In an op-ed piece masquerading as fact, the New York Times on Sunday declared that the “Shadow of Roe v. Wade Looms Over Ruling on Gay Marriage.” According to Times legal correspondent Adam Liptak, any positive marriage equality decision handed down by the US Supreme Court will face the same endless legal slog, misery, and sustained opposition as the 1973 ruling that legalized abortion.
The primary source for the argument seems to be Michael J. Klarman, Harvard law professor and author of “From the Closet to the Altar: Courts, Backlash and the Struggle for Same-Sex Marriage.” He wrote, “Intervening at this stage of a social reform movement would be somewhat analogous to Roe v. Wade, where the court essentially took the laws deregulating abortion in four states and turned them into a constitutional command for the other 46.”
But with only a modest BA in the liberal arts and no time at all clerking for Ruth Bader Ginsburg, I still have to respond, “Ummm, not really.” Not analogous at all, except that most progressive cases face substantial backlash on the way to the Supreme Court. And that Republican wingnuts hate them equally — abortion and gay marriage. But then, they also hate gun control, the Fed, Obama, and a host of other things, and are busy fighting them, too.
While they're especially enraged at this stage of the process, maybe because they're terrified of anything to do with sex — and same-sex marriage smacks of it, just like abortion — it's unlikely that the landmark marriage cases will have the same legal trajectory as abortion. Not just because there are differences of political and social context, as the lead Prop 8 lawyer, Theodore J. Boutrous, Jr. argued. He told the Times that Roe v. Wade had not been “subject to exhaustive public discussion, debate, and support, including by the president and other high-ranking government officials from both parties…”
Which is true, but kind of irrelevant.
The main reason the comparison doesn't hold is because the two cases are not just apples and oranges, but apples and balls of yarn. Apples and light bulbs. An abortion is a private, single act of limited duration, while getting married launches a whole state of being, a long-term, legal relationship not only between two individuals, but between those two individuals and any offspring, heirs, creditors, etc. and the government at every level. Which is why queer activists on the left, having fought so hard to keep the state out of our affairs, were initially reluctant to embrace the marriage fight, despite its gazillions of financial and legal benefits.
The most obvious parallel is the earlier fight against anti-miscegenation laws that was only won in 1967 with Loving v. Virginia. Sure, “mixed” marriages still inspire disgust among bigots, as I suppose same-sex marriage will continue to do, but there are only occasional instances in which churches or petty bureaucrats try to prevent them. There is certainly no big activist movement. There probably won't be for queers either.
Either now or in the future, once it is ruled on the federal level that same-sex marriage is legal, that right can't be eroded bit by bit as with abortion. Neither can it be restricted except by age, as “straight” marriages are. Opponents tried to head off gay marriage with civil unions — conceding a few rights to shut up the big-mouthed queers. But once that word marriage is used on the federal level, either you're married or you're not. We have the same rights or we don't, and in the latter case we keep fighting.
Even if there is some kind of post-decision backlash, I'm pretty confident the scenario will be different. Women who have abortions in their teens and 20s often just want to forget about it, and move on. Queers won't be able to. Every single one of us who gets hitched, entangled in a marriage of love and bureaucracy, will become a queer activist reservist, always on call. For this issue, anyway. It won't be a matter of convenience, to be grappled with when needed. It will be woven into the fabric of our lives.
Another obvious difference is that the fight for marriage rights is fundamentally conservative compared to that for abortion. And as homophobia is pushed further to the margins of the equation, we've already seen stalwarts of the Religious Right speak in favor of same-sex marriage and its attendant monogamy and social stability. I don't remember seeing similar conversions to pro-choice positions.
Abortion rights are a harder sale. Partly because “pro-life” people call abortion murder. And some actually believe it. But also because misogyny has such horribly deep roots. We should remember that the LGBT movement will always be half comprised of males, with white men at the forefront as long as our community is prey to the same sexism and racism as the outside world. And with a white, well-groomed male face on an issue like same-sex marriage, it'll get accepted sooner or later.
Follow Kelly Jean Cogswell on Twitter @kellyatlarge.