WASHINGTON (Jan. 14) – The first federal trial over same-sex marriage, which got under way this week in San Francisco, is just the latest skirmish in an epic battle over gay rights that will surely land in the U.S. Supreme Court.
But if past is prologue, it is unlikely to end there.
"It's always been two steps forward, one step back," said University of Texas political scientist Sean Theriault, who follows gay issues. Even if the right-leaning high court eventually rules that California's Proposition 8, a ban on gay marriage passed in 2008, is constitutional, "it's not going to stop the movement," he said.
That movement began in 1969 with the Stonewall riots. It is now in what Prop 8 plaintiffs lawyer Ted Olson calls a "teaching moment" for his fellow conservatives after coming off a rocky year. Legislators in usually true-blue New York and New Jersey killed bills to legalize same-sex marriage. Voters in Maine repealed their legislators' handiwork, bringing to 31 the number of states where gay marriage has been banned at the ballot box.
The year didn't start that way. Peter Sprigg of the Family Research Council said conservatives were "knocked back on our heels" by early court and legislative adoption of gay marriage in Vermont, New Hampshire, Iowa and the District of Columbia. By year-end, though, legislative wins in the Northeast buoyed the spirits of those defending "traditional" marriage.
"It's been a great year," said Brian Brown, the soft-spoken executive director of the National Organization for Marriage (NOM), which has emerged as the leading group lobbying against gay nuptials. "The myth that same-sex marriage is inevitable was exploded" in 2009.
"There was simply no grass-roots upwelling of support for same-sex marriage," Brown said. "While supporters of gay marriage may have elites, we have the people."
Despite recent setbacks, gays can still marry in five states -- Massachusetts, Connecticut, Iowa, New Hampshire and Vermont. Unless Congress steps in, which is unlikely, same-sex marriage will become law in the District of Columbia by late February or March. Opponents vowed to put the D.C. law before voters to decide but on Thursday, a judge rejected their bid to put a referendum on the ballot.
"Social justice is never a march that ends on a single day, with a single decision. It is a long, hard slog that has many victories and defeats," said Human Rights Campaign President Joe Solmonese. "As we started the last decade, no one could have imagined that we'd have marriage equality in Massachusetts," the first of five states to legalize same-sex nuptials.
Still, many in the gay community admit the great expectations of a year ago, when Democrats moved into the White House and the top leadership posts on Capitol Hill, have given way to more melancholy times.
"The gay community is fairly dissatisfied" with President Obama and Congress, said Andy Towle, who runs the widely read gay blog site Towleroad. "People are very concerned because 2010 is an election year and ... Democrats see their issues as touchy issues."
Solmonese sent a brutally honest memo to board members last month noting the success of a key adversary in corralling money and momentum in their "last gasp" effort to thwart gay equality. NOM's "explosive growth" from a budget of $400,000 in 2007 to $8 million two years later, he wrote, "was the largest single contributor in the anti-gay marriage campaigns" across the country.
He found little solace on Capitol Hill, either. Congressional leaders are on the side of gay rights, but "among the rank and-file members, we do not have a solid pro-LGBT [lesbian, gay, bisexual, transgender] majority in either chamber," he wrote.
As for the executive branch, "While it is clear we have a strong ally in the White House, we are also navigating a new relationship where advocates must balance praise with strong rebuttal when necessary," Solmonese said.
That change was signaled early on when gay groups loudly protested the choice of evangelist Rick Warren to deliver the invocation at Obama's inauguration. Openly gay Episcopal Bishop Gene Robinson was soon added to the program.
On balance, Theriault said, gays have fared well under Obama. When Republicans controlled the levers of power in Washington, activists and their allies had to fend off an effort to amend the U.S. Constitution to limit marriage to one man and one woman. With Democrats in control, "that initiative is dead and buried," he said.
"While it is never good for folks advocating change to tread water, a Democratic Congress and a Democratic White House helped transform the debate from defending the ground gays had to seeking new ground," Theriault said.
Since taking office, Obama has signed a hate crimes law, the first time the federal government has extended civil rights protection specifically to gays and lesbians. That change, in the pipeline for more than a decade, was welcomed by gay rights groups. Still, a year into his presidency, it remains the only big-ticket item he has seen through to completion.
Instead, Obama has tinkered around the edges, taking actions that don't require congressional approval. They are, Towle said, "small things that add up." Like inviting gay and lesbian families to the White House Easter egg roll. Or awarding the Presidential Medal of Freedom to gay icons Harvey Milk and Billie Jean King.
Obama has appointed more openly gay and lesbian people in his first year than any previous administration did in its first full four-year term. They include a transgender woman to a senior advisory job at the Commerce Department.
The president has extended benefits to same-sex partners of federal workers. Gay partners of Foreign Service officers are now accounted for in housing allowances and have access to emergency evacuations.
The 2010 Census will count gay couples and, for the first time, release the numbers to the public. The Census also collected data on same-sex partners in 2000, but the Bush administration refused to report the numbers. It cited the 1996 Defense of Marriage Act, which bans federal recognition of same-sex marriages.
Obama has vowed to repeal that act even as his Justice Department has defended it. Such mixed signals extend to his own rhetoric. Like many African-Americans, the president has said he personally opposes same-sex marriage, yet he supports extending to gay couples all the rights and responsibilities of marriage.
"The president remains fully committed to his positions on LGBT issues that he outlined during the campaign," said White House spokesman Shin Inouye.
Sprigg called the president's stand "logically incoherent" because he "opposes every proposal aimed at preserving marriage as a man and a woman." He added, "The Obama administration has done more to advance an anti-family agenda than any other administration in history. They've really pushed the envelope."
While that may be a matter of perspective, public opinion is shifting. The Gallup Poll indicates a steady majority of Americans oppose same-sex marriage, but other surveys show more receptiveness to the idea as the generation that came of age watching "Will and Grace" replaces their more tradition-minded parents and grandparents. Attitudes are likely to keep evolving as more research is done on children raised in same-sex households and on the impact of sanctioned gay marriage on straight relationships.
One area where gays are becoming more accepted is in politics.
Lesbian Annise Parker was easily elected mayor of Houston, the nation's fourth largest city, in November. Last week, Democrat John Perez was confirmed as speaker of the California Assembly, the first openly gay lawmaker to hold the powerful leadership position.
In all, there are 460 openly gay elected officials in the U.S., according to the Gay & Lesbian Victory Fund.
"When people are voting, they're voting for an individual they have come to know," said Victory Fund spokesman "That's different then when you're asking people theoretical questions about marriage."
This year also saw voter affirmation for gay rights that don't involve saying "I do."
In Washington state, voters approved a domestic partner law that gives gay couples all the rights and benefits of marriage but without the name.
On the local level, voters in Kalamazoo, Mich., approved an ordinance barring discrimination against gays, while citizens in Gainesville, Fla., fought back a drive to repeal that city's anti-discrimination law.
Back in the nation's capital, gay rights groups hope Congress will vote this year on the Employment Non-Discrimination Act, which would prohibit discrimination against workers on the basis of sexual orientation or gender identity.
Activists also will push Obama to make good on his vow to end the military's "don't ask, don't tell" policy that bars gays from being open about their sexuality while serving. The most favored strategy is to attach it to the must-pass defense budget, mimicking the successful passage of the hate crimes bill in last year's appropriations bill.
But time is running out. Congressional election years are notoriously bad times for tackling controversial issues. And with the president's poll ratings sinking and mega-issues like the economy, health care and the war in Afghanistan taking center stage, gay rights advocates aren't counting on much.
"Unfortunately for the gay rights movement, we finally get a president and Congress that are supportive, but then the economy collapses," said Theriault, who is gay. "It would be imprudent for them to push the gay rights agenda too fast in light of the November elections [or] anything that would be perceived as a special interest over jobs and the economy."
