What happened last week in Iowa was familiar. The state’s highest
court interpreted the equal-protection clause of the state
constitution to mandate same-sex marriage. Although this would
have come as a great shock to the people who ratified Iowa’s
constitution, it was so obvious to the state supreme court that
they arrived at this decision unanimously.
Immediately, opponents of same-sex marriage — who for now
include a majority of Iowans — began to organize to reverse this
ruling through the elected branches of the state government and a
referendum process. If the polls hold up, Iowa’s voters will
democratically overturn the wisdom of Iowa’s judiciary.
This has happened time and again, most recently in California
when the electorate rebuked its state supreme court by passing
Proposition 8. What happened in Vermont on Tuesday, however, was
completely uncharted territory. By overriding the governor’s veto
of a bill redefining marriage to include same-sex unions, the
state legislature in Montpelier made Vermont the first state to
enact gay marriage democratically, through the people’s elected
representatives.
Defenders of traditional marriage were caught flat-footed. “I am
opposed, as you know, to gay marriage,”
opined the socially conservative columnist and blogger Rod
Dreher, “but if states are going to have it, Vermont
just got it the right way: democratically, through
legislative action.” “Normally this is where I’d gauge whether a
constitutional amendment to overturn the decision is feasible or
not,”
wrote a blogger for the website Hot Air, “but since Vermont’s
gone off-script I’m without an angle here.”
The missing angle has exposed the inadequacy of the process-based
conservative case against same-sex marriage. So much of the
right’s campaign for traditional marriage has been based on the
assumption that judges were the only cause for concern. There
were good reasons to take this approach: when it comes to the
culture wars, the American people tend to side against whoever is
perceived as the aggressor.
Folding the marriage debate into a broader resistance against
judicial tyranny, in which our black-robed betters dictate to us
the terms of our most basic social institutions, made the
supporters of same-sex marriage look like a group of elitists
trying to impose their will on the rest of us undemocratically.
Shift the discussion away from judges into proactive measures
like the federal marriage amendment and then marital
traditionalists look like moral busybodies trying to use the
political process to beat up on a controversial minority group.
By moving the debate away from the substance of what’s being
chosen to the question of who decides, social conservatives
played to their greatest strength. In 2004, defense-of-marriage
initiatives prevailed in each of the 11 states where they were on
the ballot. In the much more Democratic year of 2006, they went
seven for eight. Same-sex marriage was a political loser in red,
blue, and purple states all across the country.
Cultural liberals narrowly defeated a marriage-protection measure
in Arizona not by making the case for gay marriage but by making
voters worry that elderly heterosexual roommates would lose their
joint checking accounts. Once the offending language was removed,
Arizonans passed the initiative by a comfortable margin in 2008.
The marriage movement’s perfect electoral record was restored.
Making democracy the issue rather than marriage worked in the
short term, except in Massachusetts, where the amendment process
was sufficiently complicated to effectively take the decision
away from the voters. But this approach ignored the rising
“no” votes for some of these initiatives and the lack of
political
backlash against gay-marriage rulings in New England. The
democratic argument is completely useless now that states like
Vermont are acquiescing to the redefinition of marriage — even
if originally
imposed by judges — democratically.
The central logic of traditional marriage was never difficult to
understand: it takes one man and one woman to naturally produce a
child. The sole reason the government has any interest in
marriage as an institution is the fact that sex between men and
women frequently produces new human beings. Infertile or
deliberately childless couples do not change the essential nature
of marriage, since even their example is consistent with the
ideal of connecting children with a mother and father.
Definitionally non-reproductive pairings do change the nature of
marriage.
Racists banned interracial marriage precisely because such unions
were compatible with the essential nature of marriage — they did
not want men and women of different races having mixed-race
children. By contrast, marriage was not originally defined as a
union between a man and a woman out of any specific animus toward
homosexuals.
Margaret Liu McConnell put it
well: “To those who ask how reserving marriage for one man and
one woman is any different from yesteryear’s vile prohibition
against interracial marriage, the answer is evident in the faces
of the often exquisitely beautiful children of mixed-race
couples, belonging to and beloved by both parents, relinquished
by neither.”
Alas, such arguments fall on deaf ears in an ultra-egalitarian
age. Our culture is schizophrenic about marriage: we claim to
venerate the two-parent, mom-and-dad family but increasingly lack
the courage or self-confidence to treat such unions any
differently than virtually every other conceivable arrangement.
As technology makes it easier to abandon children and form
fatherless families not out of personal hardship but by design,
the behavior of many heterosexuals deviates from the logic of
marriage.
The question for marital traditionalists then became: Why deny
gays and lesbians the opportunity to enter into obligations too
many of us in the heterosexual majority no longer want for
ourselves? Why
die on a hill over the hospital visitation rights of two
middle-aged gay men? Torn from a consistent sexual ethic in which
marriage differs in some significant way from a love affair, the
question becomes unanswerable.
Even the very terminology used by both sides in this debate —
the “right to marry,” “banning” or “legalizing” gay marriage, and
phrases like “same-sex” marriage itself — made Tuesday’s vote in
Vermont more likely. Rather than establish traditional marriage
between man and wife as a valuable concept in itself, it has
become a discussion of whether the government should “allow”
homosexuals to enter into loving relationships or have their
needs met humanely.
With parts of the country still taking aggressive steps to
reaffirm the traditional definition of marriage at the same time
other parts are beginning to confer a new definition of marriage
with democratic legitimacy, we may soon witness a heated debate
that will rival the country’s painful stalemate over abortion.
“Say this for abortion: It’s a geographically specific event, and
once it’s over, it’s over,”
writes David Frum in the Week. “By contrast, there’s
nothing like marriage for generating unceasing litigation, with
ramifications that are sure to cross state lines.”
That’s without even considering the likely conflict between those
who believe what their religions have traditionally taught about
homosexuality and those who believe such teachings must be
relegated alongside racism to the ash heap of history. In the
culture war, Vermont fired the shot heard ‘round the world.
