Power in a Same-Sex Union

How the fight for gay marriage transformed the gay rights movement.

From the Closet to the Altar: Courts, Backlash, and the Struggle of Same-Sex Marriage, by Michael J. Klarman, Oxford University Press, 288 pages, $27.95.

Politics blends pragmatism and ideology to the point where it is sometimes impossible to separate ethics from tactics. This is certainly the case in the campaign for gay marriage, as Michael J. Klarman illustrates in his new book From the Closet to the Altar.

Klarman is a constitutional law scholar at Harvard, and his book has the dry nuts-and-bolts affect you'd expect from a legal academic. Yet it's hard not to be swept up in the almost miraculous narrative embedded in his dispassionate prose. In 1957, the ACLU—that's the ACLU—considered homosexuals "socially heretical or deviant" and saw laws punishing them as both warranted and constitutional. A little over a half century later, 70 to 80 percent of Americans support legislation guaranteeing nondiscrimination in employment to gays and lesbians. Acceptance for gay people is moving so quickly that Klarman's book was out of date even before it hits bookstores. "Obama is unlikely to endorse gay marriage before the 2012 election," it predicts. When you can't safely bet on the cravenness of politicians, you know that something unusual is going on.

Given the pace of change, it's hard not to view the gay rights struggle as one of nearly unparalleled success. Yet Klarman perceives several setbacks and missed opportunities. While overwhelming majorities of Americans support equal treatment for gays and lesbians in employment, for example, Congress has not passed a law making discrimination on the basis of sexuality illegal. Klarman suggests that this is in no small part due to the fact that the issue of gay marriage has so thoroughly dominated discussion of gay rights for the last quarter century.

In 1993, Hawaii’s supreme court declared in Baehr v. Lewin that denying marriage rights to gays violated the state constitution. Hawaii was probably the most liberal state in the nation at the time in terms of its attitudes towards gays, yet even here, as Klarman says, gay marriage in 1993 was a radical innovation. Polls showed that Hawaiians opposed gay marriage by as much as 3 to 1. Baehr energized that opposition, which reverberated throughout the country as other states scrambled to pass legislation that would keep them from having to recognize gay unions solemnized in Hawaii. Even in Hawaii itself, the backlash triumphed; by the end of the decade, the state had passed a constitutional amendment limiting marriage to mixed sex couples.

Baehr, and the backlash to Baehr, set the stage for the next two decades. Gay rights proponents were not infrequently successful in court—in Massachusetts in 2003, for example, Goodridge v. Department of Public Health required the state to recognize gay marriages. But same-sex marriage was so unpopular with the electorate that court victories often sparked successful efforts to amend state constitutions, among other stinging electoral defeats. From California to Iowa, gay marriage was defeated every time it came up for a referendum. The power of the issue energized Republicans, who were relatively united in opposition, and confounded Democrats, who were hopelessly divided.

Opposition to gay marriage was a huge factor in turning out the evangelical vote in 2004, where Republicans worked hard to get the issue on the ballot in swing states. Like other commenters, Klarman argues that same-sex unions may have enabled Bush's victory in Ohio, and thus in the election. In particular, Bush's supporters targeted black Ohio churches, which (like religious groups in general) tended to be especially opposed to gay marriage. Bush's percentage of the black vote in Ohio went up 7 percent from 2000 to 2004—enough to hand the state to the Republicans. Because of his victory, Bush was able to appoint Samuel Alito and John Roberts to the Supreme Court, appointments which may well considerably delay federal legal acknowledgement of gay and lesbian unions.

And so, Klarman argues, the focus on the extremely controversial issue of gay marriage may have materially hurt the cause of gay rights—by derailing other legislative initiatives, by prompting states to pass hard-to-repeal constitutional amendments, by damaging the Democratic coalition, by changing the make-up of the Supreme Court. Same-sex marriage in Hawaii and elsewhere was initially pushed by individuals and by local groups. National advocacy organizations preferred to focus less on the libertarian goal of freedom to marry and more on egalitarian efforts such as employment discrimination legislation or AIDS research; they might also have fought for civil unions rather than marriage, to avoid the predictable and overwhelming backlash. Many queer people, for that matter, strongly rejected marriage, seeing it as an oppressive, patriarchal, and conservative institution.

And yet…is it really possible to say that the gay marriage movement has been misguided? As Klarman notes, the image of gay couples lining up to be married, looking for all the world like any other couples in love, has been an enormous force for gay acceptance. Klarman points in particular to the widely publicized image of 11-year-old McKinley BarbouRoske celebrating her parents victory in their gay marriage case in Iowa. As Klarman says, "one can only guess how many people have changed their attitudes toward gay marriage after experiencing gay married couples as good neighbors or as parents of well-adjusted children."

Klarman's analysis makes it clear that a different path for gay rights, less focused on marriage, could have had effects many activists would welcome. But surely there would have been losses as well. It's true that the civil rights movement did not early on prioritize the extremely controversial issue of interracial marriage. But then, interracial marriage wasn't necessarily central to the experience of most black people, who were discriminated against first because of the color of their skin rather than because of who they chose to marry. For gays and lesbians, on the other hand, who they love is precisely why they are targets of prejudice. That's part of why same-sex marriage is so incendiary—and perhaps also a part of why it has had such transformative power. In less than a lifetime, gay marriage has gone from an impossibility to a near-future nationwide probability. Ethically or tactically, that's a hard outcome to regret.

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  • Fist of Etiquette||

    And so, Klarman argues, the focus on the extremely controversial issue of gay marriage may have materially hurt the cause of gay rights...

    No doubt, but the (what I'm told are) meager legal and financial benefits of state marriage recognition don't appear to be the point. Gays who argue for legal recognition see a marriage license as proof of societal acceptance. That's how activists generally think, that if you get the courts and legislatures to acquiesce then the battle is won. But as this article relates, that's seldom the case. It's an unnatural progression, for people to have their beliefs changed by force.

  • ||

    We're all with you, FoE. But, consider this. We are free. We have a marriage certificate, and the means to marry where we will. We have escaped permanent exile in Provincetown. You have defeated the plans of the Westboro Church. You do not need to defeat them again.

  • VG Zaytsev||

    The marriage certificate only makes it harder to end your relationship and confers some government benefits.

    I exchange for earning the enmity of large swaths of the public.

    A better course would be to secure the government privileges outside of marriage.

    Unless that is, some type of governmental validation is real point.

  • BakedPenguin||

    A better course would be to secure the government privileges outside of marriage

    Such as the right not to have to testify against your partner? Or the immigration status rights?

  • VG Zaytsev||

    Sure.

    Or eliminate those privileges for married couples.

    The rational for granting privileges like that in the first place is to subsidize family formation for child rearing.

    There's no legitimate reason to grant them for sucking someone's dick, gay or straight.

  • Jumbie||

    I think you mean large swathes of old fogies who were never going to change their minds anyway.

    Acceptance of all aspects of gay life including marriage is going up year after year, driven by demographic change as more and more young people with gay-friendlier views enter the adult world.

  • VG Zaytsev||

    Minorities are even more opposed to same sex marriage than old white people are.

    And yes, I agree that it will eventually happen but I also think that it is a bigger change to the status quo than its proponents want to admit.

  • Fist of Etiquette||

    Ellen tasks me. She tasks me and I shall have her.

  • C. S. P. Schofield||

    Who changes his mind against his will is of his old opinion still.

    (not mine)

  • yonemoto||

    exactly. I think it's telling that in the article the driving force for acceptance of homosexual couples is that they are moving in as neighbors and community members across the country (undoubtedly in places where it's not legally accepted). The driving force is not state recognition of homosexual couples.

  • Sevo||

    "No doubt, but the (what I'm told are) meager legal and financial benefits of state marriage recognition don't appear to be the point. Gays who argue for legal recognition see a marriage license as proof of societal acceptance."

    So what?
    Is that reason to deny them what you (as a third party) claim to be meager benefits?

  • Fist of Etiquette||

    I don't claim them to be meager; I'm told they are. And I would deny them to everyone. It's the true way to equality.

  • ||

    That's fine, and I do not mean to imply that you are homophobic, because I don't think you are, but since denying them to everyone is not going to happen in the world we live in, why not grant the same rights to homos--stupid, state given rights that they are--that straight people have? Isn't that better than letting them live in a marriage ghetto? Yes, I am Godwining, fuck you.

  • Fist of Etiquette||

    Everyone seems to misunderstand my arguments. I'm not against same-sex marriage (well, no more than marriage in general). I hate marriage licensing but I understand why people enjoy the benefits. I don't have much sympathy for people who think gay marriage waters down the awesomeness of their own traditional marriage licenses.

    For the record I would not vote against same-sex marriage recognition if such a referendum was put before me because, frankly, I'm pretty sure I'm more pragmatic than you. And more likeable.

  • ||

    Yes, FoE, but I'm better looking than you, and frankly, we all know that's what matters. Sometimes I wonder what it would be like to not be as pretty as I am, and then I stop thinking because that's just stupid.

  • BakedPenguin||

    FoE: You are so not my type.
    Episiarcher: I'm everybody's type.

  • BakedPenguin||

    Crap. If you want to imagine I added some emphasis to a few of those words, please do.

  • ||

    I'm my type, BP.

  • ||

    Epi is Dennis Reynolds

    "You, on the other hand, well... you're a pit of despair. FoE, you disgust me. You disgust everyone"

  • The Immaculate Trouser||

    Does that make FoE Charlie, or Frank?

  • ||

    Frank of course. Frank is the pit of despair.

  • Fist of Etiquette||

    I could definitely land a woman like Anne Archer. And I've been to Nam.

    But I'm likeable, which means I can't be from Philadelphia.

  • ||

    FoE, all you need is the DENNIS System

  • Bill||

    Was not expecting the ending as I thought he was just running a 40 or 100 or something. LMAO.

  • Ted S.||

    Yes, FoE, but I'm better looking than you

    That's not saying much.

    Of course, where Helen of Troy had the face that launced a thosand ships, I've got the face that broke a thousand cameras.

  • Virginian||

    Yeah, it is undoubtedly true that gay activists seek affirmative action and PC police for their...is sexual preference the accepted term now, or is it verboten?

    I don't care so much though. I don't know....I'm a working class white male...the government long ago decided I should be regularly fucked over and complaining about it means I'm a stupid racist. So one more group of people screaming at me to stop othering them doesn't really matter a bit.

    I'm really curious to see what the next "this is just like Civil Rights Movement!!!!!111" cause celebre for the Left is.

  • Eduard van Haalen||

    Dolphin liberation.

  • The Immaculate Trouser||

    Interspecies sexting.

  • Ken Shultz||

    It won't have anything to do with Mormons.

  • Not Equal||

  • Fist of Etiquette||

    Equality in the eyes of the state is generally desirable. The path to not playing favorites is to not hand out favors.

  • The Immaculate Trouser||

    In discussing "gay rights" in the developed world, one quickly comes to the conclusion that one is merely discussing a set of government privileges for a favored group.

    Gay couples are superficially similar to long-term heterosexual pairings; ergo, they are entitled to the set of privileges that these heterosexual pairings receive.

    Sexual identity is superficially similar to race and gender; ergo, it deserves the same employment anti-discrimination laws as those two groups.

    Nothing that today's "gay rights" movement in the US and Europe wants is about *rights*, persay -- at least, not the sort of negative rights that are important to libertarians. At best, we are talking about egalitarianism. At worst, it's about carving out an exalted place for yet another niche group at the expense of the rest of us.

  • VG Zaytsev||

    Gay couples are superficially similar to long-term heterosexual pairings; ergo, they are entitled to the set of privileges that these heterosexual pairings receive.

    Traditionally marriage exists as a sanctioned institution to promote stable families for child rearing.

    Treating same sex marriages the same as traditional marriages changes the basis of marriage from family formation to sexual satisfaction (or something). Which is an inherently unstable and inequitable foundation for a social institution like marriage.

    Once Same Sex marriages are sanctioned by the state, what is the philosophical reason to reject non sexual marriages? Two bothers or sisters for instance. Or two friends. Why limit it to two people at all?

  • T o n y||

    Similarly, why should we have granted women the right to vote, when it could very well lead to women being granted the right to eat children?

  • ||

    I think in order for that to actually be an analogy, it would have to actually parallel the original comparison. Just sayin

  • T o n y||

    So why should gay people have to answer for incestuous polyamorous asexual friend marriages before they get equal rights?

  • VG Zaytsev||

    Sexual identity is superficially similar to race and gender; ergo, it deserves the same employment anti-discrimination laws as those two groups.

    Which is none, btw.

    Adding more special classes into unjust and illegitimate government protection schemes is not the solution.

  • The Immaculate Trouser||

    That's what I was getting at.

  • Brian from Texas||

    Kinky Friedman said it best: "I support gay marriage. I believe they have a right to be as miserable as the rest of us."

  • Not Equal||

    Whenever I hear the word "equality" used in a political context, I reach for my revolver.

  • Lisa||

    I am curious about what Reason readers think about extending "the right to marry" to inter-family marriage.

  • BakedPenguin||

    Only if they're gay.

  • FD||

    I reject the implicit justification (the "yeah but" argument) excusing state intrusion.
    And I do not subscribe to the argument that, since the state is not going to curtail the unfair advantage for straight couples, the only fair avenue is to extend them to gay couples. This plays into the state's hands, the state's rules, and the manifest absurd acceptance that marriage is a state issue. (Not to mention that it is discriminatory taxation against single persons, and discriminatory taxation against those wish to have two spouses.)
    Either you are trying to smash (even little by little) this Berlin Wall of busy-bodies who demand acquiescence in my private choices, or you are caking additional cement upon it.

  • Jordan||

    If you can enter into a contract with someone, you should be able to marry them. Marriage should be nothing more than a contract.

  • VG Zaytsev||

    But marriage is not a contract between two people at all.

    It's a set of privileges and obligations imposed on third parties to benefit the couple.

  • Ken Shultz||

    What third parties are you talking about?

    I can't think of any off hand.

    What privileges and obligations?

    Seems to me those are taking on by the married couple--willingly.

  • VG Zaytsev||

    Can you and I sign a contract that forces the government to give us preferential tax treatment? or that forces the courts to exempt one of us from testifying against the other? or that forces an insurer to cover us?

    The answer is obviously no.

    Can a marriage be secret? Contracts almost always are.

    Does the government set the terms of dissolving our contract? Even to the point of limiting out ability to set the terms of dissolution?

    Contracts are formalized exchanges.
    What is being exchanged in marriage? What's the compensation?

  • Jordan||

    Notice I said it should be a contractual matter. However, the fact that the government has warped it beyond belief is not an argument for not extending the privilege to everyone. Yes, the ideal libertarian solution is to get government out of the marriage business entirely. If that's not going to happen, then it should be applied equally.

  • Jordan||

    And none of the things you listed are obligations imposed on third parties.

    What is being exchanged in marriage? What's the compensation?

    Irrelevant. Whatever the 2 parties agree to.

  • VG Zaytsev||

    It's imposed on third parties via the government.

    And you and I can agree to watch the MLB playoffs at Hooters. Our agreement does not make it a contract and their is no actionable recourse on my part if you change your mind and stand me up.

  • Ken Shultz||

    "Can you and I sign a contract that forces the government to give us preferential tax treatment? or that forces the courts to exempt one of us from testifying against the other?"

    The solution to that might be to stop discriminating against non-married couples. The solution to that isn't for the government to discriminate against same sex couples.

    "or that forces an insurer to cover us?"

    We can stop forcing insurers to do that and a whole bunch of other things anytime we like--without using the government to discriminate against same sex couples.

    Can a marriage be secret? Contracts almost always are.

    If that's something to be concerned about, we can stop requiring marriage licenses without discriminating against same sex couples.

    What is being exchanged in marriage? What's the compensation?

    That should be spelled out in a marriage contract. If you choose not to sign one and get married anyway? There probably need to be some default assumptions, right?

  • VG Zaytsev||

    I agree with you if you are saying that government should get out of the marriage business.

    I'm just pointing out that the institution of marriage as it currently exists is a basket of privileges and not analogous to a contract at all.

  • Ken Shultz||

    "I'm just pointing out that the institution of marriage as it currently exists is a basket of privileges and not analogous to a contract at all."

    And I'm just trying to say it would be better if it were a contract.

    Let the parties decide what they the contract to be, and if the government has any legitimate business in this at all, it's in enforcing the terms of that contract--just like any other contract.

  • Ken Shultz||

    There's a huge difference between the government discriminating against people and the government forcing third parties to do something against their will.

    Everybody here knows I despise bigots of all kinds: racists, homophobes, misogynists, Dallas Cowboys fans, you name it...

    But people have a right to decide who they hire; who they rent to; etc. Just because I think the reasons other people do some things are disgusting doesn't mean I'm right to impose my views on them by way of the government.

    I guess I'm just trying to say that I don't see why the government needs to get involved in deciding who businesses have to hire--just like I don't see why the government needs to get involved in deciding who people have to marry.

    Those two things look like the same thing to me.

  • VG Zaytsev||

    I guess I'm just trying to say that I don't see why the government needs to get involved in deciding who businesses have to hire--just like I don't see why the government needs to get involved in deciding who people have to marry.

    Right, which is why they should get out of it altogether, not create another protected class.

    And btw, government doesn't discriminate against gay people wrt marriage. They discriminate against everyone that's not married.

  • ||

    And btw, government doesn't discriminate against gay people wrt marriage. They discriminate against everyone that's not married.

    This is the most important to be made as it regards libertarianism and gay marriage. Pretending that marriage is hunky dory and "everybody r teh equal!11one!!!eleventy!" just so long as we extend the privilege to homosexual couples is beyond just stupid, it's willfully brain dead. It's more or less analogous to saying to black people in pre-Civil War America that, since slavery already exists, we're going to make everyone equal by extending the privilege of owning slaves to black people as well as white people. You could make some sort of fucked up case that this is "equality", but anyone with grey matter between their ears can see that it's a sham. That's not really equality. It's sophistry.

  • ||

    Hey, not all of us Cowboys fans are bigots.

    You must be an Eagles fan

  • Ken Shultz||

    Redskins 'til I die.

  • Bill||

    The team I used to root for against the Cowboys moved to the desert and so does not really exist any more (in my mind). I still hate the cowboys. The nice thing about Tony Romo is that he gives me a good reason to hate them. Cowboys fans? I feel only pity.

  • C. S. P. Schofield||

    Until we have a relatively foolproof way to read gene-sets and thus prevent unfortunate recessive gene combinations that will impose a cost on society as a whole, the broad prohibition against incest seems likely to stand.

  • ||

    If it's consensual? Otherwise, how the fuck do I know, in today's society, if you're blood related unless you tell me?

  • toolkien||

    I am anti-anti-gay. I'm not pro-gay agenda because it tends to include all the agenda of the left that tends to dominate the "cause". With gay rights tends to come use of it as a spearhead for socialistic agendas as well that I would not support. Once the State has vacated using marriage as a tool for its own ends I can fully support gay marriage like any other union. Because in a libertarian designed world, the State would not treat the members of the union any differently in matters that the State has interest in (as limited to those concerns it should have interest in) an individual's life. Once the social order aspect of marriage is deflated the members of a union is inconsequential. It is the attempt to increase the socialistic aspects of our culture, and then seek to attach them to existing conventions, and then seek to expand on whom those conventions apply seems to be the overall plan here. Do away with the socialistic expansion and conventions and everything else will take care of itself.

  • Ken Shultz||

    "While overwhelming majorities of Americans support equal treatment for gays and lesbians in employment, for example, Congress has not passed a law making discrimination on the basis of sexuality illegal."

    Couple of questions:

    1) If the overwhelming majority of Americans support equal treatment for gays and lesbians in employment (70-80 percent, you say?), then why is a law necessary?

    2) Isn't using the government to coerce people into violating their religious convictions both in violation of the free exercise clause of the First Amendment and inherently un-libertarian?

    What are you gonna do next? Stop Muslims from discriminating against pig-farmers and Christians by legally requiring them to eat pork on Easter?

  • FD||

    "...If the overwhelming majority of Americans support equal treatment for gays and lesbians in employment (70-80 percent, you say?), then why is a law necessary?"

    Precisely! And yours isn't simply a pithy 'gotcha' retort for the statists. It is at the very heart of the anti-state movement, in virtually all issues.
    Leviathan exists because the people remained silent during every small step in governmental power grabbing, as the pols and bureaucrats righteously proclaimed they should be the noble arbiter and emperor in private behaviors and private lives.

    It's none of their damned business!

  • Eduard van Haalen||

    I think the article takes too much of an either/or stance. The campaign for SSM is part and parcel of the campaign for employment-discrimination laws.

    Once the govt has issued you an SSM "marriage license," then the "antidiscrimination" and "family leave" laws kick in. Imagine a private employer telling an employee with an SSM license, "our policies don't allow you to get benefits for your spouse, since the spouse is the same sex as you," or "you can't get time off under the family leave law because your spouse is the same sex." That would be legally equivalent to sex discrimination, just like a refusal to recognize an interracial marriage.

    SSM is simply going for the gold; it necessarily involves bringing gay-married employees into "protected status" under the laws governing the behavior of private employers.

    Whoever wills SSM wills the obvious consequence - tightening the net of regulation around private businesses.

  • VG Zaytsev||

    Yep.

  • SIV||

    n 1957, the ACLU—that's the ACLU—considered homosexuals "socially heretical or deviant" and saw laws punishing them as both warranted and constitutional.

    Progresives are a lovely bunch, aren't they?

  • SIV||

    A little over a half century later, 70 to 80 percent of Americans support legislation guaranteeing nondiscrimination in employment to gays and lesbians.

    So much for freedom of association and employment at will.

  • mike c.||

    Way OT
    What do y'all think of this: http://www.kansascity.com/2012.....-vote.html

  • Skip||

    I was just watching the 2004 VP debate on C-Span and John Edwards said both he and Kerry believe marriage is between a man and woman. So saying something that the Democratic standard bearers were saying a mere 8 years ago is now considered hate speech.

  • Ken Shultz||

    No need to go back eight years. Obama changed his position five months ago.

    Five months ago Barack Obama was against gay marriage.

  • SIV||

    At least he was right on lifting the horse-slaughter ban. That was Obama's "libertarian" high water mark.

  • ||

    That and ending the manned space program and (kinda sorta, in a cronyist, GSE kind of way) farming it out to the private sector.

  • ||

    I sometimes marvel at the lack of cognitive dissonance some libertarians have when holding the simultaneous opinion that gay marriage must be legalized in order to facilitate "equality" (because an inherently discriminatory legal gift by the state to two people in a particular type of relationship magically becomes perfectly non-discriminatory by changing the configuration of the two - and only two - people upon whom the gift is bestowed; but I digress...), and at the same time oppose every legal advantage that this equality would create for the same sex couples being married. So even though you think all of the benefits that define what a marriage is from a legal standpoint are immoral uses of state power, you nevertheless support expanding this institution because... equality! I can't begin to make this compute.

  • RoninX||

    For the same reason that most libertarians wouldn't support a law that said only white people need to pay taxes.

    You could argue that this would be libertarian-ish because it would reduce the overall taxation and the size of the government. But most people, libertarians included, would consider this unfair.

  • Thomas O.||

    All I gotta say is...

    http://thomasoverbeck.livejournal.com/91455.html

    (Quite a coincidence, eh?)

  • Ballz||

    cigar smokers AND carpet munchers!

  • trythisout||

    Wow, these comments actually sound like they're coming from libertarians. Only a few months ago you could only find a few comments suggesting government getting out of the marriage business. Now we're on to something...

  • tipuasher||

    Times change and administrations change, but with his blend of political pragmatism and personal charm, Rosen has managed to remain friends with the Clintons while becoming perhaps the closest person to Bush in the Jewish organizational world.
    http://fabianzaccaria.com

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