IGF CultureWatch

What if.

What if, posed John Tierney in a New York Times op-ed, what if the red states and blue states were divided into different countries? What if the Confederacy had won the Civil War and been allowed to secede?

"Northern liberals wouldn't be ranting at George W. Bush and Pat Robertson," Tierney wrote. "They wouldn't be frantically trying to find a candidate who appealed to the Bible Belt."

He continued, "Southern conservatives wouldn't have to fight for moral values against Godless Yankees. �Politics in both countries might be less partisan, even civil."

Imagine that world. We could leave that counterfactual Confederacy to battle Mexican immigration and impose fascist Christian rule. The North would have more equality and thus a richer culture.

Let's ignore the small inconvenient fact that red states stretch up to the northern border in the Great Plains and mountain states and imagine that a Civil War the United States lost would be a Civil War that divided us nicely in half, with the blue liberals on top and the red conservatives swimming along beneath.

Our more liberal United States would have stopped fighting over abortion years ago. It would be a non-issue now. We'd teach science in schools without ever having to explain why we weren't also teaching creationism; we'd have socialized health care like our neighbor to the north; we'd have had a woman president.

Plus all those benefits for gays and lesbians. Gay marriage would now be a given, and we would be serving openly in the military. There would be gay equality everywhere. It would be like living in Canada.

But here's the thing.

Canada's not the paradise it seems.

Last week, for example, thousands of Christians descended on Ottawa to pray for the overturning of the country's gay marriage law. Seems like something that would happen in the South, doesn't it?

Then I started thinking about trouble areas.

Illinois went easily to John Kerry. We're blue. Lincoln made his home here, for heaven's sake-we'd be the proudest of the Northern United States. Yet in Springfield, our capital, the Episcopal bishop recently signaled strong distaste for the church's new presiding bishop because she's in favor of blessing same-sex marriages.

And it's well known that southern Illinois might as well be Tennessee.

And those Southern states? They're not all as anti-gay as we imagine. A federal court recently ruled that a gay-straight alliance must be allowed to meet in Gainesville, Ga. The Supreme Court in Arkansas affirmed that there must be no ban on gay foster parents. The University of Louisville, in red Kentucky, voted to offer domestic partner benefits. The Tennessee Supreme Court challenged a proposed ban on same-sex marriage.

Let's take a look at our blue states, shall we?

A Rochester, N.Y., judge ruled that a transgender man couldn't change his name from Sarah to Evan. Connecticut's legislature said no to same-sex marriage, because residents already had watered-down civil unions. Gov. Arnold Schwarzenegger vetoed a bill giving California same-sex marriage last year. The Massachusetts legislature took up a gay marriage ban.

And New York ruled that gays and lesbians didn't deserve marriage because-and this is the strangest thing I've ever heard-their unions are too stable.

The lesson?

Life for liberals-and gays and lesbians-wouldn't in fact be easier if America had no red states, because America isn't so easily divided between red and blue, conservative and liberal, Christian and secular, homophobic and gay-friendly.

Instead, we are a patchwork of local feeling, with blue municipalities tucked within red counties hidden in states that are more purple than primary-colored.

Gays and lesbians are in a battle for equality. To win any sort of battle, you need first to see the enemy truly. So let's dismiss the myth that blue states are good and red states are bad-or that red and blue states even exist as solid entities.

If the South had seceded, the North would have the same troubled mix of conservatives and liberals it does today, as would the Confederacy. Red and blue is an easy shorthand, but it's a false one. We are not a divided country. We are families struggling over issues that are important to us; we are individuals trying to get our communities to see things our way.

There is no magic bullet-not now, not in a counterfactual world where the North lost the Civil War.

There is no what if.

There is only what now?

In the past few weeks, gay marriage advocates pursuing their goal by filing lawsuits have suffered several defeats. The most surprising and most significant of these came in New York, where the Court of Appeals rejected state constitutional claims to same-sex marriage. I want to explore some effects of the decision on the cause of same-sex marriage.

First, the New York decision may be followed by other state courts. Right now, litigation is pending in eight state court systems. We await decisions from the high courts of two states, New Jersey and Washington. New York is a large state and its courts are well regarded.

At the same time, it's a politically liberal state. The New York decision could provide cover, jurisprudentially and politically, to judges in other states who want to reject gay marriage claims but who are concerned about the perception of legal elites that they are denying the next great civil-rights cause. If New York's high court can do it, it can't be blind bigotry or ignorance to reject these claims, can it? Thus, the New York decision could be influential on this issue in a way that, say, the Alabama Supreme Court would not be. The New York opinion may therefore damage the prospects of gay marriage litigants elsewhere.

I would not make too much of this, however. Judges will tend to have a view of the issue going in, and I doubt that they'll be converted by the opinion of four judges in Massachusetts in one direction or four judges in New York in the other direction.

A second effect may be to soften the remedial demands made by future gay marriage litigants. Instead of insisting on full marriage or nothing, as the New York plaintiffs did, perhaps litigants will be more likely to settle for an alternative status, like civil union or domestic partnership, that offers the benefits and rights of marriage without the name. This might marginally increase their chances for success.

Future state courts might see the current landscape as offering three models for resolution of gay-marriage claims: Massachusetts (full marriage), New York (nothing), and Vermont (civil unions, with directions to the state legislature to work out the details.). They might see the Vermont resolution as a middle position between the extremes of New York and Massachusetts, allowing them to give gay couples the benefits and protections of marriage without risking the political backlash that comes with the word "marriage."

A third effect should be to reduce and to delay litigation arising from inter-state conflicts in marriage law. New York is the third most populous state, with a high concentration of homosexuals. Its residents, especially in the city, are highly mobile. In short order, its gay married residents would have moved to or traveled in other states, gotten into legal conflicts with each other or with third parties, and sought some out-of-state recognition for their relationships.

I think discordant state policies in this area can be dealt with under traditional legal principles. And these conflicts will occur anyway, since we already have gay marriage and alternative statuses in a few states. But there is no doubt the sheer number of such issues coming from New York would have heightened tensions over the gay marriage issue very quickly and added to calls for a national resolution via constitutional amendment.

Fourth, perhaps there's a silver lining in the New York loss. Losing such an important judicial decision may force the gay marriage movement to emphasize legislative progress, which will produce gains that are more durable and less likely to infuriate opponents than are court victories. In past columns, I have argued for an emphasis on legislative progress toward gay marriage.

Will the New York decision re-order priorities toward legislation? Certainly in New York the legislature is for now the only available arena. But with Republicans fairly comfortably in control of the state Senate and presently the governor's mansion, gay marriage is not coming to New York anytime soon. Instead, New York will have to be one of the states where, if progress is to be made in the near-term at all, it will have to be made by degrees.

Outside New York, the decision might be the beginning of the end for the strong emphasis on litigation that has marked the early part of the gay marriage cause. Despite the exaggerated claims of some federal amendment supporters, there aren't that many state court systems likely to be hospitable to gay marriage claims for the foreseeable future. (The federal courts are hopeless, as litigation strategists know.) While gay marriage litigation strategists might once have hoped to build momentum for a state-by-state judicial sweep, producing a few initial court victories in very friendly states that would lead to later court victories in less friendly states, that hope has been diminished by the New York defeat and even more by the political backlash to gay marriage.

Once existing litigation has worked its way through those few state court systems where litigants have a reasonable prospect of success, as such litigation is now doing, gay marriage advocates will have to turn primarily to legislatures.

As in other social and political movements in this country, the courts will have helped along the way by highlighting the strength of the principled arguments and especially by getting some isolated experiments started. But there will be no substitute for making the case to the people and their representatives.

The 4-2 decision by the New York Court of Appeals that the state constitution cannot be read to require equal marriage rights for same-sex couples was keenly disappointing but not a shock. Three of the four lower courts that heard the cases involved ruled against same-sex marriage. The Republican governor and Democratic attorney general both opposed a supportive decision, although the attorney general says he personally favors gay marriage.

But the majority's reasoning was contemptibly poor and tracked hoary social conservative arguments so closely the decision could have been written by the Pope. The strained reasoning suggests that the court was determined to justify a conclusion it had arrived at on other grounds, such as fear of heightening passions about "judges legislating from the bench."

If so, it showed that social conservatives are getting the lapdog judiciary they want. To U.S. Chief Justice John Marshall's ringing declaration of judicial supremacy, "It is a Constitution we are construing," the New York court replied, "Not if it involves homosexuals."

In creatively imagining "rational" reasons for the legislature's failure to legalize same-sex marriage, the court said it might think that for the welfare of children it is more important to promote stability in opposite-sex than in same-sex relationships and that since heterosexual relationships are "all too often casual or temporary" an important function of marriage is to create more stability and permanence in the relationships that cause children to be born.

Notice that this only offers a reason for approving heterosexual marriage but no reason at all for prohibiting same-sex marriage. Notice too that the argument is both under-inclusive and over-inclusive. It ignores same-sex couples who adopt children or retain custody of children born in a previous heterosexual marriage, both allowable under New York law. And it ignores the fact that some opposite sex couples through birth control or infertility do not have children.

Moreover, in this analysis the undoubted benefits of marriage to the two individuals themselves who constitute the same-sex couple is held to be of no significance: Gay couples and their welfare are contemptuously beneath judicial notice.

In a second argument the court said the legislature might believe it is better for children to grow up with both a mother and a father before his or her eyes every day as models of what men and women are like.

This reasoning suggests that the legislature must think a child never sees any males or females except its mother and father, whereas with brothers and sisters, aunts and uncles, playmates, parents of friends, teachers, and people on television, the child can hardly escape observing what both men and women are like.

And it too is over- and under-inclusive. Many single heterosexual parents rear children after a divorce or a partner dies. And gay and lesbian couples can legally under New York law adopt children whose parents have died or cannot care for them. Yet, according to the court, the legislature may think it better for those children to have no parents at all or unmarried gay parents than to have two married parents of the same-sex. So those children's well-being is also beneath judicial notice.

In short, unlike the Massachusetts Supreme Judicial Court, the New York court refuses to recognize that social and legal judgments about gays and their ability to rear children have changed since the state passed its current marriage law nearly a century ago.

Finally, the court airily and dismissively observed, "Plaintiffs have not persuaded us that this long accepted restriction is ... based solely on ignorance and prejudice against homosexuals. Until a few decades ago, it was an accepted truth for almost everyone ... that there could be marriages only between participants of different sex."

But even the New York court might admit that it was bigotry and prejudice against homosexuals fostered by the psychiatric, legal and religious establishments that long supported sodomy laws and related discrimination against gays. And that that long-standing hostility and criminalization effectively prevented serious consideration of, much less advocacy for, marriage between same-sex partners. The court in effect blames gays for being oppressed and asserts that historical oppression is a sufficient rationale for its continuance.

Nor, contrary to the ignorant court, have gays only recently expressed the desire to marry. Scholarship on the history of same-sex partnerships, unions, and marriages is not well-developed, but we have occasional reports of clandestine attempts to marry. French writer Michel de Montaigne wrote that when he visited Rome in 1581 he heard a report of several Portuguese men who earlier had married there in a church "with the same ceremonies with which we perform our marriages."

They were later burned at the stake. But that wasn't mere "ignorance and prejudice," I suppose.

By now you've probably heard about the New York Court of Appeals' deciding that their state constitution does not require equal marriage rights for same-sex couples. Problem is, much of what you've heard is misleading.

Yes, the Court declared that "The New York Constitution does not compel recognition of marriages between members of the same sex." But no, they did not declare such marriages unconstitutional, nor did they "vote to prohibit" such marriages. Rather, they decided that "Whether such marriages should be recognized is a question to be addressed by the Legislature." Indeed, they explicitly encouraged the legislature to take up the issue.

Courts are not supposed to decide whether policies are good; they're supposed to decide whether policies pass constitutional muster. What the Court did here was to ask whether the current policy of limiting marriage to heterosexuals violates the Due Process or Equal Protection clauses of the New York State Constitution.

To answer this question, the Court considered whether New York could have a "rational basis" for restricting marriage to heterosexuals. The Court concluded that it could, and it thus ruled that the restriction is constitutional--which again, is not the same as ruling that it's smart or sensible.

The rational-basis test is easily misunderstood. It does not ask whether a law is rational in the sense of being wise or compelling. It simply asks whether some non-arbitrary reason can be offered to justify it, which is a pretty easy hurdle to clear. And the Court suggests an interesting one on the Legislature's behalf:

[T]he Legislature could rationally decide that, for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships. Heterosexual intercourse has a natural tendency to lead to the birth of children; homosexual intercourse does not. Despite the advances of science, it remains true that the vast majority of children are born as a result of a sexual relationship between a man and a woman, and the Legislature could find that this will continue to be true. The Legislature could also find that such relationships are all too often casual or temporary. It could find that an important function of marriage is to create more stability and permanence in the relationships that cause children to be born. It thus could choose to offer an inducement--in the form of marriage and its attendant benefits--to opposite-sex couples who make a solemn, long-term commitment to each other.

Generally speaking, heterosexuals but not homosexuals say "Whoops, we're pregnant." Essentially, the Court is saying that that fact is a potential justification for restricting marriage to heterosexual couples.

As I said, a justification doesn't have to be a good one to pass the rational-basis test. Nonetheless, as arguments against same-sex marriage go, this one is better than most. Indeed, if I were back on my high school debate team and forced to argue the "con" side in a same-sex marriage debate, I'm not sure I could do much better.

Which is sad, because the argument is pretty poor. It falsely presupposes that the primary function of marriage is to protect children accidentally produced by heterosexual sex. What an impoverished view of that great institution.

Moreover, the argument ignores the difference between having a reason to endorse heterosexual marriage and having a reason to prohibit gay marriage. One can support marriage for heterosexuals (I do) without thinking that it should be restricted to them. One might just as well argue that because there's a reason for giving a bus discount to the elderly, there must be a reason for denying one to minors, or vice-versa.

But it's important to keep in mind that the Court is not endorsing the argument quoted above. Notice its frequent use of the subjunctive ("the legislature could decide," "the legislature could find"). Not "did decide." Not "should decide." Essentially, the Court is throwing this hot potato back in the legislature's court.

And therein lies the silver lining. In an election year, when right-wingers eagerly point to "activist judges" trying to "redefine marriage" and then use that threat to rally voters to pass reactionary amendments, the New York Court has declined to become their next poster child. Whether this was the correct decision legally is a subject for another day. But politically, it makes a point: when judges in "liberal New York" refuse to mandate same-sex marriage, right-wingers in places like Virginia and South Dakota are deprived of a key scare tactic.

Meanwhile, New Yorkers who advocate marriage equality can urge their legislature to do the job the court has ceded to it. Note that when the California legislature tried to enact marriage equality, the governor vetoed it, stating that it was a matter for the courts. Here the governor can't do that (at least not with a straight face). While George Pataki, New York's outgoing Republican governor, has promised to veto any such legislation, Democratic candidate Eliot Spitzer supports marriage equality.

All of which is to say: in the spirit of summer, when the Court hands you lemons, make some lemonade.