A Tipping Point for Gay Marriage?

Author: Adam Liptak
Publication: New York Times
Publication Date: April 30th, 2011

WASHINGTON — It’s not every day that a leading law firm fires a client for holding a position so extreme that it may be said to be unworthy of a defense. And it is rarer yet — unheard of, really — when that client is the House of Representatives and the position in question is a federal law.

Yet that is just what King & Spalding, a venerable Atlanta firm, did last week. Under pressure from gay rights groups and apparently fearful of criticism from the law students it recruits and the corporate clients it serves, the firm said it would not defend the federal Defense of Marriage Act against a challenge that it violates the Constitution.

The episode has so far mostly been discussed as a matter of legal ethics, and the firm has had a rough ride. But there is something larger going on, too.

For many gay rights advocates, the decision amounts to a turning point in the debate — the moment at which opposition to same-sex marriage came to look like bigotry, similar to racial discrimination and the subordination of women.

To opponents of same-sex marriage, the firm’s decision is the latest evidence that elite opinion generally and the legal culture in particular is racing ahead of popular opinion and shutting down a worthwhile debate.

“There is a big gap between elites and everyone else” over same-sex marriage, said Maggie Gallagher, the president of the Institute for Marriage and Public Policy, which supports traditional marriage. The polls and political science literature support her: What may be orthodoxy in faculty lounges remains an open question among the public at large.

Another critic of same-sex marriage said King & Spalding’s decision illustrated just how wide the divide between elite and mass opinion on same-sex marriage has become. “There is no doubting that the default position of the American academy is to dismantle the institution of marriage and remake it on a new basis,” Matthew J. Franck of the Witherspoon Institute, a conservative research group, wrote in a blog post on Friday. “The deadly combination of unchallenged liberal presumptions and casual intimidation of dissenters is probably at its worst in the most prestigious universities, which set the tone for the rest of the country, on this issue as on many others.”

Ms. Gallagher sounded bitter and besieged as she described how the nature if not the substance of the debate had shifted. “Either you’re with them or you’re a hater,” she said of gay rights advocates. “They’re trying to exclude you from the public square.”

Evan Wolfson, the president of Freedom to Marry, said he welcomed a conversation, but the arguments against same-sex marriage were so empty that they were not worthy of respect. “If you know that the only arguments that can be made for a position are discriminatory and harmful to real people,” he said, “you should think about whether you should make them.”

This latest skirmish in the culture war over marriage was prompted by the Obama administration’s decision in February that it would no longer defend in court the part of the Defense of Marriage Act that denies federal benefits to gay and lesbian couples married in states that recognize such unions. That decision was itself unusual and thus telling.

But it was only one indication of how quickly the battle lines are moving. In 2008, a federal judge in New York ruled that it was defamatory to call a straight man gay. Ten months later, a different judge of the same court, relying on what he called “a veritable sea change in social attitudes about homosexuality,” said there was no longer “a widespread view of gays and lesbians as contemptible and disgraceful.”

The second judge, Denny Chin, drew a comparison. In 1926, he said, New York’s highest court ruled that it was libelous to call a white man “colored” or “Negro.” Such rulings were common in much of the nation in the first half of the last century; they are unimaginable today in any state. The range of views that may be expressed in respectable circles can be a bellwether in judging what society is ready for, said David A. Bositis, an analyst at the Joint Center for Political and Economic Studies who has studied the politics of race.

“Part of the evolution of equality obviously includes moving from where statements are viewed as normal and accepted to being socially undesirable,” he said. “When some turning points in these struggles are reached, it becomes more and more unsavory to behave in some ways and take certain positions. In polite society, it’s no longer considered acceptable to make overtly racist statements.

“But in the case of gay rights,” he added, “those turning points still have a ways to go. I certainly can see that day coming. Compared with the civil rights movement for African-Americans, the movement for gay rights has proceeded with a remarkable degree of speed.”

Nathaniel Persily, who teaches law and political science at Columbia, says that today, a person’s education level is powerfully predictive of views about same-sex marriage. “Sometimes the norm of equality penetrates the elite levels first,” he said. In fact, the change of attitudes has moved farthest in the legal community, which has long embraced gay rights with a particular fervor, a point Justice Antonin Scalia complained about in a 2003 dissent that in a way predicted King & Spalding’s decision.

The “law-professional culture,” Justice Scalia wrote, “has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”

The decision Justice Scalia was dissenting from, Lawrence v. Texas, struck down a Texas law that had made gay sex a crime.

For the gay rights movement, that decision was a watershed akin to Brown v. Board of Education, the 1954 Supreme Court decision barring racial segregation in public schools, said William N. Eskridge Jr., a professor at Yale Law School and the author of several books on gay rights.

“We’re in the post-Brown era,” he said, “which for me is post-Lawrence. After Lawrence, there has been a social revolution in America.”

The analogy may be instructive in terms of timing. Thirteen years passed between the Brown decision and Loving v. Virginia, the 1967 Supreme Court decision striking down bans on interracial marriage.

“A large majority of supporters of racial integration and even nondiscrimination in the workplace did not believe that interracial marriage was tolerable,” Professor Eskridge said. “In race, the marriage issue was the very last form of discrimination struck down.”

If the comparisons are apt and the same judicial timetable holds, that means bans on same-sex marriage will fall around 2016.