Jeffrey Toobin: After same-sex marriage decision, crowd sang "Star-Spangled Banner." Why? It's conservative, traditional, not revolutionary
He says decision gives gays same rights to traditional institutions available to straights. Rainbow symbol could give way to white picket fence
Editor’s Note: Jeffrey Toobin is CNN’s senior legal analyst and author of “The Oath: The Obama White House and the Supreme Court.” The opinions expressed in this commentary are solely those of the author.
When supporters of same-sex marriage took over the plaza in front of the Supreme Court on Friday morning to celebrate the justices’ decision in Obergefell v. Hodges, they started to sing.
There’s a long and noble musical tradition at American protests and a standard songbook of sorts as well. Who could imagine the civil rights movement without “We Shall Overcome”? But the crowd today made a revealing choice of song – one that offers a clue about the meteoric success of the gay rights movement over the past decade.
They sang “The Star-Spangled Banner.”
It is not a song for revolutionaries. It’s a song for people who believe in the United States, who want to participate in American society more than they want to transform it. Radicals disdain “The Star-Spangled Banner,” and conservatives love it. The gay rights movement is closer to the latter than the former.
Consider the two great causes of the gay rights movement during the Obama presidency. The first was ending “don’t ask, don’t tell,” the Clinton-era policy that determined when and how gays could serve in the military. The other, of course, was same-sex marriage.
Neither requires any sacrifice by the straight majority; neither would transform society; neither suggests any fundamental disagreement with the basic institutions of society. Rather, both represent attempts by gay people to join institutions rather than change them.
Barney Frank, the gay rights advocate and former congressman, made this point clearly when he said: “I do have things I would like to see adopted on behalf of LGBT people: they include the right to marry the individual of our choice; the right to serve in the military to defend our country; and the right to a job based solely on our own qualifications. I acknowledge that this is an agenda, but I do not think that any self-respecting radical in history would have considered advocating people’s rights to get married, join the army, and earn a living as a terribly inspiring revolutionary platform.”
The decision by the Supreme Court also reflects the fundamentally conservative agenda behind the push for same-sex marriage. Justice Anthony Kennedy’s opinion is based on the idea that gay people merely want the same rights to marriage as straight people, not that they want to change the institution in a fundamental way.
“Excluding same-sex couples from marriage conflicts with a central premise of the right to marry,” he wrote, “Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser.”
Revolutionaries have no interest in “stability” and “predictability.” But that, fundamentally, is what gay people have sought in their fight for equality – no more and no less than their straight neighbors. The symbol of the gay rights movement is the rainbow, but it might as well have been the white picket fence. That’s a cause even a conservative could love.