A lot of people are responsible for the wave of same-sex weddings sweeping the nation of late. But President George W. Bush and Supreme Court Justice Antonin Scalia deserve a lot more credit than they are given. By attempting to ban gay marriage, the president sparked public debate about marriage equality that ignited a historic backlash. The justice sneered at gay marriage in dissenting opinions, only to see his words used by gay marriage proponents to bolster their own cases and by courts to invalidate laws he thought legally sound.
In February 2004, Bush called for a constitutional amendment against gay marriage that would have etched discrimination into our nation’s most sacred document. Then, thanks to a Bush-backed effort 10 years ago next month, voters in 11 states approved ballot initiatives that banned committed same-sex couples from marrying. Contrary to popular lore, the anti-gay measures did not give Bush a reelection edge. But they did spark a public debate about same-sex marriage that ignited the backlash we’re witnessing today.
Support for marriage equality in 2004 was 38 percent. Today, it’s 59 percent. And that kind of incredible social change can happen only by hearts and minds changing because lesbian, gay, bisexual and transgender (LGBT) Americans decided to come out and fight for their basic civil rights.
“President Bush, like other opponents, did us the favor of helping push a national debate about gay people and the freedom to marry,” Evan Wolfson, founder and president of Freedom to Marry, told me. “And Bush’s [Karl] Rove-driven political proposal to literally write anti-gay discrimination into the Constitution was so appalling that it shocked people into action, along with further sparking the all-important conversation.”
That conversation had to start with gay people coming out to friends, neighbors and co-workers. It was something Harvey Milk urged them to do in 1978. “He urged LGBT people to come out — to be present in our communities, schools, families, etc. And we did,” said Winnie Stachelberg, executive vice president at the Center for American Progress. “It wasn’t always easy and there were costs, but we made progress, slow and incremental, by telling our stories. So when Bush and Scalia went after us, we were given new opportunities to fight back, engage and tell our stories.”
One of those people who fought back was Jimmy LaSalvia, a gay conservative who started a Log Cabin Republicans chapter in Kentucky in 2004 in response to the anti-gay ballot measure in that state. “All politics is personal, and 2004 was a personal as it gets,” he told me in an e-mail last week.
I was a former Republican operative living in political retirement as a real estate broker in Louisville, Kentucky, in 2004. I had worked on campaigns when I was younger, but had pretty much gotten out that business. When I saw my party and the people I considered my people demonize gay Americans and use us as a political tool the way they did in 2004, I knew that I couldn’t stand on the sidelines any longer. I don’t think that President Bush himself demonized gays in his rhetoric, but he certainly pushed the policy that cleared the way and enabled the anti-gay industry to attack people like me. I felt the same way a lot of other gay Americans felt in 2004, like I’d been punched in the gut by our President and our government. Think about that. Is there anything, anything that our government should do that would make a segment of our citizenry feel that way? That’s what brought me into the work that I did for the last decade.
After working on the national staff of Log Cabin Republicans, LaSalvia in 2009 went on to co-found GOProud, which closed its doors in June. He quit the organization last year and the Republican Party earlier this year over its “tolerance of bigotry.” LaSalvia told me he is writing a book about his experience over the past decade.
Marriage equality remains illegal in all but three of the 11 states that outlawed same-sex marriage 10 years ago. The ban fell in Oregon after the state attorney general opted not to defend it against court challenge and a federal judge ruled it unconstitutional in May. And Oklahoma and Utah now have marriage equality because the Supreme Court declined to review appeals in those states.
Which leads me to Scalia.
The 2003 majority opinion in Lawrence v. Texas, which invalidated anti-sodomy laws across the country and was written by Justice Anthony Kennedy, remains one of the most pro-gay decisions to come out of the high court. The 2013 decision in United States v. Windsor, which overturned a key provision of the so-called Defense of Marriage Act (DOMA), was also written by Kennedy. In both Lawrence and Windsor, Scalia issued scathing dissents against the majority ruling in favor of gay rights. And in both cases, Scalia used legal reasonings that lower-court judges employed to render bans on same-sex marriage unconstitutional.
In his Lawrence dissent, Scalia opened the door to same-sex marriage.
Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct …; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring” …; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution” …
Scalia’s sneering Windsor dissent provided a road map for lower courts to follow to declare same-sex marriage bans unconstitutional.
By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition. Henceforth those challengers will lead with this Court’s declaration that there is “no legitimate purpose” served by such a law, and will claim that the traditional definition has “the purpose and effect to disparage and to injure” the “personhood and dignity”of same-sex couples …
“I rarely agree with Justice Scalia, but when he is right, he is right….[H]is dissents forcefully declared that the language and logic of the majority’s holdings paved the way for the freedom to marry … and they did, for all the right reasons,” Wolfson said. “In particular, Justice Scalia made clear that if you remove moral disapproval of homosexuality as a sufficient basis for legal discrimination against gay people, there is no other justification left.”
Taken together, the actions of Bush and Scalia further unleashed a powerful change on the country — and made heroes of ordinary LGBT Americans who refused to remain silent in the face of discrimination. Edie Windsor, Kris Perry and Sandy Stier, Jeff Zarrillo and Paul Katami weren’t known until they made a federal case out of the wrongs they suffered.
“Ironic as it may seem, the calculated anti-gay campaigning of George W. Bush and the dark and exclusionary constitutionalism of Antonin Scalia helped pave the way for the powerful courage of Edie Windsor and her many LGBT compatriots,” said Michael Adams, executive director of Services and Advocacy for GLBT Elders (SAGE). “Their darkness gave way to her light.”
“It’s fair to say that we wouldn’t be where we are today on marriage were it not for George W. Bush’s dastardly re-election scheme to pass constitutional amendments banning marriage equality,” Fred Sainz, vice president for communications at the Human Rights Campaign, told me. “And every time Justice Scalia misinterprets our constitutional right to equality, another brilliant legal mind sets out to prove him wrong.”
“Maybe this is an example of unintended consequences on their part, or the reverse of an old adage: that is to say, the road to equality heaven is paved with terrible intentions,” Rea Carey, executive director of the National LGBTQ Task Force, said of Bush and Scalia. “Thank you Mr. President and Your Honor — keep up the bad work!”
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