Thu October 11, 2012
Mapping The Road 'From The Closet To The Altar'
Originally published on Thu October 11, 2012 2:20 pm
During a college visit to Colorado in September, Ruth Bader Ginsburg told students that she expects to rule this coming term on the Defense of Marriage Act. The 1996 law is already on its deathbed — since last year, the Justice Department has refused to argue in court for its constitutionality — but it remains on the books. That means the 130,000 or so married gay couples in America receive none of the federal benefits that straight married couples do.
Naturally, Ginsburg wouldn't be drawn out on how she'd vote. But Michael Klarman, a Harvard law professor, former Ginsburg clerk and author of a new legal history of same-sex marriage, thinks he already knows the outcome. "The handwriting on the wall is as clear as it ever gets," he writes. DOMA is going to be scrapped, and soon after same-sex marriage will be the law of the land.
How can he be so sure? Well, that's the story of From the Closet to the Altar, which looks at the litigation of gay life — and specifically gay marriage — from World War II to today. It comes on the heels of Victory: The Triumphant Gay Revolution, Linda Hirshman's excellent recent history of the American gay rights movement. Klarman's book, in turn, chronicles how the courts responded to that movement — and how judges who once dismissed gay equality out of hand now seemed poised to enshrine it in law.
In the 1970s and 1980s, gays made important strides on issues from police harassment to employment to health. But it wasn't until the mid-1990s, when Hawaii came close to legalizing same-sex unions, that both gay advocates and homophobes began their battle royale. The Hawaii case set off a state-by-state arms race to legalize or block gay nuptials: As of today, six states and Washington, D.C., allow same-sex marriages, with three more — Maryland, Maine and Washington — likely to join them this year.
The 50-state marriage battle may be messy, but it has had one major benefit: Some gay Americans can wed, and that has helped acclimate the country to its inevitable legalization nationwide. As a question of constitutional law, same-sex marriage is a no-brainer to anyone who has ever read the 14th Amendment. In his meticulous opinion last year, Vaughn Walker, the judge in the California case Perry v. Schwarzenegger (later Perry v. Brown), wrote that while laws concerning gays must be given "strict scrutiny," the highest level of analysis, a law forbidding gay marriage doesn't even meet the "rational basis test," the lowest level.
That doesn't mean any court will just say so, though. Klarman makes the point that when it comes to social issues, courts track American views pretty closely, and they expand rights only when the country can handle it without massive backlash. If sodomy laws were upheld in 1986 and struck down in 2003, it's not because of a change in jurisprudence; it's because America became a nation in which such laws were untenable.
Since 2010, in a shift more rapid than anyone predicted, poll after poll has shown that a majority of Americans support marriage equality. So when Perry or another case eventually makes it to the high court, it will be much easier for Anthony Kennedy — "undoubtedly the most powerful justice in the history of the U.S. Supreme Court," Klarman asserts — to continue the legacy he began back in 1980, when he wrote a surprisingly pro-gay opinion as a judge on the 9th Circuit Court of Appeals. And the 76-year-old Kennedy, who also wrote the decision that voided sodomy laws, probably has an eye on history.
"What justice," Klarman writes, "would not be tempted to author the opinion that within a few short years likely would become known as the Brown v. Board of the gay rights movement?"
Readers of From the Closet to the Altar, especially gay ones, might regret that Klarman seldom steps beyond the legal frame to discuss the history of marriage itself and why marriage has become nearly the only issue on the gay rights agenda today, supported even by those gays who disdain monogamy and the nuclear family. Like no other custom in America, marriage is a marker of civil equality, a question of citizenship as much as love. Opponents may suggest that marriage has some eternal, inviolable form, but marriage has in fact been altered and expanded throughout American history to reflect society's changing views toward women, racial minorities, debtors, the mentally disabled, prisoners and other populations once excluded from a bedrock civic institution.
But while Klarman may not give the full picture of marriage equality, his legal analysis is beyond fault — especially given how quickly the terrain is shifting. When his book went to press, the author could still write with a fair degree of assuredness that "Obama is unlikely to endorse gay marriage before the 2012 election," lest he lose support in swing states like Ohio or Pennsylvania. That outdated statement shouldn't be held against Klarman. On the contrary, it's just further confirmation of his argument that at this speed, and with this much support, the legalization of same-sex marriage is a near certainty.