Friday, January 03, 2014
Prohibition and gay marriage
Those familiar with Strauss and Howe--led by myself--have been busily comparing the last twenty years or so to the period 1920-40 or so. In each case, social issues gave way to economic crisis--although with very different political and economic results, so far at least. What struck me this week, reading about the Utah federal judge who overturned the state's ban on gay marriage, is that gay marriage is playing the same role in this crisis that Prohibition played in the last one, and with the same result.
When Prohibition was ratified in 1919, it commanded very broad support. Only two states, Connecticut and Rhode Island, failed to ratify the 18th amendment. Progressives viewed it as an engine of social improvement, while conservatives thought it would hold down the restive lower orders. Similarly, gay marriage in the 1990s entered American politics as something to be against, and very few politicians stood up for it. The Congress passed the Defense of Marriage Act, refusing
any federal recognition of gay marriage, by votes of 85–14 in the Senate and 342–67 in the House. Although Bill Clinton typically both opposed gay marriage and the bill, he signed it. But the issue heated up in 2004, when the Massachusetts Supreme Court argued that the Constitution required recognition of gay marriage. Facing a tough re-election battle, George W. Bush, with Karl Rove's encouragement, decided to make this a national issue once again. Bush endorsed a constitutional amendment to ban gay marriage, which went nowhere. More importantly, ballot measures to prohibit it went on the ballots of a number of key states that November, including Ohio. They were uniformly successful and undoubtedly helped pull morally conservative voters to the polls.
It took 13 years for the United States to decide that Prohibition had been a catastrophic mistake, giving rise to organized crime as we know it, and to elect Franklin Roosevelt and repeal the 18th amendment. A lame-duck Congress passed the twenty-first amendment, repealing it, in December 1932, The twenty-first amendment, repealing prohibition, and 36 special state conventions ratified it by the end of 1933. Yet there was a catch. The repeal amendment carved out an exception to the commerce clause and gave every state total power over the production and sale of alcoholic beverages within its territory. That is why Pennsylvania state troopers can still confiscate cars they stop carrying out of state liquor into the Keystone state, and why I cannot mail-order wine here in Massachusetts. Several states remained dry for decades. The question is whether the resolution of the gay marriage issue will be similar.
Several dozen states now recognize gay marriage, and the Supreme Court, in a narrow vote, struck down the Defense of Marriage Act. The trend is running overwhelmingly in favor of it because of a huge generational divide on the issue. The vast majority of young people support it; the older people who feel threatened by it are dying off every day. And federal judges can claim, as the one in Utah did, that failure to recognize gay marriages conflicts with the equal protection clause of the fourteenth amendment. Other judges in other districts have however decided the issue differently, and it is headed for the Supreme Court.
I will be surprised if the Supreme Court follows the Utah decision's lead. This seems like a good opportunity for Anthony Kennedy to line up with his conservative brethren. But based on the experience of Roe v. Wade, and I will not be especially disappointed if the Supreme Court leaves the issue in the hands of the states. Our regional divide is already a terrible national problem. It will take longer for Texas, Mississippi, Oklahoma and various other states to come around on this issue, but I am confident that they will. It will be healthier if their own people and their own legislatures make that decision. What is important is that opposition to gay marriage, which was taken for granted only 17 years ago and helped win a presidential election ten years ago, has now become a liability and is clearly in retreat. Like prohibition, homophobia is destined for the dustbin of history.