Gay Old Times

When reason's January 1996 issue went to press, Hawaii was on the cusp of become the first state in the union to recognize same-sex partnerships. In "Gay Rites," David Link analyzed the situation in Hawaii and proposed a nationwide push for civil unions, in part because the idea that gay couples would win the full right to marriage seemed so impossibly ambitious and remote at the time. And he was right to be pessimistic in the short run. In September 1996, President Bill Clinton signed the Defense of Marriage Act, which essentially eliminated the possibility that gay marriage would be legalized in one fell swoop at the federal level.

"Even a court victory in Hawaii could ultimately be short-lived," Link wrote. He outlined a scenario that was very close to what actually happened in Hawaii, a story that soon repeated itself in other jurisdictions around the nation: A court rules the state's gay marriage ban unconstitutional, and the state amends its constitution to explicitly ban same-sex marriage and/or marriage-like institutions.

But in arguing for civil unions, Link also articulated the driving principle behind the slow-but-steady, state-by-state slog toward legalized gay marriage: "If Hawaii wants to recognize relationships that South Carolina wouldn't touch with a 10-foot pole, why should South Carolina or Washington, D.C., care?" In a surprising success for federalism, those are the terms on which the debate has played out. As of January 2010, Massachusetts, Connecticut, Iowa, and Vermont, plus the new additions of New Hampshire and the District of Columbia, recognize and permit same-sex marriages.

California permitted same-sex marriage from June 16, 2008 to November 4, 2008. (In June the California Supreme Court ruled that a ban on such marriages violated the state constitution, but a ballot initiative in November reversed the ruling. Various challenges are pending, but the marriages performed during the five-month period before the new ban took effect remain valid.) New York recognizes gay marriages performed elsewhere. Meanwhile, 30 states have passed constitutional amendments banning gay marriage within their borders.

While progress can seem excruciatingly slow for gay couples stuck in legal limbo, the drawn-out process has allowed time for the consensus on gay marriage to shift. More people still oppose gay marriage than support it. But two-thirds of Americans opposed recognition of gay marriages in 1995. Today that figure hovers just above 50 percent. As one generation supplants another, opposition is likely to keep shrinking: According to a July Gallup poll, 61 percent of 18-to-29-year-olds support gay marriage.