Thirty years ago, even the thought of civil unions was unthinkable. Gays were fashion designers who lived in San Francisco or the Village and spoke with a lisp, and you emerged from the closet at grave peril. The cry for equality was as compelling in the abstract then as it was now, but reality never quite catches up with theory. When a discrete and insular minority is the victim of oppression, he inevitably stands alone.
The leap from the closet to the altar is a mighty one; both society and the law which serves it tend to move in halting, uncertain steps. Knowing that, the LGBT community made a tactical decision to frame the case in terms of the need for same-sex couples to enjoy the benefits of marriage, as opposed to marriage itself: Who with even a shred of humanity left could possibly deny you a chance to bid a last profound farewell to the one you shared a life with for decades?
That argument carried the day ... and therein lies the problem.
Although I am straight and married, I have made this argument many times over the years. "Marriage" is an inherently religious concept, whereas in the secular realm, it is in substance nothing more than a default contract, written by the State. I could write a contract which duplicates it, and is as binding as between the parties. I have also said that I frankly don't give a damn what you call it, as long as third parties are legally bound to honor it.
Problem is, this argument was too successful.
Forget the equities for a minute. I have made this argument to the judges in my sphere of influence -- much as I have made the case for Obama to elderly parents who used to refer to "them dirty n*****s, back in the day. Five hundred years from now, we'll all be Calablasians, but prejudice dies hard. What makes this even harder is that now, I have to go back to the same judges -- who gave me everything I asked for, under the assurance that it was all I was asking for -- and confess that my argument was both deceptive and consciously so, and that I knew that I needed more.
In a perfect world, the argument for marriage equality is an easy one to make. The right to marry is a right that has been deemed "fundamental" (Loving v. Virginia), thereby requiring the government as a matter of law to advance a compelling state interest to restrict it. And, once that hurdle is cleared, no argument for a distinction can carry the day. As Justice Harlan (the elder) reminds us:
But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color [or gender preference] when his civil rights as guarantied by the supreme law of the land are involved.
Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting; emphasis added).
But this is not a perfect world, nor is it likely to become one in the foreseeable future. Those who were persuaded by my arguments -- many viewing marriage as a purely religious sacrament -- are motivated not by bigotry or fear, but by a need to "defend their faith." The world of religion is, by its very nature, the realm of the irrational (even the Apostle Paul said as much). I would respectfully submit that much of the resistance in the California electorate lies here.
While the righteous anger in the LGBT community is as understandable as it is palpable, I am mindful of the well-worn maxim, "React in anger, repent at leisure." We need to articulate a narrative separating persuadable moderates from fire-breathing religious zealots -- and if there is something in the body of Proposition 8 that would necessarily in actual discrimination and attendant second-class citizenship, as opposed to the seemingly cosmetic distinction between marriage and civil unions, it needs to be known and emphasized.
I'm fairly confident that I know what the courts are going to do, but I am fearful of what the people will do. It probably matters in the Georgia senatorial run-off, and it certainly had a negative impact on the 2004 presidential contest. I am interested in how best to frame this controversy and as such, I solicit the community's thoughts.