Thursday, August 10, 2006

Same-Sex Marriage Backlash: 1

Can we say that those uppity homosexuals don't know their place? Perhaps that's too much of a throwback to race-based politics of 40 years and a century ago.

I'm old enough to recall the admonitions in both North and South for Blacks, or Negroes as people tended to say back then, that there would be a backlash if folks pushed too hard, too fast for equality. And indeed, even before the 1954 Brown v. Board of Education case that mandated school desegregation, various states were changing their laws to keep Black and White students separate.

Now legal experts compare and contrast Goodridge et al. v. Department of Public Health here legalizing same-sex marriage. They ask such questions as:
  • Will there be a similar, long-lived backlash in various states?
  • How comparable are the court rulings?
  • What is the best tack for pro-SSM groups now?
  • How long will it be before Americans accept equal marriage rights as they have equal education?
  • Will civil unions be the form that states begin to adopt?
For the entrenched anti-gay, anti-SSM forces, the aim seems to be to hold onto the prophylaxis of DOMA-style legislation and amendments. Divorcing, if you pardon, marriage rights from civil rights is key in this shield strategy. If they continue to deny that homosexuality is nearly always immutable and inborn, they can also deny the discriminatory nature of their efforts.

The best analysis we have seen of the Brown and Goodridge cases and their aftermaths is The Backlash Thesis and Same-Sex Marriage by Penn State Law Professor and author Carlos A. Ball. (To download the PDF file, head to the bottom of the page.)

A future post here will drill down into Ball's reasoning. Meanwhile, you can get a decent recap by the Detroit News' Deb Price. As well as citing the paper, she notes, "The Massachusetts marriage decision certainly wasn't the first ruling to trigger reactionary constitutional amendments or to bring out the worst in some folks."

Yet, seeing or at least projecting the inevitability of the old ways and laws disappearing, one might well ask what the opposition is thinking? In particular, why would voters and politicians who allege to be for human rights and to follow Christian principles fight so vigorously to hold others down?

As Ball states, marriage rights as Black rights before asks "the majority to give up privileges that reinforce their perceived superiority." In the case of Brown, being able to have their kids separately in better schools was key in feeling above Black families. Alas, everyone seems to need to feel superior to somebody.

As we view it here, the "Nah, nah. I can get married and you can't!" manifests itself in the muddling of religious rituals with civil contracts as "Oh, no. You are trying to define marriage out of existence." Yet, as dissenting opinions in the recent New York and Washington State SSM decisions have stated so strongly, expanding marriage to include same-sex couples takes absolutely nothing away from opposite-sex couples, but merely aligns marriage with equal-rights laws.

In Brown, the U.S. Supreme Court aided and encouraged the backlash, particularly by Southern legislatures. Under pressure from the NAACP, the Court ordered desegregation. However, it used the weasel words "with all deliberate speed." That is akin to the old Nevada highway speed-limit signs REASONABLE AND PRUDENT in meaninglessness.

As a result, some Southern school districts remained fully segregated for over a decade. (We don't even have to mention the de facto segregation in such supposedly enlightened places like Boston.) In effect, the Court told the most racist legislatures to take their own sweet time.

Ball finds hope in this process though. He writes that backlash is expected and predictable, and therefore "less threatening." It is like a storm that will pass, eventually.

We are already seeing the clearing in a few places that helped desegregate schools even with the timorous order of the Court. While governors and state lawmakers blustered following Brown, they do today with DOMA laws and amendments. Meanwhile, as with desegregation and interracial marriage, public opinion inches on toward equality.

As Price notes, in 1958, only 4% of Whites approved of interracial spouses. A decade later, it was 17%, but it was not until 1997 that polls showed a majority (61%) approved.

The learning and approval curve with SSM may well be quicker. We can probably expect more legal changes to come with public acceptance. Legislators' principles are nothing if not fungible and relative to voters' opinions.

Look for a post detailing Professor Ball's article soon.

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