13 April 2009

On gay marriage

As noted in our "Required reading" post of April 10, both houses of the Vermont legislature this week overrode the governor's veto of a bill that would legalize gay marriage. 

This was the first instance of a duly elected state legislature defining marriage to include homosexual unions, outside the purview of some unelected judicial body.

In general, with the exception of our friends listed in the "Essentials" section, I try to avoid taking in comments from conservative blogs on a regular basis. However, I tried to do a short survey of the conservative blogosphere, and discovered that few actually commented on this landmark act by the Vermont legislature. (I'm assuming that the reason for this is because the standard "judicial activism" argument doesn't work here.)

In fact, I searched so hard for conservative treatment of this issue that I ran across the comments of a gentleman named Bob Maistros at North Star Writers group. After reading his take on the issue, I thought he set forth a fairly standard conservative case against gay marriage. 

As an initial matter, Mr. Maistros got off on the wrong foot by using the following terms in his treatment of the Iowa supreme court's ruling that no substantial governmental objective supported the traditional definition of marriage (which happened the week before the Vermont legislature's actions): "dense," "galactically stupid," "ideologically blind" and "smoking something other than cornstalks." It seems that such namecalling, previously reserved for Daily Kos members railing against the evil Bush presidency and kindergartners everywhere, is the favorite tool of angry conservatives these days.

Aside from initially treating the issue as a child, Mr. Maistros' central premise was somehow that gay marriage was injurious to public health and morals -- specifically, that homosexuals have a much higher incidence of contracting HIV. 

If his argument stopped there, it wouldn't have been terribly objectionable. But Mr. Maistros went further. He claimed that gay marriage would somehow erode democracy because these individual state decisions would inevitably be foisted upon the rest of the union via the full faith and credit clause (a gargantuan logical leap, which would require a Supreme Court ruling in direct contravention of the Defense of Marriage Act, which explicitly provides otherwise). He claimed that a "traditional" marriage would help reduce poverty, crime, drug abuse and teenage pregnancies, and would lead to increased educational performance. Mr. Maistros offered no scientific data or social explanation for these conclusions. 

Mr. Maistros capped his comments off with what seemed to be standard right-wing criticism of this allegedly liberal, declining 21st century culture: "Sexual license is already joining with other moral lapses -- such as lying to mortgage brokers -- to produce social breakdown and economic disaster. Which in turn have opened the door wide for government to step in with misguided, heavy-handed and counterproductive strategies that rob freedom and reward the morally bankrupt at the expense of the principled and productive."

By logical extension, homosexuality is apparently responsible for our trillion-dollar deficit.

This is insane. 

It's one thing to argue public policy, but it's quite another to use any and every opportunity to point out our society's moral decay.

At the risk of ruining your day, the stability of the traditional family began to unravel long before "activist" judicial bodies began striking down bans on gay marriage. As has been reported ad nauseum, more than half of American marriages end in divorce. Do Mr. Maistros and other conservatives really believe that homosexuality is the root cause?

Or could the erosion of personal responsibility -- both inside and outside of the church -- have anything to do with it? 

Conservatives' case against gay marriage and gay adoption generally includes a charge that gay marriage is irreparably harmful to children. Although that's entirely speculative, let's ignore that charge for a moment and pose a hypothetical:

Let's say your state passes a law tomorrow that legalizes gay marriage. In 2024, after 15 years, gay marriages have a far greater success rate than traditional marriage -- let's say only 20% of them end in divorce. Also, for the sake of argument, assume that the divorce rates in traditional marriages remain steady at around 50%. Now, this rhetorical question: In 2024, which will have turned out to be more harmful to children and to society generally?

Divorce is crushing. Perhaps instead of taking the time to campaign against gay marriage, social conservative leaders could look inside the church to repair existing marriages that are heading toward dissolution. Any suggestion that being the child of a homosexual marriage is more injurious than being the child of a marriage that ends in divorce is preposterous. A broken home turns a child's life upside-down and causes scars that are impossible to heal. As a corollary, perhaps social conservatives would have a stronger case to make to society if so many traditional marriages didn't end in divorce. 

Let's be clear also: I support traditional marriage and don't necessarily support gay marriage. My quibbles are largely with the bases social conservatives highlight in opposition to it.

Furthermore, if you've ever taken the time to read the 14th Amendment, it's clear that there exists a very legitimate due process argument in favor of allowing homosexuals to marry. Whether you agree with it or not is another matter, but to deny that such grounds is debatable is to misread the very language of the Constitution and the last 150 years of constitutional jurisprudence.

Yes, our society might well be in decline. But it's an intellectual decline, as evidenced by the slobbering deification of the likes of Barack Obama and Sarah Palin. It's both polarizing and mind-numbing, expedited by the rise of biased journalism on both sides and a soundbite-driven culture, and has served to shove reasoned, thoughtful discourse and moderate political thought completely out the door. If America is in decline, it is because its people and institutions have become too simplistic and stupid, not because of the breakdown of its supposed moral character. 

As a regular churchgoing Christian, the Bible forms the basis of my personal moral opposition to homosexuality. 

But when the discussion turns to matters of governmental policy, I believe that it takes more than a faith-based opposition to a particular issue (because, by that logic, things like premarital sex or gambling should also be criminalized). And to my dismay, I've discovered that any conservative case against gay marriage is largely rooted in moralizing.

And that's not good enough for me.


Line Judge #1 said...

Be careful with the brush Commish, you may paint to broadly. At what point do the EPC & DPClauses stop preventing people from doing things that are (arguably) bad for society.

Without getting into the pros/cons of gay marriage, the Commish's EPC/DPC analysis begs the question: what isn't protected?

If the "equality" brush is as broad as some argue it should be, why can't I have 3 wives? Why can't I marry a horse, or my sister?

For obvious reasons these questions are not synonymous with or similar to the question of whether gay marriage should be legal. But my point is not to debate gay marriage, rather my point is to open a discussion on the rubric we use to determine what is and is not protected by the EPC/DPC's.

Maybe the EPC/DPC does allow for gay marriage and not incestuous marriages and polygamy. But why? I want someone to explain to me what analysis separates heterosexual marriage from homosexual marriage. Or, what analysis put hetero and homo marriage in the "approved" column while incest and polygamy are in the "disapproved" column.

I am not advocating polygamy and incest, but what EPC/DPC rubric effectively separates these concepts?

Should the Commish or other readers care to respond, it should be obvious I am looking for a legal/social policy analysis. Not a religious one.

For example: Why, for public policy reasons is a hetero couple or homo couple more likely to be able to contribute to society and raise children should they want to, whereas a household of husband and two wives or wife and two husbands would not?

My point is generally a slippery slope concern. I want to know HOW we draw the line based on reasoned logical legally enforceable standards. We can debate WHERE the line should be drawn on a different day.

The Commissioner said...

Thanks for the thoughtful response.

My comments:

I don't necessarily support gay marriage.

My point is that, based on the traditional conservative arguments, a strong enough case hasn't been made against it. I agree with you that allowing gay marriage to find refuge under EPC/DPC potentially would expose the Constitution to even more gray areas. As far as a rubric to determine how far EPC/DPC can be extended, I don't claim to have an answer for that.

On one extreme, we have interracial marriage, which was banned in America since time immemorial. We have seen the light of day, and now only the most backward among us would dispute that there is nothing wrong with a black man marrying a white woman. On the other extreme, as you noted, is something like polygamy, which virtually everyone agrees is not allowable. Gay marriage clearly falls between the two, but I'm not sure how far toward polygamy and cousin-marrying it actually is.

I think the standard for answering that question inevitably must move past any sort of religious discussion and focus on the fundamental, tangible impact on society. But how precise can that rubric really be?

Even though I fundamentally disagree with homosexuality, I find it difficult to argue that children raised by a gay couple can't contribute meaningfully to society, or are somehow automatically, irreparably harmed. As the post noted, a child is much better off coming out of a loving, intact homosexual family than a broken "traditional" one. The lack of seriousness of the tens of millions of adults who have entered into traditional marriage really cuts the legs out from under much of the basis for the social conservative's argument against gay marriage.