IGF CultureWatch

First published on March 6, 2004, in National Journal. Copyright © 2004, National Journal.

In a small Texas church in 1977, a young man named George W. Bush married a young woman named Laura Lane Welch. Their marriage changed them both. "She is the steel in his back," a reporter who knew them told CNN.com in 2001. "She is a civilizing influence on him."

A civilizing influence: If marriage's magic - for individuals, for couples, for communities, for countries - were to be reduced to a phrase, that would be it. If President Bush were asked what was the single most important day of his life, I imagine he might choose, not the day he was chosen president, nor the day his twin daughters were born, but the day he united his life with Laura Welch's. Marriage civilizes, comforts, nourishes. Possibly no man in the country knows this better than Bush.

I hope, then, that it was with some measure of agony that, on February 24, he called for the Constitution to be amended to define marriage as a union of a man and a woman. At that moment, the occupant of the office once held by Thomas Jefferson, James Madison, and Abraham Lincoln declared that millions of Americans should be forever denied what is, after freedom itself, the greatest blessing of civic life: the opportunity to marry the person you love.

Now, I am not to be trusted in this matter. I am gay, coupled, and an advocate of same-sex marriage, thus condemned to view Bush's announcement through a scrim of disappointment and anger. Still, when I do my best to set my bias aside, and with the benefit of more than a week's cooling off, it seems to me that Bush's announcement amounted to a failure of moral and political vision, of empathy and imagination, that is symptomatic of a larger decline of his presidency.

Bush is no bigot. He is said to treat his gay acquaintances with kindness, and he is in good company in opposing same-sex marriage. A robust majority of the public is against gay marriage, as are most leading Democrats and 3,000 years of Western tradition. To tar everyone who rejects the idea as bigoted is to smear millions of Americans who wish their gay fellow-citizens no ill.

Bush, however, not only rejects gay marriage. He also opposes (though would not federally ban) civil union, as the nonmarital legal recognition of gay unions is often called. In his view, gay couples should have no formal legal status or protection of any kind.

More: In the course of his speech, as indeed in the course of his presidency, the word "gay" or "homosexual" did not pass his lips. He had nothing to say about the people to whom he would deny the irreplaceable blessings of marriage, and nothing to say specifically to them. It was as if a politician, a century ago, had announced his support for an amendment that would forever ban women from voting in any election on U.S. soil, and had done so in a speech carefully crafted to avoid mentioning women or even using a feminine pronoun. The message of Bush's omission, intended or otherwise, must surely be: Gay Americans are of no interest or concern to this president. Gay couples are invisible.

Perhaps Bush is morally myopic, a Mr. Magoo who sees gay people only when he physically collides with them. More likely, he takes the view that homosexuality is a personal and private idiosyncrasy, indeed a sin, of which public policy should take no formal notice. Gay couples, in this view, should feel free to draw up private contracts and wills of whatever sort they please, but they should go unnoticed by law and public policy.

Surely, if he stopped to think about it, Bush would realize that marriage conveys a host of benefits that no interpersonal contract can provide. He must be aware that only marriage can protect spouses from having to testify against one another under oath. (How, I wonder, would Bush feel knowing his wife could be subpoenaed as a witness against him by the next Kenneth Starr?) He must be aware that a bequest to a legally "unrelated" beneficiary is easily challenged by greedy or vindictive relatives. He must be aware that marriage is no mere legal contract between two individuals; it is a promise that spouses make not just to each other but to their community and in their community's eyes.

When I gave a speech a few months ago, I was surprised to find my host not in attendance. When I asked why, I learned he was at home taking care of his dying male partner. Bush, apparently, sees neither nobility nor public benefit in this union. Apparently he sees no union at all. Just individuals doing their thing. Nothing to bother himself about.

There is another Bush, the one who grappled with the ethics of stem-cell research in 2001, the one who in that case delivered a national address exquisitely weighing the moral claims of well and sick and born and unborn.

Contrast that with the cool five minutes or so he gave same-sex marriage, the studied omission of any concern for the moral claims or welfare of 10 million or more gay Americans, and the refusal to offer them civil unions or any other consolation for their disenfranchisement. However intended, his performance was the most callous by an important American public official since the days of segregation.

The failure of moral imagination was exceeded, if that was possible, by the failure of political imagination. At his best, Bush in the past has shown an unusual facility for finding new ways out of old boxes. Refusing to choose between unacceptable alternatives, he shifts the paradigm instead. After September 11, he recognized right away that long-standing American policy for the Arab world was obsolete. In the Middle East, when told he had to accept unending conflict or bestow a state upon the likes of Yasir Arafat, he chose neither, instead linking Palestinian statehood to Palestinian democratization. It was this Bush who promised, for a while, the most creative and generative presidency since the days of FDR and Truman - so much so, that I called him "the accidental radical" in these pages.

But then there is the Bush who shruggingly signed an expensive and reactionary farm bill, a much more expensive if not quite so reactionary Medicare expansion, a command-and-control campaign finance law straight from the 1970s. There is the Bush who in January proposed, despite burgeoning deficits, an increase for the National Endowment for the Arts, a pleasant frivolity that sprays a mist of federal subsidy into a torrent of private funding for the arts and entertainment. And now the gay-marriage ban.

Americans haven't made up their minds about gay marriage and don't want to be rushed, either by liberal courts or by conservative Constitution-amenders. Most Americans, including many conservatives, believe the matter should be settled at a deliberate pace by the several states. The U.S. Supreme Court is unlikely to impose one state's gay marriages on the whole country, but if Bush wanted to be sure, he might have proposed an amendment saying, for instance, "Nothing in this Constitution requires any state or the federal government to recognize anything other than the union of one man and one woman as a marriage." In that or some other way, he might have transcended the all-or-nothing choice presented to him by religious conservatives. He might thereby have poured water on the fires of the culture war.

Instead he chose gasoline. If extremism means opting for the most extreme alternative available, Bush is objectively an extremist. The most important portion of his February 24 announcement was this sentence: "Furthermore, even if the Defense of Marriage Act is upheld, the law does not protect marriage within any state or city." Translation: Preventing federal courts from pre-empting the states is not enough. On not a single square inch of U.S. territory can even one same-sex marriage ever be allowed, even if all the people in the relevant jurisdiction want it and even if no other jurisdiction would be required to accept it. In a country with a three-century tradition that wisely leaves domestic law to states and localities, Bush's proposed amendment amounts to ruthless totalism: scorched earth.

Bush is by temperament no extremist, especially on cultural issues; and when he thinks his way through a problem and knows his own mind, he is unafraid of activists who demand their way or the highway. What remains is to guess that Bush caved in to extremism on same-sex marriage because he failed to engage. Increasingly he seems to make conventional choices within a political environment that he accepts as a given. The gay-marriage failure is the latest in a series of decisions suggesting political senescence.

What a pity if the imagination that once characterized Bush at his best is sputtering out, giving way to the politics of palliation and placation. What a shame to see the accidental radical become an accidental reactionary.

Copyright © 2004 National Journal. Reproduction in whole or in part requires prior written permission.

First published in National Journal, July 26, 2003. Copyright © 2003 National Journal.

AS MY 3-YEAR-OLD NIECE likes to say: Calm down, everyone! On June 26, in Lawrence v. Texas, the Supreme Court ruled state sodomy laws unconstitutional. Only a few days earlier, Canada had effectively legalized same-sex marriage, and there were rumblings that the Massachusetts Supreme Court might do the same in that state. So, when the U.S. Supreme Court planted itself on the side of gay rights, something like hysteria ensued in the conservative commentariat.

In an inflammatory dissent, Justice Antonin Scalia accused the Court of undercutting not just sodomy laws but all morals legislation, including the ban on same-sex marriage. The Family Research Council, a prominent anti-gay lobby, said that Lawrence would cover not only choice of sexual partner but "choice of marital partner as well."

Within a few days, conservatives were saying not just that same-sex marriage might happen but that it was practically a done deal. Gay marriage, wrote Ramesh Ponnuru in National Review, is "not quite inevitable." In the same magazine's online edition, Maggie Gallagher, a conservative columnist, gave notice of the apocalypse. "We are poised to lose the gay-marriage battle badly," she said. "It means losing the marriage debate. It means losing limited government. It means losing American civilization."

As Scalia said in his Lawrence dissent: Do not believe it.

I support gay marriage. It would be good for homosexuals, good for heterosexuals, and good for the institution of marriage -- especially as compared with the alternative, which is the proliferation of "marriage lite" arrangements. If I could wave a magic wand and summon same-sex marriage into existence, I would do it. But I do not have a magic wand, and neither does the Supreme Court. Herewith, a reality check.

- The Supreme Court has not undercut all morals legislation. All it said is that if a legislature wants to intrude in a fundamental way on a core right, lawmakers have to give at least one better reason than just, "Because we disapprove."

All laws are built on morality, and should be. Murder and rape are illegal because they are wrong. But murder and rape are illegal not only because they are wrong. They violate the rights of others and cause personal and social harm. By contrast, there are lots of things I could do that are immoral but not illegal.

Texas, in Lawrence, offered no plausible rationale for arresting gay people other than the fact that the Legislature disapproved of gay sex. Well, West Hollywood, a heavily gay jurisdiction, could not arrest people for having heterosexual intercourse merely because a majority of the city council disapproved of heterosexual intercourse.

Gambling, prostitution, and pornography are economic transactions, with all kinds of implications for neighborhoods and communities. Incest opens the door to sexual predation within families. Polygamy undermines marriage by leaving less-desirable men short of partners. These days, criminal laws based solely on moral disapprobation are few. Sodomy laws happen to be among them.

Limits on the government's power to ban anything that it happens to deem immoral are not new. They go all the way back to John Locke. There are many ways to express disapproval without threatening people with arrest. The Supreme Court merely told Texas to go find one of them.

- The Court did not create a sweeping new right to privacy or anything else. All it said was, if the law already gives you the right to have an abortion in a hospital, then it certainly gives you the right to have sex in your own home.

In the 1986 case of Bowers v. Hardwick, the Court famously said that any claim of a constitutional right to sodomy must be "facetious." But that ruling, inasmuch as it allowed the arrest of people just for having sex at home, was at odds with more than 20 years of precedent. In Griswold v. Connecticut (1965), the Court said that banning contraception violated "the right of marital privacy." In Eisenstadt v. Baird (1972), it extended the same privacy rights to unmarried people. By letting single people use contraception, the Court gave them a constitutional right to have non-procreative sex -- which is exactly what Texas arrested John Geddes Lawrence and Tyron Garner for doing. Roe v. Wade, legalizing abortion, extended the privacy right still further.

Note the Court's language in Lawrence: "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual" (italics added). Texas can restrict private conduct with a good reason, and it can unreasonably restrict conduct that isn't private. It just can't unreasonably restrict private conduct. The Court is not creating a new right; it is merely saying it wasn't kidding about an old one.

- The sodomy ruling won't lead to same-sex marriage. Despite what Scalia says, it's hard to see how it could.

The whole point of Lawrence is to curtail an unwarranted state intrusion into private conduct. You don't need a blood test and a government license to have sex at home. By contrast, the whole point of state-sanctioned marriage is that it is public. I can hold a private commitment ceremony without any fear of arrest, but of course what I won't have is a marriage license.

No doubt someone will bring a lawsuit demanding that the Supreme Court find a constitutional right for gay people, like straight people, to wed a partner of their choice. But this would not be a privacy suit. It would be an equal-protection suit, saying that states should not discriminate in the granting of marriage licenses.

Discrimination law is not like privacy law. Because gays are not what federal law calls a "suspect class," the government is perfectly free to discriminate against them if it has a "rational basis" for doing so. After Lawrence, a state can no longer cite the illegality of gay sex as its reason to forbid gay marriage. But the "rational basis" standard is a very permissive one -- almost any public-policy rationale will do -- and states will not be short of arguments as to why same-sex marriage does not serve the public interest.

Is it possible that a conservative Supreme Court might invade the inner sanctum of states' rights (marriage law has been within the states' purview since colonial times) in order to ram same-sex marriage down the throat of an unwilling public? Yes, and monkeys might fly out of my posterior.

In any case, a lawsuit challenging marriage-license discrimination would be decided on its own merits and under its own branch of the law. The sodomy case would have little or nothing to do with it.

- Massachusetts can't impose same-sex marriage on all of America. For that matter, neither can Canada.

No state is obliged to recognize any foreign marriage. The marriage of an 11-year-old Pakistani girl will cut no ice in Michigan. Nor is any state obliged to recognize out-of-state marriages.

It is true that the Constitution's "full faith and credit" clause requires states to recognize each other's laws and judgments. "However," notes Dale Carpenter, a constitutional law professor at the University of Minnesota, "the full faith and credit clause has never been interpreted to mean that every state must recognize every marriage performed in every other state. Every state reserves the right to refuse to recognize a marriage performed in another state if that marriage would violate the state's public policy."

This "public-policy exception" is well established. Another lawyer I consulted said, "I have not found a single case where a federal court has forced another state to recognize a marriage where the state asserts that said marriage would violate the public policy of the state." Moreover, he notes that many states have "evasion statutes" that forbid going out of state to enter into a marriage that would be prohibited in state. "None of these provisions," he said, "have been struck down under full faith and credit." Moreover, Congress has passed a federal law reiterating that no state need recognize an out-of-state gay marriage.

So, might a conservative Supreme Court overturn all of those precedents and laws and trample on states' rights in order to impose Massachusetts's same-sex marriages on 49 other states? See "monkeys flying out of my posterior," above.

Stirring up a gay-marriage panic serves the interests of activists who support a federal constitutional amendment banning same-sex marriage. But decisions made in a panic are seldom wise. With its federalist structure, the United States is uniquely positioned to settle gay marriage the right way: at the state level. Without either a national ban or a national mandate, each state is free to go its own way, acting as a distinct moral community. Domestic law is best left to the people who are, literally, closest to home.

Copyright © 2003 National Journal. Reproduction in whole or in part requires prior written permission.

Originally appeared June 29, 2002, in National Journal.

EVEN IF YOU BELIEVE, as I do, that the birth of the United States was the single best thing that ever happened to the human race, it is easy, in the procession of years, to become blas? about Independence Day. I suppose this year I will do what I usually do: snooze, sunbathe, shop, maybe brave the crowds to watch fireworks, or maybe not. But it will not be an ordinary Fourth of July. It will be like none before.

Life, it is true, has not changed much since the last Fourth of July, unless you happen to be waiting in the baggage line at Dulles International Airport. Even in Washington, where so much has changed, life is much as it was. "There seems little left of the 'new' post-September America," an article in The Economist recently observed.

Is that really so? Usefully, Karlyn Bowman of the American Enterprise Institute for Public Policy Research has assembled a wealth of polling data on post-9/11 America (you can find it by going to www.aei.org and clicking on "War on Terrorism"). The data suggest that there are many respects in which The Economist is right. The rally around the president persists, but the public's approval of Congress, an astonishing and charitable 84 percent in October (according to Gallup/CNN/USA Today), had deflated to a more earthbound 52 percent by June. Trust in the federal government, and belief that the government "is doing all it reasonably can do to try to prevent further terrorist attacks" (ABC News/Washington Post), have likewise floated back down from the stratosphere.

In the aftermath of the attacks last year, three-fourths of the public told Zogby International that they approved of random car searches, and 67 percent approved of random mail searches. By March, a majority had changed their minds, disapproving of both kinds of measures. In September, only 12 percent of respondents told Harris Interactive that they lacked confidence that the government would use expanded surveillance powers properly; by March, the doubting Thomases had doubled to 23 percent. I never thought I would live to see a majority of Americans saying that the media were doing an "excellent" job, but in September that is what they said (in a Pew Research Center poll). By April, that bubble, too, had burst. If Americans normally view powerful institutions with a cynical eye, then America is clearly getting back to normal.

Behavior has also largely reverted. Do you display the flag? The proportion saying yes (in Gallup/CNN/USA Today polls) fell from 82 percent in September to 68 percent in March. Do you pray more than usual? Three-fourths said yes in September, only 37 percent said so in March. Thank goodness, the percentage who reported crying as a result of September 11 fell from 70 percent to only 21 percent. The tears have dried.

And yet, for all that, people insist they are not the same. They are quite firm on that point. At least two polling firms have asked people whether their own lives have changed as a result of September 11, and both found 55 percent saying yes, not just once but consistently, in December, January, and March. Almost three-fourths said the change was for the better.

A skeptic might understandably look around and ask to see some evidence of all this improvement. After all, isn't Congress back to partisan bickering and the public back to shopping? The rejoinder is in the answer to this interesting follow-up question, which ABC and The Post put to respondents who said that 9/11 had changed their lives: "Have [the events of September 11] mainly changed the way you live your day-to-day life or mainly changed the way you feel about things?" In both December and March, respondents said, by about a 3-1 ratio, that what had changed was the way they felt.

What does that mean, exactly? What, if anything, does it amount to? I know of no applicable data and so turn to introspection. Although my own life goes on much as it did, I do not feel as I did on September 10 about myself, and I do not feel as I did about my country.

The largest change for me, after September 11, is that I no longer care so much how long I live. This attitude did not come in a revelatory flash or as a result of thoughtful analysis; quite suddenly, it was simply there. What it means is not that I have little regard for my life or would throw it away. I love living and would fight passionately, I hope, for the privilege. I would be very sorry and bitter to have been aboard one of the airplanes that crashed into the World Trade Center.

On the other hand, I would be very proud to have been on United Airlines Flight 93, whose passengers fought off the terrorists, crashed their plane, and quite possibly saved the Capitol or the White House. The last three or four minutes of those people's lives were more noble than the next three or four decades of my life are likely to be.

Whether I would have had the courage, in their place, to do what they did, I have no idea. What I no longer feel, however, is that it is important to die an old man. There is such a thing as nobility, and it is better to live a short and noble life than a long and ignoble or characterless one. The ancients and many Americans of earlier generations understood this, and I thought I understood it, too; but now I think I never fully grasped what nobility meant until I saw how the firefighters of September 11 marched unhesitatingly up the stairs to oblivion.

Although America has no aristocracy, it has nobility in abundance, nobility that walks among us every day in the streets. In November, Newsweek magazine quoted Osama bin Laden as telling a Pakistani journalist: "We love death. The U.S. loves life. That is the big difference between us." Well, it is certainly true that Americans love life. What bin Laden did not understand, however, is that many Americans will die willingly, so long as they die in the service of life. Living for life, as Americans do, is not at all the same thing as living merely to live, as bin Laden wrongly believed Americans do.

If others feel as I feel, and perhaps some do, then indeed the country has changed. Not changed in that all who were cowards before September 11 now are brave, or all who were base now are noble. Changed, rather, in that millions of people have taken stock and chosen to be resolute, even at considerable personal cost. Millions, in that sense, have enlisted.

I would like to mention one quite particular and personal respect in which my feelings about the country have changed. As in no national emergency ever before in American history, open homosexuals were participants in the events of September 11. We participated as victims, of course (a co-pilot and several passengers aboard the ill-fated planes, for example, were gay); and we also participated as heroes. The Rev. Mychal Judge, the New York City Fire Department's beloved chaplain, died in the World Trade Center's north tower soon after administering last rites to a firefighter. Mark Bingham, an openly gay passenger, is thought to have been among the leaders in the reconquest of Flight 93.

In the days and weeks that followed 9/11, mainstream Americans never for a moment begrudged homosexuals their place in the narrative. This was something new. When the Rev. Jerry Falwell blamed, among others, "the gays and the lesbians who are actively trying to make that an alternative lifestyle" for "mak[ing] God mad" and helping bring about the 9/11 attacks, and when the Rev. Pat Robertson concurred, there was no debate about whether they had a point, not even among cultural conservatives. There was merely revulsion. All at once, it was Mychal Judge and Mark Bingham who were in the mainstream, and Jerry Falwell and Pat Robertson who were at odds with core American values.

That is not to deny that many Americans are uncomfortable with homosexuality. It is to affirm that they are much more uncomfortable with intolerance. In the social order that America's militant Islamic enemies would impose, my partner Michael and I would probably not be suffered to live, except perhaps as liars and fugitives. In that sense, this war is not being fought for an abstraction. It is being fought for me. It is being fought for the right of homosexuals to pursue happiness in the only way possible for us. The fact that many of the American fighters do not approve of homosexuality only redoubles my admiration for their sacrifice.

On this Fourth of July, wherever I am and whatever else I may be doing, I will be giving those fighters my thanks. Never have I been as proud of my country and my fellow citizens as I have been since September 11. On no prior Independence Day have I so well understood, and so keenly felt, my debt to the men who, in 1776, risked everything for what they called certain unalienable rights. They pledged their lives, their fortunes, and their sacred honor to the defense of life, liberty, and the pursuit of happiness; and so again, today, do their 285 million descendants; and so do I.

Copyright � 2002 National Journal.

Originally appeared in the May 2002 edition of The Atlantic Monthly.

LAST YEAR the Census Bureau reported a statistic that deserved wider notice than it received: during the 1990s the number of unmarried-partner households in the United States increased by 72 percent. Cohabitation has actually been on the rise for decades, but it started from a small base. Now the numbers (more than five million cohabiting couples) are beginning to look impressive.

Marriage, meanwhile, is headed in the other direction. The annual number of weddings per 1,000 eligible women fell by more than a third from 1970 to 1996. A lot of factors are at work here - for example, people are marrying later - but it seems clear that one of them is the rise in cohabitation. Couples are simply more willing to live together without tying the knot.

Whether this is a bad thing is a contentious question, but it is almost certainly not a good thing. Cohabitation tends to be both less stable and less happy than marriage, and this appears to be true even after accounting for the possibility that the cohabiting type of person may often be different from the marrying type. Research suggests that marriage itself brings something beneficial to the table. Add the fact that a growing share of cohabiting households - now more than a third of them - contain children, and it is hard to be enthusiastic about the trend.

Whom to blame? In part, homosexual couples like me and my partner. Cohabitation used to be stigmatized. "Living in sin" it has been called in recent memory, even among the educated classes. Today cohabitation is often viewed as a different-but-equal alternative to wedlock. Although the drift toward cohabitation would no doubt have happened anyway, the growing visibility and acceptance of same-sex couples probably speeded the change. As one gay activist told the Los Angeles Times last year, "Just the term 'unmarried partner' gave it a dignity and social category."

So (conservatives say) it's true! Homosexuals undermine marriage! To the contrary. The culprit is not the presence of same-sex couples; it is the absence of same-sex marriage.

The emergence into the open of same-sex relationships is an irreversible fact in this country. Traditionalists may not like it, but they cannot change it, so they will have to decide how to deal with it. The far right's plan - try to push homosexuals back into the closet - is not going to work; the majority of Americans are too openhearted for that. Indeed, the currents of public opinion are running the other way. An annual survey of college freshmen found that last year 58 percent - a record high, and up from 51 percent in 1997 - thought that same-sex couples should be able to marry.

Seeing those numbers and others like them, conservatives are desperate to stave off same-sex marriage. For that matter, many moderates remain queasy about legalizing gay marriage; they are sympathetic to homosexuals, but not that sympathetic. Liberation-minded leftists, who spent the 1970s telling us that our parents' marriages were outdated and stuffy, were never crazy about matrimony to begin with. As for gays, the vast majority want the right to marry, but most agree that domestic-partner benefits and other "marriage-lite" arrangements are a lot better than nothing.

The result is the ABM Pact: Anything But Marriage. Enroll same-sex partners in the company health plan, give them some of the legal prerogatives of spousehood, attend their commitment ceremonies, let them register at city hall as partners - just DON'T CALL IT MARRIAGE. In America, and in Europe, too, ABM is rapidly establishing itself as the compromise of choice. Gay partnerships get some social and legal recognition, marriage remains the union of man and woman, and everybody moves on. A shrewd social bargain, no?

No. The last thing supporters of marriage should be doing is setting up an assortment of alternatives, but that is exactly what the ABM Pact does, and not only for gays. Every year more companies and governments (at the state and local level) grant marriagelike benefits to cohabiting partners: "concessions fought for and won mostly by gay groups," as the Los Angeles Times notes, "but enjoyed as well by the much larger population of heterosexual unmarried couples." To which might be added what I think of as the Will & Grace effect: homosexuals are here, we're queer, and nowadays we're kind of cool. ABM, perversely, turns one of the country's more culturally visible minorities into an advertisement for just how cool and successful life outside of wedlock can be.

I doubt that most homosexuals would take their marital vows less seriously than heterosexuals do, as some conservatives insist. Even if I'm wrong, however, surely the exemplary power of failed or unfaithful gay marriages would pale next to the example currently being set by a whole group - an increasingly fashionable group - among whom love and romance and sex and commitment flourish entirely outside of marriage. And can you imagine social conservatives telling any other group to cohabit rather than marry? Can you imagine them saying, "The young men of America's inner cities won't take marriage as seriously as they should, so let's encourage them to shack up with their girlfriends"?

Those who worry about the example gays would set by marrying should be much more worried about the example gays are already setting by not marrying. In getting this backward the advocates of ABM make a mistake that is both ironic and sad. At a time when marriage needs all the support and participation it can get, homosexuals are pleading to move beyond cohabitation. We want the licenses, the vows, the rings, the honeymoons, the anniversaries, the benefits, and, yes, the responsibilities and the routines. And who is telling us to just shack up instead? Self-styled friends of matrimony. Someday conservatives will look back and wonder why they undermined marriage in an effort to keep homosexuals out.

First published August 10, 2001, in National Review Online.

HATS OFF to Stanley Kurtz for one of the most thoughtful conservative treatments yet of gay marriage ("Love and Marriage" and The Right Balance). Kurtz has advanced the argument on both the social-policy and the constitutional side of the issue. Let me see if I can advance it further still, starting with his argument that sex difference lies at the core of successful marriage.

I've argued that marriage will have many of the same domesticating and healthful effects on homosexuals as on heterosexuals. Kurtz argues, by contrast, that it is women, not marriage, that domesticate men. Traditional marriage, in this view, is a male-female bargain: The man exchanges promiscuity for security and a stable love life. Male-male spouses, however, will continue to be promiscuous within marriage. This will weaken marriage itself. "A world of same-sex marriages is a world of no-strings heterosexual hookups and 50 percent divorce rates." Indeed, "our increased tolerance for homosexuality" is already part and parcel of "the weakening of marriage."

There are some important cavils with this line of thinking, the most obvious being (1) that it offers no argument against same-sex marriage for lesbians, (2) that America is already "a world of no-strings heterosexual hookups and 50 percent divorce rates" and has been for years, and (3) that "tolerance for homosexuality" is at most a trivial cause of marriage's problems compared with such factors as liberalized divorce laws, women's increased economic independence, the spread of contraception, the decline of the shotgun wedding, and the cultural changes of the 1960s and 1970s. Still, Kurtz's argument goes deeper and deserves a deeper reply.

I think he's right that women (and children) domesticate lusty men. That's why everyone is so happy when the town bully takes a bride. But - a crucial point - women and children are not the only things that domesticate men. Marriage itself also does so. The reason is that marriage is not a piece of paper ratifying a pre-existing relationship. It is a caregiving contract that two people make not just with each other but with society, and it's enforced with a whole bundle of rituals and expectations, from public gestures like weddings and rings and anniversary banquets to in-laws and shared finances and joint party invitations addressed to both spouses. Far from being a rubber stamp, marriage is a culture that actively binds people together.

Will extending this culture to homosexuals damage it by ratifying rampant promiscuity, or strengthen it by affirming and extending its reach? This is a question that can only be answered empirically, which is why gay marriage should be tried in a few states (see below). But we do have quite a bit of suggestive evidence, in the form of existing homosexual unions of the all-but-married sort. Of the ones I know, I can't think of any that don't aspire to aspire to fidelity and lifetime commitment, even without a woman in the house. More important, when they fail in this aspiration, they do so in private, so as not to embarrass each other or their friends and family, who accept and respect their partnership. That's all we ask of straights.

In the real world, some married heterosexuals play around a lot (even if they're president), some play around not at all, and some play around a little and get over it. All, however, are allowed to marry. It might be true that on average male-male pairs will be less faithful than male-female ones, who in turn will probably be less faithful on average than female-female ones. But if the question is whether gay marriage should be legal, rather than exactly what any given marriage looks like, those are the wrong averages to look at. Here are the right ones: The average married homosexual man will almost certainly be much less wanton than the average unmarried homosexual man. And I think it's pretty likely that even the average unmarried homosexual man will be significantly less wanton in a gay culture where marriage is expected than in a one where marriage is illegal.

Really, truly, if I thought that homosexuals would treat marriage like an orgy and inspire millions of heterosexuals to do the same, I'd say we're not ready for the privilege. But I don't think that's remotely likely; Vermont isn't full of orgies posing as civil unions. And it's at least as plausible that gay marriage will strengthen marriage as weaken it. When homosexual couples can legally commit to each other for a lifetime, they, too, will be able to say to each other: "If you really care about me, as opposed to just wanting to have sex with me, you'll marry me." Many, probably most, homosexual men want to get off the market and settle down, but it's hard to sort out the serious partners if marriage isn't an option. Allow gays to marry, you don't wreck proper courtship - you allow it to begin. I'm not saying that male-male or female-female courtship is identical to male-female courtship (not that any two are alike anyway). But it doesn't need to be. It only needs to work better than, "If you really care about me, you'll move in with me."

When I started to understand I was gay, a particularly bitter realization was that, whatever the future might hold for me, it would not hold marriage. A life without the possibility of marriage is a deprivation so severe that most heterosexuals can't even imagine it. If I'm right, same-sex marriage will give stability and care and comfort to millions of homosexuals at little or no cost to anyone else. If I'm wrong, it's not a good idea. The only way to find out is to try and see, which is why I favor a federalist approach that lets some state experiment with same-sex marriage when it feels the time and circumstances are right.

In his second article, Kurtz argues that my federalist approach is a daydream. For one thing, the courts might not go along with it. Kurtz is certainly right that the constitutionality of the Defense of Marriage Act, which says that no state need recognize any other's same-sex marriage, will be challenged in the courts. Everything is challenged in the courts. I'm confident that the courts will uphold the act; I just can't see this or any foreseeable Supreme Court imposing gay marriage nationally by fiat. But, of course, there's no telling what courts may do. The answer is obvious: Write DOMA into the Constitution. An amendment saying, "Nothing in this Constitution shall require any state to recognize as a marriage any union but that of one man and one woman," does the trick. End of problem.

Such an amendment would be much less controversial, and much easier to pass, than the one that the would-be amenders have actually proposed, which bans gay marriage altogether. Why the "not one inch" position, which says that same-sex marriage must never be allowed on even one square inch of U.S. soil, regardless of what the people of any state want? Because, says Kurtz, even if states are not required by the courts to recognize other states' gay marriages, they will be driven to do so by practicalities.

Now, hold on there. It's true that having only a few states recognize gay marriage would lead to confusions and legal tangles. This, however, is what's known as federalism. In other contexts - tax law, corporate charters, environmental rules - we live with confusingly disparate state laws routinely, as any attorney for a national bank will be quick to confirm. It's a hassle, but the benefit is enormous: the ability to experiment with different policies and to let local people create a social and legal climate that suits them (or move to a state where they'll be happier).

My guess is that, after an initial period of confusion, states and the courts would fairly quickly develop workable rules for gay marriage. For instance, a state that had a partnership program might automatically include any resident gay couple with an out-of-state marriage licenses. States that firmly object to same-sex unions, by contrast, will simply tell those couples, "Sorry, you're not officially married here. If you want to be officially married, stay there. Here, you need to write a will." This doesn't seem "next to impossible." It doesn't even seem very difficult. Compared to the headaches of interstate banking laws, it's a piece of cake.

And what's the alternative? National culture war. Support for gay marriage, now at 35 percent, is likely to grow over time, and the argument is passionate. Kurtz's insistence on "all or nothing" risks turning same-sex marriage into the next abortion issue, in which the stakes are so high - national imposition of gay marriage versus national abolition - that extremism runs riot on both sides. And what if Kurtz et al. gamble on all-or-nothing and lose? What if they refuse to try federalism and they fail to pass their constitutional ban and the courts actually do rule that all states must recognize one state's same-sex marriages? Then their rejection of federalism will have brought about exactly the nightmare they feared. If that happens, don't blame us homosexuals for polarizing the argument and "ramming homosexual marriage down the country's throat."

Believe me, Mr. Kurtz: Federalism is the solution, not the problem. At the very least, it should be given a chance. Isn't that what conservatives always tell liberals?

Thanks to Stanley Kurtz for another provocative and richly argued article. Shall we drill a little deeper? If I read him correctly, his argument boils down to something like this:

1. Marriage is rooted essentially in "the underlying dynamic of male-female sexuality." Nothing else can sustain marriage.
2. As a result, it is simply impossible for same-sex (especially male-male) couples to be good marital citizens. They may get married, but they won't act married, and society won't treat them as married.
3. Because homosexuals will do a bad job of "exemplifying modern marriage for the nation" and marriage is in bad enough shape already, homosexuals should not be allowed to marry.
4. Allowing same-sex marriage anywhere in America at any time is effectively the same as mandating it everywhere forever. So same-sex marriage must never be tried anywhere, ever.

Or, to put it a bit coarsely: "I don't believe homosexuals can handle marriage responsibly. And they should never be allowed a chance to prove me wrong. Sorry, gay people, but that's life."

Kurtzism, as I'll take the liberty of calling this approach, gets four things wrong. It misanalyzes marriage. It misunderstands homosexuality. It sits crosswise with liberalism. And it traduces federalism. Other than that, no problem.

Start with Proposition 1. Kurtz argues that, whatever else marriage is about, ultimately and indispensably it's about "the underlying dynamic of male-female sexuality." I'm not sure exactly what this means beyond saying that marriage must be between a man and a woman, so I'm not sure how to address it specifically. Here is what I think marriage is indispensably about: the commitment to care for another person, for better or worse, in sickness and in health, till death do you part.

A marriage can and often does flourish long after the passion has faded, long after the children have gone, and (yes) long after infidelity; it can flourish without children and even without sex. A marriage is a real marriage as long as the spouses continue to affirm that caring for and supporting and comforting each other is the most important task in their lives. A golden anniversary is not a great event because both spouses have held up their end of a "dynamic of male-female sexuality" but because 50 years of devotion is just about the noblest thing that human beings can achieve.

I can't prove I'm right and Kurtz is wrong. But I think my view is much closer to what people actually think their marriages are fundamentally about, and also, by the way, to what marriage should be fundamentally about. Most married people I know regard themselves as more or less equal partners in an intricate relationship whose essential ingredient is the lifelong caregiving contract. Obviously, they'd agree that male-female sexual dynamics play an important role in their marriage; but then, they're male-female couples, so they would say that. If you told them that marriage is fundamentally about (in Kurtz's words) "a man's responsibilities to a woman," rather than a person's responsibilities to a person, they'd look at you funny.

Why is Kurtz so reluctant to put commitment instead of sex roles at the center of marriage? Because, I suspect, he knows homosexuals can form commitments. To cut off this pass, he claims that in practice homosexuals too often won't form commitments (Proposition 2). Same-sex couples, or in any case male same-sex couples, won't act married, and society won't be bothered if they don't, so marriage will become a hollow shell.

I've explained why I believe that a world where everyone, straight and gay, can grow up aspiring to marry will be a world where gays and straights and marriage are all better off. Kurtz has explained why he thinks otherwise. All of that is well and good, but it only gets us so far, because the key questions are all empirical. How would married gay couples behave? How would married heterosexuals react? Unfortunately, we have no direct evidence. One can say that in Vermont, which has a civil-union law, "the institution of marriage has not collapsed," as the governor recently said. One can say that gay men (no one seems worried about lesbians not taking marriage seriously) represent probably 3 percent of the population, and that it seems a stretch to insist that the 97 percent will emulate the 3 percent. But none of that proves anything. Absent some actual experience with same-sex marriage, everything is conjecture.

Still, I think Kurtz's conjecture is based on a view of homosexuality that is both misguided and at least unintentionally demeaning. His article contains this arresting phrase: "As the ultimate symbol of the detachment of sexuality from reproduction, homosexuality embodies the sixties ethos of sexual self-fulfillment." So there you are. My relationship with my partner Michael is about "sexual self-fulfillment," because, I guess, we can't have children. Let me gently but passionately say to Kurtz that this is an affront. It implies that a straight man's life partner is his wife, while a gay man's life partner is just his squeeze. Let me also gently but firmly instruct Kurtz on a point that I and other homosexuals are in a position to know something about. Our partners are not walking dildos and vibrators. Our partners are our companions, our soulmates, our loves.

I'm not familiar with the Stiers book he cites and I couldn't get it on deadline, so I can't comment on it. I can say, though, that I wouldn't be the least surprised if right now, in 2001, grown gay men and women often regard marriage as a novelty or a convenient benefits package. What does Kurtz expect? These are people who grew up knowing they could never marry, who have structured their whole lives outside of marriage, and who have of necessity built their relationships as alternatives to marriage.

I don't expect that homosexuals will all flock to the altar the day after marriage is legalized. You don't take a culture that has been defined forever by exclusion from marriage and expect it to change overnight. I do think that, a few years after legalization, we'll see something new: A whole generation of homosexuals growing up knowing that they can marry, seeing successfully married gay couples out and about, and often being encouraged to marry by their parents and mentors. Making the closet culture the exception rather than the rule for young gay people was the work of one or maybe two generations. The shift to a normative marriage culture may happen just as fast.

I know, I know. Kurtz will simply insist that real, committed marriage will never be normative for homosexuals; gays just don't have that "dynamic of male-female sexuality" thing. Unfortunately, I don't think I can persuade him by telling him about all the gay people I know who have committed their enduring love and care to each other. I doubt I could persuade him even by telling him about all the men I know who have fed and comforted and carried their dying partners, and covered their partners with their bodies to keep them warm, and held their hands at the end and then sobbed and sobbed. Who is more fit to marry, the homosexual who comes home every night to wipe the vomit from the chin of his wasting partner, or the heterosexual who serves his first wife with divorce papers while she is in the hospital with cancer so that he can get on with marrying his second wife? Alas, I think I know what Kurtz would say.

Kurtz cites figures on gay men's fidelity and attitudes toward monogamy. There are lots of problems with these kinds of numbers, but the more interesting question is: Just what does Kurtz think this kind of data proves? Exactly how monogamous do homosexuals have to be in order to earn the right to marry? I'd have thought that being better than 80 percent faithful would be pretty darn good. Would 90 percent satisfy him? Maybe 98.2 percent? And if a group's average fidelity is the qualification for marriage, shouldn't Kurtz let lesbians marry right now? And why are homosexuals the only class of people who are not allowed to marry until they prove, in advance, that they'll be good marital citizens? Last time I checked, heterosexual men were allowed to take a fifth wife, no questions asked, even if they beat their first, abandoned their second, cheated on their third, and attended orgies with their fourth.

For centuries, homosexuals have been barred from marrying and even from having open relationships. The message has been: Furtive, underground sex is all homosexuals deserve. And now Kurtz is insisting (Proposition 3) that homosexuals can't wed because we're not as sexually well-behaved as married heterosexuals? While also insisting that, no matter how badly heterosexuals behave, their right to marry will go unquestioned? Really, the gall!

Forgive my ill temper on that point. I understand that, to Kurtz and many other Americans, same-sex marriage seems a radical concept, an abuse of the term "marriage." What I think Kurtz and too many other opponents of gay marriage fail to appreciate is the radicalism of telling millions of Americans that they can never marry anybody they love. To be prohibited from taking a spouse is not a minor inconvenience. It is a lacerating deprivation. Marriage, probably more even than voting and owning property and having children, is the core element of aspiration to the good life. Kurtz would deprive all homosexuals of any shot at it lest some of them set a poor example. I think this is both inhumane and cuts against liberalism's core principle, which is that people are to be treated ends in themselves, not as means to some utilitarian social end. I am grateful to Kurtz for leaving the door open to domestic-partnership programs as a consolation prize; this is a good-hearted gesture, and I accept it as such. But surely he recognizes that domestic partnership is no substitute for matrimony. Surely, indeed, that is his point in offering it.

Same-sex marriage is too important to be approached thoughtlessly. I'm glad that Kurtz is thinking as strenuously about the possible downsides as I am about the possible upsides. Where he veers toward something like extremism is in his demand that homosexuals be denied any chance to prove his conjectures wrong (Proposition 4). "There is no such thing as an experiment in gay marriage," he says. "Rauch seems to think that if his cost-free portrait of gay marriage turns out to be mistaken, we can simply call off the experiment. But by then it will surely be too late. Such effects take years to play out, decades more to measure, and even when measured, agreement on the meaning of such data is nearly impossible to achieve."

But pretty nearly all major social-policy reforms play out over years and decades, and agreement on how to measure the results is never complete; Kurtz might just as well say that no state should be allowed to try welfare reform or charter schools or a "living wage" because the effects take years to play out, decades to measure, etc. The whole point of federalism is to allow states to try reforms that might not work, and to allow states' voters not me or Stanley Kurtz to decide for themselves what counts as working. In rejecting this principle root and branch, Kurtz emerges as a radical enemy not just of same-sex marriage but of federalism itself.

I don't have much new to say about his peculiar claim that, once any state adopts same-sex marriage, every other state will have to follow, because Kurtz doesn't have anything new to say defending it. He simply re-asserts it. "Imagine a married couple, where one spouse is hospitalized after a car accident in another state, losing visiting rights or the right to make medical decisions, because their marriage isn't recognized in that state," he says, as if the situation is obviously untenable. OK, I've imagined it. That kind of arrangement would be perfectly manageable. Gay spouses in a state with same-sex marriage would understand that they will need a medical power of attorney that's valid out-of-state. None of these complexities is remotely thorny enough to force any state to recognize same-sex marriage against its will. It seems to me that what Kurtz really fears is that one state will adopt same-sex marriage and others will look at it and say, "Actually, that doesn't seem so bad pretty good, even. We don't mind recognizing it even if we don't adopt it ourselves." What he really fears, in other words, is not a disastrous state experiment but a successful one.

Again Kurtz asserts that federal judges will high-handedly impose one state's same-sex marriages on all the others. Again I say that there is just as he says plenty of room in the law for determined judges to decide this legal issue either way, but that any sane Supreme Court will be determined not to impose same-sex marriage on an unwilling nation. And if undemocratic judicial fiat is what worries Kurtz, why does he greet with silence my suggestion that a simple constitutional amendment far easier to pass than the one he supports would solve the problem?

But all of this stuff about states' being "forced" to accept same-sex marriage is a red herring. Kurtz makes it clear that he is no happier if a state adopts same-sex marriage by legislation or plebiscite than by judicial fiat. His proposed constitutional amendment accordingly strips states, and not just judges, of the power to permit same-sex marriage, even if everybody in some state wants to try it. What I suspect Kurtz really knows and fears is that as more homosexuals form devoted and visible unions, and as more of the public accepts and honors those unions, same-sex marriage will seem ever less strange and radical, and ever more in harmony with Americans' core values which it is. Although he fears that same-sex marriage will come to pass over the public's objections, he fears even more that it will come to pass with the public's assent.

I read Stanley Kurtz's latest contribution to our gay-marriage discussion several times, and I came away concluding that his position really does, as I said last time, essentially boil down to: "I don't believe homosexuals can handle marriage responsibly. And they should never be allowed a chance to prove me wrong. Sorry, gay people, but that's life."

Although I do think it's wrong to demand that homosexuals who want to marry prove they'll meet sexual-behavior standards that are never applied to heterosexuals, I don't believe that homosexuals have an absolute right to marriage, and I've been careful, pace Kurtz, not to rest my case on rights. (When I talk casually about, for example, "denying homosexuals the right to marry," I mean 'right' only in the weaker sense of statutory entitlement.) If I thought that legalizing same-sex marriage would destroy or seriously damage marriage for everyone, then I would oppose same-sex marriage as a self-defeating entitlement. My argument is one about presumption. If there is significant doubt about the effects of same-sex marriage and of course neither Kurtz nor I nor anybody else really knows what would happen, and in truth many good and bad and indifferent things would happen then the presumption ought to be that everyone should have a chance to participate in society's most important civic institution. At a bare minimum, if the claim is that homosexuals will wreck marriage, we should not be forever denied any hope of showing that we won't wreck marriage.

It means a lot to me to hear Kurtz say that there is an "inescapable element of tragedy" in having to deny marriage to homosexuals in order to preserve it for everybody else. Many conservatives, probably almost all until very recently, have viewed gay lives and loves as a more or less inconsequential factor in the debate over gay marriage. Their attitude has been, "Why do these homosexuals insist on wrecking marriage? Why don't they just go away and leave well enough alone? So what if they can't marry? Pass the potato chips." Kurtz will have none of that. I thank him.

But "so sorry" only gets Kurtz so far if the tragedy is of his own making. If he really believes that denying marriage to homosexuals is tragic, he should seek to avoid rather than perpetuate the tragedy. If there is any reasonable possibility that the alleged tragic trade-off between gay and straight marriage is imaginary that same-sex and opposite-sex marriage could happily coexist he should look for and embrace a reasonable option that could test that possibility. One such option is to let our federalist system run its course, letting individual states try same-sex marriage if and when they please. Then we'll see what happens. Yet it is Kurtz who seeks to foreclose this option, with a constitutional amendment banning same-sex marriage. He would thus rule tragedy into being: tragedy in the form of perpetual homosexual alienation from the social institution that's most important for a happy and healthy life. For all that I appreciate Kurtz's stated solicitousness of gay lives and loves and believe me, I do it may be that the old-fashioned conservative "We don't care" was in some ways more honest.

How would we know if gay marriage works? Kurtz charges that it would be very hard ever to persuade me that a state gay-marriage experiment failed, and that I "will clearly oppose a rollback, on principle, anytime before the next 50 years." Here, I think, Kurtz again misapprehends federalist (and democratic) principle. The question isn't what Jonathan Rauch or Stanley Kurtz or any other pointy-head thinks of a state's experience with gay marriage; the question is what the people of that state and of other states think. The whole point of a federalist approach is that it lets the voters of the states decide what sort of arrangement counts as a social-policy success. I will accept their judgment. Why won't he?

Well, on that subject I think Kurtz and I have reached the point of repeating ourselves. Anyway, I've reached that point. So I'll leave the arguments before the reader and pass on to a couple of other threads. Kurtz says that I'm at the conservative end of the gay intelligentsia on marriage, and that a lot of gay radicals and intellectuals think I'm wrong. That's certainly true, but I don't see why it's important. Gay radicals and intellectuals think all sorts of things but are no more likely than anyone else to be right; it's the argument and evidence, not the source, that counts. I think the gay left-winger who says gay matrimony will undermine the norms of marriage is just as wrong as the conservative right-winger who says it. What else can I say?

In any case, the gay intelligentsia are all over the map on marriage. Not long ago, in an article in Reason magazine, I dissected a book by Michael Warner, a prominent and very smart gay radical who argues that sexual norms of any kind are oppressive. He loathes the idea of same-sex marriage precisely because "the effect would be to reinforce the material privileges and cultural normativity of marriage," which would reduce the amount of sexual experimentation going on, which he thinks would be awful. As I'm sure Kurtz knows, there are a lot of gay radicals who share Warner's fear that marriage will change gay culture in appallingly bourgeois ways. Does that show I'm right? Really, I don't think brandishing gay intellectuals gets us anywhere.

It may be more productive to focus on an odd convergence of interests between the world's Michael Warners and Stanley Kurtzes. Warner and his ilk dislike gay marriage, but they can't be against it because they think homosexuals should have equal rights, including the right to marry. So how do they get out of this box? By arguing for a multiplicity of alternatives to marriage, thus eroding marriage's unique prestige.

Don't get me wrong; if I can't get gay marriage, I'll reluctantly take partnership programs, which would do at least something to recognize and nourish stable gay relationships. But from a social point of view, a partnership program indeed, anything that competes with marriage is a poor second choice. Most gay-marriage opponents just say, "Fine, then homosexuals should get nothing." But a few more compassionate and far-sighted opponents people like Kurtz understand that telling homosexuals to go fly a kite is not an option. Americans really believe in the Golden Rule, equal opportunity to pursue happiness, and all that. They're going to want to do something for homosexuals, a desire that will increase as more sons and daughters and siblings and friends come out.

Something really new, without historical precedent, is happening in America. Today, for the first time, a majority is coming to realize that homosexuals actually exist: that we're not just heterosexuals who need treatment or jail. This realization will, must, and should drive change in a society whose institutions are premised on the notion that homosexuals do not actually exist. The question is whether marriage or something else should be the template. If there's one social regularity I can think of, it's that marriage the commitment to care for another person for life has good effects on human populations, and that its denial has bad effects, and that the alternatives are worse. But if Kurtz absolutely cannot accept that this might be true in the case of same-sex unions, then he had better start planning for a nation full of Vermonts, with all kinds of sort-of-marriage programs.

Note that, once partnership programs are set up, heterosexuals who don't want to get married invariably clamor to get in. "How come only the gays get this? No special rights!" As of 1998, all three of the states and all but a handful of the municipalities that offered domestic-partner programs for their workers included opposite-sex couples; so did the large majority of corporate programs. I grant that to some extent "marriage lite" will spread anyway, because some states that bar gay marriage will offer alternatives. But a constitutional ban on gay marriage will force all states that want to do anything for homosexuals to create alternatives to marriage. Employers, too, will create multifarious partnership programs that would be unnecessary if homosexuals could just get married. Is all this good for marriage? Kurtz worries about "the dissolution of marriage and its replacement by an infinitely flexible series of relationship contracts." But that is exactly what he guarantees by withholding the template of marriage!

Polygamy, which rears its ugly head in Kurtz's last paragraph and in his argument against Andrew Sullivan, merits a discussion of its own; here, just a few words. On grounds of both equality and social policy, gay marriage is completely consonant with liberal principles, and polygamy just as completely isn't and the distinction is not hard to understand and sustain. Homosexuals are not asking for the legal right to marry anybody or everybody we love. We are asking for precisely and only the same legal right that heterosexuals enjoy, namely the right to marry somebody we love: one person, as opposed to no one at all. Liberalism holds that similarly situated people should be similarly treated by law. Americans increasingly understand that a gay man who is allowed to marry a woman is not situated similarly to a straight man who is allowed to marry a woman. Nor is a gay man who wants to marry a man situated similarly to a straight man who wants to marry three women or a man who wants to marry his dog or his Volkswagen; he is situated similarly to a heterosexual man who wants to marry one woman. Saying that gay marriage leads to polygamy is no more logically coherent than saying that if blacks (say) demand and are given one vote, whites (say) will inevitably demand and be given two.

Moreover, a liberal regime has a strong social-policy interest in making marriage universal. There's a reason why no polygamous countries are liberal: if some men usually high-status men get multiple wives, then by definition other men usually low-status men get no wives. The result is a restless and destabilizing sexual underclass that must be subdued by some form of repression. Not coincidentally, gay culture, in its own way, for many years had some characteristics of a restless and destabilizing sexual underclass, and it was subdued to some extent by repression. That all began to change when open gay relationships started becoming socially acceptable. Gay marriage is, obviously, completely consonant with liberal aspirations to make marriage something that everyone can aspire to. In fact, it fulfills those aspirations.

First published July 27, 2001 in the Wall Street Journal.

THE OTHER DAY I ATTENDED what seemed an unusually disingenuous press conference, even by Washington's standards. The event was the unveiling, by a coalition of church and community groups called the Alliance for Marriage, of a proposed 28th Amendment to the Constitution. The "Federal Marriage Amendment" was soon to be introduced in Congress, the alliance announced. National Review (on the cover), a conservative bellwether, had already endorsed it.

What, exactly, would the amendment do? Speaker after speaker affirmed that its only effect would be to stop unelected judges from ramming homosexual marriage down the throats of an unwilling public. The intent was merely to require proponents of homosexual marriage to "go through the democratic process" rather than the courts. This seemed odd, because in full view, on an easel next to the podium, was displayed the text of the amendment, whose operative sentence read: "Marriage in the United States shall consist only of the union of a man and a woman."

You didn't have to be James Madison to see that the proposed amendment strips power not from judges but from states. For centuries, since colonial times, family law, including the power to set the terms and conditions of marriage, has been reserved to the states, presumably because this most domestic and intimate sphere is best overseen by institutions that are close to home. The marriage amendment would withdraw from states the power to permit same-sex marriage even if 100 percent of the voters and legislators of some state wanted to allow it.

One reason to revoke such a core state power might be to prevent a single state from effectively adopting same-sex marriage for the whole country. In 1996, however, Congress and President Clinton foreclosed that possibility by enacting the Defense of Marriage Act, which holds that no state need recognize a same-sex marriage performed or sanctioned in any other state. Meanwhile, three dozen states have legislatively passed pre-emptive bans on same-sex marriage. The country is thus almost 75 percent of the way to a national ban.

Under those circumstances, there can be only one reason for a constitutional amendment putting gay marriage out of the reach of not just state judges but of states. The sponsors must be worried that eventually some state's legislators or voters, acting in the old-fashioned democratic way, will decide that same-sex marriage suits their state's temperament or helps solve their state's problems.

That conservatives would contemplate so striking a repudiation of federalism is a sign of the panic that same-sex marriage inspires on the right. As people usually do when they act in a panic, conservatives are making a mistake. Even if you don't believe, as I do, that same-sex marriage is good because it is just and humane, the attempt to pre-empt federalism is bad policy from a conservative point of view.

For there is a compelling and deeply conservative case for thinking that homosexual marriage, far from being the end of civilization as we know it, would be a win-win-win proposition: good for homosexuals, good for heterosexuals, and good for marriage itself. The reason is one that conservatives have long understood: Love and marriage go together. Marriage transmutes love into commitment. Love is often fleeting and crazy-making. Marriage is lasting and stabilizing. For all the troubles that divorce, fatherlessness and illegitimacy have brought, marriage remains far and away the most durable bond that two caring people can forge.

Though some homosexuals have children, even childless homosexuals - in fact, especially childless homosexuals - need and benefit from the care of, and promise to care for, another, till death do you part. Society stands to benefit when all people, including gay people, have this care and make this commitment.

Before rushing to ban same-sex marriage, conservatives ought to remember that the real-world alternative is not the status quo or the status quo minus 30 years. Same-sex unions, however viewed by law, are real and increasingly honored by the growing number of Americans who have gay friends and family members. I take my partner, Michael, to the company Christmas party every year, and my colleagues treat him as my spouse. Because governments, businesses, religions and ordinary people are increasingly supportive of these unions, the likely result of a national ban on same-sex marriage would be the profusion of partnership programs and other versions of "marriage lite" - many of which, majoritarian politics being what it is, will inevitably be opened to heterosexuals as well as homosexuals.

Some left-wing gay activists favor the establishment of diverse alternatives to marriage as a way to weaken the real thing, which they regard as rigid and oppressive. It is odd for conservatives to try to help them. Marriage, like voting and property ownership and other encompassing civic institutions, is strongest when it is universal and unique, without carve-outs or special cases. It works best when society and law send a clear message that marriage is for everyone - gay and straight alike - and that the only way to secure the benefits and recognition of marriage is to get married.

The retort, of course, is that unyoking marriage from its traditional male-female definition will destroy or severely weaken it. But this is an empirical proposition, and there is reason to doubt it. Opponents of same-sex marriage have done a poor job of explaining why the health of heterosexual marriage depends on the exclusion of a small number of homosexuals. Moreover, predictions that homosexual integration would wreck civic communities and public institutions have a perfect record: They are always wrong. When same-sex couples started holding hands on the street and buying houses in the suburbs, neighborhoods did not turn into Sodoms and otherwise solid families did not collapse. The British military, after protesting for years that morale would be ruined by open homosexuals, has instead found their admission to be a nonevent. Integration of open homosexuals into workplaces has not replaced pinstripe suits with stud collars or ruined the collegial spirit in offices across the country.

Like it or not, homosexuality exists and is not going away. The question is how to ensure that it is pro-social rather than antisocial. I believe that marriage, the greatest civilizing institution ever devised, is the answer. I could be wrong; but the broader point, in any case, is that same-sex marriage bears potential benefits as well as risks. The way to find out is to try, which is what federalism is for.

Thanks to America's federalist structure and the existence of the Defense of Marriage Act, the United States is uniquely positioned among all the world's countries to get same-sex marriage right, by neither banning it pre-emptively nor imposing it nationally. Instead, same-sex marriage could be tried in a few places where people feel comfortable with it and believe it would work. Letting states go their separate ways, moreover, is the way to avert culture wars, as the misguided nationalization of abortion law so unpleasantly and frequently reminds us.

Same-sex marriage should not be a federal issue. Conservatives, of all people, should not be attempting to make it one. They have been trumpeting the virtues of federalism for years. Here is a particularly compelling opportunity to heed their own wisdom.

First published in Salon March 14, 2000.

ONE NIGHT IN the autumn of 1987, in Little Rock, Ark., a boy named Austin Fulk smelled his own death. He was 17, too young to drink in the bars, so he often hung out in a park that was popular among gay teenagers. On this night the sky was overcast, the ground soggy from a day's rain and the place mostly deserted. He was standing in a dimly lit parking lot, chatting with a man who had driven into town in a pickup truck.

A car drove past very slowly, sped up, turned around and came back. Someone inside yelled something like, "Fucking faggots, get AIDS and die!" Fulk's companion returned the compliment. The car slammed to a stop and four young men piled out, one with a baseball bat, another with a crowbar or tire iron.

"I thought I was about to die," says Austin; but he is alive, and that is because his companion reached into the truck and whipped out a pistol from under the seat, leveled it at the gay-bashers and fired a single shot over their heads. All at once, their courage deserted them. They ran back to their car and drove away.

Austin is one of two gay men I know who believe they were saved from death, or at least a long hospital stay, by guns. Guns, however, will play no part in the program for the gay and lesbian Millennium March that takes place April 30 in Washington. Early on, organizers of the march adopted eight "priority issues," with "hate-crimes legislative protections" first on the list.

A federal hate-crimes statute died in the Republican Congress last year, but mainstream voters and politicians are increasingly receptive. After 21-year-old Matthew Shepard was beaten, tied to a fence post and left to die in 1998, hate-crimes laws emerged as straight America's favorite gay-rights measure. Today almost half the states have bias-crimes laws that cover gay-bashing, and anyway, gay-bashing is already a crime in every state.

I won't quibble over the pros and cons of hate-crimes laws. In a way, I don't need to, because the numbers speak for themselves: The laws are at best insufficient, at worst ineffective. Anti-gay crimes reported to the FBI almost doubled between 1992 and 1998. The National Coalition of Anti-Violence Programs monitors 16 jurisdictions and found 33 anti-gay murders in 1998, up from 14 in 1997. The coalition also found that gay-bashers were becoming more likely to use deadly weapons: guns, baseball bats, knives. There is not a city in America where gay couples can hold hands in public without fear. Gay-bashing is a kind of low-level terrorism designed to signal that, whatever the law may say, queers are pathetic and grotesque. Beyond a certain point, therefore, law can't be the answer.

So it is remarkable that the gay movement in America has never seriously considered a strategy that ought to be glaringly obvious. Thirty-one states allow all qualified citizens to carry concealed weapons. In those states, homosexuals should embark on organized efforts to become comfortable with guns, learn to use them safely and carry them. They should set up Pink Pistols task forces, sponsor shooting courses and help homosexuals get licensed to carry. And they should do it in a way that gets as much publicity as possible.

John Lott of Yale University has done extensive research on concealed-gun laws and finds that they reduce violent crime, especially among minorities, who are at greater risk, and above all among women, who are otherwise perceived as easy targets. Even if you disbelieve his research for crime in general, remember that gay-bashers are probably especially ripe for deterrence. They aren't career criminals or super-predators. More often, they are drunken or rowdy youths who decide to prove their manhood by picking on the weakest, most limp-wristed thing they can think of: a faggot.

If it became widely known that homosexuals carry guns and know how to use them, not many bullets would need to be fired. In fact, not all that many gay people would need to carry guns, as long as gay-bashers couldn't tell which ones did. Suddenly, what is now an almost risk-free sport for testosterone-drenched teenagers would become a great deal less attractive.

Won't bullets fly in the streets? Won't blood flow in torrents? If that were going to happen, it would have happened by now. Today almost half of all Americans (and 60 percent of gun owners) live in states that license concealed weapons; abuse of lawfully carried guns turns out to be vanishingly rare. Remember, to get a permit you typically need to register with the police, pay a fee, pass a gun-safety test, have no criminal record, not be crazy and so on. In aggregate, people with concealed-gun permits handle their weapons more safely than off-duty cops.

No doubt some gay-bashers would respond by adding guns to their own arsenals (as they are already doing anyway). Lott's research suggests, however, that the effects of any such "arms races" are more than offset by criminals' desire to steer clear of potentially fatal confrontations. That finding, one can safely guess, applies doubly to gay-bashers, for whom the whole point is to beat up on someone weak. The last thing they want is to risk their lives in a firefight with a trained opponent.

So pink pistols can save lives, which is important. But -- and this is even more important -- they can also change lives.

To see this, consider a somewhat uncomfortable question. After decades of anti-gay killings, many of them unutterably savage, why was it the Shepard murder that finally became a cause celebre among heterosexual Americans?

Many reasons, of course. Shepard looked angelic and could have been anyone's child; the story of his agonizing deathbed countdown riveted attention; the crime and its symbolism were horrible and moving. But there is, I think, one more reason, which is not quite so innocuous. Shepard was small, helpless and childlike. He never had a chance. This made him a sympathetic figure of a sort that is comfortingly familiar to straight Americans: the weak homosexual.

Since time immemorial, weakness has been a defining stereotype of homosexuality. Think of the words you heard on the school playground: "limp-wrist," "pansy," "panty-waist," "fairy." No other minority has been so consistently identified with contemptible weakness. Hate-crimes laws, whatever their other attributes, do nothing to challenge the stereotype of the pathetic faggot. Indeed, they confirm it. By running to the heterosexual majority for protection, homosexuals reaffirm their vulnerability and victimhood.

If anti-Semites hate Israel, that is in no small measure because Israel shattered the ancient stereotype of the helpless and sniveling Jew. Jews with an army! Jews who fight back! You can hate Israel all you like, but you don't bully it. Israel changed the way Jews see themselves, and it changed the way gentiles see Jews.

Guns can do the same thing for homosexuals: emancipate them from their image -- often internalized -- of cringing weakness. Pink pistols, I'll warrant, would do far more for the self-esteem of the next generation of gay men and women than any number of hate-crime laws or anti-discrimination statutes. I don't advocate a swaggering or confrontational attitude toward the American majority, or for that matter toward gay-bashers. Gays shouldn't play Dirty Harry. I also don't favor abandoning other efforts to mobilize law and public opinion against violence. Pink pistols are a kind of civil-rights measure, but they are fully compatible with other, more traditional kinds of civil-rights measures.

Still, the abiding fact is this: Homosexuals have been too vulnerable for too long. We have tried to make a political virtue of our vulnerability, but the gay-bashers aren't listening. Playing the victim card has won us sympathy, but at the cost of respect. So let's make gay-bashing dangerous. We should do that for our own protection. But we should also do it because we will win a full measure of esteem from the public, and from ourselves, only when we make clear our determination to look after ourselves.

Austin Fulk now lives in Virginia. He is a certified pistol instructor and is licensed to carry a concealed firearm. He has never had to use it.

Originally appeared in Reason magazine, February 2000.

Rediscovering the social norms that stand between law and libertinism.

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LATELY I HAVE BEGUN TO UNDERSTAND how a Methodist must feel when everyone he meets calls him a Lutheran. People often describe me as a libertarian. All right, it's true that I often write in a skeptical vein about government. Yes, I have come to see a higher, Zen-like power in leaving things alone. I generally do subscribe to H.L. Mencken's dictum, "All persons who devote themselves to forcing virtue on their fellow men deserve nothing better than kicks in the pants." But still. I know, in the visceral and insistent way the Methodist knows he is not a Lutheran, that my worldview is not quite congruent with what most people today regard as libertarianism.

It is hard to evade one label, however, when you can't offer another. If not "libertarian," then what? For a while, I tried "curmudgeon." A curmudgeon, in my own enlightened sense, is a person who is against improving things for the sake of it. (These days, "curmudgeon" is not the same as "conservative," because, ever since Barry Goldwater, many American conservatives have been radical reformers.) I tried "radical incrementalist." A radical incrementalist is a person who seeks to foment revolutionary change on a geological time scale. The trouble is that "curmudgeon" and "radical incrementalist" both describe my temperament but say nothing of my beliefs. So I gave up. And then, a little while ago, I figured it out. I am, I discovered, a soft communitarian.

A what? You roll your eyes, and I can't blame you. Bear with me, however. There is a fair amount of undesignated soft communitarianism about these days, and it signifies the emergence of an important sort of thinking.

A soft communitarian is a person who maintains a deep respect for what I call "hidden law": the norms, conventions, implicit bargains, and folk wisdoms that organize social expectations, regulate everyday behavior, and manage interpersonal conflicts. Until recently, for example, hidden law regulated assisted suicide, and it did so with an almost miraculous finesse. Doctors helped people to die, and they often did so without the express consent of anybody. The decision was made by patients and doctors and families in an irregular fashion, and, crucially, everyone pretended that no decision had ever been made. No one had been murdered; no one had committed suicide; and so no one faced prosecution or perdition.

Hidden law is exceptionally resilient, until it is dragged into politics and pummeled by legalistic reformers, at which point it can give way all at once. The showboating narcissist Jack Kevorkian dragged assisted suicide into the open and insisted that it be legalized (and televised). At that point, the deal was off. No one could pretend assisted suicide wasn't happening. Activists framed state right-to-die initiatives, senators sponsored bills banning assisted suicide, and courts began issuing an unending series of deeply confused rulings. Soon decisions about assisted suicide will be made by buzzing mobs of lawyers and courts and ethics committees, with prosecutors helpfully hovering nearby, rather than by patients and doctors and families. And the final indignity will be that the lawyers and courts and committee people will congratulate themselves on having at last created a rational process where before there were no rules at all, only chaos and darkness and barbarism. And then, having replaced an effective and intuitive and flexible social mechanism with a maladroit and mystifying and brittle one, they will march on like Sherman's army to demolish such other institutions of hidden law as they encounter.

The enemy of hidden law is not government, as such. It is lawyers. Three years in law school teach, if they teach nothing else, that as a practical matter hidden law does not exist, or that if it does exist it is contemptibly inadequate to cope with modern conflicts. The American law school is probably the most ruthlessly anti-communitarian institution that any liberal society has ever produced.

For eons, hidden law has coped sublimely with adultery. As long as the adulterer was discreet and the wife either didn't know what was going on or was willing to pretend she didn't know, everybody else also pretended not to know. Public law's rather different way of handling the situation was on display in the Clinton-Jones-Starr-Lewinsky affair, and it was not superior. So, also, for sexual conduct involving adults in the workplace. Hidden law was imperfect for situations where flirting got out of hand, but today's sexual harassment law, in which platoons of lawyers scour office e-mails for hints of unwelcome overtures, is proving itself not just imperfect but grotesque.

What about the "soft" part? Why a "soft" communitarian? Because there is a harder variety that replicates the lawyers' mistakes in a communitarian direction. The hard communitarian, seeing that hidden law has broken down, demands a series of public laws or subsidies to re-establish it. Require children to support their aging parents, require students to do involuntary volunteer work, make voting mandatory - that sort of thing. The archetype of the hard communitarian is Lee Kwan Yew, the former prime minister of Singapore. In America, an example might be Rudolph Giuliani, the mayor of New York City.

We softies, by contrast, understand that hidden law works precisely because it is not formal: The very act of formalizing it destroys it. We believe, therefore, that public law's next big project should be to sit down and shut up. That is, public law should be careful, infinitely more careful than at present, not to burst into every room it sees and immediately begin breaking crockery. It should strive to stay out of hidden law's way, rather than obliviously trampling it with each elephantine footfall. When personal behavior needs regulating, we soft communitarians prefer exhortation to legislation and shame to jail. A good, albeit controversial, example of an effective soft-communitarian activist is Bill Bennett, with his Book of Virtues, his "index of leading cultural indicators," and his denunciations of gangsta rap. Bennett says he opposes legal regulation of song lyrics, but he certainly does not oppose confronting recording company executives and demanding that they read aloud some of the lyrics they sell. He practices censoriousness rather than censorship. That is "soft" in a nutshell.

We soft communitarians are soft in a further sense: Like F.A. Hayek (who in some ways was a soft communitarian), we do not believe in taking an uncritical attitude toward social norms, even deeply embedded ones. With all due respect to folk wisdom, I favor gay marriage, even though nothing could be less traditional. Now that we know that homosexuals exist - that they are not just neurotic heterosexuals who need a few jolts of electroshock - the extension of the nuptial contract to them is not a sundering of tradition but an extension of it. Thoughtful criticism allows us to see this. Soft communitarianism is not blind obeisance to tradition. It aspires to be rigorous rather than rigid.

An interesting question about soft communitarianism is: So what? Who could be against such a mushy and innocuous doctrine? Or who, anyway, apart from everyone who ever went to law school? You might point out that soft communitarians can be found toward the drab center of both political parties, where everyone is for "values" and "civil society." You might also note that soft communitarianism is perfectly consonant with most major strands of libertarianism. The reason I am often mistaken for a libertarian - even though I am more comfortable talking about rules than rights, I prefer reasonableness to reason, and I care about government's effectiveness rather than its size - is that my soft communitarianism leads toward a persistent skepticism about the oozing encroachment of public law into every pore of daily life. Maybe the soft communitarian and the libertarian, like the Methodist and the Lutheran, are just two versions of basically the same thing.

But not so fast. The fact is, many libertarians I know react with discomfort, often bordering on hysteria, to soft-communitarian talk. They feel that if their life is not the law's business, then it also is nobody else's business. They are deeply uneasy with social instruments like shame or opprobrium, which smack of big-nosed authoritarianism in a new guise.

And here a certain sort of libertarianism comes full circle to join hands with a certain sort of leftism. The libertarians and the leftists come to blows over economic issues - who should run the health care sector, for instance - but they glare in hostile unison at the soft-communitarian project (which, remember, also enlists some libertarian types of its own; this gets complicated). Underlying their hostility is an implicit theory of coercion that is worth grappling with, because it lies at the heart of today's culture wars. In that connection, consider Michael Warner.

Warner is, to begin with, an English professor at Rutgers University. But he is probably better known as a leading queer studies scholar. And, more than that, he is an activist, closely associated with an extremely controversial group called Sex Panic!, which organized in the mid-1990s to oppose what it regarded as the squelching of sexual freedom by gay and straight conservatives alike.

I ought to say, not that it matters, that I am discussed in passing in Warner's new book, The Trouble With Normal: Sex, Politics, and the Ethics of Queer Life (The Free Press). Warner quotes me on gay marriage and says I am "more honest than most" of his ideological adversaries: a compliment I can return in kind. Because The Trouble With Normal is, in large measure, an answer to Andrew Sullivan and other gay conservative advocates of homosexual marriage and assimilation, and because it concerns itself with various intramural disputes in the gay world (strategies for AIDS prevention and the like), booksellers will confine it to the "gay interest" shelves. That is a pity. Warner is that rarest of writers, an honest extremist who is smart enough to see through to most (though not all) of the depths of his own positions and who is fiery enough not to flinch. His agreeably written and commendably concise book thus turns out to be, among other things, a 200-proof distillation of the case against soft communitarianism.

For example, Warner is shrewd enough to see that the standard defense of gay marriage by gay activists is wrong. This defense holds out marriage as just one more lifestyle option. It is available to heterosexuals, so it should be available to homosexuals as well, and that's all there is to it. But this is wrong. Marriage, as Warner aptly puts it, is "a social system of both permission and restriction." Spouses and society alike view matrimony as something special and exalted; it is not merely allowed, it is encouraged. Far beyond merely creating legal arrangements, it is freighted with the social expectations and implicit requirements of hidden law. It is a bargain not just between two people but between the couple and society: The spouses agree to care for one another so that society does not need to, and society agrees in exchange to view their commitment to each other as inviolable and sovereign and, indeed, sacred.

Traditionalist conservatives understand that marriage confers special status under hidden law, which is why they so fiercely oppose extending it to homosexuals. I understand that marriage confers special status, which is why I favor extending it to homosexuals. And Warner, piping up from the radical left, also understands marriage's special status, which is why he opposes gay marriage. When marriage is available to gay people, he understands, gay people will be expected to marry, and married homosexuals will conduct themselves with the same (let's face it) smugness that characterizes married heterosexuals. "The effect," Warner says, "would be to reinforce the material privileges and cultural normativity of marriage." Homosexuals who do not marry will be regarded as less respectable or less successful than those who do.

In Warner's view, that would be a profound miscarriage of social justice. For Warner is against not just the sexual norms of the moment but the very notion of sexual norms. That is not to say he would decline to pass harsh judgment on a rapist. But where consensual sex is concerned, he insists, society should just butt out. Not only should the law stay out of the bedroom (a standard libertarian position), so should norms, because all norms create "hierarchies of respectability."

Warner opposes sexual norms for two reasons. The first is that he is a radical egalitarian. He believes in the moral virtue of diminishing differences - moral, economic, or political - between people and groups. There is no arguing with a radical egalitarian on that point, so I won't.

The second reason goes a little deeper. Warner makes a move which ordinary classical liberalism rejects out of hand but which has an undeniable kind of deep sense to it. In standard liberal theory, coercion and force involve violence or the threat of violence: "Your money or your life." Because, in modern democracies, the state possesses a monopoly on legitimized violence, a coercive policy will be, by definition, a state policy. Nothing that private people or institutions do by way of criticism or exclusion is coercive.

To Warner and others of his school, that view of coercion is laughably narrow and naive. Norms use the clubs of stigma and shame to punish deviants, nonconformists, and radicals. Many people would much rather be jailed than humiliated or ostracized, which is one reason American prisons are so crowded. In a psychological sense, the denial of respectability can be just as coercive as the denial of physical freedom. Nowhere in his book does Warner argue the theoretical case for his extended notion of coercion, but it is apparent on every page. He regards moralizing as a kind of mandating, speaks of "the effect of coercion in the politics of shame," and refers to the "deep coerciveness" of the sort of thinking that privileges marriage. In his world, all social norms are more or less coercive, which means that all of them are oppressive when applied to consenting adults' sexual or social lives.

Whatever its theoretical shortcomings, this sort of thinking exerts a broad attraction in today's America. Lots of people view Gary Bauer's or Jerry Falwell's strident condemnations of the "homosexual lifestyle" as being every bit as oppressive and intrusive as, say, sodomy laws. For that matter, lots of people believe that moral criticism causes violence by fostering hate, or that moral criticism actually is violence ("words that wound"). Many people in America - a majority, maybe - feel queasy talking about "virtue" and "vice," because that sort of talk implies judgmentalism, which implies a "hierarchy of respectability." People prefer sanitized expressions like "values." I would be curious to see what would happen if you visited a randomly selected college campus and asked the students whether it is right to judge other people's lifestyles. My guess is that most students would be appalled at the notion.

What is useful about Warner is that, being both bright and radical, he has no use for the mushy middle, where most ordinary people are content to leave such ideas. He understands the implications of his view of coercion and does not shrink from embracing them. The sort of nightmare society that a Falwell or a Bauer dreams up in order to scare donations out of church ladies is precisely the sort of society Warner wants to create. To be sexually free, we need to be able to explore all possible sexual avenues with an open mind, and thus without fear of shame or stigma. Keeping certain sexual behaviors hush-hush means that most people never think about trying them, which amounts to "constraint through ignorance." There should be no more closets of any sort. Rather, says Warner, let "all the gerbils scamper free."

And so, in the end, it is not gay marriage Warner opposes: It is marriage, and all the conventional notions of shame and responsibility that go with marriage. He does not actually demand that marriage be abolished, because, being a pragmatist, he would rather undermine it by extending all its benefits to unmarried partners - in fact, to everybody. He is likewise not foolish enough to imagine that sexual norms could be eliminated anytime soon, but he believes that the proper role of socially enlightened activism is to favor de-norming at every turn.

Although Warner's view is extreme, it is more influential than you might suppose. All three of the states and all but a handful of the municipalities that offer domestic partner programs for their workers include opposite-sex couples, who, of course, could perfectly well get married if they wanted the benefits of marriage. The large majority of corporate partnership programs also allow heterosexuals to participate. Who is to say, after all, that marriage is better than some other arrangement? Only recently, and with great effort, was the national welfare debate retrieved from the hands of nonjudgmentalists who argued that government's job was to help the indigent, not to judge them.

I am not a soft communitarian because I think shame and stigma are sweet and lovely things. They are not. A weakness of the soft-communitarian position is its unwillingness to admit the truth in much of what Warner says. In some respects, norms are oppressive and shaming is coercive. Having admitted this, however, one can go on to see what Warner, and other anti-communitarians, do not: that soft communitarianism is less oppressive, usually much less so, than the real-world alternatives. Shame and hypocrisy are not ideal ways to deal with philanderers and small-time mashers, but they are better than Paula Jones' litigators and Kenneth Starr's prosecutors. Shame is valuable not because it is pleasant or fair or good but because it is the least onerous of all means of social regulation, and because social regulation is inevitable.

The implication of Warner's view is that the only just society is one without any sexual norms regulating the conduct of consenting adults. But, of course, a normless society is as inconceivable, literally, as a beliefless individual. What would a culture without shame or guilt or "hierarchies of respectability" look like? How is a shameless society even imaginable, given the unbudgeable fact that humans, like dogs and chimpanzees, look to each other for guidance and approval and clues on how to behave?

The fact is, there are going to be norms; the question is always, What sort of norms? In Warner's world, the norm would be one of extreme social permissiveness. People who expressed anything but approval of sexual adventurism would be stigmatized: shamed for engaging in the oppressive act of shaming. If you don't think this can happen, ask any student or professor who has been on the receiving end of a P.C. vilification campaign.

It is also a fact, I think, that shame is a core constituent of a social animal's temperament. Human beings crave the admiration of other human beings more than they crave anything else - even, in many cases, life. Warner seems to view shaming as a political sanction that, with enough effort, we can teach ourselves not to use. But not to shame or be ashamed is like not loving, not laughing, not eating or talking. So the Warnerian project is to repeal not just shame but humanity. In that sense, Warner's utopia is like the Marxist utopia, which repealed greed. My guess is that Warner's normless sexual utopia would be about as successful, and about as good for the downtrodden and marginalized, as Marx's classless economic utopia turned out to be.

Oddly, the words child and children scarcely ever appear in Warner's book. This is an astonishing blind spot in a work of social criticism. Being a defender of gay marriage, I'm as tired as the next fellow of people who use children as a cover for all sorts of authoritarian arguments. Still, Warner seems to find the very concept of parenting unfathomable. The thought that sexual adventurers might be expected to keep certain of their activities out of the sight of 10-year-old boys and girls, in exchange for being left alone, does not seem to have occurred to him. ("No, darling, that's not a game. Those two people are doing what we call `fistfucking.'") If you believe, as seems plausible, that there is a genuine clash of interests between parents and sexual adventurers, then the old dictates of hidden law - "keep it out of sight," for instance - seem to be a pretty ingenious way to strike a balance.

Some especially conservative parents are indignant because sexual adventuring is too visible, while some especially radical adventurers are indignant because they are not allowed to copulate in front of City Hall. Everyone else wishes the conservatives and the radicals would stop pushing the envelope before the bargain collapses altogether, leaving nothing but cops and politicians and lawyers to tell us how to behave. In the end, the man who wants to replace norms with nothing is the best friend of the man who wants to replace norms with laws. Dr. Kevorkian no doubt thinks of himself as a great champion of the right to die. In fact, as is obvious to everybody but himself, he is a godsend to opponents of assisted suicide. Michael Warner is the Jack Kevorkian of sexual liberty.

The good news is that Warner will fail in his mission of de-norming the world. He will be unable to persuade American homosexuals to rise up and rebel against hidden law and its Main Street codes of behavior. The tide is running against him, and he knows it. Perhaps the most heartening aspect of Warner's book is its rage and despair over what Warner regards indignantly as the taming of homosexual politics and culture, the growing ascendancy of "gay" over "queer." Homosexuals are moving toward embracing the contract with hidden law. They want to follow the rules and be respectable, and the heterosexual majority seems more and more inclined to let them.

The further good news is that gradually, quietly, Americans are becoming aware of the existence of hidden law. Slowly - OK, sometimes very slowly, and with the legal establishment still winning more battles than it loses - Americans are beginning to rediscover the lost continent of convention that lies between law and libertinism, between banning and condoning. They are, I like to hope, beginning to see that the hidden constitution, with its elaborate rules of etiquette and its byzantine architecture of pretense and its elaborate hierarchies of respectability, is much like the written constitution: It restricts us so we can be free.

Originally appeared in The Washington Post, December 28, 1999.

ON DEC. 20, VERMONT'S SUPREME COURT held that the state is required by its constitution (not the federal one) to provide homosexual couples with the same benefits that are available to married heterosexual couples, either through actual marriage or through some sort of partnership program (the legislature can choose). "Here we go again," sighed many conservatives. "Another social revolution imposed by activist judicial fiat."

In 1973 the U.S. Supreme Court ruled that the government may not restrict a woman's right to an abortion during the first trimester, and may restrict abortions only within certain limits after that. When Roe v. Wade was handed down, states were gradually moving toward legalization of abortion. The Roe decision smashed that slow but discernible progress toward consensus by leaving no place in the sun for those who dissented. Out of Roe sprang a deeply aggrieved pro-life movement that challenged not just abortion but the very legitimacy of the courts. The cost to the country's social fabric has been immense.

Is Baker v. State of Vermont simply Roe all over again? Not really. This time we are getting it right.

I should say that I firmly favor gay marriage, both on humanitarian grounds and because I think it is good social policy. If gay people exist - that is, if we are not just neurotic heterosexuals who need to get our act together - then surely we ought to be encouraged to marry and settle down. It has never been clear to me why discouraging stable gay relationships in favor of sex in parks and porn shops is good for the American family, or anyone else.

Nonetheless, gay marriage is a deeply polarizing issue, to put the case mildly. To impose it judicially on a predominantly hostile country would beg for a backlash - against gays, against the courts, against government broadly. Not long ago, it seemed likely that Hawaii's courts might rule in favor of gay marriage there, and that other states would be required to recognize Hawaiian marriages. That would indeed have been Roe redux.

The grenade, however, has been disarmed. In the 1996 Defense of Marriage Act, Congress decreed that no state need recognize another state's homosexual marriages. A majority of states have subsequently passed similar laws. The result is that, for the time being, the issue of gay marriage has been de-nationalized. In California, voters will decide an anti-gay-marriage initiative in March, and they may also face a pro-gay-marriage initiative in November. I expect to live long enough to see at least one state legalize gay marriage through the conventional legislative process.

Vermont, of course, has not used the conventional legislative process. It has used judicial fiat. Doesn't the court's decree undercut the democratic process?

Yes: of course it does. In my own ideal world, the Vermont legislature would approve gay marriage and that would be that. In many traditionalists' ideal world, the legislature would disapprove gay marriage and that would be that. Neither side, however, lives in an ideal world. Both must settle for second best. In the case of gay marriage, as in the case of abortion, real-world second-best means localism.

Judicial minimalists argue that courts - federal or state - should simply absent themselves from policy disputes when the law does not give them clear and explicit grounds to intervene. Vermont's constitution includes a so-called "common benefits" clause, which says that the government is "instituted for the common benefit, protection and security of the people, nation or community, and not for the particular emolument or advantage of any single person, family or set of persons who are a part only of that community." To read this clause as offering clear or explicit grounds to mandate marriage or domestic-partner benefits for homosexuals is a stretch, to say the least.

On the other hand, gay marriage, of its nature, implicates a core constitutional issue, namely equal protection of the law. Vermont's court held that the exclusion of homosexuals from marriage "treats persons who are similarly situated for purposes of the law, differently." Legislatures cannot withhold the right to drive or vote, say, from blacks, at least not without offering the courts a constitutionally compelling rationale. Can they, then, withhold marriage from homosexuals, or withhold the state benefits that flow from marriage, without facing judicial scrutiny?

Here the comparison with Roe is instructive. If abortion is indeed the killing of babies, pure and simple, then the courts can no more bow before legislatures' desire to legalize it than they can agree to let a legislature legalize any other form of murder. The great mistake in Roe was not that the courts became involved; judicial scrutiny was inevitable. The mistake, rather, was that the federal courts became involved, long before there was anything like a national consensus.

On gay marriage, most state supreme courts probably would not have ruled as Vermont's did. But then, most states are not Vermont. It is entirely conceivable that some other state eventually will approve gay marriage or partnership benefits legislatively, only to see the arrangement knocked down by an activist conservative court. C'est la vie. The beauty of a federalist arrangement is that it does not require that the states all get either the process or the answer right; it requires merely that they all get it different.

Gay marriage's "Roe" moment will arrive if the U.S. Supreme Court decides that states cannot treat marriage differently. Both opponents and friends of homosexual marriage ought to hope that that day is long in coming. Whatever you think of the outcome in Vermont - or in Hawaii, whose court this month finally threw out the gay-marriage claim - federalism is working.

Adapted from: Same Sex Marriage: Pro and Con, ed. Andrew Sullivan (Vintage, 1997).

I'M NOT SURPRISED - who could be? - by the furor over homosexual marriage, which Hawaii's courts may (or may not) legalize. What does surprise me is the line that opponents are taking. When the fuss about gay marriage began, I assumed the main case against it would revolve around adoption rights. In fact, the main objection has turned out to be, essentially, this: If homosexuals can get married because they love each other, why not polygamy? Why not incest? A man may love several women, after all, or his mother.

People who use this line of attack seem to regard it as a trump card, a devastating objection. In Time magazine, Charles Krauthammer declared that marriage is two-sex for the same reasons - tradition, religion, utility, morality - that it is two-person. "Not good enough reasons, say the gay activists," he gloated. "No? Then show me yours for opposing polygamy and incest." Ha!

All right, I'll show him, and it isn't difficult.

The hidden assumption of the argument which brackets gay marriage with polygamous or incestuous marriage is that homosexuals want the right to marry anybody they love. But, of course, heterosexuals are currently denied that right. They can not marry their immediate family or all their sex partners. What homosexuals are asking for is the right to marry, not anybody they love, but somebody they love, which is not at all the same thing.

Heterosexuals can now marry any of millions of people; even if they can't marry their parents or siblings, they have plenty of choice. Homosexuals want the same freedom, subject to the same restrictions. Currently, however, they have zero marital choice (unless, of course, they try to fool heterosexuals into marrying them - a bad idea for a lot of reasons). To ask for a comparably, but not infinitely, broad choice of partners is not unreasonable.

Do homosexuals actually exist? I think so, and today even the Vatican accepts that some people are constitutively attracted only to members of the same sex. By contrast, no serious person claims there are people constitutively attracted only to relatives, or only to groups rather than individuals. Anyone who can love two women can also love one of them. People who insist on marrying their mother or several lovers want an additional (and weird) marital option. Homosexuals currently have no marital option at all. A demand for polygamous or incestuous marriage is thus frivolous in a way that the demand for gay marriage is not.

Suppose, though, that someone insists that he can't be happy without several spouses, and that this is a basic constitutive need for him. Or suppose he says he can't be happy unless he marries a close relative. For argument's sake, let's say we believe him. Shouldn't at least this person be allowed to marry two people, or his father?

No. The reason is that, from society's point of view, the main purpose of marriage is not, and never has been, to sanctify love. If the point of marriage were to let everybody seek his ultimate amorous fulfillment, then adultery would be a standard part of the marital package. In fact, society doesn't much care whether spouses love each other, as long as they meet their marital obligations. The purpose of secular marriage, rather, is to bond as many people as possible into committed, stable relationships. Such little societies-within-society not only provide the best environment for raising children, they also domesticate men and ensure that most people have someone whose "job" is to look after them.

Polygamy radically undermines this goal, because if one man has two wives, it follows that some other man has no wife. As Robert Wright notes in his book The Moral Animal, the result is that many low-status males end up unable to wed and dangerously restless. Over time, a society can sanction polygamy only if it is prepared to use harsh measures to repress a menacing underclass of spouseless men. It is no coincidence that no liberal countries have been polygamous, and no polygamous countries have been liberal. In that respect, the one-partner-each rule stands at the very core of a liberal society, by making marriage a goal that everyone can aspire to. Gay marriage, note, is fully in keeping with liberalism's inclusive aspirations. Polygamy absolutely is not.

Incest, of course, may produce impaired children. But incestuous marriage is a horrible idea for a much bigger reason than that. Imagine a society where parents and children viewed each other as potential mates. Just for a start, every child would grow up wondering whether his parents had sexual designs on him, or were "grooming" him as a future spouse. Holding open the prospect of incestuous marriage would devastate family life by, effectively, legitimizing sexual predation within it.

The rather peculiar idea underlying the "If gay marriage, then polygamy" argument is that, at bottom, there really is no very good reason to be against polygamy other than tradition - you just have to be blindly against it, and ditto for gay marriage. But there are ample grounds to oppose polygamous and incestuous marriage, grounds that have nothing to do with whether gay people will be allowed to partake of society's most stabilizing, civilizing institution. I don't ask to break the rules that we all depend on. I just want to be allowed to follow them.