IGF CultureWatch

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.

The defeat of the federal marriage amendment in the Senate in early June was welcome, if entirely expected. It was a nice surprise to see the amendment fall short of 50 votes even on a procedural motion (its total would have been lower had it come up for a substantive vote); to have seven Republicans vote against it; to hear even southern conservative Senator John Warner (R-VA) say he thought it went too far; and to realize that this probably set its high-water mark in the Senate. But there is a cloud behind this silver lining.

The federal amendment, already on life-support, is dead for the foreseeable future, barring one of three very unlikely events:

1. A Supreme Court "victory," ordering all the states to recognize same-sex marriages, a decision that, if it came in the near future, would trigger quick passage of a federal amendment reversing same;
   
2. Unprecedented and overwhelming gains for the anti-gay-marriage movement in the next few national election cycles; or
   
3. A proposal for a much narrower amendment that would, for example, simply strip courts of jurisdiction over the issue. Even a narrower amendment would probably fail, but things would get a lot more interesting.

We'll continue to be haunted by this amendment, of course. It will rise from its grave during national election years like a ghoul in a late-night horror movie that one repeatedly kills, only to see it rise again and stumble blindly forward. It's the living dead.

All of this is cause for some celebration. But it is a muted celebration, the way one celebrates an essentially defensive victory. The debate in the Senate was a defeat for the amendment but it was not a win for gay marriage, which hardly any Senator even hinted at supporting. If we had an up-or-down vote on gay marriage in the Senate, it would lose 96-4, or thereabouts.

And while many of the arguments directed at the amendment were quite good (emphasizing federalism, the overstated threat of judicial activism, and the overbreadth of the amendment), some of the arguments against the amendment were, shall we say, deflating. For example, we heard repeatedly that there were much more important issues we needed to address, like gas prices and relations with the Principality of Liechtenstein.

I guess I have to agree with that in one sense. Any proposal is more important than one that should never have seen the light of day. Still, there was something baleful about cheering on people who were suggesting that anything related to the question of whether gays could marry was wasting our precious time. There was that not-the-gays-again tone in much of the person-on-the-street interviews seen on TV, a sentiment some Senators against the amendment seemed implicitly to be exploiting.

Even my beloved federalism argument can sound, in the wrong mouth, like "the states should be allowed to do this godawful thing if they want to." Forgive me for not finding much inspiration in that.

Then came the news, the very same day the amendment lost in the Senate, that Alabama had become the 19th state to ban gay marriage in its state constitution, which I suppose will stop dead in their tracks all those Alabama state court judges who've been seduced by pro-homosexual propaganda. Alabama and most of the other states that have passed constitutional gay-marriage bans (e.g., Texas, Oklahoma, and Mississippi) were unlikely to recognize gay marriage or anything else gay in the foreseeable future anyway, whether by legislative or judicial action, so not much is immediately lost.

But I get the sense that long after the rational debate over whether gay marriage harms anything has been resoundingly answered "no," we're going to be stuck with many of these state amendments, adopted in a time when we didn't know any better. That will be true at least in those states where a repeal, like the original amendment, will require a super-majority in one form or another. More precisely, "we" won't be stuck with these state constitutional amendments; gay families unfortunate enough to live in those places, with little means of escape, will be stuck with them.

With a federal amendment now effectively off the table, my guess is the anti-gay-marriage movement will redouble its efforts in the remaining dozen or so states that seem likeliest to pass such measures. The likely result, after a few more election cycles, will be a nation where about 35 of 50 states will be unable to give gay marriage (or, in many of these states, civil unions or watered-down domestic partnerships) a try long after experience in other states and countries has shown it's a good idea.

Of the remaining 15 or so states, a few will move legislatively and judicially toward same-sex marriage, but their public-policy advances in this area will be effectively quarantined, at least initially. That's about the rosiest realistic scenario right now for the next couple of decades.

It's not exactly the same as having a federal amendment, which would kill gay marriage in the whole United States for perhaps half a century, but it's the next worst thing.

So the federal marriage amendment is dead. Long live the amendment.

After last week's General Convention of The Episcopal Church, held in Columbus, Ohio, gay attendees and their allies were taking a while to absorb its meaning. As friends of mine on the scene noted, the worst did not happen. No resolution was adopted expressing regret or apology for the election of Gene Robinson as a bishop in 2003. Nor was a resolution adopted halting the development of rites for same-sex unions. Also, gay-supportive Bishop Katharine Jefferts Schori of Nevada was elected the first woman presiding bishop.

On the other hand, the day after the Convention voted to reject the anti-gay Windsor Report, bishops (with help from Jefferts Schori, and using what many have called heavy-handed tactics) pushed through a resolution "to engage in a process of healing and reconciliation," and to "call upon Standing Committees and bishops with jurisdiction to exercise restraint by not consenting to the consecration of any candidate to the episcopate whose manner of life presents a challenge to the wider church and will lead to further strains on communion."

Bishop Robinson writes, "The scene of gay and lesbian deputies, willing to fall on their own swords for the presumed good of the Church, voting for this resolution against their own self-interest was an act of self-sacrifice that I won't soon forget.

"Keeping us in conversation with the Anglican Communion was the goal - for which the price was declaring gay and lesbian people unfit material for the episcopate. Only time will tell whether or not even that was accomplished. Within minutes - yes, MINUTES - the conservatives both within our Church and in Africa declared our sacrificial action woefully inadequate. It felt like a kick in the teeth...."

The Anglican Primate of Nigeria, Peter Akinola, a leader of the right-wing forces, concluded a June 23 open letter to the Episcopal Church USA with this: "We assure all those Scripturally faithful dioceses and congregations alienated and marginalised within your Provincial structure that we have heard their cries." That's like a guy confiding in you that he intends to marry your wife after she divorces you. Akinola seeks reconciliation the way a predator does with its prey. This is not about theology, it is about power, and gay issues are merely a pretext for the power grab.

These are the makings of a schism. The Western branches of the Communion can hardly allow themselves to be overrun by medieval obscurantism in the name of unity. As Akinola himself stated after the destruction of Christian churches in northern Nigeria by Islamist thugs, "From all indications, it is very clear now that the sacrifices of the Christians in this country for peaceful co-existence with people of other faiths has [sic] been sadly misunderstood to be weakness."

How right you are, Eminence. The impulse toward compromise on the part of tolerant progressives is exploited by intolerant conservatives who have no interest in compromise. There is no reason why continuing a conversation should require unilateral concessions. The appeasement in Columbus was reminiscent of the signing of the Munich Agreement by Neville Chamberlain in 1938. The difference in this case is that the appeased aggressor won't bother to sign a phony peace agreement.

Colin Slee, the Dean of Southwark Cathedral, contrasts Akinola's obsession over homosexuality with his church's relative silence regarding Nigeria's "massive abuse of women, polygamy, female mutilation and stoning for adultery." In the Gospel of John, of course, when the scribes and Pharisees cite Mosaic law calling for an adulterous woman to be stoned, Jesus replies, "Let the one who has not sinned cast the first stone." But Akinola is far more in sympathy with the Pharisees.

The current acrimony's roots lie in the 1998 Lambeth Conference, which, as retired Bishop John Shelby Spong writes, "was overwhelmed by a homophobic combination of first world Anglican evangelicals with third world Bible quoting Anglican fundamentalists."

More recently, the Windsor Commission called for the 38 national branches of the Anglican Communion to endorse "current Anglican teaching." To the contrary, Spong notes that the Anglican Church "has never recognized an infallible pope or an inerrant Bible," and asks, "Would those Anglicans who have engaged critical biblical scholarship be asked to subscribe to the pre-modern mindset of some third world countries that oppose evolution, interpret the Virgin Birth as literal biology or view the Resurrection as a physical resuscitation?"

The problem is not disunity, but dogmatism. Some people are convinced that they have a lock on divine truth, and that it lies in a literal-minded reading of the Bible. This does not resemble Anglicanism. Others, who value the past two centuries of biblical scholarship as well as extra-Biblical sources such as the reality of God's creation, recognize that as mortals we can never possess the knowledge of God, but can only seek greater understanding. As Bishop Spong observes, "Whenever growth occurs there is always conflict and dislocation." This happened previously over the issue of women bishops. Quite simply, the children of the Enlightenment have to stand and fight for it.

The prophet Ezekiel spoke against false prophets: "They have misled my people by saying 'Peace!' when there is no peace. Instead of my people rebuilding the wall, these men come and slap on plaster. Tell these plasterers: It will rain hard, it will hail, it will blow a gale, and down will come the wall."

Let it come down.