Undoing DOMA

It seems to me that the most interesting aspect of Wednesday’s Supreme Court decision striking down Section 3 of the Defense of Marriage Act of 1996 as unconstitutional—Section 3 was the specific provision that effectively barred same-sex couples from receiving federal marriage benefits even if they were legally married in the states in which they lived—was the way in which the court appeared to be allowing itself to be led forward not by what the justices suddenly found hiding behind the original text of the Constitution with respect to the issue at hand, but instead by the sea change in public opinion that has characterized debate on the matter of same-sex marriage in the course of the last two decades.

I recall my father once telling me—this may have been in the course of one of our several million conversations about the Vietnam War, usually conducted in my parents’ living room at the top of our lungs—that the world is neatly divided into leaders and people who, either by choice or necessity or circumstance, spend their lives being led forward by others. Back then, my father’s point would have been that Lyndon Johnson, whom my father admired and respected but for whom I and my peers had little use while the Vietnam War was raging, was in the former category. Was he right? History has been kinder to LBJ, I think, than the large majority of my fellow eleventh-or twelfth graders back then would have expected it to be.  Even I myself have mellowed over the years and, particularly after reading the fourth volume of Robert Caro’s biography of Lyndon Johnson, The Passage of Power (which covered the years 1958 through 1964), have come to see in our thirty-sixth president a complex man who, in some sense despite himself, accomplished certain truly great things while in office.  In the end, I’ve come to believe that history will eventually consider LBJ to be far more than the inadvertent beneficiary of his predecessor’s horrific misfortune, but my father’s fundamental assumption that people either lead in life or are led by others is what I want to consider here because it no longer seems to me all that true at all.

The notion that there are two categories of people and you by nature belong to one or the other, to the leaders or to the led, is the specific detail I want to challenge because that model itself seems flawed to me and simplistic. True leaders, it now strikes me, are, yes, those who exercises the qualities of leadership…but also those who—and in this thought lies the distinction between truly great leaders and despots—those who also understands that part of leadership, and particularly in government, is being led by the people they are trying to lead by allowing those people’s responses to their leadership gently but seriously to refine their own sense of how best to govern. There’s no simple way to say that, but the idea itself isn’t all that complicated: by growing along with the people as they morph into new versions of themselves because of a leader’s leadership, that leader too grows into a finer, better version of him or herself and thus concomitantly becomes able to govern both more intelligently and more sensitively. 

In the context of teaching, this notion will be more familiar. In the traditional classroom setting, the teachers are the people who teach and the students are the people who learn. But good teachers will tell you always that part of excelling in the classroom involves learning from the students they are theoretically teaching, by allowing those students’ responses to their lessons to inspire them, the teachers, to move forward in new, possibly previously unanticipated directions. In the end, all true education is always dialogue and never diatribe…and dialogue by definition must be a two-way street. It is simply not possible, therefore, to teach without learning. Nor is it possible to govern sagaciously and justly without being led forward to new levels of moral insight by the people one is theoretically serving as leader.  Education is symbiosis. So is government. And so, I think I see behind Wednesdays’ ruling in the Supreme Court, is the effective functioning of the justice system even at the highest level.

I have written several times about the issue of same-sex marriage in the course of the last two years. (If you are reading this electronically, you can find some of what I’ve written by clicking here, here, or here.)  There is, obviously, a lot to say about the issue, but the part of the issue that strikes me as its most remarkable aspect—and particularly in the wake of Wednesday’s Supreme Court decisions—is how quickly things change, and how dramatically. I think that young people today, certainly including non-gay people for whom the issue has only theoretical rather than directly personal relevance, can probably not easily seize just how unimaginable it seems to people my age that this issue is being discussed at all, let alone sympathetically, at the highest echelons of political leadership.

The notion that same-sex marriage would be legal anywhere at all, let alone in two of the country’s three most densely populated states, New York and California, would have seemed unimaginable to most Americans even as late as just decades ago. And that is not to mention centuries ago: Thomas Jefferson’s efforts in 1778 to liberalize Virginia’s approach to gay people, or at least to gay men, by punishing the sexually active among them with castration instead of execution failed when the legislation voted instead to retain the death penalty. But that attitude was hardly peculiar to Virginia: prior to 1962, sodomy was forbidden in all fifty states and punishable, at least theoretically, with hard labor or imprisonment. It was in 1962, in fact, that Illinois became the first state to decriminalize same-sex relations. It took more than a decade for a second state to follow suit. By 2003, however, thirty-six states had repealed their sodomy laws and it was in that same year that the Supreme Court determined that the right to conduct one’s sex life as one wishes is one of the civil rights citizens are specifically guaranteed by the Constitution, thus making illegal all the remaining laws in the United States that restricted sexual activity conducted in private between consenting adults. 

In retrospect, it seems odd that the freedom to conduct one’s intimate life in accordance with one’s own proclivities was so widely ignored for so long.  The sexual revolution of the 1960s had almost nothing to do with gay people; it seems odd now to see a revival of the musical Hair (as I did a month ago at the Tilles Center) and to see people on stage modeling a mind-set in which civil rights is defined solely a racial issue—and to hear the same people presenting themselves as the models of “the mind’s true liberation” also making crass, unfunny jokes about gay people. Of course, the show only mirrored the rest of society in those days: the only gay people on television in those days were simpering, effeminate men or mannish, permanently unmarried women—and even they were never specifically labeled gay lest, I’m guessing, advertisers be scared off and the show end up being cancelled.

And yet things changed, and dramatically. How this happened exactly, who can say? Partially, the gay community itself mobilized after Stonewall and after Harvey Milk’s murder.  And partially the AIDS crisis led non-gay Americans to see their gay co-citizens in a new light, one that seemed wholly at odds with the unfunny stereotypes they saw on television or in movies. But the most likely explanation is simply that an idea whose time has come eventually gains steam on its own and slowly wins over people who are by nature fair-minded and reasonable.  From 1996 to 2013, the percentage of Americans favoring same-sex marriage rose from 25% to 58%.  The fact that an athlete or a movie or television star is gay is no longer considered shocking or scandalous. When a columnist in the Times wrote the other day that it seems unimaginable that the Democratic candidate for president in 2016 could be opposed to same-sex marriage, that sounded as correct now as it once would have sounded beyond unimaginable. If that doesn’t constitute a sea-change in public opinion, I’m not sure what would.

It’s clearly been a long time coming. When, in ancient times, a rabbi whose lesson was preserved in one of our ancient books opined that the sin of the generation of the flood that finally led to the annihilation of humanity was the public endorsement of same-sex marriage between men, his was a lone voice…but not one that would have been considered controversial, only perhaps a bit extreme. (He also mentioned the marriage of people and animals in the same context, apparently considering these to be parallel outrages.) And that was how things were for a very long time. The word homosexuality itself was only coined in the nineteenth century neutrally to name something that has always existed but which was not deemed real enough to warrant naming in a way devoid of opprobrium. (Other terms in use back then to describe same-sex attraction, all at least slightly insulting, were similisexualism, sexual inversion, antipathic sexual instinct, and psychosexual hermaphroditism.)  And yet…society has finally accepted that homosexuality is neither disease nor disaster, just an avenue of sexual expression that a distinct, but not minuscule, group within society finds natural and appealing. Nothing more, perhaps…but also nothing less.

When considered in this light, the Court’s decisions this week merely mirror that sea-change in public opinion. The sign of good government is the degree to which those who govern function not by issuing edicts and then punishing those who dare disobey, but as partners in a symbiotic relationship designed by its very nature to allow both parties, the governors and the governed, to grow morally and intellectually by learning from each other. The same, I now see, is true of the judicial system at the highest level: that the Court functions best when the justices understand themselves to be part of society as well as the ultimate arbiters of its rules, thus allowing themselves to grow along with the citizenry and to see fairness and reasonableness where they personally might once have seen the unimaginable or the ridiculous. The short term for that process is moral growth. And it is something we should not merely tolerate or begrudgingly accept as inevitable, but rather something we actively should foster, in government in general…and in the judicial system in particular.