The Supreme Court, Gays, and the Death of Marriage

I stopped blogging about gay marriage a while ago because I had become tiresome on the subject. I was just reiterating the standard arguments in favor so what’s the point? I figure the current Supreme Court docket provides me a last ditch opportunity to say something original on the subject and then shut up about it forever.

The most admirable aspect of conservative political philosophy is its preference for gradual organic change to top-down fiddling by technocrats. By these standards, the argument that a change in the legal definition of marriage would cause the existing social institution to come tumbling down is profoundly unconservative. If traditional marriage is so frail that it requires constant ministration from statehouse bureaucrats to keep it alive then the market has clearly spoken, and it should be allowed to die.

Homophobia is not racism. Ethnic and racial groups perpetuate themselves by means of childbirth. Heterosexual family structure is an inextricable part of the whole business. Anyone can feel hostility towards the random black stranger walking down the street. In order to be a racist and not merely a jerk you have to also feel hostility to their ancestors and children, sight unseen. Homosexuality, on the other hand, is not passed from parents to children. It is a condition sprinkled at random across ethnic, class, and geographic lines. This is good news because family structures correlate with lots of other socioeconomic factors, while random things correlate, by definition, with nothing. If you waved a magic wand that instantly and forever erased racism from the hearts of all Americans, a black underclass would persist in this country for economic reasons alone, and its recognizably black social characteristics would continue to be disparaged simply because they were recognizable. (How do I know this? Ask yourself, my fellow white people, how many times you have referred to one of our beautiful brothers and sisters as a redneck or white trash and really meant it.) Wave a different magic wand that abolishes homophobia and that’s it. There are no structural conditions to keep the hostility on life support. It would simply disappear.

One disaster scenario promulgated by anti-gay-marriage proponents is that a Supreme Court overturn of Proposition 8 and DOMA would be a homosexual Roe v. Wade, a ruling handed down from on high that a significant portion of the American populace abhorred, causing the underlying conflict to drag out for generations. I think this is mostly an attempt to spread generalized uncertainty and doubt, along with invocation of fighting words about abortion, but a part of me shares this fear. The unelected status of the Supreme Court was an excellent design decision on the part of the Founders1, but a resolution of a contentious issue in the judicial branch can cause it to become frozen in amber. This is undesirable for gay rights advocates, whose most fool-proof strategy is to remain visible and wait for everyone over the age of sixty to die. We win by running out the clock, so it’s in our interests to keep the clock running.

I was pleased when Rand Paul came out in favor of gender-neutral marriage laws. The fact that he is a member of a political party I vote against with distressing regularity and was presumably engaged in some elaborate triangulation within the American right only makes me happier. When an opponent starts advocating your views in the service of their ends you know you’re winning the negotiation.

Finally, there’s a good chance that things will break the liberal way, that gay marriage in America will continue to accumulate legal victories and social acceptance, and that in a decade’s time it will be the norm in all fifty states and people will wonder what the fuss was all about. This would be a wonderful thing, but it wouldn’t change the fact that state-administered marriage is an antiquated, intrusive, and discriminatory institution. It is the result of a deal worked out over the past couple centuries in which modern secular states agreed to take on the church’s traditional job of micromanaging human sexuality to no end beyond showing everyone who is boss. The church did this with threats of hell in the afterlife and social banishment here on Earth. The state prefers to erect a cocoon of economic and legal incentives, each individual one of which is easily ignored, but God help you if a life partner dies intestate or ends up on a ventilator and you lack the paperwork to prove that the two of have been conducting your sex lives in the appropriate manner. (One positive result of Proposition 8 is that its proponents have had to retreat from appeals to tradition, social stability, and The Children, and admit that for them it really is about government regulation of coitus.) Legalizing gay marriage would extend an arbitrary and exclusionary set of rights to a broader group of people, while still discriminating against elderly platonic friends who would like to designate each other as their primary decision maker, people who prefer to organize childrearing along something other than two-parent “nuclear” lines2, those who quite reasonably resent being bullied into getting a thumbs up on their most intimate relationship from a court clerk, and single people. Northern European countries where long-term cohabitation has been replacing legal marriage among couples–including heterosexual, monogamous, child-rearing ones–have the right idea, not us. If it hadn’t proved such an indignity for my same-sex friends, I would have been in favor of reserving the word “marriage” for opposite-sex couples (preferably those married in a church), to emphasize how backwards the idea is, and encourage society to replace it with better arrangements while legal marriage itself withered away.

1And by the way, my fellow red-equals-sign partisans, it’s no use posting Facebook warnings to Alito, Thomas et al. about how closely you’re watching them. It’s their job not to care.

2In other words, traditional families.

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