The Backlash That Wasn't

What a difference four years makes. When the Massachusetts Supreme Court ruled in late 2003 that gay couples had the same right to marry as straight couples, the nation had a collective fainting spell, and constitutional amendments affirming the super-straightness of state after state popped up like dandelions. Republican politicians tripped over each other to predict the demise of American civilization if the marriage equality outbreak were not contained, and Democrats tugged at their collars and tried to explain their nuanced and complicated positions on the issue.

Yet last week when the Supreme Court of the largest state in the union issued a similar ruling, making California the second state with full marriage rights for all citizens, the political reaction was remarkably subdued. Yes, there will be a constitutional amendment on California's ballot this November, and the campaign there will be hard-fought. But on the national level, there were no raised voices, no cries of anguish, no calls to man the ramparts -- at least none to which anyone paid much attention. All soon-to-be Republican presidential nominee John McCain could muster was a spokesperson reading from the old script, mumbling that the Arizona senator "doesn't believe judges should be making these decisions."

If you didn't know all that much about McCain you might think his muted response reflects a moderation on gay issues uncharacteristic among Republicans. But you'd be wrong. McCain's position on gay marriage is that the issue should be left to the states, unless state courts confer marriage rights on gays, in which case he would favor an amendment to the U.S. Constitution banning gay marriage. On the question of civil unions, he told George Stephanopoulos in 2006 that he isn't against them, but he isn't for them. He has indicated that it's OK with him if two people of the same sex draw up some kind of a contract together, kind of like business partners or roommates, so long as it doesn't appear that the government is giving a sanction to their relationship. And in 2006 he not only supported an Arizona constitutional amendment banning the state from giving any legal recognition to gay couples, he even appeared in ads touting the ballot measure.

Yet despite this rather clear commitment to inequality, many liberals believe that deep within his heart McCain holds moderate views on social issues, his words and deeds hiding a secret open-mindedness. In a classic of the McCain-Is-Really-A-Liberal genre, Slate's Jacob Weisberg wrote in 2006 that progressives concerned by McCain's vigorous support of the Arizona constitutional amendment "should be sophisticated enough to recognize that politics is the art of the possible, and that what's in McCain's heart on this subject (as President Bush might say) is not a viable stance for any presidential candidate just yet, especially a Republican one."

Ah yes, the contents of McCain's heart, squirreled away under a blanket of right-wing pandering. Worry not, sophisticates -- once he's president, he will reveal his true progressive self. Yeah, right.

But even if you believe Weisberg (and there's no reason to), the contents of McCain's heart could not be less relevant. This is why McCain's momentary reluctance to demagogue the gay marriage issue too loudly is so revealing: If he saw political advantage in doing so, he'd be leading the charge against the California court's decision.

McCain's image as the one politician who refuses to do things for political reasons is nothing short of comical; already in this campaign he has flip-flopped on ethanol, the Bush tax cuts, immigration, and the religious right, all in an effort to appease restive voters from his party. If he thought that taking to the barricades to defend "traditional marriage" would win him a few more votes, he'd do it in a heartbeat.

(This Sunday, Matt Bai wrote in The New York Times Magazine, "Like every politician I've known, McCain will sometimes surrender to the cheap ploy or prevarication when the moment demands it, but it is often with a smirk or a wince, some hard-to-miss signal that he knows he's up to no good." Attention, reporters: The fact that he winks at you, acknowledging that he's lying to the voters, doesn't mean he's not lying to the voters. It doesn't make him more honest than other politicians. It just means that he's letting you in on his scam. If because of that you fail to characterize his dishonesty as such, then he has just played you like a violin.)

So why is it that same-sex marriage doesn't seem to have the political potency it did just a few years ago? Obviously, with our miserable war in Iraq now in its sixth year and the economy in the toilet, Americans have more important things to worry about. But it's more than that. We've been down this road before. It has been four and a half years since same-sex marriages were legalized in Massachusetts, and for some reason the Bay State has not descended into a perverted bacchanal, families have not been torn asunder by the destructive power of these new unions, and the bonds holding society together have not been torn to shreds. Incredibly, the prophecies of doom were wrong.

In 2004, there were ballot initiatives outlawing gay marriage in 11 states. All succeeded easily. In 2006, there were eight more. But this time, one of them --Arizona's -- actually failed (despite John McCain's efforts). There is still time for initiatives to be put on the 2008 ballot, but they will likely have a much more difficult time.

With each passing year, straight Americans become more and more comfortable with gay Americans. This doesn't mean their opinions on marriage are going to be transformed overnight, but it does mean that they will be less susceptible to scare tactics.

In 1986, the Supreme Court upheld laws banning sodomy (almost never enforced against straight sodomites) in Bowers v. Hardwick. Justice Lewis Powell, who voted with the majority in Bowers, told a law clerk at the time, "I don't believe I've ever met a homosexual." What he didn't know was that the clerk to whom he was speaking was gay. Powell later admitted that he regretted his vote in Bowers, and the Court overturned the decision in 2003. There are certainly some Americans who could say today what Powell did two decades ago, but the number gets smaller every year.

More than a few conservatives will acknowledge in private that they've effectively lost the fight over same-sex marriage. Whatever the outcome of November's ballot initiative in California, civil union laws will continue to be passed state by state and will eventually be followed by laws granting full marriage rights. This will happen first in the more progressive states, then in the "purple" states of the Midwest and Southwest, and finally in the rest of country, with the conservative strongholds of the South bringing up the rear. How long it will take is hard to say, but it will happen.

Earlier this month, Mildred Loving died at the age of 68. It was only 41 years ago that the Supreme Court ruled that the Virginia law that made it illegal for Mildred and her husband Richard to wed was an unconstitutional violation of every human being's right to marry the person they wanted, regardless of the color of their skin (Mildred was black, Richard was white). At the time, their marriage was illegal in 17 states.

Back then, the American public didn't like the idea of interracial marriage, either. In 1958, 94 percent of Americans surveyed by Gallup said they disapproved of marriages between blacks and whites. Ten years later -- the year after the Loving decision -- the number had declined to a still-strong 73 percent. It wasn't until 1991 that more Americans approved of interracial marriage than disapproved. In the most recent Gallup poll on the topic, taken a year ago, the number disapproving had fallen to 17 percent.

All of which is to say that it may be some time before same-sex marriage is legal in every state and the public acknowledges that it should have been thus all along. But whether it happens in 10 years or 20 years, there will be no doubt who was right and who was wrong, who stood on the side of humanity and justice, and who stood on the side of fear and prejudice. The California ruling is one more step toward that day's arrival, and John McCain's half-hearted squawk of disapproval tells us that it is closer than we might think.

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