I loved the Ninth Circuit decision yesterday, in part for all the reasons Garrett Epps outlines so brilliantly here. It was perfect. It didn't overreach. It was confined to California's very peculiar circumstances. As I wrote in The Nation last year, this is precisely what the LGBT advocates have been privately hoping for: a decision that did not make the broad claim that same-sex couples have a right to marry in every state across the country. The LGBT legal groups won't tell you this openly, but what they really want is for the carefully planned Gill, Pedersen, and Windsor challenges to the Defense of Marriage Act (DOMA) to hit SCOTUS first. Those cases don't ask for a federal ruling on our right to marry. Rather, they say: States have already declared these couples married. That's what states do. The federal government doesn't get to pick and choose which marriages it wants to recognize.
So I've been hearing from nongay supporters of LGBT rights who ask: Why not? Why didn't you want a big, broad win? Isn't this disappointingly narrow? Why not aim at a grand win up top, granting marriage rights broadly and ending this whole silly debate once and for all?
Let me explain, first, my real feelings about this and then the broader strategic considerations.
My feelings: The goal isn't a win imposed from above that would set off a cultural civil war. The real goal is to be able to live freely and openly in our communities—to win American hearts and minds, bit by bit, so that we are treated as boring and ordinary human beings. We want to effect that deep cultural change so that the next generations of LGBT young'uns aren't treated the way we were as young'uns. We want the end to "that's so gay" as an acceptable slur. When, at 15, I first realized that I wanted to kiss a girl (yo! you know who you are!), I was horrified and despaired. I was already a weirdo in my semi-rural exurban high school, too mouthy and brainy and imaginative; I did not want to be an outsider in yet another way.
I want the next generation of girls who first realize they want to kiss girls to have no more feelings about it than girls who realize they want to kiss boys.
You can't win that kind of personal change in the abstract, on paper, through a court decision. Internally, the LGBT communities have had many arguments about whether we will win marriage after attitudes change, or whether attitudes will change after we win marriage. Here's what I believe: Those two things come together. You get as far as you can get person by person, partly because you're also pushing the legislative or case-law change. Then, once you win the law or court decision, seeing married lesbians and gay men changes the minds of those other folks who rarely if ever think about gay issues.
Most legislative or court wins have to be held at the ballot box. Doing that requires tens of thousands of conversations, Thanksgiving-table activism: Pass the cranberries, Mom—Karen and I want to get married. Being casually out within your family and neighborhood lets your nephews and cousins and neighbors realize you're cool, so that they advocate for you in high school and hold signs for you. That kind of change can only happen locally. It might take organization and support by national groups, but local LGBT groups are the ones that have to talk to those families and neighbors. National organizers or faraway judges sound like interlopers forcing a strange agenda onto your community. Lasting social change comes when someone on the fence talks to their cousin Malika or Bubba or someone who looks and sounds like Malika or Bubba. It's hard. It takes a lot of paid organizing and individual courage. But that's how the world really changes. I know this seems easy for me to say. I'm in Massachusetts. We won already. But I do believe it.
Now the broader strategic concern: The Supreme Court doesn't like to initiate big change. It likes to put its stamp of approval on big changes that are almost complete. Its decision in Loving v. Virginia, which in 1967 struck down bans on interracial marriage, came after many other civil-rights wins in states, courts, and Congress. Most states had already repealed their interracial marriage bans; only 16 remained. The nation had already sided with civil rights emotionally, even if opinion was still against mixed-race marriage (cf. "Would you want your daughter to marry one?"). In fact, Loving came 19 years after the California Supreme Court was the first state high court to strike down its own anti-miscegenation law, the beginning of the end of those laws. Nineteen years from one state to nationwide sounds about right to me.
Marriage equality is very new, historically. Vermont's civil unions were furiously debated in 1999. Massachusetts got marriage in 2004. Nationwide, we've only just cracked into the positive poll numbers this year. Some regions approve overwhelmingly—Massachusetts's approval is about 60 percent as of September 2011—but other regions still think we herald the Antichrist. (Guess which regions?)
A majority of states still have statutes or constitutional bans on performing same-sex marriages or recognizing those of other states' same-sex marriages, passed as part of the anti-gay panic in the 1990s. Only six states and D.C. currently perform same-sex marriages. Yes, that's changing, steadily. Within a year or two we should have four to six more. Give us five years, and we'll have started to peel back the anti-marriage laws. In fewer than ten years, Evan Wolfson says—and he's been right up till now—we will have won marriage in a majority of states and repealed or overturned the national DOMA. In fact, he believes we will have marriage nationwide in a decade.
Internationally, only ten countries perform same-sex marriages—my favorites are Spain, Portugal, and Argentina—although many more have intermediate recognitions that are comparable to civil unions. Within ten years, I bet those will include all the developed nations and several more in Latin America.
That would be a good time to ask the Supremes to come in and sweep the laggard American states into line, as it did with Loving and with Lawrence v. Texas, which struck down remaining state anti-sodomy laws (although the latter should have come earlier, with Bowers v. Hardwick). They don't want to repeat Roe (whether or not it's true that Roe set off the abortion culture wars, which I know is disputed).
If by some chance the Supreme Court decided, today, that same-sex couples had a right to marry, I could see an enormous outcry and a push for a federal constitutional amendment that would ban it. Even if it lost, that would be a nightmare. I've lived through that level of hatred and bile before. I do not want to live through another pogrom. I know people who, as children, were living with gay parents during anti-gay panics and had night terrors that the police were going to come take their parents away. I do not want my son listening to that crap.
We're going to win. But let's do it right.
Meanwhile, check out a scene or two from Guess Who's Coming to Dinner:
Side note: In related news, Virginia has one of the nastiest super DOMAs and a scary collection of anti-gay laws. Call me crazy, but I honestly get nervous setting foot in the state; God forbid something should happen to me, and my wife would be banned from visiting my hospital room or directing my care. I know there are federal directives, I know that northern Virginia is supposed to be practically Cambridge, but that Langbehn case scared the piss out of me. I'll see y'all in the District or in Maryland.