Gay Pride Charade

By most accounts, the modern gay rights movement was initiated in the United States with a riot at New York City's Stonewall Inn in 1969. But this history notwithstanding, the United States can no longer plausibly claim to be a pioneer in gay rights. Although the country has recently made progress in expanding access to gay marriage -- the Supreme Court’s refusal to review a series of lower appellate court rulings that declared state bans on same-sex marriage to be unconstitutional increased the portion of the American public living in a jurisdiction that allows same-sex marriage from 45 percent to almost 60 percent -- it pales in comparison with the strides made elsewhere in the world. Fifteen countries spread across Africa, Europe, Latin America, and Asia, including some countries that are not traditionally thought of as socially progressive, have already managed to pass laws guaranteeing all gay couples the right to marry. Why has the United States struggled so conspicuously to match their success?

The conventional wisdom tends to blame religion, based on research, such as the Pew Research Center’s study on global attitudes, that suggests that the more religious the country, the less likely it is to be accepting of homosexuality. Such studies confirm that U.S. citizens are more religious than their counterparts in western Europe and several Latin American nations. Moreover, Evangelical churches, whose attendees tend to be more disapproving of homosexuality than either mainline Protestants or Catholics, are prominent fixtures of the U.S. religious landscape. Not surprisingly, acceptance of same-sex marriage lags in the United States relative to peer countries. According to the Latin American Public Opinion Project, Canada leads all countries in the Americas in acceptance of same-sex marriage, with 63.9 percent of the public expressing approval, followed by Argentina (57.7), Uruguay (50.5), United States (47.4), Brazil (39.8), Chile (39.7), Mexico (37.8), and Colombia (34.4). Data from Pew find that support for same-sex marriage across western Europe tops that from the United States, with countries such as France, Spain, and the United Kingdom all exceeding 60 percent of the public.

But religion is not an adequate explanation for the laggard pace of gay rights reform in the United States. After all, other deeply religious societies, such as South Africa, have already enacted gay rights legislation at the national level, including recognition of same-sex marriage. Moreover, the United States lacks not only federal legislation protecting same-sex marriage but also federal laws banning discrimination on the basis of sexual orientation. The Employment Non-Discrimination Act, better known as ENDA -- a law intended to prevent antigay discrimination in the workplace -- has languished in Congress since it was first introduced in 1974. Making sense of gay rights politics in the United States requires understanding the political, legal, and institutional peculiarities that separate it from other democracies. A good starting point is how social issues intersect with the American political system. 

PARTISAN WARFARE

Same-sex marriage is a uniquely polarizing issue in the United States. Perhaps with the possible exception of abortion, no other issue so neatly divides Democrats and Republicans at the national level. Each party’s position on marriage has been enshrined in its official electoral platform. Since the presidential contest of 2004, when Republicans put a same-sex-marriage ban on the ballot in 11 states in the hope of increasing turnout among so-called value voters, each Republican presidential platform has explicitly defined marriage as the union between a man and a woman. All of them also supported an amendment to the U.S. Constitution banning same-sex marriage. Democrats, by contrast, embraced same-sex marriage in their 2012 presidential platform. As might be expected, most members of Congress have fallen in line with their respective party platforms. According to the gay rights organization Human Rights Campaign, in the current Congress, 95 percent of Democratic senators (52 out of 53) and 90 percent of Democratic members of the House of Representatives support same-sex marriage. On the Republican side, only eight members of Congress support same-sex marriage (four in the Senate and four in the House) -- that’s an improvement from just one in the last Congress.

The most notable reason for this gulf between the Democratic and Republican Parties is the extraordinary influence wielded by outside interest groups. This point applies to both parties, but it is especially egregious within the Republican Party. Since the rise of the now defunct Moral Majority, a group founded by the Evangelical pastor Jerry Falwell in the late 1970s, Christian conservatives have managed to control the Republican Party’s positions on social issues, and they have long had a special interest in same-sex marriage. Even in the early 1990s, when the legalization of same-sex marriage in the first U.S. state (Massachusetts, in 2004) was far off in the future, Christian conservatives were already rallying around the issue. At the 1992 Republican convention, Pat Buchanan, a darling of social conservatives, declared that there was “a culture war for the soul of America” and denounced as amoral the idea that homosexual unions should have the same legal standing as heterosexual unions.

As Americans have become more accepting of gay rights, including same-sex marriage, Christian conservatives have become ever more resolute in ensuring that the Republican Party remains fiercely opposed to same-sex marriage. The National Organization for Marriage (NOM), a coalition of “faith communities” devoted to protecting “natural marriage,” was pivotal in passing 30 state constitutional bans on gay marriage between 2004 and 2012, with some of them, such as those of Texas and Virginia, also banning same-sex civil unions and even domestic partnerships. NOM has also gone so far as to punish those who dare to deviate from party orthodoxy on the issue. When four Republican state senators in New York helped pass a statewide same-sex marriage law in 2011, NOM organized a successful effort to defeat them in party primaries.

How conservative parties in other parts of the world have confronted the challenge of same-sex marriage underscores the extremism of the Republican Party. Two models appear to have emerged: pragmatic and bold.  In Argentina, Chile, France, Portugal, Spain, and Uruguay, conservative parties, many of them with close ties to the Catholic Church, have embraced same-sex civil unions as an alternative to same-sex marriage (a position similarly endorsed by Pope Francis when he was serving as archbishop of Buenos Aires). This, in fact, puts the Republican position on gay rights to the right of the pope. In England, Scotland, and New Zealand, conservative parties either led the way on same-sex marriage or joined the opposition in passing same-sex marriage legislation. The United Kingdom’s Conservative Party is the most notable example. Under David Cameron’s leadership, the party ushered in same-sex marriage by contending that extending marriage rights to gay couples was a conservative idea rather than a radical one.

CONSTITUTIONAL CONTEXT

Another obstacle to same-sex marriage in the United States is the existence of a national judicial environment that does not lend itself to bold court rulings in favor of gay rights. By and large, the U.S. Constitution remains faithful to its eighteenth-century foundations, which includes a very narrow view of social rights. In contrast, many other democracies, especially those with a recent authoritarian past or a long history of repressing civil and political rights, have introduced new constitutions or revamped old ones that enshrine expansive notions of social rights with the goal of eviscerating social discrimination. This has made it simpler for the courts in those countries to rule decisively in favor of same-sex marriage.

In 2005, under a Socialist government, Spain became the third country in the world (after the Netherlands and Belgium) and the first Roman Catholic–majority nation to legalize same-sex marriage. Conservative groups backed by the Vatican launched a legal challenge that went all the way to the country’s constitutional tribunal. In 2012, the tribunal upheld the law, relying on the very expansive view of freedom included in the 1978 Spanish constitution, which was designed as a rebuke to the retreating dictatorship of Francisco Franco. In South Africa, the extension of marriage to same-sex couples in 2006, on orders from the country’s highest court, stemmed from a new constitution that prohibits discrimination on the basis of sexual orientation (the first for any constitution in the world), an attempt to remedy the discriminatory excesses of that country’s apartheid era.

Having spent the better part of the 1970s and 1980s under the yoke of authoritarianism, the countries of Latin America rewrote their constitutions in the 1990s in ways that directly and indirectly favor gay rights. At least two Latin American constitutions include explicit references to homosexual rights: Ecuador’s constitution limits marriage to heterosexual couples while also establishing civil contracts for same-sex couples that offer the same rights and responsibilities; and Bolivia’s constitution defines marriage as the union of a man and a woman but bans discrimination on the basis of sexual orientation and gender identity. New or dramatically revamped constitutions in Argentina, Brazil, Colombia, and Mexico include provisions intended to end discrimination of “marginalized” groups that the courts have relied upon to legislate same-sex marriage from the bench.  

Interestingly, some of the nations in Latin America where the high court has found a constitutional right to same-sex marriage are, like the United States, federal states where marriage has traditionally been regulated by the states. Prior to the intervention by the National Council for Justice in Brazil that led to the legalization of same-sex marriage in 2013, the country had a patchwork of marriage laws not unlike the present situation in the United States, with about half of Brazil’s 27 states allowing gay marriage. But in mandating the federalization of same-sex marriage, the council determined that denying gay couples the right to marry was discriminatory.

Another important difference between the legal environment in the United States and that which exists elsewhere in the world is the role of international jurisprudence. Traditionally, the U.S. Supreme Court has been loath to cite legal precedents from other countries or international courts, something Justice Ruth Bader Ginsburg recently lamented when noting that the global influence of the American high court was diminishing because it had not regularly used foreign law in reaching its decisions. “You will not be listened to if you don’t listen to others,” she admonished in a speech at Ohio State University. High courts abroad, by contrast, increasingly rely on so-called transnational legalism to advance gay rights.

Ironically, some foreign courts have been inspired by American jurisprudence when mandating same-sex marriage, as was the case in a 2012 ruling by Mexico’s Supreme Court.The unanimous ruling, which declared it unconstitutional to deny three gay couples from the state of Oaxaca the right to marry, cited Loving v. Virginia, the 1967 landmark case from the U.S. Supreme Court that struck down laws banning interracial marriage. Justice Arturo Zaldívar Lelo de Larrea noted that the historical disadvantages that homosexuals have suffered “create an analogy with the discrimination that interracial couples endured in another era. In the celebrated case Loving v. Virginia, the United States Supreme Court argued that ‘restricting marriage rights as belonging to one race or another is incompatible with the equal protection clause.’”

HUMAN RIGHTS VS. CIVIL RIGHTS

Last but not least, the effort to legalize same-sex marriage in the United States has been hindered by how the country’s gay activists have framed the campaign. Inspired by the civil rights movement launched by African Americans in the 1960s, same-sex marriage activists in the United States have traditionally grounded their appeals on the equal protection clause of the 14th Amendment of the U.S. Constitution. In most parts of the world, by contrast, gay activists have framed the campaign for same-sex marriage as a struggle for “human rights,” offering an expansive interpretation of the Universal Declaration of Human Rights, which was adopted by the UN General Assembly in 1948. The original text is silent on the issue of sexual orientation, but gay activists have pointed to Article 1 of the declaration, which notes that “all human beings are born free and equal in dignity and rights,” and Article 2, which affirms that every person is entitled to human rights “without distinction of any kind, such as . . . sex,” to support their case that gay rights must be included in any definition of human rights.

In many respects, the argument that gay rights are human rights has proven a more successful strategy for promoting same-sex marriage than the argument that gay rights are civil rights. Until very recently, the view that the U.S. Constitution’s 14th Amendment guarantees a right to same-sex marriage has been a very tough sell in American courtrooms. Indeed, the Supreme Court has yet to accept it. Moreover, the claim that the 14th Amendment, incorporated into the Constitution in 1868 in the wake of the Civil War to remedy the injustices of slavery, applies to homosexuals has unintentionally fed the culture war over same-sex marriage in the United States by equating the search for equality by homosexuals with the search for equality by African Americans.

Social conservatives are especially incensed by the gay-black analogy, because they tend to view sexual orientation as a choice, in contrast to race, which is biologically unalterable. Moreover, the analogy has given social conservatives the opportunity to make the argument that their opposition to gay marriage is rooted not in animus or bigotry (or even religion) but rather in a faithful reading of the Constitution. “The Court is making the preposterous assumption that the People of the United States somehow silently redefined marriage in 1868 when they ratified the 14th Amendment,” said Republican Senator Ted Cruz of Texas when reacting to the Supreme Court’s refusal to review the lower appellate court rulings. Many African Americans also find the gay-black analogy to be false, thus creating a cleavage between the gay rights movement and the African American community. Addressing this year’s March for Marriage, a NOM-sponsored event, Bill Owens, president of the Coalition of African American Pastors, argued that denying same-sex couples the right to marry “is not comparable to what we suffered.” 

Across Europe and Latin America, framing the struggle for gay rights as a human rights crusade has proved to be an almost unmitigated blessing. Human rights arguments and discourses have allowed gay rights organizations to cast themselves as human rights organizations rather than as single-issue interest groups. They have been able to fold themselves into a large coalition of organizations supporting progressive causes, from workers’ rights, to women’s rights, to indigenous peoples’ rights; to access special courts, such as the European Court of Human Rights and the Inter-American Court of Human Rights, to validate their human rights claims; and to build support for gay rights among political parties across the ideological spectrum. Finally, the case of gay rights as human rights has served to blunt the criticism that gays are looking for extraordinary rights, and underscores their desire to be treated as ordinary humans.

These advantages haven’t been lost on gay rights activists in the United States. Even as U.S. courts are finally coming around to embracing the view that gay rights are civil rights, American gay rights activists -- most notably Freedom to Marry, the largest American gay organization devoted exclusively to expanding marriage rights to same-sex couples across the United States -- have recently started making the case that homosexuals’ desire for marriage has less to do with their belief in equality under the law and more with the desire for love and commitment, in much the same way that heterosexuals have justified their desire for marriage. If other countries’ experience is any indication, this argument may be enough to put an end to the struggle over same-sex marriage in the United States once and for all.