Why Americans will accept gay troops before they accept gay marriage

By William N. Eskridge Jr.
Friday, December 3, 2010

Is Christmas coming early for America's gay community?

In an odd bit of scheduling, the nation's two biggest anti-gay-discrimination fights are in the spotlight at about the same time. On Tuesday, the Pentagon issued the report of its "don't ask, don't tell" study commission, which supported a repeal of the 1993 statute that excludes openly gay people from military service. The Defense Department is now on record as saying that the law has outlived its usefulness and that allowing gay people to serve openly would not undermine national security.

On Dec. 6, the U.S. Court of Appeals for the 9th Circuit will hear an appeal in the California same-sex marriage case Perry v. Schwarzenegger, in which the trial judge ruled that excluding lesbian and gay couples from civil marriage laws is unconstitutional. If the appeals court agrees, the Supreme Court will almost certainly grant a review; if the justices went along, same-sex marriage would be constitutionally required in all states.

The fight to end national discriminations against gay people features the ACLU and other stalwart progressive voices, but they are joined by a remarkable range of people. Ted Olson, solicitor general under President George W. Bush, will help argue the case for same-sex marriage in Perry, and the chairman of the Joint Chiefs of Staff and the secretary of defense are both calling for repeal of the "don't ask, don't tell" law.

Will this week, then, bring the Waterloo for the military policy and a joyous occasion for gay marriage? Not yet. Both debates have become less about righting wrongs or redressing inequality and more about the symbolism of how we define our great national institutions. And in the United States, contests over our cherished institutions are the most contentious. For that reason, we will see one of these discriminatory policies topple well before the other.

When the nation is intensely and evenly divided on a symbolic issue, neither Congress nor the president nor the Supreme Court will usually insist upon a decisive resolution - especially when it is clear that We the People are still making up our collective mind.

Our collective mind has, of course, radically reconsidered the status of gay citizens in less than a generation. Thirty years ago, lesbians and gay men were not only excluded from service in the armed forces, troops suspected of being gay were subjected to "witch hunts" by the military police. Sexual minorities were also barred from most police forces and from many civilian jobs, especially in public schools. The intimate relationships of lesbian and gay couples were not recognized as marriages or civil unions in any state - and indeed, most states considered them crimes punishable by prison time.

In the 1980s, most Americans considered homosexuality to be a malignant variation from the norm and gay people a threat to public order and health. Today, most Americans have come around to the view that gay men, lesbians and bisexuals are virtually normal and that homosexuality is a tolerable variation from the norm. Once public opinion changed, official persecutions decreased and legal discriminations came tumbling down. It is no longer illegal to engage in private homosexual intimacy in this country, and most jobs are open to gay people.

Lesbians, gay men and their allies now argue for full equality: There should be no discrimination against them whatsoever. Gay people are just as capable as straight people of participating in the great institutions of American culture, including the armed forces and civil marriage. This is already happening.

Lesbian and gay couples have been able to legally wed in Massachusetts since 2004, and this didn't ruin the institution of marriage there. (Since 2003, the marriage rate in that state has been stable, and the divorce rate has declined.) Four other states and the District of Columbia have also legalized same-sex marriages, and two states, New York and Maryland, recognize those marriages. Nine other states recognize lesbian and gay unions in other forms. California, the site of the Perry litigation, for instance, gives lesbian and gay couples all the rights and duties of marriage, but as "domestic partnerships."

Notwithstanding "don't ask, don't tell," tens of thousands of gay people serve in the U.S. armed forces, most of them without official hassle. (Gay-related discharges plummeted from 1,273 in 2001 to 428 last year.) Those witch hunts for closeted homosexuals are largely behind us, and many gay troops are effectively out to their colleagues. Sixty-nine percent of the respondents to the Pentagon's recent survey said they served with men and women they knew to be gay, and almost all of those respondents reported that the sexual orientation of their colleagues made little or no difference to them.

But full equality does not come overnight, and it will not come in the next year, or for some time thereafter.

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