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Gay Marriage Hasn't Won Yet

Shunning foes of marriage equality isn't bullying. It's advocacy.

Getty Images/Aaron Harris

It’s a free country.

We say that a lot in America, sometimes with a shrug of acquiescence when someone says something we think wacky, and sometimes with an edge of defiance when we claim our right to live our lives as we think best. Freedom—whether it be freedom of speech, or freedom of religion, or, yes, the freedom to marry—is indeed something precious to be exercised, protected, and fought for. It takes real work to win and keep it.

Which makes it so puzzling that someone as committed to freedom as the always provocative Michael Kinsley would devote so much of his latest column to Ben Carson’s freedom of speech, while giving such short shrift, really, to the ongoing denial of the freedom to marry gay people endure—still—in our country (along with the absence of federal protections against employment discrimination or bullying in schools, and the failure of the law to keep pace with the undeniable momentum in public support we have worked hard to win).

Pretty much absent from Kinsley’s piece is any acknowledgment that loving and committed gay couples are still excluded from marriage in 38 states. Or that those couples who do get married are still subject to the “gay exception” created by the so-called Defense of Marriage Act, which denies these legally married couples Social Security survivorship, access to family leave, health coverage, immigration protections, the ability to sponsor a loved one for a green card, and the chance to pool resources as a family without adverse tax treatment.

That’s the political agenda Ben Carson was signing on to and furthering. When a public figure and political dabbler like Carson takes a stand against gay people’s freedom to marry, he is not just offering his opinion—which is certainly his right. He is not just, say, personally opting to boycott a wedding he doesn’t approve of. He is advocating that the law be used as a weapon, that discrimination be cemented into constitutions, and that an important freedom he himself enjoys be denied to his fellow Americans.

And in Carson’s case—however Kinsley breezes by it (“He should have left bestiality out of it“)—he is lacing his anti-gay political agenda with inflammatory, shameful rhetoric that not so subtly invokes classic tropes of dehumanization such as predatory threats to children, animalistic behavior, and immorality.

Carson is hardly the most important figure in all of this (Kinsley chose him as the focus, not me). Like all of us, Carson has a right to take whatever political stand he chooses. But don’t others likewise have a right to disagree—by dissociating themselves from such an assault on others’ freedom, or by not wanting their platform to become his, in furtherance of a political agenda they do not share?

And, actually, isn’t the political campaign to bar the door to gay people’s equal participation in society—the ongoing political effort of Carson and others to prevent couples from crossing the threshold—a greater assault on freedom than a medical school’s decision it didn’t want Carson as their speaker that Kinsley chooses to devote a column to?

Kinsley’s piece slights the freedom of speech that people who don’t agree with discrimination are also entitled to, and disdains the moral and political significance of dissociating from discrimination that harms real people and injures our country’s values. This one-sided concern at one point leads Kinsley to disparage not just that fair and robust give and take of speech, but even non-discrimination laws that come into play when business-owners such as the florist he rhapsodizes refuses to do business with a paying customer. Is Kinsley seriously proposing upending our long-settled national practice of banning discrimination in commerce to accommodate every person’s views, religious or otherwise—a license to discriminate that would swallow all of civil rights law?

It’s easy to slide into minimizing the real stakes – or to buy into a topsy-turvy victimhood narrative by the ones who are in fact inflicting a wrong—if you omit, as Kinsley does in his piece, any reference to actual past and ongoing discrimination, or the actual campaign still underway to perpetuate it, or the actual work it’s taken to combat and undo past and ongoing legal discrimination. That work long preceded my friend Andrew Sullivan’s important 1989 New Republic article on marriage (which Kinsley rightly championed), and Kinsley is wrong to suggest that “the focus of gay rights on marriage is a historical accident.” In fact, gay people challenged our exclusion from marriage immediately after what we usually regard as the dawn of the modern gay rights movement; within two years of the 1969 Stonewall Revolution, at least three significant cases brought by couples denied the freedom to marry were making their way through the courts.

When I wrote my law-school thesis on why gay people should have the freedom to marry, back in 1983, I traced out the case for overturning the massive edifice of discrimination and exclusion that gay Americans endured (and to a large extent still endure). It’s taken 30 years of work to get to the point that Kinsley now treats as basically a done deal while he makes people’s (and a medical school’s) understandable recoil from anti-gay stances such as Carson’s the dog to the tail of those stances’ actual ongoing impact.

To justify his piece’s greater solicitude for opponents’ undoubted free speech right to say whatever they want than for the actual legal freedom still denied to millions, Kinsley declares that we “proponents of marriage equality have not just won[, but] have routed the opposition.” Intellectually, sure.  There is no good argument and there is zero evidence to justify the exclusion from marriage. We’ve worked hard to show that.

Innumerable conversations, many battles, painful losses, sacrifice, and dedication of many gay and non-gay people’s time and treasure to securing freedom we should already enjoy have, indeed, changed hearts and minds. We’ve built a 58% majority for same-sex marriage nationwide, up from 27% in 1996, when Congress passed the so-called DOMA as I was co-counseling the world’s first-ever trial on whether the government actually has a good reason for denying the freedom to marry in Hawaii. We are, happily, winning … but we are far from having won.

Freedom to Marry, the campaign I lead to win marriage nationwide, is gearing up for the next round of work and battling it will take to turn the public opinion we have persuaded into the actual legal and political action that will be the true “mission accomplished” that Kinsley is prematurely celebrating. We know we will win, but also know we have a huge amount still to do – organizing, educating, enlisting, lobbying, door-knocking, fundraising, and campaigning that Kinsley’s piece trivializes when he writes, “The challenge [is] simply getting people to think about it a bit.” If only it were, or had been, or will be that simple.

All that said, here’s the big thing Kinsley gets right. I wrote my book Why Marriage Matters: America, Equality, and Gay People’s Right to Marry not as a polemic, but as an invitation to Q&A, not to preach to the converted, but to engage the reachable but not reached who want to be fair but are still wrestling with real questions that deserve answers. The primary way we have indeed moved public opinion, changed votes, and built the momentum we will turn into the real victory that shimmers within reach is by conversation.

We win when we engage those who disagree or are still working it through. Indeed, the only way to win our freedom to marry is by exercising our freedom of speech, sharing our stories and the truth that does indeed set us free—and then translating that persuasion into legal and political change. There is no marriage without engagement, and gay people and the majority of non-gay people who, like Kinsley, support our freedom to marry need not be afraid of speech—the more the better. All of us—Carson, Kinsley, and the decision-makers still voting and ruling on whether to end discrimination—should heed the words of Dick Cheney when he came out in support of the freedom to marry: “Freedom means freedom for everyone.”

Evan Wolfson is founder and president of Freedom to Marry and the author of Why Marriage Matters: America, Equality, and Gay People's Right to Marry.