Whelan: I’ll use scare quotes around “marry” whenever I feel like it

by Walter Olson on July 2, 2013

The other day on Twitter I criticized Ed Whelan, who writes at National Review “Bench Memos” and runs the religious-right Ethics and Public Policy Center, for using scare quotes around the word “marry.” More specifically, Whelan wrote of a hypothetical “Adam and Steve” (no, he still hasn’t tired of that trope) “who ‘marry’ in New York but reside (or later move to) Virginia.”

Now, responding to my criticism, Whelan has written a whole blog post on the topic. He expresses the view that it is “unfair and misguided” to take offense at the usage, and says my criticism has moved him to reflect that perhaps when referring to legalized same-sex marriage he should use scare quotes more often around the words “marry” and “marriage.” Following through on this, he proceeds in a second post to use scare quotes around the particular marriage of two actual people in California following the lifting of the Prop 8 ban.

Whelan claims that his difference with me arises solely from our difference on the substantive merits.* Yet a quick inspection of the dissents by Justice Antonin Scalia and Samuel Alito in U.S. v. Windsor shows that neither of them used ironic or scare quotes around “marriage” or “marry” when describing same-sex unions, with Scalia passing up at least 13 chances to do so and Alito passing up at least 16. Likewise, I believe many prominent critics of gay marriage, such as author Maggie Gallagher, generally avoid the scare-quote usage. I see no reason to suspect that these figures take a substantively different view of the marriage issue than does Whelan. I think the more likely explanation is that they are more concerned not to give offense.

National Review editor Rich Lowry recently complained that it’s terribly unfair to tar his colleagues with “animus” on this topic — they just oppose gay marriage on principle, that’s all. No doubt Whelan would also find it unfair too. He’s merely unwilling “to conform to a politically correct usage” just to avoid giving offense. So don’t go around getting him mixed up with those media-whipped wusses who hold back their true opinions — you know, the ones like Scalia and Alito and Gallagher.

* * *

*As has been pointed out, a large body of traditionalist Catholics dispute the spiritual validity of remarriages by persons who have not had a church-approved annulment, yet a scare-quote formulation like “re-’marry’” is seldom seen, outside perhaps an explicitly sectarian context.

More: welcome readers from Andrew Sullivan (Daily Dish) and Eric Zorn (Chicago Tribune).

{ 17 comments }

Tom Scharbach July 2, 2013 at 10:04 am

No doubt Whelan would also find it unfair too. He’s merely unwilling “to conform to a politically correct usage” just to avoid giving offense.

The use of scare quotes is understandable when used by in a religious context. In that context, an argument can be made that the writer is using the scare quotes to denote that civil law is subservient to God’s law, and civil law marriage that runs contrary to God’s law cannot be described as marriage.

On the other hand, used in a legal context in which same-sex marriages (in some states, anyway) valid, scare quotes cannot be seen as a formula for drawing a distinction, and the sole point of scare quotes is to give offense, to demean and belittle.

Scare quotes, in a legal context, also demean and belittle the law itself, which is why Justices Alito and Scalia do not and will not use scare quotes.

Coming from a self-styled “prominent conservative legal analyst”, Whelan’s refusal to describe marriages that are valid under state law and recognized by federal law without resorting to scare quotes is yet indicator of how far the anti-gay movement has devolved.

Good on you, Stephen, for calling out this asshole.

Tom Scharbach July 2, 2013 at 10:11 am

Good on you, Stephen, for calling out this asshole.

Good on you, Walter, for calling out this asshole. Mia culpa.

Houndentenor July 2, 2013 at 10:35 am

Yes, good on Walter for calling this guy out. No, he probably won’t change his mind but maybe someone reading it on twitter will see the point.

Walter Olson July 2, 2013 at 10:39 am

While I always appreciate praise, the point of my post was to set a better standard of civility. So if its result was to call forth epithets, I guess it failed.

Tom Scharbach July 2, 2013 at 9:06 pm

Walter, if you think that Ed Whelan’s insistence on use of the term “marriage” results from a lack of civility, you miss the point of his using the term.

Houndentenor July 2, 2013 at 10:34 am

Scare quotes? That’s a new one to me. I always read such quotation marks as sarcasm, which is even more offensive in my opinion.

So long as the state and the federal government recognize the marriage for legal purposes, I don’t much care if bigots want to put quotes around it. It just makes him look like the bigot that he is. The harsher and meaner their rhetoric, the better things get for us. No, I wouldn’t choose for it to play out this way, but I’m not at all embarrassed to take advantage of the tactical incompetence of the anti-equality crowd.

Walter Olson July 2, 2013 at 10:50 pm

Thank you, Andrew Sullivan, for weighing in supportively: http://dish.andrewsullivan.com/2013/07/02/keep-it-classy-nro/

Tom Scharbach July 3, 2013 at 6:36 am

Sullivan (who refers to Whelan as a “dead-ender”, by the way) gets it exactly right.

Whelan’s offense is not a lack of civility or a failure of political correctness, as Whelan claims.

Instead, Whelan’s offense is a willful refusal to respect the civil law of the land, and the legislatures and courts that determine the law of the land, and to accept the validity of civil law.

That’s fine in the context of discussing theology. Theology is not determined or affected by civil law. Christians are free to refuse to perform and recognize any civil law marriages for religious purposes according to the dictates of their theological understanding or lack thereof, and none who respect the 1st Amendment argue the point.

But Whelan is not (except in his own head, perhaps) discussing theology. He touts himself as a “prominent conservative legal analyst” and writes about the law. In that context, the term “marriage” instead of marriage, demonstrates far more than his animus toward gays and lesbians; it is a none-too-subtle attack on the validity of civil law. It demonstrates Whelan’s disrespect for the law, and encourages others to disrespect and disobey the law.

Whelan and his fellow theocons (e.g. Liberty Counsel’s Matt Staver) are beginning an attack on the law and on the Constitution, demeaning and undercutting respect for both, akin to the massive resistance that Senator Harry F. Byrd called into being in 1956, in the wake of the the Brown decision. We all know the aftermath of that call to action, and we don’t want to repeat it if we have any sense.

BRob July 2, 2013 at 11:26 pm

I guess you could always call him a “lawyer” and refer to his spouse as his “wife” and say he is a “Christian.” But that would be silly . . . .

TomJeffersonIII July 3, 2013 at 1:29 pm

Yeah. That was actually my first thought when I read this long post. It may be a silly thought, but it is awfully tempting. I also thought that “marriage” was more sarcasm them scare tactics, but then again….

Frankly, the “lawyer” is writing for a particular audience that refuses to believe that gay people (and in this case gay couples) are in fact protected by Constitutional pleasantries such as due process and equal protection.

He is probably going to keep writing “marriage” when talking about gay marriage because that is what his target audience wants to read — assuming that most of them are capable of reading.

Tom Scharbach July 3, 2013 at 7:09 am

As has been pointed out, a large body of traditionalist Catholics dispute the spiritual validity of remarriages by persons who have not had a church-approved annulment …

As a side note, Walter, this is not a theological position confined to a few traditionalist outliers in the Catholic Church; instead, it is the official position of the Church (as expressed in the Catechism) and put into effect in practice (e.g. denying communion to divorced (without annulment) and remarried Catholics), exclusion of such Catholics from lay ministry, and so on.

I’ll grant you that a lot of pew Catholics don’t see eye to eye with the Church on this question, but I’d be careful about dismissing the importance of the Church’s official position on the question.

The reason that this side note is important is that when discussing the different ways in which the Church treats same-sex marriage and remarriage after divorce in civil law, it is easy to lose sight of the distinction made by the Bishops with respect to the two cases in civil law.

In the case of same-sex marriage, the Bishops do not appear to distinguish between religious marriage and civil law marriage, in stark contrast to the distinction made with respect to civil law remarriage after divorce. The Bishops are not engaged in a full-scale political war to block recognition of remarriage after divorce, nor are the Bishops closing down adoption agencies or threatening to close down hospitals because clients are remarried after divorce.

The Bishops may have a theological rationale for treating the two cases differently. I do not know, because none has been explicitly put forward to my knowledge.

But the Church’s strong political opposition to marriage equality was a stumbling block in Rhode Island, and will likely have a negative impact on our struggle for equality in other states with a significant Catholic population. We can’t afford to dismiss the difference in treatment of the two cases as inconsequential.

Jorge July 3, 2013 at 8:39 am

*As has been pointed out, a large body of traditionalist Catholics dispute the spiritual validity of remarriages by persons who have not had a church-approved annulment, yet a scare-quote formulation like “re-’marry’” is seldom seen, outside perhaps an explicitly sectarian context.

Instead they’re more apt to tell you directly that you’re living in sin. . . although even that is usually in an explicitly sectarian context, too.

This is about the merits. It is about an attempt on both sides to enforce a particular religious orthodoxy into the mainstream definition of marriage. I think using the Supreme Court justices as an example is a poor one. They’re not allowed to define marriage. Since this is a legitimate culture war front I certainly support Mr. Olson on this one.

Walter Olson July 3, 2013 at 1:42 pm

For those still following, Whelan has now returned to berate me further: http://www.nationalreview.com/bench-memos/352664/re-marriage-question-usage-ed-whelan

I find it curious that on the question of whether a particular usage should be taken as giving offense, Whelan considers it out of bounds to consult the actual usage of those around him (including highly esteemed co-thinkers of his), and instead sees it as enough to show that the usage is consistent with his professed beliefs. If Supreme Court justices renowned for their intellectual courage and care with language avoid a usage as likely to give offense, I think that’s solid evidence that the usage is, indeed, likely to give offense.

For most of us, living in civil society provides daily temptation to utter things about others that are fully consistent with our professed beliefs but would furnish grounds for offense. I try to resist that temptation.

lmao tse tung July 3, 2013 at 8:58 pm

Sounds like Whelan has the better argument. You’re just trying to compel him to use politically correct language to suit your rhetorical framing of the issue. And he’s especially right that using your hurt feelings as a reason to impose on his usage is an odd argument from a supposed “libertarian” (oops).

Jorge July 5, 2013 at 1:14 am

Maybe. But he has the weaker case.

What I mean to say is that there is some kind of insecurity going on with the other guy if he feels the need to bristle at such small potatoes.

A.C. July 4, 2013 at 11:26 am

What exactly is so scary about these big bad quotation marks? They seem eminently reasonable in this Orwellian age we live in, and what’s scary is, more and more necessary. Like how Obamacare will “save” us money in the long-term. When you live in a world where words have more and more elasticity, you tend to look for something like “scare quotes” to convey that fact. Calling it “homosexual marriage” or just homosexual marriage solves the problem, of course, but advocates don’t like that for the obvious reason that the oxymoronic character of this whole endeavor, no matter how many ukase courts say otherwise, is thus revealed.

Nevertheless, only a “libertarian” like you Olson would have brought this up in the first place, trying to get a little twitter-hate against Whelan going. The state has thus ruled, therefore no more quotes? I doubt a libertarian (no quotes necessary) like Justin Raimondo would, and he’s gay.

John D July 5, 2013 at 5:19 am

I wish that scare quotes were the most objectionable thing about Ed Whelan. I mean, really. How does this guy have the slightest shred of credibility left? I’ve seen arguments against marriage equality that I disagreed with, but Whelan doesn’t even bother. He is, bluntly, the laziest of the opponents of equality.

When I hear Whelan lionized I wonder “have you read the drek he writes?” He never makes an argument, just a series of unsupported assertions. Let’s take the first sentence of one of his recent columns:

From beginning to end, I doubt that there has ever been a federal judicial proceeding more wrought with irregularities and lawlessness than the anti-Prop 8 case.

He has three links in this sentence. One references Walker allowing broader discovery than the Prop 8 side wanted. The other two are “and he’s gay.” My guess is any decent legal historian and a lot of amateurs could quickly find federal judicial proceedings “more wrought with irregularities and lawlessness .” His columns always proceed through inudendo and suggestion.

Personally, I would like to see Whelan in a case where the other side’s hope of winning was solely based on extracts from long-dead writers. Whelan felt that the Prop 8 proponets were misused by Walker’s refusal to count such testimony.

Sadly (for Whelan), now that Prop 8 and DOMA are gone, he’s going to have to find something else to write about. It’s dominated his work at NRO.

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