Gay Marriage: A Civil Right?
Jude Wanniski
March 2, 2004


Memo: To Frank Rich, New York Times
From: Jude Wanniski
Re: “The Joys of Gay Marriage”

Dear Frank, I see you predicting the inevitability of same-sex marriage in your lengthy column in Sunday's "Arts & Leisure" section of the Sunday Times, "The Joys of Gay Marriage." It's about the best argument I've seen to date for same-sex marriage, but still quite a ways from being persuasive. I note you take the tack that just as interracial marriages were taboo a few decades back, same-sex marriage will follow in that civil-rights tradition. While I agree with you that it is most unlikely that we will have to clutter up the Constitution with an amendment prohibiting gay marriage, I don’t believe your civil-rights argument will work and the best the gay/lesbian community will be able to get out of this push on the social/cultural frontier will be state-recognized civil unions in many, perhaps most states.

There is national support for civil union, but religious leaders who oppose "gay marriage" see a clear distinction with the racial taboo. The state laws that prohibited interracial marriage were an outgrowth of the Constitution’s tolerance for the institution of slavery, even while recognizing the essential equality of all men in the eyes of the law. The civil-rights movement was dedicated from first to last to removing the last vestiges of racial discrimination where the state had legal responsibility and authority to insure non-discrimination against race, or gender. There remain cultural traditions where government does not have a mandate from the people to force one people to interact with another. There were once “separate but equal” rest rooms for blacks and whites throughout Dixie. They are no more, but there remain separate but equal rest rooms for men and women throughout the land and there is no need to have an amendment to the Constitution to continue that practice.

The parallel with homosexuals does not exist as you suggest, Frank, at the most basic level. What the gay/lesbian community is seeking goes far beyond the government’s responsibility and authority to recognize contractual relations between citizens, which are what “civil unions” are all about. There is practically nothing of substance a gay couple cannot get by drawing up agreements between themselves that can be adjudicated in the courts through civil suits, when one partner challenges the other in the equivalent of divorce. What the nation’s religious leaders worry about is not the substantive issues, but the moral and social ramifications of having the national government sanctify a civil-union by conferring upon it the extra dimension of “marriage,” heretofore reserved exclusively to the union of a man and a women. By giving "official" cultural sanction to gay marriage, they believe they will be encouraging homosexuality that would not otherwise exist.

This is the nurture vs. nature argument, where it is by no means clear that homosexuality occurs naturally, but rather becomes a matter of choice at some stage after conception. You know as well as I do that once the gay community somehow succeeded in getting the national electorate to say okay to the joys of gay marriage, the gay community would immediately have a new agenda. As one person wrote me, there would soon be demands for gay coloring books in kindergarten. Etcetera.

The debate over gay marriage will proceed through the election year and beyond, one supposes, but I don’t think you will find it helpful to compare opponents of same-sex marriage to racists. Nor is it reasonable to suggest that President Bush takes the position he does for crass political reasons, eyeing the votes of Christian evangelicals. It does not help for supporters of gay marriage to be mean-spirited in attacking those of us who withhold support. My guess is that Mr. Bush really believes the joy of marriage should remain the joy of the nuptials between a man and a woman, so long as it lasts.

* * * * *

The Joy of Gay Marriage
By Frank Rich

Here's the denouement of the epic drama over gay marriage. It's going to happen, it's going to happen within a generation, and it's going to happen even though George W. Bush teed off his re-election campaign this week by calling for a constitutional amendment to outlaw it. As the country has now had weeks to digest, it has already happened in bulk in San Francisco, where images of couples waiting all night in the rain to be wed finally wiped Janet Jackson off our TV screens. The first of those couples, Phyllis Lyon, 79, and Del Martin, 83, were celebrating a partnership of 51 years. Take that, heterosexual marriage! The most famous practitioner of mixed-sex nuptials this year, Britney Spears, partook of a Vegas marriage that clocked in at 55 hours.

Whatever their short-term legal fate, the San Francisco weddings mark a new high-water mark in one of the most fast-paced cultural tsunamis America has seen. As Evan Wolfson, the civil rights lawyer who founded Freedom to Marry, says, "An act as unremarkable as getting a wedding license" has been transformed by the people embracing it, much as the unremarkable act of sitting at a Formica lunch counter was transformed by an act of civil disobedience at a Woolworth's in North Carolina 44 years ago this month. Gavin Newsom, the heterosexual, Irish Catholic mayor of San Francisco, described his proactive strategy for advancing same-sex marriage to Time magazine: "Put a human face on it. Let's not talk about it in theory. Give me a story. Give me lives." And so now there have been thousands of gay wedding stories, many of them with the couples' parents and children in the supporting cast, at the same City Hall where Marilyn Monroe and Joe DiMaggio famously got hitched to no good end a half-century ago.

Like other provocative steps in this civil rights movement or the black civil rights movement before it, the San Francisco weddings may cause a morning-after backlash, though perhaps not as stormy as the one President Bush is courting. The big picture remains the same: this is a revolution churning unstoppably through the culture, where it took root long before the law and politicians, especially those in Washington, started to catch up. In 1986, for instance, the Supreme Court upheld antisodomy laws. But even then Hollywood was advancing the story: Rock Hudson, heterosexual heartthrob No. 1 of the 1950's, had died of AIDS just months earlier, and his homosexuality was a revelation in a country where, polls showed, only 24 percent said they knew anyone who was gay.

A few months after Hudson's death, when I was a drama critic covering the rise of AIDS casualties and AIDS plays in the New York theater, Esquire magazine asked me to write an essay contemplating the impact of gay culture on heterosexual American culture. I knew little about it beyond the theater. But as I researched the story, I discovered that the queer eye was everywhere in my supposedly unambiguously straight world, from the Calvin Klein billboards in Times Square to television's "Dynasty." Much of this influence was as unacknowledged, or unrecognized, by heterosexuals, as gay people themselves usually were.

It was an education, and some less compressed version of that education has taken place for many Americans in the years since — through real-life stories like those Mayor Newsom talks about as well as the likes of "Will & Grace." Last year, the Supreme Court finally struck down the antisodomy laws it had upheld just 17 years earlier, and now polls show that more than half of the country knows firsthand someone who is gay. It's hard to hate people you know or discriminate against them by denying them the many civic benefits of marriage. Though all polls show that only a minority are for gay marriage, that minority is still substantially larger than the one that approved of interracial marriage in 1968, a year after the Supreme Court made such marriages legal.

More revealingly, the polls find a clear majority of those ages 18 to 29 in favor of same-sex marriage. In America, generational turnover is destiny — especially when it's plugged into capitalism. In a country where only half the families are intact heterosexual marriages with children, those that break the old mold are a huge developing market — for weddings, tourism, housing and anything else American ingenuity can conjure up for consumption.

The AIDS epidemic, in retrospect, made same-sex marriage inevitable. Americans watched as gay men were turned away at their partners' hospital rooms and denied basic rights granted to heterosexual couples coping with a spouse's terminal illness and death. As the gay civil rights movement gained a life-and-death urgency, the public started to come around, and it has been coming around ever since, at an accelerating rate. As recently as 1993, the year Tom Hanks did his Oscar turn as an AIDS victim in "Philadelphia," fewer than a dozen Fortune 500 companies offered domestic partners health benefits and even a city as relatively progressive as Atlanta erupted over extending them to its employees. That now seems a century, not a decade, ago: today even Wal-Mart is among the nearly 200 such companies offering these benefits, and even a conservative city like Cincinnati is contemplating the repeal of antigay legislation, passed in 1993, that may be hindering its ability to recruit businesses.

But for all these changes, hundreds of federal marriage perks, from a survivor's right to a spouse's Social Security benefits to the sponsorship of foreign partners, are still denied to gay couples, including those who are granted separate-and-not-equal civil unions by local governments. That's why marriage, whatever the word's separate meaning as a spiritual or religious rite, will remain a pressing constitutional issue in a country founded on equality. If marriage laws were set in stone, after all, same-race marriage would still be the only legal kind.

As the fulcrum of a culture war in a presidential campaign year, same-sex marriage now promises to explode with a vengeance as yet absent in San Francisco. America would be the loser, and so might either political party. If Mr. Bush really believed that supporting a constitutional amendment to outlaw same-sex marriage was a political slam-dunk, "he would have endorsed it right after the Massachusetts court decision," says Patrick Guerriero, the head of the Log Cabin Republicans.

What caused the delay? In part, it's that polls show most Americans balk at such an amendment. But now that the president's own polls are down, he's rolled the dice. He's hoping to motivate his base even if that means "embracing the radical right's effort to write graffiti into the Constitution," as Mr. Guerriero puts it. No one seems to know where Mary Cheney is, but other gay Republicans in the administration, in the Bush-Cheney campaign and in the armed services in Iraq have been driven to "soul searching" by the president's move, Mr. Guerriero says. They may have their own stories to tell. The day when a hypocritical segregationist like Strom Thurmond could demagogue one policy on marriage in public and behave quite differently in private is gone with the wind.

The president is so stymied by the very subject of same-sex relationships of any kind that he can't even say the words "gay" or "homosexual" in public. John Kerry, whose stance on gay marriage is no more coherent than his position on the war in Iraq, dodged a reporter's question about Mayor Newsom's weddings this week with the preposterous response, "I haven't really kept up with exactly what he is doing." They both wish gay marriage would just go away.

It won't. And so the vacuum will be enthusiastically filled by Defenders of Marriage eager to foment the bloodiest culture war possible. They are gladly donning the roles played by Lester Maddox and George Wallace in the civil rights era, even at the price of turning women like Phyllis Lyon and Del Martin into the new century's incarnation of Rosa Parks. Though it's easy to laugh at Bill O'Reilly's threat to personally make a citizen's arrest of Mayor Newsom, a scene that would be less redolent of "America's Most Wanted" than "America's Funniest Home Videos," the same cannot be said of the cynical provocations of California's governor, Arnold Schwarzenegger, a purported supporter of gay rights. Last Sunday, with no evidence whatsoever, he went on network television to tell Tim Russert that San Francisco may erupt in riots. "The next thing we know there's injured or there's dead people," he added, as if to predict a re-enactment of the assassinations of a gay city supervisor, Harvey Milk, and the mayor of San Francisco, George Moscone, in 1978.

The rhetoric of die-hard segregationists is back as well, complete with its warnings of how untraditional marriages can beget polygamy and bestiality. In a strategy now adopted by President Bush, the Defenders of Marriage repeatedly complain of how "activist judges" are overruling the will of the people — and then go in search of activist judges of their own to quash Mayor Newsom, an official elected by the people. In three states, it is the legislature, not the judiciary, that is trying to speed same-sex marriage anyway.

The full-time Defenders of Marriage also like to pretend that they are "tolerant" of their misguided gay brethren, but their priorities give them away. You'd think they'd be most concerned about divorce, which ends half of all American marriages, or spousal abuse, but a study by the National Gay and Lesbian Task Force last fall discovered that 334 documents on the American Family Association's Web site contained the word "homosexual" while "divorce" and "domestic violence" together merited fewer than 70 mentions. Such is the bent of the Family Research Council and the Traditional Values Coalition that they lobbied the Justice Department to deny 9/11 compensation to the domestic partners of those killed in the terrorists' attack, lest it further "the gay agenda at the expense of marriage and family."

By the time the conventions roll around this summer, gay marriages are likely to be a civic fact in Boston, the site of the Democrats' gathering. Mr. Bush is coming into New York, not only a center of gay population and activism but the home of three gay-friendly Republican hosts, George Pataki, Michael Bloomberg and Rudolph Giuliani, who can only lose if there's any replay inside the hall of the gay-baiting Houston convention of '92. If a convention like that could damage the first President Bush's re-election chances back then, imagine what a hot culture war in the much-changed America of 2004 might mean for the second President Bush, in the midst of a real war. It sounds like Chicago '68 to me. Except, of course, that the current Mayor Daley has endorsed same-sex marriage.

Copyright 2004 The New York Times Company