Val and I look forward to the day we can contribute to, volunteer for, and vote for the campaign for marriage equality in some future Colorado initiative or referendum. But, is that day inevitable?
As I have written about previously, I had a fairly typical conversion path to marriage equality with one early exception. I worked in the early ’90s in a company, Quark, that had both a lot of LGBT people and also allowed them to be themselves at work. By the early 2000s Val and I had accepted the entire premise of equality. It helped that most of the tough discussions happened even earlier in the Episcopal Church, which we attend, than in the overall US population. It also helped no one ever called us bigots.
There was a time in the early to mid 1970s when I thought broad access to abortion, the Equal Rights Amendment passage, and a host of liberal or moderate social causes were inevitable.
It is not news that Justice Ginsburg believes Roe v. Wade shut down the legislative momentum in state legislatures to legalize abortion and set a stage for a backlash. I have written about my own reluctant conclusion that although the policy in Roe is right, the actual case from a legal craftsman’s perspective is awful. Instead of relying on the right of women in the equal protection clause in the Fourteenth Amendment it relies on a tortured doctor’s privacy right in the Fourth Amendment. And we have faced a steady leveling of the issue with Pro-Life proponents often triumphant in conservative states. What was inevitable was not so inevitable.
The Equal Rights Amendment failed because time ran out on the last three states to ratify it. What had quickly made its way through Congress and most states suddenly stalled after 1973. It was not inevitable because of a seminal lawsuit or single event, but a growing resistance to a perceived arrogance of some of the proponents. What had been inevitable was not so inevitable.
I was concerned even as the LGBT community and all of its supporters won in the Supreme Court in overturning the Defense of Marriage Act (DOMA) and California’s Proposition 8. Concerned because I had just recently seen and met Justice Ginsberg at an event she addressed at the University of Colorado. Concerned because the campaign shifted largely to the courts.
Now we have the Mozilla incident, which to me appears to be an Old Testament Biblical revenge story. Mr. Eich the newly appointed CEO is hounded from his job at a supposedly diverse and open company for donating six years ago to Proposition 8 and being outed for that donation using California’s campaign disclosure law. Outed for being behind my curve of acceptance. This is the kind of event that could galvanize resistance not only on marriage equality but on campaign finance disclosure laws.
How could a backlash happen? There are a number of lower court cases finding a judicial right for marriage equality in individual states. Eventually one of these cases will make its way to the Supreme Court. What if the resulting opinion, which hangs thinly on Justice Kennedy’s swing vote, is indecisive. What if it somehow finds some sort of right for individual states to not perform same sex marriages? What if it is the basis for a Supreme Court case finding a constitutional right to make anonymous donations throughout the political system?
Could the LGBT community restart its legislative campaign? Or will we see the goodwill thrown away over an increasingly revenge driven campaign? Because to win in state legislatures requires more than a social media campaign amongst a Silicon Valley constituency. It requires at least a majority and in some states a supermajority.
Frank Bruni, who I really admire for his writing, in The New York Times this weekend proclaimed that marriage equality was indeed inevitable. I am not sure where he grew up, but I saw a lot of inevitable Great Society LBJ programs labeled the enemy of Southern culture. By the time I got to college Ronald Reagan had exploited a perceived Progressive arrogance to turn the conventional wisdom on social issues on its head.
And in 1980 Progressives assured each other that it was inevitable that the country would reject a Goldwater/Reagan vision right up until the moment voters elected President Reagan.