After the Courts
I have to say that this "news analysis" in the NYT of the court decisions in New York and Georgia is one of the dumbest pieces of journalism I have read in a very long time. "For Gay Rights Movement, A Key Setback"? In some ways, I think the New York Court of Appeals decision will help, rather than hurt, the cause of marriage equality in the long run. Why? Because it will force the issue into legislatures, where it is best tackled, and where we will eventually win, and in one case, California, have already won. The courts have already done their job - in forcing this issue into the national consciousness, highlighting the grave injustice, correcting it in one state out of fifty, and allowing us to make such great headway in persuading people of our cause.
The basic argument made by the New York court is also not inherently damaging to the gay case. It's simply saying that the law is not on its face irrational (although it's deeply unpersuasive), and so the issue is for the legislature, not the court. What the New York court is essentially saying is: you have a case. You just made it to the wrong guys. Talk to the legislature.
The court surely has a point. And this is how these decisions can actually be a boon to the marriage cause. They may help galvanize a broader gay and straight effort to make the case democratically, rather than legally and constitutionally. Since our arguments are so strong, why would we leery of this? We have already made huge strides. We've seen dramatic polling drops in opposition to marriage for gay people in the last couple of years. The FMA has withered on the vine. We have civil marriage in one state, Massachusetts. That's a Big Deal. If someone had asked me seventeen years ago, when I helped pioneer this argument, if I thought that by 2006 I'd be engaged and planning a legal wedding in America, I would have wondered what they were smoking. But next year, I'll tie the knot - as thousands already have, in America and across the globe. In California, the legislature has already voted for civil marriage, and shows no sign of going back. These state court decisions, moroever, undermine even further the case for a federal amendment and reveal the extremism and un-conservatism of its backers.
I've long believed that as long as we can stop the FMA, we need only make our case as best we can, person by person, state by state, and wait for the younger, mellower generation to gain power. That's happening faster than I ever imagined - and the impatience of some gay activists is morally defensible but pragmatically excessive. Chill. We now have a chance to make our case where it is best made: in the legislatures and in the court of public opinion. In my view, the court strategy, defensible in theory, noble in intent, was fast becoming over-reach in practice. The New York case may have done gay people a favor in that respect. We have the better arguments. Let's make them - to the people and their elected representatives, and we'll win in the end.