‘I’ve never seen people smiling so broadly’

US civil libertarian Wendy Kaminer says progressives should welcome the rise of gay marriage.

Wendy Kaminer

Topics Politics

If gay-marriage supporters are elitists, then so are a majority of American women, political moderates (as well as liberals), independents (as well as Democrats), white mainline Protestants, and a strong majority of all Americans under the age of 45. Collectively, the public is fairly evenly divided on the subject of same-sex marriage; but a plurality favours it, and their numbers are steadily increasing while the number of opponents, including the number of people strongly opposed, decreases. We the people are apparently on our way to accepting gay marriage.

So what accounts for the charge that this increasingly popular re-visioning of marriage is elitist? Support for gay marriage rises with educational levels, but I would hesitate to label millions of Americans elitists by virtue of their college degrees (which have plunged so many deeply into debt). Besides, same-sex marriage is also gaining support among blue-collar workers, according to a recent Wall Street Journal poll: ‘Among people identified as blue collar, support jumped 20 points’ between 2009 and 2012.

Still, the elitism charge is not surprising given the political resonance of gay marriage in swing states and its role in America’s apparently endless Culture War. Gay-marriage advocates are accused of bullying their opponents and being condescending to them as homophobes or religious primitives. Some are guilty as charged, but so what? There’s namecalling on both sides, as you might expect, given the passions stirred by a debate involving family life, sex and religion. For every staunch gay-marriage advocate muttering ‘bigot’, there’s a staunch opponent muttering ‘sinner’ or ‘pervert’. Fortunately, you don’t have to take a civility test to participate on either side of this debate.

But it’s worth stressing that if there were such a test, many people would pass it. Americans are not simply yelling at each other about marriage across a great divide. Many are ‘evolving’, gradually changing their minds about gay marriage and gay rights generally, as polls consistently demonstrate. Outright bigotry has hardly been eradicated: the Virginia state legislature recently declined to confirm an openly gay man for a judgeship, not because he was gay, a Republican who led the fight against the nomination hastened to explain, but because he was ‘outspoken’ about gay rights and once came out as a naval officer in order to challenge the ban on gays in the military. But bigotry has declined significantly. A strong majority of Americans support laws barring employment discrimination based on sexual orientation and, eventually, politicians reflexively hostile to openly gay people will be outliers.

The gay-rights movement has advanced with remarkable speed. Fifteen years ago, civil unions were controversial; today they enjoy majority support. The Supreme Court struck down state laws criminalising consensual sex between gay adults only nine years ago, in 2003 (reversing a 1986 decision upholding state sodomy laws). Congress repealed the ban on gays serving openly in the military only two years ago. The continued advancement of gay rights seems assured by a generation gap that crosses political and religious divides: a plurality (44 per cent) of white evangelical Millennials (ages 18 to 29) favour gay marriage.

Support for gay rights and gay marriage comes naturally to many young people who grew up in a world in which gay people were making their presence known. Cultural norms have changed rapidly, and laws are changing in response, mainly because gays and lesbians have come out to families, friends, classmates and co-workers. Nothing dispels prejudice more effectively than familiarity with people once known only in the abstract by the negative stereotypes imposed on them.

Of course, gay-rights activists are apt to harbour their own biases towards their opponents. Familiarity can benefit both sides, and so can the political debate about marriage. Consider the experience in my home state, Massachusetts, where gay marriage was legalised in 2003. Since then, the state approval rate for gay marriage has risen to 60 per cent, according to a 2011 poll. Diminished opposition to marriage partly reflects the fact that it has been a non-event, culturally and personally, for a majority of Massachusetts voters: ‘[W]hen asked about the impact of its legalisation on their lives, two thirds of voters say it has had no effect at all, 18 per cent say it has had a positive one, and only 15 per cent a negative one.’ Relative indifference or support regarding the effects of gay marriage is a bi-partisan phenomenon: ‘At 73 per cent, Republicans are most likely to say it has not affected them, joined by 72 per cent of independents and 59 per cent of Democrats.’ (One third of Democrats say that legalisation has had a positive impact on their lives.)

Acceptance of gay marriage in Massachusetts is especially noteworthy because the process of legalisation began in the courts, not the legislature. First, the state’s Supreme Judicial Court ruled that a ban on same-sex marriage violated state constitutional guarantees of equality. Opponents then pushed for a constitutional amendment banning gay marriage, winning majority legislative support on the first round and losing it on a requisite second-round vote. The pro-marriage lobbying campaign that succeeded in defeating the proposed amendment in the state legislature offered lessons in empathy to both sides: marriage advocates met with people opposed to gay marriage who could not be summarily dismissed as ‘haters’. Marriage opponents met with gay couples who shared their family values.

There is, after all, a socially conservative case for encouraging gay people to marry (advanced by New York Times columnist David Brooks). Like heterosexuals, gay couples marry for a variety of reasons, but they often include a desire for familial stability, ensured partly by the economic and legal benefits attendant on marriage (1). Gay people are bearing and adopting children, who are supposed to be among the primary beneficiaries of marriage. Why shouldn’t these children enjoy the same relative stability and respectability as the children of heterosexuals?

Marriage is a conservative institution, a vehicle for formalising relationships according to rules dictated by the state. It makes little sense to describe gay marriage advocates as excessively individualistic. Indeed fervent, romantic individualists tend to be suspicious of marriage – and for good reason. It makes even less sense to condemn gay-marriage advocates for seeking state interference in marriage. Marriage is a creation of the state, which is why couples who seek maximum autonomy and freedom from state control generally prefer not to marry. ‘We don’t need no piece of paper from the City Hall’, sang Joni Mitchell.

Some day, gay couples may be this nonchalant about marriage rights. Today, that piece of paper signifies social acceptance as well as equal access and rights to family life, especially for older couples who experienced years of harsh discrimination. Meanwhile, for advocates of traditional marriage, it signifies the destruction of an essential institution. For me, it signifies progress in the ongoing social and political reconstruction of civil marriage.

Concepts of marriage – laws governing who may, and may not, marry and what rights couples have in relation to each other and the state – constantly change as social mores change. Opponents of gay marriage argue that this proposed change is different from changes conferring equal rights on married women, for example, or legalising contraception (so much for procreation as a basis for marriage), or allowing mixed-race marriages.

Easy for us to say. Once, ardent segregationists considered laws against interracial marriage essential to the integrity of marriage and, indeed, the human race. When the Supreme Court struck down miscegenation laws in 1969, it noted that the state of Virginia intended its law ‘to preserve racial integrity of its citizens’, and to prevent ‘the corruption of blood’, ‘a mongrel breed of citizens’. We scoff at these arguments today, because we have very different views of race and mixed-race children. But 50 years ago, if you believed that interracial marriage would diminish the intelligence and morality of the population, you opposed it as vehemently as some people today oppose gay marriage.

I’m not comparing gay-marriage opponents to segregationists. I’m suggesting that dismissing comparisons between extending marital rights to gay couples today and interracial couples decades ago reflects a failure of imagination – a failure to appreciate the salience of race in a different era and a different place, governed by different social and religious ideals.

The legal, social and political salience of homosexuality has greatly diminished in past decades. But gay marriage still demands another radical re-visioning of marriage, although in seeking familial stability through access to this state-governed institution, the gay-marriage movement is an odd hybrid of radicalism and tradition. As my friend Harvey Silverglate observed nearly 10 years ago, the first marriages performed in Cambridge City Hall seemed both ordinary and extraordinary.

Watching the ceremonies and celebrations, he said, ‘At one level I felt I was a witness to history; but on another level it was just the equal application of the law, the rule of law, and the sight of civil servants doing their duty and serving ALL of our citizens… The police were a bit grim-faced at first, but they lightened up as it became obvious that this was just a huge civic celebration; people were getting married, after all, they were not tossing bombs or robbing banks. The ceremony obviously went against the cultural grain of many police officers, but they were there to protect and to enforce the rule of law. I saw many police smiles by 12.30am.’

The first day that gay couples were allowed to marry in Massachusetts, I watched them emerge from Boston City Hall with their pieces of paper held high. The crowd was joyful. I’m not sure I’ve ever seen quite so many people smiling quite so broadly, and no other marriage, including my own (which I took for granted), had ever seemed so momentous.

Wendy Kaminer is a lawyer, writer and free speech activist. Her latest book is Worst Instincts: Cowardice, Conformity, and the ACLU. (Buy this book from Amazon (UK).)

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Topics Politics


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