It is often stimulating to read the point of view of people with
different opinions than yours. It's a great intellectual exercise
and it can sometimes open your eyes... I was thus glad when I saw a
paper on gay marriage in one of the latest issues of The Weekly Standard, a serious conservative weekly. Its. ambiguous, title was R-e-s-p-e-c-t: The next stage in litigating same-sex marriage.
The author, Yale-educated Robert F. Nagel, is a professor of
Constitutional Law at the University of Colorado. An articulate person.
Unfortunately his point of view is, frankly, difficult to follow. He
seems to oppose same-sex marriage, or maybe not, or maybe only the
judiciary approach...
Professor Nagel goes back to Tocqueville
to describe the principle on which, according to him, this summer
decision of California Supreme Court is based:
"Whether or not we accept the idea that the desire for equality
becomes more intense as inequality shrinks, it does seem right that it
is because homosexuals have achieved so much acceptance in
American society, especially in California, that withholding the word
"marriage" can seem to some a serious injustice. Perversely, as
substantive discrimination diminishes, there is always more to be
outraged about.
This principle is built into the widespread judicial practice, of
which the California decision on gay marriage is only one example, of
defining fundamental rights by generalizing or abstracting the rights
already traditionally protected by society. The more a right has been
respected by political institutions, the more likely it is that a court
will declare it to be morally imperative that the right be extended
beyond its existing limits. That, for example, is the basis for the
U.S. Supreme Court's campaign limiting the death penalty. And, in fact,
it is how homosexual sodomy became a constitutional right."
All
right, so far so good. It's OK, isn't it, that homosexual sodomy
became a constitutional right? Or is it not? If I understand correctly,
"Tocqueville's 'singular
principle of relative justice' has some
unsettling implications for the struggle over same-sex marriage." By
what Professor Nagel refers to the fact that "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. 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."
Sure...
So what? Is it a reason for denying same-sex couples the possibility of
marriage? But wait, now the whole purpose of the article becomes
clearer...
"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."
I understand... gay marriage will damage heterosexual marriage! That's the whole point:
"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."
No,
Professor Nagel is not against gay marriage. He just worries that the
current judiciary process goes too fast and will jeopardize the
marriage institution. That's all.
Same-sex marriage has been legal in Massachusetts for the last four
years. I haven't heard that heterosexual marriage had been dramatically
damaged there. Have you? In the meantime, while opponents to gay
marriage are trying to reverse the decision of the Supreme Court in
California through a popular vote on November 4th, Connecticut Supreme
Court has legalized same-sex marriage this week...
2008.10.12
