In one remarkable summer, three federal judges in three very different parts of the country have struck down laws depriving homosexual Americans of rights everyone else takes for granted. This is what an emerging consensus looks like.
Those of us who are over 50 or 60 years old have seen it before. Civil rights for women and racial minorities did not spring directly out of a couple of key Supreme Court rulings, like Brown v. Board of Education (striking down “separate but equal” schools) or Loving v. Virginia (overturning bans on interracial marriage). Such rulings laid the foundation, but the edifice of freedom was built by district judges, the journeymen of the federal court system, who turned the Supreme Court’s raw material into something like a finished product.
There were innumerable cases upholding the rights of racial minorities to rent or purchase homes, or of women to be allowed inside ostensibly private clubs that were actually places of public accommodation. Opponents objected that neither the law nor the courts could change what was in people’s hearts. True enough. But the law could, and did, change the way people treated one another — and as the treatment changed, the public’s attitudes did, too.
The judges probably overshot the mark on occasion. There is still principled disagreement on where to draw the legal lines in some areas, especially on affirmative action or busing to achieve racially integrated schools. But not too long ago, if you believed that help-wanted ads specifying male or female applicants should be permitted, or that states ought to ban interracial marriage, you were just somewhat to one side of the political spectrum. Today, those views would place you in what the rest of us consider the lunatic fringe.
Given the recent trends, it was not a huge surprise last week when a federal judge in Riverside, Calif., struck down the "don't ask, don't tell" policy that has dictated the military’s treatment of gay service members since 1993.
U.S. District Judge Virginia A. Phillips wrote that the law’s restrictions preventing gay service members from discussing their sexual orientation “not only are broader than reasonably necessary to protect the Government's substantial interests, but also actually serve to impede military readiness and unit cohesion rather than further these goals.”
Phillips, 53, was raised in Orange County — at the time, a bastion of conservative politics in suburban Los Angeles. President Bill Clinton appointed her to the bench in Riverside, a largely blue-collar and working-class area of newer suburbs carved out of the desert south of San Bernardino.
In early July, U.S. District Judge Joseph L. Tauro of Boston struck down a major part of the federal Defense of Marriage Act, which prohibits same-sex marriages from being recognized for federal purposes. Tauro, a 79-year-old Richard Nixon appointee, wrote that the law’s distinction between same-sex and opposite sex couples was motivated solely by “irrational prejudice” rather than by any legitimate legal rationale.
Then, last month, U.S. District Judge Vaughn Walker of San Francisco declared that California's Proposition 8 ballot initiative preventing same-sex couples from marrying was unconstitutional. The proposition lacked “any rational basis,” Walker wrote.
Opponents of same-sex marriage, like their ideological forebears a generation ago, have predictably accused these judges of judicial activism. Tony Perkins, president of the Family Research Council, a conservative group, commented on Phillips’ ruling: “It is hard to believe that a District Court-level judge in California knows more about what impacts military readiness than the service chiefs who are all on record saying the law on homosexuality in the military should not be changed.”
The don’t ask, don’t tell law permits gays to serve in the military as long as they do not acknowledge their sexual orientation or act on it. In other words, since this law was enacted in 1993 — as a compromise to end the military’s earlier ban on service by homosexuals — it has been possible for gays and lesbians to serve in uniform, provided they remain both silent and celibate. No such restriction applies to heterosexuals.
In the case brought by the Log Cabin Republicans, a group of which I am a member, Phillips ruled that the law violates gay service members’ free speech and due process rights.
District judges are trying to apply the guidelines laid down by the Supreme Court in its 2003 decision in Lawrence v. Texas, striking down that state’s criminal sanctions against consensual homosexual activity by adults. In a dissent in that case, Justice Antonin Scalia famously predicted that the ruling would lead to the acceptance of same-sex marriage. As the recent cases proceed through the appeals process, we most likely will soon learn whether he was right — and he probably was.
It would be nice if our elected leaders did not wait for judges to blaze the trail. Sometimes they rise to the occasion, as with the Civil Rights Act of 1964. But, too often, politicians are happy to let the courts take the lead, and the blame, for setting the pace of change.
The public may be getting ahead of the politicians. A CNN poll in April found, for the first time, that a majority of Americans supported gay marriage. Other polls give more conservative estimates, but it is still clear that the number is growing. In 1996, when DoMA was passed, only about a quarter of Americans said same-sex couples should be able to wed.
Support for gay marriage is particularly strong among younger voters. Over time, gay marriage will likely cease to be an issue. As more states and countries recognize same-sex unions, the legal and practical complications in holdout jurisdictions will quickly become absurd. Not everyone is ready to concede this, but same-sex marriage is here to stay, and before too many more years pass, it is likely to be recognized everywhere in this country.
The current president is the product of a biracial marriage that was illegal in more than a dozen states at the time he was born. He nevertheless opposes marriage rights for same-sex couples.
At 49, Barack Obama is very likely to be around at a time when gay marriage is as common and as accepted as interracial marriage is today. I doubt he'll talk much then about how his administration defended “don’t ask, don’t tell” and opposed same-sex marriage back when the issue really mattered. I, on the other hand, will always be proud to say that I was a member of the Log Cabin Republicans, the group that successfully challenged the law that sought to keep gays in uniform locked in the closet.