By Elvin Lim
New York has just become the sixth state to legalize same-sex marriage, together with Connecticut, Iowa, Massachusetts, New Hampshire, Iowa, and the District of Columbia. New Jersey, Maryland, and Rhode Island have not legalized same-sex marriage, but they do recognize those performed in other states. State by state, the dominoes against same-sex marriage are falling away as surely as reason must conquer unreason. President Barack Obama has been accused of allowing a state governor, Mario Cuomo, to be the leader on this issue. But on this issue, Obama’s hesitation and characteristic equivocation might turn out to be strategically, if unintentionally, wise, because civil rights issues are most effectively advanced by state legislatures, not national institutions.
Consider the bittersweet record of the Civil Rights movement. Brown v. Board of Education (1954) and the lesser known Loving v. Virginia (1967) (which legalized inter-racial marriage) were landmark Supreme Court decisions. But they created decades of backlash, most easily exemplified by the busing controversy as well as the “special rights” retort — the argument that a too-ready conferral of alleged rights to identity groups creates an atomistic society and a government with more obligations than it can or ought to fulfill — the lead argument against affirmative action policies today. In 1967, the year inter-racial marriage was made legal by “judicial activism,” 72 percent of Americans were opposed to inter-racial marriage. It was not until 1991, 35 years later, that these Americans became a minority. Brown and Loving gave us the right decisions, but not necessary with the smartest strategy.
The history of the same-sex marriage movement in the mid-2000s exhibited the same one step forward, two step backwards tendency when it tried to follow in the strategic footsteps of the Civil Rights movement, by way of Courts. In 2004, the Supreme Judicial Court of Massachusetts declared, in Goodridge v. Department of Public Health, that it’s inconsistent with the State’s constitution to limit marriage only to opposite-sex couples. Massachusetts became the first US state to issue marriage licenses to same-sex couples; a triumphant first hurrah, but ultimately a harbinger of backlash, including a national movement to amend the US constitution to define marriage as between a man and a woman, and the passage of amendments in 11 state constitutions to the same on election day. 2004 would be remembered as the of anti-same-sex-marriage backlash, not the year when the movement for marriage equality started.
But something remarkable happened in the last few years, when the movement decided that the “special rights” retort was too powerful to overcome. The movement suspended its alliance with the Courts, and turned, as presidential candidates must, to a state-by-state strategy. In doing this, the movement drove a knife into the the heart of the anti-same-sex-marriage argument. The argument against “activist judges” — a procedural argument that disguises the moral disgust — cannot stand when state legislatures comprised of elected officials redefine the meaning of marriage. Just seven years after a national hysteria against “judicial activism,” conservative groups are now left with one of two choices: either come out (no pun intended) and articulate the real moral or religious reasons why they are against same-se