Three Observations About Obergefell
Over the past couple of weeks my computer has been in whatever magical tree the Apple Computer Elves live having its faulty inside-y bits replaced, and so this post is obviously coming a little bit late. My guess is that by now most of you are a little tired of reading about Obergefell, and for that I apologize.
Still, there have a few points I wanted to make that I haven’t seen addressed much on the intertubes, so now that I finally have my computer back (thanks, magic elves!) I thought I’d post this anyway.
In no particular order…
Point #1: The Gay & Lesbian Community Have One of the Major Political Parties to Thank for This Victory, and It Ain’t the Democrats
No, this isn’t a Slate pitch. Nor is it an attempt at conservative apologetics. Rather, it’s a hope that we all push back against the anti-conservative revisionist history that already seems to have a dominant foothold in our collective narrative. And as well, as you shall see in a few paragraphs, it is also meant to be something of a scold.
The story that I hear ourselves repeating these days is that for decades, liberals in general and the Democratic party specifically has been fighting the good fight for the rights of gays and lesbians, and that the Obergefell decision is simply the product of that fight.
This is utter rubbish.
The truth is that the fight for GL equality is not one most straight liberals and Democrats ever really wanted to be bothered with. Sure, the DNC was willing to count gays and lesbians votes and donations as part of their Big Tent for decades — but only if those same gays and lesbians stayed all the way in the back out of sight, were very quiet, and generally let straight liberals and Democrats forget that they existed. Clinton and DOMA comes to mind here, of course, but there is also this: When the whole legal and social battle surrounding SSM finally pushed its way into the mainstream conversation, it wasn’t because of the Clintons, Edwards, Gores, or Pelosis — it was because of Karl Rove and the Bush White House. Those readers that are really young will be excused for not having been around to remember this, but at the time liberals and Democrats were really miffed that Rove had put them in the position of have to publicly come out and defend gay people. And in fact, they kind of went out of their way not to do so at all until the Republican strategists’ relentlessness forced their hand (and public opinion changed).
Please don’t misunderstand. Mainstream liberals and the Democratic Party were indeed far, far more progressive than conservatives and the GOP on this issue. But also make no mistake. The battle for real sexual-orientation equality was one with which they wanted nothing to do, and but for Rove’s evil and Machiavellian hi-jinx forcing their hands, marriage would still be between a man and a woman in all fifty states and the thought that it might ever be otherwise would sound fantastical.
And I note this because I think it’s important to say this to my straight liberal and Democratic friends: When you are tempted, as you have been and surely will be again, to begin dividing up the country into Good Human Beings and Bad Human Beings over this particular issue — to insist that those who have not achieved your level of advancement should lose their jobs, be forced into bankruptcy, be allotted no dignity — you might take the time to remember that you really were just the worst possible allies and advocates for decades. There is not a single political issue I can think of that, up until maybe about 2012, you wouldn’t (and didn’t) use as an excuse to happily sell gay and lesbian rights down the river.
So if the “civil society” and “you make more friends with honey” arguments sound like so much noise when confronted with why you might not want to get out the metaphorical tar and feathers, I leave you with this hard and cold truth: You didn’t earn the right to carry that pitchfork.
Point # 2: Chief Justice Roberts Is Wrong
I am one of those people who think that Chief Justice John Roberts well knows that gays and lesbians deserve the same rights and legal privileges as everyone else. Indeed, I believe that had Kennedy broken with the conservatives at the last minute Roberts would have changed his vote.
And so I believe that it was with great sincerity and best intentions that he wrote this in his dissent:
“Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause, and they lose this just when the winds of change were freshening at their backs…
Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.”
Sincere and well intentioned though it might have been, however, I think history shows that he is entirely wrong.
As the Obergefell decision puts fourteen states’ marriage law at odds with a Supreme Court ruling, so too did Loving with seventeen. Like Mike Huckabee, those states did not go quietly into the night. Some states simply refused to comply for years, and then only because the Nixon administration forced them to do so. Even after that, states kept miscegenation laws on the books — even if their hands were tied from enforcing them — as a way to communicate what they really thought about that. The last state to actually remove their miscegenation law was Alabama in 2000, by ballot initiative. The number of people that voted against the initiative to remove the miscegenation wording — remember, this was in the year two-freaking-thousand — was a staggering 40%.
Despite all of this, however, interracial marriage today is fairly mainstream, and the number of interracially married couples increases exponentially each decade. Those who speak out against it publicly — regardless of what they may or may not do in the privacy of an Alabama voting booth — are considered pariahs by the rest of society. The change in society from the time of Loving is so great that it’s effectively changed everyone’s memories in the same way that Democrats memories are have already changed and Republicans soon will on the topic of SSM. Which is to say, everyone now who was alive at the time remembers that they personally had always been for legalizing inter-racial marriage, despite the fact that this very clearly cannot be the case.
The Supreme Court stepping in with Loving did not doom interracial marriage; quite the opposite. The same is true for Obergefell. Indeed, in the wake of Obergefell it’s interesting to note just how many of the arguments against the ruling — such as all of these, in fact — would hold up equally well against Loving.
Point #3: The View From the Tipping Point Always Appears Magical
I don’t get many predictions right, but I pretty much nailed this one.
I have steadfastly maintained since 1988 that by the time I had children who were themselves married, gays and lesbians would be so accepted in mainstream society that everyone over the age of 50 would have to rewrite their memories to the point where they believed that they had always known there was nothing wrong with loving someone of the same sex. This is because I have always believed that they only thing that forced the existence of “The Closet” was that most straight people had a very warped idea of who gay people were. As soon as they saw otherwise, I knew, everything would eventually fall into place. And as it so happened, I was standing near ground zero when a small group of Oregon conservatives inadvertently started the avalanche that would eventually bury them on this issue.
In 1988 Oregon made national headlines with Measure 8, a successful ballot initiative drafted by the far-right Oregon Citizens Alliance (OCA). The measure reversed an executive order by Gov. Neil Goldschmidt that forbid discrimination based on sexual orientation in — and only in — Oregon’s executive office. (The executive order was purely symbolic in the worst sense of that word, as there weren’t any gay executive staff to discriminate against.) The OCA soon followed their victory with Ballot Measure 9, which really made the rest of the country take note. Measure 9 was itself largely symbolic, but that symbolism was as subtle as a flamethrower.
Here is just a taste of the measure’s wording:
State, regional and local governments and their departments, agencies and other entities, including specifically the State Department of Higher Education and the public schools, shall assist in setting a standard for Oregon’s youth that recognizes homosexuality, pedophilia, sadism and masochism as abnormal, wrong, unnatural, and perverse and that these behaviors are to be discouraged and avoided.
Conservatives and gay and lesbian advocates both watched Oregon’s Measure 9 election with great interest, and the results gave each group hope. It was indeed defeated, but not by much of a margin considering the drafters’ over-the-top and incendiary wording. And thus did Measure 9 become something of a catalyst for both sides of the issue.
And I bring all of this up because at the moment it’s tempting to see what has happened in the past two years and think, “My God. How quickly this has all come to pass!” But it only looks that way because we happen to be standing on the tipping point at the moment.
In fact, thanks to Measures 8 and 9 the question of whether or not we should accept our gay and lesbian brothers and sisters into our lives just as they are has been something we have been debating loudly and frequently on a national level for over a quarter of a century. This is the way of positive social change. It takes foreeeeeeever, until one day when it doesn’t. And when that day comes, all we can do is marvel at how it seems to have happened by the wave of a magic wand.
This victory wasn’t fast. It was long, hard fought, and bloody, and it took longer than all of the US wars combined to wage. And that’s just the part that with which mainstream straights were involved; gays and lesbians have been at it far, far longer.
And as Burt has correctly noted, the battle isn’t over quite yet. But it will be.
 FWIW, I have also been saying since the the Bush Whitehouse made it a campaign issue that same sex marriages would be legal in all fifty states by the year 2020.
[Picture via Wikipedia]