It never made much sense to us that states should hold referenda on gay marriage. If a minority right could be dismissed on the say of the majority, why not just throw the constitution out the window.
But on Tuesday, when a majority of voters in Maine, Maryland and Washington supported gay marriage, it was a stirring moment: The logic of equality has so taken hold in these states that the right no longer needs court protection.
Maine, Maryland and Washington each had a good, honest scrap, in the American style: millions of dollars spent on each side, advertising everywhere, high-profile celebrities arguing for gay marriage, a high-priced political consultant leading the anti-gay marriage forces. That consultant, Frank Schubert, was deemed dangerous by the pro-gay marriage side partly because he tends to eschew extreme arguments, telling the New York Times that “it is possible to respect the rights of gays and lesbians without redefining marriage.” Equality, with an asterisk. It’s like saying “human dignity, but not too much.” It’s the same argument the Attorney General of Canada made unsuccessfully in 2003 at the Ontario Court of Appeal, the first court in Canada to legalize gay marriage. The argument is losing its public currency.
It’s a harbinger. Opponents of gay marriage expect that soon, more than one-third of Americans will be covered by same-sex marriage laws. This week, France’s cabinet supported a proposed bill that would make gay marriage legal. The momentum is astonishing. It was only two years ago that the U.S. dropped its don’t ask, don’t tell bar to gays serving openly in the military after court rulings. It was only in 2003 that the last anti-homosexual sex laws in the U.S. were ruled unconstitutional.
Constitutions don’t defend the right of minorities on their own; the judges who interpret constitutions tend to move in lockstep with society. Gay marriage had been rejected in more than 30 previous public votes. When majorities embrace the rights of a minority in a way long thought impossible, it’s a sign that the spread of gay marriage laws will be hard to stop.