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

16 comments:

Bryce said...

"...they can't mean this literally (although some do purport to mean this literally)."

First off, I disagree with almost everything on this blog, but I read it (and enjoy it) because it helps me understand the rationale behind liberal thought outside of the stereotypes and caricatures presented by conservative pundits. Your ordinarily well-structured arguments help me to respect your opinions even though I disagree. But the statement above is ridiculous. It'd be like my saying, "Gay people who want to get married say they're in love. They can't really mean this. What they really mean is...." This is a sensitive, emotionally-charged issue for both sides, so I understand getting a little carried away. But the entire country needs to elevate its discourse on the subject, so please don't try to turn those of us who oppose gay marriage into straw men.

Greg said...

Bryce, do you object to the manner of being cahracterized in this way or to the characterization itself? I'd be interested in your perspective on what might be meant by a defense of traditonal marriage, if you think the post misses the point.

egarber said...
This comment has been removed by the author.
egarber said...

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 appearSometimes the symbolic means much more than the practical. Suppose inter-racial couples couldn't "marry," but instead had to enter "multi-race unions." There can be little doubt that such a distinction would confer a lower institutional status on mixed families.

Sobek said...

Sorry for my habitual, reckless disregard for staying on-topic around here, but until I get posting privileges, hijacking your threads is the best I can manage.

Do any Obama supporters here want to defend Obama's DHS decision to label approximately 50% of Americans as potential right-wing extremists who need to be monitored by the federal government? Or are civil rights only important when a Republican is in office?

Sobek said...

Back on-topic:

"Each side will accuse the other of wasting time on a divisive social issue..."That seems to be Obama's stock-in-trade, more than anything I've heard from conservatives. Everything Obama doesn't want to deal with is a "distraction." In the case of gay marriage, Obama naturally doesn't want to address the issue, considering he is as homophobic (using the Left's definition of that term) as Rush Limbaugh.

"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..."Unless you consider tyranny by black-robed totalitarians a significant factor at stake, sure.

On that note, you won't find me complaining about Vermont. Americans used to value persuading others. But who needs persuasion, when you have government compulsion?

"Ultimately, rights can and should be taken away if they're the wrong rights."More importantly, judges need to be restrained when they abuse their authority, and they do not have the authority to invent rights out of whole cloth.

Michael C. Dorf said...

In reply to Bryce's comment (the first one, at the top of the page), I'll reiterate that it makes little sense to say that same-sex marriages "literally" threaten traditional marriages. If opponents of same-sex marriage thought that legalization would increase the divorce rate or would lead fewer straight couples to marry, that would be a literal threat. But that testable empirical proposition does not appear to be what anti's mean when they say that same-sex marriage poses a threat to traditional marriage. Instead, they seem to mean that legal same-sex marriage, by its mere existence quite apart from consequences to which it might lead, undermines traditional marriage. That's why I characterized this claim as one objecting to symbolic cheapening, which I would and did distinguish from literally having tangible consequences for traditional marriages.

Tam Ho said...

Maybe I'm not giving conservatives enough credit, but it's always seemed to me like most of them actually believe that legalizing same-sex marriage will LITERALLY destroy traditional marriage and traditional family units because more people who would otherwise marry someone of the opposite sex will become completely confused by the new option and will choose wrongly, and people in current marriages and families will abandon them in favor of a same-sex spouse.

I know this is utter nonsense, but based on my experience, it seems like those idiots genuinely believe it.

Bryce said...

I think the best way to answer Greg's question is to explain how I sincerely believe same-sex marriage poses a threat to traditional marriage. I'll end up addressing Mike's point as I go along, too.

In Parker v. Lexington, the First Circuit Court ruled that the rights of parents to direct the moral education of their children were trumped by the public interest of teaching young children tolerance toward same-sex marriage. The school was pushing this agenda on children in kindergarten and first grade, and all the parents wanted was prior notice and the choice to opt their children out of such programs until seventh grade. After seventh grade, when the children were older and the parents had had time to instill in them the values they considered important and true, they were more than willing to allow the children to receive the sensitivity training toward the idea of same-sex couples. The court, however, supported the school in teaching the children while they were young and impressionable without parental involvement of any kind. This is, in my opinion, a dangerous precedent to set. I don't trust any agenda that intentionally circumvents parental involvement in its indoctrinating of children.

Until I read that court decision, I was opposed to same-sex marriage on religious grounds, but didn't see it as a threat to traditional marriages and families. The aggressive and underhanded tactics of those propagating same-sex marriage in this case turned me more strongly against the cause in general, because now I see it as my right to raise my (future) children as I choose being infringed on by their right to be under the same linguistic umbrella.

So, that's an example of a sincere concern about same-sex marriage. I think that's a literal enough threat to traditional marriage (which is, in my view, inseparable from parenting rights, because truly traditional marriage had child-rearing as its focus), even if it's not necessarily empirically testable. Ideally, attitudes in both camps would shift so that proponents of SSM didn't think they had to take somebody else's rights in order to get their own, and opponents of SSM would emphasize tolerance and respect for opposing viewpoints in the moral education of their children so that the homosexual community wouldn't feel threatened, either.

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