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A Few Good Men

Are there any conservatives who still believe that the gay-marriage battle can--or even should--be won?

9:00 AM, Jul 14, 2003 • By LEE BOCKHORN
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SO, HERE WE ARE. After the Supreme Court's decision in Lawrence v. Texas striking down that state's anti-sodomy law, the question has been, Is gay marriage next?

Barring some unforeseen event, the supreme court of Massachusetts will declare homosexual marriage legal this week. The nation's legal machinery will then crank up, as other states try to decide whether they should (or must) also recognize these marriages. The debate over whether to make gay marriage legal nationwide will no longer be a theoretical matter but a real one, with enormous consequences hinging on its resolution.

Some Americans, demonstrating the aversion for cultural conflict that has become a hallmark of our Bobofied culture, would rather that this whole messy debate not take place at all. Take Michael Kinsley, for example. Adopting an idea touted for several years by libertarians such as David Boaz, Kinsley recently suggested that we sidestep the debate altogether by privatizing marriage. Get the state out of the business of defining what marriage is, he argues, and let people make whatever contractual arrangements they wish to call a "marriage," using whatever combination of number, rules, and duration they prefer. This would leave others (including religious groups) free to accept or reject these marriages, based on their own standards.

Kinsley calls this "think[ing] outside the box." Now, anyone outside of the corporate consulting world who uses that catchphrase should be punished with twenty lashes from a wet towel, irrespective of the merits of their thoughts. But more important, when marriage has already been pummeled as it has by the disintegrative social and sexual forces of the last four decades, is further diminishing it to bloodless, libertarian-style contract-making and the unbridled pursuit of self-interest really the answer? (For more on this question, see the excellent book by libertarian economist Jennifer Roback Morse, Love and Economics: Why the Laissez-Faire Family Doesn't Work.)

Kinsley claims that his solution "ought to satisfy both camps" in the gay marriage debate. What planet is he living on? Surely he must know that the public nature of marriage is crucially important to the most sincere gay marriage advocates, such as Andrew Sullivan. They desire marriage, among other things, for the legitimacy it will grant to homosexual behavior. (This is why Sullivan rejects mere "civil unions" or "domestic partnerships.") As for those who object to gay marriage, Kinsley believes his solution should suffice because "if you and your government aren't implicated, what do you care?" But defenders of traditional marriage aren't merely troubled by being personally implicated in government endorsement of gay marriage. They're troubled because they believe gay marriage will further weaken, perhaps irretrievably, an essential institution that's already on the ropes.

Nevertheless, having sufficiently demonstrated his cleverness, Kinsley goes on to describe why such a radical "privatization" of marriage is probably unlikely. Contra Kinsley, last week John O'Sullivan sketched a plausible pathway through which such a privatized system could gradually emerge. What's further, O'Sullivan believes that in this bustling marketplace of partnerships, the traditional/religious marriage ideal will ultimately triumph. But this seems willfully naive. Real marriage is demanding and difficult, and without a larger societal framework providing explicit support through its laws and institutions, it seems unlikely that marriage, among a smorgasbord of "lifestyle choices," would remain as strong or appealing as O'Sullivan thinks.