20 May 2008

On the Legality of Marriage

After all these years, she still warms to his bacon.

A friend’s marriage was breaking up a few years ago, when she observed that I was more upset about it than she was (to a point, anyway). “You romanticize marriage more than anyone I know,” she said. “Is it because you’ve never been married?”

Maybe. And I had the dubious advantage of growing up in a home that was not only unbroken but formed around a couple whose union has been a cosmic necessity: if my parents hadn’t found each other, married and stuck together, they’d probably have wound up as mad scientists, serial killers, Heaven knows what. We’d all have paid a price. They are not fit for anyone else but each other. Knowing them has no doubt colored my view of the institution.

On the subject of gay marriage, however, I’m considerably more ambivalent — primarily because it’s always struck me that the great advantage of — indeed, the definition of — homosexuality is not doing what heterosexuals do. Nevertheless, on a purely legal basis, it’s an open-and-shut question of civil rights, and I’m mystified as to why so few people in America (or, indeed, most countries) understand that. An editorial in today’s Washington Post, mulling over the recent California Supreme Court decision, so thoroughly misses that point, and so blindly accepts reactionary arguments, that I’m compelled to write now.

The Post takes the position that the California court should have left the matter in the hands of the legislature and the voters, instead of forging ahead. This is the same complaint of “activist judges” who “legislate from the bench” that we hear any time the privileges of white, heterosexual males are questioned in the United States. Granted, the Post editorial page is more conservative than that of, say, The New York Times, but the difference between the Post and The Wall Street Journal is that the Post doesn’t intend to be — doesn’t seem to know that it is — conservative. So it joins the chorus of Americans insisting that there’s plenty of time for homosexuals to get equal rights, that some things need to be done by “baby steps” and forgetting the answer to Langston Hughes’ question, “What happens to a dream deferred?”

What no one seems willing to admit is that the case against gay marriage is unconstitutional on its face, because the only arguments against homosexuality that haven’t been thoroughly debunked at this point are religious. And yet gays are still second-class citizens at best, because Americans believe homosexuality is “wrong,” because God told them so. Never mind that the Constitution requires the separation of church and state, never mind that I am not legally obliged to adhere to your faith, nor you to mine. (Never mind, for that matter, that most of the condemnations of homosexuality in the Bible are mistranslations; the rest are concerned with increasing the population of a small, vulnerable sect, whether the Jews or the early Christians.)

The Bible prohibits a lot of things (shaving one’s beard, touching pigskin, masturbation) that Americans endorse, and it endorses a lot of things (slavery, stoning) that Americans now prohibit. Is a Bible verse any reason to prohibit one partner from visiting another in the hospital (as happened with heartbreaking regularity during the height of the AIDS crisis of the 1980s, and as is still legal in some places today), or from bequeathing property to a loved one, or from building a stable home life for a child, or from enjoying the protections of the law? A staggering number of so-called compassionate Christians will answer with a hearty “Amen.”

You can’t run a country this way, unless you’re the Taliban. It’s precisely because of such religious prejudices that the Constitution was written to uphold reason over faith in matters of the law.

Gay marriage would weaken the institution of heterosexual marriage and the American family, say some people. Clearly, they have no faith in the strength of their own values. If they’re so worried about their own marriages, why are they meddling in other people’s?

Left to their own devices, American voters usually can be depended upon to do the right thing, give or take 75 to 150 years. If we’d relied on voter initiatives, not only would Jim Crow laws still be on the books in most states, African Americans might still be in chains. It wasn’t voters but activists, from William Lloyd Garrison to Martin Luther King, who forced society to change — and it was the court system, not the legislatures, that recognized the change. If we wait on voters to legalize gay marriage, they most certainly will, but that’s cold comfort to anybody who’s alive today.

The California court recognized, rightly, that civil unions are a form of Jim Crow law, a label of “separate but equal” pasted over something that is inherently unequal. That’s unconstitutional, period. The court may have gotten more provocative than it needed to in parsing the definition of marriage, essentially throwing in the face of heterosexuals the whole question of the government’s role in such private matters. (Though it’s a legitimate question. In France, religious and civil marriages are entirely separate.) But as an application of reason, the decision strikes me as sound.

The Post worries of a backlash. This thinking is typical — timid, even defeatist, and ultimately very harmful. One of my dearest friends speaks of “baby steps” all the time, with regard to gay rights; she worries that if her children were better enlightened, or spoke up in favor of gay rights, they’d get beat up at school. She knows her community better than I do. Maybe she’s right to protect her kids from certain truths. But I have to cringe when I hear them saying things like, “That is so gay.” Their mother would wash out their mouths with soap if ever they dared use the N-word, by the way.

It took more than Brown vs. The Board of Education to guarantee the equal rights of black Americans. Gays must remember that the legalization of marriage is only one part of a larger struggle. And just as blacks encounter prejudice every day, 40 years after the assassination of Dr. King, gays won’t find themselves loved, or even accepted, by American society overnight. It’s a long, slow process — and it’s a shame that well-meaning people like the Washington Post editorialists and my dear friend want to make that process even slower.