It's Not You; It's Me

In 2003, the Supreme Court, in the case of Lawrence v. Texas, declared that statutes outlawing sodomy were unconstitutional, because the moral judgment of a majority was not sufficient reason to deprive a minority of its fundamental rights. In a typically spirited dissent, Justice Antonin Scalia declared that the majority had "taken sides in the culture war" -- though of course, he, in opposition, was not taking sides but merely objectively assessing the Constitution. "Today's opinion," Scalia wrote, "dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned."

Last week in a federal courtroom in San Francisco, closing arguments were made in Perry v. Schwarzenegger, a case that could well prove Scalia right. But in the intervening years, the case against gay rights has changed dramatically. Gone is the assertion of moral condemnation that lay at the heart of Scalia's position and that of so many others. Instead, the arguments now center around endangered straight people -- what their marriages mean, what's been happening to them, and how they might feel if gay people can get married, too. Just as supporters of the ban on gays in the military say the problem isn't gay soldiers but the fact that straight soldiers might feel uncomfortable, opponents of marriage equality argue that the problem isn't gay marriages but how straight people might react.

Perry v. Schwarzenegger -- better known as the Proposition 8 trial -- is now widely expected to be the vehicle for the Supreme Court to decide whether same-sex couples have a constitutional right to marry. California's Prop. 8, which passed in 2008, declared that the state could only recognize marriages between a man and a woman. When this lawsuit challenging it was filed, many in the gay-rights movement were convinced it was tactically misguided. What if the country hasn't moved far enough on getting comfortable with the idea of same-sex marriage, and there would be backlash if it were imposed by the courts, wiping out the laws on the books in most states defining marriage as between a man and a woman? Or worse, what if the Supreme Court renders an emphatic decision denying gay people the right to marry? Might it not be better to give the political process a chance to work? That way, marriage equality could spread from the places it is now legal (Iowa, Massachusetts, New Hampshire, Vermont, Connecticut, and D.C.) as people realize it isn't a threat.

The ideological odd couple of David Boies and Ted Olson -- who were on opposing sides in Bush v. Gore -- joined forces on the Prop. 8 challenge. As Olson told The New Yorker earlier this year, "Some couple is going to go to some lawyer and that lawyer is going to bring the case. And that case could be the case that goes to the Supreme Court. So, if there's going to be a case, let it be us. Because we will staff it -- we've got fifteen, twenty lawyers working on this case and we have the resources to do it, and we have the experience in the Supreme Court."

With Olson and Boies bringing their legal star power to the case, the trial seemed a mismatch, a team of legal Harlem Globetrotters running circles around the hapless Washington Generals attempting to defend the law. The defense called only two witnesses: David Blankenhorn, the founder of the Institute for American Values (who all but admitted on the stand that he doesn't really qualify as an expert), and Kenneth Miller, a law professor at Claremont McKenna who argued that gays have plenty of political power, so they aren't really an oppressed group. Both took pains to note that they had nothing against gay people, and were just concerned about the health of straight marriages and the raising of children.

The plaintiffs, on the other hand, attempted to show that Prop. 8 was motivated by prejudice and animus toward gay people. This is a critical legal point, because if the law's purpose is simply to discriminate against a disfavored minority, then the state must demonstrate an exceedingly powerful rationale for doing so in order to prevail.

And that, the defense certainly wasn't able to do. Indeed, the best they could muster was that marriage is very important to society, and we just have no idea what kind of effect it might have if gay people were allowed to share in it, so to be on the safe side, we ought to keep a marriage ban in place.

They were somewhat boxed in to that position. First, there is simply no evidence (either empirical or theoretical) that faced with gay people getting married, straight people will start divorcing each other and leaving their children to be raised by wolves. Second, aware of the expanding acceptance of gay people in American society, conservatives have abandoned every argument that smacks of bigotry. Except for those on the fringe (which includes some religious-right leaders and a few nutball members of Congress), they've stopped talking about sin, immoral behavior, and the condemnation of God. What they are left with is the claim that if gays are allowed to marry, straight people will … well, they're not really sure what straight people will do, but it probably won't be good. This is obviously not too powerful an argument, inside the courtroom or out.

When he was profiled by Mother Jones magazine earlier this year, New York Times columnist Ross Douthat made an unusual statement about gay marriage. "I am not comfortable making arguments against gay marriage to my gay friends," Douthat said. "And if you're not comfortable making arguments against gay marriage to your gay friends, you shouldn't be comfortable making them to anybody, probably, so I don't tend to make them." You can see this as a testament to Douthat's good nature and civility, or as something more: even a reasonable, articulate, well-educated conservative who makes reasonable, articulate, well-educated arguments for a living can't come up with a case against marriage equality that comes out sounding like anything but bigotry.

This is the position in which social conservatives find themselves: they don't want to think of themselves (or have others think of them) as bigots, but the only arguments they can offer against marriage equality sound a lot like simple prejudice. They've changed a lot on the issue of gay rights -- they're more accepting, understanding, and generous than they once were -- but they haven't yet crossed the marriage line. No matter who wins when the decision is handed down, Perry v. Schwarzenegger will be appealed, likely all the way to the Supreme Court. And then we'll find out whether five justices have changed their views as well.

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