GAY MARRIAGE REDUX

The Signifying Nothing Boys are all over the gay marriage issue. Chris Lawrence writes,

I think we could see a draconian form of the Defense of Marriage Act sooner rather than later, because the Democrats in Washington are far too spineless to oppose it, and I reckon you could round up 38 state legislatures–bodies full of people looking for ways to avoid giving voters a good reason to vote them out–to ratify the thing in a big hurry. The bottom line is that conservatives aren’t going to let Roe happen twice. . . .

Interesting. And not implausible. I haven’t done the math or looked at the state-by-state polling on this issue closely enough to know for sure, but there are certainly something pretty close to 37 states with majorities against gay marriage. Opposed enough to ratify a constitutional amendment? That I’m not sure of. We haven’t passed a School Prayer Amendment yet, and prayer is more popular than gay marriage is unpopular. He also quotes Matthew Stinson,

For what it’s worth, I would be more inclined to support gay marriage nationally (rather than locally) if I believed gays desired marriage for more than just its economic and legal benefits. Yes, one’s sense of dignity is benefited by having the right to marry, but what’s lost on many gay marriage advocates is that marriage is about fidelity as much as it is sharing resources. Andrew Sullivan, to his credit, has argued that the option of marriage will have a civilizing effect on gay men. But gay men aren’t children, and they can choose fidelity now if they want.

Says Chris,

Nor do I really buy the “civilizing effects” argument articulated by Sullivan; I suspect the number of straight men who’ve actually said, “I’d cheat on my wife with Lulu from the temp pool, but I can’t since I’m married” is within ε of zero. They might say “I’d cheat…, but I can’t since I’m in a committed monogomous relationship,” but you can have one of those without being married. It’s a function of character, not institutions.

My guess is that it’s both. Clearly, institutions help reinforce the inclination to act within the bounds of propriety. Surely, one would be more likely to cheat on a girlfriend than a woman to whom one has made a lifetime commitment.

Brock Sides weighs in with an economic analysis of the situation, arguing that because marriage creates a “bright line rule” for health benefits, probate, and other major issues, the libertarian desire for civil unions or other non-state solutions will fail. Further, he believes “homophobic bigots” will strive to pass laws limiting the benefits of homosexual couples, so we’d be right back to where we’ve started from.

I suspect that Brock is right as to the ultimate workability of a non-state solution. But the culture simply isn’t there yet on a national basis. Chris is right: If it looks like the courts are going to pull a Roe on this one, there will be a huge cultural backlash–perhaps even one strong enough to pass a constitutional amendment. The vast majority of Americans still believe, deeply, that homosexual conduct is repugnant. They’re not going to voluntarily equate that conduct with marriage, an institution they hold (in theory, if not in practice) as sacred. Incremental progress is all gay couples can realistically hope for. Aside from a Roe-type move from the courts, I predict this will be a moot issue in 20 years because society will be ready for gay marriage by then.

Update (2324): Brett Marston thinks most people are tolerant and this will all blow over.

I predict that those who want to advance an exclusionary approach here will probably stumble over the fact that Americans are basically tolerant, sensible, forward-looking people who do not need to define themselves primarily by whom they exclude from the enjoyment of official recognition of the seriousness of their love of each other. The anxieties expressed by some folks will look like private obsessions rather than grounds for the use of the legal power of the state.

Of course, one could argue that official recognition of the seriousness of love is a rather dubious use of the legal power of the state.

FILED UNDER: Law and the Courts
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. I think the numbers don’t quite break the way you’d think; it’s not what states have a majority opposed to gay marriage, but what states have a majority of those who actually care about the issue who are opposed. The way I figure it nationwide, maybe 15-20% is strongly for, 25-30% is strongly against, and the rest don’t much care either way but will give you an opinion because they want to get back to dinner, and social desirability effects will get you a nice chunk of those people saying they’re “for” when they’re not really. (Funnily enough, neither the GSS nor the NES ask a question on gay marriage. Guess I’ll have to dig some more for some data to play with…)

    Also, it’s 38 states: you need 3/4, and the rounding is up.

  2. One other thing: channeling my vague comprehension of white fundamentalist Protestantism, I’d suspect that legalizing gay marriage is much closer to bringing back Gommorah than stopping kids from participating in institutionally-backed prayers in school (a prohibition that is notoriously leaky to begin with around these here parts). Plus opposition to gay marriage transcends the WEC (white evangelical Christian) GOP base in a way that school prayer doesn’t.

    Plus this is the sort of thing that might lead to the states calling a constitutional convention, something I dare say that Congress would rather not see…

  3. I just don’t see it happening. For one thing, “conservatives” would have to unite in favor of it, and for many the idea of nationalizing the issue at all is going to be an anathema. It just seems to run counter to states’ rights.

  4. James Joyner says:

    LMA,

    But states’ rights don’t exist here: If gay marriage is recognized in Massachussets, it’ll be recongized in Mississippi because of Full Faith and Credit. So, Mississippians will go to Massachussets to get married and come back home.

  5. Paul says:

    We haven’t passed a School Prayer Amendment yet, and prayer is more popular than gay marriage is unpopular.

    But it is far easier to motivate people AGAINST something than for it.

    When a true radical has a chance of being elected, turnout soars. (see David Duke)

  6. Brett says:

    Jim:

    You write: one could argue that official recognition of the seriousness of love is a rather dubious use of the legal power of the state.

    True enough, but that really is the cultural meaning of marriage, no? Not to tread on fuzzy or inconclusive ground or anything. . .

    My basic sense is that once fence-sitting straight people realize that the FMA folks want to exclude friends, relatives, co-workers, fellow church members, neighbors, etc. from marriage or anything like it, the whole issue will become one of whether or not it is fair to those people whom they already know and love. Or at least I hope so.

  7. James Joyner says:

    Brett,

    I think “we’re in love” is the current meaning of marriage, for all intents and purposes. But if that’s all it ever was, we’d probably not have come up with the institution to begin with. It originally had religious significance, plus the whole “raising kids” thing. Gay marriage obviously doesn’t fit that mold–although neither does a sizable chunk of hetero marriages.

  8. Chosesinconnues says:

    James Joyner writes:

    “I think “we’re in love” is the current meaning of marriage, for all intents and purposes. But if that’s all it ever was, we’d probably not have come up with the institution to begin with. It originally had religious significance, plus the whole “raising kids” thing. Gay marriage obviously doesn’t fit that mold–although neither does a sizable chunk of hetero marriages.”

    *************************************************

    If you mean marriage in a Judaeo-Christian respect has ‘religious significance’, sure. However, the marriage compact goes back far earlier to when it was not so significantly tied to religion or the “raising of children”.

    Just what’s the big deal?? So what. Let gay folks get married. Everyone’s always saying gay people are promiscuous. Now when they want to legitimize their relaitonships for legal and emotional reasons… everyone runs around putting the snafu on that too. Boils down to homophobia. Nothing more nothing less. Christ there’s no satisfying some people.

    Thank God I’m from Massachusetts!

  9. Dave says:

    So if I don’t jump up and down with joy at the idea, I’m afraid of gays getting married?

    (Just pointing out that sometimes ‘-phobia’ ain’t exactly accurate, and should be scare-quoted for most of us who aren’t 100% ‘for’.)

GAY MARRIAGE REDUX

Alan Simpson, a retired Senator from Wyoming, argues against a gay marriage amendment on federalist grounds:

In our system of government, laws affecting family life are under the jurisdiction of the states, not the federal government. This is as it should be. After all, Republicans have always believed that government actions that affect someone’s personal life, property and liberty — including, if not especially, marriage — should be made at the level of government closest to the people. Indeed, states already actively regulate marriage. For example, 37 states have passed their own version of the Defense of Marriage Act.

I do not argue in any way that we should now sanction gay marriage. Reasonable people can have disagreements about it. That people of goodwill would disagree was something our Founders fully understood when they created our federal system. They saw that contentious social issues would best be handled in the legislatures of the states, where debates could be held closest to home. That’s why we should let the states decide how best to define and recognize any legally sanctioned unions — marriage or otherwise.

As someone who is basically a conservative, I see not an argument about banning marriage or “defending” families but rather a power grab. Conservatives argue vehemently about federal usurpation of other issues best left to the states, such as abortion or gun control. Why would they elevate this one to the federal level?

While I agree this is not something the federal government needs to get involved in, the states’ rights argument falls flat here because of the Full Faith and Credit clause:

Article IV, Section 1. Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

Interpretations of this section are complicated and somewhat outside my expertise. But it’s quite conceivable that a court now or in the future would rule that a marriage between gay partners in any state would have to be recognized by all others. So, once any state goes that route, the other states in effect lose their ability to govern on this issue.

The so-called Defense of Marriage Act may or may not be Constitutional, depending on how one reads the second sentence in Section 1. But, if it’s not, it would be rather late to pass an amendment once the floodgates opened.

FILED UNDER: US Politics
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Matthew says:

    I don’t understand why gay marriage advocates who are satisfied with a democratic, state-by-state approach, like Andrew Sullivan and apparently Alan Simpson (is it in the initials? quick, somebody get ahold of Schwarzenegger), don’t just come out in support of a federal amendment which overturns the DMA but also exempts conservative states from FF&C clause intrusions. Let liberal states have their gay wedding cake — but don’t force conservative states to eat it too.

    (Eeek, horrible metaphor alert.)

  2. James Joyner says:

    If I understand it correctly, the amendment currently proposed would do precisely that. The definition is for the purpose of federal recognition and benefits. I’m pretty sure individual states could still permit gay marriage and/or civil unions.

  3. Kevin Drum says:

    I don’t think the federalism argument falls flat at all. After all, the FF&C clause applies to lots of other things too, and that doesn’t make federalism any less valid in those cases.

    My biggest problem with the whole concept is, indeed, federal. I don’t really care much if you call it “marriage,” but gay partners *should* have similar legal rights: inheritance, Social Security, hospital visiting rights, etc. I think that’s really the key point.

GAY MARRIAGE, REDUX

Newsweek has a cover story entitled, “The War Over Gay Marriage” which reflects on the potential impact of the Supreme Court’s far-reaching opinion in the Texas sodomy case.

Justice Kennedy’s ruling in the Lawrence case “may be one of the two most important opinions of the last 100 years,” says David Garrow, legal scholar at Emory University and Pulitzer Prize-winning biographer of Martin Luther King Jr. “It’s the most libertarian majority opinion ever issued by the Supreme Court. It’s arguably bigger than Roe v. Wade,” said Garrow, referring to the 1973 Supreme Court decision giving women a right to abortion. At least in symbolic terms, Garrow put the decision on a par with Brown v. Board of Education, the landmark 1954 ruling declaring that separate was not equal in the nation’s public schools.

The difference, of course, being that Brown was at least consistent with the plain meaning of the 14th Amendment.

While noting that Justice Scalia and many Christian conservatives are furious about the ruling, the authors think their fears overstated:

While gays can now claim some constitutional protection—their new right to privacy under the Lawrence decision—the federal government and the states can override those rights if they have a good enough reason, a “legitimate state interest.”

Granting that this Court has shown no tendency towards consistency, it would be hard to come up with a rational basis for denying homosexual marriage that was any more compelling than denying homosexual sodomy.

FILED UNDER: Law and the Courts
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Steven says:

    I am still in the process of digesting this case, but it would seem that since the predicate of the recent ruling is privacy, then there is an argument that marriage is a public act, rather than a private one. I am not saying that the Court would necessarily see it that way, I think it is possible. Had they gone with the more logical equal protection argument, then I could see no legal way to bar gay marriage.

    Having said all of that, I would be surprised if the current Court would block gay marriage.

  2. James Joyner says:

    Yep–especially in light of Friday’s ruling on the homosexual rape case, which seemingly relied on the equal protection argument.

  3. Steven says:

    I really find the Equal Protection argument compelling, but am at a loss for the Due Process argument Kennedy made. Further, it would seem that an Equal Protection argument wouldn’t require the invocation of the privacy argument.

  4. James Joyner says:

    Yep all around.

    I tend to construe the Constitution in accordance with the intentions of the Framers/Amenders in mind and it seems obvious to me that they didn’t intend to legally protect homosexuality when the 14th Amendment was added. Still, it is arguably there is terms of the plain meaning of the Amendment as written.

  5. Xrlq says:

    I’d be very surprised if the current court, or any other, were to “block” gay marriage; even Scalia wouldn’t do that. Whether they will mandate gay marriage, that’s a tougher question. Judging by the weird rulings of their final week this term, I think the answer is definitely “maybe.”

  6. James Joyner says:

    Xrlq: I think you’re right. Clearly, a state would be within its rights to allow gay marriages. Now, whether the Full Faith and Credit Clause would then require other states to recognize these unions is another matter. And, while I don’t know if the Court would mandate gay marriage, they might preclude discrimination based on gender in marriage–which would amount to the same thing, except that states could just abolish marriage altogether.