Thursday, June 11, 2009

Magnanimous in victory?

Andrew Koppelman

Matters have moved very quickly for the same-sex marriage movement. Last week, New Hampshire recognized same-sex marriage, and Nevada enacted a domestic partnership bill giving unmarried couples who register (including same-sex couples) all the rights, benefits, and obligations of marriage.

Today, almost a quarter of the population of the United States lives in a jurisdiction that recognizes same-sex relationships as marriages or their functional equivalent. (The calculation is at the end of this post.)

The even bigger victory is longer term. Recent polls make clear that the opponents of same-sex marriage have utterly failed to pass on their views to the next generation. Same-sex marriage is coming.

The New Hampshire governor’s insistence on adding religious accommodations to the bill is a good sign. But he represents an isolated view. It remains to be seen whether the proponents of same-sex marriage will be magnanimous enough in victory to permit their defeated religious opponents, increasingly outliers in their own country, to live out their ideals unmolested by the law.

The battle for public opinion is basically over. A recent CNN poll finds that only 44 percent of Americans favor legal recognition. But there is a sharp generational divide: among those 18 to 34 years old, 58 percent supported same-sex marriages. That number drops to 42 percent among respondents aged 35 to 49, to 41 percent of those aged 50 to 64, and only 24 percent of Americans 65 and older. Other polls reach similar results. (It doesn’t help that these days opponents of same-sex marriage tend to offer no arguments at all.) No wonder such a rapid transformation of state law has occurred so quickly. With inevitable generational replacement, the triumph of same-sex marriage is just a matter of time.

This doesn’t mean that the political fighting has ended. This will continue, state by state, for a long time. But continued conflict is entirely consistent with inevitable victory. “The war is lost,” Albert Speer, Germany’s Minister of Armaments and War Production, wrote in a memo to Hitler on January 30, 1945. Russia had captured Silesia, whose mines provided 60 percent of Germany’s coal, and the war effort could not continue without coal. Hitler read only the first sentence, locked the report away, and refused to see Speer. And, of course, 1945 was one of the bloodiest years of the war, as Allied troops fought for every inch of German soil. The war was really over in January, but the fighting continued until May.

The New Hampshire bill was stalled for a while by the governor’s insistence, with which he surprised the legislature after the bill was passed, that the law include accommodations for religious organizations that objected to recognizing same-sex relationships. Such organizations, the law as finally enacted provides, are not required “to provide services ... to an individual if such request for such services . . . related to the solemnization of a marriage, the celebration of a marriage, or the promotion of marriage through religious counseling, programs, courses, retreats, or housing designated for married individuals.” Same-sex couples can be refused wedding-related services and marriage counseling by such organizations.

Some legal scholars, led by Michigan Law Prof. Douglas Laycock and including me, have been arguing that the religious accommodations don’t go far enough, and that individual religious objectors, as well as religious organizations, can safely be accommodated with no harm to same-sex couples. Discrimination has to be pervasive before it inflicts serious harm. But our proposal hasn’t got any political support so far. Even the governor’s weaker accommodation was resisted in New Hampshire, where the bill nearly failed because one legislator opposed the governor’s proposal and declared that he did not want to “enshrine homophobia into the statutes of the New Hampshire Legislature.”

A conversation with representatives of Gay and Lesbian Advocates and Defenders (GLAD), one of the principal legal and lobbying organizations pushing same-sex marriage, made clear that this legislator didn’t speak for the gay rights movement, and he did not influence many others. He mattered because the preliminary vote (later superseded) was very close. The GLAD representatives also said that they guessed that adoption of the Laycock proposal probably would not have attracted many additional votes (and, as the ultimate outcome showed, they are very good at counting votes). Opposition to religious exemptions did not come from the marriage equality proponents, they said, but from the legislators themselves, who were concerned about the effects of religiously motivated discrimination, not only against same-sex couples, but also against interracial and interfaith couples. (I’m inclined to think that religion-based discrimination of those kinds is so rare as not to be worth bothering about.)

As for the political irrelevance (at least in New Hampshire) of the Laycock proposal, the argument is not that the Laycock compromise is going to attract votes (though the governor’s insistence on some accommodation shows that it is not entirely devoid of political support, either). The argument is that it’s the right thing to do. When your opponent is beaten, you should stop hitting him.

Finally, here is the math. I rely on U.S. Census population figures for 2008: U.S., 304,059,724; Connecticut, 3,501,252; Iowa, 3,002,555; Maine, 1,316,456; Massachusetts, 6,497,967; New Hampshire, 1,315,809; Vermont, 621,270; California, 36,756,666; Nevada, 2,600,167; New Jersey, 8,682,661; Oregon, 3,790,060; Washington, 6,549,224. The first six of these call the relationships “marriage,” while the others use “domestic partnerships” or “civil unions.” See Cal. Fam. Code §§297-299.6 (West 2007); Nev. S.B. 283 (enacted June 1, 2009); N.J. Stat. Ann. §§26:8A-1 to 26:8A-13 (West 2007); N.J. Stat. Ann. §§37:1-28 to 37:1-36 (West 2008); Or. Rev. Stat. note following §106.990 (2007); Rev. Code of Wash. Ch. 26.60. The eleven states combined add up to 74,634,087, or 24.5% of the U.S. (For the first time, there are more states with same-sex marriage than with domestic partnerships or civil unions.) All figures are taken from

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