Bob Hayes Online

Hugo’s in one of his blocking-critical-comments moods, so I’m putting a somewhat expanded version of my response to this post here.

Hugo:

…it’s not nit-picking to challenge Ensign and Lopez on their language. Both are ardent culture warriors, fighting against the cause of marriage equality for all. Both are willing to employ biblical language as tools in that fight. I count myself a Christian and a culture warrior as well, though from the opposite side of the lists; it is indeed fair sport to point out that one’s deeply misguided (but no doubt charming) opponents are — out of ignorance or malice I know not — misusing Scriptural language and misrepresenting the role of marriage in the Judeo-Christian narrative.

My bold.

Hugo (and many gay marriage advocates) would like to pretend that they are in favor of “marriage equality for all”. Equality is such a nice thing to ask for. It’s not a privilege, or a redefinition of terms – it’s just asking for equality. Treat me the same as you treat them!

But for 99% of the people making it, a claim to believe in “marriage equality for all” is a blatant lie. Hugo is lying when he claims to be in favor of “marriage equality for all”. He is not. It’s an obvious falsehood.

Instead, he is in favor of keeping our current, exclusionist, model of marriage completely intact – but allowing one category of people denied their matrimonial preferences to come within the boundaries of exclusion. Gay two-person relationships, along with straight two-person relationships, shall be allowed/recognized.

But that isn’t marriage equality for all. Imagine that it was still the bad old days of 1920, when racial and religious prejudice was far more pervasive and severe than it is today. Imagine that you are a Jewish high school student, applying for admission to an Ivy League institution. Well, good luck with that – in those bad old days, there were stark and strict quotas to keep Jews out of these institutions. So your application is denied with prejudice. So you start campaigning for a revocation of the anti-Jewish quotas, and you win. Have you been fighting for “college admission equality for all”? No. You haven’t done anything for blacks, or women, or Hispanics, or Asians, or any of a number of other people who were excluded just as firmly from the institution as the Jews. You’ve been fighting for a parochial interest – a good and worthy interest, to be sure, but your fight was on behalf of, and benefited, a particular group of people. You weren’t a college-admission-universalist; you wanted to stop the mistreatment of one particular group.

And there’s nothing at all wrong with that, of course; nobody says you have to fight all the evil of the world at the same time for it to count. At the same time, it’s somewhat self-serving to make gassy claims about how you’re fighting for everyone, if you aren’t. It’s more than self-serving to make that claim while simultaneously believing that the discrimination against blacks, women, Hispanics, etc. are still good things.

Gay rights campaigners are not polyamory campaigners. They are not campaigning for the rights of incestuous couples. They are not campaigning for the “rights” of young teenagers to marry. They tacitly or explicitly endorse the many restrictions that our society has put on marriage, except for the one restriction which is of personal interest to them. Again, there’s nothing wrong with that. Believe what you believe, and fight for it.

But spare the rest of us the sanctimonious pretense that you’re in a fight for some beautiful abstract ultimate principle. When Hugo is out there yelling at the Mormon Church for its cruel treatment of polygamists, then he can credibly claim to be fighting for “marriage equality for all”. As it is, he’s just lying to make himself feel special. “Oh what a good person I am, believing in marriage equality for all! What kind of monster must my enemies be, these people who do not believe in marriage equality for all!”

For the sake of Hugo’s fragile ego, let’s hope the disconnect between his rhetoric and what he actually believes continues to elude the cognitive part of his brain.

Having a discussion with Lynn Gazis-Sax about whether the current court battles over gay marriage are going to result in polygamy being validated by the courts. I say yes, she says no; her “no” is based on how difficult it would be to integrate polygamy into current law. My “yes” is based on the fact that in my view, when it comes to sexual morality and the courts, the courts will rule on the basis of emotion, not the textual language of the Constitution or the law. So we have a bet (which this post is to memorialize): I say within ten years, a state court will create a right to polygamous marriage. If I am right, Lynn will donate $100 to the Federalist Society. If I am wrong, I will donate $100 to Amnesty International. (Now I just have to add an entry to my Google calendar for ten years from now, otherwise I’ll forget.)

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.