Declaring war on silly?

In today's Inquirer, Rick Santorum characterizes the California Supreme Court's legalization of same sex marriage as a "wake up call":

The latest distressing news came last week in California. The state Supreme Court there ruled, 4-3, that same-sex couples can marry.

In doing so, four judges rejected a statute that passed in a referendum with 61 percent of the vote that defined marriage as a union of one man and one woman.

It's merely the latest in a string of court decisions that have overturned the overwhelming will of the people.

OK, if you're not inclined to hurl epithets, you might ask: Don't we have more to worry about than some court redefining marriage? After all, gas prices are soaring, health-care costs are rising, and our nation is at war. Why should we care what a few activist judges in California say?

I didn't like the decision either, and I suggested that ordinary voters might be more alarmed by a radical new bipartisan plan (known as "cap and trade") which would transform the economy and double gasoline prices, except that's being downplayed, while gay marriage (which affects far fewer people) gets the lion's share of the ink.

I can't help wonder how many of the conservatives who are so upset by the Supreme Court's legislating from the bench would feel the same way had this been a conservative court with an opposite result. Suppose Arnold Schwarzenegger had signed the same sex marriage bill the legislature passed instead of vetoing it, and suppose the court had intervened and thrown it out. Wouldn't that also be legislating from the bench? Isn't it legislating from the bench if a court throws out gun laws as unconstitutional? The reason I'm posing these questions is not to be argumentative, but simply to remind conservatives that not only are the courts a two-edged sword, but that people who are happy with court decisions throwing out or reinterpreting laws tend not to complain about legislating from the bench.

If what I hear on talk radio is any indication, Santorum is not alone in characterizing opposition to gay marriage as the "overwhelming will of the people." That was the case in California when voters approved Proposition 22 (which defined marriage as between a man and a woman) by a margin of 61.4% to 38.6%. (Map here.)

Considering that this matter will again be before the voters in the fall, this time in the form of a constitutional amendment, it will be interesting to see how people vote.

What is the overwhelming will of the people on a constitutional amendment banning gay marriage? If the most recent Gallup polls are any indication, there is no overwhelming majority either way.

The Massachusetts gay marriage law was met by a call for a constitutional amendment in that state to define marriage as between a man and woman -- something President Bush has advocated at the national level as well. There is already an initiative underway in California to put such an amendment to the state constitution on the ballot this fall.

The effort to constitutionally limit marriage to heterosexual couples failed in the Massachusetts legislature last June, but on a national basis, Gallup finds Americans evenly divided. About half (49%) favor a constitutional amendment to prevent gay marriage, while 48% are opposed.

That's national.

By region, though, opposition to a gay marriage ban now appears to be in a clear minority position in the West:


I don't know what accounts for the apparent shift in California demographics since 2000, but if the polls are correct, this is a loser for the GOP in California -- and not a clear winner of an issue for either side in a national election. In some states, it might help the Republicans, while in others it might hurt them. It's unpredictable.

As is the case with most issues, the people who feel strongly yell the loudest, and there has been a lot of yelling about gay marriage since 2000. Naturally, as a longtime advocate of compromise in the Culture War, I find myself wondering just how that yelling influences ordinary people. By ordinary, I mean the non-activists who don't yell, 98% of whom will never marry a person of the same sex, and many of whom don't know anyone who will. Do they get tired of these debates? Do they worry more about things like crime, taxes, or the price of gasoline? Do they get tired of being yelled at?

Which side is yelling at them more? The reason I think this is relevant involves the principle of backlash. Have gay activists and their supporters on the left learned to shut up, and let the other side do the yelling? Who is more likely to confront an ordinary voter trying to wheel a shopping cart into a supermarket? An angry gay marriage activist, or an angry anti-gay marriage activist? Who is going to be perceived as more shrill? It should not be forgotten that Anita Bryant did more to promote acceptance of gays by yelling about them than the tiny gay movement at the time ever could have done. She put the modern gay movement on the map, and I remember it vividly. Ordinary people -- the kind of people who had avoided the subject -- now found themselves now talking about gays at the dinner table, and few agreed with Bryant. People react to scolds that way.

Is it possible that the California Supreme Court -- by seeming to scold the voters -- may have helped the constitutional amendment's chances in the fall? Normally I'd say yes, but in light of the poll numbers, I think the answer will depend on who yells the loudest.

If the level of agitation against gay marriage becomes too loud and too angry, people might get so sick of hearing about an issue peripheral to them that they might decide to vote the issue away. Similarly, if gay marriage advocates are seen as yelling at voters, they might decide to vote the issue away in another manner.

This is not to say that voting makes issues go away. Voting will not make war go away, for example, despite the best efforts of the anti-war left to convince people that it will. But to the extent that the war over same sex marriage is a war, it's limited to the "combatants" who feel strongly about it, and its application will be limited to gay couples. Whether the voters can be convinced that they are "invaders" is doubtful.

Considering the onerous obligations that attach to marriage, they might even see them as silly people who ought to be careful what they ask for. ("You want your silly right to marry? Here! And good luck!") To the extent voters see it that way, then the opponents (with the battle cry of "DON'T LET THESE PEOPLE MARRY!") might look even sillier. Their demand that voters amend the Constitution to stop silly people from marrying each other might very well be seen as more silly than the silly marriages themselves.

Louder and sillier is not a winning strategy.

posted by Eric on 05.22.08 at 09:43 AM


I guess I am one who is opposed to gay marriage, but I seldom think about the issue, and don't think the republic would crumble if it passed. Your point about activism working in both directions is well taken, and I doubt you would find a majority of people left or right who are consistent on judicial activism.

Like abortion, there is a great deal about the gay marriage issue that is a cultural marker more than a consistent principle. There are real legal and philosophical questions underlying each, but these are often submerged in a "which side are you on" mentality. Whenever one side accuses the other of hypocrisy - though the charge is often valid - a cultural marker is often not far underfoot. Hence Democratic support for intervention in the Balkans, less so in the ME.

Assistant Village Idiot   ·  May 22, 2008 10:12 AM

I'm not as incensed as a lot of people, even though I oppose extending marriage to same sex couples. (If we keep fighting of who can, we will never get back to should the gummint be in that business to start with.)

The court has essentially decided that the referendum conflicts with the constitution. I think that is a bad decision, but it is the kind of decision that they are supposed to make. The proper solution to that ruling is to pass an amendment to the constitution, which now looks likely. It will all come out in the wash.

Phelps   ·  May 22, 2008 11:17 AM

Remember, 6 of the 7 judges on the California Supreme Court were appointed by Republican governors, and mostly conservative Republican governors. These are politically conservative judges.

chocolatier   ·  May 22, 2008 12:03 PM

I think there was a chilling effect on the opponents of the gay rights agenda following the decision by the Florida Citrus Commission to end their association with Anita Bryant.

Growing up with and among artists I was aware at an early age of there being two types of bachelor. Most people got married. Some preferred the company of women without the concommitant pledge of troth. Others preferred keeping company with likeminded thinkers.

The problem of likeminded thinkers was highlighted by attempts to change the model of childrearing. The debate over whether the choice to keep the company of women or choose the company of likeminded thinkers is, I think, still being debated. That is, the question is how much of ones decision to be likeminded in ones thinking is determined by a condition of birth or, conditions of ones upbringing. Are you born likeminded? Or, do you choose--through the experiences of your childhood development--likemindedness?

We aren't surprised to find out that porn starlets or street workers experienced the unusual advances of adults at an early age. That is, what may be described as sexual perversion follows molestation of a type earlier in life.

So, to what degree would it follow that the choice to be likeminded would depend upon exposure to likemindedness at an early age? And, do we have a responsibility to limit or remove the likelyhood of exposure to likemindedness from children in the same way we work to limit or remove molestation of young girls?

I believe that the questions raised by Ms. Bryant's activism were those questions. It is in this regard that I have scarely any positive regard for the environment that one noted, likeminded thinker--that would be Rosie O'Donnell--is rearing "her child". But this is a specific complaint about a specific child. Do we make laws on the basis of one specific act or child?

Sorry for the long comment. But it seems to me that after the Florida Citrus Commission walked away from Ms. Bryant, criticism of likeminded childrearing couples has been taboo. It's almost like we can worry about some children, but not all children.

Or do I just not "get it"?

OregonGuy   ·  May 22, 2008 1:43 PM

Overturning legislation is part of the legitimate function of the judiciary. Whether or not any particular case is legitimate depends.

Personally, I favor gay marriage under the "none of the government's damn business" clause of the constitution, and also under the establishment clause of the first amendment (because, let's face facts, opposition to gay marriage is motivated purely by religious feeling, every other reason I've ever heard is nonsensical and usually dishonest excuse making).

That said, I don't get too worked up about it. Recognition of gay marriage is inevitable and if you look at an age-based rather than geography-based graph, you'd see why. All we need to do is wait and most of those who oppose gay marriage will simply die.

tim maguire   ·  May 22, 2008 1:59 PM

What I don't like about the decision is that there is a "fundamental right to marry". Really? That's the stupidest thing I've heard lately... that and poor children can never be successful ( but that's another story ).

I don't really care one way or another whether any particular state ( mine or not ) issues "marriage licenses" to same-gender groups. Whatever. I don't care if they issue them for polygamists or siblings either. It's no skin off my nose. If that's what people want to do in the privacy of their own home, let 'em.

Just don't tell me it's some kind of "fundamental right". Cuz then I call shenanigans.

darelf   ·  May 22, 2008 3:33 PM

"Same sex" marriage abstracts the concept of gender from the definition of marriage. It's the latest of a long series of steps of removing key parts of the definition:

1. Birth control took care of child-rearing
2. Abortion-on-demand removed a man's "reproductive rights."
3. No-fault divorce removed the concept of permanence, that is, a lifelong commitment.
4. Other divorce laws damaged the contract, particularly for fathers, who take a huge risk in getting married.
5. The sexual revolution took care of the concept of sexual exclusivity -- 60 years ago, studies show that something like 80% of women either only slept with their husband-to-be before marriage or waited to lose their virginity to their husband after marriage.
6. And now, with the removal of gender, marriage itself is now a temporary contract based largely on the commitment of both parties to continue, with no necessary connection to child-rearing, in which one partner may or may not have reproductive rights.

Next up, abstracting number (polygamy and polyamory), relations and age from the definition of marriage. Monogamy and adultery, already weakened concepts, will also be further weakened.

The social impact? Well, it continues the "atomization" of our society, makes us less likely to form strong families, which leaves us more vulnerable, to paraphrase Elizabeth Fox Genovese, to domination by both government and corporatist interests.

I don't blame homosexuals for seeking what was, after all, the next logical step after the definition of marriage had already changed dramatically so it was unrecognizable. I was merely in favor of taking another look at the marriage changes we've already undergone and possibly revamp it in a more traditional way.

Once "same sex" marriage is law, however, it's unlikely to be rolled back. I agree that as traditional-marriage proponents die off and are replaced by those who support same-sex marriage, though, society will find it's thrown the baby out with the bathwater.

IB Bill   ·  May 22, 2008 3:42 PM

I'd that the consequence of weakened family ties will require government to grow to fill the gap: As a wise man once said, when you ignore the big laws, you get the small laws.

And the "enlightened" generation that pats itself on the back and follows us will wonder why their freedoms are even more tied down in a massive net of tiny freedom-killing rules. And they'll have no idea how it happened.

Many of the laws we have, from the massive welfare state to vastly increased crime to failing schools to increased regulations on businesses, have come about because sexual irresponsibility creates broken families which in turn creates chaos. And something powerful must step in. Hence, the domination by corporate and government interests.

One by one, we can be picked off. Together, in strong families and strong neighborhoods and strong communities, it's far more difficult.

IB Bill   ·  May 22, 2008 3:51 PM

Hey Darelf, we don't have the fundamental right to enter into contracts willingly? Wow, so I take it you will be socializing the bedroom then?

Ookla   ·  May 26, 2008 10:07 PM

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