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June 25, 2011

Stray Thoughts on Gay Marriage

1. Gay marriage has been achieved in some states (and coming soon, to all states) through a series of tactical arguments, and by tactical arguments, I mean dishonest ones.

Scalia objected to Anthony Kennedy's claim that the Constitution forbade any distinction whatsoever in heterosexual and homosexual conduct, stating that this ruling would in short order be used as a basis for arguing a positive Constitutional right to gay marriage.

Pish-posh, the gay lobby said; it will do no such thing. It is simply the deletion of an odious and unjustifiable remnant of the law.

Flash forward just five or six years later and the removal of any distinction between gay and straight sex is used as the basis for arguing a positive Constitutional right to gay marriage.

Similarly we were told we had no need of a Constitutional Marriage Amendment, because DOMA would protect states from having gay marriage forced upon them by lawsuit. The lawsuit chain would be thus: gay marriage is granted in one state; the couple moves to a state where gay marriage does not exist; the couple sues the state on the theory that the Full Faith and Credit clause of the Constitution demands that one state respect the marriage contract of another.

Well, right now Obama is talking up repeal of that provision, which would in very short order impose gay marriage by lawsuit on all fifty states.

In addition, the claims that we do not need a Federal Marriage Amendment to preclude this possibility were always disingenuous. The gay marriage lobby always intended this one-state-leads-to-another plan and fought the Federal Marriage Amendment largely to leave this option on the table. The claims that DOMA would serve as protection against this were always dishonest. They knew DOMA could and would be changed on a whim, and if it couldn't be changed legislatively, it could be rubbished in the courts.

Without even bothering to look it up, I know that some people opposing gay marriage argued at some point that gay marriage in some states would create a chaotic patchwork of inconsistent marriage laws in the several states, and that gay marriage should be resisted on these grounds. Without looking it up, I know that gay marriage proponents cried hogwash to this concern, and claimed that the states should serve as laboratories of democracy (even court-imposed non-democracy) and certainly the idea of "uniformity" was a trivial and silly matter that should not be used as a basis of argumentation.

However, I know this: Now that a small but nontrivial minority of states have implemented gay marriage, the gay marriage lobby will begin to argue that "uniformity of marriage laws" is a paramount consideration, and that we surely cannot tolerate a chaotic patchwork of differing marriage laws in the several states, and of course that means we must have nationwide all-50-states gay marriage.

Of course it will be ignored that just five years ago the states' marriage laws were quite uniform on this single point, and that the lack of uniformity was created by the gay marriage lobby, which will now seek to use that lack of uniformity to create a new uniformity.

That has been the game all along. It is a cunning game, designed, as it is, to boil the frog slowly so that he never jumps out of the pot.

But like most cunning strategems, it is entirely dishonest, and always has been so.

Do the ends justify the means? For those convinced this is a sacred right unfairly denied to gays, I suppose it must seem that the ends justify the means. Certainly the stratagem employed belies such a belief.

But dishonesty remains dishonesty, which I think most still consider a rather bad thing even in this rapidly-"evolving" world where apparently only One Single Thing Really Matters.

It becomes harder and harder to believe anything gay marriage proponents claim about their future agenda when every past claim about their next moves has been false (and false from the moment of utterance).

The claim is being made that "Of course we will not impose gay marriage on religious institutions."

Um, yeah. Because you've been so upfront and candid with me in the past.

2. There are two parallel agendas here, one I broadly support, one I basically oppose. They are gays' seeking of broader tolerance and acceptance (this one I support, generally), and gays' seeking to redefine marriage (which I oppose, basically).

The gay marriage lobby believes -- wrongly, to a large extent -- that changes in the legal code will effect changes in people's hearts. Or at least many of them seem to believe this.

That's not the only reason they seek gay marriage, of course -- they also believe it's an unjustifiable form of discrimination which should be overturned no matter what secondary effects doing so might (or might not) have.

However, there does remain at least something to this idea that once the state-sanctioned forms of divergent treatment of straight and gay marriage are eliminated, people will become more comfortable with homosexuality as a general matter.

What there is to this belief I don't know, but I think it's mostly wrong. "The law is a teacher" I think, but I'm not sure how much of a teacher it is. People are generally skeptical of government, and increasingly believe government and law are a crooked game which a Good Citizen ought to respect only to the extent necessary to avoid jailtime, and decisions like this reinforce that idea.

I think then that while the idea might be the state sanctioning of gay marriage shall lend the institutional prestige of the state to gay marriage, in fact there is more of the almost-opposite thing going on, gay marriage erodes whatever's left of the institutional prestige of sanction by the state.

There is a certain amount of counterproductiveness going on here, too, which erodes and undermines what is a real and inarguable tendency towards detente between gays (and their gay-friendly urbanite super-allies) and those generally uncomfortable with homosexuality.

The right sometimes castigates the left for its hypocrisy as far as hate and intolerance. We point out that while they claim to be opposed to hate and intolerance, in actual fact they wallow in it, directing true hatred at anyone who disagrees with it.

They reject the claim of hypocrisy here. They say, "I am entitled to hate them not because of what they are, necessarily because they're Christian or rural or white, but because of the odious politics they inflict on the country."

In other words, they use the tangible legislative/cultural preferences of the right as a justification for giving in to the irrational and frankly evil emotion of hate.

People are extraordinarily good at justifying to themselves what they wish to do anyway. People are amazing at this.

It takes a rare and keen intellect (you're welcome!) to be aware of the human ego's ability to knit together very convincing (to ourselves) "logical" arguments about why we should do what the id wants us to do.

And so with traditionalists and gays. Even while there is a growing rapprochement between the fair-minded individuals on either side of the debate, this furious agenda to Win At Any costs pushes fair-minded traditionalists away from their growing "Eh, what do I care if they're gay" sentiment.

As with the left, justifying its hate of traditionalists/religious folk based on their tangible agenda, so too the traditionalists/religious folk will justify a fresh dollop of animosity towards gays based upon their tangible agenda.

And you can't really argue with them. We generally say the rule is that you cannot despise someone (fairly) based upon innate traits that can't be changed, but it's fair to despise someone for their politics.

Our whole partisan rules of engagement are based on that idea.

Well, this would be a tangible agenda, then.

Now, for many gays or straight proponents of gay marriage, they'll probably say, "No matter what the consequences, this discrimination is wrong, and I'd rather be a hated first class citizen than a well-regarded second-class one."

I suppose. But we seem to be putting the cargo before the cult here.

The most important thing -- tolerance and acceptance -- cannot be state-compelled.

And the ever-reliance upon state compulsion for these purposes will end rather badly.

No one likes being bossed about. Gays included. And I think they'll find that as they rack up victories in the courts, they lose battles where it's more important, in peoples' hearts and minds.

I would still urge people to resist that on the basis of They know not what they do.

But this is a real thing. Tell people you're going to force them to accept something they don't care for and you're not going to actually breed more acceptance, but likely nearly the opposite.

3. Some conservatives are semi-praising the legislative decision by saying, "At least the legislature imposed this before the courts did."

This is a victory for democracy, then? Really? A legislature acted because they knew the courts would soon take an anti-democratic step and remove the issue from their consideration at all?

A thief may shoot you and pluck your wallet from your cooling body. Or a thief might put the gun to your chest, cock the hammer, and demand you hand over your wallet.

If you hand over your wallet, you won't get shot (probably -- see California where the thief decides he didn't like the manner of your handing over your wallet and decides to shoot you anyway), but the fact you've handed your wallet over does not in fact render this transaction voluntary.

It does not make it democratic. The victim of a mugging cannot be said to have had due process rights and voting rights in this exchange simply because he took prudent steps to avoid being left for dead.

4. The supposed libertarian "position" on this is not a position. It is a dodge. It is a feeble attempt to not decide. And as Rush said, "If you choose not to decide you still have made a choice." (Duhn-duhn.)

It's bullshit. The government must be involved in marriage because the government enforces all contracts and makes numerous rulings upon what sort of contracts are illegal or proper (no personal service contracts longer than seven years, contracts with minors are voidable by the minors' choice, a huge amount of jurisprudence on the "default" terms of any contract in which specific terms on the disputed thing were never reached.)

If you don't believe me, read Ann Coulter.

The government cannot say "We are entirely out of the contract-enforcement business. It's on you."

This is the whole point of government -- to provide working ground rules, with state enforcement, so that people do not resort to "self help" in vindicating what they believe are their rights. And by "self help" I mean anarchy or rule by personal ability to coerce/compel someone through force.

I know some people would like very much to have no opinion on this, and to say "Leave it to others to decide" or "I am tired of these relentless culture wars by two sides that plainly despise each other with all the hate a heart can hold and would like to signal my non-affiliation with either side."

That's fine. But if that's what you want, just say so. This libertarian dodge/non-position that in one area of contract law the government shall go strangely absent is intellectual bullshit. It's bumper-sticker thinking.

Go with the true, defensible position you really hold: You don't know. There's nothing wrong with saying "I don't know." In fact, I'd say the ability to say "I don't know" is one of the most virtuous things an honest mind can do.

And, one day, if you're convinced of one side or another, join that side.

But the "government should get out of the marriage business" is not a side. It's a way to sound smart while saying "I don't know," overlooking the fact that saying "I don't know" is often a pretty damn smart thing to say.

5. On private contract, it is true that a gays, even absent a specific marriage contract, could secure almost all of the incidences of marriage by signing a contract with each other that enumerates the specific pledges made and the specific duties expected.

That's a fair thing to note but, going back to Ann Coulter, the reason we have a collection of contractual rights collected under the rubric "Marriage Contract" is for user convenience.

Given that, it probably would have been best, I think, for everyone to negotiate some off-the-shelf contract of civil union that was marriage-like enough for gay marriage proponents and yet not so like marriage as to upset traditionalists. That is, a series of contractual provisions collected up under a single header (like our laws of marriage are) so that people could grab this off-the-shelf ready-to-eat thing rather than cadging together their own do-it-yourself semi-marital contract.

It's a solution that would have actually pleased very few but in politics (and often in life) the object is not reach a resolution that is pleasing, but simply one that is livable for all.

Now I never pushed for this very much (though I have alluded to this being my basic position). But I never pushed for this, so I don't say this in a "Told you so" way. I say it retrosopectively, looking backwards, informed by current information that we didn't have previously.

But neither of the two sides most invested, emotionally, in this issue really ever considered that third path, because neither actually wanted it. Gay marriage proponents were gay marriage all the way. Oh, they did play around with civil unions for a year or two, before realizing "We can win and have it all" and discarding this negotiated solution for an open war they believed they'd be victorious in.

I'm not sure if they're right about that, but I have to admit, that gamble is looking wise. If all you care about is winning.

And the traditionalists never much wanted civil unions either.

So there was a third way available, sort of (but see California, of course, where the gay marriage proponents decided that civil unions, considered progressive state-of-the-art just five short years ago, were now the most evil, retrograde, freedom-destroying equality-killing thing they ever heard of).

This is often my consideration when you hear me talking like a "squish." My consideration is that we can gamble and try to win it all, but should note that when you play to win it all you can also lose it all, and sometimes I think there's a way to negotiate some outcome that kinda sucks for everyone but doesn't really suck for anyone.

This isn't to blame the traditionalists, though; just making a general point about tactics in political war and peace and negotiated treaties.

Civil unions never had a chance because within five minutes of the public growing comfortable with them the gay marriage lobby decided that they could not possibly endure under such a despicably discriminatory regime.

(Still More To Come.)

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posted by Ace at 11:55 AM

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