside from being obsessed with sex, drugs, and rock n' roll, which some people seem to believe are the only things that young people care about, youth have shown over and over that they are keen perceptors of social injustice. think about the changes young people have brought about in the past. young people fought for civil rights, irregardless of the danger of it. by and large, young people were the first to start tearing down the berlin wall. it was the music of the velvet underground, the music of the young people, that inspired a peaceful change of authoritarian regime in checkoslovakia, and it was young people who ensured a non-violent, amicable separation of that nation. young people stood up to chinese communism in tiennamen square (even in the face of extraordinary danger). young people were integral in ending aparthied. are these not also wise acts? are these acts not done with a keen understanding of moral uprightness, and fairness? Were these youth so depraved?

in the current instance, youth accepting same-sex marriage, were are presented with yet another injustice: a disticnt segment of american citizens are victims of targeted, institutionaled, codified discrimination. they are denied of rights that are awarded to others. while the civil rights act of 1964 does not address sexual orientation, the denial of homosexuals to engage in the act of marriage and reap the benefits that heterosexuals do flies in face of this great act. regardless of your opinion on the morals of homosexuality, there should be no question of the legality of two committed, loving, willing individuals to form a union. after all, aren't the arguments being used against same-sex marriage strikingly similar to those that were used against inter-racial marriage? if we are so concerned with protecting marraige, why not focus instead on decreasing the absurdly high divorce rate for heterosexuals? i feel it is clear that in this instance, if the youth are in support of this movement, it is they who are demonstrating wisdom.

this is not to say that i disrespect my elders, or discount what wisdom they do have to offer. in fact, they often offer quite a bit. i have learned much from my mother and father, my grandparents, and teachers, and countless adults who have given me the benefit of their experience. however, all of them, in their wisdom, knew better than to discount my intuitions, and my instincts simply because i was young. it in no way should be implied that young people are the center of societal moral decay, or are somehow incapable of being wise themselves. i hope no one has been offended, but i felt compelled to say my peice.

Gruntled said...

In November, 2004, Maggie Gallagher and Joshua Baker looked at what surveys on same-sex marriage of young people showed. They concluded that the Goodridge decision in Massachusetts changed opinion from hypothetical to serious, and the general trend was to increase opposition to same-sex marriage among young adults, and even more opposition among teenagers.

Their analysis is at

Alan said...

Interesting, Gruntled, that you report only part of the story that even biased on-the-Bush-payroll Maggie tells herself. In fact, she notes that, though opposition to same-sex marriage did increase immediately after the Goodridge decision, it began to rebound shortly after. And, the report you site is from 2004, less than a year after Goodridge. Where are the numbers now?

In addition, though the whole point of her report is to show how different polls show very different numbers depending on the questions asked, one notes how the numbers she quotes refer to only one poll when she's talking about her particular agenda. She herself states that the Gallup poll showed a strong rebound in young adults attitudes about same-sex marriage after the initial decline immediately after Goodridge. Then she ignores those numbers and chooses instead to focus on the Pew poll, which has numbers that more closely align with her bias. When she does mention the Gallup numbers again, she only mentions those numbers that agree with her bias and she ignores those that disagree with it (again, different question on the Gallup poll give different results.) In fact, support is increasing again as early as March 2004 according to the Gallup numbers she ignores.

Hmmm... I wonder what the Gallup numbers said about interracial marriage in the 1960s.

As Bill Bennett (Mr. Book of Virtues himself) said recently, "This debate is over ... gay marriage is coming."

Gruntled said...

I think the debate about the various kinds of civil unions, and how they differ from marriage, is only beginning.

Alan said...

That's a debate I wouldn't mind hearing. Give me all the same rights as any other law-abiding, tax-paying American and I don't care what you call it. In 25 years any distinction will be lost anyway, just as no one cares whether a couple was married in a church or a court house. I've already had my church wedding, and that, in fact, was the important one for me. However, it would be nice to be treated like an American citizen now.

Unfortunately, such a debate about civil unions seems unlikely to happen, in my opinion. In Michigan, when our anti-marriage amendment passed, it was written and supported by people (the AFA) who said it wouldn't effect civil unions or domestic partnership benefits. Once it passed, those very same people immediately sued the state to eliminate domestic partnership benefits from the state's universities based on the passage of the amendment. Just one data point, of course, but typically when I read the anti-marriage conservative/ fundie viewpoint they typically dismiss civil unions too. My understanding is that most of the state constitutional amendments that have been passed rule out civil unions, and many people (on both sides) believe that the so-called Federal Marriage Protection Amendment would do the same.

Gruntled said...

After reciting this account of the widespread het-only marriage amendments, why do you think that gay marriage is, nonetheless, inevitable? Younger people tend to get more conservative as they get older, and now there are constitutional amendments on the books in your state and mine that they would need to want to undo.

(Which church, by the way?)

Alan said...

Why do I think it's inevitable? The quick answer: Faith.

The long answer: I think gay marriage is inevitable for a few reasons. First, I believe and hope that the American public will stand for the Republicans using gay people as political pawns for only so long, (in fact, I think a backlash is already brewing -- particularly in states like Michigan where the public was lied to by folks like the AFA.) Once the political pendulum swings back, as it inevitably will (it always has, right?) then something like civil unions will become OK. After that -- certainly several years but eventually -- these ridiculous amendments will be wiped off the books. It took 13 years for the country to repeal prohibition (and some states didn't repeal it until the 60's). It took almost 100 eyars for laws against interracial marriage to be eliminated. So, I don't think gay marriage is going to be a reality immediately, but as Dr. King said, "The arc of history is long, but it bends toward justice."

The second reason is precisely because of the young people of this country, as we've already discussed. There's an old saying in science (my vocation), "Progress in science happens one funeral at a time." The same can be said for societal change. Yes, young people do generally become more conservative as they age, but I've never met a single heterosexual person under the age of 30 who wants laws passed against gay marriage. (I'm aware of the biased sample, but it's still interesting, I think.) They may be against gay marriage in the abstract, but they have a distinct sense of fairness that is, dare I say, patriotic.

Third: There is also no doubt that, as people meet, work with, live with, socialize with, and worship with LGBT people, their attitudes usually change dramatically. As LGBT people continue to come out, the act of being honest -- not legal challenges, amendments, or Supreme Court cases -- but the act of coming out will win hearts and minds.

So, eventually we'll win, I have no doubt. But unlike the shrill activists on both sides, I take a slightly longer view of things. I'm only 34, I've got plenty of time. :)

What church? My husband and I are both ordained elders in the PCUSA.