The Only Winning Move

Good news, everyone! John Scalzi finally says something I agree with on gay marriage. Actualy, the main reason I choose his blog out of All Possible Blogs to vent my frustration with the gay rights movement on this issue is because we agree about everything in principle, but respond with very different emotions about the whole thing. He seems to be really all about the painting all your opponents with the Broad Brush of Bigotry - and patting oneself on the back for Not Being Like THEM - that turns so many of us off about the whole issue. But pick nits with him and really does support a private contract system where even those dastartdly polygamists are allowed to get married - as any reasonable person should.

Anyway, same-sex marriage is now legal in New Hampshire - this time with the twist that religious rights are specifically protected. Here’s Scalzi:

Andrew Sullivan comments on the New Hampshire governor asking for (and getting) wording that exempts religious groups and clergy from being required to perform or participate in same-sex marriages, and how that might make a difference in whether same-sex marriages passes muster in other states. Now, mind you, the First Amendment allows them to beg off from doing this anyway, so this little bit of verbiage is redundant. But if it helps get people their rights to say it twice, I don’t see a problem putting it in there.

Neither do I. On the one hand, it would probably be healthier in the long run to send one of these judicial activist cases to the Supreme Court and get it made absolutely clear to everyone that the First Amendment protects a clergyman’s right not to marry two guys if he doesn’t want to. On the other hand, the courts probably have better things to do, and you can’t really blame New Hampshire if it chooses not to be Ground Zero for this kind of fight.

Here’s the meat of the thing, though. I can’t quite square today’s John Scalzi with the same John Scalzi who writes about Proposition 8 a week ago that he:

will revel in the fact that every time one of the people in those 18,000 real live actual legally recognized in the State of California same-sex married couples does something associated with the state recognizing the legal status of their marriage, they will taking one of their fingers — the one with the wedding band on it — and poking it directly into the eye of bigotry. You tried to kill my marriage, but it and I am still here, I hear them saying to the Prop 8 supporters. You tried to kill my marriage. You failed.

He clearly thinks that most everyone who voted for Proposition 8 is a bigot - which would seem to include those clergymen (and parishoners) who might have voted for it out of fear that they will be asked to compromise their religious beliefs. Maybe he makes an exception for them? But if so, on what basis does he judge that Prop 8 supporters are in general bigots? No doubt there are some, but proving that they are the wind in the sails of the movement requires some more work, I’d think.

Or maybe he does think that these clergy and their parishioners are bigots, but that it’s OK for them to be bigots on their own time in their own churches, so long as they don’t interfere with the legal process of marriage. But this sort of begs the question how a legal regime like that in California - where same-sex unions are legally identical to opposite-sex unions in everything but name - constitutes anyone interfering with anyone’s right to marry?

I dunno - when you’re talking about what is essentially a matter of semantics, it seems heavy-handed to call all your opponents bigots. But if you’re going to call all your opponents bigots on the basis that they want what you take to be bigoted language enshrined in law, it seems a bit of a contradiction to turn around approve of a special bigots’ exception clause in similar legislation in another state when you believe that the First Amendment already takes care of that.

But OK - I’ve stopped trying to puzzle out the mindset of the kind of person who gets worked up about this issue. Mind you, if we could address the REAL issue - that is, that of devolving marriage to a system of private contracts over which the state had no lifestyle-based veto power, and which would therefore include polygamists finally already - then I would get worked up about it myself … because it would be a serious civil rights issue that went to real questions about the relationship of the state to its citizens. But the issue in the public forum is not that issue.

In any case, you would think that the fact that New Hampshire feels the need to include this kind of language in their same-sex legislation would be a wake-up call to hangers-on to this faux civil rights movement like Scalzi. After all, if it were a real civil rights movement with noble, rights-based intentions, it wouldn’t occur to anyone to need such protection. But it is precisely BECAUSE of language like Scalzi’s “poking my wedding ring finger in the face of bigotry” line from Prop 8 opponents that leads New Hampshire to smell a rat. They fear what we all suspect: that a not-insubstantial proportion of gay marriage supporters don’t actually care about gay marriage one way or the other - they are simply asking the courts to hand them a gun in the culture war. Scalzi’s recent post shows that he is serious about liberty, mind you, but one could be forgiven, back when there was only last week’s, for suspecting otherwise.

People who get caught up in the civil rights rhetoric should probably ask themselves honestly at their next rally whether they think any of the people they’re marching with might just maybe sue the clergy for not respecting their lifestyle. If they come up with the answer “yes” - and who wouldn’t? - then they need to ask themselves some hard questions about just how serious the gay rights movement is about universal tolerance.

Andrew Sullivan, for that matter, specifically notes in the post that Scalzi is quoting that support for same-sex initiatives goes up when such religious protection language is included. In other words, these fears are serious enough that they stand in the way of the gay rights movement’s goals. Aside from this fact putting the lie to Scalzi’s assumption (itself somewhat bigoted) that all same-sex marriage opponents are bigots - it raises some “where there’s smoke” questions about what the real agenda behind the gay marriage fight is. Maybe the people who need these religious exemption clauses are just victims of right-wing propaganda. Maybe there is no danger, and maybe the gay rights movement at large really is about rights for everyone more than special privileges for their own. But in the quiet of my mind, I don’t think so … and I’m willing to bet that people like Scalzi and Sullivan have their occasional doubts as well.

My attention occupied by the Sotomayer nomination, I’ve neglected to post anything on the California Supreme Court’s decision to uphold Proposition 8 - so a couple of quick words. First, whatever you think about gay marriage, the ruling is clearly a victory for the rule of law. The function of courts is to interpret the law as written, not to make law itself. For better or for worse (for worse, in my opinion: I don’t think the ballot initiative system is a healthy one), California allows its citizens to change their constitution though ballot initiative; the court would be overstepping its bounds (to put it mildly) to simply ignore that reality on a specious technicality. Gay marriage proponents will have an opportunity to propose a counter-initiative sometime a few years from now, and sometime a few years from now they’ll probably win.

As for the 18,000 or so same-sex marriages that retain their legal status, I’m conflicted. On the one hand, at the time they were married, gay marriage was legal in California (by judicial fiat, granted, but one can hardly expect the Court to rule, on the basis of popular approval of a constitutional change that had not yet been made at the time the original decision on gay marriage was reached that they had gotten the legal particulars wrong when they issued the fiat). It has the character of an ex post facto law to go back and remove privileges that people were granted in the past - sort of like raising the inheritance tax and then charging everyone who received an inheritance under the old regime the difference. On the other hand, I tend to think that John Scalzi is right that the existing marriages make a mockery of the amendment. The amendment says “Only marriage between a man and a woman is valid or recognized in California.” But this is patently not true for the 18,000 same-sex marriages that California does recognize. So I haven’t quite worked it out yet - but my gut inclincation is to come down on the side that sees it as a good thing overall that these marriages continue to be recognized. Avoiding the ugliness of revoking a privilege that was valid at the time granted weighs heavier with me than total consistency here - especially given that divorce will no doubt bleed a lot of these marriages away with time - and also with time California voters either change their mind yet again about all this, or the 18,000 couples die off or move away. Either way, full consistency comes in the end. I say this, of course, with the sinking feeling that I will come to lean the other way as gay rights activists exploit this for whatever specious legal loopholes they can find as the basis for neverending lawsuits.

Incidentally - the Scalzi blog post that I linked above (here it is again) is a goldmine for anyone seeking to understand why the gay marriage issue annoys a lot of us who are genuinely inclined to let people define their own lifetime partnerships without interference from the state. Scalzi’s blog is one that I enjoy reading, but he does tend to turn into a complete douchebag when talking about this - in the following ways:

(1) He seems to think that the California Supreme Court is “on his side” on this, and that they’ve done “the best they could” to make California as gay-marriage friendly as possible given the circumstances. Here’s the paragraph that gives me that impression:

It seems like the California Supreme Court has upheld the amendment to the California Constitution embodied in Prop 8 to the bare minimum that they could without actually throwing it out (which, I am led to understand by a number of lawyer friends, would have been very difficult to do), and in doing so have made it as toothless as they could.

Now - I think that Scalzi is probably right that the Court is “doing its best” to keep gay marriage as close to legal as possible in California. This is, after all, the Court that issued the fiat in the first place. But notice what an inappropriate attitude about the judicial branch this is! The judicial branch interprets the law, Scalzi you blockhead, it is not responsible for making it up. It’s like he not only slept through 12 years of secondary education Civics, he’s also never even entertained any independent thoughts about the purpose of separating the legislature from the judiciary besides. If the judiciary is allowed to stretch and bend the law willy-nilly to do its best to get it to mean what its representative officers would personally like it to mean, why bother having indpendent courts at all? Why not just send constitutional cases directly to the legislature to be decided? Or better yet, why not just let the justices make the laws? One really is put upon to see the purpose of the separation of powers if the Court feels free to tailor its interpretations to suit the personal preferences of the judges (over and above that which their professional analysis would require). Anyone looking for a definition of judicial activism - or a source of the general suspicion that left-wingers in general see it as a tool in their arsenal - could do worse than reading what Scalzi’s written here.

(2) He openly celebrates gay marriage as culture war weapon - again, as though this were a legitimate purpose for the courts to be serving. Here’s the bit that gives me this impression:

In the meantime, I will revel in the fact that every time one of the people in those 18,000 real live actual legally recognized in the State of California same-sex married couples does something associated with the state recognizing the legal status of their marriage, they will taking one of their fingers — the one with the wedding band on it — and poking it directly into the eye of bigotry.

Maybe so - but again, affording this vehicle is not what the courts are for, and it is not what marriage laws are for. This is surely an infantile view of the framework of laws - the kind of thing Sir Keith Joseph (albeit in much different context) had in mind when he derided British Socialism as a “pocket money society.” We do not live on a playground, and the purpose of the law is not to act as a kind of giant teacher telling us which children have the right ideas and which wrong. The law simply states what kinds of behavior are proscribed. That’s ALL. It is up to us - as mature adults - to work out our cultural issues for ourselves. Certainly there is something satisfying in seeing bigots get their comeuppance. But not everyone opposed to gay marriage is a bigot, and in any case it is a dangerous box to open to let the government and the courts play referee where cultural attitudes are concerned. It isn’t always your culture that’s in vogue, you know - and as cultural attitudes can be fickle, you may find yourself on the other end of the gun sooner than you think. We should applaud and decry court decisions on the basis of whether they maintain or erode the integrity of the law, not on the basis of whose tongue gets to stick out at whom. “Nyah-nyah-na-boo-boo” is not a legal framework.

As I’ve said many times before - I think the best solution to all of this is to take away the government’s gun on this issue completely. People should be allowed to draw up their own contracts regarding their lives and property, and the state should not be placing arbitrary limits on these contracts for cultural reasons. I feel Scalzi’s pain as far as he’s frustrated that one group of people gets to use the word “marriage” in its legal sense while another doesn’t purely on the basis of which mating preferences happen to be in vogue. It IS unfair - but not for the reasons he thinks. Indeed, it’s pretty clear that Scalzi’s proposed solution is no less bigoted than the people he flatters himself for opposing. Scalzi merely wants to extend the domain of what the state considers acceptable to include a lifestyle he approves of - he has no particular problem with the state deciding which lifestyles are and are not acceptable (anyone who “revels” in the fact that the state has decided that some people are “married” regardless of what the majority chooses to believe does not lament the state’s power to force cultural attitudes on the population, he celebrates it). The right answer is to recognize that “marriage” is not a political word, and to take it out of the political lexicon. Let individuals and corporate entities decide what counts as “married” for them - hetersexual, homosexual, or polygamous - and scale the government’s influence here back to its proper role of enforcing property contracts.

One thing slowly dawning on Democrats after their convincing win on Tuesday has been how soundly gay marriage proposals have been rejected. With even California voting to define marriage as between a man and a woman, gay marriage activists are officially 0-30 on state-level initiatives. That is a much more convincing statement than the 52% of Americans who approved Barack Obama as the next president. And indeed, the new president himself is not a gay marriage supporter.

The rational thing for gay marriage activists to do at this point would be to reassess their position and perhaps change strategy. But of course, mostly what one hears are reports of all the challenges to Proposition 8 that are now being filed in courts in California. I think this is sad. Marriage laws in the US DO need reforming, but not in the way that gay marriage activists seem to think.

The frustrating thing about the gay marriage debate is that both sides are committed to ideologically unsustainable positions. Gay marriage activists are hypocritical in calling for extension of the “right” to marry to themselves but not any further. There is simply no basis for this reasoning. Polygamists have existed as long as there has been marriage. Any assertion that gays have a “right” to marry while polygamists don’t has to conveniently ignore large swathes of human history and tradition. Furthermore, it is not clear what basis gay marriage activists have for asserting that the state is justified in defining marriage as a partnership of two and two only, but that it would somehow be a crime against humanity for them to say anything at all about the gender distributions of those two members. The whole position is nonsensical. If gays have a right to marry, then so do polygamists. If polygamists do not have a right to marry, then marriage is a privilege and the state may define it any way they want. It isn’t just that gays are walking a tightrope trying to find a path down the middle - the path is simply not available.

Likewise, conservatives have some pretty silly grounds of their own for opposing gay marriage. It is constantly asserted that legal recognition of gay marriages wills somehow damage the institution of marriage itself, though no evidence is ever provided for this. Indeed, it is difficult in the extreme to see how allowing two men to apply the word “married” to themselves has anything to do with anyone except those two men. Conservatives are on their most solid ground when they admit that there is no “right” to marriage, that this is a kind of government program to promote child-rearing. But of course that begs all kinds of questions - not the least of which is why this program is so necessary where things like national daycare are apparently anathema. Indeed, the idea that the survival of the institution of marriage depends on government support rather than the health of the marriage culture is every bit as ludicrous and hypocritical as the apparent belief among gays that they are only then “married” when the government says they are. The government is not there to counsel you in times of difficulty, it doesn’t help your sex life in any way that I can see, it certainly isn’t any good at generating love and cooperation among people - why the hell are both sides of this debate so concerned with earning its approval?

The truth, as I said, is that neither position is really sustainable, and both sides need to go ahead and admit that the contentiousness of the issue is born of the fact that the government should never have been involved in the marriage business in the first place. I really don’t see a rational argument against getting the government out of marriage. Now that we have hundreds of years of caselaw on the subject, it shouldn’t be at all difficult for lawyers to draw up a generic marriage contract that could serve as a default. People who wanted to tailor their contracts would, of course, have the right to do so. And why shouldn’t they? It is their lives and their property, after all. One thing that both sides of the debate seem to agree on is that marriage is the most important life decision a person makes. If that’s more than an empty campaign bromide, then I should think anyone truly concerned about the issue would be more interested in promoting a system that allows individual marriages to be tailored to individual needs than they would be worrying about which side of the culture wars had the upper hand here.

I got goaded into writing about this because John Scalzi has been posting more nonsense. I find it especially disheartening that someone like Scalzi gets sucked into these things. Indeed, when you engage him privately, he is quite willing to admit that he has no problem with allowing private contracts in marriage. But somehow banner-waving in the culture war is more important than trying to sift through the smokescreen of subtleties that both sides have put in our paths.

I hope you will do the right thing, the just thing, and the moral thing when you vote, and that is to cast your vote against discrimination, against bigotry and against prejudice.

Proposition 8 does not read “In support of bigotry, discrimination, and prejudice, marriage is limited to this class of people,” any more than the court decision that precipitated it read “in support of bigotry, discrimination and prejudice, we extend marriage rights to include a minority group without making them universal.” I have no doubt that it makes Scalzi feel good about himself to see this as a fight between bigotry and justice, but one wonders what basis there is for painting with such a broad brush?

2008 actually provides me with a good set of examples on which to base an explanation of my opinion on gay marriage for the many people who are confused by people who do not automatically gravitate toward one of the two options they are offered or the other. Arizona also passed a ban on gay marriage. I would have voted against Arizona’s ban, if I lived in Arizona. However, I would have voted for Prop 8 in California, and I do not consider myself a bigot (nor do I appreciate Scalzi calling me one).

Here’s the reasoning. Arizona’s ban seeks to affirm government’s right to define marriage where no such affirmation previously existed. I oppose that. People should be allowed to define their own marriages - be they gay, straight, polygamous, or polyandrous. The choice in Arizona was between concretizing a definition of marriage and thereby recognizing the government’s right to meddle here, and between leaving it ambiguous in the hopes that a more equitable solution could be found. I would opt for the latter.

In California, however, there was no similar such question. The California State Constitution already provides for a right to marry, it simply neglected to define “marriage.” Given that state of affairs, Proposition 8 is NOT a decision between allowing or disallowing the government to extend rights to some groups or others. It is merely a question of how to define the right so specified. The people of California twice took to the polls to specify that right. The second time was because the legislature overruled them, so they went back and said “no, actually, we meant it, marriage is between a man and a woman.” At that point the case should have been settled. Whatever the merits or demerits of that position, that is the letter of the law in California. But then a court went and, in a bit of reasoning that can only generously be described as “tenuous,” decided that no, in fact, the constitution that gives no defintion of marriage applies to gay couples and straight couples but not to groups. Charming.

The principled position on Proposition 8, it seems to me, is to support it, regardless of what one thinks of extending official marriage recognition to gays, simply because it is outrageous that the court should make decisions that are not only reserved to the people but about which the people have expressed a clear opinion. This is not a bigoted position for me to take, and it is characteristic of the disingenousness of both sides of this issue that Scalzi can only express himself about this complicated vote in these terms.

But here’s where the column gets really silly - and actually gets at the heart of the issue for me:

There was no greater day in my life than the day I was married, when I stood facing my bride, and she me, and in front of our families both born into and made, promised to love and support each other every day going forward. All good things I have in my life today come from that day. I have a California marriage license, and I can genuinely say it brings me joy to know that the state in which my married life was born allows all those who love another person to see that relationship celebrated and protected by the law.

I can follow the first bit. But what does the state marriage license have to do with any of it? Surely if the government were not in the business of marrying people, Scalzi would feel every bit as proud of his marriage day as he does now. At least, I would like, for his wife’s sake, to believe that is the case. Further, surely if Scalzi had been married in some other state, his marriage day would be every bit as he described it? To say that it would not is basically to fall into the conservative trap: he would be admitting that agreeing or refusing to recognize gay marriages really does affect the quality of the institution as a whole, and that his marriage is substantively happier or less happy on the basis of other people’s marriages. Once you admit this point, you have basically allowed conservatives to say that the majority’s opinion on this is therefore valid, as gays getting married really does damage their marriages - not a position I think he probably wants to commit himself to.

I would very much prefer it if both sides would drop the hyperbole and double-talk here. As Scalzi’s emotional diatribe illustrates, both sides of this debate are essentially playing from the same deck. They both can’t seem to find happiness without the government’s stamp of approval. I can’t see that as a ringing endorsement for civic health.