October 27, 2006
Mountain of blowback at breathtaking speed?
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 heHe then lists the arguments against same sex marriage, finds them all to be without any rational basis, which (he says) means that all arguments against same sex marriage are bigoted.
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.I couldn't agree more that the law has no legitimate basis for regulating the quest for love, but above all, marriage laws regulate marriage, not love. Bigamous couples may be in love, but they may not marry. Nor may minors, nor in some jurisdictions, persons too closely related to each other. They are free to love, and free to live together, but they cannot receive a piece of paper from the state that says they're married.
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:I think that's a far cry from laws which require that there be a legally qualified man and a legally qualified woman in order to obtain a license. There's no question that in Loving there was discrimination on the basis of race. But on what basis does requiring a man and a woman discriminate? Certainly not sexual preference, as there is no bar to a gay man marrying a gay woman. So, the discrimination must be based on sex. If a woman cannot marry a woman because she is a woman, or a man cannot marry a man because he is a man, is that sex based discrimination?"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."
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.I think a lot of people are still interested in -- even worried about -- things like that. I might not share their worries and concerns (and I'm hardly a purist) but I don't think such worries constitute bigotry.
UPDATE (10/29/06): Tom Maguire has more on Loving (the case, that is!), and explains that the Supreme Court "followed, rather than led."
posted by Eric on 10.27.06 at 12:48 PM
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