For the first time in history, a majority of Americans live in a place where same-sex marriages are legal. This reality came to fruition on October 6, when in a surprise move, the Supreme Court refused to review lower-court decisions that overturned prohibitions on same-sex marriage in five states, setting off a flurry of rulings that eventually brought the total of states that recognize same-sex marriage to over 30.
While many assumed that the Court's non-decision would lead eventually to the legalization of same-sex marriages in all 50 states, those plans were put on hold on November 8, when the Sixth Circuit Court overturned lower court rulings that struck down state marriage bans in four states, possibly forcing the Court to make a ruling. Where does this leave the fight for marriage equality? In a recent Q&A, Claude C. Smith Professor of Political Science Rick Valelly '75 discussed the Supreme Court and the Sixth Circuit Court's rationale, the nation's shifting opinion on gay rights and same-sex marriage, and whether or not the gay rights movement can be accurately labeled as the “new Civil Rights movement.”
Q: Were you surprised by the Supreme Court’s non-decision on the five federal appellate court rulings that recognized the constitutional right of same-sex marriage?
A: The Court’s non-decision - before it was re-framed by the Sixth Circuit decision upholding prohibitions on same-sex marriage - seemed to signify a surprising new strategy for leading social change, one that seemed to side-step the possibility of backlash. Of course, as a political scientist, I have a professional tendency to see strategic behavior where it might not actually exist. But it did occur to me that the Court might have been happy to let the circuits make the law and let them take any heat. It can’t avoid the issue now that the Sixth Circuit has broken with the other circuits and upheld same sex marriage bans. But until that ruling it looked to me as if same-sex marriage rights would come from the circuits and not from the Supreme Court - which would have been a very interesting outcome in terms of the evolution of American constitutional law!
Q: Following the Supreme Court’s non-ruling in October, the assumption among many was that this non-decision would lead to legalization of same-sex marriages in all 50 states. That assumption was altered on November 8, when the Sixth Circuit Court overturned lower court rulings that struck down state marriage bans in Kentucky, Michigan, Ohio and Tennessee. Can you give a brief overview of what happened with the Sixth Circuit?
A: The Sixth Circuit Court doesn’t think that it has the authority to overturn the bans; it understands why the other courts have done that, but it points out that other courts have done that for a wide variety of conflicting rationales, ergo nobody really knows why the same-sex marriage bans should be overturned.
If you look at United States v. Windsor, it doesn’t actually create a right of same-sex marriage. Windsor is a complicated case. The judge who wrote the opinion in the Sixth Circuit correctly pointed out that we don’t know what the Supreme Court’s likely same-sex majority actually thinks. He’s saying, “we’re all preemptively assuming that this is what the Court wants, but that’s not our job.” He’s also saying that it’s not clear to him that it’s up to the courts to create same-sex marriage. There, I think, he’s in plain conflict with his circuit brethren and with the Court itself – and I am sure that the likely minority in whatever same-sex ruling the Court makes will side with this aspect of the Sixth Circuit opinion.
Bottom line: the Sixth Circuit court judge is saying, “I can’t guess what the Supreme Court wants to do and in the meantime I can’t substitute my judgment for the judgment of these state legislatures. Other courts have overruled the political process; I can’t do that.”
Q: So will the Supreme Court now have to rule on same-sex marriage?
A: The Supreme Court will have to rule - but the interesting thing is how. Given the variety of different standards and rationales for striking down same-sex marriage that the circuit courts and the district courts have adopted—and the reasoning is all over the map legally—it’s not clear what reasoning the Court will rest the decision on. And that’s a tricky issue. It will have to resolve the case and how it does that is going to be very suspenseful and important.
Q: If you were a proponent of same-sex marriage, would you still be optimistic following the Sixth Court’s decision?
A: Of course. Now we’ve got same-sex marriage in 30 states. So the Supreme Court would have to overturn 49 decisions handed down in one year. It’s not going to do that. But you can win big or you can win not so big. I don’t think the terms of the outcome are clear yet. How I think of it is, the country’s federal courts are crowdsourcing same-sex marriage and so now that process is going to force the Court to decide how it comes into that process. That’s what I think is so fascinating. I can’t think of a single instance in American legal history or constitutional history where the federal district courts and the circuit courts have essentially crowdsourced a new right and teed up how the Supreme Court comes in to pick and choose from the rationales.
Q: In 1996, support of same-sex marriage in the U.S. was at just 27 percent. When Massachusetts became the first state to legalize gay marriage in 2004, support was just 42 percent. Today, that support has risen to 55 percent (and 78 percent for adults age 18-29). What has caused this dramatic shift in the public’s opinion?
A: This is generally one of the biggest mysteries in public opinion research—extremely rapid opinion change. Most public opinion research emphasizes stability and gradual change in opinion. I don't really know, and I don't think anyone else does, in part because it's not possible methodologically to connect the likeliest candidate for change—discovering that you know someone who is gay—to the change at the aggregate level. But I suspect that that's the reason.
Coming out has become much more common – and has become an occasion for an affirmation of strong relationships. More people personally and often intimately know someone who is gay, except maybe for the people who really can’t take it. Senator Rob Portman has become a same-sex marriage supporter because he discovered that his son is gay. Dick Cheney is a same-sex marriage supporter because he has a gay daughter. So I think politics are personal in that sense. But it’s very hard to demonstrate scientifically that this has caused the various facets of opinion change.
Another guess is what’s known as virtual contact (the technical term is parasocial contact). We now have much more pervasive programing in the media and film that’s gay friendly—Will and Grace and Ellen DeGeneres started this —and that’s gotten people to attach themselves to gay characters. So between personal contact and parasocial contact, everyone knows someone who’s gay—and straight opinion has changed.
But the key here is that the gay rights movement caused the change by asking queer people to be courageous and to come out and to be proud. It all started really with the gay liberation movement of the 1970s. People forget that - it was never comedy script writers who started it. The story starts much earlier. It was very brave gay men and women who set the stage for a chain reaction in straight opinion.
Q: Your recent research looks extensively at the history of exclusion of gays and lesbians within the U.S. government, including the Supreme Court and federal courts. What has changed in recent years?
A: I’m writing a book called Exile and Return: Gays, Lesbians, and the American State. It’s about the exclusion from public service through executive order of anyone who was lesbian or gay during the Cold War, anywhere in the United States government. That led to the purge of many thousands of people from government agencies. People were brought in, interrogated, and then simply asked to leave.
The same thing happened inside the military. We had what might be called a “straight state” from roughly 1950 to 2011, ending with the repeal of “Don’t Ask, Don’t Tell.” If you were gay and you were in the Senate or you were a clerk, you were ipso facto a national security risk under President Eisenhower’s executive order of 1953. Now we have what might be called a “valorizing government.” You can go to a page on the FBI website and find instructions about how you can come out at your FBI office. The Social Secretary to the White House, Jeremy Bernard, is gay. During LGBT month the president has a reception and same-sex couples show up in the White House holding hands. This is the same White House where you would get fired if you were a closeted male a generation ago. It'll be interesting to see whether the shift to “valorizing government” is changed by the next Republican presidency, and whether these things are going to survive a transition to unified Republican control. That’s the story I’m trying to tell in my book.
Q: Many have begun to label the gay rights movement as the “new Civil Rights movement.” Is this an accurate description?
A: My view is that the old Civil Rights Movement is hardly over, just in a new phase. The LGBT struggle is a rights struggle, yes, and resembles the other rights struggles involving African Americans, Native Americans, Asian Americans, Latinos, and women, to name other groups that historically have faced discrimination. People who see themselves as belonging in an oppressed group believe that they have shared interests, and one of those interests involves getting people who have discriminated against them to recognize that they have rights to be treated fairly.
So in that sense the gay rights movement is a rights movement. It’s about marriage rights and the right to serve your country. It’s about employment rights and it’s about nondiscrimination. It’s about freedom from fear, about not being afraid you’re going get beat up if you’re holding hands with your lover walking down the street in Philadelphia somewhere.
I also think that there’s another sense in which it’s like the other rights movements. It’s about getting people who aren’t aware of their straight privilege to think differently about the world. And the reorientation to how you think about the world is pretty striking. If you are straight and you know someone really close to you who’s gay, it really changes how you think about the world. I think one thing about the gay rights movement that’s very compelling is that straights who ally with it learn how to think about the world rather differently. They find that it’s more interesting – and also more accurate – to look at the world with a queer eye.
Rick Valelly '75 is the Claude C. Smith Professor of Political Science at Swarthmore College. An expert on American party politics, election law, voting rights, and the institutional development of the House and the Senate, Valelly graduated from Swarthmore with a B.A. in political science and later received his Ph.D. from Harvard University. He has been a research scholar at Harvard's W.E.B. Du Bois Institute for Afro-American Research, the Center for the Study of Democratic Politics at the Woodrow School of Public and International Affairs at Princeton University, and the Woodrow Wilson International Center for Scholars in Washington, D.C. He is the author of several books including the award-winning The Two Reconstructions: The Struggle for Black Enfranchisement (2004) and American Politics: A Very Short Introduction, published in 2013. His work was cited by the New Mexico Supreme Court in its decision to allow same-sex marriages.