The FMA cloture vote failed today, as expected. The issue's still ripe, however. Accordingly: Thanks to
Fool for his thoughtful response to
my post of Monday. To address some of his objections:
To characterize the issue as “‘merely’ trying to upend an institution…” is more than insulting. What it implies is that the purpose - and the only purpose – to seeking the right to marry is to “upend an institution”. This, of course, is ridiculous. While some may believe that SSM may indeed alter the institution of marriage as it has been known, it is wholly insincere – if not dishonest – to imply that the reason is to nefariously bring down the institution of marriage.
Indeed, no supporter of SSM has articulated a goal of upending “traditional” marriage. That is a fanciful ambition created by those who oppose SSM – not those who support it.
Homosexuals are “merely” simply seeking the right to marry a person of their own choosing. Those who oppose SSM are the one’s who have ascribed evil goals to those who seek marriage equality.
I do not believe that most supporters of SSM have nefarious motives; indeed, I acknowledge that most are people of good will who sincerely and honestly see nothing wrong with allowing two people who love each other, regardless of gender, to be married. However, the idea that SSM may "alter the institution of marriage as it has been known" is not one of subjective belief, but of objective reality. SSM
does change, even upend, the institution because "marriage," though varying in some particulars, has always been about joining men and women together. That's the definitional understanding. And it's always involved certain strictures; the right to marry has never included a conception that one may marry
anyone (or any ones) of one's choosing. Kay Hymowitz makes the point in the new
City Journal (forgive the longish excerpt):
The anthropologists are right about one thing: human beings have come up with almost as many ways of getting hitched as they have languages to tell mother-in-law jokes. Some cultures allow only monogamous marriage; some accept polygamy. In many cultures, the wife moves into her husband's family's home; in others, the husband moves into the wife's; in still others, they get a mortgage and move into their own two-bedroom ranch in Levittown. Though most cultures give husbands the primary responsibility for providing for the children, some make the wife's brother—the baby's uncle—responsible for providing the food and the bow-and-arrow lessons. Some cultures don't allow divorce; some allow divorce but not remarriage; some allow divorce if husbands fork over most of their life savings to the likes of Raoul Felder; and others let a guy say "I divorce you" three times before booting his wife out the door.
This protean diversity is central to today's marriage debate. If marriage is, as these examples suggest, an eminently malleable social construct, why shouldn't society shape it any way it likes, especially by letting gays marry each other?
But beneath all the diversity, marriage has always had a fundamental, universal core that makes gay marriage a non sequitur: it has always governed property and inheritance rights; it has always been the means of establishing paternity, legitimacy, and the rights and responsibilities of parenthood; and because these goals involve bearing and raising children, it has always involved (at least one) man and woman. What's more, among the "startling diversity" of variations that different cultures have elaborated on this fundamental core, our own culture has produced a specifically American ideal of marriage that is inseparable from our vision of free citizenship and is deeply embedded in our history, politics, economics, and culture. Advocates for gay marriage cite the historical evolution of that ideal—which we might call republican marriage—to bolster their case, arguing that gay unions are a natural extension of America's dedication to civil rights and to individual freedom. But a look at that history is enough to cast serious doubt on the advocates' case.
Now, many SSM advocates believe honestly that they would be strengthening marriage by buying into and participating in the ideal of lifelong monogamy. This is respectable. But this is still an incomplete understanding of what marriage involves as part of its very nature (like complementarity) and what its purposes are in society (like encouraging stability in families for purposes of raising the next generations), particularly with respect to children. And there is also the fact that many SSM advocates
do seek to undermine what marriage is, and see SSM as just one step in a natural "evolution" or shifting paradigm into ever-more-flexible and fluid family arrangements. Take
one half of one of the first gay couples to marry in Provincetown, Mass., in May, who likes marriage but not, you know, the expectations of monogamy that might imply: "[H]e says the concept of forever is 'overrated' and that he, as a bisexual, and Rogahn, who is gay, have chosen to enjoy an open marriage. 'I think it's possible to love more than one person and have more than one partner, not in the polygamist sense,' he said. 'In our case, it is, we have, an open marriage.'" Legal scholars, law professors at prominent universities, and prestigious institutes, like American University's Nancy Polikoff and the American Law Institute, are already looking
beyond gay couples when it comes to marriage: "What about the younger heterosexual couple who also want intertwined lives without the full economic entanglements of marriage?" it is mused, not rhetorically. "Or the widowed mother who is economically dependent on the son who is also her sole caregiver? Or the two friends who decide to raise a child together but who aren't, and don't want to be, married? Or the lesbian couple who want their child's biological father to be a recognized part of their family? When is the law going to catch up with them?" This is radical stuff, intentionally breaking down the ideas behind marriage and leaving them behind. Lost somewhere in the mix are children -- whose mothers, to take one example, proudly announce their rejection of the important idea (otherwise considered a huge part of the understandings of marriage) that children need their fathers in their lives: some are now selling kids' t-shirts saying, "
My daddy's name is Donor." I'll give the benefit of the doubt and say that some, or even most, of this may be well-intentioned. But there's no doubt it's part of a radical shift in our definition of marriage, one that does not admit of any easy limiting principle.
Moving on, Fool is right to express concern that there are still people, some in positions of power, who believe gays should be institutionalized. That's wrong. It is definitely a matter of concern. But my point in saying that the vast majority of people do not want to deny that gay people exist or deny actual civil rights, was to challenge Andrew Sullivan's apparent contention that those who support FMA and want to protect marriage are just crazy "fundamentalists" who would rather pretend gays don't exist. That's not the case. It is the case that many people who are otherwise benignly tolerant of what people do in the bedroom, who have no problem with their gay friends or co-workers, or who would be happy to support hospital visitation rights,
inter alia, may nevertheless oppose SSM - or may oppose SSM being imposed by judges instead of by popular determination.
Why did I say that marriage was being "hijacked by an elite group"? Because these ideas about marriage moving publically beyond gender, beyond (in some cases) two people, beyond (for some people) monogamy, beyond children, are not popular ideas. Congress voted overwhelmingly just eight years ago to define marriage as being between a man and a woman. Thirty-eight states have voted to do the same. People generally oppose the idea of SSM by about a 2 to 1 margin. But the elites who have a lot of influence and in some cases authority to say otherwise - like judges, law professors, journalists - think that this popular idea that marriage might have non-arbitrary and important reasons for being between a man and a woman is outdated, exclusionary, discriminatory, hateful, and even (and not unrelatedly) - unconstitutional. Taking the law inexorably in this direction, with careful legal reasoning, has the effect of changing what is acceptable in society simply by creating faits accomplis. Sure, the people could disagree with the ruling in Massachusetts - but two years after the fact. It's a lot harder to take away a status than it is to stop it from being given in the first place. Some people may see nothing wrong with that, but I think that it's wrong to go around the legislative process in such a way for what is a radical redefinition of a central institution of society, and for what is not a clear-cut matter of "civil rights" - because no "right" to marry someone of the same sex has ever existed.
I've said before that if the judges properly left SSM to the legislatures to decide, I'd accept it if the people ultimately chose to legalize SSM - for
this reason:
A large part of my issue with judicial activism is the idea that process matters. I don't want to lose on the merits of the SSM debate in the public square, but I would accept it so long as I felt I had had my fair say in our democratic system. The courts for the most part are designed to be beyond public accountability, however, and when they start making policy judgments the validity of our entire system is undermined. As Justice Scalia noted in Casey, the people shouldn't be lobbying courts for their preferred outcomes of cases (keep abortion legal! outlaw abortion!) because judges aren't supposed to take account of personal preferences (as expressed by the public or themselves) at all, but are only supposed to interpret the laws as written or gauge their constitutionality with narrow reference to what the Constitution actually covers. Lobbying and popular persuasive efforts should properly be directed towards legislatures - the policy-making bodies. We accept the results of such efforts because we have all agreed to accept the process by which such results are derived. But with the courts jumping in to make non-constitutional policy judgments, whole segments of the population are denied their fair chance at the process. The process - the rule of law, our agreed-upon method of self-governance - should be protected.
I do support FMA as a national solution, to stop judicial activism on the matter and on the merits (not to exclude gays, but to preserve marriage for our society - continuing also in other ways to strengthen marriage, like tougher divorce laws - but that
is a workably state-based effort). Fool asks, "Is addressing the matter state-by-state with the “ultimate goal” of securing nationwide recognition any more deceitful that than citing restraint of activist judges and the preservation of the sanctity of marriage with the “ultimate goal” of excluding gays from marriage nationwide?" The difference is that one tactic, that of Lambda Legal and the ACLU, circumvents the legislative process. Asking for a nationwide vote on FMA does precisely the opposite. My point is that, considering that a state-by-state solution is unworkable, we're heading towards a national solution one way or the other, and I think one answer would have more legitimacy than the other.