Bob Hayes Online

This is a big and messy issue for many people (it’s small and clear-cut only for a few on either side). Proponents of homogamy are right when they say that the rational arguments against gay marriage are lame. That’s largely because this is not a primarily rational debate. It’s an emotional discussion largely (but not entirely) centered on the question of whether American society is going to normalize homosexuality, or whether it will merely be tolerated. (Happily, the kill-them-all contingent, while it exists, is out of the debate.)

Marriage is a shorthand for normalization. State recognition of marriages is a shorthand for social acceptance thereof. I think that part of the intolerance for the anti-marriage position stems from people’s membership in communities where homosexuality is already normalized and already socially accepted; people living in liberal urban centers don’t seen that there any costs imposed on Iowa by adopting the values of New York, because those costs have already been paid where they live. (Kind of like millionaires lecturing Wal-Mart clerks about the importance of putting aside 30% of their paycheck for retirement.)

The argument for the civil right of marriage, as being indisputably obvious, fails. It fails because (most of) the people advancing it acknowledge that the state may limit marriages for other reasons (age, consanguinity); they merely wish to move the goalposts to put “gender” in the irrelevant column. That then is not an indisputably obvious civil rights claim that everyone has the right to marry anyone; it’s one that has to be mediated and decided by society.

Which then moves us to the question of who should make this determination. Should it be the voters directly, their legislative representatives, the state governments, the federal legislature, the media, Ralph Nader, the judiciary, or what? That’s what the FMA was really about; it’s one side’s argument that the state judiciary should not be allowed to make this decision, born out of fear that they are about to (probably true, as far as I can see.)

I would prefer to see the judiciary bow out. Gay marriage is something that should come to pass, if it comes to pass, because a significant and permanent majority of people want it to happen, and go to the trouble of pressuring their legislatures to enact it.

Otherwise it will turn out to be abortion all over again - judicial fiat overriding democratic debate, and creating a permanently festering wound in the body politic. Since it is clear that the judiciary will NOT bow out, then I favor tying their hands. The FMA was a bad idea, because it took power away from the states; jurisdiction stripping leaves power in the state legislatures (and the populace, in states with the referendum) while cutting the courts out of the equation.

If the Constitution grants some broad, overarching, powerful “you can marry who you please” right, then it does so across the board. Polygamists, people who want to marry their siblings, all the rest of it. You can maybe carve out an exception for categorization based on age - but there is no way to have a broad right that doesn’t encompass pretty much all the grownups - whether or not that makes life difficult for legislatures and tax professionals, whether or not the relationship being solemnified offends the moral principles of the community.

If, on the other hand, the Constitution only provides a narrow right - “the following specific categories of people can marry, and nobody else” - then it’s perfectly legitimate to pick and choose which categories of people have the right. White people can marry, but not interracial couples. No gays allowed. Christian virgins between the ages of 18 and 34 - whatever the Constitution specifies. And if the courts find that the Constitution actually includes some new narrow group (gay couples, for example), then fine, they’re on the list.

Here’s the problem. The Constitution doesn’t do EITHER of those things. It doesn’t create a broad right for everyone to marry who they want, and it doesn’t create a narrow right for only certain privileged groups. It’s silent on the question - it’s left to the legislature.

That’s the problem I have when folks like DBB say “ooh, yay, the Constitution says there’s a right to marry!” The Constitution says no such thing, and when you ask where it says that, there’s no answer. It’s simply a court privileging its own narrow, provincial view over the narrow, provincial view of the legislature.

If there is a RIGHT to gay marriage (somehow, magically, implicitly in the text), then there is equally a right to polygamous marriage, equally a right to (consensually) incestuous marriage, and so forth. If there is a RIGHT to marriage in there, somewhere, then it applies to everyone - Mike and Mark, Jim and Jane and Jerry and Jen, EVERYONE.

You can construe, with enough intellectual lubricant, a universalist right to marriage, which of course includes gay people. What you can’t have is a universalist right to marriage which includes gay people but somehow conveniently excludes all the other categories of people who would also like state solemnification of their unions.