Why Marriage

There is no escaping the fact that the advocates of marriage equality for lesbian and gay couples were trounced in the November 2004 election. Voters in eleven states amended their constitutions to prohibit gay marriage. No one expected a different outcome in inhospitable states such as Mississippi, Oklahoma, Arkansas, North Dakota, and Utah. Ten of the eleven states already had antigay marriage laws on the books. But even in Oregon, the one state where a major campaign was organized against the amendment and where activists thought it might be defeated, the amendment passed by a smaller, though still decisive, margin of 57-43 percent. Seeing a chance to turn the tide against the growing public acceptance of gay people, the Christian Right quickly mobilized to put constitutional amendments on the ballot in other states.

Although the amendments' sponsors zeroed in on (and elevated) many voters' discomfort with the idea of gay marriage, the expansive wording of the amendments exposed their broader right-wing agenda. The majority of the amendments threatened to roll back a host of policies put in place in recent years to address the needs of gay couples and unmarried heterosexual couples as well. Eleven of the seventeen states that amended their constitutions before 2005 did so with language that sweepingly prohibits any "legal status identical or substantially similar to that of marriage" (Kentucky) or "a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage" (Ohio). The broad wording of such amendments immediately jeapordized legal arrangements, including domestic partnership programs, offered by private and public employers, to unmarried heterosexual as well as gay couples, if they "approximate the . . . design . . . or effect of marriage." Only litigation will tell just how many rights these amendments will take away or preclude. But shortly after Michigan voters passed such an amendment, Governor Jennifer Granholm suspended a new labor contract provision providing domestic partnership benefits to state government employees. In Ohio, a judge threw out a domestic violence felony charge against a man who had been accused of assaulting his girlfriend, explaining that the Ohio constitutional amendment prohibited the extension of domestic violence protections to unmarried couples (other judges disagreed, and the ultimate outcome remains uncertain). In Missouri and Utah, campaigns to enact domestic partnership programs were cut short.¹ By playing on voters' unfamiliarity with the reality of gay couples' lives and repeatedly warning that the extension of marital rights to them would somehow undermine heterosexual voters' marriages, the amendments' proponents struck a major blow against policies that deal humanely with the diverse realities of families.

The decisive margins by which the amendments succeeded make it clear that the advocates of gay marriage have a rough road ahead of them. This shouldn't be surprising. Any civil rights movement that advocates major change in existing social arrangements elicits a powerful reaction. Just fifty years ago, the Supreme Court's decision in Brown v. Board of Education, which ruled that states could no longer establish racially segregated school systems, produced an even more thunderous reaction that included massive resistance by southern state governments, an upsurge in racist organizing by the Ku Klux Klan and White Citizens Councils, and heated attacks on the courts, which were portrayed as antidemocratic institutions that had usurped the popular will.

Civil rights movements are never "well timed" because any significant movement causes discomfort and dismay and gets in the way of normal politics. That's why when we look at the history of those movements, we honor the people who had the moral imagination to envision a different and more just world, and the moral courage to fight for it, even though their contemporaries thought they were dangerous upstarts, ill-advised, and impolitic at best.

Nonetheless, as a historian I am most struck by how quickly public opinion is changing in regard to the recognition of same-sex relationships. The campaign for marriage equality has not just produced a backlash. It has pushed the national conversation about gay life and equality much further forward than seemed possible just five years ago.

The dramatic shift in public attitudes was even reflected in the 2004 Bush campaign. Admittedly, this is not how that campaign is usually remembered. On the morning after President Bush won reelection, most reporters were startled to learn that exit polls showed 22 percent of voters cited "moral values" as their chief concern. Many of them took this as proof of the Christian Right's claim that a massive outpouring of new evangelical voters—outraged at the prospect of gay marriage—had turned the tide against Democratic contender John Kerry. It wasn't surprising to hear Christian Right leaders portray themselves as the leaders of a vast and newly mobilized constituency, since this claim bolstered the political clout they needed both to push their legislative agenda through Congress and to help ensure the appointment of conservative Supreme Court justices who would reverse Roe v. Wade. Their claim also generated a defeatist attitude among gay activists and divided their allies, many of whom blamed lesbians and gay men for asking for too much, too quickly. But it was more surprising to see how many reporters initially accepted the Christian Right's self-serving political spin on the election outcome and, by repeating it, gave it the status of political "fact."

In the weeks following the election, more dispassionate analysis of the vote by political scientists discredited the Christian Right's claims. For starters, the president's margin increased 2.9 percent over his 2000 margin in the 39 states without marriage initiatives on the ballot, but only 2.6 percent in the 11 states with marriage on the ballot. Even in Ohio, the hotly contested state where it initially appeared that the gay marriage referendum had tipped the election to Bush by inspiring an unprecedented outpouring of white evangelical voters, further analysis showed that the share of voters who attended church once or more a week (the best measure of voters who might be religiously inspired) declined to 40 percent in 2004, compared to 45 percent in 2000.² Although most morning-after-the-election commentators accepted the Christian Right's claim that concern for "moral values" signified opposition to abortion and gay marriage, one poll showed that 42 percent of "morals" voters said the war in Iraq was the most important moral issue influencing their vote, compared to 13 percent who chose abortion and less than 10 percent who cited gay marriage.³ This shouldn't have been surprising. One reason President Bush won such fervent support from many white evangelicals was that he framed most issues in moral terms, and he often justified the war by claiming that America was acting as God's agent to spread freedom in Iraq and throughout the world.

Even more strikingly, whatever moral values meant to voters in 2004, they were less significant a factor than in other recent elections, before marriage became a major issue and before the September 11 attacks transformed the political landscape. In 1996, fully half of presidential voters chose either abortion or "family values" as their top issues.⁴ But in 2004, security issues—Iraq and terrorism together—were cited by more voters (34 percent) than were moral issues. Whatever voters meant by moral issues, there is no reliable indication that the marriage issue played a decisive role in the election.

After all the post-election spin, it is hard to remember that the Bush campaign downplayed its appeal to the Christian Right during the election itself. Under intense pressure from Christian Right leaders, the president announced his support for a constitutional amendment, but he barely mentioned it during the campaign because his advisors realized that the issue cut both ways, and his appearing too hostile or intolerant of gay people would cost him votes.

Look at the 2004 Republican convention, which shaped the election's dynamics so decisively in the president's favor that not even his weak performance in the debates could derail him. The convention's organizers framed the election as a referendum on John Kerry's capacity to protect the country from terrorism, not as a referendum on marriage. One prominent speaker after another sought to persuade undecided voters that no matter how much they might disagree with the president on other issues (which were rarely specified but presumably included "moral issues" such as gay marriage, abortion, and the separation of church and state), they should rally around him as a resolute and forthright leader. Indeed, the convention's organizers filled prime-time television with Republican moderates like former New York Mayor Rudolph Giuliani, Senator John McCain, and Governors Arnold Schwarzenegger and George Pataki, all of whom were known to oppose the constitutional amendment endorsed by the convention platform. Georgia Democratic Senator Zell Miller and the presidential nominee himself were the only prime-time speakers who supported the constitutional amendment, and even the president's acceptance speech—like his stump speech on the campaign trail—devoted only one sentence to the issue. The sentence produced thunderous applause from the evangelicals who were primed to hear it, but barely registered with most other voters. The fear of terrorism spawned by September 11 and Republican charges that John Kerry was a "flip-flopper" who couldn't be trusted to act resolutely in a time of war dominated the convention and won the president's reelection. Kerry's refusal to take a decisive stand on the difficult issue of marriage only made him more vulnerable to the charge that he was an indecisive flip-flopper without a strong internal compass.

Other steps show how carefully the Republican ticket handled gay issues during the campaign. Two months before Senator Kerry was pilloried for mentioning Mary Cheney's lesbianism, Vice President Dick Cheney gave an emotionally compelling account of his lesbian daughter to help explain his personal opposition to a constitutional amendment on marriage and to give the Republican ticket an aura of tolerance and inclusivity that its political platform belied. In the closing days of the campaign, even President Bush sought to moderate his image by supporting the right of states to enact civil unions for gay couples, something his own platform and eight of the eleven state constitutional amendments passed on election day would prohibit.

Why? Because Bush's advisors believed that as important as it was to mobilize evangelical voters and as safe as it was to do so by emphasizing the president's own evangelical faith and use of moral language, displaying too much obeisance to the Christian Right's cultural program risked trouble.

They had reason to believe this. For three decades now, as this book shows, evangelical voters committed to "traditional family values" have played an important, but polarizing, electoral role. They were credited with helping to elect Ronald Reagan in 1980 and playing a significant role in the Republican takeover of Congress in 1994. But the organizers of this year's Republican convention kept the Christian Right out of the spotlight because they were determined to avoid the disastrous mistake of the 1992 convention, which sabotaged George W.H. Bush's reelection by giving center stage to cultural conservatives promising a "culture war" for the "soul of America." They knew full well that in the twelve years since Patrick Buchanan's harsh antigay rhetoric had frightened voters away from the Republican Party, the public's acceptance of gay people had only grown.

Indeed, while support for gay marriage remains a distinctly minority position, the more remarkable fact is that such support is growing steadily as people become more familiar with the idea and more informed about what is at stake for gay couples and their children. The seachange in public opinion has been reflected in the positions of politicians and the actions of state governments. As recently as 2000, civil unions seemed a radical idea, and Vermont's Governor Howard Dean was denounced for supporting them. But people noticed that the sky did not fall in Vermont when civil unions were established, and within a few years support for them had become a mainstream position. Every major Democratic candidate for president supported civil unions in the 2004 primaries, something that would have been unthinkable just four years earlier.

Although many observers declared that the state constitutional amendments had stopped the pro-marriage movement in its tracks, promising court cases continued to advance in California, Connecticut, New Jersey, and several other states. More telling evidence of the growing public support for gay couples was provided by several state legislatures. The legislatures of New Jersey and Maine passed laws providing a degree of recognition and security to gay couples. Then California's legislature enacted a sweeping domestic partnership law that granted registered gay couples all of the state benefits available to married couples (though, of course, none of the many federal benefits), and two years later came within a few votes of enacting marriage itself for gay couples. Connecticut's legislature, with support from the Republican governor, enacted a similarly sweeping civil union law. Early in 2005, the national governing body of the United Church of Christ decisively embraced marriage for gay couples as a religious as well as a civil matter. At about the same time, Canada and Spain joined Sweden and Denmark in granting full marriage equality to gay couples—another indication that the United States was increasingly out of step with the "western civilization" conservatives so often invoked in cultural debate.

Whether or not lesbians and gay men should be allowed to adopt children or teach them were the two most explosive gay rights issues before marriage entered the scene, as this book shows. There has been a dramatic growth in public support for gay people's right to do both, but only after a generation of debate and education eroded old stereotypes and fears. Gay marriage is a much newer issue to most people and still evokes as much uncertainty and anxiety as the idea of gay teachers and parents, or even gay characters on television sitcoms, did just a generation ago. But as people have become more familiar with the lives of their gay relatives and neighbors and more aware of the immense range of rights, protections, benefits, and obligations conferred to couples by marriage and marriage alone, they have also become more supportive of gay people's quest for legal security for their relationships. Even as voters passed antigay marriage amendments in eleven mostly conservative states on election day 2004, exit polls showed that 60 percent of voters nationwide supported either civil unions (35 percent) or marriage (25 percent) for gay couples, a 50 percent increase in support since the 2000 election. The generational shift is especially noteworthy: Americans in their late teens and twenties are four times more likely to support gay marriage than their grandparents are.

The Christian Right claims that amending the constitution serves to preserve democratic rule against the proclivities of activist judges. But, in fact, their amendments subvert the democratic process by foreclosing the national debate over marriage, which has only just begun and has already resulted in a decisive growth in support for the rights of gay couples. The opponents of the dozen amendments passed in 2004 had far too little time to present their case to voters. Amending the constitution to prohibit gay marriage would impose the more hostile attitudes of the past on the generations of the future by writing them into the fundamental law of the land.

This is precisely the goal of the Christian Right, and consequently, these are especially perilous times despite the steady growth of support for gay people and their families. Although a federal constitutional amendment seems unlikely to pass, it is all too likely that many more state amendments will pass in the next few years. Unless the gay movement and its supporters respond more effectively to this challenge, they will face a monumental new roadblock that will slow progress for a generation to come.

Still, as the passionate opposition to abortion reminds us, there's nothing like seeing your most precious moral values threatened to galvanize a movement. As the marriage debate continues, people will realize how many of the state constitutional amendments ban not only marriage but all of the rights and protections associated with marriage. Soon enough, they'll hear about a friend who cannot make medical decisions for his incapacitated partner or be with him in the hospital trauma center because the law requires them to be treated as legal strangers. Or, they'll learn that the colleague down the hall at work can't use the company's medical plan to provide health insurance to the children she is raising with her partner. Or, they'll hear about an elderly woman at church who lost her home and financial security when her partner died because the IRS wouldn't grant her a marital exemption from estate taxes, and she had no right to her partner's social security benefits.

Growing numbers of people are deeply offended, even outraged, by such injustices. Republicans risk squandering their chance of building an enduring majority if, in their eagerness to reward a core constituency—the Christian Right, they forget how quickly the public's support for full gay equality is growing. And Democrats who run away from their commitment to civil rights will demoralize one of their own core constituencies: not just millions of gay voters, but millions of heterosexuals who cherish their gay nephews, sisters, friends, and teachers, and for whom justice, compassion, fairness, and equality are fundamental moral values.

The Lawrence decision produced a thunderous outcry from the nation's right-wing congressmen and religious leaders. Above all, they feared that the decision's expansive language made marriage rights for gay couples the logical next step, as Justice Antonin Scalia warned in his scathing dissent. But Republican Congressional leaders were not just reacting to Lawrence when they hastily announced their plans to push for a constitutional amendment codifying marriage as a relationship between a man and a woman. Everywhere that spring there were signs that conservatives were losing the long-running debate over the place of gay people in society. Two Canadian provinces legally recognized same-sex marriages shortly before Lawrence was announced; the Episcopal Church risked schism by deciding to ordain an openly gay bishop; and even Wal-Mart added sexual orientation to its written antidiscrimination policy.

That November, the Supreme Judicial Court of Massachusetts cited Lawrence when it ruled that same-sex couples should have the same access to the benefits of marriage that mixed-sex couples enjoy. The contentious debate that erupted in Massachusetts over various state constitutional amendments that would deny this equality to gay couples, the decision of local elected officials in San Francisco, Portland, New Paltz, and other municipalities to marry or issue marriage licenses to such couples, the extraordinary spectacle of thousands of same-sex couples lining up to take advantage of that promise, and the equally stunning spectacle of the president of the United States calling for a constitutional amendment that would inscribe inequality into the fundamental law of the land—all ensure that the issues that dominated the summer of 2003 will continue to occupy us well past the summer of 2004. The debate is now fully engaged and has made this a decisive moment for our generation.

To casual observers, these momentous events may appear to have come out of nowhere. But in fact they have a history, and our understanding of them is impoverished so long as we ignore that history. Today's marriage debate is shaped by half a century of struggle over the place of lesbians and gay men in American society and an even longer history of evolution in the meaning and legal character of marriage itself. The gay quest for equal rights in marriage, always a contentious issue within the gay movement itself, gained impetus because of the profound changes wrought in lesbian and gay life in the 1980s and 1990s by the AIDS crisis and the boom in lesbian and gay parenting. The response to that quest was shaped by the palpable shift in heterosexual attitudes toward lesbians and gay men during the same years and by the complex and interrelated histories of civil rights, gay rights, and women's rights. No historical study can resolve the debate over marriage, but this one aims to illuminate how we came to this moment and what is at stake in this debate.