But are gay activists taking the first steps toward a major expansion of freedom and equality that will culminate in a Supreme Court decision as sweeping and historic as Brown v. Board of Education, which ended segregation in our nation's public schools? Or by forcing the issue forward despite public antipathy and in the midst of a closely fought presidential race are they sowing the seeds of their own eventual defeat?
By demanding full marriage rights immediately, gays, lesbians, and their political supporters in left-liberal cities--San Francisco, Portland, New Paltz, Seattle--are bringing the culture war back with a vengeance. It is a risky strategy. If proponents of gay marriage push too hard and too fast, if they overplay their hand, the results could backfire.
Consider this possibility: A relentless push for gay marriage over the next eight months provokes a backlash from blue-collar, culturally conservative voters in key swing states like Ohio, many of whom might otherwise vote Democratic. The upshot: George Bush is reelected, resulting in a far-right Supreme Court--three or more new justices could be appointed over the next four years. That could ensure a judgment there that will set back the cause of equal rights for gays and lesbians for a generation.
Pushing the issue too aggressively now will play right into anti-gay hands. Bush, desperate to change the subject from the economy and Iraq, is searching for a wedge issue. Gay activists are handing him a potent one. It may not even take a tilted Supreme Court. Right now Republicans are just grandstanding about a federal constitutional amendment--they lack the votes to pass it--but that could change if the issue becomes more inflamed.
Winning the struggle, rather than just making symbolic feel-good statements, will require strategic thinking and careful groundwork. Right now, the timing is wrong. The planning is piecemeal. The public finds gay marriage threatening. Nationally, only about one-third of voters support it. Support for an anti-gay federal constitutional amendment is growing, hitting 59 percent in one recent survey. Many Americans would accept the interim step of civil unions, but that sentiment is being overwhelmed by the pell-mell push for full marriage.
Where the polls go, the politicians follow. The most tangible gain so far, the Massachusetts court ruling authorizing gay marriages, is under threat. If the struggle overreaches, a state constitutional amendment reversing that decision is more likely to pass. The country's most prominent openly gay politician, Rep. Barney Frank of Massachusetts, called the events in San Francisco a "diversion" that will increase support for a federal constitutional amendment barring gay marriage.
Remember, the gay marriage issue will play out on two fronts, the legislative and judicial, and on two levels, the state and the federal. Courts in liberal states are likely to be sympathetic to equal rights arguments. The trick will be to pursue gains there--as is now happening in Washington--without provoking debilitating setbacks in state legislatures or a crushing kick to the face from the anti-gay boot of Bush-Ashcroft federalism. Already, at least 20 legislatures are considering imposing or strengthening anti-gay-marriage laws.
The push for marriage rights terrifies presumptive Democratic nominee John Kerry, a friend to gays and lesbians (he bravely voted against the federal Defense of Marriage Act in 1996 despite a tough reelection battle). He is tying himself into knots on the issue, saying he would support a constitutional amendment in Massachusetts while opposing a federal one.
He should be criticized for that, but if Kerry loses, it will be a disaster for gay rights. Well-intentioned gay activists could be setting the stage not for a new Brown-style Supreme Court victory, but for a Reynolds-style defeat. Don't remember Reynolds? In the 19th century, Americans were suspicious of the sexual and marriage practices of a minority in their midst, and moved to rein them in. The controversy reached the Supreme Court in 1878. In Reynolds v. U.S. , it upheld the government's right to bar Mormons from practicing polygamy.
