Phantom Fear

The enduring triumph of gay marriage in America

I don’t know how you celebrated Pride Month 2022, but for me the highlight was being stumped by the following trivia question:  Who was the first U.S. president in history to support same-sex marriage in his first run for the Oval Office?

The answer:  Donald J. Trump.

Admittedly, it’s something of a trick question.  When asked his position on the subject in November 2016—one year after the Obergefell decision—Trump stated, “It’s law.  It was settled in the Supreme Court.  It’s done.  […]  And I’m fine with that.”

That may sound more like an artful dodge than a full-throated endorsement.  As with all things Trump, its relationship to the man’s actual sentiments is tenuous at best and diametrically oppositional at worst.

Nonetheless, the then-future 45th president put himself on record in favor of the idea that gay people in America are entitled to the same marital benefits as straight people and he never reversed himself thereafter—something that none of his 44 predecessors can claim to have done.  Not even Barack Obama in 2008.

Obama, you’ll recall, toed a studiously nuanced—and arguably incoherent—line in his first presidential campaign by affirming the basic dignity and equality of homosexuals while simultaneously denying their right to marriage on religious grounds—a formulation now regarded as noxious bigotry and neanderthalism by every so-called progressive in America.

Obama’s official flip-flop—sorry, “evolution”—to the Right Side of History occurred in May 2012, when he informed Robin Roberts on “Good Morning America” that, upon further reflection, he was in favor of same-sex marriage after all—an announcement that, by some amazing coincidence, came 72 hours after his deputy, Joe Biden, blurted out roughly the same thing on “Meet the Press,” apparently of his own volition and without prior approval by his boss.

It was all bullshit, of course.  Then, as now, everyone knew Obama was secretly pro-gay marriage all along and was merely waiting for a politically opportune moment to say so.  Running for the Illinois State Senate in 1996—when a resounding 27 percent of Americans agreed with him—the future 44th president told a Chicago newspaper, “I favor legalizing same-sex marriages, and would fight efforts to prohibit such marriages.”  Unless one is to believe Obama is the only person in America who became more conservative on gay rights between 1996 and 2008, it becomes absolutely bleeding obvious that he tailored his public feelings about this issue to whatever he thought he could get away with at a given moment in time without risking his own political future.

It was cowardly and cynical.  It was also savvy and prudent—an act of rank political calculus that has characterized every Democratic president of my lifetime, each of whom has framed his social policy agenda entirely in the context of the odious Republican alternative—a dynamic Christopher Hitchens once archly summed up as, “Well, faggots, where else are you gonna go?”

Indeed, in the decade between the mid-2000s and the mid-2010s—specifically, between the Bush administration’s support for a constitutional amendment defining marriage as between one man and one woman and the aforementioned Obergefell ruling—I was effectively a one-issue voter, insomuch as I would not entertain casting a ballot for any candidate whom I deemed insufficiently sympathetic to the cause of gay civil rights.  In practice, this meant voting Democrat up and down the ticket pretty much every year—much in the way that many pro-life people spent decades using abortion as a litmus test for virtually every candidate for virtually every office.  So long as the battle for equal marriage rights remained unresolved, it was a moral necessity to only throw in my lot with those on the “right” side of the debate.  No compromise could be brooked.

That’s why Obergefell was liberating in more ways than one.  By proclaiming that it was unconstitutional for the federal government or any state to discriminate on the basis of sex with respect to marriage, the Supreme Court effectively settled the matter once and for all, freeing everyone on all sides to spend their time on other questions of public controversy. 

For me—and undoubtedly many others—this seismic paradigm shift in how homosexuals are treated by the American legal system meant that I no longer needed to blindly support every candidate who vowed to make gay marriage happen—not any more than, say, an alcoholic needed to stand with anti-Prohibition candidates following passage of the 21st Amendment.  The mission was accomplished.  The deed was done.  Best to declare victory and get on with our lives.

Such has more or less been the case in the subsequent seven years—a period during which roughly half a million same-sex couples have tied the knot and exercised their right to elect public officials for reasons that have nothing to do with securing their own liberty as Americans.  Like their heterosexual counterparts, they are now free to participate in the democratic process based on whatever concerns them on a regular basis, be it inflation, global warming, crime, immigration, abortion or whether their local schools should be teaching sexual orientation and gender identity to kindergartners.

However, in the aftermath of the Dobbs decision overturning Roe v. Wade and Clarence Thomas’s concurring opinion suggesting cases like Obergefell should be reexamined in like manner, Democrats have made a concerted effort to terrify their constituents into believing every civil right secured over the past half-century is at risk of being extinguished at a moment’s notice—a crisis that can only be addressed (one imagines) by funneling lots and lots of money to the Democratic National Committee.

Happily—at least with regards to Obergefell—this hysteria contains several major flaws and has little, if any, basis in fact.

For starters, Justice Thomas’s ominous concurrence was signed by him and him alone.  Among his five colleagues who agreed to overturn Roe—three of whom voted against Obergefell at the time—not a single one was willing to join him in suggesting the Dobbs decision should be applied to issues other than abortion.  Indeed, the controlling opinion, authored by Samuel Alito, explicitly says the exact opposite—namely, that the reasoning in Dobbs pertains only to Dobbs and is entirely a product of the uniquely shoddy reasoning in Roe.  No further conclusions need be drawn.

While the Court’s conservative bloc might ultimately side with Thomas should an actual anti-Obergefell case materialize, where is the national appetite to do so?  Where is the urgent moral imperative—even among the most socially conservative among us—to potentially invalidate tens (if not hundreds) of thousands of marriages that were entered into legally and have become accepted (however grudgingly) as just one more facet of the American civic character?  Who wants to deal with that kind of paperwork?

Unlike abortion, same-sex marriage is not a literal matter of life and death.  Nor are its detractors embarked on a pitched, zealous, ruthlessly-organized crusade to restore the soul of America, however many decades it might take.  Nor, for that matter, can its astonishingly high level of support in the United States—71 percent, per Gallop—be dismissed as a simplified or distorted data point that masks profound differences in how the practice is understood by different people (i.e., there is no matrimonial version of “I support it at six weeks but not at fifteen”).

In any case, should Clarence Thomas eventually get his wish and Obergefell be overruled, the actual impact—as with Dobbs—would be to return the issue to the individual states, 38 of which had already legalized same-sex marriage before Obergefell even came down the pike.  That leaves a dozen outliers whose legislatures would be compelled to defend the proposition that a preexisting civil liberty with nearly three-quarters support nationally should be excised within their own borders, almost surely causing a sizeable chunk of their gay residents to flee and resettle in more accommodating locales.

Why on Earth would they do that?

My suspicion—perhaps born of dangerous naïveté—is that they won’t.  That Justice Thomas’s theory of the 14th Amendment will not be realized in his lifetime.  That same-sex marriage is fundamentally not under threat in America in 2022, in part because so few people have the stomach to threaten it.

This past Tuesday, the House of Representatives passed the so-called Respect for Marriage Act, a piece of legislation that, if approved by the Senate, would guarantee federal recognition of gay married couples—and all the financial benefits therein—should such recognition be required in the future.  A mere 18 years after the Republican Party put its full weight behind a constitutional amendment to make all such couplings illegal in all 50 states, a full 47 Republicans joined the Democratic majority in this new initiative to enable homosexuals to fully engage their right to life, liberty and the pursuit of happiness from one end of the continent to the other.

I call that progress.