Dispatches from a Recovering Bleeding Heart*: The Case Against Gay Marriage

Via Ta-Nehisi Coates, you've just gotta read this argument against gay marriage at The Weekly Standard.  It's far better than the absurd and offensive argument recently made -- apparently with a straight face (no pun intended) at the blog Secular Right -- that gay folk shouldn't be allowed to marry because it will further deteriorate the breakdown of the Black family (because all of those deadbeat Black dads are gonna really run away from marriage if they think it's, you know, queer).  But I have to grant that Sam Shulman's argument that "The Worst Thing About Gay Marriage [is that] It Isn't Going to Work" has, at the very least, some intellectual honesty.  You really should go read the piece for yourself, but in a nutshell, here is his argument:  Gay marriage is not so much offensive or immoral as it is irrelevant because it cannot, by definition, accomplish the four main purposes of marriage, all of which have to do with creating and enforcing a system of kinship.  Those four purposes are:

1.  Controlling women's sexuality and reproductive lives;

2.  Enforcing incest taboos;

3.  Keeping extra-marital sex illicit;

4.  Creating male bonds (such as hunting and business) between fathers and their sons-in-law, and female bonds (such as conspiring to control the men-folk) between mothers and their daughters-in-law.

Now, while I am glad to grant Mr. Shulman props for intellectual honesty, I would probably give him a D+ at best for his analytical skill.  If I were grading his paper, I might note, for example,  that #3 and #4 are really just subsets of #1, and that #2 is a total non-sequitur.  But for intellectual honesty, I give Mr. Shulman a B+, because what he's really saying (and I would give him an A+ if he'd just come out and say it already) is that The Worst Thing About Gay Marriage [is that] It Will Undermine Patriarchy.  And you know what? He's right about that. And if you think patriarchy is a Really Neat Thing, and you're a smart (thrice married) boy like Mr. Shulman, gay marriage is definitely something to be worried about.

In other gay marriage news, lots of good folks are keenly disappointed in the California Supreme Court today, but I am choosing to look on the bright side.  I have not read the whole opinion (it's really long), but it strikes me that 1) the argument the plaintiffs were making was creative, but a bit of a stretch and that 2) the Court's opinion is reasoned and reasonable, even if reasonable minds can disagree.  The issue in the case (upon which, in the fine tradition of law students everywhere, I feel perfectly qualified to opine, despite the fact that I have not read the entire case) is whether Proposition 8 -- which restricts the equal protection provided under the California Constitution to same-sex couples by eliminating their previously-existing right to marry -- whether that Proposition constitutes a revision or an amendment to the California Constitution.  In a nutshell, a revision constitutes a "kind of wholesale or fundamental alteration of the constitutional structure," and can be undertaken only through a constitutional convention, whereas an amendment is a more discrete change to the Constitution, and may be undertaken through a ballot measure, such as Prop 8.  There is apparently a lot of law in California distinguishing the two, and it seems the Court interpreted that law somewhat conservatively, rather than expansively and creatively as the plaintiffs had hoped.  This is certainly disappointing if you like expansive and creative constitutional interpretations in the cause of justice (and I have been known to like them; for example, Roe vs. Wade is such an expansive and creative interpretation that I have on occasion vigorously defended against the argument that it may be good policy but it's bad law).  But it is not, as some are quite understandably in their disappointment suggesting, a grave miscarriage of justice. And don't forget this good news:  the Court upheld the same-sex marriages that have already been granted in California.

Indeed, at the end of the day, I continue to believe, as I have since I spent a lot time thinking about such things in law school, that political solutions are generally better than legal ones. Which is not to say that legal strategies are always misguided, because they are not; indeed, a legal strategy must often precede a political one, because it primes the pump.  In the case of gay marriage, Massachusetts and Connecticut served that purpose, but Vermont and Maine and New Hampshire are the true victories (you know, those activist legislators legislating from the legislature, as one dear friend put it -- kinda hard to argue they are thwarting the will of the people).  And we could have had the same victory in California, but for, by most accounts, a totally inept and botched campaign against Prop 8.  A well-run campaign some years down the road is very likely going to bring us the victory we all wished for in November, and again today, and it will be all the sweeter for being a political victory, the voice of the people, the will of the majority.   I would say that it's time to take a long view, but then I remember that only a few years ago, the long view put marriage equality sometime in my grandchildren's lifetime, maybe with luck in my children's, but most certainly not in mine.  It's good to be impatient with injustice, but it's not good to let that impatience steal our hope.  

This summer, Julie and I and our two children are going to Iowa (Iowa!) where we will be married.   Less than a generation ago -- indeed, since I have been an out lesbian -- that was inconceivable to me and most other queer folk.  The California decision notwithstanding, I remain full of hope.

*I realize in retrospect that my open letter to Andrew Sullivan was the first in my newest series, Dispatches from a Recovering Bleeding Heart.  I meant to write a witty piece here at the end explaining what I mean by that, but I am tired, and so you will have to wait.  Bet you're all holding your breath in anticipation, huh?