Friday, September 30, 2005

Diversity Means Same-Sex Marriage is Not Inevitable Everywhere

Maggie Gallagher, in the her article on gay marriage that I wrote about a few days ago, says that the most powerful argument advanced by the proponents of same-sex marriage is simply that it is inevitable. Canada recently became the fourth nation (after the Netherlands, Belgium, and Spain) to legalize same-sex unions. Several states and cities have been doing the same. In the “blue” cities of America, this may seem to be an inevitable trend. My wife and I used to live in Dupont Circle in Washington, DC, one of the great gay and liberal centers in America. If we had only read the local press there, and only talked to our neighbors and people like them, the complete normalization of homosexual practice would have seemed the only rational outcome for the wheel of history. As a college professor I live in a blue enclave which believes the same thing.

However, I am a college professor in Kentucky. I live in a small blue enclave within a very red state. Which brings me to the point. Kentucky passed an amendment to our state constitution in 2004 which specified that marriage meant only the union of a man and a woman. It passed by a huge majority. And similar laws passed in seven other states then, in nearly all of them by large margins. Kentucky is not Washington, DC, and it sure isn’t Dupont Circle.

Let’s consider a parallel case to see where the same-sex marriage issue might go. The debate about gay marriage is recent as a national issue. The debate about gay ordination, however, has been wracking the mainline churches for a generation. The Presbyterian Church (USA), a pillar of the mainline and one of the most liberal denominations in the country, was first obliged to face the issue and make a decision in the 1970s. The liberal leadership of the church, coming off triumphs in fights to make the races equal and then the sexes equal in the church, expected a routine triumph. Instead, the church articulated a “definitive guidance” that, while people with homosexual orientation were welcome in the church, homosexual practice was a sin according to the Bible. Members who disagreed with this position were welcome to stay and argue the point, but they could not be ministers and elders of the church. This conclusion has been tested many times since then. To the surprise of many, the center has held. Despite bitter annual fights on the subject, the church has not changed its position because most members, elders, and ministers agree with it.

What does this have to do with same-sex marriage in America? In this great land of ours, we find all kinds of individuals, and all kinds of communities which vary across a wide spectrum of opinion. Vermont may pass a popular law allowing same-sex marriage. Kentucky will not, not anytime soon. This is what democracy yields. If you are actually in favor of diversity, it seems to me that you not only have to accept the diversity of the results of democratic decision-making, you should celebrate it.

The debate about same-sex marriage is not over. It has barely begun. The attempts to short-circuit the debate by judicial imposition is, as I have written, the wrong way to make a social revolution. As we enjoy the long, slow, sometimes ugly process of democratic debate and legislation, we should not expect that every jurisdiction will end up with the same result. And this is, from my centrist perspective, a good thing.


Anonymous said...

I do not question that this could happen. I am curious, however, how you see this might play out in our ever increasingly mobile world. What if a gay married couple married in Massachusettes and then moved to Kentucky where there is an amendment against such unions, what would their legal status in Kentucky be. Will or should states be forced to recognize other states marriage certificates and if they do not what are the ramifications for benefits and even if that couple should seek divorce. Could they get divorced in Kentucky or would they have to file the paperwork back in Massachusettes.

Gruntled said...

The Constitution calls on the states to give "full faith and credit" to other states' laws. Up until recently, this has meant mutual recognition of marriages, even though states had different marriage laws, such as minimum ages and minimum residency. The Defense of Marriage Act, though, passed after the Vermont judicial shortcut, protected states in not accepting one another's marriages automatically.

Ampersand said...

Actually, even without DOMA, it's unlikely that states would have been forced to recognize same-sex marriages in the example Dee describes - just as they weren't forced to recognize interracial marriages before the Supreme Court's Loving ruling.

Galois has an excellent post discussing this issue.

Gruntled said...

I agree that this is murky area. I think that is why DOMA passed quickly, but a constitutional amendment to define marriage in a het-only way has so far gotten nowhere.

(By the way, thanks for the link to the Galois site. I could not get all the posts within it to load -- which one in particular were you referring to?)

Anonymous said...

I was referring to his post "Have Marriage Will Travel." I can get it to load on my browser, but the layout is not working properly, so you have to scroll very far down, below all the sidebare material, to get to the post itself.

If you can't get that to load, try the Google catche of his post. Again, you'll have to scroll down to read the post text.

Gruntled said...

Galois notes that the question of whether one state will recognize another's marriage if that kind of marriage is not allowed in the first state is murky if the first state's laws did not speak to the question specifically. Most states do allow exceptions to Full Faith and Credit under the vague heading of it being "contrary to public policy." Some states, such as Kentucky, specify that any marriage other than a union of one man and one woman is contrary to public policy in Kentucky.

(Thanks -- I just hadn't been persistent enough to get down to this particular post.)