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Ask, tell, just don't get married—A Commentary by William N. Eskridge Jr. ’78

The following commentary was published in the Washington Post on December 8, 2010.

Ask, tell, just don't get married
By William N. Eskridge Jr. ’78

Is Christmas coming early for America's gay community?

In an odd bit of scheduling, the nation's two biggest anti-gay-discrimination fights are in the spotlight at about the same time. On Tuesday, the Pentagon issued the report of its "don't ask, don't tell" study commission, which supported a repeal of the 1993 statute that excludes openly gay people from military service. The Defense Department is now on record as saying that the law has outlived its usefulness and that allowing gay people to serve openly would not undermine national security.

On Dec. 6, the U.S. Court of Appeals for the 9th Circuit will hear an appeal in the California same-sex marriage case Perry v. Schwarzenegger, in which the trial judge ruled that excluding lesbian and gay couples from civil marriage laws is unconstitutional. If the appeals court agrees, the Supreme Court will almost certainly grant a review; if the justices went along, same-sex marriage would be constitutionally required in all states.

The fight to end national discriminations against gay people features the ACLU and other stalwart progressive voices, but they are joined by a remarkable range of people. Ted Olson, solicitor general under President George W. Bush, will help argue the case for same-sex marriage in Perry, and the chairman of the Joint Chiefs of Staff and the secretary of defense are both calling for repeal of the "don't ask, don't tell" law.

Will this week, then, bring the Waterloo for the military policy and a joyous occasion for gay marriage? Not yet. Both debates have become less about righting wrongs or redressing inequality and more about the symbolism of how we define our great national institutions. And in the United States, contests over our cherished institutions are the most contentious. For that reason, will see one of these discriminatory policies topple well before the other.

When the nation is intensely and evenly divided on a symbolic issue, neither Congress nor the president nor the Supreme Court will usually insist upon a decisive resolution - especially when it is clear that We the People are still making up our collective mind.

Our collective mind has, of course, radically reconsidered the status of gay citizens in less than a generation. Thirty years ago, lesbians and gay men were not only excluded from service in the armed forces, troops suspected of being gay were subjected to "witch hunts" by the military police. Sexual minorities were also barred from most police forces and from many civilian jobs, especially in public schools. The intimate relationships of lesbian and gay couples were not recognized as marriages or civil unions in any state - and indeed, most states considered them crimes punishable by prison time.

In the 1980s, most Americans considered homosexuality to be a malignant variation from the norm and gay people a threat to public order and health. Today, most Americans have come around to the view that gay men, lesbians and bisexuals are virtually normal and that homosexuality is a tolerable variation from the norm. Once public opinion changed, official persecutions decreased and legal discriminations came tumbling down. It is no longer illegal to engage in private homosexual intimacy in this country, and most jobs are open to gay people.

Lesbians, gay men and their allies now argue for full equality: There should be no discrimination against them whatsoever. Gay people are just as capable as straight people of participating in the great institutions of American culture, including the armed forces and civil marriage. This is already happening.

Lesbian and gay couples have been able to legally wed in Massachusetts since 2004, and this didn't ruin the institution of marriage there. (Since 2003, the marriage rate in that state has been stable, and the divorce rate has declined.) Four other states and the District of Columbia have also legalized same-sex marriages, and two states, New York and Maryland, recognize those marriages. Nine other states recognize lesbian and gay unions in other forms. California, the site of the Perry litigation, for instance, gives lesbian and gay couples all the rights and duties of marriage, but as "domestic partnerships."

Notwithstanding "don't ask, don't tell," tens of thousands of gay people serve in the U.S. armed forces, most of them without official hassle. (Gay-related discharges plummeted from 1,273 in 2001 to 428 last year.) Those witch hunts for closeted homosexuals are largely behind us, and many gay troops are effectively out to their colleagues. Sixty-nine percent of the respondents to the Pentagon's recent survey said they served with men and women they knew to be gay, and almost all of those respondents reported that the sexual orientation of their colleagues made little or no difference to them.

But full equality does not come overnight, and it will not come in the next year, or for some time thereafter.

The reason is that a significant minority of Americans are intensely committed to symbolic discrimination against gay people. Though most military personnel are fine with gay colleagues, the minority who are not tend to feel strongly about the issue. And denial of same-sex marriage remains a matter of deep religious faith for millions. Most of these skeptics do not want to persecute lesbians and gay men, and many of them tolerate military service by discreet homosexuals and the granting of parallel relationship statuses (such as "domestic partnership" in California).

But they do not want the government expressing the idea that homosexuality and same-sex unions are morally equivalent to heterosexuality and traditional marriage. More people in this country oppose than support same-sex marriage for this reason. For those Americans, homosexuality is a tolerable variation, but not a benign one. Heterosexuality is still better - and the state ought to endorse that, even if only semantically, by referring to non-heterosexual unions as "domestic partnerships" and the like rather than marriages.

For an example of how the country has handled a change to the symbolically crucial institution of matrimony, recall our history of prohibiting marriages between people of different races. Anti-miscegenation statutes were central to American apartheid, and they survived the Supreme Court's 1954 decision in Brown v. Board of Education because many whites who tolerated school and workplace integration refused to accept mixed-race marriage.

Those attitudes changed, of course; over time, most Americans came to accept that racial variation is completely benign. Once the intensity of opposition to interracial marriage receded in most of the country, the Supreme Court was able to sweep away the 13 remaining anti-miscegenation laws in its Loving v. Virginia decision in 1967.

This generation is witnessing the same process toward gay equality that the last generation saw for racial equality. Because shifts in symbolic politics are driven by changes in people's attitudes, they do not happen quickly, and they may come at different speeds for different issues.

Gays will serve openly in the military before there will be universal recognition of same-sex marriage - just as the armed forces were racially integrated well before there was universal recognition of mixed-race marriage. One reason for the disparity is that marriage laws are set state by state, so nationwide recognition of gay marriage is unlikely until the Supreme Court imposes it as a constitutional matter.

A deeper reason is that cultural attitudes toward the military and marriage have changed in ways that make the former more open to lesbians, gay men and bisexuals. Long a proving ground for manhood and masculinity, the modern military has been increasingly professionalized and gender-integrated. For the most part, Americans expect results - not symbolic politics - from our armed forces. A growing number of people realize that including gay troops doesn't disrupt military operations, as the Pentagon's recent survey shows, and large majorities now favor gays serving openly.

So, although political polarization may doom the repeal of "don't ask, don't tell" this year, equal treatment for gay troops is likely in the next several years.

It will take longer for the entire country to endorse marriage equality. Marriage has dramatically liberalized in the past generation. It no longer has a monopoly on sexual relations and child-rearing, as unmarried couples increasingly live together and raise children together. Additionally, unilateral no-fault divorce has made marriage much easier to exit. Many Americans want no more changes to this cherished but declining institution.

Moreover, a number of parents still romanticize marriage as a powerful symbol of commitment to family. They fear that marriage equality might dilute that symbol as an inspiration for the next generation of Americans, as well as for their own children (from whom they expect grandchildren). Though lesbian and gay couples conceive and raise children in increasing numbers, for now this is a strong concern for many tolerant Americans.

Same-sex marriage has been a harder sell partly for those reasons. I do not believe that the Supreme Court would resolve the Perry case by recognizing a constitutional entitlement to same-sex marriage. The plaintiffs may prevail on narrow grounds, but national recognition of same-sex marriage is probably not within reach during this decade.

Americans are much closer to a consensus for full equality in military service, and that issue will be resolved first. And within 15 years, there will probably be full legal equality for lesbians, gay men and bisexuals in the United States. Just not today.

William N. Eskridge is a professor at Yale Law School and the co-author, with Darren Spedale, of "Gay Marriage: For Better or For Worse? What We've Learned From the Evidence."