Have Conservatives Surrendered In The Gay Marriage Wars?
To a large degree, the right seems to have backed down in the marriage wars.
With the Supreme Court likely to finish out its term this week, its decisions in the two same-sex marriage cases it heard this term are mere days away from being released. While there’s much speculation about how the Court will rule, all of which is utter worthless in the end, one thing that is certain no matter which way the Court rules is that the ruling will have a huge political impact on politics in general and the direction of the ongoing marriage equality debate in particular. In the time since the Court accepted these two cases for appeal, though, there have been significant developments in the political world on this issue. On Election Day, three states voted to legalize same-sex marriage, and a fourth saw voters reject an initiative that would have enshrined “one man-one woman” marriage in state law. Over the past several months, three more states, Rhode Island, Delaware, and Minnesota, have legalized same-sex marriage and a majority of the Senate, including three Republicans, have endorsed marriage equality. Clearly, the political tide is moving in one direction, and, as Josh Barro noted last week, conservatives don’t seem to be fighting it anymore:
Those who oppose gay marriage are sick to death of talking about the issue. They know they are losing the fight over public opinion and that their complaints are not going to convince anybody. And making those complaints has become awkward, because opposing gay marriage has come to be seen as rude in polite society.
I also suspect that, deep down, many socially conservative writers are less confident than they used to be that gay marriage is wrong.
So they’ve abdicated any effort to argue against gay marriage or hold accountable Republicans who support it.
Of course, the fight over gay marriage in the Republican Party is far from over. State party activists are likely to cause trouble for Republicans who back gay marriage even if national writers won’t.
But the national conservative media is done with engaging on the issue.
Rod Dreher seems to agree:
I think this is right, and I only realized it fully when I read this on the same day I explained to a genuinely inquisitive reader, in a thread below, that I was so brusque on the SSM issue because I have said for years, over and over, on this blog what I think and why I think it, and am sick and tired of talking about it. I don’t secretly think I’m wrong, nor do I mind the opinion of “polite” society, but I am convinced that my side has lost this issue (mostly for reasons I explain here), and I’m just tired of talking about it. Nobody has anything new to say. Not me, not you, nobody. So a Republican Senator now favors gay marriage. So what? What would gay marriage proponents have us say? I mean, The New York Times can find a fresh pro-gay angle every day, on everything under the sun, but the rest of us don’t roll that way.
Related somewhat to this phenomenon, of course, is the somewhat surprising announcement last week from the head of Exodus International that the organization was repudiating the “gay conversion” therapy it had become known for, apologizing to those it had harmed, and disbanding immediately. As with the increasingly common conservative silence on the issue of marriage equality, this one event seemed like a sea change in the culture war that has been going on over this issue ever since it truly became part of the public discussion in the late 1990s. Whereas the continued political victories of the proponents of same-sex marriage are a sign that activists on the right have quite obviously backed away from engaging in this fight, things like the growing silence on the right and the Exodus announcement strongly suggest that, culturally, the argument for the issue has become so embarrassing to make that the people who believe in it aren’t even bothering to try to make it very strenuously anymore.
Of great interest, of course, will be how this debate is shaped in the future in the wake of the Supreme Court’s rulings in the Proposition 8 and DOMA cases. While I tend to agree that it’s unlikely to expect that the Court will issue rulings in either of those cases that will sweep aside every law against same-sex marriage in the nation, for reasons I’ve stated before, the best guess right now seems to be that even a limited ruling from the Court will be one that advances the cause of marriage equality and which will likely serve as a basis for bans of same-sex marriage elsewhere in the country. Assuming that happens, one wonders what the political impact will be. While Court rulings in the past have often served as rallying points for conservative political activism, it strikes me that any ruling from the Supreme Court that advances the marriage equality cause is likely to be yet another blow to the energy of “traditional marriage” proponents. On top of the poll numbers that are now decisively in their favor and the demographic trends that show acceptance of both homosexuality and same-sex marriage among even those younger people who consider themselves politically conservative, they will now have the nation’s highest court joining the President in placing it’s voice behind the cause of marriage equality. That’s likely to be a body blow from which the “traditional marriage” crowd is likely to never recover.
None of this is to say that there won’t be political battles over same-sex marriage in the future. Especially in the south and other places where states are deeply red, the efforts to legalize same-sex marriage are likely to quite difficult on both the political and legal fronts. Many opponents of same-sex marriage will shift their arguments away from defending “traditional marriage” to arguing that they are defending religious liberty. In several of the states that have legalized same-sex marriage this year, the laws passed have included specific protections for churches making it clear that they cannot be compelled to perform or host a wedding ceremony that violates their religious beliefs. Personally, I have no problem with such a safeguard, although I’d argue that it’s already something that the First Amendment would quite clearly stand for.
What marriage equality opponents are starting to focus on now, though, are people who aren’t members of the clergy but who have religious objections to same-sex marriage and don’t wish to be part of it. Examples of this from around the country include wedding photographers, florists, and other people who provide services to people getting married who refuse to provide services to gay couples. In some states, this has resulted in litigation or complaints based on state anti-discrimination laws. In many ways, this is similar to the legal fight current being waged over the government’s mandate that employer-provided health insurance include coverage for contraceptives, something that many employers with religious owners have been fighting in Court, with no small degree of success I might add. In the end, this is debate over whether people who don’t want to engage in commerce in specific circumstances based on religious principles should be free to do so, or whether people who hold themselves out as engaging in business with the general public should be compelled to do so. I’m skeptical of the “religious freedom” argument, but I’m also not sure why anyone would want to do business for something as personal as a wedding with someone who has an objection to the act that could end up influencing the quality of the services that they provide. In any event, expect this to be a significant area of controversy in the future as marriage equality becomes more common across the nation.
In some sense, then, it is true that the right does appear to be in retreat in the marriage wars. However, there are plenty of battles ahead that they will likely engage in.
“I’m also not sure why anyone would want to do business for something as personal as a wedding with someone who has an objection to the act that could end up influencing the quality of the services that they provide.”
In some, particularly rural, areas, you only have a *very* few people to choose from for certain services, unless you happen to have a friend or family member that can handle it. (Ex: For my wedding, my wife’s aunt did the food, including the cakes, and a friend of hers did the photography. This was in the Albany Ga area – a town of 100K, but surrounded literally for nearly a hundred miles in any direction by entire COUNTIES with populations less than many *high schools* in the Atlanta area.)
No.
Yes.
There is a difference.
Republicans want to win elections.
Conservatives want to stick to principle – even when it’s outdated and no longer relevant.
It’s also worth remembering that even if some conservatives “surrender,” the almost zombie nature of state constitutional amendments (which in many states require legislative or popular supermajorities to undo) means that it could be years or even decades before gay and lesbian people in states like Wisconsin or North Carolina (much less Mississippi) will be able to marry.
If state legislatures could simply pass equality laws, this process would probably be over soon. But because of the constitutional amendments, in most states they can’t.
I don’t really see a sweeping ruling coming from THIS court on the state level issue. I do , however, believe that there will eventually be one. Loving came in the wake of decades of precedent (stemming from 1883) which upheld anti-miscegenation statutes.
So, it’s probably a case of “not yet”, not “never”.
That said, I’m expecting an affirmative ruling in Windsor, and that case may be the pebble that starts the landslide.
After all, what prevents a 5th Amendment challenge to Section 2 of DOMA patterned along the same reasoning in Windsor?
What marriage equality opponents are starting to focus on now, though, are people who aren’t members of the clergy but who have religious objections to same-sex marriage and don’t wish to be part of it. Examples of this from around the country include wedding photographers, florists, and other people who provide services to people getting married who refuse to provide services to gay couples.
The most prominent proponents of gay marriage have had a fundamentally dishonest record on the issue from day one. It was always an agenda of incrementalism, wrapped in disclaimers of such. “Just give us the same rights as married people, and we’ll be content.” So civil unions. Then that wasn’t enough, so it had to be actual marriage, but no one who sincerely opposes it will be forced to actively participate in it. Now that’s next on the agenda. It’ll be a hate crime to refuse to offer services to a gay wedding. If you wanna work in the wedding biz, you damned well better say yes to all comers, regardless of the genders of the happy couple (or more — that’s on the agenda, too).
I say this as a supporter of gay marriage, but a stronger supporter of doing things honestly.
I grew up in an era and area where gay-bashing was totally normal and acceptable. I disagreed with it quite vehemently (especially once I started meeting openly gay people), but that was the culture. (It was also a time when drunk driving was a source of humor, not outrage. Things change, and often for the better.) Huge steps have been taken, and more are coming.
I just wish it could be done a bit more honestly. Pretty much no one believed that it would stop at civil unions, but the supporters just kept lying until they suddenly changed their minds. During those arguments, the side that said that next up would be the targeting of those who didn’t object to gay marriage, but just didn’t want to have to support it or participate in it, and they were laughed at and mocked. Well, now it’s their turn in the barrel.
I sort of look at it the other way. With the ubiquity of cable, and the ubiquity of risque material, blood, and smut on cable, how much harm is it that TV is more constrained in what they can put on TV? People who want more blood, sex, curse words, and whatnot now have more ways than ever to get them.
But I guess it doesn’t matter too much either way. As Peter points out, where the FCC doesn’t regulate, advertisers kind of step in.
That would be me responding in the wrong window.
I don’t think the continued victories are a consequence of the bigots backing off, it’s a consequence of a) more people being aware that gays are their friends, neighbors, and relatives, b) old bigots dying off and c) the bigots never, ever, had anything remotely like any sensible argument.
Rather, I think the bigots are backing off because people are increasingly viewing them as bigots. Maggie Gallagher’s now whining that people call her a bigot and they’re so mean.
@Jenos Idanian: it’s fascinating that you choose to call gay marriage proponents liars when you conflate so many issues in so brief an amount of time. Gay marriage proponents have always been for gay marriage, hence the name. People who advocated for civil unions largely did so due to either their or conservatives issues with calling it marriage. Anyone who argues for equality in reality if not in name is still fighting because there are still benefits that married couples receive that partners under a civil union do not.
It is endlessly fascinating when people who defend bigotry try to cast themselves as the true victims. If you feel like you are morally right in being a bigot, you would think that you could defend your position on the merits.
@Jenos Idanian:
Why would someone in the ‘marriage business’ hate gay people so much that they would refuse to provide services to the gay couple getting married? Should florists be able to refuse to sell flowers to the gay couple getting married? Should catering companies be able to refuse to provide food and drink to that gay couple on that occasion?. Sounds like a backward separate but equal world, doesn’t it?
One theory I have had for a while, based on my personal experience discussing the issue with other people over the years, is that the opposition to SSM was never as strong as is commonly believed. Even back when polls showed a majority of Americans on the side of the opposition, I think many of those people opposed SSM simply because of its novelty, nothing more. They never had the sky-is-falling mindset of its most vocal and rabid opponents. They merely saw SSM as kind of weird and opposed it by default, but they were in principle quite open to changing their minds. The types of people who viewed SSM as a threat to civilization itself never constituted a majority. That’s why the public has shifted on this issue with such stunning rapidity: it wasn’t that millions of Americans changed their whole worldview overnight, it was simply a matter of people getting accustomed to a new idea.
But politicians from both parties didn’t make this distinction or even really consider it; they just read polls showing majority opposition to SSM and assumed all the opponents were basically the same and were a force to be reckoned with politically. The Bush Administration and other Republicans responded to this situation by proposing a constitutional amendment (the ideal way to excite a constituency without having to worry that your policy will ever actually be implemented). Meanwhile, most Democrats proclaimed their support for “civil unions,” in which gay couples were to be granted many of the same benefits as married couples, but without their unions being called “marriages.” From the beginning civil unions were an exercise in damage control: trying to increase the practical rights of gay people while avoiding turning off social conservatives.
I know it’s conventional wisdom that Bush’s 2004 victory depended at least partly on his shoring up the support of evangelicals through fear-mongering over SSM. This assumption has been called into question by political scientists, but even if you accept it, we’re talking here about a narrow election that was decided by a small portion of the electorate, a situation that can lead to overstating the importance of issues that are of relatively marginal importance to most voters.
Perhaps all those pols who were privately pro-SSM had less to fear from the public than they realized, and if they had just been a bit less timid about pursuing the issue they might have discovered much less of a backlash than they imagined.
@al-Ameda: Why would someone in the ‘marriage business’ hate gay people so much that they would refuse to provide services to the gay couple getting married?
I dunno why, but if they claim a moral objection and want to refuse, I don’t particularly feel we as a society have an obligation to force them to comply. As a general rule, I don’t think it’s the law’s place to tell stupid people to not do stupid things. The threshold for that, to me, is very high. I believe very strongly in the right of people to do stupid, even self-destructive things. For one, it’s often the best way to learn to not do more stupid, self-destructive things in the future. For another, it gives us all bad examples that we can cite as to why you shouldn’t do stupid things outside of “because we say you shouldn’t.” Finally, it often has great entertainment value.
Or, in shorter terms: evolution, learning by example, and schadenfreude.
Who cares? Conservatives are irrelevant to politics. The social question for the U.S. is whether marriage will become so much of a gay thing that marriages among heterosexuals will continue to decrease.
The political question is whether in the coming one party state whether any group will be considered more powerful than the organized homosexual lobby. I wonder how long until the government decides to go after the tax exempt status of the last existing christian churches in the U.S.
@Kylopod: One theory I have had for a while, based on my personal experience discussing the issue with other people over the years, is that the opposition to SSM was never as strong as is commonly believed.
“Never” has a pretty infinite meaning, and you sound like you’re only talking on the scale of a decade or two. For a very long time, homosexuality was seen as a mental illness and a major moral sin. The idea of same-sex marriage was a joke, an example of total absurdity.
We’ve come a very long way in a very short time. I dunno if it’s your biases, your (presumed) youth, or your upbringing that’s coloring your perception here, but you’re totally wrong.
Rod Dreher comes within a gnat’s breath of an epiphany with:
But sadly veers away at the last minute because he fails to wonder WHY we have ceased to believe in the Christian cultural framework. It’s because Christians have largely stop trying to convince people it’s worth believing in. Very few Christians can defend the premise that society benefits from their beliefs with anything beyond “well that’s what the Bible says” and, if that fails, “God works in mysterious ways”. It’s not surprising this fails to convince the unconverted, especially since the later is basically an admission it doesn’t make sense to the proponent either.
But the thing is, most Christians aren’t really trying to convince others, because it’s easier in so many case to just rely on superior numbers to compel by force that which they were unable to convince by reason. And while this can assure obedience in behavior, it inevitably leads to alienation.
Which is a problem pretty much across out entire society. So many of our leaders want to complain about a growing sense of alienation in the public while simultaneously refusing to deal with their involvement in growing that alienation. Most people want to be something bigger than themselves, and will choose to give up a certain degree of individuality if invited to join a society that makes sense to them. But in most cases, beyond the simple political calculation of cobbling together 50% + 1 person, we put very little effort in making our society more inviting to those outside or of convincing them of the rightness of our views.
Agumentum ad Baculum is just so much less work.
You have a point. I wasn’t being clear. What I meant to say was that ever since SSM became a visible enough issue that people started taking polls on it (which is indeed about a decade or two), the common interpretation of these polls has vastly overstated the intensity of the opposition.
: An argument for running no more than one instance of Bacula, the open source backup package that comes at night to suck your files?
@superdestroyer: “marriage will become so much of a gay thing that marriages among heterosexuals will continue to decrease.”
Aren’t we misplacing cause and effect? Marriage was in the toilet long before the first wedding bells tolled for gays. It’s like straights broke their toy, so now they’re willing to let gays play with it.
@rudderpedals:
Argumentum ad baculum (latin for “appeal to the stick”) is an argument where force, coercion, or the threat of force, is given as a justification.
Example:
Employee: I do not think the company should invest its money into this project.
Employer: That opinion is sufficiently poor that expressing it will get you fired.
Jenos is of the “I’m not a racist but. . .” school of support for gays. “I’m not a homophobe, but my God, after we ‘gave’ them civil unions, why didn’t they go sit in the back of the bus? How much do we have to give them before they shut up and go away?”
“I’m not a Nazi, but Jews already have Seinfeld, do we have to give them Curb Your Enthusiasm, too?”
Interesting to hear this kind of whine from a notorious serial liar.
Bullshit. You support gays having the rights that you say they should have, the way you say they should have them. F**k that. Equal protection under the law for all. Period.
Sure. Get the hell away from the lunch counter boy – we don’t serve your kind.
Welcome to Jenos vision for America.
Spoken like a semi-bright 14 year old.
@Jenos Idanian: You are incorrect. No one from the equality side EVER said that civil unions would be enough. It has only ever been accepted as an incremental step, after all, separate is never equal, and this has been THOROUGHLY PROVEN in the case of civil unions.
@Jenos Idanian:
Please list all the second-class statuses that you are personally willing to accept for yourself and your family.
@jd:
If you think the Bridezilla phenomenon was bad among many of the heterosexual women, image how much worse it will it be when the homosexual drama queens take over.
I a decade or two, marriage ceremonies will probably be seen as gay as the theater or high end fashion.
@michael reynolds: Jenos is of the “I’m not a racist but. . .” school of support for gays. “I’m not a homophobe, but my God, after we ‘gave’ them civil unions, why didn’t they go sit in the back of the bus? How much do we have to give them before they shut up and go away?”
No, I was — and remain — an honest incrementalist.
“OK, we’ll hold off on marriage — let’s try these ‘civil unions’ for a while, see how that works out. You say it’ll be doom and hellfire, I say it’ll be no big deal. Let’s give it a whirl, then come back and see how it goes. If it’s a disaster, we’ll back off. But if I’m right and it’s no big deal, let’s look at marriage.”
That’s the conservative approach. No need to demonize the other side, no demand for a confrontation, no need to put on the “white knight against the forces of evil” mindset. The main driver for the mentality we see in michael and anjin isn’t about achieving the goal. It’s not even about winning. It’s about defeating the other side, of being triumphant and crushing the other side.
If, in the process, achieving the goal is delayed or people get hurt in the process, why, that’s just a small price to pay for making certain that the right people are seen as the heroes.
No. Their bigotry and lack of compassion and love for those who do not think like the GOP and TP folks know no bounds. Great for our country though that younger Americans overwhelmingly see no threat to our country from the GLBT community.
Three Republicans in favour of same sex marriage is hardly a big deal! Many, many more are not. They live in a time where dinosaurs still roam on many issues. Their platform is as always will be the same. Anti-gay. anti- immigrant and anti-women. That’s who they are and will always remain. They have no intention of joining the 21st century.
Establishment Republicans care about tax cuts for the wealthy. They care about subsidies for their businesses and reduced regulation. They don’t care about gay marriage. The anti gay thing was just a tactic to get the rubes to vote against their own interests. Now that it’s hurting them as much as helping, they’re dropping it. Surprise.
Let’s take a break from Jenos concern trolling and remember Alan Turing, the father of computer science who’s work in cryptography during WW2 was pivotal in the allied victory.
How Alan Turing Helped Win WWII and was Thanked with Criminal Prosecution for Being Gay
Then we can get back to discussing how gays/lesbians should be happy to wait patiently for the conservatives that despise them to decide what rights they should be allowed to have and when they should be allowed to have them.
Rod Dreher is clearly frustrated that the standard conservative arguments ( homosexuality is a mortal sin; gay marriage would threaten traditional marriage; gay sex is deviant and icky) don’t work any more. Well, they don’t work because if you take the First Amendment seriously, you can’t deny people the equal protection of the marriage laws for religious reasons.
Conservatives simply don’t have good legal reasons to oppose SM. They will continue to push the issue, though. It’s red meat for the Republican base who are so stirred about SSM that theydon’t realize that the Republican agenda is about screwing the poor and helping the rich.
@Jenos Idanian: A minute ago it (incremental progress) was a lie, now it’s the conservative approach. Is this confusion, dishonesty, or do you think lying is the conservative approach?
@Jenos Idanian:
No, that’s not the main driver. I want all Americans to be equal before the law. The fact that a bunch of brain-dead conservatives humiliate themselves on the road to equality is just a tasty amuse bouche, not the main course.
If that was what motivated us, the ass whupping Obama laid on your boy Mitt Romney would allow us to take a year or two off of political blogging entirely. The memory of the Mittster going into election day so certain of victory that he did not even prepare a concession speech as a contingency would sustain us for a a long time.
@Kylopod: I think you’re close to the right answer. For most SSM opponents, it’s not that they’ve given up, or that they were troubled by its novelty, it’s that they recognize it as an issue that’s going to affect a very small number of people. It’s not the biggest fight. They would have been happy winning it, but you don’t win them all.
Adding to that is just the overall fatigue on the right about social issues. I said you can’t win’em all, but sometimes the social conservative gets the feeling that you can’t win any of them. They allow the mainstream press to get into their heads. They’re more likely to retreat into evangelical culture, which has a strong element of cultural isolationism.
A small nit to pick about the original post: Exodus Internationsl is re-purposing itself. Their President Mr Alan Chambers directs us to the new website (reducefear.org). I did not click his link so can say no more.
And a question about the upcoming Supreme Court cases: What ruling would be required to place SSM within the ‘full faith and credit clause’ of the Constitution? If the Supremes find that gay Californians have a marriage right guaranteed by the 14th Amendment, for example, wouldn’t they still be married if they moved to Utah? Wouldn’t they be able to protect their rights (to shared property, say) by using federal courts in another state?
I wasn’t talking about people who remain anti-SSM to this day; I was talking about the people who have apparently changed their mind on this issue and become pro-SSM, if polls over the past few years are to be believed. You may be completely right, but it doesn’t change anything I said. It may even be two sides of the same coin: just as many anti-SSM people have rethought their views, some have kept their original position but become less fervent about it, realizing that there are bigger fish to fry, so to speak. In both cases what’s happening is that a lot of Americans are deciding that it just isn’t worth spending so much energy worrying about who’s marrying whom.
@JohnMcC:
The problem there is that, while DOMA Section 3 is likely to fall, it will probably be predicated on Kennedy’s position that the federal government doesn’t have the power to regulate marriage, as opposed to an equal protection argument. I agree that it’s an equal protection problem, but achieving consensus in favor of invalidating Section 3 will probably require that Kennedy’s approach prevails in the opinion.
The problem there is that it puts Perry in a weak position, because Kennedy’s position in Windsor buttresses the proposition that he’ll apply the same reasoning in Perry – that SSM is a state issue that the Feds have no business being involved in.
That’ll also underpin the contention that Section 2 of DOMA (which releases states who do not have SSM from having to recognize SSM’s peformed in states which do recognize it) is constitutional.
This whole mess has turned out to possibly have been too early argued, IMO. Hoping for the best, but at this point I see them overturning the ban on federal recognition while leaning towards upholding state level bans on SSM.
@HarvardLaw92:
First, I’ve been really digging your analysis on issues. Thanks for contributing it.
I expect that the Justices recognize this and, as a whole, are going to try and keep the decision as tightly defined as possible for these very reasons. This reminds me a bit of accounts of how Justice Felix Frankfurter worked against the Court hearing civil rights cases until such time as the makeup of the court (and the country) would support the decisions that he believed were correct (i.e. that separate but equal was a fallacy).
@Matt Bernius:
I’ve gone back and forth over it in my head, and while I’ve learned never to expect anything from the court beyond confirmation of the fact that predicting how they’ll go with any precision is beyond my capability (and probably beyond the wisdom of Solomon to boot,) like any attorney I can’t avoid trying to do it anyway.
Roberts is, in the back of my mind, a potential wild card, but the rational part of me can’t get past the oral argument. The court all but made it clear that they would prefer not to have to deal with the issue at all. I think Roberts will move in favor of punting the issue back to the states. There is no doubt in anybody’s minds how Scalia, Alito and Thomas will vote.
That leaves Kennedy, and again, I have to premise my thinking on his performance at oral argument, in which he hammered away at (and demonstrated a decisive inclination not to be swayed away from) the federalism aspects of the case. It’s as if he’d decided the path of least resistance ahead of time as being the most prudent path, and that’s the one he’s going to go with. I suspect, but again can’t substantiate, that the liberal bloc of the court will go along with him rather than see DOMA upheld. That it will come at the expense of Perry will be a bitter pill that I suspect they’ll find a way to live with having to swallow.
Then again, I could be completely wrong and Kennedy veers off into territory that he never waded into at oral. More than any of the others, he had a tendency to do that, so who knows?
I remain hopeful, but I’m too much of a realist to expect a broad ruling on this issue. They’ll find a narrow way to extricate themselves from having to go down that road.
@Matt Bernius:
Thank you! Much appreciated.