(AP Photo/Marcio Jose Sanchez)
Dressed in an immaculate white shirt and white pants, a straw hat with a hot pink band and the customary rainbow sash, 84-year-old Edie Windsor looked like she was having the time of her life as a grand marshal of this year’s New York City Pride parade. As well she should. Four days earlier, the Supreme Court had issued a 5-4 ruling in the case that bears her name, United States v. Windsor, to which she was an unusually active plaintiff. The decision strikes down Section 3 of the Defense of Marriage Act, which prohibited the federal government from recognizing same-sex marriages. A 5-4 ruling in another gay rights case, Hollingsworth v. Perry, restarted same-sex marriage in California. With these two legal victories, 30 percent of Americans now live in states that recognize same-sex marriage, as does the federal government. For this, revelers along the parade route carried signs that said simply, Thank you, Edie.
Let’s put this sea change in perspective. In the summer of 1996, the Defense of Marriage Act whipped through Congress and onto President Bill Clinton’s desk with such ferocity that gay rights groups were unable to mount a credible counteroffensive. The measure won a veto-proof majority in both chambers—including the support of thirty-two Democrats in the Senate and 120 Democrats in the House. Clinton, up for re-election that year, signed the bill with minimum fuss (and, presciently, no photographers present). At the time, polls showed that 68 percent of Americans opposed same-sex marriage.
Seventeen years later, the air of inevitability and invincibility is on the other side. The government not only declined to defend DOMA; it filed an amicus brief arguing that it violates the Constitution’s equal protection clause, essentially leaving the defense of the bill to House Republicans and a sad-sack list of professional homophobes like the Westboro Baptist Church, Concerned Women for America, and the Parents and Friends of Ex-Gays and Gays. The amicus curiae list on the other side in Windsor and Perry included not just the usual suspects, but the NAACP, NFL players Chris Kluwe and Brendon Ayanbadejo, formerly closeted GOP operative Ken Mehlman, the libertarian Cato Institute and a Who’s Who of Fortune 500 companies, including Facebook, Google, Apple, Nike, Verizon, Intel and AIG. In the year leading up to the decision, a slew of Democrats (and a few Republicans) who once opposed same-sex marriage—led by former President Clinton and Senate majority leader Harry Reid—tripped over themselves in their rush to denounce the law.
If all this sounds less like a constitutional debate and more like an overstuffed high school popularity contest, that’s because it is. And there’s nothing wrong with that. Gay marriage isn’t winning the day because of some singularly persuasive legal argument; it’s winning because the battleground has shifted from the court of law to the court of public opinion. Consider this: the first four states to legalize same-sex marriage did so under court edict; the next nine states plus DC did so through the democratic legislative process.