As lawmakers geared up for the last day of the legislative session in Albany, New York, I got married a couple of blocks from the state Legislature. My fiancée and I took wedding pictures as activists on both sides of the gay-marriage debate congregated around the Capitol. The scene made for a striking juxtaposition: Alongside the joy of our wedding stood a solemn reminder that gay and lesbian citizens of the state were still excluded from a fundamental right many other New Yorkers take for granted. That discrimination ended last Friday.
The many activists who campaigned for same-sex marriage when doing so was much less popular than it is now deserve the bulk of the credit (today, more than 60 percent of New Yorkers support legal recognition for same-sex couples). But Gov. Andrew Cuomo and his predecessor, David Paterson, should also be praised for pushing the gay-marriage issue and putting it on the legislative agenda at a time when all too many Democratic leaders -- including President Barack Obama -- have been timid on the issue.
But as progressives celebrate a victory, it is important not to take the wrong lessons from the outcome in New York.
Some pundits will advance the argument -- as they did after Proposition 8 stripped gay couples of court-mandated marriage rights in California -- that New York shows the wisdom of sticking to legislative battles. But if you look at how things have played out in other states, that's not the case. New York's eastern neighbor, Massachusetts, has had same-sex marriage for nearly a decade because of a court decision, and marriage-equality rights are no less entrenched there than they are in Vermont, where they were granted by the Legislature. On the other hand, the outcome in Maine makes it clear that legislative action does nothing to insulate policy changes from backlash; in 2009, Maine voters overturned same-sex marriage rights that were granted by the Legislature earlier that year.
The immediate reaction to the New York win also illustrates that there is no formula for making same-sex-marriage rights unassailable. The National Organization for Marriage, which opposes same-sex marriage, announced a $2 million campaign to defeat key pro-marriage New York legislators shortly after the vote. Catholic Archbishop Tim Dolan compared these elected officials to North Korean dictators. The effort to turn back the clock is unlikely to succeed. But this is because the state doesn't have an initiative process that allows reactionary voters to quickly overturn a policy change -- not because the change was instituted by the Legislature.
The fact that the percent of the population with access to same-sex marriage in the United States more than doubled last week may tempt some to see the triumph of marriage equality as a foregone conclusion -- to think it will happen sooner or later. In addition, the federal lawsuit filed by well-known Bush v. Gore foes Ted Olson and David Boies, which alleges that marriage discrimination violates the 14th Amendment, will probably sway the Supreme Court's key swing voter, Justice Anthony Kennedy. Same-sex marriage nationwide may well become a reality far sooner than anyone could have expected 10 or perhaps even five years ago.
Or it might not.
The past warns against complacency. In the words of political scientists Philip Klinkner and Rogers Smith, the history of civil rights is "an unsteady march" in which incomplete victories and outright reversals are common. Both before the Civil War and after Reconstruction, voting and other civil rights for African Americans were curtailed substantially. After an initial trend of liberalization in certain states in the 1950s and 1960s, it became almost impossible to further expand access to abortion laws until the Supreme Court intervened in 1973. Public and elite opinion seemed to be turning against the death penalty in the late 1960s, but a decade later, a majority of states had the death penalty and executions were on the rise.
There is, in other words, reason for optimism, but it will still be a struggle to gain marriage rights across the country. Absent a victory at the Supreme Court, achieving recognition of same-sex marriage rights will be difficult in most of the states, and a victory in one place (however obtained) produces opposition elsewhere. Like most social-justice struggles, the fight for marriage equality will encounter many impediments. Advocates of marriage equality should not leave any viable strategy unused.
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