Could Gay Marriage Ruling Lead to a Second Civil War?
I keep thinking of something Hillary Clinton said during her presidential campaign in 2007. On the topic of gay marriage, she told LGBT leaders that “this has not been a long term struggle yet.” She was comparing the cause to the excruciating length of time it has taken racial minorities and women to achieve parity with white males. Clinton’s excuse bothered me at the time and still does, but it points to the prevailing attitude even among our allies in Washington politics: Yes, you gay folks deserve full equality in American society, but, unlike legislation through which we award billion-dollar bailouts to corporate giants, social justice for you takes time to build a case—years and years of time.
Well, let’s see; I began reporting on the gay liberation movement during the Stonewall riots in 1969. That was over four decades ago. I have personally campaigned for LGBT equality since 1971 and have been with the same partner since 1973. How much more time has to pass before I’ve waited long enough? Until I’m as old as Miss Jane Pittman?
If affirmation of the right of gay people to marry is left in the hands of Congress, it will probably take at least that long. Despite a Massachusetts court ruling this summer that the Defense of Marriage Act (DOMA) is unconstitutional and despite the President’s repeated pledges to repeal it, we’ve seen precious little progress in Congress. The Respect for Marriage Act, a bill that would repeal DOMA, has been stuck in committee since last October, and not even its 100-plus supporters believe they can muster the votes to win on the House floor. I wonder how hard they’re really trying.
So, the only hope I have of seeing gay marriage (or even civil unions) instituted (beyond a few cold-weather but warm-hearted states) in my lifetime rests in the hands of the nine justices of—gulp—the United States Supreme Court.
That’s exactly where the issue is headed as a result of U.S. District Court Chief Judge Vaughn Walker’s decision this month to overturn California’s Proposition 8. Like most of you, I rejoice at Judge Walker’s ruling which cites “overwhelming evidence” that Prop 8 violated due process and equal-protection rights under the Constitution. I was thrilled to see him point out in his 138 pages of well-reasoned arguments that basic Constitutional rights are never supposed to be put up to a public referendum. As Rachel Maddow noted on her show, no matter how many voters may disapprove, rights “are part of the deal if you’re an American.”
OK, so Walker’s ruling will go to the Ninth Circuit Court of Appeals, which may look upon it favorably. But whatever the appeals court does, the losing side will ask the Supreme Court to make a final ruling.
Many analysts believe it’s unlikely that there will be enough votes on the High Court to uphold gay marriage. That’s even if it wins the support of President Obama’s two appointments, both of whom have simply replaced other reasonable voices. Some say that Justice Anthony Kennedy is the likely swing vote, and he just might be persuaded by the overwhelming volume of evidence that gay folks do indeed have a constitutional right to marry.
If the Supremes go against us, the cause of gay marriage will be set back for years, probably decades. The heart of the gay rights movement will be broken and the wind taken out of our sails. There would have to be a massive change in public attitude (and state policies) before the top court would reconsider the matter. Even the youngest readers of this column would be as old as Jane Pittman before the United States tried again to become as enlightened as, say, Argentina. (Do cry for us, Argentina.)
But what happens if we win with the Supremes? To begin, the American legal system can expect to experience more turbulence than the cabin of a prop jet in a Rocky Mountain electrical storm. Will most of the 29 states that have constitutionally banned gay marriage simply acquiesce? Will their governors and legislators issue a joint statement, saying: “The highest court of our beloved nation has ruled, and we shall abide by the law of the land, allowing our queer citizens to wed one another. God bless America.”
I seriously doubt it. In fact, I don’t think it’s too much of a stretch to suggest that, if the Supreme Court rules in favor of gay marriage, the culture clashes of recent years could erupt into the Second American Civil War. Before you scoff, think about it:
One by one the legislatures of Southern red states decide to defy the Supremes’ interpretation of the Constitution, refusing to grant marriage licenses to male/male and female/female couples. Arkansas and Virginia declare that, after having been ordered to participate in the federal health care mandate, the gay-marriage decision is the final straw. They vote to secede. Alabama quickly follows, and governors from all the states with bans on gay marriage meet to draw up a new coalition of non-health-caring, non-queer-friendly states. They proclaim a new confederacy with the goal of forming a less perfect union.
Northern states from Vermont to Oregon are appalled and urge the federal Office of Civil Rights to crack down on states that defy the Supreme Court ruling. Other states must decide which side they’re on: New York, New Jersey, Delaware, Maryland and most of those with some kind of civil union or domestic partnership protections remain with the good old U.S. of A. Texas and Arizona (annoyed by federal meddling in its anti-immigrant laws) go with the secessionist movement, as do most southwestern states. Ohioans, Hoosiers, and North Carolinians are deeply torn, and violent skirmishes erupt from Columbus to Charlotte. South Florida separates from North Florida, which is annexed by Alabama.
Just as in the time of Lincoln (and again during the civil rights campaign of the early 1960s), federal troops are called out to face off against rebels who engage in terrorist tactics and feisty guerrilla-style warfare. Despite the superior weapon power of the U.S. forces, almost no one wants to nuke Nashville or Terre Haute, so the ground war wages on for years...
Is such a scenario just hyperbole on steroids? Perhaps, but we’d better brace for strong and significant defiance should the Supreme Court rule in our favor. We definitely can expect a feverish campaign to add an anti-gay marriage amendment to the U.S. Constitution. Such efforts have failed in the past, but now a majority of states have damaged their own constitutions by doing just that, while only five states (and D.C.) have enacted gay marriage rights. (Another eight offer marriage alternatives, which Judge Walker suggests is a classic case of “separate but equal” discrimination.)
Do the math, kids. Including only states with constitutional bans (not those with other laws) against gay marriage, the haters are a mere nine states away from the 38 they’ll need to amend the federal Constitution. To add to the uncertainty, ours is a nation with a great number of easily misled people; more than a quarter of our population still believes that the President was born outside the country. Heavy spending by rightwing lobbying groups could bring out a huge anti-gay vote in many places.
Although public opinion has been moving gradually in our direction, the issue may reach the Supreme Court quickly—within a year to 18 months. President Obama probably will not have an opportunity to replace one of the hard-line conservatives by then, and even if he does his nominee will face an uncertain confirmation fight, especially if the GOP increases its percentage of seats in Congress this fall, as is expected.
We must be realistic enough to recognize the odds are not with us for winning in the Supreme Court. And even if we do, would a victory mark the end of our battle for marriage equality, or will we be destined to years more of defending our right to first-class citizenship from a defiant opposition? I’d love to be proven wrong, but 40 years of experience makes me think I know the answer. Save me a rocking chair, Miss Pittman.
Bill Sievert’s new gay comic mystery novel “Sawdust Confessions” is available on amazon.com and at select book retailers nationwide. He can be reached at firstname.lastname@example.org.