March 28th, 2013
Time magazine this week celebrates, “Gay Marriage Already Won!” Okay, I added the exclamation point, but the cover goes on to explain that “the Supreme Court hasn’t made up its mind — but America has.” David Von Drehle writes in his cover story:
According to a recent survey by the Pew Research Center, 1 in 7 American adults say their initial opposition to same-sex marriage has turned to support. The picture of a nation of immovable factions dug into ideological trenches is belied by this increasingly uncontroversial controversy. Yesterday’s impossible now looks like tomorrow’s inevitable. The marriage license is the last defensible distinction between the rights of gay and straight couples, Cooper told the Justices as he steeled himself to defend that line. But most generals will tell you that when you’re down to your last trench, you are likely to lose the battle.
What’s most striking about this seismic social shift — as rapid and unpredictable as any turn in public opinion on record — is that it happened with very little planning. In fact, there was a lot of resistance from the top. Neither political party gave a hint of support before last year, nor was marriage part of the so-called homosexual agenda so worrisome to social-conservative leaders. For decades, prominent gay-rights activists dismissed the right to marry as a quixotic, even dangerous, cause and gave no support to the men and women at the grassroots who launched the uphill movement.
Victory has a thousand fathers, which is why its so easy to forget how very reluctant many gay rights groups were to engage this battle early on. We’re all guilty of this forgetfulness. Even me. As I set down to write about this Time cover story, I decided to go back through the BTB archives to pull out the posts where the gay rights orgs were lined up in opposition to Americans for Equal Rights’ announcement that they had hired Olson and Boies to challenge Prop 8 in Federal Court, only to discover — because I’ve long since forgotten — that I had initially opposed the lawsuit. Worse, I actually wrote this, quoting from a Freedom to Marry press release: ”But I do think that the LGBT advocacy groups’ advice is what we need to heed now: ‘Rather than filing premature lawsuits, we need to talk to our friends, family and neighbors, and help them understand why denial of the freedom to marry is wrong.’”
It only too me six weeks to change my mind, which was about the same time other pro-gay groups were trying to jump on board, mostly because they feared being left behind and thought they knew better how to handle the Prop 8 challenge than Olson and Boies. And many more minds have changed since then. The lawsuit went far better than expected — the Federal District Court trial revealed the abject legal poverty of Prop 8 supporters’ arguments, the appeals process solidified and propelled the lower court victory to the U.S. Supreme Court, where it looks like Prop 8′s eventual demise appears likely. It’s almost certain that we’re not going to get a sweeping pronouncement that gays and lesbians have a right to marry, and it’s possible that the issue of standing may wind up vacating the Ninth Circuit’s ruling, knocking it all the way back down to the Federal District level and the resulting uncertainty as to how the ruling applies statewide.
Which is to say that there’s so, so much more work to do. As Nate Silver’s projections show, we’re looking at more than a decade’s worth of a lot of hard work before marriage equality becomes a viable reality nationwide if we rely solely on the ballot box and state legislatures. As we say here in Arizona, things probably look pretty swell — in New York City, where Time is published and gays are marrying — while our ever-entertaining legislature is kickstarting an “papers please before you pee” bill in the Arizona House and our governor is fighting to strip state employees of their domestic partner’s health benefits.
In a rare moment of overly-inflated confidence, I mentioned to a friend two weeks ago one morning at breakfast that I thought that in a couples of years I might shut this blog down because we will have run out of things to advocate for. What was I thinking? For christsakes, I live in Arizona! Look around! Of course, I knew better and that moment passed very quickly, before my second cup of coffee that morning. So I understand the temptation to count our victories before they’re hatched. I do think we have turned a corner, but it’s a given in warfare that when the battle turns, the losing side fights harder and nastier. We have much to celebrate, but we also have a whole lot of work to do.
During yesterday’s oral arguments in Windsor v. US, Chief Justice John Roberts grilled Edith Windsor’s attorney on the growing support for gay rights and implied that perhaps the court didn’t need to intervene because the LGBT movement is now “politically powerful.” And it’s true that polls show that we have the luxury of time on our side. But that luxury is only available to some of us. I only wish that someone had pointed out to those nine justices that 83-year-old Edith Windsor was sitting in that court room, fighting a $363,000 tax bill today. She doesn’t have a decade to wait for the law to catch up with public opinion.