Hours after federal judges struck down bans on same-sex marriage in Utah and Oklahoma, activist Evan Wolfson and his colleagues reached out to gay rights groups in the deeply conservative states with both congratulations and a reminder: Court wins alone won’t be enough.
Wolfson knows the perils of judges forcing social changes on a population that isn’t ready for them – he filed the first successful gay marriage lawsuit in the 1990s in Hawaii, and the backlash against that case convinced him to focus on the political process rather than litigation alone.
That strategy has helped lead to a stunning turnaround in public opinion on gay marriage and a series of electoral wins that laid the groundwork for the recent court rulings.
Now the movement faces its greatest test as foes complain that the recent decisions have leapt ahead of the public in those deeply red states and risk creating another Roe v Wade, where courts settle a divisive social issue but sow the seeds for prolonged conflict.
In both states, elected officials largely greeted the rulings with fury and gay rights groups are bracing for a series of proposals in the state legislature that could target their community.
“There’s a widespread sense of surprise and umbrage that one judge could do that,” said Paul Mero of the Sutherland Institute, a conservative think tank in Utah. “I’m disappointed that any single lower court judge thinks they can overrule millennia of custom, tradition and law.”
John Williamson, who wrote the ballot measure that was overturned in Oklahoma last week, said that as a Christian he will never accept the legitimacy of gay marriage.
“But in states that by a vote of the people have approved that, I say ‘OK, they got what they want. You have a majority of the people there, and if the minority doesn’t like it, they can move to Oklahoma,” said Williamson, a former state senate president. ” But now what can we do?”
Wolfson and other gay activists say they are working to minimize those complaints. Wolfson’s group, Freedom to Marry, is scouring Oklahoma and Utah for same-sex couples who can put a human face on the new rights.
“We have learned the lesson that political organizing and public education must accompany” court wins, he said.
Since it began two decades ago, the campaign for marriage equality has walked a delicate tightrope between relying on the courts and old-fashioned shoe leather political persuasion.
In the case where Wolfson was co-counsel, the Hawaii Supreme Court in 1993 ruled that gay couples must be granted the right to marry. That was followed by a voter-approved constitutional amendment that said marriage could only be defined by the legislature, as well as the federal Defense of Marriage Act.
Other states, too, rushed to outlaw same-sex marriage. In 2008, California voters passed Proposition 8, a ballot measure barring gay marriage that received strong financial backing from members of The Church of Jesus Christ of Latter-day Saints.
Slowly, the tide turned. In 2012, gay marriage supporters won three ballot battles to legalize same-sex marriage and turned back a fourth to bar it. A lawsuit challenging Proposition 8 reached the U.S. Supreme Court.
Shortly before the court announced its decision, Justice Ruth Bader Ginsburg raised eyebrows by giving a speech that criticized Roe v. Wade for stopping what could have been a more effective state-by-state push to legalize abortion.
When the ruling came on Proposition 8 and a related challenge to the Defense of Marriage Act, the court pointedly did not legalize gay marriage nationwide. But its finding that the Defense of Marriage Act violated the 14th Amendment sparked the flurry of litigation that led to the December ruling in Utah and last week’s in Oklahoma City.
Both of those decisions are being appealed to the 10th Circuit in Denver.
Gay marriage bans have also been struck down by courts in New Jersey and New Mexico, and a spate of new laws have passed in other states.
In the seven months since the Supreme Court’s landmark decision, the number of states allowing gay marriage has jumped from 12 to 17 with Utah and Oklahoma in limbo pending decisions by appeals courts. Gay marriage supporters argue the time is ripe for the lifting of bans nationwide by the Supreme Court.
John Eastman of the National Organization for Marriage in Washington, DC, which opposes same-sex marriage, said that the recent rulings courts disaster. “If they don’t let it be fought out in the states, there is going to be an eruption,” Eastman said.
But Scott J. Hamilton, executive director of the Cimarron Alliance Equality Center, said a backlash is worth it. “It will go away eventually,” he said. “I’m frankly not worried about equality coming through the courts….If we relied on popular opinion in Oklahoma to grant marriage equality it probably wouldn’t happen for generations.”
Hamilton, Wolfson and other gay rights activists see the proper case less as Roe v. Wade and more as Loving v. Virginia, the 1967 U.S. Supreme Court ruling that struck down laws against interracial marriage.
At the time, interracial marriage was less accepted in polls than gay marriage is now. But opponents saw that the marriages didn’t actually harm them and “life went on,” Hamilton said.
In Utah, gay marriages were legal for 17 days until the U.S. Supreme Court stayed the ruling pending appeal. More than 1,000 couples lined up to get marriage certificates. The state now says the unions are invalid while the federal government intends to honor them, leaving couples in limbo.
But gay rights supporters think that the spectacle of couples marrying in joyous celebrations at county clerks lobbies in Utah helped mute opposition.
“People can say ‘oh, my neighbor got married and all I can see is they smile m ore and their kids are happy,'” said Clifford Rosky, chairman of the board of Equality Utah and a law professor at the University of Utah. “This is the way that hearts and minds change.”
Carolyn Lee, 65, of the small northern Utah city of Roy, hasn’t changed her mind. The images of couples celebrating outraged her.
“I’m so sick and tired of every dang TV channel you look at you have to see a girl and a girl kissing and boy and boy kissing,” Lee said in an interview, adding she couldn’t believe there were that many gays and lesbians in the state. “I think it’s a big publicity stunt.”
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