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July 23, 2015 / Sandy Asher

BLACK SWANS, GUNS, AND GAYS by Harvey Asher, Ph.D.

Let’s get the heavy artillery (philosophy of history) out of the way quickly: The eighteenth century Scottish philosopher David Hume, in his Enquiry Concerning Human Understanding, asserts “that the sun will not rise tomorrow is just as intelligible, and no more contradictory, than the proposition that the sun will rise tomorrow.”

Along similar lines, Nassem Talib postulates Black Swan events that lie outside the realm of regular expectations because nothing in the past convincingly points to their possibility (The Black Swan, 2007, XVII).

In other words, in theory, anything can happen, even the most improbable change, and sometimes does, but we don’t know where or when, let alone why.

While it was impossible to predict the exact date when slaves became free (December 6, 1865) or when women received the right to vote (August 18, 1920), one could see these things coming, in retrospect if not in the heat of battle.  The legalization of gay marriage (June 26, 2015) presents a different scenario entirely.

The end of slavery built on historical antecedents long in the making, such as abolitionism. The road to freedom led from the ratification of the Constitution (1789) through to the end of the Civil War (1865). The focus on expanding and protecting civil and voting rights ran from the end of Reconstruction (1876) until the passage of the Civil and Voting Rights laws of 1964-1965.  The struggle continues, but the path from its origins to its goals is clear.

Women’s suffrage owed much to “The Declaration of Sentiments” coming out of the Seneca Falls Convention (1848) which called for women to enjoy equal rights with men, including the right to vote.  The beginning of married women’s struggle to wrest ownership of their property and their bodies from their husbands dates from Abigail Adams’ plea to her husband, John, “to remember the ladies” in the forthcoming fight for independence from Great Britain in 1776.  Eventually, women pursued getting the right to vote, which was seen as the broadest tool for eliminating other gender inequities. The 1960s gave rise to the women’s liberation movement and consciousness-raising to end sexploitation and open up equal job opportunities with equal pay. In this case, too, the battle is not over, but there has been a discernible march forward.

Both movements gave rise to iconic figures along the way: William Lloyd Garrison, Frederick Douglass, Thurgood Marshall, Rosa Parks, Carrie Chapman Catt, Alice Paul, Betty Friedan, and Gloria Steinem, to name a few. The recapturing of run-away slaves, church bombings, police beatings, murders of civil rights activists, and imprisonment and forced feedings of suffragettes were among the jarring events that helped bring about change.

While the initial phase of seeking to end discrimination based on sexual orientation resembled the movements against racial and gender bias, the arrival at marriage equality was a Black Swan event.

High points of the drive to end anti-gay discrimination include the founding of the Mattachine Society (1951), Illinois allowing homosexual sex between consenting adults (1962), the Stonewall Riots (1969), the American Psychiatric Association removing homosexuality from its official list of mental disorders (1973),Wisconsin becoming the first state to outlaw discrimination based on sexual orientation (1982), more than 800,000 gays marching in Washington for equal rights and the army passing “Don’t Ask, Don’t Tell” (both 1993).

The Stonewall Riots led to a burst of gay activism that focused not on pushing for legal gay unions but on decriminalizing sex between same sex couples, ending discrimination in public accommodations and employment, and curbing police brutality against homosexuals.The 1978 assassination of Harvey Milk, the first openly gay person elected to public office in California, did not lead to widespread changes in public attitudes toward homosexuals. (Milk was killed by a disgruntled office seeker, and not because of his sexual orientation.)  The 1980s AIDS epidemic that killed thousands raised questions about the legal situation of homosexuals: hospital visits, surrogate medical decisions, property inheritance, etc., and funding of medical research. Yet laws on so-called deviant sexual behavior remained on the books and public hostility to AIDS-infected homosexuals remained high.

Furthermore, in 1986, the Supreme Court sustained a Georgia law that criminalized both public and private acts of sodomy by consenting partners. Throughout the 1990s, most Americans continued to deem homosexuality immoral and dangerous. In 1996, President Clinton signed into law the Defense of Marriage Act prohibiting federal recognition of same sex marriage. In 2008, California voters banned gay marriages. By 2012, thirty-five states had enacted statutes whose provisions defended traditional marriage and banned gay unions, while President Obama defined marriage solely as a union between a male and female.

How is it then that by the time of the 2015 Supreme Court decision only three years later, thirty-six states and the District of Columbia were already issuing marriage licenses to same sex couples, and the majority of Americans (57%) supported the right of members of the LGBT community to marry whomever they wanted?

I don’t know of any other significant social change in all of modern American history that took place with such lightning speed.

We can talk about the rise in the number of Americans personally knowing a gay person from 24% to 74% between 1985 and 2004. And the greater exposure via the mass media – TV shows with likeable gay hosts and guests, among them Ellen DeGeneres and “Will and Grace.” We can point to the coming out of celebrity homosexuals in the worlds of business, the arts, politics and athletics.

Exposure alone, however, is an insufficient explanation for the sudden change in attitude – personal and legal — that occurred as the climate of opinion radically moved from hostility to support, and did so despite the absence of iconic gay figures to symbolize the goal.  Jim Obergefell, who brought the case challenging the Defense of Marriage Act before the Supreme Court (Obergefell v. Hodges) is still hardly a household name. The June 26th court decision appears to be one of those Black Swan events.

Could sensible gun laws be the next?

On the surface, this appears most unlikely.  A significant spike in NRA membership followed the murders of twenty first graders at the Sandy Hook school. Moreover, in 2008, the Supreme Court rescinded the Firearms Control Regulation Act (1975) that required all firearms be kept unloaded and disassembled. Two years later in Columbia v. Heller by a 5-4 vote the court confirmed at the federal level the right of individuals to own and bear arms (of all kinds).

And yet those decisions left open the question of whether Second Amendment protections applied at the state and local levels where laws allow the carrying of firearms concealed or openly displayed in public spaces – airports, schools, libraries, playgrounds, etc.  All it takes is one swing vote in the makeup of the Supreme Court, not unlikely given that several members are in their eighties, to usher in a more restrictive, some would say original intent interpretation of Second Amendment rights.

Keep in mind that until 1977, the NRA’s agenda featured teaching firearm safety and advocating restrictions on the types of guns sold to the public. Of today’s more than 70 million gun owners in America, only 3.5 to 5 million belong to the organization, and many of those who do are not gun libertarians.

Then there are the many gun control organizations like the Coalition to Stop Gun Violence and Moms Demand Action for Gun Sense in America that have had some successes at the state level in strengthening gun regulation. Their prodding contributed to thirty-seven states passing laws to strengthen gun restrictions and criminal background checks on all firearm sales and transfers, including gun shows and Internet transactions.

The cards are not yet good enough to bet the family farm on, for sure, but consider the hand that same sex marriage advocates held on the eve of the June 26 ruling. That group’s win against stupendous odds offers hope that other surprises may await us.

Provided, of course, that the sun does rise tomorrow.

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One Comment

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  1. Harold McFerren / Jul 24 2015 8:15 am

    Harvey – Thanks for posting this latest paper. I appreciate much the clarity and insightfulnes of your writings. I look forward to the fulfillment of your closing commentary on future gun restrictions: “The cards are not yet good enough to bet the family farm on, for sure, but consider the hand that same sex marriage advocates held on the eve of the June 26 ruling. That group’s win against stupendous odds offers hope that other surprises may await us.” Please give my greetings to Sandy. I hope that all goes well with the Ashers. Hal

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