As a friend pointed out to me, this is perhaps the longest NY Times editorial we've ever seen. Took up just about all of the editor's column on Sunday.
March 7, 2004
The Road to Gay Marriage
When Massachusetts' highest court ruled that gays have a right to marry, it opened a floodgate. From San Francisco to New Paltz, N.Y., thousands of gay couples have wed, and the movement shows no sign of slowing. There has been opposition, from the White House down, but support has come from across the nation and the political spectrum. Arnold Schwarzenegger, the Republican governor of the most populous state, said it would be "fine" with him if California allowed gay marriage. The student newspaper at Baylor, the world's largest Baptist university, ran a pro-gay-marriage editorial.
At an anti-gay-marriage meeting in Washington last week, Senator Bill Frist, the majority leader, warned that the "wildfire" of same-sex marriages will spread unless opponents mobilize. But even if they do, it is unlikely gay marriage can or will be halted. Opponents are pinning their hopes on a federal constitutional amendment, but even many Americans who are skittish about gay marriage do not want to enshrine intolerance as one of the nation's fundamental principles. The founders made it extremely hard to amend the Constitution, and it is unlikely this effort will succeed.
With allies in the White House and both houses of Congress, gay marriage opponents want the issue decided in Washington. But it appears we are embarking on 50 national conversations, not one. Following the lead of Vermont, which has civil unions, and Massachusetts, other states will weigh what rights to accord same-sex couples, and how to treat marriages and unions from other states. When the federal government does act, it is likely that, as with the Supreme Court's 1967 ruling on interracial marriage, it will be to lift up those states that failed to give all their citizens equal rights.
The idea of marriage between two people of the same sex is still very new, and for some unsettling, but we have been down this road before. This debate follows the same narrative arc as women's liberation, racial integration, disability rights and every other march of marginalized Americans into the mainstream. Same-sex marriage seems destined to have the same trajectory: from being too outlandish to be taken seriously, to being branded offensive and lawless, to eventual acceptance.
The Flood of Gay Marriages
The television images from San Francisco brought gay marriage into America's living rooms in a way no court decision could. Mayor Gavin Newsom's critics called his actions lawless, but the law was, and still is, murky. When California's attorney general asked the State Supreme Court to address same-sex marriage, it declined to stop the city from performing the ceremonies right away, or to invalidate those already performed. When New Paltz's mayor began performing same-sex marriages, New York law seemed similarly uncertain.
The rebellious mayors have so far acted honorably. Testing the law is a civil rights tradition: Jim Crow laws were undone by blacks who refused to obey them. Visible protests of questionable laws can, as the Rev. Dr. Martin Luther King Jr. wrote in "Letter From Birmingham Jail," "dramatize" an issue so "it can no longer be ignored." The mayors have succeeded in dramatizing the issue. But for them to defy court orders requires a far greater crisis than is present here. If courts direct officials not to perform gay marriages, they should not.
The Role of `Activist Judges'
Opponents of gay marriage have tried to place all of the blame for recent events on "activist judges." Senator John Cornyn, a Texas Republican, has called for a Congressional investigation of "judicial invalidation of traditional marriage laws." The judiciary, however, is only one part of a much larger story. Gay rights and gay marriages are being driven by an array of social forces and institutions. In California, the driving force has been an elected mayor, with the support of his constituents. In that case, it is gay marriage opponents who are asking judges to step in.
To the extent that the courts do have a leading role, it is perfectly natural. Gay marriage opponents like to portray judges as alien beings, but state court judges are an integral part of state government. They were elected, or appointed by someone who was. The founders created three equal branches, and a Constitution setting out broad principles, at both the national and state levels. Courts are supposed to give life to phrases like "equal protection" and "due process." Much of the nation's progress, from integration to religious freedom, has been won just this way.
The Emerging Legal Patchwork
As more courts and legislatures take up the issue, the rules for gay civil unions and marriages will most likely vary considerably across the nation. More states can be expected to follow Vermont's lead and allow civil unions that carry most of the rights of marriage. Others may allow gay marriage. This is hardly unusual, since states have historically made their own marriage and divorce rules. Currently, some people, such as first cousins, can marry in some states but not others.
The last great constitutional transformation of marriage in this country, the invalidation of laws against interracial marriage, moved slowly. In 1948, California became the first state in the nation to strike down its laws against interracial marriages. It was not until 1967 that the Supreme Court held Virginia's law unconstitutional, and created a rule that applied nationally.
The Battle for Interstate Recognition
Popular attention is now on wedding ceremonies for people of the same sex, but a no less important issue is whether states will recognize gay marriages and unions performed in other states. In 1996, Congress passed the Defense of Marriage Act, which says no state can be forced to recognize gay marriages. But the law has not been tested, and it should eventually be found to violate the constitutional requirement that states respect each other's legal acts. As a practical matter, the nation is too tightly bound today for people's marriages to dissolve, and child custody arrangements to change, merely because they move to another state.
Whether or not they have to recognize other states' civil unions and gay marriages, states clearly have the option to. Whether they will is likely to be the next important chapter of the gay marriage story. Couples who are married or who have civil unions will return to their home states, or move to new ones, and seek to have their status recognized. Attorney General Eliot Spitzer of New York, in an opinion last week, strongly suggested New York's law requires it to recognize gay marriages and civil unions entered into elsewhere. At least one New York court has already reached this conclusion.
Final Destination
The controversy over same-sex weddings has obscured the remarkable transformation in opinion over civil unions. Less than 20 years ago, the United States Supreme Court enthusiastically upheld a Georgia law making gay sex a crime. Last year, the court reversed itself, and a national consensus seems to be forming that gay couples have a right to, at the least, enter into civil unions that carry the same rights as marriage. Even President Bush, who has endorsed a constitutional amendment to prohibit gay marriage, has suggested he had no problem with states' recognizing civil unions.
Civil unions, with rights similar to marriage, are a major step, but ultimately only an interim one. As both sides in the debate agree, marriage is something more than a mere bundle of legal rights. Whatever else the state is handing out when it issues a marriage license, whatever approval or endorsement it is providing, will ultimately have to be made available to all Americans equally.
To the Virginia judge who ruled that Mildred Jeter, a black woman, and Richard Loving, a white man, could not marry, the reason was self-evident. "Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents," he wrote. "And but for the interference with his arrangement there would be no cause for such marriages." Calling marriage one of the "basic civil rights of man," the Supreme Court ruled in 1967 that Virginia had to let interracial couples marry. Thirty-seven years from now, the reasons for opposing gay marriage will no doubt feel just as archaic, and the right to enter into it will be just as widely accepted.
