Monday, November 17, 2008

Same Sex Marriage
Mike Rappaport

In California, Florida, and Arizona, same sex marriage (SSM) lost again. That this occurred in liberal California is especially significant. Dale Carpenter notes that SSM is now 0 for 30 in ballot fights.  It has also never been enacted by a legislature.   

What this says, quite obviously, is that voters and elected representatives simply do not approve of SSM today.  It can only exist through the actions of courts.  Of course, SSM might come to prevail in the future, perhaps the near future, but for now, it is simply a minority position.

I am not a supporter of SSM today.  Perhaps one day, but not today.  I believe that the country should experiment with civil unions and see what the results are.  But if I were a supporter of SSM, I would not recommend the current course of action of SSM advocates of trying to impose it through court decisions.  That way just confirms that the nation is against SSM.

It is easy to forget how much progress gay rights and SSM have made in the last decade or so. It was only in April 1997 that Ellen DeGeneres' sitcom character came out on television, and what a shock it seemed to many people.  Now, we live in a world where gay characters are common and almost cliched. 

It is primarily through cultural changes that gay rights have been achieved.  Legal actions are not the primary way to go. 

So how to promote SSM culturally?  Well, gay couples in California and other states where there are civil unions should describe their relationships as marriages.  There will certainly be a period of time when the person hearing the description will ask, "but I thought same sex marriages were not legal in California."  The gay couple should respond, "oh, we have the same rights as married couples, we think of ourselves as married, and we don't think the state should tell us what words we should use to describe our relationship."  If gay people behaved as married couples, and straight people got accustomed to seeing gays as married, then straight people might be more inclined to recognize SSM legally.

Advocates of SSM and gay rights should recognize what has worked for their cause, what has not, and go with the former.  Unfortunately, for advocates of SSM and for the nation, the SSM movement seems to be dominated by a legal rights view of how to make progress.

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Mike Rappaport
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Comments

SSM advocates would also be well advised not to continue to engage in terrorist acts in churches.

Posted by: krome | Nov 17, 2008 6:50:00 AM

Equal Rights for African-Americans and Latinos had to come through the courts. It would not have worked through the legislature. Maybe SSM needs the same thing.

Posted by: Matt | Nov 17, 2008 10:20:21 AM

Matt,

Ever heard of the Voting Rights Act or the 14th Amendment? I think those were passed by legislatures. I will have to bleg but I recall a pretty seminal article on whether the Courts or Legislature had more effect and the study came out that the most progress for blacks was made after the legislative acts.

Furthre, the Courts also blessed us with such gems of legal wisdom such as Dred Scot and Plessy. If a group depends on the Courts to enforce - or, in the case of SSM, invent - its rights then the Court can always say nope, we take them back. However, a cultural change is much more difficult to reverse.

Posted by: unhhyphenatedconservative | Nov 17, 2008 10:46:52 AM

For good or ill most people have a personal definition of the word marriage that is unlikely to change. No such issue pertains to the term civil union. An awful lot of couples that refer to their union as marriage are, in fact, united by contract and common species only. Few people have any serious issue with these contractual arrangements. These are referred to commonly as marriages in name only.

Why should not all civil unions be called just that in all official state documents? Strike the word marriage from the license, the contract, and the law. Let marriage be the province of the church subsequent to, if desired, the civil union. Thus would the baggage associated with the word marriage return to society at large and cease to be a legal matter. Frankly, marriage is more a state of mind and grace than one of law. The state already views it as merely a contractual arrangement. The hullabaloo is about a word that has no place in the legal code of a society that prides itself on non-interference with religion.

Posted by: Ralph | Nov 17, 2008 11:24:04 AM

Obviously I've heard of the 14th amendment. It took a war to get that one passed. And the voting rights act, came many years after desegregation and other important judicial decisions.

Posted by: Matt | Nov 17, 2008 1:23:35 PM

"Ever heard of the Voting Rights Act or the 14th Amendment?"

Well, yeah. But it took a court interpreting the 14th Amendment to undo anti-miscegenation laws (see, Loving vs. Virginia). Anyway, my view is that the state should just get the hell out of the "marriage" business -- basically, what Ralph said.

Posted by: sam | Nov 17, 2008 5:28:16 PM

Sam, the Courts also interpreted the 14th to enshrine segregation. So again, I'm not all that impressed with the Court's role.

Posted by: unhhyphenatedconservative | Nov 17, 2008 10:56:01 PM

Someone please explain why same sex marriage is constitutional although illegal, but polygamy and polyandry would not be constitutional.

Posted by: josil | Nov 18, 2008 12:17:27 AM

Technically speaking, I think that polygamy and polyandry should be legal if same sex marriage is deemed as such. However...I can imagine so much administrative hell involved in polygamous marriages. First, are the wives (or husbands as the case may be) married to each other? Or are they just married to the husband? And what happens as far as property rights, definition of assets, custody of children, etc.? Polygamous divorce seems like it would take years in court. So as a practical matter, I don't believe polygamous marriages would work, although from a pure civil rights/fairness perspective I can't separate them from same sex marriages.

Posted by: amanda | Nov 18, 2008 5:12:17 PM

It would really help if gay men started giving birth. At least then the equality argument would hold.

Posted by: K T Cat | Nov 19, 2008 8:39:39 AM