Ending the same-sex marriage wars

Real victory is converting your opponents. So the recent Gallup poll finding that 70 percent of Americans support same-sex marriage is a big deal, not just for the size of its numbers, but for the fact that this majority now includes 55 percent of self-identified Republicans. At this pivotal cultural moment, it is worth reflecting on what has happened — and what remains to be done. 

This could be the end of a bitter cultural war, or the beginning of a new one against the conservative Christians who are not yet reconciled to the new status quo. I’m on the winning side. I’d like to be magnanimous in victory. It’s time to end the war. 

Cultural change happens for a lot of reasons. The birth control pill separated sex from reproduction. The civil rights movement and the Vietnam War called traditional sources of moral authority into question. Psychiatrists started looking for actual evidence that homosexuality was (as had previously been posited) a mental illness, and discovered that there wasn’t any such evidence. Most importantly, a small group of astoundingly courageous gay people came out of the closet, declaring that there was nothing wrong with them, and they turned out to be shockingly normal.

All this diminished prejudice against gay people. But that could not have generated support for same-sex marriage until it was a live issue on the national agenda. That happened in 1993, when the Hawaii Supreme Court handed down a decision that made it seem likely that same-sex marriage would be recognized in that state. 1996 was the first year that Gallup even asked a question about same-sex marriage, which only 27 percent of Americans supported. 

Politics is not just about who wins political fights. It is also about what issues are fought about at all, or even get thought of. Articles debating the pros and cons of the issue began to appear in newspapers and magazines all over the country. Legislation to prevent recognition of same-sex marriage was enacted in 30 states, but it died in many others. Millions of people read sympathetic news stories about gay people in stable, loving relationships who appeared morally indistinguishable from themselves. It turned out that when opponents of same-sex marriage were pressed to justify their views, they had a lot of trouble explaining themselves.

That might help us to think about the recent cases of bakers and florists who are in trouble because they refuse to facilitate same-sex marriages. Like the early proponents of same-sex marriage, they have managed to secure a place on the national agenda.  They have their own sympathetic news stories, about sweet grandmothers threatened with financial ruin by lawsuits. There aren’t many such cases, but they are fraught, because everyone understands that what is at stake is whether people who hold conservative views about gender and sexuality have any legitimate place in American society. Conservative Christians fear that the law will treat them like racists and drive them to the margins of American society.

Any proposal to accommodate them in any way, such as the Fairness for All Act that is now languishing in Congress, is denounced as acquiescence in bigotry. We are warned that any accommodation will unleash a flood of discrimination. But after the new Gallup poll, can one seriously maintain that?

The left ignores these concerns at its peril. As the Republican Party sinks ever deeper into Trumpian delusion, I’ve asked my conservative Christian friends, who fully appreciate how dangerous these developments are, what it would take to get them to vote for Democrats. More than once, I’ve been told: “I’d have to see some evidence that the Democrats don’t hate me.” (If Hillary Clinton had received Barack Obama’s 2012 percentage of the white evangelical vote in Michigan and Florida, she would have won the 2016 presidential election. Biden’s victories in Michigan and Georgia came largely from outperforming Trump among evangelicals there. Those voters are in play, and it would be a mistake to give up on them.)

The challenge of American political polarization is to construct a narrative of American identity in which everyone can find a legitimate place in society. Both gay people and religious conservatives seek space in society wherein they can live out their beliefs, values and identities. 

I’m a gay rights advocate — as it happens, one of those who persuaded the Supreme Court that Title VII’s prohibition of sex discrimination forbids antigay discrimination. I would very much like to banish to the margins of society the notion that homosexual sex is inferior to heterosexual sex. I want gay people to suffer no disadvantage or humiliation whatsoever because there are other people who believe that nonsense. 

The new Gallup poll shows that we are headed in that direction — indeed, that the movement probably can’t be stopped. But I also believe that the margins of society should be a safe place, where those who do not conform to majoritarian norms, and whose views I regard as disastrously misguided, can live their lives in security. Give peace a chance.

Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Gay Rights vs. Religious Liberty? The Unnecessary Conflict” (Oxford University Press, 2020).  Follow him on Twitter @AndrewKoppelman.