More Progress For Gay Marriage

The Supreme Court has refused to hear appeals from five states on the subject of gay marriage. As a result, lower court rulings that struck down gay marriage bans have been allowed to stand, making gay marriage fully legal in those states. Among them is my current home in Virginia. The other four states were Oklahoma, Utah, Wisconsin and Indiana. Of course, this is great news.

I suspect there was a fair amount of political maneuvering underlying the Court's decision not to hear the case. After all, only four justices are needed to “grant cert,” but apparently that was too high a burden. UCLA law professor Adam Winkler argues that the liberal justices might have feared that a blanket ruling making gay marriage legal in all fifty states would provoke a backlash, comparable to what happened with abortion. Why step in when the dominoes are falling so quickly at more local levels? There's probably truth to this, but I suspect some of the conservatives also wanted to stay away. I don't think Roberts and Kennedy really care all that much one way or the other about gay marriage; they are more animated by deregulating big business and gutting campaign finance law. Roberts certainly cares about the legitimacy of the Court, however, and stepping in to take away rights from millions of people, on what would inevitably be spurious legal grounds, will not help the Court's already tarnished reputation.

The case against gay marriage has collapsed for two reasons. One is simply that people came to appreciate the monstrous cruelty that was being done to committed gay couples, by denying them survivor rights, or health benefits from employers, or in a hundred other ways that heterosexual couples never have to think about. People needed to have their eyes opened to this. A closely related point is that as gay marriage became more commonplace, people could see the silliness of claims that it represented any kind of threat to anything.

The second reason is the complete inability of the anti-gay marriage forces to come up with any serious argument for their view. The courts have basically been laughing at them. Sometimes they rely on dogmatic assertions that marriage just is between a man a woman and that's all there is to it. But since the definition of marriage is precisely what's being disputed, this argument doesn't count for much. Sometimes they rely on the Bible, but this can be dismissed out of hand in a secular country. Sometimes the issue is couched in terms of procreation. Alas, civil marriage simply has nothing at all to do with procreation. It is a legal arrangement with the state for the conferral of certain benefits. And that's before we come to the obvious point that religious institutions do not refuse to marry couples past child-bearing age, nor do they refuse to marry couples who intend to remain childless. Sometimes they make a slippery slope argument, that allowing gay marriage will open the door to various undesirable sorts of relationships, polygamy and whatnot. In reply I ask what the argument is now against those unions. What's the argument for not recognizing those unions that fails once you permit gay marriage? I have never heard one.

Meanwhile, Ian Millhiser points to the striking similarities between religious liberty arguments against gay marriage, and the nearly identical argument made against interracial marriage in the forties and fifties.

In addition to the five states directly affected by the Court's decision, six others will shortly have legal gay marriage as a result. That will still leave twenty states to go, so we should not be too sanguine about what more needs to be done. The fact remains, however, that gay marriage is all but over as a political issue. Almost no Republicans commented at all on the Court's decision. Ted Cruz is the only one who seems animated by it. I suspect, though, that even he will rapidly leave it behind. The fact is that non-crackpot critics of gay marriage are pretty thin on the ground.

So the public debate has now shifted to whether some gay marriage proponents have been unseemly in their gloating. Ross Douthat got the ball rolling with this whiny column from earlier this year. He seems terribly concerned that gay marriage won't just become legal, but that opposition to it will actually become socially unacceptable. Mark Joseph Stern delivered the proper spanking. Stern might have overdone the rhetoric in a few places, but he was right in all of his substantive points. Damon Linker, a gay marriage proponent, weighed in with some tone trolling of his own. Conor Friedersdorf did likewise. Henry Farrell then pointed out, sensibly in my view, that prejudice does not become acceptable just because it s derived from sincerely held religious beliefs.

Back when the anti side was strong, they were unstinting in their condemnation and demonization of gays. They didn't seem to worry then about magnanimity in victory and graciousness towards those on the other side. Now that they have lost I'm really supposed to worry about bruising their feelings? I'm supposed to sweat it if some columnist somewhere is too casual in making charges of bigotry? Please.

I tend to be pessimistic by nature. My general attitude is that people who aren't cynical about America's future just aren't paying attention. But then something like this happens and I get a glimmer of hope. Not just that the Court did the right thing, by doing nothing, but that it's all such a non-story.

Maybe the arc of history really does bend toward justice.

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I suspect there was a fair amount of political maneuvering underlying the Court’s decision not to hear the case.

Yes, and there is one bit of maneuvering you didn't mention. There is probably a fair chance that the 5th Circuit (which is very conservative) will uphold Louisiana's ban on gay marriage, given that the relevant District court has already done so. This would basically force SCOTUS to take the case. So they may have rejected all the previous ones because they are waiting too see if the 5th Circuit will fall in line, knowing that if that Circuit doesn't fall in line, that will automatically create a chance for them to take up the issue. IOW, they might have looked at the LA case and said "eh, that's one a decent enough case to become the precedent, so there's no need to adjudicate any of the other earlier ones."

In this case I think it's the arc en ciel of history.

By Another Matt (not verified) on 07 Oct 2014 #permalink

Sometimes they make a slippery slope argument, that allowing gay marriage will open the door to various undesirable sorts of relationships, polygamy and whatnot. In reply I ask what the argument is now against those unions. What’s the argument for not recognizing those unions that fails once you permit gay marriage? I have never heard one.

Thanks for making this point; I've considered it a lot myself. Maybe that's because it's likely the strongest possible point they can make. Anything else requires data rather than philosophical arguments, and the data doesn't exist. The slippery slope actually manages to put liberals on the spot, and gives some of them pause -- especially those of us who personally know (and don't judge) people with a polyamorous lifestyle.

Personally, I'm "against" legal recognition of polygamy because it would be a logistical nightmare, and because of the patriarchal history of polygyny, and because of the slippery-slope/backlash problem -- if a court somewhere found that polygamy must be recognized, it could spark an anti-same-sex-marriage constitutional amendment. I think most poly people would agree with at least one of those points. In another century, who knows?

But regardless, the broader problem with the slippery slope remains. It requires the possibility of laws or actions that are collectively bad for the same reasons, but reasons with cannot be articulated, just a vague "gut feeling". Or sometimes definable reasons like "The Bible says so". But conservatives have given up on that with respect to same-sex marriage since we don't all agree to it. If we did, a slippery slope argument would be irrelevant. (The following argument is much longer than it needs to be: "Breaking Rule 1 of the Big List of Rules is bad, because then you may as well break Rule 2. You agree that breaking Rule 2 is bad, because you agree that it's wrong to violate the Big List of Rules. Therefore, we shouldn't break Rule 1.") Further, if they seriously tried arguing against polygamy using the Bible, they'd be opening a heck of a can of worms, since the Bible is at least neutral, and at most approving.

Furthermore, we have to believe that these bad things are so bad that it would be terrible to permit a single one of them, lest we risk the others being considered okay as well. Yet why it would be so bad is unanswerable because it comes down to "gut feeling", and necessarily so -- as soon as you bring in a specific argument, then we can debate in terms of that argument, and slippery slopes become irrelevant as I described earlier. (Maybe the badnesses are different and don't involve the same principles or lists of rules, in which case they are apples and oranges, and you may as well say that gay marriage leads to driving past red lights and steroids in baseball.)

Even if I agree to the first part of the slippery slope argument, that some things are "indefinably" bad, it doesn't mean I have to submit to the second. I can simply say that I and the rest of my culture has decided to transfer a practice, such as gay marriage, from out of the indefinably-bad category and into the not-bad-but-actually-wonderful category, and we can provide lots of reasons for doing so. The fact that anything else remains in the indefinably-bad category isn't our problem, except perhaps with respect to those who would advocate for polygamy-etc, and with them we can have a real conversation. But we are in no way compelled to allow polygamy-etc to hold same-sex marriage hostage, which is how the argument works at its root.

And if we were, then there's yet another problem. Because the category necessarily involved indefinably-bad things, nothing stops anyone from inventing a new taboo, just for the sake of argument. Let's say I'm part of a numerological church that frowns on marriage between people whose pre-marital surnames contain more than ten letters and therefore can't compose an alphametic. Now, I can't come up with a secular justification for alphametic-marriage-only, but I don't have to. Sure, you could make the counter-argument that since McDonald and Jones (11 unique letters) love each other and have a healthy relationship, then they have the right to marry, but I could respond, what about a trio of lovers, or an incestuous couple? What problem do you have with them? Suddenly, I've forced you to either defend or overturn some of your own taboos, taboos that are irrelevant to a taboo that I literally just made up.

And of course, we don't actually have to propose hypothetical taboos to raise this issue. We saw it with interracial marriage, where precisely that slippery-slope argument was often made, especially once explicitly-racist justifications ran out of steam. (Well, there was also "think of their poor children" -- a line of argument that in the case of both mixed-race and same-sex marriage is only usable thanks specifically to the prevalence of racism/homophobia that leads to the opposition of marriage in the first place.) And hey, maybe someone had said that Loving v Virginia would lead to same-sex marriage. So what? Are we now supposed to feel bad about our modern acceptance of same-sex marriage, purely to appeal to the gut feelings of of our ancestors? Nonsense. We're going exactly where we need to go.

But regardless, the broader problem with the slippery slope remains. It requires the possibility of laws or actions that are collectively bad for the same reasons, but reasons with cannot be articulated, just a vague “gut feeling”.

There's far better arguments than just gut feeling. The goal in marriage law is (or should be) to allow arrangements where there is informed consent and disallow the ones that are forced, coercive or ill-informed. Extreme youth and bestiality are ruled out because they fail the 'informed' part, and possibly the 'consent' part too. Polygamy has a historical record of spectacularly failing the 'consent' part; the vast majority appear to include/require cultural or social coercion.
I would actually be okay with polygamy if the age limit was set high, like 30. IMO that would prevent a lot of the historically misogynistic forms of it from appearing. But with our marriage limits set at 16-18, there's just way too much potential for the abuse and coercion of young women. We see what happens when polygamy is allowed, and it isn't generally a group of like-aged mature adults all happily agreeing to live together. If we allowed polygyny, that would be 1% of it, and the other 99% would be treating young women like property.

Re Eric

It might also have sent a message to the 3 judge panel in the 5th Circuit, namely don't rock the boat.

By colnago80 (not verified) on 08 Oct 2014 #permalink