As the past week’s Democratic debates in Los Angeles and New York showed once again, there are generally very few substantive policy disagreements between John Kerry and John Edwards. On the issue of same-sex marriage in particular, there is very little difference in their approach: play it safe. That may be politically expedient and even politically necessary, but unfortunately, it also dangerous to the cause of personal liberty.

Unlike abortion rights, which enjoy consensus support nationwide, same-sex marriage is still opposed by a majority of Americans, even in California and Massachusetts. In response to President Bush’s aggressive posture in support of a constitutional amendment banning same-sex marriage, Edwards and Kerry share a similar line. Each says he favors civil unions, but is personally opposed to gay marriage. Both men are also opposed to a prohibition in the U.S. Constitution. (Kerry, who voted against the 1996 Defense of Marriage Act (DOMA), would support a state constitutional ban in his home state of Massachusetts, provided civil union status is incorporated). Ultimately, each says it is a matter to be left to the states.

This may be smart politics in 2004, but unfortunately it’s bad public policy. The states, of course, have traditionally regulated marriage, marital eligibility, age of consent, adoption and other family issues. But the states’ record of recognizing and protecting individual rights and personal privacy, however, is not a happy one. From slavery and Jim Crow segregation to voting rights and the most private of sexual choices, state constitutions and legislatures have trampled on the core rights of racial, ethnic and other minorities. Supreme Court rulings in cases such as Dred Scott (1857) and Plessy v. Ferguson (1896) are a stain on the American ideals of human freedom and equality that took a bloody civil war and a hundred year civil rights struggle to overcome.

Democrats such as John Kerry and John Edwards who seek to protect the equal rights of gay and lesbian Americans should recognize the contours of this debate and its legal trajectory. We’ve been here before in the battle over abortion and reproductive rights. Deferring to states’ rights is not only a potentially fatal obstacle to the marital and legal status of gay citizens; it threatens the hard-won reproductive rights of women as well. Either a given right is fundamental, constitutionally protected and transportable across state lines, or it is not.

Here Comes the Judge

In the 1960’s, the majority of states placed restrictions or outright prohibitions on abortion. But a string of Supreme Court decisions, sometimes leading and sometimes trailing public opinion, reshaped the national consensus on these issues. From Griswold v Connecticut (regarding contraception in 1965) to Loving v Virginia (1967 ruling overturning state laws banning racial intermarriage) and finally Roe v Wade (1973 decision protecting abortion rights), the Court elucidated a right to privacy and built on the due process and equal protection clauses of the 14th Amendment, striking down state laws abridging the most personal and basic of freedoms.

For homosexual Americans, there has been substantial, if uneven, progress in the past generation, as the federal courts have addressed some of the worst abuses of the states. A series of decisions has expanded Americans’ rights to marry and engage in private, consensual sexual activity. These have eroded conservatives’ claims to enshrine current or majority morality in the law. They have also narrowed the scope of acceptable or compelling state interest in defining, protecting or preserving the family.

In 1967, Loving v Virginia overturned a statute barring interracial marriage in the commonwealth of Virginia. Writing for the majority, Chief Justice Earl Warren held that Virginia's statutory scheme to prevent marriages between persons solely on the basis of racial classifications violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment:

There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.

Warren’s opinion in Loving also cited the 1942 Skinner v Oklahoma decision barring the state of Oklahoma from performing forced sterilization procedures upon repeat criminal offenders:

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival…To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

Neither these 14th Amendment protections nor the right to privacy emanating from “penumbras” of the 9th Amendment described in Griswold were sufficient, however, to protect homosexuals from prosecution under state sodomy laws, even as late as 1986. Justice Byron White upheld the constitutionality of a Georgia statute against sodomy in Bowers v Hardwick. A 5-4 majority reversed the 11th Circuit Court’s ruling and explicitly stated that neither the right to privacy described in Griswold (and subsequent cases) nor the due process clauses of the 5th and 14th Amendments conferred a right to engage in homosexual activity within one’s own home. White’s opinion also strongly reinforced the need to defer to long-held traditions of morality in the law:

Proscriptions against that conduct have ancient roots…The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.

Two decisions in the past decade, however, have effectively reversed Bowers and could impact the gay marriage debate, especially as cases in Massachusetts and California wind their way through the system. First, the 1996 decision in Romer v Evans invalidated Colorado’s constitutional Amendment 2, a measure passed by referendum which precluded “all legislative, executive, or judicial action at any level of state or local government designed to protect the status of persons based on their "homosexual, lesbian or bisexual orientation, conduct, practices or relationships.”

Justice Kennedy’s 7-2 majority opinion recalled Justice Harlan’s dissent in Plessy that the Constitution “neither knows nor tolerates classes among citizens.” (Justice Scalia, citing Bowers, of course dissented.) Citing the Equal Protection clause of the 14th Amendment, Kennedy struck down the Colorado provision and rejected the “special rights’ language of its proponents:

The State's principal argument that Amendment 2 puts gays and lesbians in the same position as all other persons by denying them special rights is rejected as implausible…Even if, as the State contends, homosexuals can find protection in laws and policies of general application, Amendment 2 goes well beyond merely depriving them of special rights. It imposes a broad disability upon those persons alone, forbidding them, but no others, to seek specific legal protection from injuries caused by discrimination in a wide range of public and private transactions.

Kennedy, also citing the Equal Protection clause, similarly rejected the notion that the State had a compelling interest or legitimate legislative end in enacting Amendment 2:

In order to reconcile the Fourteenth Amendment's promise that no person shall be denied equal protection with the practical reality that most legislation classifies for one purpose or another, the Court has stated that it will uphold a law that neither burdens a fundamental right nor targets a suspect class so long as the legislative classification bears a rational relation to some independent and legitimate legislative end…Amendment 2 fails, indeed defies, even this conventional inquiry…Amendment 2 cannot be said to be directed to an identifiable legitimate purpose or discrete objective. It is a status-based classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit.

In the 2003 Lawrence v Texas case, the Court in a 6-3 decision invalidated the prosecution of two men under a Texas sodomy statute and reversed Bowers altogether. Again writing for the majority, Justice Kennedy overturned Bowers on both privacy and due process grounds:

Bowers' rationale does not withstand careful analysis. In his dissenting opinion in Bowers Justice Stevens concluded that (1) the fact a State's governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice, and (2) individual decisions concerning the intimacies of physical relationships, even when not intended to produce offspring, are a form of "liberty" protected by due process. That analysis should have controlled Bowers, and it controls here. Bowers was not correct when it was decided, is not correct today, and is hereby overruled.

Importantly, Lawrence was decided based on privacy and due process grounds, rather than narrow equal protection considerations. As a result, the majority’s broad rationale would sweep away sodomy laws in all 13 states still having them, regardless of their focus on consenting homosexual versus heterosexual adults.

Public Acts, Compelling State Interest, and the Santorum "Man on Dog" Test

This review of recent Supreme Court cases involving the rights of gay and lesbian Americans shows increasing recognition of the basic rights of homosexuals and their private relationships. Contrary to the hopes of gay-rights advocates and the fears of their opponents, the precedents to date may not be sufficient in upcoming cases to conclusively define and protect a right to marriage for gay citizens. (In January 2004, the 11th Circuit Court of Appeals upheld Florida’s statute banning adoption by gay residents.) The threats are not just those posed by potential future Bush judicial appointees.

A first major obstacle could be the distinction between private behavior and public acts. Unlike the private, consensual acts covered by Lawrence, marriage is a public act, witnessed and sanctioned by the state. It is recognized by the community and often sanctified by religious institutions and ceremonies. Financial, legal and social benefits are inherently tied to marital status. Justice Kennedy’s language in Lawrence does not per se extend that far, focusing instead on laws:

Touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. They seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons.

It is possible but by no means certain that the Loving, Romer and Lawrence cases taken together with the broad rights described in Planned Parenthood of Southeastern Pa. v Casey (1992) could be authoritative. In Lawrence, Kennedy did note that “the Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education” and cited Casey directly:

“These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”

A second major stumbling block to judicial recognition of same-sex marriages concerns the test of compelling state interest in regulating or prohibiting them. States today have broad latitude in the age, citizenship and health requirements for residents to marry. Cases like the Florida adoption case and the Bottoms custody case in Virginia show courts will give legislatures a wide berth in family issues and accept their strong predisposition against gay-parented families.

Regarding gay marriage, courts may or may not uphold states’ claims that their laws legitimately aim to protect families and children; the Romer and Lawrence cases make that increasingly difficult. However, the “legitimate state interest” argument rejected by Kennedy in Romer could be raised by indirection. That is to say, states could claim that with the barrier to gay marriage removed, they would be powerless to prevent evils such as polygamy, incest and bestiality.

In his own bizarre, strident and disturbing way, Pennsylvania Senator Rick Santorum raised both concerns in the wake of the Lawrence decision:

It destroys the basic unit of our society because it condones behavior that's antithetical to strong healthy families. Whether it's polygamy, whether it's adultery, where it's sodomy, all of those things, are antithetical to a healthy, stable, traditional family…Every society in the history of man has upheld the institution of marriage as a bond between a man and a woman. Why? Because society is based on one thing: that society is based on the future of the society. And that's what? Children. Monogamous relationships. In every society, the definition of marriage has not ever to my knowledge included homosexuality. That's not to pick on homosexuality. It's not, you know, man on child, man on dog, or whatever the case may be.

In all seriousness (Santorum’s antics aside), same-sex marriage advocates can and should address the issue of compelling state interest in banning practices such as polygamy and incest. Incest necessarily involves issues of consent and coercion, as well as public health, and its prohibition does rise to the level of a legitimate state interest. Similarly, polygamy raises concerns over coercion, as well as inherent red flags over equal protection.

What is to be Done?  A Measured Approach for 2004

Which brings us back to 2004 and the presidential election. At the end of the day, both John Kerry and Edwards decided that discretion is the better part of valor when it comes to same-sex marriage. They may yet be proven right. Perhaps Bush’s extreme position on a same-sex marriage ban in the Constitution, like Pat Buchanan’s bellicose “culture war” speech at the 1992 GOP convention, will scare independent, centrist voters. But given the stakes in the 2004 election and the absolute need to defeat George Bush, Kerry and Edwards don’t have much wiggle room to lead, rather than follow, public opinion on this one.

What is to be done?

Not follow the lead of San Francisco mayor Gavin Newsom, for one. Newsom, a promising and courageous politician, unilaterally initiated the flood of same-sex marriages in the city over Valentine’s weekend. His February 10, 2004 letter to the County Clerk stated “the California courts have interpreted the equal protection clause of the California Constitution to apply to lesbians and gay men and have suggested that laws that treat homosexuals differently from heterosexuals are suspect.” Newsom instructed the clerk’s office to perform same-sex weddings, as it was his sworn duty to uphold the California Constitution.

Unfortunately, and despite the best of intentions, Newsom’s actions have triggered a backlash, including the divisive amendment to the Constitution backed by Bush. Even a prominent supporter of gay marriage as Congressman Barney Frank said that “I was sorry to see the San Francisco thing go forward…If we go forward in Massachusetts and get same-sex marriage on the books, it's going to be binding and incontestable.” Frank rightly points out that not only has San Francisco become a diversion, it creates the lasting impression that gay marriage advocates among elected officials promote the notion that unpopular laws can be broken or ignored. In that sense, Newsom appears little different than Roy Moore, the former elected Chief Judge of the Alabama Supreme Court who was unseated for refusing a federal court judge’s demand that he remove a two-ton monument of the Ten Commandments he had erected on courthouse property.

So what can Democrats do to support the rights of gay couples within the constraints of the tensely charged political atmosphere of 2004?

1. Win the Presidential Election at All Costs. If Bush retains the White House in 2004, all of the above will be largely an academic exercise. No “Bush Court” stacked with the states’ rights crowd of the Federalist Society is going to recognize same-sex marriage, Loving, Romer and Lawrence be damned.

2. Encourage Individual Challenges to DOMA and Similar State Provisions. As in Massachusetts, individual couples should bring suit against state statutes and the Defense of Marriage Act. Municipal and state officials should support them, but (unlike Newsom) should not initiate them.

3. Discourage Unilateral Steps by Elected Officials. Supporters of gay rights cannot afford to be labeled as hypocrites and be lumped in with the likes of an ethically-challenged reactionary like Roy Moore. Officials should support individual litigants, but otherwise obey laws on the books (like California’s) in the interim.

4. Oppose Same-Sex Marriage Constitutional Bans. Whether at the federal or state level, progressives should oppose all same-sex marriage bans that its opponents would seek to constitutionally enshrine.

5. Support Civil Unions as a Steppingstone Measure. Where it is proposed, civil union legislation should be supported.

6. Reposition Same-Sex Marriage as a Family-Friendly Institution. Progressives must wage a PR battle to establish gay marriage as enhancing, not threatening family, values. One compromise might be to trade domestic partners’ benefits for marriage rights. That is, all benefits (financial, estate, legal, adoption, etc.) for all couples, gay or straight, would be tied to marital status.