A Tipping Point for Gay Marriage?

An op-ed piece in yesterday's New York Times looked at the King & Spaulding debacle from a perspective other than that of so-called legal ethics - as I noted yesterday is often something of an oxymoron. The perspective addressed in the column is the fact that perhaps we are on the cusp of anti-gay bigotry no longer being the last socially accepted prejudice. At lease outside of Christo-fascist circles and the ranks of the professional Christian set who use anti-gay demagoguery to line their own pockets - e.g., people like Maggie Gallagher, Tony Perkins, Bryan Fischer, et al, who make tawdry prostitutes look virtuous in my view. Obviously, this tipping point doesn't mean the end of the culture wars - there's still too much money to be fleeced from the ignorant and bigoted by those out to enrich themselves or struggling to hang on to waning power - but just maybe we are about to see the anti-gay marriage foes begin to truly be seen as today's version of hated motivated segregationists of yore. Here are some column highlights:
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It’s not every day that a leading law firm fires a client for holding a position so extreme that it may be said to be unworthy of a defense. And it is rarer yet — unheard of, really — when that client is the House of Representatives and the position in question is a federal law.
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Yet that is just what King & Spalding, a venerable Atlanta firm, did last week. Under pressure from gay rights groups and apparently fearful of criticism from the law students it recruits and the corporate clients it serves, the firm said it would not defend the federal Defense of Marriage Act against a challenge that it violates the Constitution.
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[T]he decision amounts to a turning point in the debate — the moment at which opposition to same-sex marriage came to look like bigotry, similar to racial discrimination and the subordination of women.
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To opponents of same-sex marriage, the firm’s decision is the latest evidence that elite opinion generally and the legal culture in particular is racing ahead of popular opinion and shutting down a worthwhile debate.
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Ms. [Maggie] Gallagher sounded bitter and besieged as she described how the nature if not the substance of the debate had shifted. “Either you’re with them or you’re a hater,” she said of gay rights advocates. “They’re trying to exclude you from the public square.”
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Evan Wolfson, the president of Freedom to Marry, said he welcomed a conversation, but the arguments against same-sex marriage were so empty that they were not worthy of respect. “If you know that the only arguments that can be made for a position are discriminatory and harmful to real people,” he said, “you should think about whether you should make them.”
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[I]it was only one indication of how quickly the battle lines are moving. In 2008, a federal judge in New York ruled that it was defamatory to call a straight man gay. Ten months later, a different judge of the same court, relying on what he called “a veritable sea change in social attitudes about homosexuality,” said there was no longer “a widespread view of gays and lesbians as contemptible and disgraceful.”
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The second judge, Denny Chin, drew a comparison. In 1926, he said, New York’s highest court ruled that it was libelous to call a white man “colored” or “Negro.” Such rulings were common in much of the nation in the first half of the last century; they are unimaginable today in any state. The range of views that may be expressed in respectable circles can be a bellwether in judging what society is ready for, said David A. Bositis, an analyst at the Joint Center for Political and Economic Studies who has studied the politics of race.
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“Part of the evolution of equality obviously includes moving from where statements are viewed as normal and accepted to being socially undesirable,” he said. “When some turning points in these struggles are reached, it becomes more and more unsavory to behave in some ways and take certain positions. In polite society, it’s no longer considered acceptable to make overtly racist statements.
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Nathaniel Persily, who teaches law and political science at Columbia, says that today, a person’s education level is powerfully predictive of views about same-sex marriage. “Sometimes the norm of equality penetrates the elite levels first,” he said.
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Lawrence v. Texas, struck down a Texas law that had made gay sex a crime. For the gay rights movement, that decision was a watershed akin to Brown v. Board of Education, the 1954 Supreme Court decision barring racial segregation in public schools, said William N. Eskridge Jr., a professor at Yale Law School and the author of several books on gay rights. “We’re in the post-Brown era,” he said, “which for me is post-Lawrence. After Lawrence, there has been a social revolution in America.”
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The analogy may be instructive in terms of timing. Thirteen years passed between the Brown decision and Loving v. Virginia, the 1967 Supreme Court decision striking down bans on interracial marriage.
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“A large majority of supporters of racial integration and even nondiscrimination in the workplace did not believe that interracial marriage was tolerable,” Professor Eskridge said. “In race, the marriage issue was the very last form of discrimination struck down.” If the comparisons are apt and the same judicial timetable holds, that means bans on same-sex marriage will fall around 2016.