Political Hay

Twilight in Vermont

The debate over same-sex marriage is no longer just about judges.

By 4.10.09

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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.

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About the Author

W. James Antle III, author of the new book Devouring Freedom: Can Big Government Ever Be Stopped?, is editor of the Daily Caller News Foundation and a senior editor of The American Spectator. You can follow him on Twitter @jimantle.