Month: August 2010

What backlash? CNN's latest poll, in the wake of the Walker decision, is easily the most promising to date for those of us in support of marriage rights for all. For the first time, a slim majority of all Americans backs not just marriage, but a constitutional right to marriage for gay couples. A majority, in other words, believes this to be a civil rights issue, which, of course, it is, because civil marriage has long been regarded as a fundamental civil right in American constitutional history. And a majority is in favor! I'm not sure what to make of a small discrepancy in wording – between whether gays already "have" such a right or whether they "should have" – but wouldn't go so far as Allahpundit in arguing it shows that this process should be driven solely by state legislatures.

I know it's messy, but surely the fact is that the classic American process is not, and should not be, either judicial tyranny or majority rule over a minority's rights. It's an ongoing interaction of the two. Would I prefer a total legislative and democratic victory for marriage equality? You bet I would. At the same time, can anyone gainsay our amazing progress in making the case?

In 1989, the idea was preposterous. But by relentless arguing, debate, litigation and legislative and ballot-box initiatives, we have moved the needle faster than anyone once dreamed of. When a proposition has 50 percent support, you can argue either that there is no need for the courts to act. But you could equally argue that with public support already this high, such a ruling could not meaningfully represent anything approximating "tyranny". Certainly far less so than when the courts struck down bans on inter-racial marriage which enjoyed very strong popular support at the time, especially in the states where they prevailed.

And the process of litigation – the public educative function of the courts – has clearly pushed opinion in favor over the years. Just having this issue in the public realm as one generation grew up has transformed public opinion. I see this dynamic as a distinctly American one, where the three branches of government and the people address emerging social issues in a messy, but healthy way. More to the point, those in the gay leadership (the Human Rights Campaign primarily among them) who did not want this movement, took a decade to support it, favored civil unions and domestic partnerships over an allegedly divisive call for full equality … have been proven totally wrong. Nate Silver on the accelerating support for marriage equality:

Something to bear in mind is that it's only been fairly recently that gay rights groups — and other liberals and libertarians — shifted toward a strategy of explicitly calling for full equity in marriage rights, rather than finding civil unions to be an acceptable compromise. While there is not necessarily zero risk of backlash resulting from things like court decisions — support for gay marriage slid backward by a couple of points, albeit temporarily, after a Massachusetts' court's ruling in 2003 that same-sex marriage was required by that state's constitution — it seems that, in general, "having the debate" is helpful to the gay marriage cause, probably because the secular justifications against it are generally quite weak.

That's why I was never afraid to publish and disseminate the opposition's arguments, as in my anthology, because I could see how transparently weak they are. And the notion that people cannot respond to reason on this issue, and are only motivated by animus, has simply been disproved in the last two decades.

Just look at the generation gap, or rather gulf. CNN's poll only looks at the over or under 50 issue, but there, nearly 60 percent of all the under-50s back marriage equality. Imagine what the numbers are for the under-30s. And the reason you may not be hearing more from the GOP on the subject is the remarkable alignment of Democrats and Independents on this topic – they are identical in outlook. It is the Republican party that is increasingly isolated – older, and more rural.

Of course, the same poll showed an even division on birthright citizenship and hefty opposition to the Cordoba Project. Maybe the new "other" is increasingly not the gays, but Muslims and the children of illegal immigrants. Sigh.