“Pride Month: The 25-Year Battle Over Same-Sex Marriage” SwatTalk
with Sasha Issenberg ’02, journalist, author, and professor of political science
Recorded on Monday, June 14, 2021
Twan Claiborne Good morning, good afternoon, good evening and good night. Welcome to our SwatTalk. Today we will be meeting… Oh, sorry, I was just reading, my screen just glitched. We have the illustrious Sasha Issenberg, we will be discussing his book,,"The Engagement: America's Quarter-Century Struggle Over Same-Sex Marriage." It just came out on June 1st. It is in bookstores, please collect this book. It is an important text in outlining one of the major civil rights movements of our time in this great month that we're in, which is Pride Month. My name is Twan Claiborne, I am class of 2007. Hopefully you are not tired of seeing my face (laughs) here all the time, but I will serve as your moderator for this evening. How it will work is, I will have questions for Sasha, we will talk and banter for 30 minutes, and then we will open it up to audience questions. You can type your question in the box, make sure to write your name and your relationship to the college, if you're an alumni, a parent, a well-wisher. This SwatTalk is recorded and it will be up on the website within two to three weeks, in case you want to go back and watch it. We would like to thank the Alumni Council, particularly Alumni Council President, Lisa, not Lisa Shafer, excuse me. (Sasha laughs) BoHee Yoon, class of 2001, as well as our planner for SwatTalks, Dina Zingaro. We'd also like to think Lisa Shafer who is our liaison for the Alumni Council and is handling all the technology things. We'd also like to thank the college as a whole for allowing us these opportunities to engage with our alumni who are doing wonderful and impactful things in the world and make some time to share them with you. Now about our panelists, not panelists because there's not multiple people, our speaker today. Sasha Issenberg originally hails from New York, while at Swarthmore he majored in History and then moved into Philadelphia where he began his illustrious career working in politics and journalism. He has authored three books ranging from topics of global sushi to medical tourism and the science of political campaigns. He covered the 2008 election as a national political reporter for The Boston Globe while he was based in Washington DC. He covered the 2012 election for Slate and the 2016 election for Bloomberg Politics and Businessweek. He is currently based out in the sunny Los Angeles, California, in the Political Science department where he teaches and he lectures. During the pandemic and in all times, he is an avid binge magazine reader, any magazine you can think of, he has a copy of it, he has read it or is going to read it. He's also incorporated some television in there. Two shows of highlight are, excuse my pronunciation of this, Borgen, which is the Scandinavian version of House of Cards, and the perennial favorite, Schitt's Creek, which just ended it's run not too long ago. Welcome our speaker, Sasha. (laughs)
Sasha Issenberg Hey, Twan, thanks for doing this. I appreciate it, good to talk to you.
Twan Claiborne You're welcome. Now, my first question to you, we sort of talked about this in our initial meeting, but in keeping in mind with the research that you've done on this topic and how long it's taking you seeing it as a movement that has happened to a movement that has ended. Did you come into the work with any preconceived notions or a specific approach? And if you did, how did that approach evolve as you saw this fight for marriage equality play out?
Sasha Issenberg Yeah, so, I had the idea for this in 2011 and started work on it in earnest in 2012. And so at that point I didn't expect, part of the thing that drew me to the subject is, it seemed like this had been the most divisive social issue in the country during my lifetime. And I'd been alive for the entire life of this issue, I covered politics through most of it. I had no idea how we got from wherever there was to wherever here was, but it was pretty clear to me already in 2011 that there was only one way this was going to end. And that wasn't clear in the years before. I think that there was the possibility that Massachusetts becomes the first state to legalize same-sex marriage in 2004. There was a, I think a serious possibility at that point that Massachusetts might pass a constitutional amendment and it would go away. And we'd look back at this period the way maybe we look at reconstruction, which is like it was a brief flowering of new rights and freedoms that then were sort of undone by political backlash. I think there was a possibility that Massachusetts could have been alone for a long time as the one state that did this, and would be this isolated experiment. And I probably, what I sort of expected was a possibility that we'd just be in a much longer patchwork where we have a country where maybe half the states or so had legalized same-sex marriage, and maybe a handful of others had some other recognition like domestic partnerships or civil union. Then we have a bunch of states that don't, and that's sort of where we are on the death penalty, right? In the 1990s the death penalty was probably the most divisive, social cultural issue in the country. And now roughly half the states have it, half the states don't. Every few years one state moves from one column to another, but we don't really talk about it much anymore. And I sort of thought that's probably the likeliest place where we would end up. What happened obviously over the time I was writing this was it became clear that this would go to the Supreme Court, not just once, but ultimately three cases.And that by 2015, the Supreme Court would rule that marriage was the law of the land striking down state bans. And then, so the story I was writing was less how did this issue emerge and sort of take over our politics and maybe move towards a consensus, but ends up being sort of the story, the whole life of this issue, this issue that more or less comes out of nowhere in the early 90s, in certain ways engulfs our politics for many years during the 2000s. Is settled in a landmark Supreme Court decision, and then basically goes away. And here we are six years after the Obergefell decision, politicians don't get asked their opinion on same-sex marriage. We certainly talk about it, but we talk about it as like a matter of fact like, oh, my friends are getting married, not like, what's your opinion on gay marriage? Or I'm going to a protest or I'm writing a letter to my Congressman about it. And so what changed was sort of my view of the scope of this subject and then sort of what a book-length account of it would have to do. And so the book got longer just like in terms of words and pages, but also I think the breadth of what it was trying to cover, which was a, it's pretty clear, people started… One things that drew me to this topic was in 2011, people were starting to say things like this is the big civil rights movement of our time. It was not clear if this was gonna be the defining civil rights breakthrough of our time. And that's now clear, and I think there's just a different sort of, type of account that you need to deliver when that's the case.
Twan Claiborne Absolutely. It's very interesting you said that there was a sort of quiet buzz, and then in the mid 2000s, it just was like kaboom. Here we are, presidents are being asked, local state politicians are being asked, evangelicals are being asked, just everybody being asked. And it sort of highlights the interesting history of how this fight for marriage equality happened. You talked about in your introduction how it was very low stakes in the very beginning. Like nobody, it was like we're fighting to not be discriminated against and to not have our sexual relationship to be illegal, right? And marriage was kind of like, I guess, whatever. And thinking about other civil rights movements that have had with other communities, black community, women, right movements and even labor unions where they had very organized, tactical sort of maneuvers to counter the legality of their denial of their humanity, whether it was in sit-ins or walk-ins or boycotts. Were there any equivalent actions with the fight for marriage equality?
Sasha Issenberg Yeah, that's a great question. So the core of my book gets started, the narrative gets started in 1990 in Honolulu, and there is, and we could talk more about this case in Hawaii that sort of puts this on the map. There's a little bit of a prehistory, which is that, in the years immediately after Stonewall, the sort of first flowering of real, I wouldn't say gay rights activism because there were stuff in the 50s and 60s, but certainly gay liberation. And there was a sort of brief moment that the advocate that the leading sort of weekly newspaper for gay America called The Gay Marriage Boom in the early 70s which was basically, I guess I was gonna say individuals, but couples acting on their own in the sort of testing the limits of gay liberation or asserting gay political identity. And in requested marriage licenses. And then when they were denied - suing the state, in both state and federal court, and basically none of these cases went anywhere. A number of these people didn't have lawyers or legal strategies. Certainly there wasn't a single gay right public interest law firm or legal organization at the time. So there wasn't like a civil rights infrastructure to take these cases. And then they sort of disappear. After 1975 I think all these cases have sort of come to their end, and after 1975 there is this sort of gay rights movement that's starting to become more organized, folks are getting incremental gains in a whole bunch of areas, including very preliminary family recognition in the early 80s for domestic partnerships and such. And it's local events that sort of throw this on the map and pushed it on the map in Hawaii. What we don't see… And the period from, there's a PR stunt that I write about in this book that basically launches a long shot lawsuit in Hawaii that turns out to be successful in December of 1990. The amount of time between that moment and when this is on Bill Clinton's desk less than six years later is just tiny from the, comparative to some of the struggles you're talking about. The amount of time between when Susan B. Anthony tries to cast a vote or Seneca Falls or whenever the sort of like assertion of, of the goal of women's suffrage emerges in the mid to late 19th century, and when it ends up being something that Woodrow Wilson needs to contend with is, 50, 60, 70 years. The amount of time from when lawyers start plotting desegregation cases, basically founding Howard law school in the 19 teens to build an African-American litigation capacity to challenge school bans. It's 40 years till it ends up before the Supreme Court. And one thing that happens in that because it's such a compressed period of time, this is never actually a mass movement that has like popular support that takes awhile to kind of get into the political and legal systems. It almost from the beginning is something that is an issue that's in the hands of elites. And that's one thing I think we just sort of know this in our own history we've, unless Swarthmore is graduating like 11-year-olds at the moment. I assume everybody on this call has lived through a significant portion of this debate over same-sex marriage. And my guess is, you cannot, you're gonna have trouble remembering a time when you saw on the news that protestors were arrested or that there was a sit-in at a public institution for marriage equality or frankly a mass demonstration. I'm sure there are people on this call who went to major protests in Washington for reproductive rights and for women's rights and anti-war protests. And people obviously last year, especially last year, but various things related to racial equality. I doubt anybody here went to a really large scale mass march about same-sex marriage because there wasn't one. And so this, this ends up getting very quickly in the hands of sophisticated lawyers, judges, elected officials, and the interest group infrastructure that starts massing around with something when it's kind of like an official political issue.
Twan Claiborne Elites, I wrote that word down because that took me back to particularly 2008 when conversations around Proposition 8 were happening in California and some commentators from Dan Savage to others. They didn't necessarily highlight this, however, they sort of represented this elite group that nobody wanted to really acknowledge (laughs) or say, but it was a matter of fact. And unfortunately it led to a lot of, within the community a lot of internal strife and internal argument because again, it started off as a low priority thing. Then as you talked about these court cases happened, and then all of a sudden it was a priority because you got those more sophisticated voices who had a handle on the legality of it becoming more prominent. And speaking about those, with those groups of elites, I'm going to read a section from your introduction because it just sparked my mind. And I got another question I didn't actually write down, but you said, "Even those who preferred assimilation to liberation in other areas, cast marriage as ridiculous." Right, that was sort of where the elites stood in the beginning, and then all the sudden it shifted to where it was a priority. In your research did you find that the major proponents for marriage equality were not only elites, but lended towards more assimilation-ism? Or was that even something that they acknowledged, that was acknowledged in any sphere whether proponents or opponents?
Sasha Issenberg Yeah, so absolutely. So in that period before 1990, in the 1980s basically the only people who are arguing over gay marriage anywhere in the US are a circle of lawyers and legal theorists in the sort of LGBT legal world. And there's a very active debate that's taking place among them at a very abstract level. There are no active cases, there are no plaintiffs who are like thinking about suing. So it's not like which venues should we go to or should we sue in federal or state court or what should the legal theories be? It's, is marriage a desirable goal for this, legal goal for this movement? And so this debate is playing out and there are, there's a really active debate and there are sort of three major camps, I would say. Two of them overlap and intersect a little bit, but one is, yes, people, handful of people who are saying loudly, our goal is full integration into full citizenship and full integration into American life, and marriage is an essential part of that. And if we want to be treated as full citizens, we need to fight for our marriage rights, okay. Then there is a group, liberationists, who see that as a, whose argument is basically the gay community that has emerged especially since Stonewall in the 15, 20 years before has developed its own set of sexual values and mores. And why should we aspire to being included, acceptance into an institution, which was not built for our sexual values and mores. And there is one piece where somebody says, I'm paraphrasing here slightly. ‘Why we basically spent decades trying to assert that we wanna have our own types of relationships? Why would our political priority be trying to move back into our parents' Lily-white suburbs with their picket fences from the 1950s?’. We exist because we're rebelling against all that. That's one camp. And then there's another camp that is led, that sort of highlights a gender divide. And to the extent that there is LGBT family law in the 1980s, it's almost entirely the province of women. Lesbian lawyers representing female clients who are almost entirely comprise women who had been in heterosexual marriages, had had children with their husbands, come out as lesbian, leave their marriages and have to go to court to fight for the right to their own biological children. And the lawyers who represent them in these adoption custody fights. And these women are overwhelmingly people who had gone to college and law school in the 60s and 70s, are shaped by the sort of thinking of second-wave feminism to view marriage as this, as an institution that existed solely to subjugate women, and then it been perpetuated to for the benefit of men. And for them, they're arguing, why should we as lesbians be fighting for acceptance and to this patriarchal heteronormative institution? And to the extent they have a sort of legal agenda, it is what some of them called multiple families, which was the idea that the aim should be to have a sort of family law regime, in which marriage wasn't the only vessel for getting certain rights and benefits under the law. But that the law should treat a spectrum of familial arrangements equally. And that could be two people of any gender, of any sex combination together, but could also be single parents, some form of co-parent adoption, multi-partner households, communal living. And unmarried cohabitation, and the idea should be that, that LGBT family law should be fighting for all these things to be treated equally under the law. And that was an active abstract theoretical debate during the 80s. What happens when the Hawaii case succeeds in 1993 with the successful ruling of the Hawaii Supreme Court. And three years later, this is the part where if you're not from Hawaii or paid very close (laughs) attention to the Hawaii State Judiciary in the early 90s, some of this probably becomes familiar to you. The Defense of Marriage Act gets introduced in early 1996, and it's Republican members of Congress trying to basically insulate the other 49 states and the federal government from having to acknowledge same-sex couples who've gotten married in Hawaii. And at that point, you get all of these internal divides within the movement basically dissolve. And there is just a sense of, you have this sort of unified front, and I quote Paula Ettelbrick who had been one of the most vocal sort of lesbian critics of marriage as a patriarchal institution in these debates in the 80s. And she says in 1996 like the world is blowing up over our relationships. Our opponents are fighting tooth and nail to deny us the right to marry. Of course, I'm gonna want to fight to defend that right. And so you still had in gay and lesbian communities, I think a sort of low grade conversation over the years up through Prop 8 about like, why is this the thing we're fighting for? But I don't think you had anybody anymore saying, we actively should resist marriage rights. And that was an argument that was made in the 80s that it would actually setback the gay and lesbian community for people to have the right to marry. You ended up in a position where you had people that said, I don't aspire to marriage, I don't care about it, but I certainly think I should have the right to, and I shouldn't be denied the right on the basis of my sexual orientation.
Twan Claiborne You mentioned that in the 80s, the conversation was not just focused on marriage itself in the quote-unquote traditional sense, but thinking about multiple types of families, and ensuring that those multiple types of families have the same rights as a traditional family quote-unquote. Did that somehow, I'm trying to think in reading the excerpts I read from your book, and even own anecdotes that, I don't ever remember having that ideal where it's all encompassing being in conversation with getting the marriage equality act passed. Did that aspect get lost over the course of the fight for it? And that what were the mechanisms that allow for it to dissipate from people's memory? And before you answer that question, I'm gonna let folks know, if you have questions, feel free to type them in the chat as well.
Sasha Issenberg Yeah, so there was a period where we created as a country, I mean, actually individual states created new institutions for familial arrangements. And some of this happened accidentally. So in Vermont, the Vermont Supreme Court rules in late 1999 that the state cannot, under the state constitution it is discriminatory to deny same-sex couples the, quote-unquote, equal benefits that opposite sex couples can enjoy through marriage. But the court says to the state, you don't actually have to start letting same-sex couples marry. It tells the legislature, you can create any framework to award these equal benefits to couples. And the legislature comes back with what they call civil unions, which is all of the rights and benefits, legal rights and benefits of marriage, but without using the term 'marriage' and presumably not sort of implicating all the religious moral, traditional sort of values of that word in the institution itself. And this becomes a model for some states as a sort of incremental compromised positions. You get a bunch of states that pass these civil union laws throughout the 2000s. California calls it domestic partnership, but it's basically the same thing, becomes law in 2003, I believe. Some states in California allowed... Hawaii had something called reciprocal beneficiaries, which allowed two family members to share legal privileges and rights. California has allowed unmarried opposite sex couples, a lot like European partnership laws that allow straight couples to cohabitate with rights and benefits without actually marrying. And so there was a period where we did something new in American life. We created a whole bunch of new ways for two people to be codependent without actually having to be married. And in some cases without actually having to be in a romantic or a sexual relationship. And what happened was as marriage, as same-sex marriage succeeded in the early part of the 2010s, not only did advocates stop pushing for civil unions and domestic partnerships, which they had been doing in some places. States that had these regimes that legalized marriage got rid of them. So states either abolished the institutions of civil unions or domestic partnerships. Some states automatically converted all civil unions into marriage. And so what the long arc of this is that, the fact that we went through this political fight has made marriage in many ways stronger as an institution. And gays and lesbians, perhaps ironically they're both religious conservatives who are fighting this early on and said, the gays are gonna ruin marriage. And to the liberationist gays and lesbians, we talked about earlier who said, why do we wanna be part of this institution? I think it's pretty clear that nobody has made marriage more central as an institution in American society over the last generation than gays and lesbians have by creating a political demand in which it is the only legal mechanism by which you can get the state to acknowledge the ability to transfer property to somebody. The ability to visit somebody in a hospital to be a beneficiary on somebody's pension, stuff like that. To not have to testify against them in court. All of these things that we've… In a lot of Western European countries, they created these incremental domestic partnership type arrangements, and have kept them and they are more popular and stronger, including among straight couples than they've ever been. We've totally basically eliminated them. And the Supreme court reaffirmed that marriage is the only institution that can award certain rights and benefits.
Twan Claiborne That's very frustrating because I know, especially with the millennial generation, we're having these conversations again about what families look like and what the makeups are, and tend to hear that states are sort of scratching that or not even considering that, it's just mind-boggling in this age. In thinking about that, you actually just outlined what privileges that you get when you're married, the right to not, to… What is it? You said, the right to not speak in court against your spouse or the passage of property, other things being able to visit your spouse if they're in the hospital or urgent care, we can list various privileges that sort of come with marriage and formerly other types of unions. When folks were opposing this, especially the evangelical, right? Our favorite villains of all time, when they were opposing this idea of marriage or having gays be allowed to be married, what have you, were they able to...? In your research did you find that they were able to actually list what exactly they were defending when they talked about defending this instituted children marriage? Were they able to list, we want to protect these rights or was it just using inflammatory language as they generally have with any movement that is sort of about progress?
Sasha Issenberg So the arguments changed over time, and I think they change as a function of where public opinion was or how the coalitions were breaking up. Before Massachusetts starts marrying same-sex couples in the spring of 2004, a lot of the arguments are, they're being used in the political sphere are these kind of apocalyptic warnings about what will happen after gays and lesbians are allowed to marry. And Rick Santorum who represented Swarthmore in the US Senate for 12 years compared the Massachusetts court decision to 9/11, said this is a Homeland Security crisis. You had no shortage of sort of conservative commentators and activists who said, some version of, this is gonna be the end of the American family, this is gonna destroy Western civilization as we know it. And to some extent like I think that works as rhetoric because it's like non-falsifiable. And this was the only type of marital institution the world had known across societies. I mean, there certainly had been cultures where it was more or less accepted for folks to live in partnership, and not to have a legal regime that recognized it. And so, I think that there's innate status quo bias in a lot of us, and fear of the new, and this was a major change in a central institution to our lives. And so they issued these warnings. And I guess you could say anything. One of the most, there's a, one of the more prescient signs that I've seen at an event was the Cambridge Town Hall opens at midnight the day that marriage becomes legal in Massachusetts, so that couples can start marrying at the first minute it's possible. And it becomes a bit of a street party in Cambridge and Forksville, Massachusetts Avenue, all that. And there's somebody out there holding a sign that says, "See, Chicken Little, the Sky Isn't Falling." And I think it was incredibly, it's funny as some good rally signs, protest signs can be, but it was also very prescient because I think it showed the way that the kind of burden of proof had shifted. Where before that, gay rights activists had to, gay marriage campaigners had to convince the public that this wouldn't be so bad, nobody would be hurt. And afterwards gay marriage opponents had to say, who is being harmed by this? And I think that with time, they realized it can no longer just issue warnings, and they actually have to come up with this sort of theory of who's hurting. Increasingly they focus on children, and it is a lot of the messaging in these campaigns and in courts is about the impact that it'll have on children, not… In courts it's mostly about children who are raised in same-sex households. In the political sphere, it's not focused primarily on the children of gays and lesbians. It's focused on the children of the presumably, persuadable white voter who, a straight white voter who sees ads over and over again that some version of your kid is going to go to school and be told, read, Heather Has Two Mommies, or be told that gays and lesbians can marry, and it's okay. And now your kid is gonna come home to you in your heterosexual kitchen and ask you to explain to them, why two men wanna marry each other. And so much of that I think isn't about marriage, and there's a lot of good research that campaigners did to get to the heart of like, what is the source that, why are these messages so effective? And the big part of it was, it was about parental control. And we've seen this play out in spheres that have nothing to do with sexual orientation. In the 80s, it was heavy metal lyrics are gonna make your kid join a satanic cult, and then a few years later it's gangster rap, is gonna make them violent thugs, and then it's gonna be, they're gonna use drugs, and now it's like critical race theory or Dr. Seuss or something. And so much of our fights over schools are really about I think parents who feel a loss of control for kids, and feel besieged by outside pressures on their children that get in the way of them imputing what they think their values ought to be. And that becomes the, I mean, that is in the late years, the dominant political argument of gay marriage opponents is that specifically that, that it's about parents and kids. And they're not actually talking about who is gonna get hurt if a guy can visit another guy in a hospital or can file taxes as a joint couple, all that stuff. We have some questions from the audience, should we...?
Twan Claiborne Yes, we do, I see some. One is from Dina. I don't know, I think you might've answered this question, we can elaborate it further. You saw the question?
Sasha Issenberg I see it, yeah. Hey, Dina, good question. So the earlier part of that story is, so there's this Hawaii, this shock sort of Hawaii court decision in May of 1993. And it takes awhile for folks on the mainland I think to properly process the significance of this ruling, which is Hawaii becomes a first court on earth to rule that the fundamental right to marriage in its state constitution can extend to same-sex couples. And the first institution to really notice this decision and fully appreciate it is The Church of Jesus Christ of Latter-day Saints. And I spent a bunch of time getting into sort of the internal politics of the Mormon church leadership. Oh, sorry, okay. Oh, they can't see the questions. Dina writes, Sasha, thank you for this talk, we don't have to reread my praise. Can you speak to the role of religious right, the religious right over the 25-year battle and how their opposition made same-sex marriage a gay rights crusade? So the Mormon church in 1994 takes notice of this and they have a few different interests at stake.One is, they had been sort of stridently anti-gay on a number of fronts going back at least into the 1980s. And they also happen to be a major sort of presence in Hawaii going back to missionary work. I think in the late 19th century that Mormons did there, and so there's a BYU campus in Oahu. They are a major landowner in Hawaii, and so they have a certain amount of political influence there that they don't have in many other states. And so the Mormons decide they're gonna do two things. One, they sort of immediately pass a bill through the Utah legislature that makes clear that Utah will not recognize marriages, gay marriages from Hawaii or anywhere else, but then they get to work trying to build a political operation that can ultimately take this, overrule whatever the court does. And the church of the LDS Church sets up a front group in Hawaii working with the Catholic archdiocese there. One thing that comes through in my research is, the Mormons were incredibly savvy about how they did politics, had remarkable resources that they could commit to, and not just money, but manpower, the ability of the church to send people on mission isn't just mission to convert people, but they send PR executives and Ronald Reagan's former pollster as church work to go to Hawaii to build this campaign. But Mormons are also really acutely aware of their public image. And I think this comes back to a sense of persecution from the 19th century. They know that if they are the face of a political project, that it will not necessarily help the political project. And so they basically strike a deal with the Catholic Church leadership, which is that the Mormons will put most of the money and most of the expertise behind it for this lobbying campaign, but that the Catholic Church will be the face of it. And they do this in Hawaii, it ultimately is successful. Hawaii passes a constitutional amendment first in the country in 1998 that takes us out of the courts and undoes the victory that the gay marriage advocates had developed through the legal process. And by this point now evangelical, fundamentalist protestants on the mainland who are the drivers of the defense of marriage act are involved in this issue. The Mormons sort of slink away for a while. I think they're focused on the 2002 Olympics in Salt Lake City, which is gonna be the sort of first global showcase for Mormonism. Then they're focused on Mitt Romney's campaign for President 2008 and a real concern that if Mormon political activity is, is very visible, it'll complicate his candidacy. And so a slink away, but by 2000, certainly by 2002, 2003, this has become the dominant issue among evangelical activists around the country who talk about it, superseding abortion as the kind of animating driving force for their voters during that time. Jack Farrell, do you wanna read this? Can I read this?
Twan Claiborne Yeah, I can read it. So Jack Farrell asks, some conservatives vow to overturn the Obergefell Supreme Court decision just as they vowed to overturn, or not just vow, but vow to overturn Roe versus Wade. How likely is it that a strong right-wing backlash might eventually succeed in rolling back some elements of marriage equality?
Sasha Issenberg Thank you, Jack. Good question. I certainly expected in my reporting this book that there would be a more active sort of backlash fallout from a Supreme Court decision. And I think in...we're gonna look back in the history books of June 2015, two things that happened. June 26, the Supreme Court rules in Obergefell that same-sex couples have a right to marry under the US Constitution; and in June 15th, 2015, Donald Trump, as he likes to say, came down the escalator in Trump Tower and announced his candidacy for President.
Twan Claiborne Yeah. (laughs)
Sasha Issenberg And if you would've asked me in advance, told me that there would be a landmark Supreme Court decision that, civil rights decision on a very controversial issue that basically undid state laws that have been passed by majorities of voters in 13 or 14 states. And in the same month that like the most talented demagogue in certainly modern American history announced his campaign for President, I would have assumed those things would have been really related, and would sort of intersect in some scary and potentially dangerous ways. And I think it's one of the remarkable sort of dog that didn't bark stories of this is how little backlash there was to the Supreme Court decision at the time. Now what I think has happened is, and we started to see this even before the Obergefell decision because the people who lost the battle over marriage knew that they were losing it even before that decision.That was a very weird day in June for people who have sort of watched the Supreme Court over the years. In that it was a major landmark decision that extended civil rights to, a part of the US population that had to rely on the courts for them. And everybody understood how momentous it was. But everybody also took it for granted. There was like no suspense about how the court would rule at that point. And anti-gay marriage litigators, campaigners had already sort of shifted even before that decision as opposed to Brown v. Board where massive resistance comes after the court strikes down school segregation. Here they had already been laying the groundwork for what would happen next. And it goes in two directions. One is, we see this big pivot towards trans, gender issues and gender identity issues generally, which a lot of the infrastructure that had been built on the right to fight gay marriage just sort of shifts over to another area of sexual politics where they are on just much better footing from a public opinion perspective where public opinion is a lot closer to where it was on gay marriage 20 years ago. So that's the first thing. And that's obviously a big part of sort of where we are in our political debate over LGBT issues right now. The other thing they do is, they start pushing on the religious liberty, religious freedom front. And this marks a really big shift for how, this gets to Dina's question too for how the religious right writ large approaches politics. It is not a coincidence that the first big organization of the religious right, Jerry Falwell's group, is called the Moral Majority. The fundamental argument of so much religious conservative activism through the 80s, 90s, through 2000s is, America is a majority Christian country. And thus the laws should reflect Judeo-Christian values. And that is the impetus behind, efforts to ban or limit abortion, to ban same-sex marriage, for prayer in schools, for a whole rash of things, not just LGBT related issues. What happens as conservatives realize that they are losing kind of the culture wars around marriage is they flip immediately and they stop talking about themselves as a majority and they start talking about themselves as a minority. And I'm very glad that you guys are here and not watching Fox News, but if you turn on the Fox News for five minutes tonight, you would hear Conservatives start talking about how they are a besieged minority who are under pressure from the courts, academia, big tech, the media, Hollywood, whatever. And that they cannot get their way through the political process. And so these claims that are coming into court, these religious liberty claims are fundamentally, they are the claims of a minority that say that they need the courts to defend them. And to shelter them from laws that are unfair to them. And so we are seeing cases, to get to Jack's question, we are seeing cases in which the Supreme Court is gonna rule on marriage, but I do think there's a real different dynamic between folks on the right saying, we wanna change the laws to reflect our values. And we just want to be sheltered from laws that we think go contrary to our values. I think in a democratic society, that's a real difference. Now there was a case that went to the Supreme Court a couple of years ago, in which a baker in Colorado said that it violated his religious beliefs to make a cake for two men who are married. There is now a case that's before the court that will probably get a ruling on before the end of this month which is a Catholic social service agency in Philadelphia that basically will not refuse as to place foster children with same-sex couples because it goes contrary to Catholic teaching. And it's, I think widely assumed that the court will rule, is inclined to rule in favor of the social service agency and this exemption. And I think that to the extent that we're gonna see a sort of rolling back of elements of marriage equality as Jack puts it, it is not. What we've seen since Roe is a concerted effort to try to go at the central holding of Roe v. Wade. That the right to privacy is extended to fetuses. That the umbrella of the right to privacy includes reproductive rights. I do not know anybody on any side of this issue that thinks that there is a legal movement underway or is likely to come to try and get the central holding of Obergefell to rule that same-sex couples don't have a right to marry under the constitution. What I think we could see in a few years is pushing the bounds of how much private actors are religious liberty, religious freedom exemptions allowed to disregard marriages if they go contrary to the values of an individual or an institution. So like imagine a world where a private business says that because their shareholders or owners or board has a set of biblical teachings that they will give dental coverage or maternity leave to the partner, to the spouses of the opposite sex spouses of their employees, but will not give those same benefits to the same-sex spouses of their employees. We're not fundamentally changing who can get married under the law but we could be telling private employers, hey, you can kind of cherry-pick which marriages you want to respect based on your religious values.
Twan Claiborne So something along the lines of like a vaguely worded provision in a state book that's like we are against voter or like trying to stop voter fraud, so you have to have this extra thing and this extra thing. And if you miss this deadline, then you won't be able to vote in this election. So if that's the type of terrain that we would see that will counter the Obergefell-
Sasha Issenberg Yeah, I mean, it could come legislatively, I mean, there are efforts to sort of write religious liberty exemptions into state laws. It's certainly unlikely with this Congress that there would be as long as Democrats control Congress in the White House, I don't think there would be any successful effort under federal law to exempt, to codify further religious liberty exemptions. And the court struck down a religious freedom act in in the 1990s. To codify that in a way that would be seen as, I don't think Democrats should go on anything that seemed to codify discrimination against gay and lesbian couples, even in the name of religious liberty. I think that courts, certainly the federal courts and many state courts could recognize increasingly broad exemptions, and we could end up in a position where everybody, any two people can go get married. And can go to the courthouse and get the marriage license and then get the wedding certificate, and it's yours, and you're married under the law, and maybe you're married under the tax code. But different private actors, your gym could decide that, we stick to Southern Baptist teachings at our gym and while a straight couple could share a gym membership or get a family discount, a gay couple couldn't. I think that could like maybe be the end point of this. And the question is, how broad you can start giving private ads. Courts have always recognized that the churches themselves don't have to administer marriages that go contrary to their church teaching. Then we started seeing questions about employees of religious schools, and what are the bound… Hobby Lobby was the big case on this in reproductive rights where Hobby Lobby said well, religious business or business founded by people of religious principles, we don't wanna pay for reproductive care contraceptives, I think in particular for our employees. So now like imagine just sort of impose that on kind of LGBT families, and I think now that conservatives have sort of lost the battle over marriage. They might be in the position of sort of devaluing marriage and saying, okay, the government can like stamp your marriage certificate, but we want a society in which nobody really needs to value that as anything special.
Twan Claiborne Right. (laughs) Sort of like what a bachelor degree is becoming now, just like a little certificate. It doesn't mean anything now because people are going to school for a degree of things, seems like the big bad guys are always getting more sophisticated in trying to find ubiquitous ways to counter something major, whether it's changing the wording here, or putting a slight comma after this, it just, it gets wild. I want to go back to an earlier point, I'm seeing there's no more questions here, something, and you talk about this in your book too as well thinking about this happened fast and relative to say when Susan B. Anthony tried to cast her right to vote, and then the passage of the amendment or the sit-ins and the Brown v. Board of Education, there was a lot of time and a lot of stuff going on. And thinking about the speed, 25 years from 1990 to 2015, it's not a lot of time for this type of legislation and movement to happen. Do you think the context that there was sort of a vacuum of a world stage of a lot of conflicts sort of pushed this movement on. With the end of the cold war, coming to the end of apartheid, the Persian War being a failure and to extending them awhile at the beginning end, and then at the backend the Iraq War, the repeal of "Don't Ask, Don't Tell". Do you think that the lack of big things to sort of distract allow for this to sort of expedite end processes?
Sasha Issenberg I certainly think that this rose from being a very local legal issue in Hawaii to being a national political issue in a couple of years because, yes, I could say this pretty bluntly. As a country in the 90s, we were just looking for things to fight over, like the cold war was over, as you say, Twan, like there is I think a sort of broad consensus about how big government should be. The sort of biggest projects around civil rights, not just on race and basic gender equality under the law, but also like disability, for example, had all been codified. And we argued over some really silly stuff as a country in the 1990s. And I think that there was a, the culture war stuff became really fierce because there weren't big questions about American foreign policy, America's role in the world and these big questions about political economy. So I think that explains how it kinda got on the stage really quickly. That said, like we spent 2003, 2004 in the midst of a massive debate over marriage triggered by a few things in 2003. The Supreme Court strikes down state bans on private consensual gay sex in 2003. Antonin Scalia writes a dissent in which he says, marriage is next. That really is designed to be an alarm to conservative activists, and they read it that way. That follows the Massachusetts court legalizes marriage in Massachusetts. The next year, the President of the United States endorses a federal marriage amendment and 13 states pass state bans. And this becomes, we're in the middle of the Iraq War at that time. Like we're not casting about for, like 9/11 remains a sort of overarching, organizing principle of American life in 2004. So at that point, we're not looking for things to debate on TV because we're out of news, like we have plenty of news and like real divisions in the country. At that point it's like a real live policy issue. And I think that it becomes an easy issue for people to take positions on because it's not a technical question. Most people are no more than one or two degrees of separation from somebody who is married. It is a very easy concept. I have a five-year-old nephew and I'm able to explain to him basically the contours of what my book is about, which is like 30 years ago only a boy could only marry a girl, and now people made it so that a boy can marry a boy or a girl can marry a girl, and my book is about how that happened. Like that's a very, that is not like, what should our residual true presence be in Iraq? Or should the top marginal tax rate be 39% or 36% or like should a healthcare system have an individual mandate that requires you to buy insurance? Like these are complex technical questions. Citizens and politicians have to work pretty hard to come up with opinions on them. Like the marriage thing is as accessible as can be. And I think it just makes it easy for it to become a kind of all encompassing social conflict at that time because of how immediate is.
Twan Claiborne And that is a great final note to end on. (laughs) Thank you so much-
Sasha Issenberg Thank you, Twan, this was great.
Twan Claiborne You're welcome. Thank you for this talk, it's so important. We are in a times, and that's basically all I'd say about that, but thank you again, Sasha. Thank you to Lisa for being our technology Co-extraordinaire; thank you to the Alumni Council, especially President BoHee Yoon.
Sasha Issenberg Thank you, BoHee.
Twan Claiborne I think she is here, maybe she is not, but hello. Also thank you to Dina, who is our SwatTalk extraordinaire. I hope you all were stimulated by this conversation. "The Engagement" is available in bookstores now, so get yourself a copy and read it, it is-
Sasha Issenberg Oh, and there's one thing I'm supposed to say about this. If you buy a copy, wherever you like to buy books, in-person or online or whatever, since we can't do these things in-person, I will do the best thing possible to sign your book virtually. So go buy the book somewhere or go to my website, which is SashaIssenberg.com, and there's a form where you can upload your receipt, and then I'll send you an inscribed nameplate, so that your book is basically signed by me. So SashaIssenberg.com. Thank you.
Twan Claiborne Excellent. I'm gonna drop that in there, so you all can catch that because once we're off this meeting, it won't be in the chat. But thank you all again for coming. Have a good night, morning, day, evening, wherever you are, and make sure you pick up a copy of this book. And happy Pride Month.
Sasha Issenberg Thank you, Twan.
Twan Claiborne You're welcome.