Why Gay-Rights Activists Could Have Trouble Legalizing Gay Marriage

National Journal

It’s hard to remember now, but same-sex marriage was once little more than a thought experiment. When Andrew Sullivan wrote “The Conservative Case for Gay Marriage” for The New Republic in 1989, it was one of the first articles about the idea, and as then-editor Michael Kinsley recalled, the piece was more a way of sticking it to conservatives about gay rights rather than a proposal that the magazine believed could become policy. Less than 25 years later, all of the national momentum is behind same-sex marriage which is now legal in nine states and the District of Columbia. A new poll from The Washington Post shows 56 percent of Americans supporting gay marriage. Among those 18-29, the number is 81 percent. 

It’s worth remembering that social movements are sometimes stopped, like post-Civil War Reconstruction, and for those of a certain generation, the once-invincible Equal Rights Amendment to the Constitution. Both of these are different. Reconstruction was a federal occupation of the South and, when it was withdrawn, white supremacy was unabashed. The ERA was just one tool in the feminist arsenal; it may have been stymied, but the movement wasn’t.

Still, it’s instructive to go back to the 1970s and recall what happened. The Equal Rights Amendment, first proposed by suffragist Alice Paul, was introduced in Congress in 1923 by, among others, Susan B. Anthony’s nephew. Its words were simple: "Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex." It remained bottled up but at times was uncorked. President Eisenhower, for instance, called for its passage in 1958. Part of what slowed it was that many feminists were ambivalent, thinking it would end protective laws for women in the workforce. Most saw their elimination as a necessary step toward equality. Eleanor Roosevelt first opposed the ERA and then favored it. So did the League of Women Voters. By the '70s, it had huge support. It passed the House in October 1971 with 354 votes and the Senate the following March with 84. Presidents don’t get to vote on constitutional amendments, but Richard Nixon endorsed it. (So would President Ford and his wife, Betty, who was an ardent backer of the ERA.)

As with same-sex marriage, the most important battleground for the ERA took place in state legislatures. The ERA seemed to have unstoppable momentum when it came out of Congress with the necessary two-thirds majority in both the House and the Senate. Thirty states had passed it by the end of 1973. Then just three in 1974, one in 1975 and none in 1976 and one in 1977. Supporters had 35 of the 38 states needed but five states had actually voted to rescind their endorsement. There have been various efforts to rescuscitate the ERA since then, but it's a nonstarter.

The efforts of social conservatives to slow gay marriage were incredibly successful in California in 2008, when social-conservative groups pushed through the passage of Proposition 8, banning same-sex marriage in a state that gave President Obama a 24-percentage-point margin of victory that year over Sen. John McCain.

Much of the credit for stopping the ERA goes to Phyllis Schlafly, the social-conservative activist who, at 80, appeared at last week’s Conservative Political Action Conference. In the 1960s she was a strong Barry Goldwater supporter who was most famous for her pamphlet A Choice Not an Echo. Most of her devotion was to anticommunism and attacks on the likes of Henry Kissinger, whom she saw as an appeaser of the Soviets. But her attacks on the “women’s libbers” became her primary cause. Her powerful STOP ERA argued that the amendment would lead to single-sex bathrooms and prisons, the end of single-sex colleges or youth groups like the Boy and Girl Scouts, and—unimaginable at the time—same-sex marriages or women drafted into combat. "STOP" stood for Stop Taking Our Privileges, which included, she said, Social Security benefits for widows. Legal scholars argued that this wasn’t the case, but Schlafly had, more than anyone else, derailed the ERA.

Schlafly’s success doesn’t mean that gay marriage isn’t on the march. It’s an object lesson that movements can be halted, at least for a time. In 2008, California voters put the brakes on same-sex marriage by enshrining one-man-one-woman marriage in the state’s constitution. The Supreme Court will hear arguments against the Proposition 8 amendment next week and it may be overturned on broad equal-protection grounds or more narrow ones. But whether or not it’s upheld, it’s a reminder that states are treacherous terrain for activists. They may be laboratories of democracy but they can also be bulwarks of the status quo. Obama is fond of recalling the famed Martin Luther King Jr. quote that “the arc of the universe is long but it bends towards justice.” That may be so, but put the emphasis on “long.”

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