New Jersey started allowing same-sex marriages on Monday. In New Mexico today, the state Supreme Court will listen to arguments on whether same-sex marriages should be allowed, a case that was triggered by a clerk in one of the counties unilaterally deciding to issue marriage licenses to such couples.
Moves are underway in states such as Oregon, Pennsylvania, Hawaii, and even Bible-belt Tennessee to allow such marriages.
What is interesting with the issue of same-sex marriage is that approval rates for such marriages have shot up ahead of the actual granting of such rights and have been one of the driving forces behind it.
Contrast this with inter-racial marriage where I learn (via Atrios) that although bans on inter-racial were ruled unconstitutional in 1967 in the famous Loving v Virginia case, approval of such marriages did not reach 50% until as later as 1997.
One of the important contexts for that stat, Mano, is that the courts have a deferential mode of analysis on race that doesn’t apply to sex or gender or sexual orientation. Thus the courts weren’t going to rule favorably (at least the federal courts weren’t, and at the state level the general tendency against would be unevenly distributed since jurists weren’t selected on this issue and thus you might have clusters on individual courts that might -- c.f. Massachusetts -- but the vast majority of state’s courts would also decline) unless and until public opinion found that this was a case of, to use the Canadian phrase, “fundamental justice”.
The courts had precedent in ruling on racialized rights violations despite popular opposition. They have been much more careful on gendered and sexed rights violations. The community awareness of this led to a proactive education/persuasion campaign.
There are reasons not to do this, and they played heavily in the role of Houston and his proteges (e.g. Marshall). One was that the technology for popular communication was much more limited at the time. They would have had to first gain access to the elite broadcasters, then convince them, then persuade them that the cause was worth upsetting advertisers, then design the campaign, then implement it, then wait for it to take effect. All this is very different in today’s online world, esp with google ads and streaming video -- neither of which were available to the masses in 1997.
It made sense for Houston and Marshall and their colleagues to go after the violations directly in court. The plain meanings of the 14th’s provisions (and its legislative history) made them believe that they could create scenarios in which honorable judges would have no way out but to rule in their favor. Moreover, they engaged in a strategy of education anyway…but it was education within the legal community. There’s a reason that ex rel Gaines v Canada comes before Brown v Board of Education, Topeka Kansas. It took law review articles, conferences, many, many years of work to lead up to Brown. I think that they felt it would take longer to try to persuade the general public. Likely it would have.
On the contrary, the 14th’s application to sex and gender has not been considered obvious. While protections for sexual orientation, I believe, logically flow from sex & gender protections, that doesn’t mean that it’s going to be easy to convince a court that has been dubious of sex & gender protections from the get go and can’t be cornered with the obvious legislative history of the 13th, 14th, 15th, & 19th amendments. In fact, the very need for the 19th is proof to many originalists that sex & gender protections shouldn’t be inferred from the 14th. Moreover, the limited rights guaranteed by the 19th give those who would like to limit sex & gender freedoms a reasonable argument for confining equality to the voting booth.
There is, therefore, a much greater challenge in using the Houston/Marshall strategy in the context of queer rights.
Because of all this, you got a concentrated public campaign to change the minds of the public. Yes, there have been law journal articles and conference presentations as well, but media initiatives have been a core part of the queer rights strategy for very significant reasons.
To be perfectly honest, I don’t care if someone hates me so long as they don’t violate my rights. I don’t think I can be reasonably said to hate anyone -- not even my abusive ex. But I certainly hate a number of ideologies and the behaviors and institutions that perpetuate them. But I don’t use violence against those people to change their behavior, nor do I attempt to change the law in such a way that their behaviors ***other than tolerating my rights, defined as comparable to rights guaranteed with respect to race, religion, and legal status of being a man or a woman*** make them vulnerable to the coercive power of the state.
I demand no more of them: they can feel free to hate me, but denying benefits of government and/or imposing punishments using the force of government merely for engaging in behaviors that identify me as queer or trans (such as, **trigger warning** actually kissing my partner on the lips when I drop her off at a conference) should be off the table for them as much as it should be off the table for me to use the political process to attempt to deny them government benefits or impose upon them using government force.
Nonetheless, actual persuasion of the persuadable public is necessary to get the courts on the side of justice here. Top this off with the fact that it is much easier to hide being queer than being, say, Black. This meant that although traveling elite corridors came with hidden, unjust costs, it was indeed possible for queer people to be media executives in 1980. While it wasn’t possible to create Will & Grace in 1980, people with the talent and money and access necessary for media campaigns existed, just waiting for enough safety to be able to create them. This was an advantage over civil rights activists of Houston’s era even before the internet made possible bypassing broadcasters’ monopoly on mass communication.
Given the greater human ability to execute such a strategy, the greater technological possibilities for implementing such a strategy, and the greater need for such a strategy given the legal system’s consensus that violations of gendered rights were quite commonly justifiable, even if not every such violation was justified, it is entirely unsurprising to me that such a campaign for changes in common thinking took place, and even less surprising that it is being effective before SCOTUS endorsed any limited right *of* marriage, much less a right *to* marry. Indeed, SCOTUS was waiting for exactly those changes.
Is gay marriage approval going to overtake interracial marriage approval?!
@doublereed:
In the US? Almost certainly.
That means there will be a significant portion of people like “Yea sure two guys can marry. That seems pretty okay with me, but those black guys gotta stay away from our white women!”
That’s just seems head-tiltingly confusing. Like anachronistic.
Think “purity of the race” crap:
If you forget the horrific eugenic aspects of racism, it does seem odd. When you include permanently changing the demographics of the next generation, though…
Oh sure, obviously you can be racist and not homophobic. But to have a significant portion of the population, like 1% or 2%, that seems pretty nutsy. I mean people who are into the eugenics stuff have a tendency to apply that logic to homosexuality just as much, even if it doesn’t make much sense.
I guess we’ll just have to see. Bets, anyone?
Much thanks for this great analysis.
What about interracial gay marriage approval?
Two old favourites:
http://www.robynochs.com/resources/marriage/images/sanctity_of_marriage.jpg
http://nick2600.files.wordpress.com/2012/01/sanctity-of-marriage.jpg
And a new one that also makes the point:
http://2.bp.blogspot.com/-5PXg0ltbHZ0/T-ckGayIUII/AAAAAAAAC9c/aPXWuT2GRMM/s640/marriage+comic.jpg