The next stage in litigating same-sex marriage.
Oct 13, 2008, Vol. 14, No. 05 • By ROBERT F. NAGEL
Tocqueville's "singular principle of relative justice" has some unsettling implications for the struggle over same-sex marriage. First, as the gay rights movement shifts from questions of substantive inequality to questions of respect and status, it will find that there are limits to the effectiveness of judicial remedies. It is true that-because of the public's respect for the judiciary's determinations-minority groups, including gays, have sometimes felt intense moral vindication from judicial victories. And it is also true that such groups have sometimes actually gained significant social status through lawsuits. A judicial order striking down a state statute, however, does not erase the popular opinions underlying that statute. A gay "marriage" required by court order does not necessarily indicate that the public respects or honors such marriages in the same way it respects and honors traditional marriages.
This blunt fact can be ignored or avoided by some, especially in the euphoria that accompanies major litigation victories. But as time goes by, nagging doubts about what the public actually thinks of gay marriage are likely to arise. In the case of California, where an initiative to reestablish the traditional definition of marriage will soon be put to the vote, the precariousness of judicially imposed status may become glaringly apparent.
Even in the absence of political events like the California initiative, same-sex couples will continue to be bombarded by all the cultural signals that extol heterosexual love and marriage. Indeed, now that a court has required that homosexual couples be included within the circle of marriage, such couples may feel increased sensitivity to the remaining signs that many Americans do not view homosexual marriages as being worthy of as much respect as traditional marriages.
Thus it is to be expected that judicial victories like the one in California will be followed by intensified efforts to sanitize public discourse, to eliminate the pervasive bias in favor of the familiar ideals of heterosexual romance and marriage. Libraries and schools, of course, will continue to be special targets, but the bludgeon of disapproval will gradually be extended to songs, conversations, jokes, and other informal aspects of popular culture. Of course, the ancient heritage under attack cannot be eliminated, but damage can be done. Consider a single example: On marriage licenses the rich words "husband" and "wife" will be replaced by "partner one" and "partner two." Needless to say, it would deny equal recognition to have two different marriage license forms, one retaining the old terminology and one utilizing the new.
Proponents of same-sex marriage often claim that allowing gays to marry cannot damage heterosexual marriages. They ask rhetorically, "How will allowing us to marry affect your marriage?" The California Supreme Court itself asserted, "Extending access to the designation of marriage to same-sex couples will not deprive any opposite-sex couple . . . of any of the rights and benefits conferred by the marriage statutes." But the institution of marriage is not defined or sustained only by law. It is also defined and sustained by literature, by music, by religion, and-less grandly-by the terms of ordinary conversations and everyday interactions. If same-sex marriage advocates continue to rely on courts to change the legal definition of marriage, these cultural supports will come under intensified attack. And that will harm a vitally important but already beleaguered institution.
Robert F. Nagel's most recent book is Unrestrained: Judicial Excess and the Mind of the American Lawyer (Transaction, 2008). A version of this article appeared as a part of an Internet debate sponsored by the Federalist Society.