Gay Rights Gets a Brown v. Board—if It Doesn’t Backfire
The Supreme Court has announced it will look at two gay marriage cases. Chris Matthews feels a thrill running up his leg.
Shivers are probably the right response. But not necessarily the Matthews kind. The Court’s consideration of the sweeping challenge to California’s Proposition 8 raises the odds that the Supreme Court strategy may backfire—a risk that the modest challenge to the Defense of Marriage Act was likely to avoid. Starting in 2003, when the Massachusetts Supreme Court found a right to same sex marriage in the state constitution, the marriage issue has been making its way inexorably toward the infallible-because-they’re-final tribunal. And now the moment may have come. Amidst all the speculation and self-congratulation, little attention has been paid to the precedents: the racial movement’s triumphal moment in Brown in 1954 and the pivotal women’s rights case, Roe v. Wade. The movements cannot be seen in isolation. As Kirsten Gillibrand said about the repeal of Don’t Ask Don’t Tell, “gay rights is the civil rights march of my generation.” The gay marriage movement has, to its credit, tried to study movement history, in order to be blessed to repeat its successes.
Starting in 1974 with the campaign against the criminal sodomy laws, the gay legal movement methodically assembled an incremental strategy, patterned on the racial and gender models, for dismantling the structure of law that marginalized and demonized their sexual relations. In 1991, when Hawaii unexpectedly considered legalizing gay marriage, the same institutions and the same players simply morphed into the marriage movement.
The lessons the gay litigators learned from the racial and gender civil rights movements led them to consider the federal courts in general and the Supreme Court in particular with extreme caution. When superlawyers David Boies and Ted Olson brought the head-on challenge to California’s antigay Prop 8 in 2009, they broke with this convention, and were heavily criticized for it. The ACLU’s Matt Coles called the suit a long shot and the marriage director for Lambda Legal said it was “risky and premature.