Gay Marriage...Here we go again
This coming summer, the Massachusetts Supreme Judicial Court is likely to legalize gay marriage. If that happens, a convulsive national battle over gay marriage will break out — right in the middle of the next presidential-election season. The ultimate outcome of our coming national culture war over gay marriage will either be legal gay marriage throughout the United States, or passage of the Federal Marriage Amendment, which defines marriage as the union of one man and one woman. There will be no middle ground.
Last year, in "The Right Balance," I explained why the institution of gay marriage in even a single state would quickly lead to a massive legal-political struggle to ban or nationalize the reform. As of now, a variety of mechanisms are in place that would seem to allow a state to deny recognition to a gay marriage performed elsewhere. The Defense of Marriage Act was passed in 1996 for this express purpose. Also, nearly three quarters of the states have passed laws or constitutional amendments defining marriage as the union of a man and a woman. And the "public policy exception" doctrine provides grounds on which a state can deny recognition to a gay marriage performed in another state.
Yet each of these mechanisms is vulnerable to challenge on constitutional, legal, or political grounds. The Full Faith and Credit Clause of the Constitution compels each state to recognize the public acts of all the others. While the clause does grant Congress the right to manage such recognition (thus apparently validating the Defense of Marriage Act — DOMA), there is no doubt that DOMA will be challenged on Full Faith and Credit grounds as soon as we have gay marriage in a single state. Powerful constitutional challenges to DOMA on Equal Protection Clause grounds will also be filed just as soon as gay marriage is legalized in a single state. Attempts to prevent recognition of gay marriage on grounds that a state has a right to declare a "public policy exception" are also highly vulnerable to legal and political pressure.
Above all, as I explained in "The Right Balance," the nature of marriage, and of our federal system, make it exceedingly unlikely that the nation will be able to tolerate a situation in which people who are legally married in one state are considered unmarried in another.
So if gay marriage is legalized in Massachusetts this coming summer, several things will ensue. First, gay couples will flood into Massachusetts from across the country to get married. Returning to their home states, they will file a series of lawsuits at the state and federal levels seeking to compel recognition of the marriages performed in Massachusetts. The airwaves will be filled with tales of gay couples outraged by the fact that a simple drive across state lines invalidates their marriage.
All this will galvanize opponents of gay marriage. It will immediately become apparent that the extra-legislative decision of a few judges in Massachusetts threatens to impose gay marriage on the entire country. The only viable solution will be passage of the Federal Marriage Amendment, and the campaign for the FMA will immediately move into high gear.
Right now, hardly a politician in the country wants to talk about gay marriage. Liberals fear that favoring it will mark them as culturally radical. Conservatives fear that opposing it will label them as hard-hearted "homophobes." Like abortion, politicians dread the gay-marriage issue because it cannot be easily compromised. Yet after Massachusetts acts, and the campaign for the Federal Marriage Amendment kicks into high gear, every politician in the country, and certainly every presidential candidate, will be forced to take a stand on gay marriage.
It's difficult to say exactly how the gay-marriage issue will play out politically, but the likelihood is that it will help the Republicans. Substantive issues aside, a court-imposed national culture war over gay marriage would be the most powerful conceivable illustration of over-reach by liberal judges. Every Republican will begin his statement on gay marriage the same way: "Whatever you think about the rights and wrongs of this issue, this is a matter for the people of this country to decide through their elected representatives, not something that should be imposed on them by the courts." The Republican case for the appointment of strict constructionists will never be stronger than during the next campaign.
The gay-marriage battle will accentuate the culturally based red/blue split in the electorate. On balance, though, this issue tilts against the Democrats. In 2000, the imposition of gay civil unions by the Vermont supreme court resulted in a Republican takeover of the house of representatives in a state that went overwhelmingly for Gore (and Nader). Blue-collar Reagan Democrats moved over to the Republicans in droves. (For more, see my "Florida? Try Vermont." )
Once the gay-marriage issue is federalized, the same sort of shift is likely to harm the Democrats nationally. So even if opponents of gay marriage fail to muster the number of votes in Congress and state legislatures needed for passage of the Federal Marriage Amendment, this issue has the potential to decide the race for Congress and the presidency, and to color the image of both parties for many elections to come. With the Democrats meeting in Boston in 2004, the connection between the party and the state court that tried to impose gay marriage on the nation will be permanently cemented in the public mind.
By the way, the legal briefs filed in the Massachusetts court case argue that there is a "right to marriage" for same-sex couples under the U.S. Constitution. The briefs also argue that DOMA is unconstitutional. So this case is an unambiguous attempt to move beyond a single state and impose gay marriage on the nation as a whole. And while no one is going on the record, the scuttlebutt among court watchers in Massachusetts is that the Supreme Judicial Court is very likely to legalize gay marriage.
Right now, proponents treat the gay-marriage debate as a question of civil rights. But the real issue is what effect gay marriage will have on the institution of marriage itself. The media has so far suppressed that critical question (although, in the summer of 2001, we debated it extensively on NRO). Yet, if Massachusetts does legalize gay marriage, the national debate may change. Once the gay-marriage issue becomes both unavoidable and national, pundits and politicians opposed to the change will be forced to speak up, and the press will be forced to cover both sides. And just now, with the publication of Joined at the Heart, a book about the changing American family by Al and Tipper Gore, an opening to real debate on the issue of gay marriage and family stability has emerged.
Superficially, Joined at the Heart is a socially liberal, but nonetheless moderate and levelheaded book. The Gores do criticize conservative defenders of the traditional family, and they do argue that emerging family forms are generally to be welcomed. At the same time, the Gores are careful to worry about the high divorce rate and the high rate of single motherhood. For the most part, the book quotes liberal family experts, but a few conservatives are called on as well. All in all, the book gives an impression of carefully moderated and balanced social liberalism.
Yet the book's central conceit is almost breathtakingly radical. By "joined at the heart," the Gores mean that the family should no longer be defined by its "structural" characteristics, but only by emotional ties. Whatever the legal or biological facts of the matter, if a group of people love each other — if they are truly "joined at the heart" — then they are a family.
The Gore's borrow this concept from a legal argument made by feminist Harvard law professor Martha Minow. Minow defended a woman who had been the lesbian partner of a woman who gave birth to a child through artificial insemination. The couple reared the child together, but broke up after two years, at which time the birth mother cut off visitation rights to her former partner. When that partner sued for visitation rights, Minow argued on her behalf that legal marriage and biological connection were less important to the definition of a family than emotional ties.
Wisely, the court ruled against Minow. To have done otherwise would have been a major step toward the elimination of any stable legal or social concept of marriage. Once legal marital status and biological connection can be set aside by a court on grounds of emotional connection, the notion of marriage itself is effectively mooted. At that point, anyone who claims emotional connection can gain court recognition as a de facto parent or marriage partner. Minow was careful to frame her notion of family as "any group of people" who care for each other. Obviously, under that definition, not only gay marriage, but polygamy and group marriage would gain de facto legal status.
Among other examples, the Gores use a couple named the Logans to illustrate creative and flexible family forms of the type they want to encourage. The Logans are a white gay male couple who adopted a child from a black HIV positive mother. (The child turned out to be HIV negative.) Since both men had fulltime jobs, they hired a nanny to care for their new son. The nanny, an Hispanic woman, was herself a single mother with two children, the second a mere three months old. The nanny found it difficult to support and care for that second child. When the nanny saw the loving and prosperous family she was working for, she asked the Logans to adopt her second child, which they immediately did (allowing her to visit it periodically, to this day).
The Gores find this story inspiring. Yet it's possible to respect and empathize with the Logans, while still doubting that their story is a positive development. While the Bush administration is sponsoring programs that try to get poor women, like the Logan's nanny, to wait until marriage to have children, the Gores are not attracted to traditionalist solutions. Instead, the Gores seem to be saying, "Have the child on your own. If it's tough to raise him, you can always give him to a wealthy gay couple for adoption." Of course, the Gores claim to be concerned about the rise of single parenthood, but it's tough to see how the Logan family model will do anything but encourage it.
Gay marriage is interesting because couples can only parent through adoption or artificial insemination. The same is true for infertile heterosexual couples, of course, but gay marriage will radicalize the pattern in several ways. First, it will lead to a numerical proliferation of ties between married couples and third parties (like the Hispanic nanny). Second, it will change the idea of adoption or insemination from the status of "second best" to the status of first principle. Third, because gay marriage itself will fundamentally redefine marriage, it will open up marriage to yet more radical redefinitions. So at some point after gay marriage has been legalized, a gay couple, in partnership with a birth parent or inseminator, are likely to seek recognition as a collective "family." (In fact, "polyamorists" already seek legal recognition for group marriage.) Under the Gore doctrine, such a family, being "joined at the heart," ought to be recognized by the courts. The difficulty is, group marriages are unstable, and their very existence tends to undermine the social reinforcement currently offered to traditional married couples. Once marriage can mean anything, it will mean nothing.
The Gores don't see this (although I'm sure Martha Minow does). In their formulation, any group of people who are "joined at the heart" ought to be informally considered a family, regardless of their formal legal status. That formula allows the Gores to sidestep direct advocacy of gay marriage. But by endorsing Minow, the Gores are really endorsing a system wherein the courts disregard formal marital status, effectively abolishing marriage, superseding the legislature, and setting up a system of infinitely flexible family forms with no commonly agreed upon rights or responsibilities. All such rights and responsibilities will be subject to legal wrangling, based only on subjective judicial judgments about the strength of emotional ties.
So underneath the Gores' moderate liberalism lies a shocking radicalism, the full implications of which even they do not see. In general, political avoidance of the gay-marriage issue, combined with the false analogy to civil rights, has obscured the true effect that same-sex marriage will have on the institution of the family. Yet as soon as next summer, the gay-marriage issue may finally beak out into the open. At that point, the Republicans will have to call Al Gore and the Democrats on the radical and damaging implications of their social philosophy for the institutions of marriage and the family.
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