Tuesday’s Massachusetts Supreme Judicial Court ruling that gay couples cannot be barred from the benefits and obligations of civil marriage has thrown an incendiary issue into the middle of the 2004 election. Although the court was interpreting only the Massachusetts Constitution and its ruling was stayed for six months, the reverberations will be felt across the United States — perhaps most deeply in socially conservative states where legislators may fear that their state courts may at some point be compelled to give legal recognition to marriages between gay people.
“THERE WILL be those who try to use the decision today to divide Americans,” remarked Democratic presidential front-runner Howard Dean. In fact Americans are deeply divided on this issue, if polls and interviews with voters are any guide, and elections tend to exacerbate divisions on such issues.
A new national survey of 1,515 Americans, released Tuesday by the Pew Research Center, found that opposition to marriage between gay people has risen from 53 percent in July to 59 percent in Pew’s current survey. The poll was conducted from Oct. 15 to Oct. 19.
The survey also found that nearly four out of five voters who favor re-electing President Bush oppose marriage between gays.
But voters who want a Democrat elected in 2004 are split, with 46 percent favoring legal recognition of marriages between gays and 48 percent opposed.
Republicans in Congress are almost certain to respond to the Massachusetts ruling by accelerating consideration of the Federal Marriage Amendment, which 96 members of the House are co-sponsoring.
“Marriage in the United States shall consist only of the union of a man and a woman,” the proposed amendment says.
If the 2004 election becomes partly a battle over the constitutional amendment, the struggle may well mobilize committed social conservatives to get out and vote.
Republican strategists are likely to frame the issue as one of judicial activists on the bench imposing their values on the people. Republicans take their cue from Supreme Court Justice Antonin Scalia’s dissent in the July decision that struck down state anti-sodomy laws.
Scalia said judges should not force their views of gay rights on the American people. “The premise of our system is that those judgments are to be made by the people and not imposed by a governing caste that knows best,” Scalia said.
Referring to the proposed marriage amendment, Evan Wolfson, head of a group called Freedom to Marry, told MSNBC.com Tuesday, “There will be tremendous pressure from right-wing groups to write discrimination into the Constitution. Most Americans will reject that pressure. People will see that there is no good reason for denying gay people the protection of marriage.”
Wolfson pointed out that the Massachusetts decision does not require implementing legislation by the Massachusetts legislature. “In six months, licenses will issue” to gay couples, he said.
The Massachusetts legislature could try to amend the state constitution, but that would require a ratifying vote by the people.
The Massachusetts ruling gives marriage for gay people legitimacy, and Wolfson said the news media could perform a useful service by ceasing to use the phrase “gay marriage” as if it were a separate legal entity. “You wouldn’t say ‘black marriage,’” he said.
DANGER FOR GOP
If Republican strategists decide the better part of valor is delay or muting of the marriage issue in 2004, then conservatives at the grass roots may be demoralized. Some might even stay home sulking on Election Day rather than turn out to cast ballots for GOP candidates.
The electoral stakes are enormously high for Democrats, too. It is no accident that of the 96 co-sponsors of the constitutional amendment, only eight are Democrats, all of them from the South and the rural Midwest.
One outcome the Democrats cannot afford in next year’s elections is a total wipe-out in the South and the rural Midwest. Whether the Republicans use marriage as a “wedge issue” or not, anything that repelled Southern and Midwestern voters from the Democratic ticket would be costly.
It is no wonder that most politicians on both sides reacted cautiously to Tuesday’s news. One bracing exception, as he so often is, was Democratic presidential hopeful Rep. Dennis Kucinich. The Ohio congressman plays a useful role in the Democratic presidential fray of sharply defining issues and taking positions many rank-and-file Democrats privately say they support but fear are too provocative.
“The right to marry is a civil right that should not be denied,” Kucinich said in a statement. “I support federal legislation for civil marriage between same-sex couples. Civil unions do not provide equal rights to lesbian, gay, bisexual and transgender Americans.”
He added, “Civil unions are a kind of limbo with regard to governmental functions … such as taxation, pension protections and provision of insurance for families.”
A SHOT AT DEAN
Kucinich’s reference to “civil unions” was aimed directly at Dean, who as Vermont governor signed the nation’s first civil unions law, which gives gay couples the same rights as heterosexual couples.
For some activists Dean’s civil unions law is an unsatisfying half-measure. Democratic presidential contender the Rev. Al Sharpton has compared it to “saying we’ll give blacks or whites or Latinos the rights to shack up but not marry.”
Dean issued a statement Tuesday that praised Massachusetts for, as he saw it, following Vermont’s wise leadership.
“The Massachusetts Court appears to have taken a similar approach to the Vermont Supreme Court and its decision that led to our civil unions law,” he said.
Dean did not answer the question of whether Massachusetts should allow marriage between same-sex couples. He implied that the exact legal mechanism did not matter too much. “One way or another, the state should afford same-sex couples equal treatment under law in areas such as health insurance, hospital visitation and inheritance rights,” he said.
Other Democratic contenders were careful to voice disapproval of marriages between same-sex couples even as they affirmed their support for equality.
Massachusetts Sen. John Kerry said, “I continue to oppose gay marriage,” but he also said he believed that “gay men and lesbians should be assured equal protection and the same benefits — from health to survivor benefits to hospital visitation — that all families deserve.”
Connecticut Sen. Joe Lieberman also noted, “I am opposed to gay marriage,” but added, “I have also long believed that states have the right to adopt for themselves laws that allow same-sex unions.”
Lieberman, Dean and Rep. Dick Gephardt warned of GOP attempts to exploit the issue. Gephardt cautioned voters, “Don’t get side-tracked by the right-wing into a debate over a phony constitutional amendment banning gay marriage.”
But were the Democrats perhaps warning about something that might ultimately benefit them? For every rural Southern district the Democrats worry about, there is a suburban district Republicans fear losing — places such as Montgomery County, Pa.
The best outcome for the Democrats might be for the Republicans to over-reach, to appear to be pushing the constitutional amendment in a gratuitous exercise.
All this might be moot if the legal controversy were confined to the state of Massachusetts. And due to Bill Clinton there’s a legal mechanism, for confining it: The Defense of Marriage Act, or DOMA — signed into law by Clinton in 1996 — says states can refuse to recognize same-sex marriages performed in other states.
(Lieberman and Gephardt voted for DOMA, while Kerry voted against it.)
But some legal scholars wonder whether DOMA would be held to be constitutional by the courts, and some gay rights advocates have promised litigation to overturn DOMA.
If elected president, Dean has vowed, he would “do everything in my power” to repeal DOMA.