From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage
by Michael J. Klarman
Oxford University Press, 276 pp., $27.95
When Billie Holiday promised, “the difficult I’ll do right now, the impossible will take a little while,” she admitted that she was “crazy in love.” But that lyric might well serve as the anthem of the gay rights movement, which has achieved, more swiftly than any other individual rights movement in history, not merely the impossible, but the unthinkable. Those who have fought for what might be called the privileges of gay romance—the rights to marry and to have intimate sexual relations with the partner of one’s choosing, regardless of gender—were called crazy, and worse, by many. But with respect to both sodomy and marriage laws, they have proven not foolish romantics, but visionaries.
When Ninia Baehr and Genora Dancel sued the state of Hawaii for the right to marry in 1991, no state, indeed no country, recognized the right of same-sex couples to marry. Gay rights groups at the time opposed the filing, worried that it would create bad law and/or spark anti-gay resentment. Most of the American public, it is safe to say, had hardly considered the issue, precisely because it was unthinkable. At the time, 75 percent of Americans thought gay sexual relations were morally wrong, and only 29 percent thought gays and lesbians should be permitted to adopt children. When, in the early 1980s, the San Francisco Board of Supervisors became the first city council in the country to recognize domestic partnerships, Mayor Dianne Feinstein vetoed the ordinance.
Today, two thirds of Americans, including Rush Limbaugh, support civil unions for same-sex couples; nine states and the District of Columbia have recognized gay marriage; and nine more have recognized same-sex civil unions or domestic partnerships with all or most of the benefits associated with marriage. In the 2012 election, after an unbroken string of losses on popular referenda, gay marriage proponents prevailed on all four state ballot initiatives addressing the issue. Voters in Maryland, Maine, and Washington approved referenda expressly authorizing the recognition of gay marriage, and Minnesota voters rejected an amendment banning gay marriage.
Polls suggest that this progress will continue. A nationwide poll this year by the Public Religion Research Institute found that 62 percent of people between the ages of eighteen and twenty-nine favor gay marriage, while only 31 percent of those sixty-five and over do so. Nate Silver, the statistician best known for his FiveThirtyEight blog, who accurately predicted Obama’s victories in both 2008 and 2012, has analyzed demographic data state by state and projected that no later than next year a majority of people in a majority of the states will support gay marriage. By 2016, Silver says, the only states that will still have a majority opposing it will be in the Deep South; and by 2024, a majority will favor gay marriage even in Mississippi, likely to be the last holdout. Widespread recognition of gay marriage is, in the words of Michael Klarman, a professor at Harvard Law School and the author of From the Closet to the Altar, “inevitable.”
But Klarman, one of the country’s leading legal historians, remains skeptical of the utility of litigation to achieve this result. In From the Closet to the Altar, he tells the remarkable story of the legal, political, and cultural struggle over marriage equality. But even as he chronicles the almost unheard-of progress on this issue in the past two decades, Klarman argues that each judicial advance has been met with a forceful political reaction, at substantial cost to gay rights and to liberal causes more generally. The book—and the warning—could not be more timely, as the Supreme Court has announced that it will review two cases this term challenging the constitutionality, respectively, of a federal law and a California constitutional amendment limiting marriage (and related legal benefits) to the union between a man and a woman. Decisions in the cases are expected this summer.1
If Klarman is correct, gay rights proponents should be very nervous, because even a victory in court might well spark a broader public defeat. Klarman’s historical account is comprehensive, trenchant, and provocative. But his case that gay marriage litigation backlash has done more harm than good is not nearly as strong as he implies. In fact, it seems more likely that, by forcing people to “come out” on the issue, the marriage equality lawsuits have advanced the cause of gay rights.
Klarman argues that almost every time a state court has ruled in favor of same-sex marriage, its decision has sparked an adverse reaction that seems to set back the cause, not only of same-sex marriage itself, but of gay rights more broadly. Thus, in 1993, when the Hawaii Supreme Court in the Baehr case became the first state supreme court to rule that a state’s refusal to recognize same-sex marriage might be unconstitutional, Hawaii’s legislature responded by declaring that marriage was limited to the union of a man and woman, and Hawaii’s voters subsequently amended their constitution to ratify that action. In 1996, Republicans introduced in thirty-four state legislatures “defense-of-marriage” bills, banning recognition of same-sex marriages performed in other states. Within two years, twenty-two such laws had been adopted. By 2001, thirty-five states had enacted such laws—even though, at that point, no state yet recognized gay marriage.
Not to be outdone on the homophobia front, in 1996 Congress passed and President Bill Clinton signed the Defense of Marriage Act, which not only allowed states to refuse to recognize same-sex marriages performed by other states, but also denied tax, health, Social Security, and pension benefits for spouses under hundreds of federal laws to same-sex couples married in states that recognize gay marriage, though again, none yet did. The bill passed the House by a vote of 342–67 and the Senate by 85–14. Senator John Kerry was the only senator up for reelection in 1996 to vote against the law. This is the federal law the Supreme Court has agreed to review this term.
Even in Vermont, the only state with a socialist senator, litigation in favor of gay marriage prompted an impassioned political response. In 1999, the Vermont Supreme Court ruled that denying marriage to same-sex couples violated its state constitution. A storm of opposition to this ruling ensued. It was quelled only by the Supreme Court’s subsequent decision that “civil unions,” affording same-sex couples all the tangible benefits, but not the status, of marriage, was sufficient to satisfy the constitution. Even that result was controversial. Governor Howard Dean supported the civil unions bill, which a majority of Vermonters opposed, and in his gubernatorial campaign of 2000 saw his lead over his challenger fall twenty percentage points after he signed the bill into law.
When the California Supreme Court declared that the refusal to recognize same-sex marriage violated its state constitution, voters overruled that decision by amending the constitution through Proposition 8. (Lower federal courts declared Proposition 8 unconstitutional, but the Supreme Court has now granted review.) When the Iowa Supreme Court ruled that denying same-sex marriage violated its state constitution, voters responded by unseating three state supreme court justices in the next election. And the backlash wasn’t only sparked by court decisions. When Maine’s legislature adopted gay marriage in 2009, the voters overturned that action by amending the constitution by referendum that same year. This year, Maine voters reversed themselves, legalizing gay marriage in yet another referendum initiative.
But Klarman reserves his harshest criticism for Goodridge v. Department of Public Health, in which the Massachusetts Supreme Court in 2004 became the first state supreme court to require, as a state constitutional matter, the recognition of same-sex marriage. That decision sparked a nationwide response. Within five years, twenty-five states had enacted constitutional amendments banning gay marriage. (Before Goodridge, only three states had done so.) In all of these states, of course, gay marriage was already not recognized, but inscribing that ban into the state’s constitution makes it much more difficult to change.
And the Goodridge decision may have had consequences far beyond gay marriage, according to Klarman. He maintains that because two thirds of Americans were opposed to gay marriage in 2004, this was a dream issue for Republicans, and a nightmare for Democrats. It mobilized and united the Republican base, while driving a wedge between Democrats, who were divided on the issue.
Indeed, Klarman contends, gay marriage may have tipped the 2004 presidential election for President George W. Bush, and in turn affected the composition of the Supreme Court. President Bush won Ohio, which turned out to be the swing state that decided the election, by a 2 percent margin, while an anti–gay marriage referendum there passed by 62–38 percent. Bush’s share of the vote among Ohio’s older voters, voters with only a high school education, religious voters, and black voters all increased from 2000 to 2004 by more than it did nationwide. Significantly, these groups were also disproportionately opposed to gay marriage. Thus, Klarman joins the many commentators who claimed, in the immediate aftermath of the 2004 election, that the gay marriage referendum probably brought out more conservative voters and may well have made the difference. In his second term President Bush then had the opportunity to appoint Chief Justice John Roberts and Justice Samuel Alito, conservative jurists likely to be hostile to gay rights.
If Klarman is correct that the Goodridge case led to President Bush’s 2004 reelection, this backlash was surely devastating for gay rights generally. In a close election, however, any number of factors can appear to have been “determinative.” And the evidence is in fact far more equivocal than Klarman suggests. Stephen Ansolabehere and Charles Stewart III, political science professors at Harvard and MIT, have argued convincingly that gay marriage did not tip the balance, and if anything, appears to have helped the Democratic challenger John Kerry more than Bush.2 They noted that of the eleven states that had gay marriage referenda, only three were “battleground” states where the outcome was in doubt—Ohio, Michigan, and Oregon—and Kerry won two out of the three. In states where gay marriage was not on the ballot, Bush’s county-by-county share of the average vote increased from 2000 to 2004 by about 3 percent. In states where gay marriage was on the ballot, his average county share of the vote decreased by 2.6 percentage points.
Duke University Professor D. Sunshine Hillygus and University of Arkansas Professor Todd Shields reached similar conclusions. They reviewed a 2004 post-election survey, controlling for demographics, party identification, and ideology, and found that opinions about gay marriage “had no effect on voter decision making among Independents, respondents in battleground states, or even among respondents in states with an anti-gay marriage initiative on the ballot.”3 The issues that most affected voters in 2004, they found, were not gay marriage, but the war in Iraq, the economy, and terrorism.
Nor is there evidence that religious voters played a more significant role in 2004 than in 2000. In both 2000 and 2004, 42 percent of the voters attended church at least once a week. Bush won 63 percent of those voters in 2000 and 64 percent in 2004.4 States with gay marriage on the ballot had less than a one percent higher turnout rate than states without a referendum, and most of that difference is attributable to the fact that three of the states were battleground states, where turnout generally was higher.
2 Stephen Ansolabehere and Charles Stewart III, “Truth in Numbers: Moral Values and the Gay-Marriage Backlash Did Not Help Bush,” Boston Review, February/March 2005. ↩
3 D. Sunshine Hillygus and Todd G. Shields, “Moral Issues and Voter Decision Making in the 2004 Presidential Election,” PS: Political Science and Politics, Vol. 38 (April 2005), p. 201. ↩
4 Ethel D. Klein, “The Anti-Gay Backlash?,” in The Future of Gay Rights in America, edited by H.N. Hirsch (Routledge, 2005). ↩
Stephen Ansolabehere and Charles Stewart III, “Truth in Numbers: Moral Values and the Gay-Marriage Backlash Did Not Help Bush,” Boston Review, February/March 2005. ↩
D. Sunshine Hillygus and Todd G. Shields, “Moral Issues and Voter Decision Making in the 2004 Presidential Election,” PS: Political Science and Politics, Vol. 38 (April 2005), p. 201. ↩
Ethel D. Klein, “The Anti-Gay Backlash?,” in The Future of Gay Rights in America, edited by H.N. Hirsch (Routledge, 2005). ↩