Marriage Equality: A Short Introduction

Gay marriage has recently become a political issue on both sides of the Atlantic; In the United States two cases have come before the Supreme Court, in the first opportunity for the body to make a decision on the issue; In Britain the "Marriage (Same Sex Couples) Bill" is steadily progressing towards passage through Parliament over the ever louder whines of religious leaders. In France protesters opposed to a proposed equal marriage law clashed with riot police on the Champs-Elysée (full story here). 

In the USA the question is played as a civil rights issue while in Britain a centre-right PM advocates gay marriage as a conservative cause, much to the chagrin of the reactionary right of his party.

This post will cover a number of areas and try to provide an overview of the issues around marriage equality:

• The Supreme Court cases - I will point in the direction of resources that explain the legal issues better than I could ever hope to.
• A look at changing attitudes in the US - why have the polls shifted? Are conservatives moving away from opposing equality?
• Examine the libertarian* argument against gay marriage - should the state be in the relationship business at all?

The Cases

There are two cases before the US Supreme - one involves the "Defence Of Marriage Act" (DOMA) and centres mainly on the right of the federal government to refuse to recognise state laws; the second is about the constitutionality of California's "Proposition 8", a ballot initiative which sought to "ban" same sex marriages in that state.

ScotusBlog is a good place to start, as is this excellent AMA on Reddit, I don't profess to be an expert - read for yourselves if you really want to know!  Here are the ScotusBlog pages for - Hollingsworth v. Perry and US v. Windsor.

Winning the Culture Wars

The Christian Right still exists, of course, and its as insane as ever - the Family Research Council** and others like them continue to churn out hideously offensive sound-bites for Right Wing Watch to chronicle - like this, this and this. Increasingly the country is beginning to see these people as what they are - trolls.

However, the recent statements by Bill O'Reilly explain something of the shift - the gay rights activists have successfully made it into an issue of fairness and rights - hence the prominence of the term "marriage equality" - as O'Reilly puts it, their case has been: "we're Americans, we just want to be treated like everyone else". 

Views have changed hugely in the last decade - Pew polling suggests that in 2003 58% of Americans opposed gay marriage and 33% supported it - today 49% support equality while 44% still oppose it. The poll suggests that it is mostly the more secular, open-minded, "millennials" that have made the difference. 

The Libertarian Argument - Get Government Out Of The Marriage Business!

The anti-gay marriage conservatives, it appears, are fighting a losing battle. Now, self-proclaimed "libertarians" are coming out of the woodwork, putting out a message summed up by the above picture - they  argue that human relationships flourish best outside of the purview of the state, that human sexuality and social relations should not be subject to law and regulation. Reasonable, one may think, but there are problems.

One is tempted to wonder, how much of this new found libertarianism is a face-saving exercise, a post hoc rationalisation for holding a bigoted position, but perhaps that is somewhat unfair. A more relevant critique is that this argument is a distraction, a red herring - abolition of opposite sex marriage is not on the horizon any time soon, equalization of marriage is - the cause of equality should not be impeded by a long term principle - think of the people who oppose affirmative action to correct racial inequalities because they can better be dealt with by no longer "talking about race" and shoving the legacy of segregation under the rug. 

Gay marriage is important as an affirmation of society's respect for gay rights, a rejection of traditionalistic bigotries.  In any case, the state is "in charge of marriage" because there are complex issues of property, custody of children, inheritance and so on.

This "Libertarian Case Against Gay Marriage", for example, while attempting to appear neutral, is stocked with anti-gay tropes (or well-meaning "positive" stereotypes) and conservative attacks on the Democratic Party and "political correctness". The author talks about gay "propaganda" in schools, trivialises the ideas that gays may face discrimination (after all, they can always hide their sexual orientation) and perpetuates the idea that marriage only exists because of the need to rear children and is thus inapplicable to gays - except, of course, that gay couples can and do raise kids. 

His political partisanship comes through here:

But the legislative agenda of the modern gay-rights movement is not meant to be useful to the gay person in the street: it is meant to garner support from heterosexual liberals and others with access to power. It is meant to assure the careers of aspiring gay politicos and boost the fortunes of the left wing of the Democratic Party. The gay-marriage campaign is the culmination of this distancing trend, the reductio ad absurdum of the civil rights paradigm.

By the way, the phrase "homosexual agenda" makes it obvious when a libertarian critique is insincere...

Don't get me wrong - there are libertarians and anarcho-capitalists who want the state out of marriage because they genuinely the state to be corrupting and illegitimate. They suggest that the full gamut of human relations cannot and should not be covered by a legal framework and that in fact the natural fluidity and passion of relationships is harmed by contracts and registrars and divorce lawyers.

Final thoughts

While it is not in question that LGBT rights are vitally important (if you don't think so - get off my blog, bigot), I will leave it up to you decide whether it is the state's business at all - this post has not even addressed the case made by some LGBT activists that gay marriage is either not worth the effort or even represents a step backwards or a co-optation by conservative forces.

Personally, I think the shift on gay marriage across the West is a good thing; it is a barometer of shifting social attitudes that are promising for supporters of social justice and tolerance. Right-Libertarian utopianism is all well and good***, and, in a perfect world, maybe the government wouldn't define what relationships gets social and legal approval; however, in this one, US federal law gives 1,138 benefits, rights and protections specifically to married couples - it is unjustifiable for that package of rights to be denied to a section of the population.

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*In the sense of the socially liberal, isolationist wing of the American capitalistic right rather than the traditional usage of the word to mean anarchist or libertarian socialist - see this left-wing critique of the Ron Paul crowd's usage of the word libertarian.

**To anyone new to the US's "culture wars" - "family" in the name of a pressure group is a red flag (and not the good commie type) - it more often than not means a hate group.

***Really, I have no problem with wholesale reduction of state influence in social life - there is absolutely nothing wrong with a good dose of utopianism - as Oscar Wilde put it: "a map of the world without utopia is not worth glancing at".