Three years ago, in a column titled "It's Not You, It's Me," I noted that a rhetorical shift had occurred among opponents of gay rights. In earlier times, there was lots of talk about the immorality of homosexuality and how depraved gay people were, but now those sentiments have become marginalized. For more mainstream spokespeople, the argument against same-sex marriage is not about gay people at all but about straight people. The problem with same-sex marriage, they say, is the effect gay people's marriages will have on straight people's marriages. What that effect will be, they can't precisely say, but they're sure it'll be bad. Similarly, when we argued (briefly) about repealing the "Don't Ask, Don't Tell" policy, their claims were not about whether gay soldiers could do their jobs, but whether their presence would make straight soldiers uncomfortable.
Next week, the Supreme Court will hear oral arguments on cases challenging California's Proposition 8, which outlawed gay marriage in the state, and the federal Defense of Marriage Act. There's little doubt that at least three of the justices (Scalia, Thomas, and Alito), and maybe more, will be staunch defenders of the legal status quo. But it will be interesting to hear what kinds of arguments the lawyers on their side come up with, particularly under questioning from the liberal justices. The original Prop. 8 trial was something of a farce, as the law's defenders proved unable to provide any rationale for it that could withstand a moment of cross-examination. So what are they going to say at the Supreme Court?
The trouble is that "It's not you, it's me" isn't very persuasive, certainly not as a legal argument. For a taste of where it inevitably leads you, Mark Joseph Stern at Slate alerts us to this amicus brief filed by Robert P. George and two colleagues. George, a political theorist at Princeton University and one of the right's leading intellectual lights on these kinds of issues, is heavily credentialed and has spent lots of time thinking and writing about the marriage issue. What he comes up with is so laughable that it shows how far his side has to reach.
After some utterly unconvincing material about how if we "redefine" marriage then marriage itself will break down and disappear (just like it did after all the other times we redefined marriage11At various times and in various places, the "definition of marriage" was one in which one man had many wives, or two white people were joined together, or two people of the same race were joined together, or a woman became her husband's property. All of these definitions were changed to arrive at the definition we have today, which we are indeed in the process of changing, but the idea that there has been one "definition of marriage" throughout history is just false.), George comes to the root of his argument about "the true nature of marriage as a conjugal union," which means that marriage is only marriage if there's a penis going inside a vagina, since that's how babies are made. That sounds like I'm caricaturing his argument, but I'm not; this is an argument George has made before.
The natural question, then, is what about infertile heterosexual couples? Should we make it illegal for people who can't or don't want to have children to get married? Of course not, he says. As long as their sex is of the same type as that meant for procreation, they're cool. Read this, and then I'll translate:
To form a true marriage, a couple needs to establish and live out the (i) comprehensive (i.d., mind-and-body) union that (ii) would be completed by, and be apt for, procreation and domestic life and so (iii) inherently calls for permanent and exclusive commitment.
Every male-female couple capable of consummating their commitment can have all three features. With or without children, on the wedding night or ten years later, these relationships are all comprehensive in the three senses specific to marriage, with its distinctive sort of value. Without exception, same-sex and multiple-partner unions are not.
So a "true marriage" is only one in which the sex the couple has "would be completed by, and be apt for, procreation." Let me boil that down for you: Gay people should not be allowed to get married because when you put your penis in a vagina it is totally awesome.
But what about heterosexual couples where one partner is incapable of penis-to-vagina sex because of a disability? They'll still have sex, but according to George's logic, if there isn't a penis going inside a vagina, they won't have a "true marriage."
So conservatives (at least some of them) have retreated to a point where they're arguing that marriage is only secondarily about things like commitment or responsibility or love. Most importantly, they say, it's about sex, and if there's no sex, or not the right kind of sex, then it isn't "true." Talk about redefining marriage.
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