We have been using the excellent article
The Backlash Thesis and Same-Sex Marriage by Penn State Law Professor and author Carlos A. Ball. Let's look at what he sees happening in SSM backlash.
Download note: To download the PDF file of the article from the link above, scroll to the bottom of that page.
He sees strong and predictable similarities between the Black civil rights fight and court decision of the 1950s and 1960s and the post-Lawrence and Goodridge gay-rights and SSM ones of the past few years. The
overview is here and the comparison with Brown and
Goodridge cases here.
While we agree with Ball, he also describes an alternative view, most associated with University of Virginia Law Professor
Michael J. Klarman. That theory holds that the Brown decisions were not prime drivers of desegregation and may have been counterproductive because of the associated backlash.
As Ball describes it, Klarman's theory includes:
- "...social and economic forces, as well as the lingering revulsion toward Nazi policies, played a greater role in moving public opinion in the North toward greater egalitarianism in racial matters than did Brown."
- Civil rights protests of note began six years after Brown, calling its causal effect into question.
- Brown may have discouraged protests by encouraging solution by litigation.
- In fact, Klarman suggests that Brown may have discouraged direct-action protests because "Brown radicalized white politics in the South," which might have slowed gradual desegregation.
Pleas for Gradualism
Likewise, today there are numerous kick-not-against-the-goads forces for SSM. For example, Yale Law Professor and author
William M. Eskridge, Jr., as Ball puts it, "has called for pragmatism and gradualism in the pursuit of the legal recognition of lesbian and gay relationships. Eskridge is concerned that court-mandated marriage equality will antagonize gay rights opponents leaving little room for moderation or dialogue."
Others in this gradualist camp include California Senator Diane Feinstein, who said SSM "had come 'too much, too fast, too soon' and that it 'served as a rallying point to get conservative people to the polls.'" Also, the
Human Rights Campaign's public positions include that "aggressively pursuing same-sex marriage only played into the hand of Republicans and religious conservatives, who skillfully used the issue this fall to energize their voters."
Readers of this blog know that we are no fans of gradualism or incrementalism, particularly when clear principles are at stake. It is surely unfortunate emotionally for those who use education or marriage rights to feel superior to others. However, they need to hear that this is not acceptable public policy and they need to begin getting over it. The one-two of law and peer pressure invariably brings change.
In his elegant comparisons of Brown and Goodridge, Ball does note some key differences amidst all the similarities. In particular, he is clear that the level of backlash was much higher 60 years ago. "Although lesbians and gay men, as well as bisexuals and transgendered individuals, are today among the most likely to be the victims of hate crimes, that violence is not politically organized and coordinated as it was in the South five decades ago," he writes. "For all of the discrimination experienced today by lesbians and gay men, they do not live under an apartheid regime such as the one that existed in many parts of the United States well into the second half of the twentieth century."
In that light, we hold that it would be appropriate, compassionate, Christian and useful for those vocal anti-gay Protestant ministers to tone it down. If they admit that gay rights, including marriage rights, are in fact civil-rights issues, they can help frame this process. Recognizing that the differences from the Black struggles of the past century are of degree not kind would speed the resolution and healing that are sure to come eventually.
Harsh Backlash Reality
Yet Ball holds the convincing view that civil-rights proponents are right in taking the firm stances that the NAACP and GLAD did in their respective cases. Yes, the backlash comes, often strongly. Then facing the new reality enforced by both law and shifting public opinion, voters and politicians alike begin adjusting.
In terms of the current backlash, he does not downplay the barriers and harm it has caused. They, in fact, strongly mirror those of the 1950s and 1960s desegregation backlash.
Together with the federal DOMA, the constitutional amendments in 18 states and the one-man/one-woman laws in over 40 states will take either per-state overrides or some level of court action. As the politicians and voters intended, this process will take years, likely decades.
In some situations, this will be simpler than others. For example, in Ohio, courts are already finding the SSM restrictions violate laws and principles governing many established partnerships and other civil contracts, as well as employee benefits.
Ball also notes, as we are wont to write, that the thousands of SSMs here already benefit homosexual couples nationwide. Seeing that the alarmist predictions following Goodridge were false helps. However, simply knowing such couples is huge in swaying public opinion.
We add that this seemed to be the decisive factor in finally passing and sustaining gay rights in Maine last year. Individuals and couples were out to neighbors and coworkers. They ceased being the unknown, the other. As Ball puts it, "Studies have shown that a person’s opinion about homosexuality frequently depends on whether that person knows someone who is lesbian or gay."
In Massachusetts, he comments, "No heterosexual couple in that state has gotten divorced, and no heterosexual couple has failed to get married, because of Goodridge. It is easy for opponents of same-sex marriage to use fiery rhetoric about how society will be endangered if same-sex couples are permitted to marry. In Massachusetts, that possibility has been replaced with reality with no evidence of harm to anyone."
In terms of backlash, he acknowledges that the die-hard anti-gay, anti-SSM forces won't let the obvious get in the way or change their views. However, as Southerners came to accept integration and even to call each other on racism, most people come around facing reality.
And Some Don't Change
As a measure of the process on a related issue, he discusses the 1948
Perez v. Lippold decision in California that struck down state restrictions on interracial marriage. Then 30 states banned such marriages, with huge majority support from the public. Then nearly 20 years later when the U.S. Supreme Court did the same nationwide, opinion had matured and shifted.
However, it is worth noting that three years ago when the Gallup pollsters last asked, over a quarter of Americans still opposed interracial marriage. We can certainly expect something similar even after SSM becomes a norm. In some cases, backlash remains as grumbling for the life of the opponent.
Ball states, "It is likely that Goodridge will have a similar impact on the question of same-sex marriage as Perez did on the issue of interracial marriage." He points to wide acceptance in Vermont for civil unions, as well as the trend to civil unions becoming the fallback position in discussions in other states, as it did before becoming law in Connecticut. As Ball put it:
What was to many, only a few years ago, a radical idea (that lesbians and gay men should have the same rights and benefits afforded to married couples under state law, albeit under the auspices of an alternative legal regime), has now, in effect, become a mainstream alternative to same-sex marriage.
Even as most states have reinforced their anti-SSM statutes and amendments, the broader picture is of voters and legislators alike come to realize that legal recognition is necessary and coming. Ball contends, "The political debate in a growing number of states is no longer whether lesbian and gay couples deserve legal recognition; instead, the debate is about what type of legal recognition they deserve."
To the Legislature!
Ball does not see a string of court victories that will hasten the SSM progress. In fact, he writes, "It is fair to say that the movement has probably reached the point of diminishing returns when it comes to the progress that can result from judicial successes in the area of marriage equality. The chances that those successes will be overturned by voters are simply too great for the movement to continue to rely so heavily on the courts."
Instead, as the New York and Washington State high courts recently ruled in effect, "Help us, legislators!" They said the state legislature had to settle same-sex couple rights.
So, Ball predicts that the meaningful advances will come state by state, legislature by legislature.
At the same time, pro-SSM forces, "must begin to rely less on lawyers in the courtroom and more on reaching out to moderate Americans in neighborhoods, schools, and places of work and worship." This includes what we have here, in Maine and elsewhere, self-outed homosexual couples and individuals "living openly...with dignity and courage so that skeptical but open-minded heterosexuals can become convinced that they have nothing to fear or lose if the society were to accept lesbians and gay men as true equals."
On the legislative side, the local and national organizing and lobbying must continue. Following the disappointing Washington court decision, Freedom to Marry's Executive Director
Evan Wolfson didn't miss a beat. He said he had already begun the new legislative efforts.
Ball also thinks that forms of SSM, civil unions or other homosexual-couple recognition can be more effective when they come from legislatures. That has happened at a low level in California and New Jersey, for two, and as civil unions in Connecticut.
The anguish that many progressives and gay-rights activists feel now is real and understandable. However, from the historical and legal view, Ball noted that Brown "created the necessary legal and political space that allowed other institutions, most notably the legislative and executive branches of the federal government, eventually to become involved to remedy what the Court had declared was unacceptable inequality."
With many heterosexuals beginning to come to terms with the possibility that they may have to give up feeling superior to homosexuals, the backlash is real and strong...and as predictable as it was with Brown. As Ball writes, "Those struggles are, at their core, about getting the majority to give up privileges, both tangible and intangible, that reinforce their perceived superiority."
He holds convincingly that Goodridge and its related follow-up ruling did foster backlash, particularly following Lawrence. However, that is an expected road hazard on the way to civil rights. We clear the road and go on.
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Carlos Ball,
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desegregation,
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