Behind DOMA Ruling, a Great American Divide on Gay Rights

The Supreme Court’s decision to strike the Defense of Marriage Act not only reflects progress towards equality, but also the great polarization of American society over gay rights. The case was decided by the narrowest of margins, a 5-4 split, and concerned a 1996 law that could have been repealed by today’s Congress but for gridlock over the issue.[1] Even as tolerance of homosexuality has progressed significantly in recent years, divisions over the matter run deeper in America than in many other democracies.

Efforts to outlaw gay marriage are not exceptional by international standards. Gay marriage is only legal in fifteen countries so far. The considerable contrasts one witnesses within the United States are what stands out. Paradoxically, America is one of the Western countries where homophobia is the most intense, as well as one of those where gays have made the greatest strides towards acceptance and legal equality.

On one hand, Americans have largely spearheaded the modern global movement for gay rights, whose icons include activists like Harvey Milk. A dozen U.S. states are also among the world’s trailblazing jurisdictions in recognizing gay marriage and civil rights. On the other hand, the leaders of various other U.S. states would endorse the criminalization of homosexuality altogether, as is now the case in much of the Third World. Indeed, after the Supreme Court held in 2003 that consensual sex between men could not be criminalized, many Republicans were outraged.

The decision, Lawrence v. Texas, concerned a rarely enforced Texas law under which two men were convicted of sodomy.[2] By a 6-3 vote, the Court held that the law reflected state-sanctioned “stigma” against homosexuals. Justice Antonin Scalia, revered by Republicans as a model judge, wrote a fierce dissent joined by Justices William Rehnquist and Clarence Thomas. Scalia argued that the criminalization of gay sex is a legitimate state interest. “Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home,” he underlined. Scalia’s vehement dissent in the recent DOMA case kept that line of reasoning, arguing that excluding gay couples from the federal recognition of marriage is not “demeaning” but a valid interest.[3]

After the Lawrence decision, a poll showed that the public was quite evenly divided as to whether consensual gay sex between adults should be legal or not.[4] Tolerance has somewhat increased over the past decade. Now 65 percent think that gay sex should be legal – a modest majority for a question concerning very basic aspects of privacy and equality.[5]The evolution of public opinion on gay marriage is perhaps more encouraging. Only 27 percent of Americans supported it in 1996. Now that figure is 53 percent.[6] But profound divisions remain, as 69 percent of Democrats favor gay marriage, compared to barely 26 percent of Republicans.[7]

The recent mass protests in Paris against France’s legalization of gay marriage[8] illustrate how homosexuality is a contentious issue in many countries. But opposition to gay rights has gone much further in America. In 2011, Congress finally repealed “Don’t Ask, Don’t Tell.” Only eight Republican Senators and fifteen Republican Congressmen joined Democrats in voting to end the discriminatory policy.[9] By then America stood alone in the West in continuing to ban gays from the military, a policy characteristic of Third World, authoritarian, and Islamist nations.[10]

Same-sex civil unions are also more controversial in America than in most other Western countries. For example, French conservatives who oppose gay marriage have generally come to accept gay civil unions, which were legalized in 1999 under a divisive reform led by French liberals.[11] Conversely, multiple American states have passed constitutional amendments prohibiting both gay marriage and civil unions.[12]

In sum, beyond the issue of same-sex marriage, the very question of homosexuality remains quite divisive in America. Apoll of five Western countries found the United States the least tolerant on the matter. Sixty percent of Americans felt that homosexuality should be accepted by society, a far lower proportion than the people of Spain (91%), Germany (87%), France (86%), and Britain (81%).[13] There is little doubt that the tremendous weight of Christian fundamentalism among contemporary Republicans mainly accounts for the difference. European conservatives are far less religious than American conservatives. Moreover, those who are religious seldom share the fundamentalist, ultra-traditionalist approach to Christianity[14] that drives Republican views to the far-right of the modern Western world, not only on gay rights, but also on abortion, access to contraception, abstinence-only sexual education, evolution, and other “culture war” issues.

[14] https://www.huffingtonpost.com/mugambi-jouet/faith-politics-americans_b_1462655.html