When people look back years from now, they may well mark spring of 2009 as the point when America really changed its attitude toward same-sex marriage. Call it “gay marriage,” call it what you will—I prefer the simple descriptive term “equal marriage”—it seems clear that we’ve passed a tipping point.

At the start of this year, equal marriage laws were on the books in only one state:  trailblazer Massachusetts. Since then the list has grown to include Connecticut (following through on a court order from last year), Iowa (also in response to the state’s high court), then Vermont and Maine and (as of this week) New Hampshire, in each case enacted not by court order but voluntarily by the state legislatures. Meanwhile there are bills working their way through the legislatures of New York and Pennsylvania. On the next tier down, three states (New Jersey, Washington, and Oregon) recognize same-sex civil unions, and Washington, D.C. has recently joined Nevada and California in recognizing slightly more nebulous “domestic partnerships.”

There are still setbacks—notably California’s regrettable Proposition 8, which passed last November and was upheld (on very narrow grounds) by the California Supreme Court—but compared to just five years ago, when the issue seemed like a sure-thing hot-button winner for right-wingers across the country in the 2004 election cycle, the change has been remarkable to behold.

It stuns me to realize, given that I used to work for a GLBT-rights organization, that I haven’t written about this topic before. Then again, perhaps that’s because in the circles I move in, it’s just not a controversial issue. Everyone understands that equal marriage is quite simply the right thing to do, and that those who oppose it are either trogolodytes or politicians trying to appeal to troglodytes. (And yes, this issue is another one of Obama’s shortcomings.) There is, quite simply, no remotely plausible argument against it. 

That doesn’t stop the opponents, of course. They argue vociferously, oblivious to their inability to withstand logical scrutiny. Even broaching the issue usually entails dealing with a lot of religiously based biases and misconceptions, and a remarkable degree of anger—as from these online posters who insist “Marriage has always been between a man and a woman. That fact is woven into the fabric of the world since the beginning of time,” and “I have BIG problems with them forcing my kids to be taught that it is O.K.  Gay marriage has NOTHING to do with rights. It has everything to do with FORCING society to accept the lifestyle.”

Occasionally (very occasionally) one encounters someone from the “traditional marriage” camp really trying to offer up a careful, balanced argument, as in a recent Salon piece. Even the most civil and high-minded efforts still boil down to a pile of paralogical nonsense, though. Basically, the recurring points are that:

  • Marriage has “always” been “only” between one man and one woman, and this tradition is at the very foundation of our society, so messing with it holds untold risks
  • Marriage isn’t a fundamental right, it’s just a term defined by law, and as such should be subject to majority rule, and most people don’t want it changed
  • Marriage is a sacred religious institution, and as such if churches are forced to accept or conduct same-sex marriages that would impinge on religious freedom
  • Marriage can’t be changed without degrading the institution itself, harming “traditional” couples by “forcing” them to accept same-sex couples as equal
  • Marriage is primarily an institution for the creation and upbringing of children, and as such a father-and-mother dynamic is “the best” option and should therefore be protected by law

Seriously, does anyone have anything better than that? I mean, I’m going out of my way to present these arguments as fairly and charitably as possible. Still, you don’t have to be a rocket scientist to realize that they’re not all consistent with one another. (If something is an ancient and sacred religious institution, for instance, it’s hardly sensible to say that it should be constrained by majority rule.) And the flaws under the surface don’t take a whole lot of extra effort to dispose of, either.

In point of fact:  marriage as an historical institution is highly overdetermined. It has existed in all sorts of forms traditionalists and/or civil libertarians shy away from today, including polygamy (very widespread), child marriage, and forced marriage. It has been a creation of both the church and the state (which were not, of course, always distinguishable). It’s been about property, it’s been about children, it’s been about love. It is not and has never been a straightforward, unchanging institution.

(And even if it were what its proponents claim, that’s not a compelling reason to leave it that way. “Tradition” is nothing more than historical contingency frozen in amber. There’s no reason at all to assume it actually serves the needs of actual people in contemporary society—and when there’s actual evidence that it doesn’t, preserving it makes no sense at all.)

The hollowness of “traditional” marriage being established, the institution is nevertheless sufficiently well-established cross-culturally as an important personal life choice that the Supreme Court quite properly recognized it as a “fundamental right” back in 1967 in Loving v. Virginia. That was the case establishing that laws against interracial marriages violated the Constitutional guarantee of equal protection of the law, a case which equal marriage opponents struggle in vain to distinguish.

Fundamental rights, after all, trigger “strict scrutiny” where legal analysis is concerned—which completely trumps any expressed concern over democratic process. (But that’s all hypocritical anyway—when courts are mandating equal marriage based on Constitutional principles, opponents rail against “unelected judges” and argue that the Will Of The People should prevail… but when elected representatives vote it in, they promptly reverse strategy and look for ways to amend the Constitution and overrule the democratic process.)

Of course, although marriage is an odd hybrid of civil and religious traditions, no religious institution need be concerned… any more than the Catholic Church today is obliged to solemnize divorces.  Voluntary adherents to any given faith can play by whatever rules that faith chooses to impose. What’s really ironic is that plenty of churches today are willing to marry same-sex couples, but can’t get the state to recognize them as valid.

(And speaking of divorce, and other variations on traditional relationships, it simply doesn’t pass the laugh test to say that anything same-sex couples could do could possibly degrade marriage any more than opposite-sex couples already have.)

The thing that seems to come up more often than anything else is child-rearing. But that horse has left the barn. You think that husband-and-wife couples are better than any other parenting arrangement? Sorry, but the best available social-science research says otherwise:  

the American Academy of Pediatrics put its imprimatur on the stance adopted by the American Psychiatric Association in 2000. An article in Pediatrics pronounced that “a growing body of scientific literature demonstrates that children who grow up with 1 or 2 gay and/or lesbian parents fare as well in emotional, cognitive, social, and sexual functioning as do children whose parents are heterosexual.”

But even if the argument were sound, it would still be moot. See, here’s the thing:  people are individuals. We’re a society built on respect for individual rights. Whatever the alleged “ideal” household arrangement may be, it’s an impermissible intrusion on individual choice to tell people they have to live that way. We certainly don’t make it a criterion for heterosexual couples:  being good parents, indeed being parents at all, is neither a necessary nor a sufficient criterion for being married. Traditional married couples aren’t required to have children, nor are parents (single or double) required to be married. To suddenly discover a deep interest in the alleged best interest of the child only when same-sex couples are involved is strikingly disingenuous.

And that’s just the argument from principle. There’s also the pragmatic one:  namely, that a great many same-sex couples are already parents, through adoption or artificial insemination or step-parenting or other means. Can anyone claiming to be concerned with “the children” seriously claim that it’s in their interest to have their parents excluded from the legal and social benefits of marriage?

In an ideal world, if you ask me, the state would just get out of the marriage business entirely. Let the churches have it; let marriage be as legally relevant as baptism. Let the state hand out benefits as a secular matter of civil contract only—to everyone, straight and gay alike. But that’s not likely to happen any time in the foreseeable future (“tradition” at work again)… so short of that, the institution and all the legal benefits and privileges that come with it should be available on equal terms to all couples, regardless of their composition. 

Why should I care? I’m straight, with a longtime girlfriend. It’s no skin off my nose, right? Except that I care about justice. GLBT rights, in a very real sense, present the preeminent civil rights battle of our generation. The notion that I should benefit from discrimination against others isn’t a positive for me, it’s a negative. There’s more to a just society than raw self-interest. When we let the state oppress anyone in our name, we diminish all of us, and put ourselves at risk.

In the end, the opposition is moot. If the events of recent months haven’t driven the point home, changing public opinion should. Polling shows national support for equal marriage jumped nine points in April alone. In Rhode Island, the last state in New England that hasn’t passed it, it now has majority support. And as more states pass it, not to mention more countries (Sweden, Canada…), even panicky traditionalists will realize that it’s not some harbinger of doom and destruction. These trends will only accelerate as the opponents—there’s no delicate way to say this—die off, and young people gain increasing dominance—young people who by overwhelming margins simply have no problem with gays, having known them for years both personally and as part of popular culture.

Or, as the inimitable Mark Morford puts it:

Don’t they know the musty ol’ Bible mutters some barely coherent, mistranslated silliness about it in a single word or two written 1,500 years ago in a long dead language by acidic church elders with powermad political agendas and violently repressed libidos who nevertheless wish to instruct us all how to live and love and screw?

Please note the response. Please observe how the kids merely look at you as though you’re more than a little bit deranged and prehistoric. …

Here is what [the big, sighing shrug from young people] tells you: Gay marriage is a foregone conclusion. It’s a done deal. It’s just a matter of time. For the next generation in particular, equal rights for gays is not even a question or a serious issue, much less a sinful hysterical conundrum that can only be answered by terrified Mormons and confused old people and inane referendums funded by same. It’s just obvious, inevitable, a given. 

From one state to six in five months, folks. The writing is on the wall. Even Republicans will have to come around. Twenty years from now, people will look back and wonder how anyone ever opposed equal marriage… just as we now wonder how anyone could have been on the other side in the Loving case. Justice may proceed in fits and starts, but ultimately it prevails.

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6 Responses to “Equal marriage: a shifting tide”
  1. For anyone curious about that particular Act of Parliament: http://en.wikipedia.org/wiki/Civil_Marriage_Act

  2. And, need we remind anyone, the sky has yet to cave in up here in Canada over the matter after…how long has it been now? Half a decade? More, since the Civil Marriages Act?

  3. Indeed, the fact that solid-blue Illinois is lagging so far behind not only the northeastern states but even neighboring Iowa is a bit of an embarrassment at this point. Knowing how things operate in Springfield, though, I wouldn’t start holding my breath any time soon. (Although I don’t doubt Greg Harris’ sincerity and commitment. He’s spent a lot of time banging his head against some pretty solid walls down there.)

    If I were betting on the next domino to fall, I’d keep my eyes on New York.

    I think the real, Niagara-level tipping point will come, though, when enough states acknowledge these rights to prompt the national government to see which way the wind is blowing and scrap the DOMA. State-level rights are important, but they’re not the whole ball game: it’s critical to have (A) mandatory reciprocal recognition in other states, and (B) federal rights and benefits like, e.g., Social Security.

    The nonprofits (including EQIL and HRC) do a decent job at least in terms of keeping (certain) issues in the spotlight, but expecting any one of them to really go out on a limb to make things happen is setting oneself up for disappointment. (And yeah, like every other nonprofit I know, they do spend a lot of time on those fancy fundraisers. They’re a necessary evil, but sometimes the tail can start wagging the dog.) What legislative change really takes is broad public support, not just the usual organizational suspects.

  4. Hal Shipman says:

    Well, I’m getting pretty pissed off at the gay “political establishment” for this.

    IL Rep. Greg Harris and Equality Illinois appear more than happy to laud themselves over having gotten IL’s civil unions legislation through committee and the Senate, but couldn’t pull the trigger to actually bring it to a vote in the House. In the meantime, there are now ELEVEN other states in which my health care and property rights are better protected than they are in supposedly Democratic Illinois. Soon to be thirteen.

    The further down the list Illinois gets, the more shameful it is. We’re supposed to be a progressive state? If they didn’t have the votes to get it passed, then Harris, Garcia and EQIL simply aren’t doing their jobs well enough. If Nevada is further along the track than you, you’ve fucked up.

    Add to this mix the recent reports that the Human Rights Campaign (HRC) is actually campaigning AGAINST the legislative repeal of Don’t Ask, Don’t Tell, because it isn’t in the correct sequence in its legislative agenda.

    These groups are spending too much effort on their cocktail party and fancy dress ball fundraising and are falling behind the times. Pheh.

  5. Well, yeah. The classic “slippery slope” argument is a fallacy right from the outset. It does come up, but perhaps I optimistically assume that people will automatically recognize and dismiss it as transparently dishonest. (All one really has to do is point to the obvious distinguishing criterion, which you mentioned, of “consenting adults,” and this one goes down in flames…)

    A slightly more sophisticated version I’ve run across is the argument that couples who aren’t gay would be encouraged to enter into “sham marriages” just for the sake of, say, insurance benefits. Because, y’know, (A) straight people never enter into marriage lightly, and (B) straight men and women are perfectly happy to let all their friends and family think they’re gay if there’s profit in it.

  6. RAB says:

    One other recurring argument not on your list — though it might be considered a corollary to a couple of them — is the “slippery slope” argument, i.e., “Where do we draw the line? If we allow marriage between two consenting adults of the same gender, this means we will be unavoidably forced to allow adults to marry children and pets and houseplants.” This might be the most transparently dishonest tactic of all, because it exists solely to invite the listener to think of homosexuality in the same sentence as pedophilia, bestiality, or…um, floraphilia.

  7.  
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