Same-sex marriage efforts have taken a big hit. What went wrong, and what can be done about it
by Steve Charing
Senior Political Analyst
Senior Political Analyst
The recent spate of unfavorable court decisions concerning the drive to achieve marriage equality for same-sex couples seemingly has thrown a wet blanket over the movement. Discouraging rulings particularly in New York and Washington—both states with liberal leanings—makes some wonder if same-sex marriage will ever exist anywhere in the U.S. except for Massachusetts (and that’s not a sure thing anymore).
Activists were hoping that the judicial branch would provide relief where the legislative and executive branches have failed us so far. But with these recent decisions in a half dozen states, same-sex marriage advocates must re-group and re-think their strategy.
Despite the fact there has been a favorable trend in recent years towards acceptance of gays by the general population, it is becoming clear why same-sex marriage did not gain the necessary momentum for widespread legalization. Here are some of the reasons:
The issue jumped out in front of the education. When the Massachusetts Supreme Judicial Court ruled in February 2004 that the state’s constitution illegally discriminated against gays and lesbians by denying them marriage, the question of gay marriage was thrust into the spotlight. Before pro-marriage individuals and organizations could mobilize, opponents went on the offense and successfully framed the debate as "protecting marriage from activist judges." Marriage was a lightening rod, and the opposition was determined to make a stand.
This strategy gained traction during the 2004 presidential campaign, and constitutional amendments were placed on the ballots of 11 states to ensure that "activist judges" don’t do to their states what they did to Massachusetts. All won.
To educate the public and mitigate their reflexive opposition, same-sex marriage proponents have failed to convince the general population that marriage was more threatened by heterosexuals with their 50 percent divorce rate, adultery, children born out-of wedlock, etc. than by what gays and lesbians could ever do.
They have not sold the public that the objective was civil marriage—marriage that can be performed in city halls or by town clerks—and they were not imposing marriage rituals on religious institutions.
They have not persuaded the country that same-sex marriage was legitimate on the grounds of equality and fairness—key principles in the founding of our nation. Over 1,100 rights and benefits are being denied gay couples and families simply for being who they are.
Same-sex marriage advocates have not acceptably discredited the myth that the "one man, one woman" concept existed since the beginning of time and instead point out that the institution of marriage evolved over centuries. They failed to successfully expose those in the religious right of cherry picking biblical passages to suit their homophobic needs while they blatantly ignore or dismiss a host of other "sins" contained in Scripture.
They also haven’t sufficiently argued that marriage is not about procreation—it’s about commitment. Tens of thousands of legally married couples choose not to have children or they cannot have them. Yet their marriage licenses remain valid.
We don’t have the numbers. The lgbt community is, in fact, a tiny minority within the U.S. population. While many gay activists claim we represent 10 per cent, we’d be lucky if the actual total amounts to half of that. Moreover, the number of lgbt people engaged in the debate is even smaller. Many gays and lesbians have not been motivated to be active on this issue because: 1) they don’t see themselves as ever being in a long-term relationship; 2) those that are in such a relationship don’t care to change the status quo; 3) a large segment of the community opposes marriage and favors lesser victories, such as civil unions; or 4) they are simply indifferent on the issue or apathetic in general.
Without a significant number of supporters butting heads against a highly energized, vocal opposition, it is easy to understand why state legislators and even governors can safely oppose any drive towards same-sex marriage. It’s all about the votes and getting elected. The numbers aren’t there for us yet. We have to exceed the 50 percent threshold of pro-same-sex marriage sentiment for elected officials to take us seriously.
Judges appear to be intimidated. The judges, especially in New York and Washington states, should have ruled favorably for the plaintiffs based on, if nothing else, equal protection. However, they used tortured, bizarre rationales to strike down the lawsuits, such as procreation and protecting the welfare of children as well as citing public opinion polls on the issue. It is becoming obvious that the "activist judges" mantra is affecting their decisions for the sake of retaining power and not doing what is normally considered right.
"The way most judges see it, though they won’t ever say it, there is no point to ‘doing the right thing’ if their decision faces a veto from the people in the form of a constitutional amendment," wrote Chris Crain, executive editor of the Washington Blade. "Not only is it pointless to risk prestige and rule one way, only to see it reversed by amendment, but their authority to rule on countless other issues, including other civil rights cases and even gay rights cases, has been irreversibly undermined."
With state after state codifying their constitutions to ban same-sex couples from marrying, the momentum for a Massachusetts-style breakthrough has been thwarted at this point. We still expect an imminent decision from New Jersey, which could end this bad streak, and the case before the Maryland Court of Appeals will be heard around December. Without a favorable ruling from at least one of these states, the push for same-sex marriage will sink deeper.
What needs to be done? As Dan Furmansky, executive director of Equality Maryland, pointed out to Baltimore OUTloud, "While we're all discouraged because of the decisions out of New York and Washington State, our social justice movement must look forward and continue our work in the judiciary, in the legislature, and in our communities."
Any such movement requires strong, enthusiastic and convincing supporters. Reaching out beyond the lgbt community and forming coalitions is crucial in getting our numbers up. Politicians tend to vote to maintain their seats. Few will buck their constituencies to do what their inner conscience tells them. Therefore, getting more allies on our side is key.
A significant group is the African-American community, whose homophobic conservative ministers have hurt the cause. They should be reminded of the pro-gay stances of Coretta Scott King, Julian Bond, Rev. Jesse Jackson and Rev. Al Sharpton for example. They should also be reminded of the strong role the lgbt community played in helping to achieve civil rights for African-Americans.
As important as reaching out is, motivating our own community is also critical. If being attacked as second-class citizens doesn’t resonate, then I don’t know what will. We need to eradicate the prevailing political apathy within the community.
Get the lgbt youth to join the fight; they’re our future. Many of these young people don’t think there should be a controversy at all. Says Dan McCarthy, a PFLAG Dad from Columbia, "It gives me great solace to hear [the younger generation] talk and see them interact because it is very clear that when their generation comes to power, they will absolutely crush this discrimination against gays and lesbians and they will poke fun at us for ever debating it."
Another step is to elect gay and gay-friendly candidates and to work hard and contribute to their campaigns. Filling the state houses and governors’ mansions with allies will be a major step towards achieving equality.
This will be accomplished by educating the public on the flaws of the opposition’s arguments and the merits of our own, as outlined earlier. Separate religion from the issue as much as possible by stressing civil recognition over the religious one. Demonstrate that the children of gay couples are being victimized by homophobic politicians and judges.
Emphasize the traditional doctrine of fairness and point out how the country grew up and witnessed interracial marriages without the feared collapse of society. Criticize the religious right as homophobic bigots, which most are. Frame the issue as a civil rights matter despite what some in the African-American community contend.
And most importantly, convince the general population that gay people are a legitimate minority, that our orientation is not a choice, and that we should not be defined by perceptions and stereotypes. This is the root cause of all the discrimination against the lgbt community.
The outlook may not be that bleak. In looking at the broader picture there are other issues in which the lgbt community is realizing gains. The repeal of the widely criticized "Don’t Ask, Don’t Tell" policy for one is gaining momentum. Other states and jurisdictions are extending protections for lgbt people. Corporations and universities are doing the same. Domestic partnership benefits are proliferating.
But like any other major civil rights initiative, the quest for same-sex marriage will take time, patience and lots of effort. "Every year we are seeing that the country is on a clear trajectory towards equality as more and more Americans understand that same-sex couples and their children deserve to be treated equally under our nation's Constitution, nothing more and nothing less," Brad Luna, spokesperson for the Human Rights Campaign, told OUTloud.
"Acceptance and progress won't happen overnight; it happens in small and big steps with setbacks along the way and the recent court rulings have been a speed bump along the road towards equality."