Times: Gay rights and long political overhauls

http://www.timesofmalta.com/articles/view/20080717/opinion/gay-rights-and-long-political-overhauls
Thursday, 17th July 2008, Ranier Fsadni

W hat do esthe ultra-liberal EU Fundamental Rights Agency (FRA) have in common with George W. Bush? The idea that laws about gay marriage can be imposed from a federal centre on individual states.

Of course, President Bush would have liked to make gay marriage unconstitutional in the US while the newly-set up FRA believes it should be legalised across the EU. But despite wanting opposite outcomes, their reasoning is the same.

The FRA has stated that it is wrong for Malta and another 10 member states not to recognise same-sex marriages and partnerships contracted elsewhere in the Union. Such non-recognition, according to the agency, infringes the principle of free movement as it restricts the ease of family reunification for same-sex spouses. But it was exactly the same principle of free movement that Mitt Romney used just a few months ago to justify why he believed gay marriage should be made illegal by the US Constitution. Mr Romney was then a candidate for the Republican Presidential nomination and seeking to attract the social conservative vote, which delivered the White House to Mr Bush in 2004.

Mr Romney was being interviewed by Charlie Rose, who hosts one of the most thoughtful discussion programmes on US TV. Mr Rose asked Mr Romney whether there was a contradiction between his positions on abortion and gay marriage: for Mr Romney argues that abortion laws should be left up to individual state legislatures while gay marriage should be outlawed at the federal level.

To explain why he saw no contradiction, Mr Romney enunciated the same principle as the FRA: Precisely because with gay marriages you have people moving across state boundaries demanding that contracts they signed elsewhere are recognised wherever they settle, the law against such marriages needs to transcend individual states.

The FRA cites freedom of movement in the context of equality; President Bush and the US social conservative movement do not see the principle of equality as being violated in this instance. That is a fundamental difference. But it is a difference one can find also in Europe; not just in the 11 states that do not recognise gay marriages or partnerships but across the Union, where gay marriage has generally sparked very heated debates that in their wake left a great sense of anger and injustice on both sides.

There are two points worth drawing from this parallel. Worth drawing both because of the online debate that threaded this newspaper's report on the FRA (July 1) and because of demand for equality made at last Saturday's Gay Pride March by Gabi Calleja, the coordinator of the Malta Gay Rights Movement. Online, some debaters opined that people opposing gay rights were a dying breed, like dinosaurs. But the evidence for this is scant. Yes, more gay rights are being recognised in Europe. Yet, the US passed through a similar liberalising phase in the 1960s and 1970s, only to experience a backlash later. In the 1980s, the backlash was disguised as a reaction to the emerging Aids epidemic but by the election of George W. Bush in 2000 there was no disguising it.

President Bush was never in a strong enough position to make gay marriage unconstitutional. But he was in a position to keep talking about it, to make a small minority a culturally central question and thus to make being gay a discomfiting political issue for homosexual people.

Here enters the second lesson from the US experience. It would be short sighted to question this comparison by retorting that this would never happen in Europe.

In the 1960s, the mood of the liberalising US courts, led by the Earl Warren's Supreme Court, was comparable to that of the FRA and the European Parliament today. It seemed as though the age of progress had hit a point of no return.

Instead, it seems to have been the liberal high point of a long political cycle. Later, at the liberal low point, the same institutional instruments were used - or there was a strong threat to use them - to reverse such reforms. It is good to remember that the institutions one uses to win a political battle today may be used against one's own cause in the future.

And there are good reasons to assume that there will be, at some point, a conservative backlash in Europe if the pan-European institutions continue down the current path of pushing socially-liberal reforms on member states without attempting to win the arguments by persuasion.

Winning the argument is important because it secures whatever is gained. And to persuade, one must argue from within society. There is a good case to be made for gay rights, to show that many such rights are commensurable with the values of mainstream society. But so far, the case is too rarely made.