Sauce for the gander

I am, to be honest, very satisfied with the Supreme Court ruling in Lawrence, striking down anti-sodomy laws. It’s a move that is well past when I would have liked to have seen it. I think society has, as a whole, been there and moved on. Homosexuality may not be approved of by the populace at large, “but as long as they keep it behind closed doors, I don’t care what they do” is the rule of the day.

When Wal-Mart adds sexual orientation to their list of non-discrimination policies, you know mainstream America has arrived.

Indeed, even the more conservative folks I know are less outraged by homosexuality per se than by in-your-face gay rights activism, especiallly of the fringe sort. (The same is true for general public feelings about pretty much any social movement, whether it’s feminism, Christianity, or Republicans.) The Lawrence decision is not “taking sides in the culture war,” as the dissent asserted, but accepting that particular battle is long since decided.

And it’s not like there isn’t precedent. As Marn noted the other day:

Want to know the truth? We’ve been letting our consenting adult homos put their pee pees anywhere they want up here in Canuckistan for 35 years. We have not suffered a complete and utter social breakdown, unless you count the success of Celine Dion AND GOOD LORD THE AMERICANS HAD SOMETHING TO DO WITH THAT, I JUST KNOW IT, AND YOU CAN’T HOLD HER AGAINST MY COUNTRY FOREVER, CAN YOU???

So I think the Republic is safe.

Where things move from here, of course, is the true next battle: gay marriage. Already, folks who would traditionally argue the case of states rights to handle matters as they wish are pushing for a US Constitutional Amendment to trump any states that might want to recognize gay marriage.

(Never mind that the vast majority of Constitutional Amendments have either been procedural, or else established liberty, not restricted it, and that the most noteworthy exception, the 18th (Prohibition) was a miserable flop.)

The problem is two-fold. First off, the Lawrence case has, by overturning anti-sodomy statutes, ripped a huge prop out from under various other laws that allow governmental discrimination against gays, e.g., in marriage or in adoption procedings. It used to be, in those states with such laws, that they could be pointed as as a justification for such discrimination. “Hey, we’d love to let you adopt a kid — but under this rarely-enforced-but-still-present law here … you’re a criminal! It’s nothing personal — it’s the law!” On the face of it, then, equal protection challenges to gender specification in marriage and adoption laws are inevitable (and justified).

The problem is, I don’t think that this particular cultural battle is anywhere near as “won” as the fundamental legality of what goes on behind closed doors. It’s one thing for John Q. Public to not care what folks do, as long as it’s not done in the street, scaring the horses. But formal state sanction of it? Well — that sort of is doing it in the street. It moves homosexuality from a don’t-ask-don’t-tell behind-closed-doors position to something that must be formally recognized by Your Tax Dollars. That makes a lot of folks — today — uncomfortable.

The current line of defense, which probably won’t hold either, is between social toleration of homosexuals and social approval of homosexuality. Or between accepting the reality that people are gay, even accepting that gays are people, and endorsing something called “the gay agenda.” Gay marriage, the opponents will argue, would cross this line. It would make homosexuality respectable and, worse, normal. Gays are welcome to exist all they want, and to do their inexplicable thing if they must, but they shouldn’t expect a government stamp of approval.

Of course, a lot of that publicly expressed discomfort sounds more like posturing:

On Sunday, Senate Majority Leader Bill Frist, R-Tenn., said the Supreme Court’s decision on gay sex threatens to make the American home a place where criminality is condoned. He said he supported the proposed constitutional amendment to ban homosexual marriage in the United States.

Um, Bill? The Supremes just said we’re not talking about criminality. Don’t look stupid.

The irony is that by trying to so protect marriage, conservatives are just as likely to destroy it through irrelevance. Already there is a parallel system of “civil unions” cropping up like crabgrass — marriage in all but name, but with a hodge-podge of legal protections and little precedent regarding dissolution, child custody, property rights, etc. The true threat to marriage, as we now know it, is that such civil unions will become the norm. What final form they might take is still unknown, and thus probably more of a covert threat to social order than gay marriage per se.

Or there’s the other direction, which says, “Why the heck is the state in the business of recognizing marriage anyway?” Why, such folks ask, don’t we — well, privatize marriage?

If marriage were an entirely private affair, all the disputes over gay marriage would become irrelevant. Gay marriage would not have the official sanction of government, but neither would straight marriage. There would be official equality between the two, which is the essence of what gays want and are entitled to. And if the other side is sincere in saying that its concern is not what people do in private, but government endorsement of a gay “lifestyle” or “agenda,” that problem goes away, too.
Yes, yes, marriage is about more than sleeping arrangements. There are children, there are finances, there are spousal job benefits like health insurance and pensions. In all these areas, marriage is used as a substitute for other factors that are harder to measure, such as financial dependence or devotion to offspring. It would be possible to write rules that measure the real factors at stake and leave marriage out of the matter. Regarding children and finances, people can set their own rules, as many already do.

An interesting thought — and one that I’ve heard in more than one place. I don’t agree with that approach — I think there’s a lot of value in the current history of law regarding marriage and marriage rights, and simply tossing that aside for more ambigious indicators of implied contract would be a huge waste. If social conservatives want to protect marriage, that’s the battle they need to be fighting.

UPDATE: Over at Volokh, Jacob Levy has a good analysis of the political fall-out from Lawrence. Assuming (a huge assumption, to be sure) that the GOP doesn’t act incredibly goofy, he sees it as a possible win for Republicans, because it moves the debate from “Should consenting gay sex be legal?” (which the GOP had to argue against to assuage its conservative supporters, but which was a long-term loser for them) to the far-less-settled “Should gays marry?” question which is far less embarrassing (though, IMO, still wrong) for them to hold a conservative position on. He also argues persuasively that Lawrence v. Texas is not the galvanizing event for the Right that Roe v. Wade was.

Also from Volokh, Juan Non-Volokh notes the dangers to both the Dems and gay activists overreaching from Lawrence.

For starters, Americans appear to have somewhat ambivalent views about homosexuality. As Jeffrey Rosen notes, a majority of Americans still believes that homosexual activity is morally wrong, even if they would not seek to outlaw or otherwise stigmatize it. Whereas most Americans may oppose sodomy laws, this does not mean that Americans fully embrace an “I’m okay, your okay” approach to human sexuality. Most Americans are tolerant of homosexuality – as well they should be – but this does not mean most Americans approve of homosexuality. Insofar as Democrats — or gay activists — fail to recognize this, they may overreach and provoke the political backlash that the Lawrence decision, standing alone, never could.