Via Glenn Reynolds, Mickey Kaus argues that "the breathtaking speed with which this sort of radical cultural change [same sex marriage] has gone from being unmentioned to being a litmus test for all rational people is one of the things that worries ordinary voters and turns them into cultural conservatives" and he objects to the way the issue is being framed ("as 'law' and 'logic' against prejudice").

For the record, let me say that I don't like turning ordinary voters into cultural conservatives, OK? (Just thought I should make that clear.)

You'd almost think there was a deliberate effort to prevent a public debate on same sex marriage. Seriously, it's one thing to do an end-run around the legislature by means of the courts, but when such efforts are accompanied by creating a climate in which people are afraid to even debate the issue, ordinary American voters are likely to feel rushed, even intimidated.

Recently I made what I thought was a very uncontroversial statement (that I didn't it didn't think it was logical to equate opposition to same sex marriage with bigotry). For that I was criticized, then after I explained I found myself scolded by a commenter who demanded detailed answers to his essay length comment asserting quite vociferously that opposition to same sex marriage is bigotry:

someone is a bigot if he

(i) Opposes state recognition of relationships of same-sex couples (so-called "gay marriage") on the same basis that he favors state recognition of relationships of opposite-sex couples (so-called "marriage") without having at least a rational basis for the opposition. Those who are familiar with the US constitution's 14th amendment "equal protection" jurisprudence and jurisprudence under some states' "equality" provisions will recognize the "rational basis" as the minimum standard that will allow for a discriminatory practice. I have posed the question asking for a "rational basis" on more than a few blogs and web sites over the past ten or so years, and have never received responses that are anything close to a "rational basis."

Naturally, this caused me to wonder whether things have reached the point where it is bigotry to disagree over the definition of bigotry.

On the other hand, might there be political consequences to calling people bigots? Obviously, there are no political consequences to a debate in a blog post, but what about that 70% of the voters (plus the leadership of the Democratic Party) who oppose a major change the marriage laws? How is it that all of a sudden they've become "bigots."

Can anyone tell me how calling them bigots is going to change the way they vote? This is a democracy, and no one should be surprised to see evidence at the polls that people do not like being rushed, intimidated, pushed around. Mickey Kaus opines that even liberal voters, people otherwise willing to engage in social experiments like gay marriage, might very well balk. Looking at the overall situation as it has unfolded in the past few years, I think there is clear evidence of a condescending attempt to herd ordinary people, not only by telling them what to think, but by telling them how to think, and scolding them if they are wrong.

I don't know what Karl Rove has been doing lately. But if he were still sitting at the controls of his blowback leverage machine, he'd probably be delighted with the call-em-all-bigots meme.

But putting Rove nostalgia aside, I'm still curious about the apparent hurry to curtail serious debate on same sex marriage by such tactics. Assuming gay couples want to join the ranks of middle American respectability so they can proudly move in as the new married couple next door, isn't it a good idea to be polite about it?

(I'm assuming, of course, that marriage is a serious and mature enough issue to warrant a serious and mature debate. Maybe I'm making the wrong assumptions...)

UPDATE: University of Minnesota law professor Jim Chen (via Glenn Reynolds) thinks same sex marriage is analogous to interracial marriage, and maintains that Loving v. Virginia is controlling on the issue:

Among life's challenges, none is more difficult to undertake, and none is more rewarding when achieved, than the mission of finding one person to love above all others, and persuading that person to love you in return. The law has no legitimate basis for regulating this quest on the basis of the race or sex of one's beloved.

The most obvious analogy supporting legal recognition is Loving v. Virginia, 388 U.S. 1 (1967). It's such an obvious analogy that it is futile to cite any of the hundreds, thousands of sources that make the connection.

In Loving, the state of Virginia made it a crime for interracial couples to marry, and adjuged cohabitation by such couples to be evidence of their crime:

The two statutes under which appellants were convicted and sentenced are part of a comprehensive statutory scheme aimed at prohibiting and punishing interracial marriages. The Lovings were convicted of violating 20-58 of the Virginia Code:

"Leaving State to evade law. Ÿ If any white person and colored person shall go out of this State, for the purpose of being married, and with the intention of returning, and be married out of it, and afterwards return to and reside in it, cohabiting as man and wife, they shall be punished as provided in 20-59, and the marriage shall be governed by the same law as if it had been solemnized in this State. The fact of their cohabitation here as man and wife shall be evidence of their marriage."

Section 20-59, which defines the penalty for miscegenation, provides:

"Punishment for marriage. Ÿ If any white person intermarry with a colored person, or any colored person intermarry with a white person, he shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than one nor more than five years."

Yes.

If marriage is defined as requiring a partner of the opposite sex, it does discriminate on the basis of sex, and many people believe that such discrimination goes to the very basis of marriage.

So more than anything, it's really a definitional issue. I don't think most reasonable Americans would deny same sex couples the right to love each other, cohabit, or enjoy hospital visitation, inheritance, or the rest of that bundle of "rights" typically associated with marriage. I think the resistance to same sex marriage is based not so much upon whether marriage discriminates on the basis of sex (because it does, definitionally) but whether eliminating that form of discrimination would obliterate marriage.

In stressing the importance of marriage, the Loving court called it "one of the 'basic civil rights of man,' fundamental to our very existence and survival" and cited Maynard v. Hill, which is silent about sex, but which is laced with rhetoric suprisingly similar to what we read today:

Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the legislature. That body prescribes the age at which parties may contract to marry, the procedure or form essential to constitute marriage, the duties and obligations it creates, its effects upon the property rights of both, present and prospective, and the acts which may constitute grounds for its dissolution.

[...]

....Other contracts may be modified, restricted, or enlarged, or entirely released upon the consent of the parties. Not so with marriage. The relation once formed, the law steps in and holds the parties to various obligations and liabilities. It is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress.

UPDATE (10/29/06): Tom Maguire has more on Loving (the case, that is!), and explains that the Supreme Court "followed, rather than led."