Same-sex marriage came and went in the US Supreme Court, and the the most reactionary Republican dominated state legislatures responded by — passing new laws restriction abortion. While the high court was deliberating a case challenging the power of Congress to prohibit or punish same-sex marriage under state law, Texas, Alabama, Mississippi, South Dakota and Indiana were all exploring creative ways to provoke the high court to revisit Roe v Wade.
The lack of an outcry about U.S. Windsor is partly due to the fact that the opinion left those states’ anti-marriage laws intact. But the renewed focus on abortion and Roe, at a time when the highest court in the land was setting down a marker about marriage equality suggests something else is at work.
That something else can be seen in the non-reaction in California to the opinion overturning the notorious Prop. 8. In 2000, California voters passed Prop. 22, an initiative statute prohibiting same-sex marriage, with 61% of the vote. The state Supreme Court overturned Prop. 22 as a violation of the state constitution in 2008, which prompted Prop. 8, an initiative that amended the state constitution itself to prohibit same-sex marriage. Prop. 8 got a little over 52% of the vote, but a win is a win.
So California’s voters must be furious about the decision in Hollingsworth v Perry, right?
If so, it’s hard to see. Less than two days after the ruling, the Ninth Circuit Court of Appeals took the final step to permit same-sex marriages again in California, and while a very few of the usual suspects showed their faces to television cameras at the subsequent marriages throughout the state, there are no signs of outrage among the voters whose will was thwarted.
Opposition to same-sex marriage is different from opposition to abortion. There is a real and substantial moral question with abortion: At what point does human life begin? In the 40 years since Roe, that moral question has remained alive and vibrant, and the constitutional argument about abortion has seldom flagged. Moral feelings about abortion start strong and tend to stay strong.
Not so for same-sex marriage, where moral feelings may have started strong, but have weakened substantially over time. The moral consensus around same-sex marriage was collapsing even before the Supreme Court weighed in. With each new iteration of the issue, voters see less reason for opposition, more reason in the arguments made for equality. The moral argument against same-sex marriage is no more than the moral argument against non-procreative sexual activity; once heterosexuals can see their own procreative sexual desires in the broader context of a world in which procreation is controllable, the idea of sex for other reasons — pleasure, relational intimacy, emotional bonding or just for the hell of it — moves homosexuals from their historical outsider status to a proper role as fellow members of the human family. Procreation is a good thing, but it is not all that sex is for.
The shift back to abortion for the old guard of the GOP is some evidence that this cultural shift on same-sex marriage is taking hold. It is harder and harder to argue against the images of joyous couples getting married, and now joyous heterosexual friends and family are joining in the celebrations. Connection and inclusion are moral instincts, family imperatives, that it takes an effort to deny.
There is still a strong sense that abortion is worth the effort. For a small minority, the fight against same-sex marriage will continue to be a priority. But the continent on which they once stood is becoming more of an island every day.