Marriage And The Incoherent Opposition

Like many a gay person, I was heartened by Judge Vaughn Walker's decision in Perry V. Schwarzeneggar, which, for now, overturns Proposition 8 in California. And, though I don't know about others, I figured it was kind of in the cards all along. Whether one wanted to rely on the powerhouse combination of Ted Olsen and David Boies as attorneys for the plaintiffs, or the spectacular way the case unfolded, it seemed clear early on that success was in the cards, and that reality never really changed.

The future results may not be as clear - I'll finish this piece with my own guess about the Supreme Court - and, as always, gay people aren't wrong to worry about a brief win only to suffer greater losses down the road, but I think the events of the summer on the Prop 8 case underscored a reality that makes "gay" marriage an inevitiability whether now or later: the opposition to it is fractured, and especially incoherent.

The deep, dark secret of opposition to "gay" marriage is that it is not, really, a unified effort, which has everything to do with evolving awareness and understanding of sex and sexuality in our culture. Marriage for two people of the same gender was simply impossible to consider less than 30 years ago, mostly because of our invisibility. Prevailing notions that gays were "sick" or "curable" hadn't been sufficiently challenged, and the growing Gay Pride movement was more oncerned with basics like, well, stopping violence and bigotry, than more positive results like honoring our relationships equally and fairly.

This week's decision, and the case that was presented, underscore how much has changed, and especially how little juice is left in making gays into social pariahs. What is left on the "gay opposition" side is a loose amalgamation of the most strident gay hating bigots, and a less well defined group of "moralists" who offer vague, nospecific notions of problems with same sex marriage while trying to actively disavow connections to the more strident homophobes.

And the thing is... the haters probably have the better case: if gayness itself is an abomination, if gay people are sick and degenrate and all the rest... it's easier to make a case that people who are so bad and wrong don't deserve fair treatment. Take that element away, and not much is left. All of which goes a long way to explain why the case for Prop 8 failed: the defense's case evaporated as promised "expert" testimony was pulled, and what few "experts" that did testify were undermined by their own poor logic and lack of conclusive evidence.

The "moralist" case after all rests, mainly, on tradition: it has always ben thus, and thus should always be this way. Over and over, when pressed to explain what "damage" same sex couples could do to even the idea of marriage (since, it was pretty easily established, one couple's marriage has no practical effect on another's), groups like the National Organization for Marriage (and its spectacularly muddled chair, Maggie Gallagher) offer little more than vague notions of "traditional" ideas of marriage - whether it's marriage is for procreation (also pretty easily torn down), or some generalizations about "social norms" that don't hold up under social science research (not that I love social sciences... but you bring it up, you live with the result).

All that running away from "gays are sick and terrible and bad as people" that the hair splitters go to (which is a vivid illustration of the "love the sinner hate the sin" ethic of Catholics like Gallagher) is about pretending that what's really going on here isn't that simple: gays shouldn't marry because, well, they're gay. That's about all the opposition has, and has always had, and in the long run, that notion fails because people either find it a) hateful or b) inconsequential to their own lives, or both. But it's the fractured nature of opposition to same sex marriage that's doing the opposition in. Concede that gay people are, well, people and deserving of decency and even acceptance as gay... and you've taken most of what would deny gay people the right to marry off the table.

Judge Walker's decision lays out, calmly and coherently - if not necessarily persuasively - the reasons that simple prejudice cannot be reason enough for a majority to put the rights of others to a popular vote. That opinion, along wit the presence of Ted Olsen, a persuasive, even commanding, presence among legal conservatives, says to me that hopes for a close Supreme Court decision by anti-marriage types are optimistic. I think it's reasonable to suspect that Justice Kennedy, plus the Court's four Democratic appointed justices, will agree with Walker's reasoning... but beyond that, I suspect that one of the more conservative justices could even be persuaded to make this into a 6-3 decision. Optimistic? You bet. A dreamworld of bright fluffy clouds, even. But unless the incoherent, fractured opposition to same sex marriage can pull together a better argument than "tradition" and "because we said so"... they don't have a lot of a case. And while "tradition" can trump good sense... that's not going to be enough for the opponents of same sex marriage. Not for very long.

Comments

[Leigh]

Nice post.

Love how you ditch the social sciences though and then link to an argument (Volokh) you like that highlights the role of confirmation bias, no doubt a phenomenon tested and confirmed by social science research.

[Leigh]

Ah! And from Lithwick's piece:

"...what really won out today was science, methodology, and hard work." Expert witnesses for the plaintiff included "including historians, economists, psychologists, and a political scientist."

But yeah, they were probably totally superfluous to the case... ;)

[jinb]

I guess I'll be the pessimist in the group and say I can see the SC ignoring science and arguing in the majority opinion something about "society's interest in the raising of children, blah blah blah" even though there would, of course, be no studies available to back up such a claim.