Culture wars are tricky. By the time people get really hot and bothered about something or other – long hair and antiwar stuff in the late sixties perhaps – what has upset them is already the norm. Back then, at one point even Walter Cronkite, the most trusted man in America, ended his evening newscast saying the Vietnam War was kind of stupid. It was unwinnable – but everyone knew that already. The sunk-costs argument, that so many of our folks had died that we had to carry on so they wouldn’t have died in vain, never made logical sense in the first place, and how do you ask someone to be the last man to die for a mistake, as John Kerry, now our secretary of state, asked back then, when he was a newly-minted war hero and a bit of a pain in the ass. The war had ended with the 1968 Tet Offensive, which we never saw coming. Maybe it ended in 1954 at Dien Bien Phu when the French lost the place and tried to hand the problem to us. A decade later we began to embrace that Vietnam problem, and no good came of that. Matters were already settled. We just pretended they weren’t – and as for long hair back then, every guy sooner or later had long hair. That became a mark of conformity, not rebellion, and no one cared anyway. Hollywood and the music industry had already made hippies mainstream and immensely profitable to them. The right counterculture album cover could mean a million records sold overnight. Anger with the god-damned hippies ruining everything was anger at the new-normal, at what had already happened, not what was suddenly happening at the moment.
It was the same with the civil rights stuff in the years before that. No one seriously believed that blacks were lesser people, or that maybe they weren’t people at all – or very few did. The battles were over social and economic privilege, and political control. The premise that “those people” were in fact just people had already been granted. The only question was what to do about that. The answer wasn’t easy, but once you grant the initial premise, there’s only one way things can work out. Schools were desegregated. Public accommodations and housing were too. They got the right to vote, without poll taxes and impossible qualifying tests, where you had to know the middle name of all the previous presidents and that sort of thing. The first time a segregationist said, yeah, sure, they’re people too, but… he’d already lost the argument. Separate but Equal was never really equal anywhere, and everyone knew it. Grant the premise, personhood in this case, and lose the argument. Working out the details, the terms of surrender, was holy hell, of course – but it took us seven years to get out of Vietnam after that Tet thing. No one wants to believe they’ve already lost.
Now it’s gay marriage, and as Jeffery Toobin notes in the New Yorker, the battle to ban that is over too:
When a federal judge ordered Utah to allow same-sex marriage on Friday, did you hear the outraged response?
Neither did I. The Mormon Church, once a leader of the anti-marriage-equality fight and a major force in Utah, was practically apologetic in its disagreement with the decision. “The Church has been consistent in its support of traditional marriage while teaching that all people should be treated with respect,” the Church statement said. “This ruling by a district court will work its way through the judicial process.” A few dead-enders in Utah have fought back, and there is no guarantee that the decision will survive on appeal, but the muted response suggests that everyone, on all sides of the issue, sees where the country is headed.
Of course they do:
The day before Utah became the eighteenth state (in addition to the District of Columbia) to allow same-sex marriage, New Mexico became No. 17. The New Mexico Supreme Court ruled unanimously that its state constitution required marriage equality.
Toobin, however, argues the real action is in Ohio:
James Obergefell and John Arthur, who lived together in Cincinnati, married in Maryland at a time when Arthur was gravely ill. In anticipation of Arthur’s death, the couple petitioned the state of Ohio for Arthur to be listed as “married” on his Ohio death certificate, and to record Obergefell as the “surviving spouse.” Ohio, which does not allow same-sex marriages, refused, but federal judge Timothy S. Black ruled against the state and in favor of the couple. The judge said it was “not a complicated case.” Throughout Ohio’s history, Ohio has treated marriages solemnized out of state as valid in Ohio. “How then can Ohio, especially given the historical status of Ohio law, single out same-sex marriage as ones it will not recognize?” Black asked in his opinion. “The short answer is Ohio cannot.”
This is a big deal:
The Ohio decision is crucial because people in the United States tend to move from state to state. Like Obergefell and Arthur, people in same-sex marriages may well end up living in states where such marriages are illegal. Once they are in those states, these couples will become enmeshed in the legal system in the way that heterosexual married couples do. They will have children; they may divorce and dispute child custody; they will seek to file joint tax returns; they will visit each other in the hospital; they will want to be with each other when they die. Their lives will intersect with the legal system in scores of ways at those junctures. In light of this, many judges will face dilemmas similar to the one Black just resolved.
There’s only one way out of that dilemma. Recognize gay marriage. Who is hurt by that? And one might be logical about this:
It would be a disorderly mess to have separate spheres of law for gay married couples and straight married couples – and, more important, there is no moral or legal justification for doing so. When it comes to marriage, states have granted each other reciprocity since the dawn of the republic. Indeed, the argument for separate treatment fails for the same reason that the arguments against same-sex marriage generally fail. Robert J. Shelby, the judge in the Utah case, had a bit of sport with the predictions of calamity that have accompanied the movement for marriage equality. In his opinion, Shelby repeatedly invoked what Justice Antonin Scalia obviously meant as prophesies of doom in the recent series of gay-rights decisions. But Shelby turned them on their head. The Utah judge wrote, “The court therefore agrees with the portion of Justice Scalia’s dissenting opinion in Lawrence [v. Texas, which banned consensual sodomy laws,] in which Justice Scalia stated that the Court’s reasoning logically extends to protect an individual’s right to marry a person of the same sex.”
Shelby also took note of Scalia’s dissent in this year’s Windsor case, which struck down the Defense of Marriage Act. Scalia wrote, “the real rationale of today’s opinion…is that DOMA is motivated by ‘bare desire to harm’ couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.” Shelby noted dryly, “The court agrees with Justice Scalia’s interpretation of Windsor.”
There are those who might argue it’s these damned hippies on the bench now – many of us who came of age in the late sixties know of college classmates who are somehow or other now judges on important courts – but Toobin says that’s not the case here:
Shelby is no radical. A veteran of the National Guard, he was appointed to the bench at the instigation of Utah Senator Orrin Hatch, and was endorsed by the state’s other senator, Mike Lee, the Tea Party favorite. Shelby is simply a rational man applying a (mostly) rational set of laws.
What Shelby and all these judges are seeing is that it is impossible to offer gay people some rights and not others. They are either full citizens, or they are not. In case after case, and now state after state, judges are drawing the only principled conclusions they can. So, increasingly, is the broader citizenry.
Grant the premise, that they are full citizens, and lose the argument. That means the argument is over. At least that’s how Josh Marshall sees it:
Last’s week’s lower court decisions in Utah and Ohio leave little doubt that the political fight over gay marriage is now essentially over and that gay marriage will be the law of the land in every state in the country in the pretty near future.
The fact that gay and lesbian couples are now lining up to get married in Utah of all places – arguably the most conservative state in the country – might tell you this on a symbolic level. But the logic that points to the end of the political fight over gay marriage is more concrete, specific and undeniable.
Utah, rightly, got the most attention. But there were two cases last week. The other one in Ohio dealt with a much narrower question: whether the state had to recognize gay marriages in the issuance of death certificates. But both cases rested on the same essential premise: that if the federal government can’t discriminate against gay couples, states – by definition – cannot either.
As Judge Timothy Black put it in the Ohio case: “The question presented is whether a state can do what the federal government cannot — i.e., discriminate against same-sex couples … simply because the majority of the voters don’t like homosexuality (or at least didn’t in 2004). Under the Constitution of the United States, the answer is no.”
There’s another premise, once granted, that means this was over before it started. If the Constitution says certain things cannot be done, nationwide, and an individual state says that one of those things can be done in their state, the Constitution trumps state law, and cleverly amended state constitutions. Imagine a state decides that women cannot vote in that state – not so farfetched these days. That’s not going to fly, unless that state secedes. This is the same sort of thing. Those are the rules the states signed up to. Deal with it.
Marshall follows the logic:
When Utah appealed to the 10th Circuit to block further gay marriages until its appeal could be heard on the merits, the judges said no. Because the two standards for such a denial are “irreparable harm” and likelihood to prevail on appeal, the appellate judges – one Bush appointee, one Obama appointee – seemed to be hinting that Utah is likelihood to lose.
In other words, the inexorable Scalia logic appears clear to them too.
Now there are some conceivable federalism grounds where you could maybe eke out a reason why the Constitution bars the federal government from doing something but allows it to states. But it’s a big stretch and probably an impossible one in a country where opposition to same sex marriage is declining rapidly every year.
The angry folks have already lost, and Marshall also mentions there will be “a pretty substantial population” of same sex married couples in Utah by the time the appellate Court actually comes to a decision, That makes itg it even more difficult for any appellate court or the Supreme Court to reverse things now. So it’s over, in the way some things are over before anyone in power knows it:
In this sense – and not to be overly dramatic – it’s almost reminiscent of the Fall of the Berlin Wall – when actions on the ground, literally on the ground, swept a lot of details and technicalities before it and presented authorities with a fait accompli, which they were likely to accept eventually, much more rapidly than they would have preferred.
So yes, this will percolate a bit, as they say. Decisions will come up through the individual Circuits. In pretty short order, the Supreme Court will be forced to revisit the issue. And their logic in the Windsor case will join forces with the march of public opinion to make it almost impossible for them not to issue a broad ruling which invalidates every gay marriage ban in country.
I think that everybody, on each side of the issue, has realized for the past two or three years that it is only a matter of time until this happens.
That time is now:
I see little way to look at the last week and not conclude that gay marriage will be the law of the land in every state in the country in the near future – probably during the Obama presidency and maybe sooner still.
That may be a good thing, but no one wants to believe they’ve already lost, and over at Business Insider, Josh Barro has been dealing with those who have lost, because he wasn’t impressed with that fellow from Duck Dynasty:
I got a lot of mail explaining to me that we are all fallen and homosexuality is just one sin among many.
I also got a lot of emails calling me a faggot, urging me to “have fun burning in hell,” saying gays should “buy an island and get out of our faces,” etc.
If Christian messages against homosexual activity come out of love, how is it that they ended up producing so much hate?
Sure, I can laugh when I get these emails. I already live on an island full of gays. I have family and friends here who love me, and a successful career in a workplace where people accept me for who I am. I am winning the culture war, the readers who insult me are losing it, and these emails are a sign of their exasperation.
Yeah, they’ve lost the culture war here, but they’ll still fight on, and that’s the problem:
I’m terrified for young, powerless gay people growing up in less enlightened places than New York City who can’t laugh off these comments, especially when they come from their parents and teachers and clergy. In these places, when people calling themselves Christians use fear and loathing of gays as an anti-sin tool, gays and lesbians become collateral damage. Sometimes they’re driven to suicide. That doesn’t seem very loving to me. …
If social conservatives were serious about loving the sinner and hating the sin, they could (for example) support measures to prevent anti-gay bullying in schools. But they routinely oppose these measures out of fear that they will send the message that it’s OK to be gay. I think they see cruel social attitudes toward gays as a useful anti-sin measure.
That is a bit of a problem too, where love the sinner but hate the sin isn’t the case at all. That’s just another version of “separate but equal” – and just as pernicious.
The only answer is logic:
All that said, there is an internally consistent story about how it could be loving to foment negative attitudes about homosexuality: God is so distressed about the idea of men having sex with other men that he will cast them eternally into hell for doing so. Therefore it is very important to discourage this behavior and promote the idea that it is shameful, even if doing so produces hate and makes gays miserable.
Of course, this view should also imply a much more intolerant attitude toward all sorts of sin. If we should shun and demean homosexuals and demand that they keep their deviation a secret, we should do the same to the divorced, and to women who have abortions, and those who reject Jesus Christ.
My argument against this position is that Christianity is simply incorrect: There is no God, and religion is made up. But many (most?) people who consider themselves Christians share my view that prohibitions against sin often should not be enforced, either by law or by social sanction against sinful behavior. They socialize with the divorced and accept their gay children. Some of them are gay themselves.
This is another example of accept the premise and lose the argument. Which specific sinners, and no others, should be shunned and demeaned and told, in no uncertain terms, keep their deviation a secret? Who keeps the list? Who updates it?
Updating that list is an issue:
A lot of people writing to me asked why I can’t be tolerant of their anti-gay views just like I ask people to be tolerant of gays. One reader, using exactly the same form of complaint, stuck up for the idea that we should respect the views of people who reject interracial dating. “Why is it, that these various groups demand tolerance & acceptance for peoples choices – sexual orientation, interracial dating – yet, when someone disagrees with it, the pitchfork & lynch mobs come out?”
There’s a reason for that:
The request for tolerance of the intolerant is absurd. Interracial dating is okay, and espousing the view that it is wrong is not okay. The only difference between the request to tolerate racist views and the request to tolerate anti-gay views is about forty years of social change.
But that’s changing now. No, scratch that – that has already changed. Those who wrote Josh Barro just don’t want to believe they lost this one, long ago. The law is just catching up with that now, late as usual. It’s just that by the time people get really hot and bothered about something or other in these culture wars, what has upset them is already the norm.
The matter is settled. Can we move on now? We could talk about the economy and jobs, or healthcare, or Iran and Syria, or even Chris Christie – or what’s for dinner tonight. This issue is about as important as those evil young Beatle lads with that evil long hair – but maybe you had to be there in 1964 when that was an issue. Even your grandmother came to like those fine young men from Liverpool and the catchy music. The culture wars are tricky, but not that tricky.