Marriage & Relationships

Slippery slope on the “Sister Wives” case? Not really

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Earlier this month a federal judge struck down parts of Utah law, distinctive to that state, that had made it unlawful for persons to cohabitate in what they consider polygamous relations. Various traditionalist conservatives immediately began saying “I told you so”: this new development was really just a logical next step down the slippery slope, and the legal advance of gay marriage has now begun to usher in polygamy, exactly as they predicted. A column by Jeff Jacoby in the Boston Globe conveniently summarizes the argument. Since I disputed this very question two months ago in these columns in an exchange with Mona Charen, I am happy to weigh in.

Unfortunately, Jacoby does not give readers a very precise account of the Utah cohabitation ruling. Judge Clarke Waddoups didn’t accord legal recognition to polygamous relationships as marriages — indeed, he made it a point that he was doing nothing of the sort. Nor did he cite Perry or Windsor. The effect of his ruling, so far as I have been able to tell, is to put Utah on the same general footing as other states as regards legal treatment of households like Kody Brown’s: they won’t face arrest or other legal sanctions for cohabiting with each other, but at the same time no legal recognition will be accorded to their marriages (beyond that of the first wife).

It’s true that the new opinion does cite Lawrence v. Texas, which struck down laws against gay sexual relations, and it would be fair to say that there is something of a logical connection (or “slippery slope”) between Justice Anthony Kennedy’s broad language in Lawrence, recognized at the time as capacious, and tougher judicial scrutiny of other laws that (like the Texas statute in Lawrence) criminalize nonmarital private adult sexual activity. But that’s not the same issue as legal recognition of polygamous marriages. If decriminalizing plural cohabitation — which happened a long time ago in most of the country, Utah aside– necessitated such recognition, wouldn’t we have seen some state slide down that slope by now?

Incidentally, Judge Waddoups actually relied in some of his reasoning (through complications I will not spell out here) on principles of religious freedom as explicated in earlier pro-religious-liberty decisions. I hope we aren’t being asked to worry about a slippery slope on that too.

P.S. I should have noted that this topic was aired in the comments section of a Steve Miller post above; see Tom Scharbach’s informative first comment in particular.

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What gay marriage advocates supposedly “must” believe, vs. what they actually do believe

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Have you noticed that social conservatives’ notions of what gay-marriage advocates supposedly “must” believe are often very wide of what most actually-existing gay-marriage advocates do believe? Here’s social conservative Mona Charen writing at National Review:

Advocates of gay marriage tend to argue that those in opposition are no better than the drunken thugs who beat up homosexuals outside of bars.

Do they? She gives no examples of which gay marriage advocates draw that uncharitable comparison, let alone enough examples to show that this is the general tendency of argument on our side. Certainly it would be hard to fit Jonathan Rauch’s Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America into this category, or Andrew Sullivan’s famous and influential 1989 essay, or the work of John Corvino. Even among advocates less temperate in tone, few are unaware that most current advocates of gay marriage, from President Obama on down, previously took a position against it.

The rest of Charen’s article advances the oft-heard argument that polygamy is next, on the not particularly convincing ground that some magazine (Slate) just ran a piece by some pseudonymous practitioner of polyamory. (Yes, that’s the sure sign of a social movement on the cusp of mainstream acceptance; its spokesmen write pseudonymously). Such pieces have been a staple of reader titillation in the popular culture since well before the 1969 comedy Bob and Carol and Ted and Alice, which has at no point signaled that a serious social movement to introduce polygamy was in the offing.

Like her co-thinker Ryan Anderson, Charen imagines that no one can come up with principled reasons to back same-sex marriage that do not also extend to polygamy. The fact is that there are multiple and distinct principled reasons, which is one reason it’s not that easy to find anyone (let alone everyone) who is enthusiastic about both causes at once. Feminists, for example, surely a powerful influence on these discussions, have their own internally logical and consistent reasons to support SSM and oppose polygamy (which notoriously correlates around the world with weakened status for women, very much in contrast with gay marriage). Social-welfare advocates who know that being married is a powerful predictor of health, happiness and prosperity have often seen merit in same-sex marriage because it extends the hope of marriage to more persons, but have reason to look askance at polygamy since in polygamous cultures more males never find lifelong mates. And so forth for other groups.

Meanwhile, the West actually does have two real-world constituencies for legalized polygamy, both extremely small. One is the minuscule group of old-school Muslim and splinter-Mormon practitioners who typically ground the practice in tradition, divine will, and scripture, and who very often are implacably opposed to same-sex marriage. The other is the not much bigger fringe of polyamorists and free-love advocates, many of whom were at best tepid toward SSM, seeing it as herding gays into bourgeois domesticity. It should go without saying that the second group is unlikely to team up with the first into an effective public movement, nor are the numbers of either likely to grow radically, short of mass immigration from certain pre-modern parts of the world.

Our side is winning on gay marriage for a very simple reason, which is that millions of mothers think, “I didn’t choose for my kid to be gay, but since he is, I hope he settles down with the right person.” I have never, ever heard a mother say “I didn’t choose for my kid to want multiple mates, but since he does, I hope he settles down with the right three or four women.” Isn’t it time writers like Charen and Anderson dropped this trope?

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Back to Basics

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Same-sex marriage came and went in the US Supreme Court, and the the most reactionary Republican dominated state legislatures responded by — passing new laws restriction abortion.  While the high court was deliberating a case challenging the power of Congress to prohibit or punish same-sex marriage under state law, Texas, Alabama, Mississippi, South Dakota and Indiana were all exploring creative ways to provoke the high court to revisit Roe v Wade.

The lack of an outcry about U.S. Windsor is partly due to the fact that the opinion left those states’ anti-marriage laws intact.  But the renewed focus on abortion and Roe, at a time when the highest court in the land was setting down a marker about marriage equality suggests something else is at work.

That something else can be seen in the non-reaction in California to the opinion overturning the notorious Prop. 8. In 2000, California voters passed Prop. 22, an initiative statute prohibiting same-sex marriage, with 61% of the vote.  The state Supreme Court overturned Prop. 22 as a violation of the state constitution in 2008, which prompted Prop. 8, an initiative that amended the state constitution itself to prohibit same-sex marriage.  Prop. 8 got a little over 52% of the vote, but a win is a win.

So California’s voters must be furious about the decision in Hollingsworth v Perry, right?

If so, it’s hard to see.  Less than two days after the ruling, the Ninth Circuit Court of Appeals took the final step to permit same-sex marriages again in California, and while a very few of the usual suspects showed their faces to television cameras at the subsequent marriages throughout the state, there are no signs of outrage among the voters whose will was thwarted.

Opposition to same-sex marriage is different from opposition to abortion.  There is a real and substantial moral question with abortion: At what point does human life begin?  In the 40 years since Roe, that moral question has remained alive and vibrant, and the constitutional argument about abortion has seldom flagged.  Moral feelings about abortion start strong and tend to stay strong.

Not so for same-sex marriage, where moral feelings may have started strong, but have weakened substantially over time.  The moral consensus around same-sex marriage was collapsing even before the Supreme Court weighed in.  With each new iteration of the issue, voters see less reason for opposition, more reason in the arguments made for equality.  The moral argument against same-sex marriage is no more than the moral argument against non-procreative sexual activity; once heterosexuals can see their own procreative sexual desires in the broader context of a world in which procreation is controllable, the idea of sex for other reasons — pleasure, relational intimacy, emotional bonding or just for the hell of it — moves homosexuals from their historical outsider status to a proper role as fellow members of the human family.  Procreation is a good thing, but it is not all that sex is for.

The shift back to abortion for the old guard of the GOP is some evidence that this cultural shift on same-sex marriage is taking hold.  It is harder and harder to argue against the images of joyous couples getting married, and now joyous heterosexual friends and family are joining in the celebrations.  Connection and inclusion are moral instincts, family imperatives, that it takes an effort to deny.

There is still a strong sense that abortion is worth the effort.  For a small minority, the fight against same-sex marriage will continue to be a priority.  But the continent on which they once stood is becoming more of an island every day.

 

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Gay Marriage and the Federal Budget

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If you haven’t heard much about the effects of DOMA’s downfall on the federal budget, that’s because there isn’t expected to be much of an effect. True, various benefits such as health and survivor benefits will now be paid to spouses of civilian workers and military personnel, and some gay persons will be entitled to Social Security benefits based on spouses’ earnings. On the other hand, it would not be surprising to see married gay couples’ income profiles falling more often on the “marriage penalty” rather than the “marriage bonus” territory on this interesting tax chart. And a host of benefit and subsidy programs, most importantly Medicaid but also other means- or income-tested programs, will save money once a spouse’s assets and income can be taken into account. All in all, a 2004 CBO study suggests the impact on the federal budget is likely to be very slightly positive. Josh Barro has the details here. He concludes:

The fiscal benefits aren’t a crucial reason to support same-sex marriage, but they do lend support to one of the “conservative” cases for it. Marriage is a structure through which people depend on each other, so they don’t have to depend on the government. For gay men and lesbians to take advantage of that fiscally friendly option, the government has to make it legal for us to marry.

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Mark Oppenheimer on gays and divorce stigma

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Mark Oppenheimer suggests that when you meet a social conservative willing to blast the late President Ronald Reagan vocally for his role in de-stigmatizing divorce, you will have met a truly consistent so-con, worthy of defending the state of family values circa 1950. But you hardly ever meet such a person:

Maybe same-sex marriage is, as they like to say, “the last straw” in this sexual revolution. But rights for the most marginalized people will always be the last straw in social revolutions. The marginal people will always get everything last. If you’re honest and ethical, you have to go after the elites who started the revolution, not the marginalized who later said, “Me too! Please, me too!” And you can’t just pay it lip service, like, “Oh, straight people are culpable, too, since they began divorcing at higher rates in the 1970s…”—you have to actually try to shame straight divorcés more than you are trying to shame gay people for wanting to marry, because the straights started it. If you aren’t horrified by Rush Limbaugh being married four times—if you didn’t see Ronald Reagan as a less fit leader because of his divorce—then you simply have to shut the hell up about gay people marrying. You can’t ethically go after the marginalized people who try to eat the fruits of a revolution. You have to go after the revolutionaries. …

If it were the goal of the traditionalists at First Things and National Review and The American Conservative to help us re-think the Reagan presidency on the grounds that he helped normalize divorce, and thus helped usher in all that is terrible about libertine USA ca. 2013, they could.

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After a tumultuous week

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The past week or two has seen an extraordinary burst of both news and commentary on the marriage issue. Here are some highlights in case you missed them from my Twitter feed on gay issues, which you should consider following today:

  • In one new poll Republican support for gay marriage has jumped from 13 to 37 percent in just 10 months [CBS News] If the numbers are to be believed, a plurality of under-50 Republicans now support it [Sargent, WaPo] 67-30 favor in California [KPIX]
  • Andrew Ferguson is always worth reading, even when he’s on the wrong side of an issue, but he lost me at sentence 2 when he described Leon Kass and Harvey Mansfield as “disinterested,” as opposed to all the gay-marriage-case amici who are actually committed to strong points of view [Weekly Standard; see also Andrew Sullivan, Ezra Klein, Ted Frank, etc. on the state of the social science on gays and parenthood]
  • Jeff Rosen on federalism and the Prop 8/DOMA cases [New Republic]
  • When Justice Kennedy meant when he raised the issue of the “voice of these children” [Ann Althouse; related, Sullivan] Sorry, Mr. Clement, but no one’s gonna buy the line that DOMA was meant to serve purposes of “uniformity” [John Steele Gordon, Commentary] And if you still haven’t watched, my Wednesday Cato panel on same-sex marriage is online [C-SPAN2]
  • Freedom opens up possibilities: “Capitalism and the Family” [Steve Horwitz, FEE] “Why Gay Marriage Will Win, and Sexual Freedom Will Lose” [Megan McArdle] It’ll probably have a slight positive net effect on government fiscal coffers [Josh Barro] “Limited government means marriage equality” [Adam Bates, Daily Caller]

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Privacy As The Enemy

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Sally Ride is an American hero.  She is also an icon for women’s equality.

And, as Andrew Sullivan puts it, she is the absent heroine of the gay rights movement.

That is not necessarily damning.  There’s only so much one human being can do with her life.

But I don’t want to let Ride get off as easily as the media is allowing.  The New York Times obituary is typically lazy:

Dr. Ride was known for guarding her privacy. She rejected most offers for product endorsements, memoirs and movies, and her reticence lasted to the end. At her request, NASA kept her illness secret.

There are different kinds of privacy.  Resisting the commercial temptations of fame is not the same thing as keeping the fact that you have cancer a family matter.  And neither of those is the same as staying in the closet.

Ride was born into the two revolutions that directly affected her life: women’s equality and gay equality.  She took up one of those revolutions, and rejected the other.

Her life’s work was to make sure girls who were interested in science would not feel the pressure she faced to repress that inner drive.  She was instrumental in helping to change that, and the world is better for her accomplishments.

But the gay rights revolution was not her thing.  Even those of us who pay close attention had no idea she was a lesbian, much less a woman who had maintained a 27 year relationship with another woman.

No one has an obligation to be politically active.  Vito Russo, in the new HBO documentary about his very politically active life, articulates the point well:

This is a good question: What makes people political in their lives?  The world is full of injustice.  Some people it bothers, some people it doesn’t. Me, it bothers.

The injustice of gay inequality, and particularly the injustice of the closet did not bother Ride.  Or, maybe more accurately, it did not bother her enough to do anything with the public side of her life to try and change it.  She simply accepted the closet, and took advantage of the work that others were doing on that front in order to live in a not-very-public-but-not-entirely-private lesbian relationship.

She shares this approach to the gay rights revolution with Mary Cheney.  They are among the free-riders of this struggle, letting others do the fighting.

The psychological damage that cultural homophobia did to those of Ride’s generation cannot be underestimated, and maybe her passivity can be forgiven or excused or pitied.  In the world she grew up in, that brand of privacy was often the only natural protective device that those who lacked Russo’s political spirit and intolerance of injustice had.

But it’s time to retire privacy as the Get Out Of Politics Free Card.  Fear can still justify the closet in many places and circumstances.  So can personal economic strategy, I suppose.  But not privacy.  That cramped isolationism is exactly the thing we are fighting.  It’s a form of self-indulgence at best, and more often it’s just shame.  We should draw a distinction between external forces that make coming out problematic, and internal ones that are corrosive remnants of an older view of homosexuality.

Even heterosexuals are lining up to support our equality today.  Ted Olson and David Boies, Lady Gaga and Brad Pitt, Ben Cohen and Scott Fujita are on the front lines of our battle.  The bar should be extremely high for any of us to remain aloof from our own fight for our own self-worth.  Every homosexual does not need to be out in the streets if they are not politically inclined.  But that’s not a matter of privacy, it’s a matter of preference.  It should go by its right name.

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