Thoughts on Full Enfranchisement for Gay Citizens

Thinking about the prospects for full gay enfranchisement**, I decided that I would try to predict when this might happen based on the historical model of desegregation. I know that comparing the gay rights struggle to the African American civil rights struggle is completely bogus when it comes to the question level-of-injury; my interest, rather, is on the when.

When can we expect the gay rights movement to reach it's initial completion state of full legal equality?

First, I looked on Gallup for opinion polling data on black civil rights (pretty hard to find on any other site ... I could go to the actual library, but ...).

The key dates are 1954-1965:

1954 -- the beginning point -- is the earliest point at which major civil rights progress is possible, and only through the Supreme Court. At this point, according to Gallup, 80% of the South opposes school integration, although a simple majority of the nation as a whole favors it. (Public Agenda puts the national figure in 1954 at 55% approve of Brown v. Board vs. 40% disapprove.) In 1957, at the time of the forced integration of Central High in Little Rock, 51% nationally favor integrating that school by force "now," 25% favor waiting at least a year, and 16% say "never integrate."

1965 -- the ending point -- is the passage of the Voting Rights Acts, following the Civil Rights Act of 1964. In that year, says Gallup, 64% nationally favor a gradual approach to enforcement of the law. Public Agenda says 62% approved of the law while 27% opposed it. (A somewhat higher percentage -- 80% -- support equality in education, employment & voting, though not in private businesses like lunch counters, while a much lower percentage -- 57% -- approve of the Freedom Summer organizing effort in the South and as many as half think that civil rights demonstrations in general are bad for the cause.)

In between the 2 dates, we find the major sit-in's marches, boycotts, legal challenges & Freedom Summer voter registrations that lead to major legislation. Afterwards, the struggle continues, but the major goal then is enforcement of the law, expansion of the definition of rights, the passing of local laws, and the struggle for full social change.

Again, I want to stress that this "decade of rights" cannot be compared qualitatively to the rights sought by gays & lesbians now. The more direct comparison would be with laws relating to interracial marriage & miscegenation (although Loving v. Virginia, in 1967, comes roughly at the end of this decade). Rather, I'm interested in the public opinion tipping point that allows for a lot of changes to happen very quickly.

So, with that in mind, here are some statistics from a recent Newsweek article (http://www.newsweek.com/id/172399) following the controversial passing of California's Proposition 8 last month and the ensuing protests of the Latter-Day Saints and other churches and businesses that supported it:

"Americans continue to find civil unions for gays and lesbians more palatable than full-fledged marriage. Fifty-five percent of respondents favored legally sanctioned unions or partnerships, while only 39 percent supported marriage rights. Both figures are notably higher than in 2004, when 40 percent backed the former and 33 percent approved of the latter. When it comes to according legal rights in specific areas to gays, the public is even more supportive. Seventy-four percent back inheritance rights for gay domestic partners (compared to 60 percent in 2004), 73 percent approve of extending health insurance and other employee benefits to them (compared to 60 percent in 2004), 67 percent favor granting them Social Security benefits (compared to 55 percent in 2004) and 86 percent support hospital visitation rights (a question that wasn't asked four years ago). In other areas, too, respondents appeared increasingly tolerant. Fifty-three percent favor gay adoption rights (8 points more than in 2004), and 66 percent believe gays should be able to serve openly in the military (6 points more than in 2004)."

"Despite the recently approved state measures, public opinion nationally has shifted against a federal ban on same-sex marriage. In 2004, people were evenly divided on the question, with 47 percent favoring a constitutional amendment prohibiting gay marriage and 45 percent opposing one. In the latest poll, however, 52 percent oppose a ban and only 43 percent favor one. When respondents were asked about state measures, the numbers were closer: 45 percent said they'd vote in favor of an amendment outlawing gay marriage in their states, while 49 percent said they'd oppose such a measure."

"While in 1994, a NEWSWEEK Poll found that only 53 percent of those questioned knew a gay or lesbian person, that figure today is 78 percent."

A series of figures on attitudes toward the morality of homosexuality, gay marriage and other gay rights from June, 2008 can be seen here: http://www.gallup.com/poll/108115/Americans-Evenly-Divided-Morality-Homosexuality.aspx. (Although it should be noted that a lot of people have noticed a spike in opinion changes SINCE the California vote a month ago, which may be evidence of a "tipping point" phenomenon.)

So ...

Here's my basic thesis: The fate of gay marriage specifically, and gay enfranchisement generally, in terms of historical time, may be compared to the African American civil rights struggle in the mid- to late-50's. This means that full legal enfranchisement on the national level could be expected in 9-12 years, with some legal victories and many regional victories coming much sooner than that.

Basically, the idea is that when just over half of the population nationally (varying *greatly* by region, now as in the 50s) say they they favor at least the idea of equal rights under the law -- if not necessarily full legal rights nor the enforcement of equal treatment by private institutions -- the "decade of rights" has essentially begun. It is not surprising that the state-level constitutional marriage bans of recent years might have provoked this beginning, much as events in the South in the early 50's provoked a new level of national scrutiny, and participation in the struggle at many levels. One could also point to the coming-of-age of a more integrated and/or aware generation, and the passing on of a very conservative group (in the 50's the last people to remember slavery or to have direct grievances about outcome of the US Civil War ... in the 2000's surely some of the people who masterminded local police "vice squads" or at least whose adulthood completely predated any part of the sexual liberation movement).

Additionally, one could point to the desperate tactics used in support of CA-Prop 8 as evidence of the rapidly increasing worry of the defenders of the status quo ... a sure sign that they do in fact have something to worry about. Similarly, the desperate organization of racists in the 50's spoke to their real fears that things were indeed on the verge of changing.

Also, I think you can compare the numbers for "Civil Unions" or "Partnerships" (but not full Marriage) to those who favored limited rights, or "gradual enforcement of rights" in the 50's and 60's. These are basically the people "in the middle" who make up the group of 10-15% of the population who will "change sides" over the next decade, allowing for a watershed of rights-awarding to take place. We could speculate about members of this group ... Many, perhaps, are relatively conservative people who perhaps don't consider ideological conservatism or social conservatism as something that defines them. Therefore they can be moved by personal experience or by cultural experience or national experience (i.e. reading about a hate crime or an un-adopted child, or having a gay friend or family member). Also, probably, they'd like to see change without the kinds of social protest and life-disrupting activity that they might (being also habitually conservative) see as "unpleasant" or "unnecessary". So, like those who viewed lunch counter sit-ins and registration drives and marches with unease, this group probably would show lower support statistically for the current peaceful demonstration and occasional civil disobedience by the gay rights movement. Nor would they be particularly interested in becoming involved directly. Perhaps the most open-minded would, or would support the cause privately, financially, among their closest friends or in other "quiet" ways. The least open-minded, perhaps, would just have a wait-and-see attitude, indifferent but not against.

In saying that, I realize that I am dismissing the idea of the Civil Union. To be honest, I think many states (for now: Vermont, New Jersey & Hampshire, and to a qualitatively limited extent 4 other states) will pass Civil Union laws in the coming years, but this could never be the national standard for very long because of the legal precedent of Brown. Separate-but-equal simply cannot stand in the Supreme Court unless they bypass legal principle for ideology altogether. So they would either have to strike down civil unions or elevate them to marriage. (Or they could recommend conversion of ALL civil marriages, heterosexual & homosexual, into civil unions, making marriage itself a private/religious matter, but this seems unlikely.)

So ... People, you have your mission. One decade to change the minds of 10-15% of relatively flexible people "in the middle" who currently favor limited rights but not full rights ... or who may be okay with full rights but unwilling to implement them quickly or forcefully. Towards the beginning of this decade we can hope for legal victories (like in the California and Connecticut Supreme Courts in 2008) and towards the end of this decade (roughly 2018) we can hope for an omnibus law similar to the Civil Rights and Voting Acts of 1964 & '65.

One caveat: We do not currently have a Supreme Court similarly open-minded to that of 1954 (Warren, Black, Reed, Frankfurter, Douglas, Jackson, Burton, Clark & Minton were unanimous in Brown v. Board of Education of Topeka). Breyer, Ginsburg & Stevens would likely support some version of gay marriage if the right challenge were presented (though it might take more time to advocate it fully, or to mandate enforcement at "all deliberate speed" as with Brown II in 1955. Scalia, Alito, & Thomas would definitely be opponents. Chief Justice Roberts is a probable opponent, but a youngish man still and not a total ideologue ... so maybe not forever. David Souter is a probable supporter, but he is not predictable. Kennedy, although a conservative, is considered the "swing vote" for his flexibility ... He authored Lawrence v. Texas (striking down the Texas sodomy law) and also favors the rights of discriminated gays to file suit and collect damages, although he opposed forced integration of the Boy Scouts. So, in all likelihood, we need a change of one or two of the more conservative group during the Obama years (the first 8 of our "decade") ... as well as retention of the socially progressive (meaning, for example, that Stevens and Ginsburg may retire so long as Obama is able to replace them with justices who would vote in favor of same-sex marriage). We need only one if they can bring Kennedy on board with them, and two if they can't. Roberts & Alito are far too young to retire in the next 8 years barring accident. Thomas, at 60, is unlikely to go if he can help it, since he's very ideological and would not want to be replaced by anyone but a right-winger. Scalia, unfortunately, would not turn 80 until Obama's 8th year in office, 2016, and many justices historically have served into their 80s. He probably doesn't want to go either.

So we are facing the possibility of no Brown at the national level, at least no resounding and unanimous one. It's a shame, too, because the Court would be the best place to get a national gay marriage law the soonest, especially during these first years when the national support level for gay marriage rights is still in the process of increasing but not yet at 60+ %. It should be noted, though, that Kennedy (and perhaps Souter) could be members of our 10-15% group. So let's hope they get some more gay kids/grandkids.

There are some other factors worth looking into, but I'll leave that for later. European precedent can sometimes be an important factor in civil rights, especially the UK, which has a close legal relationship with the US. (Members of the profession in both countries sometimes consult the precedents of, and occasionally do brief stints of study in the other.) To give a couple of examples: England abolished slavery, though not indentured labor in the colonies, in 1833 (30 years before the 13th amendment in the U.S., but after the decline of slavery in the U.S. north), and the U.K. legalized abortion in 1967 (concurrent with the legalization of abortion in some U.S. states and 6 years prior to Roe v. Wade). Women won the right to vote incrementally between 1918 and 1928 in Great Britain (concurrent with US amendment in 1920). Since 2004, the UK allows same-sex couples to enter into "civil partnerships" with identical rights and responsibilities to civil marriage (including parental rights for partners and the whole ball o' wax). In a notable 2006 case, the High Court of Justice rejected recognizing a same-sex marriage from Canada, but allowed the couple civil partnership status in the UK. Basically then, we can say the UK currently has a national separate-but-equal law ... although citizens there view gay and lesbians in slightly higher terms, with a lower percentage taking a negative moral position on homosexual acts. (The uniquely religious character of the US has to be taken into account, though it seems there are a fair number of religious people willing to grant rights and protections to gay people while not approving of gay sex or gay cohabitation as an act per sé.) Anyway, as far as the rest of Europe, it's gay marriage in the Netherlands, Belgium, Norway and Spain for now, with unions in 9 more countries, and being considered in several more. There are almost no "bans" on same-sex marriage except in Serbia, Latvia and Lithuania. The only western European countries without either marriages or unions for same-sex couples are the two most Catholic, Italy and Ireland, and were also the last two *by far* to grant divorce rights (in 1970 and 1997, respectively. Have you seen the 1961 film Divorce, Italian Style? Well, to sum it up, divorce "italian style" turns out to be murdering your spouse.)

In closing, I would just say that anyone who doubts that same-sex marriage is not coming soon is most likely not serious about history. That's blunt, but its true. In a matter of decades, the only places in the world without same-sex marriage will be the same places that still don't provide for divorce: Malta, the Philippines, and Vatican City. (Of course, most people living at the Vatican probably aren't allowed to be married at all anyway, right?)

And also, consider this the late 50's or early 60's, meaning that it's bus boycott and sit-in time. So what can you do? My wife and I considered delaying our wedding, the very threat of which I think announced at least to people close to us that we considered the issue personal and not distant nor theoretical. In general, I think it's time to get face-to-face with any fence-sitters who casually oppose gay marriage ... or who do not support it. Let them know that in historical terms, not being in favor of equal rights is now as egregious as favoring public or private segregation in the late 50's.

People:
These are no longer the Stonewall sixties, nor the Harvey Milk seventies, nor the AIDS eighties, nor the Will & Grace nineties ... just supporting hate crimes legislation or don't-ask-don't-tell, or having gay friends or liking gay performers doesn't count anymore. If that's all you do, you're as behind the times as a 1960 racist.


---

** What constitutes full enfranchisement is a topic for another post, but I'll say briefly that no "separate but equal" institutions nor legal categories would suffice. The exact same marriage rights, parent rights, adoptive parent rights, employee rights, employee partner rights, & rights in publicly assisted organizations (i.e. Boy Scouts, the military, etc) must be accorded. Additionally, specific anti-hate and anti-discrimination legislation would be toughened, and, in some cases, retroactive action would be needed to secure benefits (for example: to a any working or retired couple that wants to share partner health insurance benefits retroactively without recourse to the "change of life" clause in most policies). As regards reparations, we'll leave that issue aside for now. It could be argued that many other groups are also deserving of historical reparations, and it's hard to gage whether there is any predictable timetable for this happening.

P.S. Funny Names: Two kinds of limited civil union, called "Significant Relationship" and "Caring Relationship" are available in ... wait for it ... Tasmania! France has the "pacte civil de solidarité" (civil solidarity pact).
P.P.S. Some notable socially conservative places have gay unions of some kind including -- Mexico City (*very* limited partnership here, but still, more than New York has) and Coahuila de Zaragoza (the rural Mexican region that lies due south of Odessa, Texas and west of Monterrey). Also Slovenia, the Czech Republic, Uruguay and FULL MARRIAGE IN SOUTH AFRICA since 2006 (unions since 2002).