Rod Dreher, I think, has a it right. Conservatives ought to support same-sex marriage legislation. I have been ambivalent about the Church’s involvement in Prop 8. My own position is very much like Russell Arben Fox’s. I think that there is a creditable case to be made that the equation of same-sex marriage with traditional marriage, by denying that sex differentiation is a necessary element of marriage, tends to reduce marriage down to affection and consent.
The problem with the affectionate, contractual view of marriage is that it reduces the ability of marriage to serve as a public institution that models the long term complentarity of men and women. More importantly, to deny that gender matters to marriage means that it becomes much less important as a mechanism for defining and socially enforcing the obligations that men owe to women and mothers. I suspect that this is why, for example, blacks favored Prop 8 more than any other ethnic group, and why black women favored Prop 8 at higher levels than blacks as a whole. Some — but by no means all — portions of the black community suffer from the breakdown of male responsibility, and black churches have been pushing marriage as a solution, a model of how men ought to relate to women. By stripping out gender, the institution becomes mainly about romantic love and consent, and it loses some of its ability to perform other important ideological work.
On the other hand, I don’t think that gay marriage is the biggest threat to traditional marriage by a long shot, and because I think that homosexuality is biologically determined I don’t believe that gay couples will ever be a significant portion of the population. Indeed, if gay marriage becomes widely available — as I think that it eventually will — then I suspect that as a matter of social meaning it will be differentiated. There will be “marriage” and “gay marriage,” which will be understood as similar but not entirely identical social institutions. At least, I hope that this is what happens. The notion that marriage is an institution that models how men and women relate to one another AS men and women will continue, but it weakened form.
Unlike Russell, however, I have no warm fuzzies about the referendum process. Indeed, I think that referendums tend to over simplify issues and reduce the give and take compromise that makes for stable social settlements in a democracy. The polarization around Prop 8 is a good case in point. The more man hours Mormons spend knocking on doors and distributing signs, the less likely they are to be willing to work for some long-term settlement less than total victory. The more time gay-rights activists spend demonstrating against hate by vandalizing Mormon temples and shouting epithet at temple workers, the less likely they are going to be able to see past their fury, understand the concerns of those with whom they disagree as anything other than bigotry, and work out a modus vivendi. Rather, the push will be — as it has been in Massachusetts, Connecticut, and California — to constitutionalize the issue. Should the political momentum continue as it has, this push will ultimately reach federal law as well, and an Obama presidency will be pushing the federal courts to the left.
In the long term, I suspect that social conservatives have lost the culture on this one. Friends, Will & Grace, and all the rest have given the young in particular a model of marriage in which arguments that see it as anything other than affection and self-imposed obligation become largely meaningless, if not barbaric and intolerant. The danger is that the political momentum created by this cultural force will result in the constitutionalization of the issue. Why does that matter? Because once gay marriage is enshrined in constitutional law, religious freedom and free speech no longer act as trumps. Rather, they become competing constitutional concerns that must be weighed against the constitutional values enshrined in rights to gay marriage. In other words, a constitutional resolution of the issue leaves religious institutions and social conservatives in a much more vulnerable position. As it happens, I think that compared to other advanced democracies, American constitutional law has a laudably libertarian (or at least relatively libertarian) record on free speech and, to a lesser extent, freedom of religion. These are important constitutional values, and I doubt that they would be swept aside by the constitutionalization of same-sex marriage. They would, however, I think be weakened over the long term.
If gay marriage is going to come, let it come via legislation. The result would be healthier as a matter of political and social culture and as a matter of constitutional law. Legislation, produced as it is in the rough and tumble of partisan horse trading is unlikely to partake of the kind of total victory and total defeat represented by a court victory or a constitutional ban via referendum. This is actually a good thing. While both sides end up feeling frustrated by the process, neither side feels the overwhelming sting of defeat. Likewise, a legislative resolution does not enshrine the result in constitutional law, where it sits about as a possible counterweight to free speech or free exercise rights. As it happens, I think it unlikely that anyone would push for laws requiring churches to officiate over gay weddings. On the other hand, we do have actual, concrete calls for taxing the property of churches that purvey “hate.” Best not to enshrine such attitudes in constitutional law. Indeed, in 2006 when the First Presidency urged members to contact their Congressmen regarding a constitutional definition of marriage then being proposed in the House of Representatives, I wrote a memo that I circulated to folks that I knew from my time as a Senate staffer in which I attacked the proposed amendment and argued for the complete deconsititutionalization of the same-sex marriage debate.
The problem with such a move is that it would require that gay rights groups give up on the quick, relatively cheap expedient of victory through the courts. It would also require that they give up on the sense of total validation that comes from an authoritative declaration that one’s opponents are outside of the realm of acceptable democracy. For traditional marriage activists, it would require giving up the joy enshrining traditional marriage in referendum-passed constitutional provisions that find themselves at war with demographically driven shifts of in social attitudes, at least in some jurisdictions. Indeed, if one believes — as I do — that there is something important about maintaining marriage as an institution for creating and enforcing social norms about gendered relationships and responsibilities, a muddled legislative compromise is much to be preferred to the widespread adoption into constitutional doctrine of the position taken by the Goodrich court in Massachusetts, namely that the gendered element of marriage was so irrational as to be wholly illegitimate.
In this sense, as a social conservative, I actually find the moves in the New York State Assembly toward the creation of gay marriage via statute oddly encouraging. It would be nice if California found a way of deconstitutionalizing the debate and if the California Assembly took responsibility for the the issue. Unfortunately, I suspect that the dysfunctionalities of California’s politics, and the Manichean outlook created by In re Marriage Cases and Prop 8 make any such settlement unlikely.