The Gay Marriage Juggernaut

Whenever a socially progressive cause prevails in the public square, it is described as “making history.” So the Vermont legislature made history in April, when it became the first popularly elected state legislative body successfully to alter the legal definition of marriage without being under court order to do so. For nearly a decade Montpelier had extended to homosexual couples all of the rights, privileges, and protections of marriage under the name “civil union” (though this innovation was judicially imposed). The legislators decided to take the next step and call such unions “marriages.”

This began a stampede in New England, where homosexual rights activists launched a “Six by Twelve” campaign to have all six states in the region redefine marriage by 2012. It is only 2009 and they are already five-sixths of the way there: Rhode Island is the last New England state to recognize marriage solely as a union between one man and one woman. “We can make New England a marriage-equality zone by strategically combining existing legal, electoral, and on-the-ground knowhow to fast-track marriage in every New England state,” Gay and Lesbian Advocates and Defenders (GLAD) Executive Director Lee Swislow crowed to the Washington Times in January.

Rhode Island, the sole holdout, has the highest percentage of Catholics in the nation at 63.6 percent. But Massachusetts, Connecticut, and New Hampshire are plurality Catholic. In New Hampshire and Maine, it was Catholic governors who signed legislation redefining marriage into law. The governor who vetoed marriage redefinition in Vermont—only to be overridden by the legislature—belongs to the United Church of Christ, while former Massachusetts governor Mitt Romney, a Mormon, was a leading opponent of marriage policy mischief in the Bay State.

Massachusetts came by its new definition of marriage in the usual way. In November 2003, the Supreme Judicial Court found—by a narrow 4-3 majority— that the world’s oldest operative constitution contained a previously undiscovered “right” for homosexuals to marry. Once the Goodridge v. Department of Health decision was handed down, the commonwealth’s voters lacked any easy recourse to reverse this decision. Both houses of the Massachusetts legislature must approve any constitutional amendment in two consecutive legislative sessions before it can reach the voters.

Alternatively, Massachusetts voters could have passed a ballot initiative that would have stopped short of overturning Goodridge but continued to reaffirm traditional marriage going forward. But this too would have required the intervention of the legislature in two consecutive sessions. Despite polling data that purported to show plurality and even majority support for designating homosexual unions as marriages, liberals on Beacon Hill refused to let the people vote.

Connecticut also had a state supreme court that was eager to redefine marriage and no simple process that would allow the people to undo their handiwork. After an unwieldy proposed constitutional convention failed to come together as a means of rebuffing the courts, same-sex marriage went into effect in a second New England state on November 12, 2008. Connecticut is a socially liberal state where homosexual activists could have potentially succeeded at the ballot box. But they did not wish to take the chance.

Vermont, however, did not fit the usual script. For 16 years, judges have imposed a unisex definition of marriage on an unwilling populace. Across the country, when given the opportunity to decide the issue by popular vote, the people have uniformly restored the normal order of marriage as a union between a man and a woman. Only in California had the legislature previously tried to create a “right” to homosexual marriage on its own, but the idea was successfully vetoed by the governor and rejected by the voters in two separate ballot initiatives over eight years.

The Vermont legislature’s actions gave new momentum to those seeking to legislatively redefine marriage throughout liberal parts of the country. Maine’s legislature followed suit in May and New Hampshire became the next state to recognize same-sex marriage in June. Both states had Catholic Democratic governors who had campaigned on a platform recognizing traditional marriage, but both men reneged rather than incur the wrath of liberal editorial boards.

Maine Governor John Baldacci acknowledged as he signed the bill that “in the past, I opposed gay marriage while supporting the idea of civil unions.” Then came the “but” to justify his marriage flip-flop: “I have come to believe that this is a question of fairness and of equal protection under the law, and that a civil union is not equal to civil marriage.”

New Hampshire Governor John Lynch was also against redefining marriage before he was for it. At first, it appeared he might veto a bill creating same-sex marriage anyway, because he argued that the legislation advancing in Concord didn’t offer sufficient religious- liberty protections to people who believed in traditional sexual morality. But the bill Lynch ultimately signed did little more than restate that churches and other religious bodies wouldn’t be forced to perform homosexual weddings against their will.

Then history was made in the nation’s capital as well. The Washington, DC city council first voted to recognize homosexual marriages performed in states where they are legal. Then it passed a bill redefining marriage within the federal district, with disgraced former Mayor Marion Barry casting the sole dissenting vote—a fact that speaks volumes about the dearth of support for traditional values among Washington’s political class.

LITTLE SAY FROM THE PEOPLE

For all the celebration of how democratic redefining marriage was becoming, only in Maine are the people ever likely to get a direct say in the matter by popular vote. Like Massachusetts and Connecticut, neither Vermont nor New Hampshire gives the people the ability to overturn these legislative decisions easily by ballot initiative. In Washington, DC, the city election board believed it would be undemocratic to let the people vote at all—it tossed out a proposed ballot initiative to restore traditional marriage, citing a 1977 human rights law that stipulated “the initiative and referendum process would never be used to interfere with basic civil and human rights.”

Meanwhile, the judicial campaign to redefine marriage continued to proceed apace. Iowa began its experiment in same-sex marriage in April, courtesy of its state supreme court. Liberal attorney David Boies and former solicitor general Theodore Olson teamed up to try to overturn Proposition 8, the second ballot initiative in which Californians voted against redefining marriage—this time, via state constitutional amendment. The Boies-Olson position amounts to an argument that some constitutional amendments are unconstitutional.

New York Governor David Paterson sought to expand the “marriage-equality zone” beyond New England with a bill redefining marriage in his state. A Siena College poll showed 53 percent of Empire State voters supported the legislation while only 39 percent opposed it. But a subsequent Quinnipiac poll showed the public split on the issue, with even socially liberal Republicans like former New York City Mayor Rudolph Giuliani arguing that there was greater intensity among opponents.

Call it the gay marriage juggernaut: the idea is to present the redefinition of marriage as a fait accompli, an inexorable and inevitable movement that cannot be resisted successfully. Where state legislatures approve of treating homosexual relationships like marriage, it is said to prove that same-sex marriage is the will of the people. Where homosexual nuptials must be imposed judicially against the majority’s will, it is said that we should not subject “fundamental rights” to the vicissitudes of the ballot box.

On the same day that Vermont became the first state to recognize homosexual couplings as marriage through the legislative process, headlines blared of the Iowa supreme court decision: “Gay marriage comes to the heartland,” although some polls showed just 26 percent of Iowans actually support redefining marriage in this way. An ABC News/Washington Post poll—since contradicted by subsequent polling— showed more Americans in favor of redefining marriage than opposed, touted as a national breakthrough for gay marriage in public opinion.

The libertarian journalist Ryan Sager has argued in favor of a “bandwagon effect” on the issue, where an increasing number of voters will line up behind a new definition of marriage in order to find themselves on the “winning side.” Liberal blogger and electoral numbercruncher Nate Silver built a regression model based on long-term demographic and trends which purports to show that homosexual marriage will exist in a majority of states by 2016, with only Mississippi holding out until 2024.

Sometimes the bandwagon effect will come in the form of intimidation, like the harassment campaign against Proposition 8 donors. There were organized boycotts of businesses that helped the successful California ballot initiative. Websites posted the personal e-mail addresses of individual contributors and supporters, subjecting them to abuse from homosexual activists. Other times, it comes in the form of a faltering national consensus in favor of traditional marriage.

One of the things that helped buttress that consensus was the fact that marriage was not a “red state” or “blue state” issue. When Hawaii’s state supreme court ruled in 1997 there was no rational basis for restricting marriage to opposite-sex couples, nearly 70 percent of the voters in this liberal Democratic state approved a constitutional amendment reversing the decision. By passing the Defense of Marriage Act in 1996, the federal government had already declared it would not redefine marriage or allow Hawaii to force other states to do so through the Full Faith and Credit clause of the US Constitution.

In Congress, support for the Defense of Marriage Act was overwhelming and bipartisan. It sailed through the House by a 342 to 67 vote and the Senate by 85 to 14. Senator Paul Wellstone (D-Minn.), then the most liberal member of the upper house, voted for it. Bill Clinton, who was up to that point the most prohomosexual rights president in history, described himself as an opponent of same-sex marriage and signed the bill into law. As recently as the 2008 Democratic presidential primaries, all of the candidates with a serious shot at winning the nomination said they believed marriage was between a man and a woman—including Barack Obama and Joseph Biden.

TENSIONS GROW

Some 30 states passed their own defense of marriage acts, both through their legislatures and by ballot initiatives that have passed with anywhere from 52 percent to 86 percent of the vote. They have prevailed in liberal states like Hawaii, California, and Wisconsin as well as conservative states like Mississippi. Even as Virginia trended Democratic, it passed a ballot initiative reaffirming that marriage is a union between a man and a woman.

Marriage continues to cut across party lines, with the most reliably Democratic voting bloc—African Americans— putting Proposition 8 over the top in California. But as redefining marriage has become a mainstream liberal position, polls show majorities of Democrats and Republicans hold opposing views on the issue. Former President Clinton has reversed his opposition to same-sex marriage since leaving the presidency and President Obama’s opposition is purely nominal—he favors repealing the Defense of Marriage Act, for instance.

This partisan sorting may begin to play out along state lines. The hope is to make Democratic states same-sex marriage states, reducing this to a redversus- blue issue.

Moreover, as the number of states classifying homosexual relationships as marriages grows so does the pressure on states that adhere to the traditional definition of marriage. Conflicts over marriage law will occur that judges may be inclined to resolve on a piecemeal basis in favor of the same-sex marriage states. “Say this for abortion: it’s a geographically specific event, and once it’s over, it’s over,” David Frum wrote in the Week. “By contrast, there’s nothing like marriage for generating unceasing litigation, with ramifications that are sure to cross state lines.”

Defenders of traditional marriage have been caught flatfooted by some of these developments. They have tended to prefer process-related arguments pitting voters against activist judges, rather than arguments about homosexuality or the nature of the family. But these procedural arguments do not apply in cases where state legislatures redefine marriage instead of judges.

Yet it may be too soon to call the marriage revolution “inevitable.” A May Gallup poll found 57 percent of the American people still opposed samesex marriage while 40 percent were in favor—much more support than there was in 1996, but less than in 2007. Only 13 percent thought it would make the country better off, while 48 percent said it would make things worse. Then a New York Times/CBS News poll found that support for redefining marriage had dropped 9 points in just a few short months, from its all-time high of 42 percent to just 33 percent. The marriage revolution continues to lose in every state where it is placed on the ballot, with the “People’s Veto” in Maine likely to be the next test case in November.

Religious Americans, including faithful Catholics, are beginning to discover the gay marriage juggernaut isn’t “live and let live.” If the Christian understanding of marriage ends up being treated as morally equivalent to racism, the law will increasingly treat the devout like racists. Catholic Charities of Boston has already been forced out of the adoption business for failing to place children with same-sex couples. New Jersey Methodists were threatened with the loss of a tax exemption for disallowing homosexual civil unions on their property. And Carrie Prejean may have lost a beauty pageant for tepidly opposing gay marriage, leading columnist Maggie Gallagher to describe the backlash as “the Carrie effect.”

Nevertheless, homosexual activists have a strategy for implementing their radical vision of family life while their opponents, though they achieved a recent victory in California, struggle to come up with one to stop the juggernaut nationally.