The Gay Metropolis (64 page)

GAY MARRIGE GOT MORE ATTENTION
than any other issue during this period, partly because it inspired the most vehement opposition. Some gay activists would have preferred to move more slowly on this hot-button subject, but two state courts bumped it to the front of the national agenda. At the end of 1999, the Vermont Supreme Court ruled that same-sex couples were entitled to the same rights as heterosexual couples. Four months later Governor Howard Dean signed a civil-union bill which made Vermont the first state in the union to give same-sex couples the same rights as married men and women, without calling it marriage.

In the spring of 2001, seven gay couples who had been denied marriage licenses in Massachusetts filed a lawsuit demanding the right to marry. Two and a half years later these plaintiffs prevailed when the Massachusetts Supreme Court declared that the state constitution required marriage equality for same-sex couples. When the same court bolstered that ruling with another one early in 2004, which required the state legislature to enact full marriage rights for same-sex couples, it sparked a series of events that kept the issue at the top of the national agenda for the rest of the year.

Eight days after the second court decision in Massachusetts, San Francisco Mayor Gavin Newsom decided that California's constitution authorized him to immediately start marrying same-sex couples. Within days, the city had issued more than two thousand marriage licenses, and newscasts across the country were flooded with images of happy couples lined up on the steps of San Francisco's City Hall to formalize their relationships.

The California Supreme Court eventually invalidated all of these marriages, but the combination of the mayor's edict and the Massachusetts decision triggered a firestorm of opposition from the religious right.

Facing a tough reelection campaign, George Bush decided to cater to his Evangelical base by endorsing a federal constitutional amendment to ban gay marriage, twelve days after the marriages in San Francisco began. In March, the House and Senate both held hearings on the proposed amendment, but it was defeated in the Senate by a vote of 50 to 48. In May, Massachusetts issued the first licenses for same-sex marriages, and six hundred couples applied for them the first day they were available. Meanwhile, allies
of the president petitioned to get state constitutional amendments banning same-sex marriage on the ballot in eleven states: Arkansas, Georgia, Kentucky, Michigan, Mississippi, Montana, North Dakota, Ohio, Oklahoma, Oregon, and Utah.

Conservatives argued that gay marriage threatened heterosexual unions, but no one ever offered a credible explanation of why that might be so. As gay Congressman Barney Frank had asked when the debate first began to catch fire, if gay marriage were legalized, were married men across America “really going to smack themselves on the head, and say, ‘Wow! I could I have married a man!'”

Nevertheless, every one of those anti-gay marriage amendments passed easily that November. And when voters were asked in a national exit poll which issue mattered most in deciding their vote for president, twenty-two percent chose “moral values” as their first choice. Those two facts produced an instant consensus: opposition to gay marriage had played a decisive role in George Bush's reelection. But a closer examination of the election's results revealed there was no hard evidence to support this hypothesis.

Ethan Geto, the New York politico who had begun the fight for gay rights way back in 1970 in New York City (see Chapter IV), sat down in 2005 to examine what had really happened the previous November. First, he discovered that voters who cited moral values as their primary concern—who were then asked follow-up questions—cited everything from Janet Jackson's breast-baring at the Super Bowl to “commercials selling products you don't want your children to see” as the moral values they were talking about. For many Evangelical Christians—the most reliable opponents of gay marriage—the main component of moral values was their antipathy to abortion. Still others thought moral values meant caring for the poor or safeguarding the environment.

Humphrey Taylor, the director of the Harris Interactive Poll, noted that when people were asked to say what they thought were the most important issues, without prompting and without being shown a list, “the overwhelming majority of people mentioned the war on terror, Iraq, the economy, jobs, health care, and education. Many people chose moral values [from a list] because it is the right thing to say.” And when a post-election poll by Zogby International asked, “Which moral issue most influenced your vote?” gay marriage came in last, at nine percent, far behind the war in Iraq with forty-two percent.

On the question of whether the gay initiatives had helped to reelect Bush, Geto's analysis was even more convincing. Only New Mexico and Iowa
switched to Bush in 2004, and neither of them had anti-marriage proposals on the ballot. On the other hand, in three key swing states that did have gay marriage initiatives—Michigan, Ohio, and Oregon—Kerry (in 2004) outperformed Gore (in 2000) in all three. Although neither Gore nor Kerry carried the key state of Ohio, Kerry came two points closer to a win than Gore.

And, according to Alan Abramowitz of Emory University, Bush's share of the vote in states without the initiatives increased by 2.9 percent between 2000 and 2004, but only by 2.6 percent in the states that did have them.

WHILE THE TIDE AGAINST GAY
marriage seemed to be prevailing at the polls, another wave was going in the opposite direction. Shortly after Vermont approved civil unions for gay couples, Tom Stoddard's old dream of gay wedding announcements in
The New York Times
came true. On August 18,2002, the paper announced it would change the name of the “Weddings” pages to “Weddings/Celebrations.” Two weeks later the paper announced the union in Vermont of Daniel Gross and Steven Goldstein—the owner of a public affairs consulting firm and a vice president of GE Capital. (When I sent
Times
publisher Arthur Sulzberger Jr. a note congratulating him on the change, he responded with one word: “Overdue.”)

Just two years later, the Gay and Lesbian Alliance Against Defamation counted 504 newspapers around the country that had followed the lead of the
Times
and now printed gay-wedding announcements—including six in Alabama, fifty-eight in California, seven in Maine, and thirty-one in Texas. And in 2007, the Walt Disney Company announced that it would henceforth allow same-sex couples to have “Fairy Tale Weddings” at its American resorts.

A poll for the Pew Institute found the number of Americans who “strongly opposed” gay marriage had dropped sharply from forty-two percent in 2004 to just twenty-eight percent in 2006 (and just twenty-five percent among Americans under twenty-nine). Even among Evangelical Protestants, strong opposition had dropped from sixty-five to fifty-six percent.

“I think that two generations from now it will be over,” said Matt Coles of the ACLU—and gay marriage will become legal in America. “Right now, the states fall into four categories: one is Massachusetts with marriage; four in the second category—Vermont, Connecticut, California, and New Jersey—have strong civil-union laws; Hawaii and Maine are in category three with some significant legal protection; and then there is a fourth category of states that have non-discrimination laws. What I think will happen is
over the next twenty years or so, some of the civil-union states will convert to marriage; some with limited protection will increase protection—that's what happened in California and New Jersey—and some of the states that have nothing will get some modest protections.”

“In twenty-five years about thirty states will have either marriage or complete civil unions,” Coles continued, “and then the momentum for nationwide recognition will become pretty much irresistible. Most of the country's corporate establishment will want it, because it will be too much of a pain in the neck for them, because their employees won't work in states that don't recognize them. They'll be on our side.” (At the end of 2006, 138 major U.S. corporations got a rating of one hundred percent from the Human Rights Campaign Fund for the benefits and protections they had extended to their gay employees.)

Around the world, in countries where organized religion generally has less sway over the government than it recently has had in the United States, the progress toward gay marriage was much more dramatic. In 2001, Holland became the first country to extend full marriage rights to same-sex couples, followed by Spain in 2005, and South Africa in 2006, while at least ten other countries have enacted some form of domestic partnership. Sixteen countries also recognized same-sex couples for the purpose of immigration.

When the United Kingdom granted all spousal rights and responsibilities to couples who are registered as civil partners (without calling it marriage), Elton John and his longtime partner, David Furnish, were one of the first couples down the aisle, taking their vows in Windsor Guildhall—the same place Prince Charles and Camilla Parker-Bowles had been married earlier in 2005. The pop star told a New York newspaper that George Bush's anti-marriage stand had given him “the final push” he needed to finally get married.

AS AMERICA SEESAWED BACK AND
forth on the question of gay marriage, one event was vastly more important than all the others in the fight for equal rights in the new millennium. It was yet another watershed that Tom Stoddard had prophesied twenty years earlier.

Back in 1986, the United States Supreme Court had handed the gay movement its greatest defeat since its birth in the 1969 Stonewall Riot in Greenwich Village. Against the expectations of most court experts, it affirmed a Georgia law that prohibited sodomy between consenting adults inside their own homes (See Chapter V). Writing for the five-to-four majority in
Bowers
v.
Hardwick,
Associate Justice Byron White asserted that to claim that a
right to engage in sodomy was “implicit in the concept of ordered liberty is, at best, facetious.” Tom Stoddard called the case the movement's Dred Scott decision—comparing it to the 1857 Supreme Court ruling, which held that blacks were not citizens and therefore could be slaves.

But Stoddard was certain that the fierce minority opinion written by Justice Harry Blackmun would one day become the law of the land. Blackmun argued that the case was really about “the right most valued by civilized men,” which he identified “as the right to be let alone.”

A year after
Bowers v. Hardwick,
Ronald Reagan tried to move the court sharply to the right by nominating Robert Bork to be a Supreme Court justice. After a fierce battle in the Senate, his nomination was rejected by a vote of 58 to 42. Anthony Kennedy was then nominated and confirmed for the same opening. Five years later, in 1992, Bill Clinton became the first president to be elected with the active support of the gay community. He then nominated Ruth Bader Ginsberg and Stephen Breyer to the Supreme Court, and the Senate confirmed them in 1993 and 1994. Together, these four events set the stage for the single greatest triumph of the gay-rights movement in America.

In 2002, the Supreme Court agreed to hear arguments in the case of
Lawrence
v.
Texas.
The facts of the case were quite similar to
Bowers
v.
Hardwick.
As in the earlier case, two men—John Geddes Lawrence and Tyron Garner—had been arrested inside a private home by a policeman who had discovered them in bed together. Gay-rights attorneys had been searching for the best case to bring before the court to overturn the
Bowers
v.
Hardwick
precedent, and
Lawrence
seemed to provide the perfect opportunity to do that. This time the challenge was to the antisodomy law in Texas.

On June 26, 2003, the court issued the decision that every gay activist had been waiting for since the birth of the movement. The six-to-three decision was written by Anthony Kennedy. The majority had been made possible by Kennedy and the two justices appointed by Bill Clinton, the most gay-friendly president in history. This made it a triumph of politics, as well as common sense.

The court overruled the Texas law in the broadest way possible. It also apologized for
Bowers
v.
Hardwick
with unprecedented directness. Linda Greenhouse, the veteran Supreme Court correspondent for the
The New York Times,
specified the singular importance of the decision: “A conservative Supreme Court has now identified the gay-rights cause as a basic civil rights issue.”

The court had reversed itself many times on many other subjects, including segregation. But never before had it used such sweeping language to repudiate a previous precedent.
“Bowers
was not correct when it was decided, and it is not correct today,” Justice Kennedy wrote. “It ought not to remain binding precedent.
Bowers
v.
Hardwick
should be and now is overruled. … Its issuance as precedent demeans the lives of homosexual persons.” To Matt Coles,
Lawrence
was for gay people what
Brown
v.
Board of Education
had been for black people: the most important legal event in the history of their struggle.

With a stroke of the pen the court had struck down all thirteen of the remaining state laws that had made the way gay people make love a crime. These are excerpts from the opinion:

“Freedom extends beyond spatial bounds,” Kennedy wrote. “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.

“It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.