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The U.S. Supreme Court has agreed to take up two legal cases related with gay marriage. One deals with the Defense of Marriage Act, which forbids federal recognition of same-sex unions; the other addresses California’s Proposition 8, which overturned a state court decision to legalize gay marriage.
I am no lawyer. Nor do I have any particular insight into the minds of potential “swing” votes on the court, notably Justice Anthony Kennedy and Chief Justice John Roberts. I will leave it to legal experts and court watchers to parse the likely arguments and speculate on possible outcomes.
But I would like to comment on social and political context of the cases currently before the court. I suspect that in 50 years we will look back upon the current controversy over gay marriage with chagrin and shame: chagrin because same-sex unions will have become, by then, utterly matter-of-fact; shame because discrimination against homosexual couples will be generally recognized as an egregious breach of equality under law and simple human decency.
Fifty years is a long time. But a sea-change in public opinion is already well established. Nine states and the District of Columbia now extend marriage to same-sex couples. These include three states — Maine, Maryland and Washington — which, in November, voted for measures legalizing gay marriage. A poll early this month shows that a plurality of Americans now support gay marriage. Other recent polls yield similar results. Importantly, all indicate extremely high levels of support among young people for marriage equality. The trend over time is clearly toward greater public sympathy for marriage equality. Given generational change, it’s hard to see how this trend will reverse. George Will, the conservative pundit, is almost certainly right when he recently declared, “Quite literally, opposition to gay marriage is dying.”
But full marriage equality remains an uphill struggle. Thirty states prohibit same-sex marriage in their constitutions; another nine do so by statute. Opposition to it remains high among Republicans, conservatives and evangelicals. Like so much else in the country today, views on gay marriage reflect a stark red/blue divide. Barring an unexpected Supreme Court decision asserting a constitutional right to marriage equality, it will remain a political issue. Much of the action will be at the state level. My best guess: we will see a slow state-by-state extension of gay marriage.
Texas may, alas, be among the last to grant its gay citizens equality under the law. This is in many ways a wonderful state: economically dynamic, ethnically diverse, and possessed of a rich history and a vibrant culture. But Texas’ track record on treatment of its homosexual citizens is, in a word, appalling. Texas maintained its sodomy law until it was overturned by the Supreme Court, in 2003, in the Lawrence vs. Texas decision. (Illinois, the first state to repeal its sodomy law, did so in 1962.) Given the conservative complexion of the state’s electorate and the long-term dominance of the Republican Party, equality under the law may be denied to gay Texans for many years to come.
Sooner or later, though, Texans — like other Americans — will be chagrined and ashamed.
Joe Barnes is the Baker Institute’s Bonner Means Baker Fellow. From 1979 to 1993, he was a career diplomat with the U.S. Department of State, serving in Europe, Africa, the Middle East and South Asia.