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March 25, 2013 10:04 AM War Is Over

By Ed Kilgore

There will be a lot of talk this week about our culture and even our politics quickly outpacing the legal system on the subject of same-sex marriage, as the Supreme Court hears oral arguments in cases challenging the constitutionality of California’s Proposition 8 and the federal Defense of Marriage Act. But as Jeffrey Toobin succinctly notes at the New Yorker, a move by the Court in the expected direction will be fitting:

The litigation process has served the useful purpose of airing the rationalizations for discriminating against homosexuals. There are really only two reasons that gay marriage is still illegal in more than three-quarters of the country: that’s the way it has always been; and the very idea of same-sex marriage makes some people, well, uncomfortable. But courts, even the current Supreme Court, usually require that laws be justified by something more than tradition and bigotry.

“Fitting” isn’t quite the same as “critical,” though, because on this issue we are hardly talking about “activist judges” leading any sort of parade. It’s news, but not blaring news, this morning that red-state Democratic Sen. Claire McCaskill—precisely the sort of pol you’d expect to be terrified of this issue—has publicly announced support for same-sex marriage. And you get the sense that Republican politicians are watching each other closely for signs that it’s time to complete the brisk conversion process from “I oppose it” to “it’s an issue for the states to decide” to “it’s not a priority” to “fine by me.”

But the uncertainty on the Right isn’t surprising; it’s all happened pretty fast. Again, here’s Toobin on the relative position of litigation—which never happens fast—in this process:

When Theodore B. Olson and David Boies, the lead lawyers in the Prop 8 case, filed their lawsuit, in 2009, it appeared to many informed observers that they were taking a foolhardy risk. At the time, gay-rights organizations had been following a cautious, state-by-state approach, and it seemed that an adverse decision in a major federal lawsuit could set back the cause of same-sex marriage for a generation. But, whatever the Justices do, that’s not going to happen. The question about marriage equality for all Americans is not if it will pass but when. The country has changed, and it’s never going back to the way it was. Though the battles continue, the war is over.

Thank God for that, and let’s hope the enemies of change realize inflicting more casualties at this point is a waste of time and resources.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

Comments

  • c u n d gulag on March 25, 2013 10:19 AM:

    The war may very well be over, but the insurgency has yet to begin.

    Gays were such a great wedge issue, just, oh, what, 9 years ago?
    Conservatives are reluctant to let go of an effective wedge issue.

    Because, if you take the "gays" out of it, that just leaves them with "guns" - especially since they can't find a place to bring "God" into it, since presumably, HE could have prevented this whole thing, but chose to just spread his anti-gay word to them, and not to the rest of the country, which was growing much more accepting.
    And, abortion, of course.
    Wanting women to remain subservient, is Rule #1 for Religious Conservatives.

    I've said it before, but I'll say it again - I'm 55, and I can't believe what I've seen in these last few years.
    It's been amazing!
    Especially since I've had black girlfriends before, and back in the 70's and early 80's, not all of the people were cool with inter-racial relationships, and we got quite a few nasty-ass comments back then.

    Acceptance of gay marriage has happened much quicker than it took for inter-racial marriage to be acceptable.
    Whodathunkit?

    Let's not get complacent!
    There's still a hell of a lot of wrongs to right!!!

  • Josef K on March 25, 2013 10:21 AM:

    Thank God for that, and let’s hope the enemies of change realize inflicting more casualties at this point is a waste of time and resources.

    Alas, we know they won't "realize" any such thing. They've nothing to waste but time and resources, all of which to their minds will be be well-spent if it means holding off the encroaching darkness of depravity and societal collapse for one more day, even if it means a few more "justifiable casualties" like Matthew Sheppard are left to expire on a back-country road somewhere. Its not like they don't deserve what comes to them, after all.

    I try to understand mindsets like that, but I just can't. I try to have compassion and understanding and even reach for forgiveness, but frankly I'm falling far short of both with these people. Does that make me a bad person, or just as human as them?

  • T2 on March 25, 2013 10:29 AM:

    what Josef K said.

  • boatboy_srq on March 25, 2013 10:37 AM:

    While SCOTUS may very well silence the critics by killing off DOMA, DADT and Prop 8 in one fell swoop, with War, Famine, Pestilence and Death - er, Scalia, Alito, Roberts and Thomas - still on the bench, the arguments will have to be pretty bulletproof.

    As for the Reichwing reaction, regardless of the facts on the ground, this will indeed be one more instance of "activist judges" "reinterpreting the Constitution for their own ends" and "pandering to the Gawdless Secular-Humanist Librul Soshulists" with their decision. Grist for the mill come 2016, when "We're going to need a True Conservative™ in the White House" to help reverse all the Librul-Soshulizing and put those Other people back in their place. If these volk can turn against their own for the least infraction, then not only are Ginsburg, Sotomayor, Kagan and Breyer target-painted, but any of the other five will get a long, hard look from the Reichwing - and even less leeway than their less-loony fellows since as "True Believers in The Cause" they should not budge one micron on core issues like this.

    It may not make a substantial difference now, but if a Dem wins in 2016 then we may be seeing the seeds of Secession 2.0 taking root.

  • Rick B on March 25, 2013 11:13 AM:

    I'm curious. I've lived through the Civil Rights Movement and I've watched the Women's Rights movement grow, but the Gay Rights thing has been comparatively sudden. AIDS together with the death of Rock Hudson brought it to the surface publicly and the tactics from Civil Rights were applied, but DOMA seemed a big social roadblock.

    The Rove and the right-wingers used Gay Rights as a wedge issue to get out the shrinking conservative vote. Did this force the argument into the much broader public and speed up the process of getting to equal marriage?

    Before the Equal Marriage movement the War seemed to me to be pretty stable, with most non-LGBT people able to simply ignore the issue most of the time.

    Using Gay Rights as a political wedge issue by conservatives forced the conservatives to take the issue seriously and think and talk about it. They probably really t-d their closeted LGBT friends and relatives off and led some to come out even as they argued about how bad gay marriage would be. The broader media took off that set of blinders when they began to count up the cost of discharging LGBT individuals from the military.

    Did Karl Rove really speed up the acceptance of gay marriage?

  • docdave on March 25, 2013 11:20 AM:

    War over? Nah--not in states like mine (home to both Clinton and Huckabee) where that ol' devil Nullification is alive, well and heavily represented in both chambers of the state legislature. Here, guns 'n' fetuses are the policy dog whistles, since we-uns enacted a defence-of-traditional-marriage measure a session or two ago. Even the realistic advice of a centrist fiscal-conservative Democratic governor here has had little effect on the Young Elephants' enthusiasm for anti-abortion legislation just shy of North Dakota's, as well as safeguards for weapons-toting.


  • Sgt. Gym Bunny on March 25, 2013 11:58 AM:

    ditto Josef K.

    I don't have much faith in the GOTea's ability to intuit the self-destructiveness of their very public pyscho-babble coached as policy. If becoming uber-vitriolic about equal rights puts them in the grave sooner...well, heck, who am I to suggest they do otherwise?

    I say let 'em have at it.

  • golack on March 25, 2013 12:00 PM:

    ahhhh...States Rights...

    Last refuge of the scoundrel....

    Hence the locking in of "traditional marriages" via state constitutional amendments, while they still could.

    note to docdave, every fertilized egg has a right to a gun to protect itself....don't you know, every sperm is sacred...

  • jpeckjr on March 25, 2013 12:10 PM:

    @Rick B. "Did Karl Rove really speed up the acceptance of gay marriage?"

    When GWBush proposed amending the US Constitution to define marriage, it raised the profile of the issue. But it also complicated the issue because it proposed federalizing marriage, which had always been a state issue in this country. The "states rights" Republicans quietly objected to this federalization and the amendment never gained any traction. Had the Bushies not proposed the amendment, it could have remained the kind of thing you'd expect from that liberal blue bastion of Massachusetts.

    So, yeah, maybe Karl Rove did really speed up the acceptance of gay marriage.

    But, I think, what really sped it up is that gay people got married and nothing happened.

  • Herbal Infusion Bagger on March 25, 2013 1:01 PM:

    "But, I think, what really sped it up is that gay people got married and nothing happened."

    Gavin Newsom's looking pretty good right now.

  • smartalek on March 25, 2013 1:25 PM:

    Ditto everyone else's dittoing of Josef K's eloquent lament.
    But it's worse than that.
    Let's not forget that for Scalia, at least, and his handmaiden Thomas (possibly Alito, too), as important as is winning, that's really almost secondary. Don't forget that, to a True Believer, the real Battle is already won -- by God, and His loyal forces, as foretold in Scripture. Any setback is but temporary, and mere human failing. But the warriors are (conveniently) not judged by earthly success or failure, but by their efforts, and their hearts. (Hell, I suspect many of them WANT to be martyred, just like their Islamicist brethren, if not literally so.)
    Even worse, from a practical perspective, it's clear to anyone paying attention that Scalia and Thomas are not just would-be theocratic rulers, but of the enforcement arm -- ie, the Inquisition.
    To them, the infliction of pain, humiliation, and rebuke to their enemies -- all normal, decent Americans, that is -- is not just as important as winning the legal fights. For the above reasons (plus, at least in Thomas's case, obvious psychological ones), sadism on the opposition IS the point.
    "Inflicting more casualties" is thus never a "waste of time or resources," even when the battle has already been lost.
    It's what these people live for.
    And that's why Josef K's disdain isn't just validated, but required -- and makes him a far better human than any of them.

  • Rick B on March 25, 2013 1:40 PM:

    @jpeckjr

    Gay people have been getting married for a long time. Two gay guys bought a house next to that of my best friend in the 50's, and my friend's father moved to a different neighborhood. No one else noticed.

    As a Social Security Claims Rep I took a disability claim from a woman in about 1975. She then filed for her same sex wife. We had no process for dealing with that wife's claim, even to deny it, and the regional attorney refused to act on it. There simply was no law and Social Security deals with relative claims based on state civil law of relations.

    Even in the 70's though, Houston had Westheimer as a Gay neighborhood and Dallas had Oak Lawn. I was unaware of LGBT issues at that time. All I knew was the best clubs and restaurants seemed to be on or near Westheimer in Houston.

    What happened after Rock Hudson's death was that the media recognized the issue and after that. So did the evangelical churches (wedge issue and fear to fill pews.)Before that is was local mostly. That's my impression from the vantage point of Texas.

    But it's also my impression that LGBT issues still mostly stayed in the trenches until after Rove and his conservative buddies used it as a national GOTV wedge issue.

  • smartalek on March 25, 2013 1:44 PM:

    @ Rick B and jpeckjr:
    Don't know if you're aware of this, but there is some evidence that Karl Rove is another of the apparently inexhaustible supply of pathetic self-loathing closet-cases on the right.
    (Check out in particular the old New Yorker piece -- I think it was by Nicholas Lehman (sp?) -- that profiled him back around 1998-2002, when he was The Architect, Bush's Brain, and of course, "Turd Blossom." The story of how he first set eyes on the young GW, as a Young Publican factotum running an errand for the elder Bush, is almost undeniably a major crush collapsing on the kid. The young Rove's apparent focus on the exact shape of GW's butt could be amusing, in other circumstances. One might even have sympathy if it weren't for... everything.)
    So if Karl Rove really is, in part, responsible for the awesomely rapid progress toward justice in full equality for GLBTQ folks, it might just be another instance of God being, how's the phrase go? "Not without a sense of irony."
    But perhaps one that goes even deeper (as it were) than might be immediately apparent.

  • jpeckjr on March 25, 2013 1:58 PM:

    @Rick B. 1:40 p.m. Gay people have been forming committed relationships for a long time, yes, but legal marriage for gay people was not possible until 2004 in Massachusetts. The disability claim was not for a legally married couple no matter how long they had been together. And today, with DOMA as federal law, the disability claim would have to be denied even if the couple were legally married under state laws.

    The vantage point of Texas is not the only vantage point. Rock Hudson's death was not as important in broadening media attention to LGBT issues as was, I think, Anita Bryant's 1977 - 78 anti-gay campaigning.

  • jpeckjr on March 25, 2013 2:02 PM:

    @smartaleck. Yes, I am aware of that speculation about Mr. Rove. Until he himself does say something, I prefer not to think about his sex life. Actually, to the greatest extent possible, I prefer not to think about him at all.

  • jpeckjr on March 25, 2013 2:12 PM:

    @Herbal. Some folks would say Mr. Newsom's premature actions in 2004 led to Proposition 8.

  • smartalek on March 25, 2013 2:19 PM:

    "I think, what really sped it up is that gay people got married and nothing happened."

    Almost certainly part of it.
    And yes, I'm sure that the AIDs epidemic had something to do with it too.
    But there are three other causes that surely deserve credit as well.
    One is Hollywood -- or, as the wingers would put it, "Hollyweird."
    They were right to be afraid of the power of the media to show everyone that, guess what, GLBTQ people -- yeah, even the T ones (with whom even many prominent gays and lesbians had... hesitations... for far too long) -- are normal, healthy, unscary humans, just like everyone else (except often better dressed).
    Another -- and I believe this one's really the most important and powerful one -- is the often incredible bravery with which two-plus generations of GLBTQ people have come out over the past half-century-plus... some of whom paid with the loss of what they had thought had been their families; others with their jobs; and some with their very lives.
    They are the ones we REALLY need to be thanking, and never forgetting.
    But there's a third, and this one's important, too: that is, the essential goodness and fairness of most people, and -- arguably -- especially of Americans.
    It is, after all, an essential part of our founding ethos that we are fundamentally (heh) free to do... and to be... as we will.
    (Course, it would be nice if our friends on the right actually believed this, as we do. But they do provide helpful rhetoric from time to time, despite themselves.)
    Then again, given the relative rate of progress of other countries vs ours, maybe it's not especially American.
    Maybe it's just people. And maybe Ann Frank was right after all.