The Wedge Has Lost Its Edge, Except For Hate Groups Like The American Family Association Of Pennsylvania

Supreme Court and Prop 8 - A Longer Walk Down the Aisle

by Hank Plante for SFGate:

In the words of those other Supremes, You Can't Hurry Love.

After months of waiting, Friday's news that the U.S. Supreme Court will finally hear California's Proposition 8 case as well as the validity of the federal Defense of Marriage Act, means all this has dragged on longer than a Kardashian's wedding.

It was already bad enough for anxious Californians, as tens of thousands of gays and lesbians in this state were left at the altar on election night, when voters in four other states delivered what gay writer Andrew Sullivan called, "The biggest night for gay rights in electoral history."

But here in the state known as a trend-setter, we've been dealt a different hand: a four-year engagement in the courts that ultimately led to the U.S. Supreme Court now hearing the cases.

Californians watched from the sidelines as gay and lesbian marriages were approved for the first time by voters in Washington, Maryland and Maine (and an attempt to write a same-sex marriage ban into Minnesota's constitution failed). The November election results meant that 15 percent of Americans now live in states where same-sex marriage is legal. California same-sex marriages would double that figure if they're allowed to happen.

In addition to the Prop. 8 case, the Supreme Court will also act on DOMA, which denies federal recognition of same-sex marriage. Like Prop. 8, DOMA was ruled unconstitutional by federal appeals courts.

Much has been written about how DOMA denies more than 1,100 federal benefits to legally married same-sex couples, including the ability of one partner to inherit another's Social Security benefits.

But for a real-time glimpse of DOMA's impact, look at last month's news from Seattle. There, the Boeing Co. is saying it is undecided about awarding pensions to surviving gay spouses, despite the fact that Washington State voters just passed same-sex marriage.

It seems that pensions are covered under federal law, which trumps state law, and under DOMA there is no recognition of same-sex marriage. Boeing's spokesman told the Seattle Times, "This is obviously a new law and we'll take a closer look to see how it impacts us across the board."

But union negotiators at Boeing say the company has "no intention of providing such coverage."

Meanwhile, while all this excitement about same-sex marriage is thanks to the Supreme Court, it stands in stark contrast to how quiet the subject has been during the presidential election. Once President Obama endorsed same-sex marriage, it never seemed to dominate the campaigns. And there's a reason for that.

An important study from the Pew Research Center this year found same-sex marriage last on a list of voters' concerns. In fact, it was number 18 on that list, following issues like the economy, health care and terrorism. Gay marriage has lost its punch as a political issue, even for Republicans.

As Evan Wolfson of the group Freedom to Marry says, "The wedge has lost its edge."

Even young evangelicals are more accepting of gay peers than their elders. A 2011 poll by the Public Religion Research Institute found nearly half of young evangelicals favor allowing gay and lesbian couples to marry.

None of this is any surprise to political analysts like Dan Schnur, former communications director for both McCain and California Gov. Pete Wilson. Schnur, who is now director of the Unruh Institute of Politics at the University of Southern California, says: "The age demographics on the same-sex marriage issue are almost unique in public opinion annals. I've never seen a generational trend so pronounced. Call it the 'Glee-ification' of America, but younger voters in both parties have been trending much more strongly in support of same-sex marriage than their older counterparts."

And the numbers bear that out.

A Field Poll released this year found 59 percent of California voters now support same-sex marriage, which is an exact reversal of the 59 percent who opposed it back in 1977, the first year Field polled on the subject.

Can we draw any clues from history on what the Supreme Court will do?

For an answer, look no farther than the U.S. Supreme Court's own history on gay rights: The court upheld Georgia's anti-sodomy law in the 1986 Bowers vs. Hardwick case. But then, in 2003, the court reversed itself and struck down a similar Texas sodomy law in the Lawrence vs. Texas case. With that, the court essentially decriminalized homosexuality in the United States.

No one exemplifies the evolution in thinking on gay rights more than Sen. Dianne Feinstein. When she was mayor of San Francisco in 1982, she vetoed a domestic partnership bill that the Board of Supervisors had passed. A popular joke in the gay community back then was, "Dianne must think 'domestic partners' is a housecleaning service."

Feinstein drew criticism from gays and lesbians again on the day after the 2004 presidential election, when John Kerry lost to George W. Bush. Standing on the front lawn of her Presidio Terrace home, Feinstein was asked by a reporter if San Francisco's premature issuance of same-sex marriage licenses hurt Democrats.

Her now famous reply: "I think the whole issue has been too much, too fast, too soon."

But fast-forward to 2012, and it was Feinstein who was the most prominent politician to speak out against Prop. 8, and who has been leading the charge in the U.S. Senate to repeal DOMA.

Prop. 8's passage is how it all wound up in the courts.

After the botched "No on 8" campaign, the backlash against its LGBT leaders was so strong that when Hollywood's Rob Reiner enlisted heavyweight lawyers David Boies and Ted Olson to take Prop. 8 to court, they refused to allow the gay groups from joining their case. All sides now say they have patched up their differences, but it remains ironic that some of the strongest voices for gay rights in California's court case have been three straight men: Reiner, and the two lawyers he raised money to hire: the odd couple of Boies and Olson. Boise is an old-fashioned liberal, and Olson is an old-fashioned conservative, from back in the days when conservatives believed the government should stay out of your bedroom.

The bottom line now is we will know something definitive from the highest court in the land, even if it means waiting a little longer. As Jon Davidson, from the pro-gay Lambda Legal Defense Fund puts it, "The tide is not turning; it's turned."


Hank Plante is an Emmy and Peabody-winning reporter who covered the Prop. 8 election and trial for CBS 5 TV News in San Francisco.