Some Random Thoughts on the Utah Same-Sex Marriage Ruling

So Robert Shelby, a federal district court judge in Utah, handed down Kitchen v. Herbert yesterday afternoon, declaring Utah's refusal to permit or recognize same-sex marriages unconstitutional. Following on last week's decision which decriminalized polygamous cohabitation in Utah, it makes the state that I lived in for five years, and which I have old and deep family and religious connections to, a somewhat happening place, at least when it comes to the law, marriage, and sex. But unlike Brown v. Buhman, which prompted some rather wide-ranging speculations on my part, this decision got me thinking in a much more personal manner. To wit:

1) Utah's constitutional ban on same-sex marriage--"Amendment 3"--reads very much like "Constitutional Amendment 3" which was passed by referendum in Arkansas in 2004 (the same year Utah's Amendment 3 was passed, not coincidentally) by 75% of voters, one of whom was me. I wouldn't have voted for that amendment today, and I'm happy to see Utah's constitutional amendment rebuked by a district court judge. So what has changed in the past 10 years?

2) Primarily, I've changed my mind about same-sex marriage. I've explained why I changed my mind before; to sum up my reasoning again as briefly as possible, let's just say that, over time, I came to realize that the only reasons that really seemed persuasive to me regarding the privileging of traditional heterosexual marriage--given that I simply couldn't accept the notion that homosexuality was a divine error or a crime against our natural teleology, though I don't find either of those (I think incorrect) claims necessarily irrational--were inextricably tied up with accepting a model of the sexual roles and relationships with marriage which depended upon a certain inequality in its intergenerationality. And once I realized that my construct in favor legally favoring heterosexual unions over homosexual ones was rooted in an acceptance of sexual inegalitarianism, I couldn't stick with it--because I couldn't stand the idea that was arguing for a position which presumed a role for my daughters which, despite all the talk of complementarianism which suffuses the sexually enlightened socially conservative position, put obligations upon them in a manner and to a degree unlike it could ever put upon men.

3) So for that reason I wouldn't vote for Arkansas's same-sex marriage ban today, nor Utah's--nor Kansas's Amendment 1, if it'll ever come up for a vote again. But of course, the change in Utah (which will last until the state appeals to the circuit court, which I'm sure it may do as soon as the end of the day today. And, as I've written before, I'm a fan enough of democracy and suspicious enough of judicial review to dislike the law being determined--or overturned--by judges, rather than by legislators or the people, including a law regarding the rights of gays and lesbians to marry each other. Or at least, I have been such a fan. Now, in the wake of this decision, I wonder if my principles are changing.

4) I'm not abandoning my hope--which is a vain one, I know, but as a democratic communitarian in a liberal juridical legal one, contrary hopes are par for the course--that broad religious exceptions and exemption will be built into whatever norms emerge as the same-sex marriage revolutions moves slowly but surely through our country, ones that will provide as much room as possible not merely for the right of religious dissent in an individual sense, but for the civic value of treating collective religious expressions as deserving of respectable, rational consideration. However, saying that confronts one with various constitutional trumps. If, as Judge Shelby argues, in the wake of both Lawrence v. Texas and U.S. v. Windsor an "individual’s right to marry as an essential part of the right to liberty" cannot be denied simply because of the "moral disapprobation of homosexual conduct," then same-sex marriage is a fundamental constitutional right. Do I really want to say otherwise?

5) In an earlier post of mine, I wrote that "I'm 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." On the one hand, if I stand by that position, and continue to insist that this push for marriage equality has to happen through democratic politics, and not through defining how the people may govern themselves via the imposition of judicial may-not-cross lines, then I can tell myself that I am continuing to invite me and my fellow citizens to struggle discursively over the real moral meaning of marriage, and thus save myself from the taint of Planned Parenthood v. Casey's banal and nonsensical invocation of the "right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life" (which Judge Shelby does himself no favors by citing). But on the other hand--well, on the other hand, there's my friend Christian's fellow gays and lesbians, people like Michael Ferguson and Seth Anderson, the couple celebrating in the photo above, all of whom, in an important civic sense, weren't allowed to partake in that aforementioned discursive process regarding the moral meaning of marriage because their access to the institution was eliminated by prior (and, practically speaking in today's political environment, mostly unreachable for discussion) judgments, thus robbing the larger community of the example and education which their experience as a couple could provide. And that, of course, is just one slice of the larger civic pie--the argument could also be made that, through the interventionary judicial expansion of the range and number of those who can contribute to various civic goods, such as those provided by stable married gay couples, society benefits far beyond simply the contribution to a more diverse and rich discursivity. I think about all that, and I wonder: maybe my resistance to those tools which often generally (if indirectly) tend to support an empty individualism in American society (the hypothetical solo sexual dissenter, determined to exercise her right to marry or not marry however she pleases, for whatever reason she pleases) can go too far, and thus take me away from noticing that, whatever the costs of judicial fiats (and I believe they are many!), they don't stop conversations from continuing. And maybe even continuing in a more rich and rewarding way than before.

6) In the end, I'm undecided. Ideally, I still would rather see democratic debate and compromise do its slow but satisfying work than see political fights turn into constitutional ones. But I don't think I could write what I did before, at least not as confidently; even if I don't particularly like the idea of marriage being defined solely as (in Shelby's words) "the right to make a public commitment to form an exclusive relationship and create a family with a partner with whom the person share s an intimate and sustaining emotional bond," I have to recognize that as an appropriately interpersonal description....and since, as I said above, I care enough about equality to accept that interpersonal thinking is better, when it comes to marriage anyway, than intergenerationality, I suppose I ought to focus on what civic resources such a definition makes available to us. And if those resources come our way through a constitutional edict...well, even if it's not my preference, that doesn't mean I'll support an appeal!

In the meantime, to Christian and other Utah friends: hurrah!