Yesterday the Supreme Court heard oral arguments on California’s Proposition 8, which defines marriage as being between couples of the opposite sex. Today they’re hearing them on the Defense of Marriage Act, which defines marriage as a union of one man and one woman at the federal level. Like Roe v. Wade, the high court’s decision on these cases is likely to fuel the culture war for a generation or two, at least. Unlike with Roe, the Court seems to understand that it’s been handed an issue of enormous consequence.
As such, it’s important to understand that one way or another, the entire topography of the gay marriage debate is likely to change once the Court issues its rulings. And it’s anyone’s guess as to what that world is going to look like.
So instead of offering predictions, here are some thoughts to keep in mind in the coming months while we wait for the rulings.
* There’s no reason for opponents of same-sex marriage to get stampeded into abandoning the field. That’s been the purpose of the media blitz over the last few weeks: to convince conservatives (and any jurists who might—*cough* Ron Joberts *cough*— be particularly sensitive to public opinion) that the general sentiment is snowballing in favor of overhauling the traditional definition of marriage.
But is it really? Gay marriage has had a good run since November. Voters in Maine, Washington, and Maryland approved gay marriage initiatives, and voters in Minnesota turned down a proposal to limit marriage to one man and woman—the first time a proposal like that has been defeated. These were real victories for the gay marriage movement. But they were powered in large part by President Obama’s coattails. Look at how the gay marriage initiatives underperformed Obama’s share of the vote in each of the four states:
Minnesota: Obama, 53 percent; “no” on traditional marriage vote, 51 percent
Maryland: Obama, 62 percent; same-sex initiative, 52 percent
Washington: Obama, 56 percent; same-sex initiative, 53 percent
Maine: Obama, 56 percent; same-sex initiative, 53 percent
Strip out Obama’s big margins of victory and every one of those outcomes might have been different. (In an alt-universe where Mitt Romney chose Tim Pawlenty as his running mate, the Minnesota traditional marriage initiative probably would have flipped even if Obama carried all the same states.)
* None of this invalidates the results—wins are wins. But it does highlight two things:
(1) Even in places where gay marriage has had its very best electoral outcomes—ever—it certainly isn’t an overwhelming juggernaut. Fifty-three percent of the vote in ultra-liberal Washington state doesn’t equal settled public opinion. To give you some perspective, in 2008 58 percent of Washington voters supported the state’s assisted suicide initiative. You don’t hear anyone talking about how unstoppable the national assisted-suicide movement is.
(2) Should the defenders of traditional marriage give up just because the four most recent votes didn’t go their way? Imagine another alt-universe in which Mitch Daniels was the Republican nominee and his electoral strength reversed all four of those outcomes. Do you think that, today, the gay marriage movement would be folding up shop? Probably not. Prior to last November, gay marriage advocates were 0-for-32 in elections. That never bothered them.
You advance arguments not because you think they are winning—or losing—propositions, but because you think the arguments are persuasive on their own merits.
The reason the same-sex marriage debate is going to continue, regardless of the Supreme Court’s decisions, is that its central tension is hidden beneath the superficial issue.
On its face, same-sex marriage appears to be an equal-protection question, which is why the prima facie arguments in favor of it are so powerful. But the real issues are much deeper and involve a conflict between competing ideas about freedom.