“Victory” in Massachusetts?

In the words of Governor Deval Patrick,”[i]n Massachusetts today, the freedom to marry is secure.”(Click here  for the NY Times story.) The Massachusetts legislature today rejected, by a margin of only five votes, a proposal to place a constitutional amendment before the state’s voters that, if it had been passed, would have prospectively banned same-sex marriage in Massachusetts. Just this past January, when the proposed constitutional amendment came up for the first of two votes necessary to place it on the ballot, it passed by a margin of 12 votes.   Had the proposal passed the legislature a second time today, it would have been placed before the state’s voters for consideration next year.

Unsurprisingly, lesbian and gay rights organizations have already declared this a”victory.”(Check out the announcements about the vote on the HRC  and NGLTF  web sites.) To me, such a declaration is premature.   In my mind, there is a significant qualitative difference between, on the one hand, a gain secured through a clear defeat of your opponent and, on the other, temporarily staving off an attempt by your opponent to recapture something that you have only recently obtained and over which you only have a shaky grasp.   As the New York Times story notes, opponents of same-sex marriage have already stated that they are”not going away.”They are, of course, free to renew their efforts to get the Massachusetts legislature to place the constitutional amendment on the ballot in the future.   There is even talk that they may explore the possibility of instituting legal challenges to the vote based on the inducements used to get several lawmakers to change their votes at the eleventh hour.   So, this is not a time to declare victory, but rather to breathe a sigh of relief that we appear to have avoided what could have been a bruising and costly fight in Massachusetts next year.

If anything, this episode only underscores how precarious the legal position of lesbians and gay men remains in the United States today.   After same-sex marriage became legal in Massachusetts, the conventional wisdom seemed to be that opposition would abate as time passed and opponents realized that the sky had not fallen.   But the Massachusetts legislature’s passage of the proposal to place the constitutional ban on the ballot last January seriously undermined this idea. That the outcome of the vote today was not clear even a few hours before it was taken only further erodes support for the idea that time is on our side and that we can simply wait out our opponents.

Indeed, for the past couple of years, I have been working on a book titled Everyday Law for Gays and Lesbians (And Those Who Care About Them) (Paradigm Publishers, forthcoming November 2007) (click here  to read a draft of the introductory chapter).   My work on this project has driven home the many ways in which the law does more (to harm) or less (to help) lesbians and gay men than appearances might at first indicate.  

Under the rubric of laws that do less (to help), I think of President Clinton’s executive order that grants unenforceable employment discrimination protections to lesbian and gay federal employees.   Conversely,”Don’t Ask, Don’t Tell”does far more (to harm) than appearances indicate.   DADT was sold to the public as an improvement over the prior ban on lesbians and gay men in the military.   But DADT is no better than the prior ban; in fact, it is arguably worse because it operates as a trap for the unwary, who are led to believe that lesbians and gay men are now welcome to serve in the military so long as they do so silently.  

My experience in writing this book has imbued me with a healthy skepticism.   It has made clear to me that, before declaring victory, we need to realistically examine what, if anything, we actually have won.

-Anthony C. Infanti