Tuesday, April 14, 2009

Symbols in the Same-Sex Marriage Debate

As the fight over same-sex marriage evolves, we can note two of its current features:

1) Each side will accuse the other of wasting time on a divisive social issue when there are more immediate and pressing problems for government to solve. Except in the four states in which same-sex marriage is already legal, this issue would seem to favor the social conservatives, since it's the liberalizers who aim to change the status quo. But there's an asymmetry that cuts in the other direction: Pro-same-sex-marriage political activists who are actually gay have a great deal more at stake in this debate than do anti-same-sex marriage political activists (most of whom presumably aren't gay). For the people in the political middle and thus potentially in play, it's the anti's on this issue who will tend to look like they're getting all worked up over something that is almost purely symbolic. Sure, most anti's claim that they're in it to defend traditional marriage, but they can't mean this literally (although some do purport to mean this literally). What the anti's mean is that their heterosexual marriages will be cheapened somehow if forced under the same linguistic umbrella as same-sex marriage. Even if we count that as an actual harm, it's hard to see how it counts for very much (by contrast with economic harm or, for that matter, harm to fetuses from abortion, an issue where the stakes for social conservatives are more real).

A complicating factor in all of this is that the stakes for the pro-same-sex marriage side are largely symbolic in states that recognize civil unions but not marriages, or at least so they appear: In reality, use of the word "marriage" has important practical (and not just symbolic) advantages (as explored here). But, if the public in general doesn't realize the practical difference between marriage and civil unions that nominally confer the same benefits, then there is a substantial chance that the pro side too will be perceived as getting all worked up over symbols--at least in states (like California) where the status quo is civil unions.

2) Defenders of the Iowa Supreme Court ruling have started talking about the rule of law rather than same-sex marriage. Here's an excerpt from a recent NY Times story describing the position of Iowa Governor Chet Culver:
Mr. Culver, who says he personally believes marriage should be between a man and a woman, said he was unlikely to support a constitutional amendment. “After careful consideration and a thorough reading of the court’s decision,” he said, “I am reluctant to support amending the Iowa Constitution to add a provision that our Supreme Court has said is unlawful and discriminatory.”
If Gov. Culver is saying that he found the Iowa Supreme Court's opinion persuasive, that makes sense. We can even make sense of the statement if he means something like "I'm not persuaded but these Justices know more than I do about this sort of thing, and so I'll defer to their judgment in a reasonably close case." But Culver's language also could be read much more broadly, so as to echo the views of those who opposed Prop 8 in California by saying things like "The state Constitution shouldn't be amended to take away rights." That's nonsense. The Thirteenth Amendment to the U.S. Constitution took away the rights of slaveholders to hold property in human beings---and quite rightly. Ultimately, rights can and should be taken away if they're the wrong rights.

Now I happen to think that there should be a right to same-sex marriage, but I'm not a politician worried about re-election. For politicians who either favor or don't oppose same-sex marriage, it's much safer simply to say that this is a tough enough question on which the courts' considered judgment should be respected. That's what Presidential candidate Michael Dukakis said in 1988 when challenged about his veto of a bill that required Massachusetts schoolteachers to lead the Pledge of Allegiance. Realizing the unpopularity of his position, Dukakis said that his hands were tied by an advisory opinion of the Massachusetts Supreme Judicial Court. (Story, complete with red-baiting by George H. W. Bush, here.) We know how well that worked out for Dukakis.

Posted by Mike Dorf