By Hank Plante
Special to Calbuzz
Tuesday’s court victory upholding same-sex marriage in California should come as no surprise to anyone who’s been paying attention to changing public opinion on gay rights.
And judges pay as much attention to these shifting trends as the rest of us, whether they like to admit it or not.
[Photo by Shutterstock] The fact is, few issues break down by generation as much as this one, with younger millennials favoring gay rights by 20 points more than seniors.
“All we need is one good flu season,” one gay rights leader told me, “then we’ll get everything we want.”
The most recent Gallup Poll on gay marriage (done in May of 2011), found, for the first time, a majority of Americans (53%) favor same-sex marriage.
This is a broad jump from the year 2000, when the big controversy was over civil unions for gays. Vermont’s supreme court and then-Governor Howard Dean made theirs the first state to offer such unions, which provide some of the same rights as marriage.
Now, civil unions have become the Republican default position, easily supported by people like former President George W. Bush, who much prefer them to marriage.
But Tuesday’s ruling by the 9th Circuit U.S. Court of Appeals found that civil unions or domestic partnerships are not the same as marriage, as clearly shown by the most memorable line in the 128-page ruling:
“Had Marilyn Monroe’s film been called ‘How to Register a Domestic Partnership with a Millionaire,’ it would not have conveyed the same meaning as did her famous movie, even though the underlying drama for same-sex couples is no different.”
The right side of history: Not only judges are paying attention to changing public attitudes.
Last November 70 of America’s top companies, including Microsoft, CBS and Nike, filed legal briefs opposing DOMA – the so-called Defense of Marriage Act, which prohibits federal recognition of same-sex marriage. The companies said DOMA is bad for business and it costs them money because of extra paperwork. Clearly, these big corporations are betting that they’ll be on the winning side of history after DOMA is decided.
Just this week, Lloyd Blankfein, the chairman of Goldman Sachs, became a corporate spokesman for marriage equality. What does gay marriage have to do with Wall Street? No doubt Mr. Blankfein is sincere, but also consider that Goldman Sachs – lightning rod that it is – could use a few friends. Besides, this is a firm that knows how to bet on the future.
No one personifies the shift in public opinion on marriage equality more than the woman leading the charge in Congress to repeal DOMA, U.S. Sen. Dianne Feinstein.
She’s come a long way since 1982 when, as Mayor of San Francisco, she vetoed a Domestic Partnership bill passed by the Board of Supervisors. (A popular joke in the gay community at the time was: “Mayor Feinstein must think Domestic Partners is a housecleaning service.”)
Feinstein’s position on the subject has evolved so thoroughly that she is now the leading advocate for gays and lesbians in the U.S. Senate.
To the east of us, six states and the District of Columbia now have same-sex marriage, with the next battles headed for Maryland, New Jersey and the state of Washington – where Starbucks, Amazon and Microsoft support the gay side.
California, the usual trendsetter, has been left in the dust since the botched $43.3 million dollar campaign opposing Prop. 8 four years ago; it’s worth noting that we could have had gay marriage if Gov. Arnold Schwarzenegger hadn’t vetoed it twice after it was passed by the Legislature. (Only later did we learn just how cavalierly he takes the whole marriage thing).
So the fight had to take place in the courts, and it was notably led by three straight men: Hollywood liberal Rob Reiner, who retained two heavyweight lawyers to fight the Prop. 8 case, liberal David Boies and conservative Ted Olson. Olson is an old-fashioned conservative, from the days when their position was that the government should stay out of your bedroom (and your medical clinic).
In an interesting side note, Olson & Boies went to court to prevent three gay-friendly legal groups from joining them in the current case, because of those groups’ opposition to taking this case to federal court (all sides now say they’ve patched-up their differences).
Whither the Supremes? Boies, Olson and the other lawyers on the case will be busy if, as expected, it now goes to the U.S. Supreme Court, where an outcome can’t be predicted.
After all, the High 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.
What changed in the 17 years between those two cases? Time and public opinion. And that’s what continues to change. Any political consultant can tell you, the thing to watch during a campaign is not just today’s polls, but which way the poll numbers are trending. And the trend line on gay rights is very clear.
As Jon Davidson, from the pro-gay Lambda Legal Defense Fund, put it after Tuesday’s ruling, “The tide is not turning; it’s turned.”
(Hank Plante is an Emmy and Peabody Award-winning reporter who covered the Prop. 8 trial for KPIX TV in San Francisco).