IGF CultureWatch

It didn't take long for many social conservatives to ponder the long-term implications of the Supreme Court's recent decision to strike down all antisodomy laws in the U.S. Moves are afoot to advance a constitutional amendment that would bar any state's legalization of same-sex marriage; next week [October 12-18] is "Marriage Protection Week," in which the alleged danger of Lawrence v. Texas will be highlighted across the country. This push toward blanket prohibition, however, sidesteps a basic point about the post-Lawrence world. Whatever you feel about the reasoning of the decision, its result is clear: Gay Americans are no longer criminals. And very few conservatives want to keep them that way. The term "gay citizen" is now simply a fact of life.

In retrospect, this might be the most significant shift on the question of homosexuality in a generation. For if homosexuals are no longer criminals for having consensual private relationships, then they cannot be dismissed as somehow alien or peripheral to our civil society. Moreover, the social transformation of the last decade cannot simply be gainsaid: A poll this week for USA Today found that 67% of the 18-29 age group believe that gay marriage would benefit society. The public as a whole is evenly split on that issue. Many of the people favoring a new tolerance are Republicans and conservatives. And this is inevitable. When the daughter of the vice president is openly gay, it's hard to treat homosexual citizens as some permanent kind of Other, as a threat to civil order and society.

But if conservatives have now endorsed the notion of homosexuals as citizens, they haven't yet fully grasped the implications of that shift. Previously, social policy toward homosexuals was a function of either criminalization or avoidance. People who are either in jail or potentially subject to criminal sanction are already subject to a social policy of a sort. You may disagree with it, but it's social policy on the same lines as that toward drug users or speeders. It's a form of prohibitionism. But when all illegality is removed from gay people, as it has been, that social policy surely has to change.

So what is it? What exactly is the post-Lawrence conservative social policy toward homosexuals? Amazingly, the current answer is entirely a negative one. The majority of social conservatives oppose gay marriage; they oppose gay citizens serving their country in the military; they oppose gay citizens raising children; they oppose protecting gay citizens from workplace discrimination; they oppose including gays in hate-crime legislation, while including every other victimized group; they oppose civil unions; they oppose domestic partnerships; they oppose . . . well, they oppose, for the most part, every single practical measure that brings gay citizens into the mainstream of American life.

This is simply bizarre. Can you think of any other legal, noncriminal minority in society toward which social conservatives have nothing but a negative social policy? What other group in society do conservatives believe should be kept outside integrating social institutions? On what other issue do conservatives favor separatism over integration? We know, in short, what conservatives are against in this matter. But what exactly are they for?

Let me be practical here. If two lesbian women want to share financial responsibility for each other for life, why is it a conservative notion to prevent this? If two men who have lived together for decades want the ability to protect their joint possessions in case one of them dies, why is it a conservative notion that such property be denied the spouse in favor of others? If one member of a young gay couple is badly hurt in a car accident, why is it a conservative notion that his spouse not be allowed to visit him in the intensive-care unit? In all these cases, you have legal citizens trying to take responsibility for one another. By doing so, by setting up relationships that do the "husbanding" work of family, such couples relieve the state of the job of caring for single people without family support. Such couplings help bring emotional calm to the people involved; they educate people into the mundane tasks of social responsibility and mutual caring. When did it become a socially conservative idea that these constructive, humane instincts remain a threat to society as a whole? And how do these small acts of caring actually undermine the heterosexual marriage of the people who live next door?

Some will argue that these and many other benefits and responsibilities can be set up in an ad hoc fashion. You can create powers of attorney, legal contracts and the like, if you really need to. These arrangements can be enormously time-consuming and complex, and they don't always hold up in courts of law, of course. But even if they did, isn't it a strange conservative impulse to make taking responsibility something that the government should make harder rather than easier? One of the key benefits of marriage, after all, is that it also upholds a common ideal of mutual support and caring; it not only enables such acts of responsibility but rewards and celebrates them. In the past you could argue that such measures were inappropriate for a criminal or would-be criminal subgroup. But after Lawrence, that is no longer the case. The question is therefore an insistent one: On what grounds do conservatives believe that discouraging responsibility is a good thing for one group in society? What other legal minority do they or would they treat this way? If a group of African-Americans were to set themselves up and campaign for greater familial responsibility among black couples, do you think conservatives would be greeting them with dismay and discouragement or even a constitutional amendment to stop them?

It is one thing to oppose gay marriage (some, but not all, conservative arguments against it are reasonable, if to my mind unconvincing). But it is another thing to oppose any arrangement that might give greater security, responsibility and opportunity to gay couples. At times, the social conservative position is almost perversely inconsistent: Many oppose what they see as gay promiscuity; but even more strongly, they oppose any social measures that would encourage gay monogamy, such as marriage. What, one wonders, do they want? In this, they actually have lower standards for now-legal citizens than they do for incarcerated criminals: Even murderers on death row have the constitutional right to marry, where the institution could do no conceivable social good. But for millions of citizens currently excluded from such incentives for responsibility, conservatives are prepared even to amend the Constitution to say no.

If this debate is to move forward, a few simple questions therefore have to be answered: What is the social conservative position on civil unions? What aspects of them can conservatives get behind? What details are they less convinced by? These are basic public policy questions to which social conservatives, for the most part, have yet to provide an answer. It's well past time they did.

In a recent Advocate interview Massachusetts Senator and Democratic presidential hopeful John Kerry told reporter Chris Bull that, despite his otherwise strong support for gay rights, he could not bring himself to support gay marriage.

In a previous Washington Post interview Kerry had stated, "Marriage is an institution between men and women for the purpose of having children and procreating."

Whoops - wrong answer. If marriage is for procreating, what's the story with Kerry's current marriage (his second), which is childless?

Having been confronted on this point, Kerry backtracks in the Advocate interview: "I don't make a procreation argument. I was explaining the historical background. Someone was asking me where my opposition came from, and I said it's basically from an old religious belief of what defined marriage. Procreation has nothing to do with my argument."

Whoops again. Religious belief? While Kerry might be right about why most people oppose gay marriage, the reporter was asking for Kerry's reason, not most people's. More precisely, the reporter wanted to know Kerry's political position on the issue. And as Kerry himself recognizes, religion and politics don't mix well. In the same Advocate interview he states, "In 1960, President Kennedy [another Roman Catholic] distinguished between those things secular and those things religious. He drew the line between his church and his state. It is a bright line, and I do not take my articles of faith and seek to legislate them against people who don't share them. The establishment clause regarding religion is clear... "

Confused yet? So was the reporter, who asked, "Doesn't church-state separation apply to marriage?" Kerry's response is a textbook example of arguing in a circle:

"So many people in the country view it as the cultural component of it, the religious component of it. That's how people view it with the religious component of it. "

So, just to make sure I'm clear on his point: We ought not to legislate people's religious beliefs except in the case of their religious beliefs.

Got it.

I don't mean to pick on Kerry here. He's been a solid supporter of gay rights, even voting against the anti-gay Defense of Marriage Act in an election year. (It passed anyway, and President Clinton signed it into law.)

Moreover, every other Democratic presidential hopeful goes through the same verbal contortions when pressed on the issue of gay marriage. Even Howard Dean, who went to bat for us on civil unions in Vermont, is officially opposed to "gay marriage."

It's an issue they'd all much prefer to avoid. They want to support gays, but they also want to win the election. And thus they must face one of the great paradoxes about American life: We are simultaneously one of the most secular and most religious societies in the world.

Do we support freedom of religion? Oh yes, absolutely. Except when it gets weird. Like that Mormon polygamy thing. And gay marriage - ick.

Marriage and religion are intimately tied in most Americans' minds. Most marriages in this country are performed by clergy - to whom the state gives the power to perform not merely religious but also civil marriage.

Politicians know this. And they have a hard time talking about civil marriage without talking about religion, for two reasons: (1) they want to appeal to a largely religious electorate, and (2) they are themselves largely religious.

And so Kerry, in the same interview, talks about both his religious view of civil marriage and the separation of church and state, without noticing the contradiction.

Similarly, when discussing the (anti-gay) Federal Marriage Amendment, Senate Majority Leader Bill Frist calls marriage a "sacrament" and President Bush mentions "sinners." Meanwhile, here in Michigan, Jackson County has passed a resolution against same-sex marriage in order to protect the "sanctity"of traditional marriage, and Lapeer County has passed a similar resolution citing "God's intentions for mankind" and "faith in God through Holy Scriptures."

Kerry had it right when he said that articles of faith ought not to be legislated. By definition, articles of faith go beyond rational evidence (hence "faith"); they are learned through revelation. Law, by contrast, is supposed to be based on reasoned argument.

The problem is that the secular arguments against gay marriage just aren't very good. And so opponents of gay marriage - including politicians - resort to the one area where they may respectably abandon reasoned argument: religious faith. You can't really argue with "God says so."

Writer Michael Woodson asks,

"Suppose the government declared a particular mode of communion, baptism or circumcision to be valid, and required all valid communion, baptism and circumcision to be licensed by the state. Certainly, there would be an uproar - and should be a rebellion. Why is marriage different?"

Damn good question. Don't hold your breath for an answer.

Originally published September 24, 2003, in the Chicago Free Press.

If you found that you just about OD'ed on "gay" this past summer, think how the religious right must feel. Those 90 days were the gayest in U.S. history. A brief recap:

Canadian gay marriage (with significant U.S. impact). Supreme Court's "Lawrence" decision. Gay Anglican priest elected New Hampshire bishop after one appointed in England withdrew. Presidential aspirant Howard Dean promoted gay civil unions. California Gov. Gray Davis signed extensive gay partnership law. Congressional subcommittee hearings on Defense of Marriage Act.

"Queer Eye" was Bravo's "breakout hit of the summer." "Boy Meets Boy" had happy ending. "The Amazing Race" won by two gay men. "Will and Grace" still going and going. Ellen DeGeneres's talk show finally began. MSNBC's ranting rightist Michael Savage "let go" after he broke no-homophobia vow.

Is there anything to be learned from all this or any conclusions we should draw? Let us try a few possibilities. The most obvious single fact was the unparalleled gay visibility. Gay lives, gay relationships and evidence of the growing acceptance of gays in at least some sectors of society were given publicity as never before.

Most of the visibility was positive. The language of the "Lawrence" decision was a landmark of affirmation. Even the anti-gay congressional hearings managed to communicate that many gays and lesbians want to marry their partners, join the mainstream and be fellow citizens. Conservatives suddenly found that "special rights" rhetoric just didn't work since they were the ones with the special rights. (Negative publicity came mostly from the Catholic priest sex scandals, which gay advocacy groups handled poorly.)

All these advances did not just suddenly pop into existence. They were the result of years of preparation and constant painstaking advocacy, of numerous smaller advances here and there in the churches, the media, the law, the political system. They were the result of more than 30 years of gays and lesbians coming out, explaining and sharing their lives, talking to those with open ears and struggling to open the ears of those whose ears were closed.

Socially the U.S. is still a melting pot, though with an incompletely melted content. That is, it is also a nation of niches in which population groups with ethnic, social, business or religious interests in common may hold differing social views from other groups. This means that gays do not have to change the nation as a whole to make any gains. They can make gains in gay friendly niches - liberal churches, creative business sectors, the urban patriciate, liberal politicians - and build on those, using them as models or leverage with other niches.

The major religious and political gains gays have made are, not unexpectedly, in coastal, Democratic-leaning states, especially in New England. A New Hampshire Episcopal bishop. Pro-gay Vermont and Massachusetts presidential candidates. Massachusetts and New Jersey gay marriage lawsuits. The religious denominations friendliest to gays and lesbians are the Episcopalian, Unitarian and United Church of Christ, all with New England roots and strong New England influence, all inheriting the tradition of Yankee individualism and personal autonomy.

In other words, gays make gains most readily in the region where the demand for personal responsibility and a consequent respect for individual independence are most deeply rooted. That being so, those are social values we would be wise to help promote as the most fertile soil for future gay advancement elsewhere.

Despite all the rest going on, "Queer Eye" felt significant for several reasons. It did not have gay visibility, it had gay dominance - open, assertive, self-confident dominance. "We are the experts here." It was less that the "fab five" could be campy, even frivolous, than that they were helpful, friendly, knowledgeable, and at root sincere. To some people in this nation that still comes as surprising news about gays, and it is a message we must never tire of repeating.

It was also interesting to see how many companies were happy to see their products mentioned on "Queer Eye." Very mainstream Pier 1 was delighted to have the gay men shop on camera at Pier 1 and walk out carrying Pier 1 shopping bags. The company viewed them as a valuable endorsement with virtually no downside. Public aversion, at least by women, who constitute the vast majority of shoppers, is now judged largely absent, and religious right boycott threats must be viewed as entirely toothless.

Skeptics might argue that "Queer Eye" drew at most 3 million viewers, or 1.1 percent of Americans. Rebroadcasts on NBC reached no more than 5 percent. But, equally important, "Queer Eye" and the other gay-inclusive shows generated enormous amounts of print publicity. Many who did not watch the shows were exposed to their influence through the literally hundreds of articles about them that appeared in magazines and newspapers large and small. More people probably read about the shows than saw them.

Just as one swallow does not make a summer, one summer does not immanentize the gay eschaton. But it was a summer our gay predecessors would have longed for.

It's time to start marshaling our arguments against the Federal Marriage Amendment (FMA). The FMA, which has now been introduced in the House of Representatives, would define marriage in the United States as the union of one man and one woman. It would henceforth ban gay marriages (and other forms of legal recognition of gay couples) throughout the country - at least until the amendment could be repealed, something that has happened only once in more than two centuries of constitutional history. Passage of the FMA would set back the cause of gay marriage for perhaps 25-50 years, possibly for the lifetime of most people reading this column.

The theory of the FMA seems to be that the states must be saved from themselves, from their own legislatures, from their own courts, and from their own people, lest they formally recognize gay relationships. Whatever one thinks of same-sex marriage as a matter of policy, no person who cares about our Constitution should support this amendment. It is unnecessary, contrary to the structure of our federal system, anti-democratic in a peculiar way, and a form of overkill.

The central argument against the FMA is that allowing gay marriage would be a good thing, for gays and society. But here are four arguments against the FMA that even an opponent of gay marriage should be able to accept:

First, a constitutional amendment is unnecessary. It is a solution in search of a problem. No state in the union has yet recognized same-sex marriages. Even if and when a state court approved same-sex marriage in its own jurisdiction, that can and should be a matter for a state to resolve internally, through its own governmental processes, as in fact the states have been doing.

Supporters of the FMA argue that the Constitution's Full Faith and Credit Clause might be used to impose gay marriage on the country. That clause requires each state to give "full faith and credit" to the "public acts, records and judicial proceedings" of other states. But this clause has never been interpreted to mean that every state must recognize every marriage performed in every other state. Each state may refuse to recognize a marriage performed in another state if that marriage would violate the state's public policy. Thirty-seven states have already declared it is their public policy not to recognize same-sex marriages.

It is also unlikely the Supreme Court or the federal appellate courts, for the foreseeable future, would declare a constitutional right to same-sex marriage. Lawrence v. Texas, the recent sodomy decision, does not change this. Lawrence involved the most private of acts (sexual conduct) in the most private of places (the home); by contrast, marriage is a public institution freighted with public meaning and significance. If I gave my first year constitutional law students an exam question asking them to distinguish Lawrence from a decision favoring same-sex marriage, I am very confident they could do so.

Moreover, if the Court were suddenly to order nationwide same-sex marriage it would be taking on the entire country, something it almost never does. We should not tamper with the Constitution to deal with hypothetical questions as if it were part of some national law school classroom.

Second, a constitutional amendment would be a radical intrusion on federalism. States have traditionally controlled their own family law. The nation's commitment to this federalism is enshrined in our Constitution's very structure.

But federalism is not valuable simply as a tradition. It has a practical benefit. It allows the states to experiment with public policies, to determine whether they work. That is happening right now. States are trying a variety of approaches to test whether encouraging stable same-sex unions is, on balance, a good or bad thing.

Repudiating our history, the FMA would prohibit state courts or even state legislatures from authorizing same-sex marriages. It might even prevent state courts from enforcing domestic partnership or civil union laws.

Third, the FMA would be peculiarly anti-democratic. Simple majority rule is the strong presumption of democracies. But, as conservative legal scholar Bruce Fein recently wrote,

"that presumption and its purposes would be defeated by the constitutional rigidity and finality of a no-same-sex-marriage amendment."

While all constitutional amendments constrain democratic politics, the FMA would mark the first time in the nation's history the Constitution was amended to limit democratic decisions designed to make the states more inclusive and more affirming of individual rights. The FMA reflects a deeply anti-democratic impulse, a fundamental distrust of normal political processes.

Fourth, the FMA is constitutional overkill. It is like hauling out a sledgehammer to kill a gnat. Even if I have been wrong about the imminent likelihood of a court-imposed gay marriage revolution, the FMA is not a carefully tailored response to that problem. A much narrower amendment, dealing only with preserving state's control on the issue, could be proposed. Even such a narrower amendment, however, would be unnecessary.

In sum, the FMA is not a response to any problem we currently have. Never before in the history of the country have we amended the Constitution in response to a threatened or actual state court decision. Never before have we adopted a constitutional amendment to limit the states' ability to control their own family law. Never before have we amended the Constitution to restrict the ability of the democratic process to expand individual rights. This is no time to start.