The Crooked Line

Ilya Somin believes that California’s marriage equality decision from last year was a net positive:

It is now fairly clear that judicial rulings have helped the cause of gay marriage in the nation as a whole. But it’s worth noting that the 2008 pro-gay marriage court decision was a net plus for gay rights even within California itself. After all, the court’s decision upholding the validity of Proposition 8 also ruled that the 18,000 gay marriages that took place in California last year remain legally valid. That, of course, is 18,000 more gay marriages than would likely have occurred otherwise. Thirty-six thousand people who now can marry their partners of choice falls short of the ultimate objectives of the gay marriage movement. But it is nothing to sneeze at. Even a pro-gay marriage decision that ultimately gets reversed can be a net benefit to the cause. That doesn’t prove that the decision was legally correct. But it is a useful point to keep in mind in assessing the effectiveness of judicial power in promoting minority rights.

That’s why I’m not as concerned by the Boies/Olson lawsuit at a federal level. It’s almost certainly premature, and will probably not get very far. But what it does is reveal, especially in Olson’s strong and inspiring language, is that this is a civil rights issue, should not be a Democrat-Republican concern, and should command the support of all decent Republicans and conservatives eager to ensure equality under the law and greater stability and inclusion for gay citizens. Maybe it’s strategically unwise. But the public impact of that bipartisan statement is real. In the long run, that matters.

Sometimes losing is a form of winning if the result is that the argument gets more play and the debate advances. I remember testifying before the Congress on DOMA in 1996.

In those days, very few of us were in the marriage movement, and the gay rights leadership wanted us to go away almost as much as the Clinton administration. We knew we’d lose the vote. And I recall the then-head of the Human Rights Campaign, Elizabeth Birch, commiserating with me in advance on having to endure “hell week.” “Hell week?” I said. “Getting to make our case before the Congress of the United States for the first time in history is hell? For me, it’s heaven.” We lost; but we won. We laid down a marker. That crooked line is how civil rights advance.

Frankly, we deserved to lose Prop 8 after that absymal campaign. We need to prove we deserve to win such a vote next time. The loss has already sharpened our arguments, deepened our resolve, and helped persuade gay people and their families of the vital necessity of marriage as a civil right. What really matters in the long run, I deeply believe, is the cogency of our case. Hearing Ted Olson make it was, for me, a wonderful experience. He gets it. More Republicans and conservatives will.