I’ve been trolling archive.org for specific blog posts made long before the server crash that wiped out all that NathanShumate.com had once been. I finally found one that I had been seeking, called “Points of Order in the Same-Sex Marriage Debate,” which I had originally written March 25, 2004 — just a wild and crazy kid with a dream.
I think it’s pretty apparent who’s going to win the current round of the Culture Wars. The momentum for same-sex marriage is too great for conservative forces to put the breaks on it. I don’t want to be a part of the debate per se, but I do want to throw out some thoughts for all sides involved — the pro, the anti, and the judiciary — to try to dull the sharp edges of the argument, and keep the introduction of same-sex marriage into American society from being a completely destructive collision.
.To the judiciary: I know you’re already waist-deep in this, so this comes as more of a hindsight thing, but I really think that legislative bodies were better suited for dealing with this. I know there are many on the bench who feel that their job isn’t merely to extrapolate from the federal and state Constitutions to apply principle to practice, but to enlarge upon those Constitutions, extending them beyond their set bounds as conscience and wisdom dictate. (One could call the former practice “rabbinical” and the latter “papal,” if one were feeling one’s oats.) Just remember: Each of these Constitutional documents contains within it the necessary mechanisms for its change. Where possible, trust to those inbuilt mechanisms for adding to the core tenets of a Constitution, okay?
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To the pro side: When debating your opponents, please keep the snide “Brown v. Board of Education” references to a minimum, okay? For one thing, your opponent doesn’t think that this situation is a parallel, and simply repeating your “is too” contention doesn’t convince, even if it gives you that little warm righteous glow inside. For another thing, even implying “If you don’t agree with me, you’re no better than a racist” seems like it deserves a corollary application of Godwin’s Law (whoever compares the opposition to Hitler first loses). You’re ahead in the courts right now, and a constitutional amendment is unlikely; you can afford to be gracious.
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To the anti side: Don’t wave your Bible as part of your argument, folks. Not only does it only convince those who already agree with you; not only does it send the message that you have no better backing for your stance on public policy than your religious convictions; but it makes a very clear precedent for some other group, later down the road, to use THEIR holy writ as basis for a policy movement, be it the Koran, the Book of Mormon, the Bhaghavad Gita, the Satanic Bible, the Revelations of Glaaki, etc. And you know you don’t want that.
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To the judiciary: If you’re ultimately going to justify the imperative to legalize same-sex marriages by an appeal to intrinsic human rights, please find a better reason than the idea that disallowing same-sex marriage is an instance of unequal protection. The reality is not that homosexuals aren’t allowed to marry; many have, very legally, to a person of the opposite sex. The law does treat everyone equally, in that no one, homo or hetero, is permitted to marry someone of the same gender; the difference, obviously, is that’s who heteros WANT to marry anyway. What this “equal protection” argument really boils down to is, “Gays can’t marry whoever they want, and straights can.” Which is, of course, false. Depending on their local laws, straights may not be able to marry a given individual due to matters of age (and parental consent), familial relationship, legal status, or current marital status. This is just one of several restrictive conditions imposed on the admissability of marriage.
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No, your best bet for a justifiable argument is one of negative compelling interest, i.e., that the state has no compelling interest in determining the gender requirements for a legal marriage. I know that this may rub the wrong way with a higher judiciary that is used to using compelling interest claims positively, but it’s your best bet for a defensible position.
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To the pro side: Please don’t try to tell me that allowing same sex couples to marry isn’t going to force everyone, including those who were opposed to the concept, to accept their marriages as real. (Yes, one young activist-commentator actually said that.) Ofcourse it is. If I’m an employer, an insurer, a landlord, an educator, a medical professional, a law enforcement professional, or anyone else who must deal with people on the basis of spousal or parental rights, I’ll be legally obligated to accept your marriage. In fact, it’s an insult to my intelligence to claim that you’re not looking for full public acceptance of such a marriage as a marriage in fact. That’s the point of the entire crusade, isn’t it? I mean, this IS about more than income tax brackets, right?
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To the anti side: Remember that, although this does permanently alter the structure and role of marriage in our society, it isn’t in itself a single blow felling the tree. Western marriage has been mutating for a century, becoming definitionally separate from its original conception as a structure built around reproduction and social continuity. In a world where publicized celebrity “marriages” routinely last no longer than the expiration date on a gallon of milk, it’s hard to point and say that this one issue, same-sex marriage, single-handedly ends marriage as we once knew it. Instead, think of it as the signpost of permanence, the point of no return. It’s true; things will never be the same as they were.
The point of rescuing this post is in the second-to-last paragraph — that whole bit about activism for same-sex marriage not “forcing everyone, including those who were opposed to the concept, to accept their marriages as real.” I still chuckle about that; it was such a blatant untruth, even then, that I can’t imagine anyone could honestly have put the idea forth.