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. Last week, 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, we 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.
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.
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. 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.
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.
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.
Same-sex marriage has been a harder sell partly for those reasons.
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."