Last week, four couples filed suit against the state of Montana in federal court, arguing that our constitutional ban on gay marriage deprives them of equal protection under the 14th Amendment. I use “our” reluctantly. Article XIII, Sec. 7 of the Montana Constitution is petty and embarrassing, but it’s the law of the land, and for the time being we are stuck with it.
Like many kinds of bigotry, it once enjoyed popular support. The amendment insisting Montana would only recognize marriages between one man and one woman passed with 67 percent of the vote in 2004. But 2004 was a long time ago, and a lot of bad ideas were fashionable then.
That was the year Republican strategists, concerned that Americans might not vote for George W. Bush now that they had gotten to know him, pushed gay marriage amendments to attract evangelical voters to the polls. It was a clever bit of electioneering: demonize one small group of American voters in order to attract a larger one. And I’m sorry to say it worked.
But what did it do for Americans who weren’t running for office? It’s not as if 2004 was the year we saw heterosexual marriages dwindle to near zero, pushed aside by a flood of couples who preferred the convenience and social cachet of marrying someone of the same sex. Article XII, Sec. 7 solved a problem that didn’t exist.
The idea that traditional marriage needed defending was a stalking horse, a safe way to rile up voters with an idea most people agreed on. Depending on which study you read, 90 percent of Americans identify as straight. Asking them if they wanted to “protect” their kind of marriage was like KISS asking Detroit if it wanted to rock.
Montana’s gay marriage ban was democracy at its worst. It invited the majority to assert itself at the expense of a minority, and it did so for no discernible gain. The ugliest thing about the 2004 ballot initiative was that it raised prejudice to the level of law. But the most pathetic thing is that it didn’t work.
Gay marriage is not going away. Over the last year, federal courts have ruled again and again that bans on same-sex marriage are unconstitutional, chipping away at an entrenched prejudice that used to be one of the safest bets in politics. As of this writing, 30 states face legal challenges to their marriage laws. North Dakota is the only state whose same-sex marriage ban has not gone to court. And I think we can agree that Montana is better than North Dakota.
Besides the tidal shift in national attitudes over the last 10 years, I can think of two pieces of evidence that suggest Montana does not feel the same way about same-sex marriage that it did in 2004. Last fall, for the first time ever, a statewide survey conducted by MSU–Billings students found that more Montanans support same-sex marriage than oppose it. And one of those Montanans is Gov. Steve Bullock.
Bullock was attorney general the last time someone tried to overturn the state ban on gay marriage, and his office stood in the way. But like a lot of Montanans, he has changed his mind, and now Gov. Bullock supports the effort to overturn Article XIII, Sec. 7.
Current Attorney General Tim Fox, on the other hand, still supports the ban. In some ways he has to, since he is a Republican and his party seems determined to ride this issue to demographic irrelevance. But he is also a smart man, and he should see that there is no future in depriving Montanans of their rights just to pander to a rapidly shrinking slice of the electorate.
In an ideal world, he might look at the equal protection clause of the 14th Amendment and see that Montana’s ban on gay marriage is legally unsound, too. But I will settle for political expedience. This is not the same state that it was in 2004, and Montanans do not hold all the same opinions. Yesterday’s cynical strategy is today’s growing embarrassment.
Fox could end the embarrassment right now by declining to defend Article XIII, Sec. 7 in court. He would be a hero—not just to gay couples, many of whom might vote Republican, but also to any thinking voter who has ever changed his mind.
Emerson remarked that a foolish consistency is the hobgoblin of little minds. Montanans aren’t fools, even if certain hobgoblins have occasionally encouraged our worst ideas at the ballot box. We aren’t so consistent, either. In the last 10 years we have been inconsistently fair, to our shame. But we have also proven inconsistent in our opinions, and that is to our credit. It means we’re still thinking about things. Our attorney general should think about getting on the right side of history while he has the chance.
Dan Brooks writes about politics, culture and KISS at combatblog.net. His column appears every other week in the Independent.