Marriage and Civilization

From the latest edition of "National Review":

One of the great coups of the movement for same-sex marriage has been to plant the premise that it represents the inevitable future. This sense has inhibited even some who accept that marriage is by nature the union of a man and a woman. They fear that throwing themselves into the cause of opposing it is futile — worse, that it will call down the judgment of history that they were bigots.

Yet a majority of Americans continue to oppose same-sex marriage. Support for it has certainly increased over the last 15 years, but the assumption that we can predict the future in which same-sex marriage is uncontroversial by drawing a straight line from this trend is unwarranted. Even among young voters, a majority of whom support same-sex marriage, that majority is hardly overwhelming.

Our guess is that if the federal judiciary does not intervene to impose same-sex marriage on the entire country, we are not going to see it triumph from coast to coast. Rather, we will for some time have a patchwork of laws. The division will not be so much between socially liberal and socially conservative states as between those states where voters can amend their state constitutions easily and those where they cannot. Thus same-sex marriage is likely to stay the law of the land in Massachusetts, Iowa, Vermont, and Connecticut, and perhaps also in New Hampshire.

In two of those states, at least, democratic procedure is now being respected. Vermont has chosen to recognize same-sex marriages legislatively, and New Hampshire may do so. While free from the taint of lawlessness, these decisions seem to us unwise. Few social goods will come from recognizing same-sex couples as married. Some practical benefits may accrue to the couples, but most of them could easily be realized without changing marriage laws. One still sometimes hears people make the allegedly “conservative” case that same-sex marriage will reduce promiscuity and encourage commitment among homosexuals. This prospect seems improbable: Where governments have recognized same-sex marriages and civil unions, this recognition does not appear to have had any noticeable effect in this respect. In any case, the encouragement of commitment among homosexuals is simply not as important a goal as the encouragement of lasting heterosexual bonds.

Which brings us to the question of equality. Same-sex couples want their unions recognized by governments in large part as a symbolic affirmation of their equivalence, at least for public purposes, with traditional married couples. As individuals, of course, homosexuals are the equal of any other citizens in their rights to vote, own guns, speak freely, and so forth. But making them (or anyone else) feel valued is not a legitimate task of public policy; and their sexual relationships do not further the purposes for which governments should recognize marriage.

Both as a social institution and as a public policy, marriage exists to foster connections between heterosexual sex and the rearing of children within stable households. It is a non-coercive way to channel sexual desire into civilized patterns of living — and not just any sexual desire, but desire of the type that regularly produces children. State recognition of the marital relationship does not imply devaluation of any other type of relationship, whether friendship or brotherhood or even same-sex romantic attachments. Governments can rightly take all kinds of steps that enable people to form, and prosper in, any of these relationships. They can make it possible for them to go about their lives in peace, and make it easier for them to establish the contractual arrangements that help with running a household. In none of those cases, however, is it necessary for the government to recognize the friendship or sexual relationship as such.

State recognition of same-sex sexual relationships singles out one kind of non-marital relationship and treats it as though it were marital, and it does this for no good reason. No, we do not expect marriage rates to plummet and illegitimacy rates to skyrocket in these jurisdictions over the next decade. But to the extent same-sex marriage is normalized here, it will be harder for American culture and law to connect marriage and parenthood. That it has already gotten harder over the last few decades is no answer to this concern. In foisting same-sex marriage on Iowa, the state’s supreme court opined in a footnote that the idea that it is best for children to have mothers and fathers married to each other is based merely on “stereotype.”

If worse comes to worst, and the federal courts sweep aside the marriage laws that most Americans still want, then decades from now traditionalists should be ready to brandish that footnote and explain to generations yet unborn: That is why we resisted.

California Supreme Court Weighs Legality of Gay Marriage Ban

March 5 (Bloomberg) -- The California Supreme Court, which legalized gay marriage in 2008, will consider whether it was unconstitutional for Californians to outlaw same-sex weddings in a ballot measure that sparked protests and calls for boycotts against its supporters.

Gay and civil rights groups and cities including San Francisco and Los Angeles are seeking to overturn the measure, known as Proposition 8, which on Nov. 4 won 52 percent approval of voters to amend the state constitution to ban homosexual nuptials in the nation’s most populous state.

They say Proposition 8 is illegal because it revises the constitution to rob a protected minority of equal rights and court protection. Revisions of the constitution must be handled by state lawmakers, according to lawsuits filed on Nov. 5. Proposition 8 backers said the court can’t reverse what voters have approved. Arguments in the case are scheduled for today in San Francisco.

“The court is always reluctant to overturn a ballot initiative,” said attorney Vikram Amar, who teaches constitutional law at University of California-Davis. “Prop 8 challengers will try to distinguish this initiative from others, that equality is somehow more important than other basic rights.”

The court will also decide whether to invalidate approximately 18,000 marriages performed before Proposition 8 passed. Four out of seven Supreme Court justices voted to legalize gay marriage in May. One of the four voted against hearing lawsuits seeking to overturn Proposition 8. That has led to speculation that there may be four votes against striking down Proposition 8, said Amar. A ruling is due within 90 days.

The ballot measure captured national attention because California was only the second state after Massachusetts to allow gay weddings and because of the backlash against its supporters.

Mormon and Evangelical churches in California were targeted by protesters over their support of the measure. Proposition 8 campaign donors, some of whose names were publicized on Web sites, received critical e-mails or calls to boycott their businesses, according to court records.

California has at least 92,000 same-sex couples, more than any other state, according to U.S. Census Bureau figures. The state supreme court ruled in May that homosexual couples have a constitutional right to marry. The ruling struck down laws barring gay weddings, and was reversed by Proposition 8.

“If permitted to stand, Proposition 8 would strike directly at the foundational constitutional principal of equal protection” by establishing “that an unpopular group may be selectively stripped of fundamental rights by a simple majority of voters,” Shannon Minter, legal director of the National Center for Lesbian Rights, said in court filings.

Minter, a 48-year-old transsexual who is married with a daughter, will argue on behalf of gay couples suing to overturn Proposition 8. He was one of the attorneys who successfully argued before the court in May to legalize gay weddings.

Kenneth Starr, the Pepperdine University Law School dean and former U.S. independent counsel who headed an investigation that led to former President Bill Clinton’s impeachment, will represent Proposition 8 supporters before the court today. Proposition 8 doesn’t revise the constitution or allow a majority to take rights away from same-sex couples because it leaves intact California’s domestic partner laws, Starr, 62, said in court filings.

Californians “will no doubt continue to debate the issue in terms of inalienable rights, justice, tradition and social welfare,” Starr wrote. “However, the judiciary no longer has a role in determining the definition of marriage.”