A review of From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage, by Michael J. Klarman
When the Supreme Court agreed in early December to hear two cases on gay marriage, the New York Times hailed the "Next Civil Rights Landmark" and contrasted the Court's swiftness in addressing the issue with the years it tarried before ruling on interracial marriage in the segregated South. That was an odd comparison. Apart from containing the word "marriage" and having drawn the interest of the high court, the two issues have nothing to do with one another. The most wild-eyed Ku Klux Klansman of the 1960s did not doubt that, if permitted, mixed-race couples could, and would, fulfill every condition of matrimony. The constitutional question—an easy one as it turned out—was whether a country with a tradition of freedom of association could permit government to stand in their way.
Gay marriage is different. Half the country cannot even fathom the logic of it. Until about a decade ago, the public was nearly unanimous in considering it a joke. Gay marriage has risen in the polls in recent years and it has won courtroom victories, often by dodging constitutional and always by dodging philosophical arguments. The gay-marriage activist Evan Wolfson believes the Court's work will be easy because "the government has nearly always automatically honored the marriages of couples legally married." Jonathan Capehart of the Washington Post asserts confidently that the federal Defense of Marriage Act (DOMA), which defines marriage as between a man and a woman, is "doomed," because it gets in the way of same-sex marriages already contracted. The central question—whether it makes sense to talk of gay marriage in the first place—is deemed resolved before it has even been raised.
You would think that, since marriage was not designed to accommodate homosexuality and never has done so through millennia of Western history, the burden of proof would fall on the innovators. It does not. You would think that, since the main justifications of traditional marriage through the years have involved children, and since gays cannot produce children, recasting the demand as one for "marriage equality" would ring hollow. It does not. Gay marriage is advancing on the basis of something other than the expected rational arguments.
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Certainly, reasons have been found to validate gay marriage post facto. But one wants to ask those who advance them: is that all you've got? The arguments tend to be non-sequiturs of one kind or another: Margaret Marshall, the Massachusetts justice who legalized gay marriage in the Bay State in 2003, justified her decision afterward by referring to the Quock Walker case (1783), which abolished slavery on the grounds that Massachusetts's constitution declared "all men are born free and equal." (One wonders how this line of reasoning could have eluded Oliver Wendell Holmes when hewas Massachusetts chief justice.) In his second inaugural address, Barack Obama asserted confusedly, "If we are truly created equal, then surely the love we commit to one another must be equal as well."
The argument for gay marriage is almost always made in the name of history—not the history we have lived but the history we are yet to live. Articles about gay marriage frequently cite an abolitionist quotation that Martin Luther King used in a 1965 speech and that President Obama has often used since: "The arc of the moral universe is long, but it bends toward justice." A Sacramento Bee writer warns gay marriage opponents that "history generally is unkind to extremists and suppressors." This is a theological argument, similar to ones made by the Koran, Calvin, and Communism. It has always seemed odd that people who believe the names of tomorrow's winners and losers are already written in the book of eternity should run around fighting and proselytizing. But they do. Theologies of this sort, as Leszek Kolakowski has written, are "a source of belligerence and self-confidence."
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Michael Klarman's From the Closet to the Altar accepts this narrative of predestination. A Harvard law professor, Klarman has written several books about how courts, social movements, and voting publics interacted during the movement for black civil rights and he believes a similar process is underway with gay rights, too. He calls one Iowa Christian leader's demand for an executive order to block gay marriage "reminiscent of efforts by Arkansas's segregationist governor Orval Faubus." This is a book not about jurisprudence but about politics. Klarman never makes explicit the philosophical basis on which he likens gays' struggles to blacks'. Nor does he entertain the thought that, as a political cause, gay marriage might be less like Civil Rights than like, say, 20th-century prohibitionism or the Equal Rights Amendment in the 1970s—an ideological fad liable to burn itself out.
For Klarman insurgent social movements follow a script, whether they be for racial equality, abortion, or gay marriage. That script promises a starring role for judges and lawyers. "A Supreme Court ruling in favor of gay marriage in 2012 or 2013 would…split the country down the middle," he writes. "Yet, given how quickly public opinion is evolving in favor of gay marriage, within a decade or two such a decision would probably also become iconic." Playing that starring role requires a judge to behave with sufficient circumspection to avoid provoking "backlash," which Klarman—without seeming to be conscious of it—uses throughout the book as a synonym for democracy.
This is a brief more than a book. If we are to believe Klarman's acknowledgments, it was not so much written as compiled, with research farmed out to an improbably large number of assistants. Many paragraphs are mere lists of laws, tallies of polling numbers, or chronologies of litigation. The result is something no one would read for pleasure or enlightenment. But for this reason it offers a clear and undistracted chronology that is very valuable. It shows how very new this enthusiasm for gay marriage is.
The American Civil Liberties Union was not interested in defending gay rights at all in 1957, when it called homosexuals "socially heretical or deviant." Its position had changed by 1973, but when the Homosexual Rights Committee of the ACLU's Southern California Branch made a list of six long-term priorities that year, marriage was not on it. In 1983, gay leaders had an opportunity to grill Democratic presidential candidates Walter Mondale and John Glenn about issues they cared about. They didn't mention marriage at all. Even in 1991, when the National Gay and Lesbian Task Force asked its membership to rank civil-rights issues in order of importance, marriage did not make an appearance.
A growing number of gays in long-term relationships, however, were chafing at practical problems. Some objected to paying taxes on inherited property that married couples would not. (This difficulty is at the core of U.S. v. Windsor, one of the cases that will come before the Supreme Court this spring.) Gays also faced red tape in getting hospital visitation rights. Both problems were made more galling and poignant by the toll of AIDS in the late 1980s and early '90s. When gays began to sue, they discovered that judges looked more indulgently on their demands than the general public did. That changed everything. In 1993, a Hawaiian court opined that limiting marriage to men and women was a bias, and the state's Supreme Court backed them up in 1996. By then, gay rights lobbies were beginning to recruit couples for court challenges. In 1999, Vermont's Supreme Court ordered the legislature to come up with a plan to give gays marriage rights. Hence the first "civil unions" bill in 2000. And there was another factor abetting these marriage suits: bold administrators had begun assigning adoptive children to gay couples. So cases were now arising in which the question before the court was whether it were better that a gay couple raising a child be married or unmarried.
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The "backlash" of Klarman's subtitle is meant to describe the process by which almost all the rights won by gays in the courtroom and the smoke-filled room were vulnerable to being rescinded at the ballot box. That had been the pattern on gay-rights issues for at least a quarter-century, starting with singer Anita Bryant's 1977 movement to overturn an ordinance in Dade County, Florida, that barred anti-gay discrimination. Vermont and Hawaii are perhaps the two most liberal states in the country, but opinion in both places still ran against gay marriage by roughly 2-to-1. After he signed the civil unions bill, Vermont governor Howard Dean began wearing a bulletproof vest.
Partly the backlash came from what Klarman calls a "visceral revulsion" against homosexuality. Focus groups were extremely uncomfortable looking at pro-gay marriage ads that included kissing. Any mention of what children were taught in school sent voters into the anti-gay marriage camp in droves. But there were plenty of reasons for backlash besides so-called homophobia, even if people soaring along the "arc of the moral universe" are too high up to see them. Backlash means recourse to the democratic parts of the Constitution in defiance of pronouncements from the judicial branch. A refrain repeated over and over in Klarman's book is that of a Southern Baptist Convention official: "I have never seen anything that has energized and provoked our grass roots like this issue, including Roe v. Wade."
In the wake of the Hawaii cases, opponents of gay marriage succeeded in defining marriage as a heterosexual institution in dozens of states, while supporters sought to get such measures declared unconstitutional by judges, or to block votes through procedural chicanery. Massachusetts Senate president Tom Birmingham, who singlehandedly thwarted his fellow Democrats' every attempt to legislate against gay marriage, is an extraordinary case of the latter. But standing in the way of a vote was no cause for shame, as activists saw it. According to a board member of the American Foundation for Equal Rights, the group sponsoring Hollingsworth v. Perry, the challenge to California's Proposition 8 that the Supreme Court will hear this spring, "Fundamental constitutional rights like marriage should never be subjected to a popular vote."
A barrage of judicial activism on one issue can soften up voting publics' resistance on others, Klarman notes. Civil unions had been a "radical" measure when Howard Dean proposed them in 2000. By 2004, after four years of agitation in the press, George W. Bush felt comfortable embracing them as a "moderate" or "compromise" option. Yet marriage remained, and remains, tricky. It is the single aspect of the "gay agenda" to which mainstream Americans most strongly object.
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Klarman worries that gay activists have moved too fast. By pushing marriage before the issue was ripe, they retarded legislation on workplace discrimination laws. The focus on gay marriage in 2004 helped the campaigns of politicians less sympathetic to gay rights, including Bush, and contributed to the defeat of sympathizers, such as Senate majority leader Tom Daschle. This follows a pattern Klarman has noticed in earlier social movements. Though Klarman is today delighted with the principles laid down in the landmark desegregation case Brown v. Board of Education (1954), he believes the court's decision radicalized discussions of civil rights for a decade. Roe v. Wade (1973) was even more damaging. In granting an unconditional abortion right at a time when only four states had done so, it froze a situation that may have been heading towards a resolution and politicized—which is to say, corrupted—the Court for at least two generations.
As it turns out, Klarman has been proved wrong, and the boldest and most intemperate of the gay activists proved right: marriage litigation has been a bonanza. Judicial fiat put a halo of normalcy around gay marriage where none had existed before. Had this book been published after November's referendum victories for gay marriage in Maine, Maryland, and Washington state, which broke a string of three dozen losses, Klarman might have taken a different view.
Maybe Klarman's mistake is a failure to see how the gay-marriage movement differs from other social movements. It is not a civil rights movement, even if its leaders present it as one. Civil rights movements are about liberation. The old campaigns for repeal of sodomy laws, while they hardly won majority approval, fit that description. They were at least intelligible to mainstream Americans who view the history of their country as a steady progress towards liberty. The gay-marriage movement works in the opposite direction. Marriage is a regulation. It recognizes one aspect of people's sexual lives as so important that authorities must monitor it. That aspect is the bearing of the next generation, a task to which homosexual relations are irrelevant. Marriage has plenty of mystical, communal, and spiritual associations. It may be a means to offer homosexuals recognition, or validation, from the wider society. But not liberation.
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Civil rights movements arise to defend the downtrodden. But never since the Progressive Era has there been a social movement as elite-driven as the one for gay marriage. No issue divides the country more squarely by class. Opponents of California's anti-marriage Proposition 8 have come to include virtually all of Hollywood, Apple, Google, Amazon, and the White House. The governor of California has refused to defend the state's own laws (and constitutional amendments) banning gay marriage, just as the White House has refused to defend the federal DOMA. Particularly bizarre are the attempts of gay-marriage groups to use Lloyd Blankfein, CEO of Goldman Sachs, as a spokesman—as if there were something "conservative" about the financial innovations for which Goldman is known, and as if Blankfein might therefore be the very last person you would expect to favor such an innovation. (If you had a Biblical understanding of both high finance and homosexuality, you might actually expect him to be the first.)
Until very recently, gay-marriage supporters almost never defended gay marriage per se. They claimed to believe marriage was between a man and a woman and then fought against Defense of Marriage Acts on the grounds that they "clutter up the constitution," or some such rationale. President Obama was long in the most preposterous position of all, claiming to oppose gay marriage while stacking his Justice Department with lawyers for whom it is a crusade. Either the president was less forthright than the usual run of politicians or he was the most incompetent manager of personnel in the history of Western bureaucracy.
President Obama's decision to confess his support for gay marriage last spring was the culmination of an all-out shift in elite attitudes. The full-spectrum dominance of the pro-gay marriage position among the crème de la crème is perhaps best shown by the leading role in overturning Prop 8 of David Boies and Ted Olson, who argued on opposite sides of Bush v. Gore in 2000. Klarman has a clear-eyed idea of how class interest and déformation professionnelle interact to give gay-marriage supporters a home-field advantage in any courtroom. "Judges," he writes, "are part not only of the cultural elite but of a distinctive subculture—the legal elite—which tends to be even more liberal than the general public on issues such as gender equality and gay equality."
This advantage is compounded by ideas in the legal profession about "animus." Increasingly, courtroom appeals to tradition or morality are seen as arising from an animus against a particular group, and are thereby delegitimized. As a result, Klarman writes,
lawyers defending gay marriage bans in court have been forced to articulate other government interests that are said to be served by excluding gay couples from marriage. Yet because these proffered justifications are generally not the real reasons for banning gay marriage, they usually appear unpersuasive, even disingenuous.
Critics of gay marriage are being asked to predict the future, and cast as Elmer Gantrys and snake-oil salesmen when they fail.
Klarman not only describes but defends the way this concept of animus tilts the judicial playing field. He thinks "the principal (though often unspoken) reason for excluding same-sex couples from marriage has been the perception that the Bible commanded it." That is wrong. Gay marriage is unthinkable in countries where the Bible cuts no ice. It is only in countries of Judeo-Christian heritage that any arguments at all are being made for gay marriage. Same-sex marriage defenders, in fact, often argue from the absence of divine retribution. Klarman writes of Massachusetts in September 2004, four months after legalization: "Thousands of gay couples had married since May without causing any significant disruptions." What did he expect? Thunderbolts?
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When elites rally unanimously to a cause, it can become a kind of common sense. The upwardly mobile parts of democratic publics emulate their "betters." They quell their natural misgivings. Those who do not quell their misgivings, therefore, look like losers. There is a first-they-came-for-the-Communists element to this shift—a lot of people worried about saying something un-chic assume that there will always be someone more conservative, more heedless of his social position, ready to come out of the "woodwork" to take the heat in front of public opinion. But Rush Limbaugh now supports civil unions and Glenn Beck opines that gay marriage "isn't hurting anybody."
The elite view thus becomes a self-fulfilling prophecy. The referendum victories that gay marriage won in Maine, Maryland, and Washington state in November may be its first three victories, yet they seem to count more than its three dozen defeats. The push for gay marriage in the U.S. resembles the European Union's attempts to spread its influence through referenda. "Yes" and "No" are taken to mean "Yes Forever" and "No for Now." The debate is sown with taboos the instant the slightest formal assent is granted. In real life, the heroic endurance of a democratic opposition does not last long. When they discover their consistently expressed votes to be unavailing, people lose interest in casting them. Sometimes they turn against democracy. More often they tune out of the political system altogether.
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Where this assent to elite views on gay marriage does not arise spontaneously, it can be imposed. The state of California now bans therapies that seek to reorient homosexuals towards heterosexual behavior, on the grounds that doing so is psychologically damaging. The more likely objection is that the therapies challenge the conception that there are only two sexual orientations, "homosexual" and "heterosexual," and that they are of absolutely unwavering constancy. This conception is false. In fact, the gay-rights movement itself used to stress the polymorphousness of human sexuality, back when the movement was focused more on liberation. But it has different rhetorical needs now, chief among them to convince parents that there is no danger of their children being proselytized about homosexuality in school.
The most troubling aspect of the gay-marriage movement is that, more than any social movement in living memory, more than feminism at its bra-burning peak in the 1970s, it aims not to engage in lively debate but to shut it down. Scurrility has become a norm. In April 2009, Miss California, Carrie Prejean, told a Miss America judge she thought marriage should be between a man and a woman and got called a "dumb bitch" for it on the judge's website. If it is now easier to call people dumb bitches, then it makes no sense at all to extol the gay marriage movement as a moral advance.
Shutting down debate can be more effectively done now that the internet has solved the organizing problem of mobs. Anyone who expresses the slightest misgivings about gay marriage can become the object of boycotts, blacklists, and attempts to get him fired. Restaurant chain Chick fil-A was boycotted when its chief operating officer speculated that gay marriage might be "inviting God's wrath." A theater director in Sacramento resigned his post after having been shown to be a donor to Proposition 8. The law firm King & Spalding refused to allow Paul Clement permission to defend the federal Defense of Marriage Act on behalf of the House of Representatives. Defending O.J. Simpson will not get you booted from your firm, but defending a federal law will. Most companies are probably brave enough to defend their employees' freedom of opinion, but cowardice of King & Spalding's sort risks becoming the norm.
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Does this taste for intimidation reflect just an excess of zeal among a few true believers dizzy with success? Or is it a critical part of the gay-marriage ideology itself, without which it will be ineffective and peter out? A revealing episode concerns Rhode Island, the most Catholic of the states, where legislators included certain religious exemptions in a 2011 civil unions bill. The state's governor, Lincoln Chafee, complained about these exemptions when he signed it. They may be vulnerable to a court challenge. Klarman asks, as if it's a real poser, "Should a wedding photographer or a florist who opposes gay marriage on religious grounds be exempted from a state law barring discrimination based on sexual orientation in public accommodations?" One can only marvel at what seems an outright invasion of people's right to do as they please. Would a non-church-affiliated bunch of devout Catholics have the right to exclude a gay family from its day-care circle? Maybe not. How about a bunch of moralistic atheists? Almost certainly not. Would a newspaper be prosecutable for hate speech if it referred to same-sex marriage as same-sex "marriage"?
In a decade, gay marriage has gone from joke to dogma. It is certainly worth asking why, if this is a liberation movement, it should be happening now, in an age not otherwise gaining a reputation as freedom's heyday. Since 2009, if Klarman's estimates are correct, support for gay marriage has been increasing by 4 points a year. Public opinion does not change this fast in free societies. Either opinion is not changing as fast as it appears to be, or society is not as free.
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For Correspondence on this review, click here.