In a way, Jane Austen won the right to same-sex marriage.
Not Austen specifically, of course—though Mr. Darcy has been the object of much gay and straight adoration—but the centuries-long movement of which she is a part: the humanistic, romantic idea that love should conquer law.
Such was my impression at Thursday night’s marriage equality victory lap at the swanky Cipriani New York, put on by the advocacy organization Freedom to Marry and its founder/guru, Evan Wolfson. He’s the man who, more than any other individual, including Jane Austen, deserves the most credit for winning national marriage equality.
As Vice President Joe Biden, Wolfson, and others recognized, there were many, many factors that caused marriage equality to become the law of the land on June 26, 2015. But as Biden said, in a way, at the core of the movement has been a very straightforward proposition. Recalling a time when he and his father saw two men kissing, Biden said Thursday: “I looked at my Dad, and he said, ‘they love each other—it’s simple.’”
Of course, as Biden quickly added, the long march to marriage equality hasn’t been that simple. Dozens of lawsuits have been filed, millions of philanthropic dollars spent, and a myriad of cultural moments marked, from La Cage Aux Folles to Ellen DeGeneres. “This is the civil rights issue of our generation,” Biden told the cheering crowd. “And what you have accomplished didn’t just take moral courage. It took physical courage.”
That, too, is true. Recall ACT-UP activists demanding that an uncharacteristically speechless Ronald Reagan utter the word “AIDS.” (It took him until September 1985, at which point 12,000 people had died.) Remember also the original transgender rioters at Stonewall and the first gay rights protest in front of the White House, in 1957, when 10 people risked their livelihoods to demand legal equality.
But what won the day, in the end, was neither constitutional legal theory nor radical societal change. It was clear at Cipriani that what won the day was—trigger alert, cynics—love.
Consider this version of the story. The arguments against same-sex marriage are many, but the majority of them insist it isn’t really marriage at all but something lesser. This isn’t love, it’s lust, like bestiality or incest. (“Man on dog,” in Rick Santorum’s epitaph-worthy phrase.) Homosexuals were said to be perverts, psychological deviants, or sex fiends.
Only, gradually, it became clear that they aren’t—at least, not in significantly greater number than heterosexuals.
In fact, as people got to know gays and lesbians, either personally or through the media, it turned out that most, though not all, were actually a little dull. They wanted love, equal rights, basic dignity. They wanted to live and let live.
(This outraged the non-dull gays, the radicals who wanted a movement of sexual liberation, but they turned out to be in the minority.)
Eventually, the arguments against gay marriage started to seem either mean, or abstract, or both. Sure, the Bible seems to say bad things about lascivious homosexual behavior, but that’s not what Aunt Nancy and Aunt Lisa have, right?
And no one really took those abstractions about “gender complementarity” and procreation too seriously. They seemed like rationales for prejudice. How can you compare some philosophical argument with Jim Obergefell, flying his dying partner out of state so they could get married, only to have the marriage ignored by his home state of Ohio? Or with Edie Windsor?
Which is where Jane Austen comes in. If love really does conquer all—even if, in Austen, Shakespeare, and others, the lovers pay a serious price—then surely it conquers some abstract bloviating about the Bible. (Of course, it also didn’t help that so many anti-gay pastors and politicians turned out to be closeted gays and so many priests turned out to be child molesters.)
And if marriage, again following Austen, is primarily about love, then how can it be denied to two consenting adults who are obviously, manifestly, in love?
I was personally involved in the marriage struggle—as a full-time activist, but playing a very bit part—from around 2008 to 2013. And I heard this firsthand from religious people, time and time again: “I used to believe it was wrong, but then my [daughter][friend][uncle] came out, and I had to think again.”
I came to see victory as inexorable because there really was a truth of the matter, and it really was on our side. Our opponents were lying about our lives. If we just told the truth, we wouldn’t win over everyone, but we’d win over enough.
Easy to say in 2015. But in 1983, when Evan Wolfson wrote his quixotic law review article arguing for a constitutional right to same-sex marriage, everyone thought he was crazy. As late as the 1990s, I myself thought marriage was the wrong battle to fight—too contentious, too soaked in the language of religion.
We were all wrong, and Wolfson was right.
Really, it was a two-pronged battle. The first prong was the set of cultural changes I’ve talked about already. The second was, indeed, a matter of law, and canny political strategy. Wolfson went state by state, winning some battles in the courts and a few in the legislature. He focused exclusively on marriage, building coalitions with willing conservatives—alienating many progressives in the process—and putting aside differences on other issues. He convinced several large LGBT organizations, each with their own interests, to coordinate their efforts.
And he made crucial legal arguments.
On Thursday in Biden’s remarks, which seemed to be largely off the cuff, he pointed out that in the 1987 confirmation hearings of Robert Bork, he and the would-be Supreme Court justice had a passionate disagreement about the nature of constitutional rights. Bork, an originalist like Antonin Scalia, said the only rights guaranteed by the Constitution are those written in the Constitution. (Scalia said the same thing in his Obergefell dissent.)
Biden disagreed. Citing Wolfson’s law review article, he said human rights are given by God and that the Constitution merely guarantees that they cannot be taken away. Exactly what those rights are—what “equal protection of the laws” means, for example—is subject to the evolution of moral and legal reasoning. Not judicial fiat, as the Obergefell dissenters charged, but argumentation, reason, and reflection on the ambit of human rights.
For decades after the Fourteenth Amendment was passed, Jim Crow laws oppressed those the amendment was specifically designed to protect. Were those laws really constitutional, simply because they weren’t enumerated in the text of the Constitution or were present when it passed? Surely not. Surely, even if “equal protection” and “due process” meant one thing in 1868, they encompassed these later developments, as well.
Well, Biden won the battle, and Bork lost. And as the vice president pointed out, the man Reagan nominated in his place was Anthony Kennedy, the deciding vote in Obergefell and the author of all four major Supreme Court opinions on LGBT equality.
A cynic would say Biden just took even more credit for marriage equality—on top of the credit he already gets (and deserves) for beating his boss to the punch and saying in May 2012 that he believed that all couples, gay or straight, should be able to legally marry.
But Biden also noted that legal philosophy was never the driving force in the struggle. “The country has always been ahead of the court,” he said. And he generously shared credit with the ballroom full of activists, donors, and ordinary citizens, many of whom had been fighting this battle for 30 years, well before it seemed inevitable to Johnny-Come-Latelys like me.
Biden insisted on looking forward to the next battle: anti-discrimination protection. “There are 32 states where you can get married in the morning and get fired in the afternoon,” he said. “We most expose the darkness to justice.”
At the same time, the reception was a kind of victory lap—combined with a retirement party for Freedom to Marry, which is admirably closing its doors, having accomplished its mission. The sponsor-provided vodka flowed freely, and Carly Rae Jepsen entertained the crowd.
I’m a pretty cynical guy, but I was honored to be among them.
