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 Acceptance for gay people is moving so quickly that Klarman's book was out of date even before it hits bookstores.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.