The Demise of the Case Against Same-Sex Marriage

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The preacher in Ecclesiastes was wrong: as we approach the end of 2012, there is something new under the sun, or at least something new on the horizon. In 2013, with two cases to be argued and decided by the Supreme Court, we are likely to see the beginning of the end of the debate over same-sex marriage in the United States.

Die-hards against marriage equality will stick to their guns. Rick Santorum will continue to warn that gay marriage will “destroy the institutions of America’s foundation” and equate homosexuality with “man on child, man on dog, or whatever the case may be.” Maggie Gallagher will still contend that gay marriage is the scourge of the century and devote her life to fighting against it.

But we have reached a moral, legal and demographic tipping point in the controversy. All signs point to an imminent marriage revolution: gay and lesbian Americans across the country will enjoy a right to marry — probably before the end of next year.

The evolution of the case against same-sex marriage has been swift. The natural law argument rooted in Catholic doctrine was dominant in the 1990s and early 2000s. When this narrative wore thin, conservative legislators pivoted to less esoteric arguments with wider appeal about the welfare of children raised in same-sex households. And when these worries were found to be mutually contradictory and empirically baseless, the case against marriage equality moved to the constitutionally frail claim of last resort: the contention that individuals can be excluded from a civic benefit if their lifestyles are seen as morally distasteful by a political majority.

Here is the story of how far the argument against marriage equality has come, and how feeble it has become, in three steps.

#1: Same-sex marriage is unnatural

Harry Jaffa made this point most bluntly and forcefully in 1989: Using “men as if they were women, or women as if they were men…violates the order of nature.” He expanded on this view here:

Mankind as a whole is recognized by its generations, like a river which is one and the same, while the ever-renewed cycles of birth and death flow on. But the generations are constituted — and can only be constituted — by the acts of generation arising from the conjunction of male and female. The distinction between a man and a woman is not only in itself according to nature, but is the very distinction by which nature itself is constituted. Lincoln once said that if slavery is not unjust, nothing is unjust. On the same premises, if sodomy is not unnatural, nothing is unnatural.

I am tempted to write, “if this is not an awful argument, no argument is awful,” but let’s try to be more charitable for a moment. It is true that sexual relations between same-sex partners cannot result in procreation, and there is a biological reality, a naturalness, to the “distinction between a man and a woman.” But it does not follow, in a world where human beings routinely have sex for non-procreative purposes, where condoms and birth control pills are ubiquitous, where Viagra and testosterone replacement therapies are hawked on prime-time television, where surrogate motherhood and in vitro fertilization are common methods of conceiving a child, that homosexual sex is anywhere near the practice most divorced from the order of nature, or that “unnaturalness” should disqualify homosexual couples from taking marriage vows. In a groundbreaking article in 1995, political theorist Stephen Macedo noted another sense in which Jaffa erred:

[W]hat do we make of the fact that nature has made…many people attracted to members of their own sex? Leading natural lawyers in the Catholic tradition now allow…that homosexuality is an unchosen condition and ordeal for many homosexuals. This concession calls for a sympathy completely lacking in Jaffa’s arguments.

Instead of sympathy, conservative academics prefer to assign shame to homosexuals. Macedo quoted Harvard professor Harvey Mansfield, for whom the libido is “a tyrannical passion of overwhelming strength” that cannot be quelled by reason alone. The only effective counterbalance to the fire of lust is “shame.” Echoing Jaffa, Mansfield wrote,

For if the practices of homosexuals are not shameful, what is?

Rhetorical questions masquerading as arguments, for one. But there are less shameless and less overtly hostile claims against homosexuality in the natural law tradition. For John Finnis, a professor of law at Oxford, “masturbatory” heterosexuality is just as contrary to nature as intercourse between partners of the same sex:

For: a husband and wife who unite their reproductive organs in an act of sexual intercourse which, so far as they then can make it, is of a kind suitable for generation, do function as a biological (and thus personal) unit and thus can be actualising and experiencing the two-in-one-flesh common good and reality of marriage, even when some biological condition happens to prevent that unity resulting in generation of a child. Their conduct thus differs radically from the acts of a husband and wife whose intercourse is masturbatory, for example sodomitic or by fellatio or coitus interruptus. In law such acts do not consummate a marriage, because in reality (whatever the couple’s illusions of intimacy and self-giving in such acts) they do not actualise the one-flesh, two-part marital good.

This equal-opportunity moralizing is a significant step up from the animus of Jaffa and Mansfield, but it is not likely to attract much popular support. At least 80 percent of men and women in the United States have had oral sex, and masturbation is not a rarely committed sin in the land. It would be understating matters a bit to claim that Finnis’s preferred moral universe is distant from the American reality. In 2003, the U.S. Supreme Court ruled without much fuss among the general population that banning sodomy — the practice Jaffa had declared irredeemably unnatural — was inconsistent with basic constitutional liberty. To appeal to the masses, conservatives had to turn to another line of attack.

#2: Same-sex marriage will hurt children

In 2005, reflecting on the congressional debate over the proposed Federal Marriage Amendment defining marriage as a union between one man and one woman, Frederick Liu and Stephen Macedo observed how the narrative was changing:

Strikingly, senators avoided moral criticisms of homosexual conduct and relationships. Republican senators sought to shift the focus of the debate away from homosexuals and toward children; instead of advancing a morally perfectionist case against gay marriage, they relied on what seemed to be less controversial and more widely acceptable claims about children’s welfare. 

Macedo and Liu assessed this strategy as “cynical, opportunistic, and inconsistent with…equal respect and fairness.” It was also empirically bankrupt. Consider two senators’ comments (quoted by Macedo and Liu) during floor debate in July 2004. Sen. Orrin Hatch of Utah insisted that the FMA “is not about discrimination. It is not about prejudice. It is about safeguarding the best environment for our children.” Sen. John Cornyn of Texas elaborated on this claim: children raised in same-sex households “are at a higher risk of a host of social ills,” including drug abuse, criminal activity and dropping out of school.

As every major child welfare organization attests, none of these claims can be substantiated by available data. The Child Welfare League of America “affirms that gay, lesbian, and bisexual parents are as well suited to raise children as their heterosexual counterparts.” The American Psychological Association notes that studies have “failed to confirm any…concerns about children of lesbian and gay parents.” The American Academy of Pediatrics agrees:

More than 25 years of research have documented that there is no relationship between parents’ sexual orientation and any measure of a child’s emotional, psychosocial, and behavioral adjustment. These data have demonstrated no risk to children as a result of growing up in a family with 1 or more gay parents. Conscientious and nurturing adults, whether they are men or women, heterosexual or homosexual, can be excellent parents. The rights, benefits, and protections of civil marriage can further strengthen these families.

So what exactly is the problem with children growing up with two moms or two dads? Zach Wahls’ speech dismantling the case against homosexual parents two years ago before the Iowa House of Representatives has been viewed 2.7 million times on YouTube. It speaks for itself. It’s no wonder that the claims about child welfare and same-sex marriage have evolved in a baffling direction. Consider the bizarre basis on which New York State’s highest court excluded gays and lesbians from marriage in a 2006 case. Homosexual couples “can become parents by adoption, or by artificial insemination…but they do not become parents as a result of accident or impulse.” By contrast, straight couples have relationships that are “all too often casual or temporary” and therefore need marriage “to create more stability and permanence in the relationships that cause children to be born.” Because they do not conceive and bear children willy nilly, gays and lesbians already have more stable relationships, the Court reasoned; they don’t need the civilizing institution of marriage as much as heterosexual couples do.

This counterintuitive justification for denying homosexuals the right of marriage boggles the mind, as does the argument out of the California Proposition 8 case now headed for the Supreme Court that opening marriage to homosexuals contributes to a “deinstitutionalization” of marriage that is already underway, as seen in rising rates of divorce and out-of-wedlock births. Loosening marriage further by letting gays and lesbians take vows would exacerbate the demise of marriage as we know it, and children across America, those with gay and straight parents alike, would suffer.

As University of California-Davis law professor Courtney Joslin suggests in her recent article, the strange and shifting narrative regarding the well-being of children by opponents of marriage equality may indicate how hollow their case really is. The argument is better interpreted as a disingenuous campaign to turn voters against marriage equality than a sincere critique of same-sex couples raising children. As “a cover for an invidious end,” the child welfare argument is a poorly disguised excuse for discriminating against gays and lesbians.

#3 Same-sex marriage is seen as morally offensive by political majorities

This is where the third type of claim against same-sex marriage arises. It is not a claim that a majority of Americans oppose same-sex marriage, for this is no longer true. Instead, the argument proceeds from the premise that decisions about marriage law should be made by the people, represented by members of Congress and state legislators, rather than by unelected judges. Here is how Lyle Denniston of SCOTUSblog puts it:

A final argument, one that marriage defenders hope might ultimately be persuasive for the Supreme Court, is that the issue of same-sex marriage be left, as much as possible, to be worked out in the democratic process. It is there, they contend, that the people of America can best make a judgment about something so fundamental to their lives.  

This approach is a favorite of Justice Antonin Scalia, who recently reaffirmed his position that the people’s moral outrage against an activity is a sufficient basis for banning it, whether the despised activity is homosexual conduct or murder:

If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against these other things?…Of course we can. I don’t apologize for the things I raised. I’m not comparing homosexuality to murder. I’m comparing the principle that a society may not adopt moral sanctions, moral views, against certain conduct. I’m comparing that with respect to murder and that with respect to homosexuality.

This inartful response to a gay Princeton freshman’s question was exactly the point Scalia made in his dissent in Romer v. Evans, a 1996 case in which the Supreme Court nullified a Colorado amendment targeting homosexual rights. But we should keep in mind this was a dissent. The position the Court took in Romer and reaffirmed in Lawrence v. Texas, the 2003 anti-sodomy case, is clear, and it is the precedent under which the Court will decide the same-sex marriage cases in June. In Romer, the Court, quoting a 1973 decision, was emphatic:

“[I]f the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare … desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”

With the popular demise of the natural law argument, the ludicrous claims of the child welfare argument and the constitutional bankruptcy of the “expression of outrage” argument, the case against same-sex marriage is gasping for air. Preserving civil marriage as an exclusive club for heterosexuals — for no other reason than to withhold a benefit from homosexuals — is inconsistent with the equal protection guarantee of the 14th Amendment. 

Even Justice Scalia, dissenting vigorously in the 2003 case, predicted this day would come, and that the Lawrence decision would be the controlling precedent: “This case ‘does not involve’ the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court.”

If principle and logic hold, if the Court takes an honest look at the failure of each revision of the case against marriage equality, if swing Justice Anthony Kennedy remains true to his earlier support for homosexual rights, the new popular consensus in favor of same-sex marriage will be joined by a legal recognition of the equal right of gay and lesbian Americans to marry. The stage is set.

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