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Analysis: Gays savor a victory that some had hesitated to seek

Published: Thursday, Jun. 27, 2013 - 12:00 am | Page 8A
Last Modified: Monday, Sep. 30, 2013 - 3:30 pm

LOS ANGELES - When proponents of same-sex marriage decided nearly five years ago to bring their legal battle before the Supreme Court, the decision set off a spasm of anxiety among many gay leaders worried that an adverse ruling would set back a fight that many of them had never really wanted.

But as the Supreme Court issued its last-day-of-court rulings Wednesday, nullifying a key part of a federal law that defined marriage as a union between a man and a woman and effectively permitting same-sex marriage in California, what was also clear was just how rapidly much of the country had moved beyond the court. Rulings that just three years ago would have loomed as polarizing and even stunning instead served to underscore and ratify vast political changes that have taken place across much of the country.

"Things are dramatically different today," said Chad H. Griffin, the president of the Human Rights Campaign and the founder of the gay rights group that brought the case against the California ban. "When we filed this case, there were three states that had marriage equality, there was one Republican official who supported marriage equality, Vice President Cheney, and public support of marriage equality was in the high 30s or low 40s."

Sentiments against gay marriage remain high in many quarters of the country. It is explicitly outlawed in 37 states, which may set the stage for more legislative battles in the years ahead.

Opposition to same-sex marriage remains high among social conservatives, and protests against the court's decisions voiced across the country were a reminder how visceral an issue it remains for some.

"The court got it wrong," the U.S. Conference of Catholic Bishops said in a statement. "The federal government ought to respect the truth that marriage is the union of one man and one woman, even where states fail to do so."

In the years since these cases began winding their way through the courts, President Barack Obama and Vice President Joe Biden explicitly endorsed gay marriage – in the midst of a re-election campaign, no less. Bill Clinton, the president who signed the Defense of Marriage Act in 1996, later renounced the legislation and called for it to be repealed.

A steady stream of senators and members of Congress from both parties voiced their support for gay couples joining in marriage. Same-sex marriage is now legal in 13 states and the District of Columbia. Chief Justice John Roberts, in questioning lawyers during the argument in these cases, noted just how much political support there was for gay marriage.

Gay characters and celebrities have become ever-present in popular culture, on television and, over the past year, in sports and rap music. The news that a popular celebrity wants to marry someone of the same sex, whether Neil Patrick Harris or Ellen DeGeneres, is treated as celebratory news in People magazine rather than scandalous in the National Enquirer.

As the court surely noted in its deliberations, public sentiment on the issue has flipped. It is difficult to imagine a Democratic candidate for president winning the nomination in 2016 without supporting gay marriage.

The 5-4 decision in the Defense of Marriage Act case, written by Justice Anthony M. Kennedy, was sweeping and hardly technical, an affirmation of same-sex marriage written in broad constitutional terms that produced cheers and even some surprise among same-sex marriage supporters standing in front of the Supreme Court. And though the court declined to hear the California case on procedural grounds, the effect was to let stand a lower-court decision that threw out a voter initiative banning gay marriage in the state.

That means that now 30 percent of the nation's population lives in states that allow same-sex marriage.

Since the day the modern gay rights movement began in New York City's Greenwich Village nearly 44 years ago with an impromptu street uprising after police raided the Stonewall Inn bar, the campaign for gay rights has repeatedly experienced advances and setbacks.

A striking aspect of the rulings is the extent to which they reflect public opinion. A series of polls suggests that the public wanted the Defense of Marriage Act struck down, and while most Americans support same-sex marriage, they did not want the court to force states to legalize gay marriages.

"Having the case decided in this current atmosphere, with this tidal wave of support for equality of gay people, certainly helped us," said Theodore J. Boutrous Jr., a lawyer for the plaintiffs in the California case. "It's a legitimate factor. It came up during the arguments. I think it all broke to our advantage."

The court may have caught up to rather than led public opinion, but that has often been the case over the course of history. This will surely be remembered as a landmark day in the evolution of the gay rights movement, along with the passage of the first gay rights legislation in cities like New York and Obama's proclamation of support for same-sex marriage.

The California case was filed despite the worry of some gay leaders that the atmosphere was not conducive to a favorable ruling.

"Our concern in May of 2009 is that we didn't yet have those critical masses of public support and states," said Evan Wolfson, the executive director of Freedom to Marry. Since that time, he said, the success of gay organizations in winning approval of same-sex marriage statutes had created a markedly different atmosphere.

"We had to build those critical masses of states and of public opinion: that is the history of how social rights and justice movements win," he said. "This is how America does its civil rights business. It's not a secret strategy."

Gay leaders were looking forward Wednesday, hoping that the imprimatur of a Supreme Court ruling would push the movement to new victories. Griffin said that the next goal was to make same-sex marriage legal in all 50 states within five years. Five states – Illinois, Hawaii, New Jersey, Nevada and Oregon – are viewed by proponents as top-tier legislative targets.

"We do have to acknowledge our pace of progress," Griffin said. "But there's a day of celebration and then tomorrow we have to work harder."

© Copyright The Sacramento Bee. All rights reserved.

Read more articles by Adam Nagourney



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