New York Times Op-Ed about Prop 8: Angels in America

Op-Ed Columnist

Angels in America

By FRANK RICH

Published: August 14, 2010

TO appreciate how much and how unexpectedly our country can change, look no further than the life and times of Judith Dunnington Peabody, who died on July 25 at 80 in her apartment on Fifth Avenue in New York.

The proper names in her biographical sketch suggest a stereotype from a bygone New Yorker cartoon: Miss Hewitt’s Classes, the Ethel Walker School, Bryn Mawr, the Junior League. She “was introduced to society,” as they said of debutantes back then, at the Piping Rock Club, Locust Valley, N.Y., in 1947. As the fashionable wife of Samuel P. Peabody in the decades to follow, she shared the society pages with Pat Buckley, Babe Paley and Jacqueline Kennedy Onassis. But to quote Tracy Lord, the socialite played by Katharine Hepburn in the classic high-society movie comedy “The Philadelphia Story,” “The time to make up your mind about people is never.” In 1985, Judith Peabody, a frequent contributor to the traditional good causes favored by those of her class, did the unthinkable by volunteering to work as a hands-on caregiver to AIDS patients and their loved ones.

Those patients were then mostly gay men, and, as Guy Trebay recently wrote in The Times, they were “treated not with compassion but as bearers of plague.” There was no drug regimen to combat AIDS, and there were many panicky rumors about how its death sentence could be spread through casual contact. People of all types and political persuasions shunned dying gay men even as they treated healthy gay men and lesbians as, at best, second-class citizens. The Times did not put the mysterious disease on Page 1 until after the casualty rate exceeded 500 and didn’t start covering it in earnest until Rock Hudson died of AIDS three years after that. In 1985, the term “gay” itself was an untouchable for writers in this newspaper.

Thanks to Peabody’s prominence, her example had a discernible effect in beating back ignorance and fear in New York. But 25 years ago, few could have imagined a larger narrative that might lead to full civil rights for gay Americans. That was change almost no one believed in. Nor could many have imagined that a day would come, as it did 10 days after Peabody’s death, when a federal judge in San Francisco would rule it unconstitutional for same-sex couples to be denied the right to be lawfully wedded in sickness and in health. Yet here America is, in 2010, on the brink of seeing that issue reach the Supreme Court.

I didn’t know Peabody, but I can only imagine that her determination to make a difference was in some part influenced by her mother-in-law, Mary Peabody. The wife of an Episcopal bishop and the mother of a governor of Massachusetts, Mary Peabody spent two nights in jail, at the age of 72, after participating in sit-ins to protest racial segregation in St. Augustine, Fla., in 1964. Many were baffled why a patrician grandmother of seven would travel thousands of miles to volunteer for a racial confrontation with police officers who were armed with tear gas, dogs and electric cattle prods. “I shall go wherever I am asked to participate for freedom,” she said.

The Peabody women were among the countless players in these larger civil rights dramas. They are testimony to the courage, big-heartedness and sense of fundamental fairness that can flower in our country in the most unexpected quarters even as the angrier and more malign voices dominate the debate. And sometimes over the long term — an obscenely long term in the case of black civil rights — the good guys and women can win real victories. Make no mistake about it: The Proposition 8 trial, Judge Vaughn Walker’s decision and the subsequent reaction to it (as much a non-reaction as anything else) constitute a high point in America’s history-long struggle to live up to its democratic ideals.

Much has been said about the triumph of the odd-couple legal team, the former Bush v. Gore adversaries Ted Olson and David Boies, who opposed Prop 8 in court. But of equal significance is the high-powered lawyer on the other side, Charles Cooper. He was named one of the 10 best civil litigators in Washington in the same National Law Journal list that included Olson and, in his pre-Supreme Court incarnation, John Roberts. Yet, as Judge Walker made clear in his 136-page judgment, Cooper, for all his talent and efforts, couldn’t find facts to support his argument that full civil marital rights for same-sex couples would harm the institution of marriage, children or anyone else. Cooper only managed to summon two “expert” witnesses. In the judge’s determination, one undermined his credibility by giving testimony contradicting his own opinions while the other provided “evidence” rendered worthless by its lack of scientific methodology or even fundamental peer-review vetting.

Boies and Olson produced nine expert witnesses with the relevant professional and academic expertise lacking in Cooper’s duo and compiled an encyclopedic record of empirical findings that demolished the arguments for denying gay families equal rights under the law. In the understatement of The Economist, that record “now seems a high hurdle” for the Supreme Court to overturn. That could still happen, of course, and already there are signs of a campaign from the right to besmirch the likely swing justice, Anthony Kennedy. Though Kennedy was a Ronald Reagan appointee who wrote much of the unsigned decision in Bush v. Gore, that did not prevent him from being called “the most dangerous man in America” by the family-values czar James Dobson after Kennedy wrote a majority opinion decriminalizing gay sex in 2003.

There has already been an attempt to discredit Walker, who has never publicly discussed his sexual orientation but has been widely reported to be gay. The notion that a judge’s sexuality, gay or not, might disqualify him from ruling on marriage is as absurd as saying Clarence Thomas can’t rule on cases involving African-Americans. By this standard, the only qualified judge to rule on marital rights would be a eunuch. No less ridiculous has been the attempt to dismiss Walker as a liberal “activist judge.” Walker was another Reagan nominee to the federal bench, recommended by his attorney general, Edwin Meese (an opponent of same-sex marriage and, now, of Walker), in a December 1987 memo residing at the Reagan library. It took nearly two years and a renomination by the first President George Bush for Walker to gain Senate approval over opposition from Teddy Kennedy, the N.A.A.C.P., La Raza, the National Organization for Women and the many gay groups who deemed his record in private practice too conservative.

The attacks on Walker have fizzled fast. With rare exceptions from the hysterical fringe — Michele Bachmann, Newt Gingrich — most political leaders have either remained silent about the Prop 8 decision (the Republican National Committee) or punted (the Obama White House). Over at Fox News, Ted Olson silenced the states’-rights argument in favor of Prop 8 last weekend by asking Chris Wallace: “Would you like Fox’s right to a free press put up to a vote and say, well, if five states have approved it, let’s wait till the other 45 states do?” (No answer was forthcoming.)

Most of those who do argue for denying marriage equality to gay couples are now careful to say that they really, really like gay people. This, like the states’-rights argument, is a replay of the battle over black civil rights. Eric Foner, the pre-eminent historian of Reconstruction, recalled last week via e-mail how Strom Thurmond would argue in the early 1960s “that segregation benefited blacks and whites and had nothing to do with racism” — as if inequality were O.K. as long as segregationists pushing separate-but-equal “compromises” claimed their motives were pure.

Still another recurrent argument from the Thurmond era has it that no judge should overrule the voters, who voted 52 to 48 percent in California for Prop 8 in 2008. But as Olson also told Chris Wallace, “We do not put the Bill of Rights to a vote.” It’s far from certain in any event that a majority of California voters approve of Prop 8 now. A Field poll released two weeks before Walker’s ruling found that Californians approved of same-sex marital rights by 51 to 42 percent. Last week a CNN survey for the first time found that a majority of Americans (52 percent) believed “gays and lesbians should have a constitutional right to get married.”

None of this means that full equality for gay Americans is a done deal. Even if it were, that would be scant consolation to the latest minority groups to enter the pantheon of American scapegoats, Hispanic immigrants and Muslims. We are still a young, imperfect, unfinished country. As a young black man working as a nurse in a 1980s AIDS clinic memorably says in Tony Kushner’s epic drama “Angels in America”: “The white cracker who wrote the national anthem knew what he was doing. He set the word ‘free’ to a note so high nobody can reach it.”

But sometimes we do hit that note, however tentatively. How one wishes that the many gay Americans who were left to die in the shadows during that horrific time — and, in most cases, without a Judith Peabody, let alone a legal spouse, by their side — could hear Judge Walker’s clarion call.