Darlene Garner, left, and her partner, Candy Holmes, of Washington, hold roses after the couple obtained their marriage license Wednesday, March 3, 2010, the first day possible for gay couples since the District of Columbia legalized gay marriage in Washington. (AP Photo/Jacquelyn Martin)
Updated: July 18, 2012 6:30AM
Murderers can marry. Even Richard Ramirez, a k a the Night Stalker, wed in a ceremony in California’s San Quentin Prison in 1996.
No religious organization protested the nuptials of the serial killer and rapist on Death Row, even though murder is considered the most extreme Biblical sin.
John Wayne Gacy received a number of marriage proposals while in prison. He didn’t accept any, but had he, neither faith nor law would have stood in his way, or suggested his marriage somehow tainted the institution of wedlock.
This isn’t true for gays, who are denied the right to marry in most of the United States, with the exception of seven states: Vermont, New Hampshire, Massachusetts, Connecticut, New York, Iowa and Washington, as well as Washington, D.C. Eleven states — including Illinois — allow civil unions, which offer the legal protections of marriage.
Two lawsuits are challenging that in Illinois, and on Thursday Cook County State’s Attorney Anita Alvarez, whose job typically would be to fight such suits, announced that she won’t, because the state law barring gays from marriage is indeed unconstitutional.
Here’s why: The 14th Amendment of the United States Constitution offers what is referred to as the “equal protection clause.” “No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.”
This is the clause that allowed the federal government to get involved with the civil rights struggle in the 1950s.
Now gay Americans are traveling the same long road. Prior to 1969, gays were forced to live secret lives. Homosexual acts were illegal, gays were barred from employment and housing. They weren’t even allowed to drink together in a bar.
That began to change in 1969, when patrons of New York’s Stonewall Inn, rather than accept the usual police raid, fought back, and the skirmish became a rallying point for gays.
The AIDS crisis further stoked their visibility. In the face of government indifference to the plague, standing up for themselves became literally an issue of life or death.
Various states and cities enacted laws making it illegal to discriminate against gays in housing and employment. Few argue today that gays shouldn’t hold jobs; keeping them from marrying still has support. Alvarez might be reluctant to uphold the ban, but some religious groups are eager to step in and continue legal harassment of gays.
The Chicago-based Thomas More Society, named for the English saint who pushed for papal authority over secular government, called Alvarez’s announcement “a crass political move to force same-sex marriage on all Illinoisans,” in a posting on its website, adding the group is “preparing legal papers to defend the law and prevent this collusive end run around the will of the people of Illinois and their General Assembly.”
Framing popular bigotries as a expression of public will has a long history. The South used states’ rights and popular desire as a defense of slavery, then, for a century, as an argument against civil rights for blacks. In 1958, 96 percent of whites were against mixed marriages.
The strategy of using popular vote against gay rights has a dwindling shelf life. American public opposition to gay marriage has begun to crumble, particularly in places where gay marriage is legal, and the public has seen the lack of actual repercussions.
Gay marriage was ruled legal in Iowa in 2009, a situation that many in the state want to change by creating a constitutional amendment barring it.
A Des Moines Register poll this year found 56 percent of Iowans oppose a constitutional amendment banning gay marriage, while 38 percent support it. Polls show similar numbers across the country, representing a significant shift — a decade ago those numbers would have been flipped.
What underlies this change, despite long-standing religious objections, is that marriage of gays does not have any demonstrable negative effects — the constant claims that straight marriage is somehow undermined rest on a leap of faith that a dwindling number of Americans are willing to make, once they recognize the gays among their own families and friends, the falsity of the religious opposition becomes apparent.
Arguments that gays shouldn’t marry because they can’t have children, or because they make bad parents, upon examination are seen for what they are: hypocritical feints crafted especially to use against gays. Nobody opposes the marriage of the infertile because they can’t bear children. Nor does anyone, particularly conservatives, otherwise urge the government to embark upon deciding who would make a good parent.
Alvarez’s action is unprecedented — no state’s attorney has previously declined to argue a gay marriage case. Then again, Illinois has a long history of pioneering in the acceptance of gays — it was the first state, in 1962, to decriminalize homosexual acts.
At the time, a Northwestern University assistant law professor, Claude R. Sowle, told the Sun-Times, “The law should not be cluttered with matters of morality so long as they do not endanger the community. Morality should be left to the church, community and the individual’s conscience.”
No opponent of gay marriage can offer a persuasive explanation of why that no longer holds true.