Same-Sex Marriage in the Courts (of Public Opinion, and Otherwise)

Yesterday, the British House of Commons voted 400 to 175 in support of a bill which will legalize same-sex marriages in Great Britain. I'm happy--for the outcome, yes (which I've changed my mind about), but more importantly for the way the outcome came about. Years of protest and agitation, days and weeks and months of discussion, hours of parliamentary debate, and then, finally, a vote. That's the better way.

I'm put in mind of this belief of mine as my church has once again involved itself in the continuing litigation over same-sex marriage in the United States. (I'm among the many Mormons who kind of hoped that some recent developments indicated that our church was willing to let the legacy of the Proposition 8 fight of 2008 fade away, but apparently we're not quite there yet.) This litigation--both sides of it--annoys me. Granted, the history of votes regarding same-sex marriage in the U.S.--whether in the form of popular referendums or legislative action--has basically been a story of many, many losses over the past decade and a half, followed by, over the past couple of years, a rising number of wins, so presumably I ought be happy that with courts making decisions about rights and taking such out of the hands of fickle voters. But the opposite is the case; the uneven record of voting on this issue isn't particularly troubling to me at all--given that I've been through a long patch of unevenness myself, there isn't anything perplexing about realizing that so many others are working their way through a similar reconsideration. No, what I do find frustrating--especially in comparison with how this matter was ultimately, and wisely, handled in Great Britain--is the way democratic activity in this country is so often reduced to judicial claims and counter-claims, taking the issue away from the courts of public opinion and giving it to other, less democratic courts. As things stand now, come the end of March, the U.S. Supreme Court will rule definitively (maybe!) on the constitutionality of both state and national efforts to legalize or deny legal recognition to same-sex couples. I suppose it would be right to say I hope they rule in favor of the legality of such, given my changed opinions on the matter--but also given that such a decision would take the form of a legal mandate which will almost certainly run roughshod over the laws adopted by dozens of states, all of which have the support of millions of citizens, I can't say I'm looking forward to it.

If I now believe that same-sex marriage should be recognized as a legally defensible and positive civic good, which should I care about those whose opinions would be found constitutionally lacking by a decision which I support? Would I have cared about the consequences of Brown v. Board of Education for racists, for example? Well, my answer to the latter is "no"--but my answer to the former is that I just quite don't believe that opponents of same-sex marriage are necessarily operating from the same kind of irrational animus which many of those who were scandalized by the end of segregation presumably were. It's quite easy to position oneself on the probably winning (and, again, I think right) side of history here, and say that the passage of time will prove that same-sex marriage opponents are ultimately cut from the same bigoted cloth, and I can't deny that might, decades hence, turn out to be the case. But for now, as one who prefers the messy imbalances of democracy to the supposedly clear (but for all that usually arbitrary) impositions of the law, and for whom the past three years have mostly just provided confirmation of my many doubts about trusting in the judicial branch), as well as one who not too long ago was persuaded by a certain argument against same-sex marriages, I just can't see in the supporters of Proposition 8 and the Defense of Marriage Act and the opponents of what the House of Commons just voted for something so obviously out of line with our country's evolving political ideas as to deserve the judicial squashing which Boies and Olson (and perhaps President Obama too) clearly think it deserves.

After all, as much mockery as the idea has received from one side of the divide, the claim which my church's lawyers have signed on to--that advocates of traditional heterosexual marriage and supporters of same-sex marriage have in mind visions of marriage which are in "deep tension" with one another, "one inherently intergenerational, the other primarily interpersonal; one focused on children's and society's needs, the other on the desires of the couple"--is not, I think, obviously silly or just a cover for raw distaste and prejudice. It is, on the contrary, entirely plausible (if not, to me, any longer convincing) to argue that the physical differences between men and women, and their reproductive potential, make it incumbent upon society to legally ratify such relationships in a socially beneficial way that homosexual couplings, no matter how loving or civic-minded, are biologically capable of ever being. Moreover, it is not obviously ludicrous to me to note that, given the widespread support for numerous statues in several states providing near marriage-identical forms of civil protection and social validation to gays and lesbians, the argument about the harms of Proposition 8 are probably not quite the same as those 14th-Amendment-centered harms which activated judicial interventions into the political deliberations of the states in the cases of, for example, Romer v. Evans or Loving v. Virginia. And finally, it does not strike me as obviously nonsensical to suggest that a society which truly takes the principle of equal respect seriously should reject the easy solution of "sameness" offered by inviting homosexual couples--who arguably will have a moral and social and sexual teleology in their relationships quite different from those of heterosexuals--into a marriage institution which was designed for people whose needs are distinct from theirs. And when this last argument concludes with a call for churches and other religious institutions to accept the Christian duty to love gays the same as straights, and work out institutions which will serve their teleology as well as heterosexual marriage has served the rest of the population, I think even the most dismissive critics ought to at least acknowledge the decency of their intentions.

All this is to simply say that these are beliefs--just like, I think, most beliefs--that deserve to be taken seriously enough to allow them to be argued out in public, and for the courts of public opinion to respond to them as they will--whether in support or in opposition. This isn't an argument that every democratic majority everywhere ought to have its way all the time, but just a wish that people were more willing to accept the (when properly limited within a reasonable understanding of basic liberal rights) wins and losses of democratic life, and how the lives which get worked out democratically will differ from community to community, and from era to era. Minds do change; they change all the time. For me--to focus just on the first claim above--the accusation that accepting same-sex marriage meant accepting as normative for purposes of social recognition a genderless choice-driven individuality ran aground on my ultimate unwillingness to fully sign on to the sexual inegalitarianism which such an accusation of individuality presumes. Obviously Melissa and I are raising daughters, not sons, and that difference matters. But I couldn't continue to believe, as we taught our daughters and encouraged them to consider themselves equal to both boys and men in the face of the pornographic misogyny which powers so much of the capitalist marketplace which surrounds them, that--to use the terms quoted from the brief above--community-preserving intergenerationality depends on impressing upon them their particular role within a companionate, heterosexual marriage, when it was obvious that such doesn't depend equally upon the men (something especially easy to challenge in world which has been transformed by technologies like the birth control pill or in vitro fertilization, to say nothing of the unfortunate--but probably inevitable--consequences of the no-fault divorce revolution). For better and for worse (yes, it's both) ours is a world more interpersonal than otherwise, and I saw that it was possible to argue against rampant individualism in a way which expanded the circle of community--by, among other things, making room for homosexual individuals in the historical practice of monogamous, companionate marriage--rather than holding tightly to a model of an intergenerational thing which had long since already been changed.

(There is, of course, a Mormon angle to all this for me as well; my church has few rivals in its cult of motherhood and its emphasis upon the special role of women in passing the faith along to the next generation. But that, of course, is something which need not be aligned with the civic sphere. Do I think it legitimate for Mormon majorities in their communities to push for such an alignment? Yes, I kind of do, though again in light of basic liberal guarantees, which itself is something which warrants continuing democratic contestation. I will say, though, that I strongly disagree with those who present such a push as something mandated by the logic of Mormon doctrine--that our (non-canonized!, I shout in vain) teachings about the eternity of gender and our (entirely speculative, I similarly grouse) claims for the existence of an exclusively female companionate deity alongside God make it incumbent upon believers to vigorously resist any attempt to suggest that such supposedly divinely sanctioned institutions as heterosexual marriage might accommodate other forms of human existence. The doctrinal grounds for justifying that kind of narrowly conceived--and inevitably party-aligned--movement would make a mockery of our historical political theology, I think.)

What about the other two claims mentioned above? I remain pretty much in agreement with the second: despite the arguments of many, I'm still unconvinced that the restriction of marriage to heterosexuals constitutes a grievous constitutional harm put in place solely with the aim of burdening a specific, disliked minority population. (That does not deny that fact that harms are a reality here--it only denies that the actually existing harms to homosexual individuals is great enough to demand further empowering the judiciary by handing over to them yet one more of our contentious disputes for resolution.) As for the third, well, that argument calls for exactly the sort of thing which, over four years ago, I thought was the best possible solution--and I'd like to be able to believe that we could wean ourselves away from the false and individualistic reading of "equality" that substitutes the idea of the full recognition of difference with legal identicalness. But I don't see ourselves ever being about to manage such a weaning, because of the legacy of a particular strain of liberalism in this country. And speaking idealistically of what we think we ought to be able to do is no good reason to not do something else which, even it does partake of that particular reading of equality, can extend some real interpersonal richness to our social lives as well. And same-sex marriage will do that.

In the meantime, as we get to wait for the Supreme Court to, sometime this summer, either strike down or legitimize same-sex marriage bans, or perhaps to simply punt the whole issue back to the states, where the rigamarole will begin again, Great Britain will get on with what governments are supposed to do--respond to pressing issues by crafting solutions. The House of Lords may delay this bill's route to becoming law, and given the number of Conservative MPs who deserted Prime Minister David Cameron on this vote, maybe there will be major political consequences, even new elections called early. In which case their own rigamarole will continue: but at least the citizens in that country will be able to say that they, however indirectly, were actually a part of whatever final compromise eventually emerges from Parliament, whereas in our case, for all our claims of freedom, we'll really only be able to have a decisive say if the Supreme Court decides we can have one. Frankly, I think same-sex marriage, which I support, deserves a better court than that.