Over the last two weeks, TNR's managing editor Richard Just and TNR's legal affairs editor Jeffrey Rosen have been debating the appropriate lessons to draw from the passage of Proposition 8. Rosen started the argument here, and then they went back and forth here and here. What follows is the final installment.
Thanks for your response. To take your points one by one: You draw a distinction between interracial marriage and gay marriage, writing, "The Supreme Court was right to strike down bans on interracial marriage in 1967 because the only plausible social meaning of those bans was to degrade black people and to promote white supremacy. By contrast, the arguments on behalf of gay marriage are less clear." Actually, the two issues strike me as quite analogous. What is the plausible social meaning of a gay marriage ban, other than to degrade gay people? The primary argument of anti-same-sex-marriage partisans is that allowing gays to wed will somehow weaken heterosexual marriage. But there is no empirical evidence to support this claim.
I'm no statistician, but a quick tour of this website, maintained by the CDC, suggests pretty strongly that the advent of gay marriage in Massachusetts has had no effect on the inclination of straight couples to get married. There were 36,225 total marriages in Massachusetts in 2003, the year before the state began marrying gays; in 2007, three years after same-sex weddings began taking place, there were 38,402 total marriages. And the number of divorces in the state was down over the same period. Compare these numbers to the trends elsewhere in the country, and you'll see pretty clearly that marriage is no more or less healthy in Massachusetts than it is in the other 49 states.
And not only is there no empirical basis for the central claim of anti-gay-marriage partisans, but there isn't any intuitive basis for it either. In the decade or so of heated debate surrounding this issue, no one has offered a single plausible theory for how the advent of gay marriage will somehow persuade straight people not to wed. How will the actual mechanics of this hypothetical chain reaction work? I would love to hear an explanation from gay marriage foes. But, of course, none exists.
Since the central argument against gay marriage makes no empirical or intuitive sense, what is left? Just vague appeals to tradition and religious belief. These arguments also featured prominently in the debate over interracial marriage. (In upholding his state's ban on interracial marriage, the judge who originally heard Loving v. Virginia wrote, "Almighty God created the races white, black, yellow, Malay and red, and he placed them on separate continents. ... The fact that he separated the races shows that he did not intend for the races to mix.") So, of the three main arguments against gay marriage, one has no basis in reality or logic, and the other two (tradition and religion) mimic the logic of anti-interracial-marriage arguments from five decades ago. As a result, I think it's quite difficult to argue that the case against gay marriage has any more non-bigoted, plausible, social meaning than the case against interracial marriage.
Second, you raise what I think is really the core of our disagreement: whether gays and lesbians are entitled to constitutional protections similar to those for racial minorities and women--and whether laws that discriminate against them should therefore be subject to heightened scrutiny by courts. This was the main legal basis for the Connecticut and California decisions. You are correct that the immutability of a trait is not sufficient for showing that a group deserves heightened protection. But neither court treated it that way. In fact, both courts downplayed this factor in their decisions, focusing instead on other criteria for determining whether a group is entitled to heightened protection: Has there been historical discrimination against the group? Does sexual orientation affect a person's ability to contribute to society? And (in the case of Connecticut's court, though not California's) does the group lack political power? The answers to the first two questions are obvious, and, as for the third--I think the fact that, over the past few years, 30 states have opted to ban gay marriage while zero have enacted it through the legislative process pretty much speaks for itself. If gays were indeed politically powerful, we wouldn't be having this conversation; gay marriage would already have happened through the legislative process.
As for immutability: Neither court found that homosexuality was immutable, even though most people who study the subject believe that it is. Instead the justices reasoned that--to quote the California court--"[b]ecause a person's sexual orientation is so integral an aspect of one's identity, it is not appropriate to require a person to repudiate or change his or her sexual orientation in order to avoid discriminatory treatment." In other words, the justices treated it much like religion--which, as you note, is considered a suspect classification, and therefore invites heightened scrutiny from courts. In my first reply to you, I emphasized immutability merely to point out that our understanding of homosexuality has evolved radically in the past 50 years. Part of this change has been driven by science (which now sees homosexuality not as a disease that can be cured, but rather as a natural variation in the human condition that is probably immutable); part of it has been driven by increasing social tolerance for minorities of all kinds; and part of it has been driven by a courageous generation of gay activists who, even while facing disease and decimation, decided they were no longer content to live on the margins of society. But, whatever the explanations, there can be no doubt that how we understand homosexuality has changed--just as earlier generations of Americans lived through a change in the way society understood race and gender. Constitutional analysis adjusted in those earlier cases. Why should it not adjust now?
Third, you write that "some people--including some prominent gay commentators--support civil unions as a separate but genuinely equal alternative to gay marriage. They're not motivated by animus, they insist, but instead by a desire to preserve a traditional definition of marriage--hardly an argument that would pass the laugh test if race were involved." I'm not aware of any prominent gay commentators who support civil unions but oppose same-sex marriage (some, like Jonathan Rauch, argue that such rights should not be won through the courts--but this is a disagreement about means, not ends). Even if such people exist, however, I'm not sure what it proves. Some prominent black commentators (Malcolm X) opposed integration in the 1960s. That didn't make segregation any more constitutional, or any less repugnant. Moreover, I don't see the legal significance of the fact that our adversaries in this debate insist they aren't motivated by animus. Does any side in any debate ever admit that it is motivated by animus? Of course not--which is why it's better to focus on the merits of the policy at stake rather than on the motivations of our adversaries. The key question is not whether they are bigots, but whether the policies they advocate are discriminatory. (On a side note, though, I do think the idea that anti-gay-marriage forces are motivated purely by a desire to preserve a traditional definition of marriage is belied by their support for the proposition in Arkansas that banned gays, and other non-married residents, from adopting children. Do these groups really just want to preserve traditional marriage? Or is their agenda more ambitious: to ensure that gays remain segregated from the key traditions and institutions of American life?)
On the question of strategy, we have a clear (and, to my mind at least, interesting) disagreement: My argument is that we need to push for gay marriage via whatever means we can, because seeing gay marriage in practice will change minds. You are skeptical that people's minds can be changed by actually seeing gay people get married because objections to gay marriage are "deeply felt moral views" that aren't open to reconsideration. If you are right, then our only hope is to wait for those who oppose same-sex marriage to die and for a new generation of voters to take their place.
There is no doubt that views on homosexuality correlate strongly with age. And obviously many people are never going to reconsider their views on this issue. But I want to offer a few data points to push back against your argument. First, there is the matter of poll numbers in Massachusetts, where 53 percent of residents said they opposed gay marriage in February 2004 and 56 percent said they supported it by March 2005 (ten months after gays started marrying). There are about 5 million adults in Massachusetts. About 53,000 people in the state died in 2004. I can't pinpoint the number of people who turned 18 that year, but let's assume for the sake of argument that it was in the ballpark of the number of people who were born (about 78,000). And let's say the numbers were 65-35 against gay marriage among the dying voters and exactly reversed among the new voters. If you do the math, it becomes obvious that demography only accounted for a small fraction of the shift. In other words, people changed their minds.
The next data point comes from California. If voters' views on same-sex marriage are so deeply held and resistant to evolution, then how do you account for the swing in public opinion that occurred between the summer and the fall? In the wake of the court's decision in May, polls showed clear majorities opposing Proposition 8. It trailed 51-42 in July, 54-40 in August, and 55-38 in September--before a massive advertising blitz by the other side caused the numbers to shift in the six weeks leading up to election day. Now, obviously that shift was in the wrong direction, but the fact that it took place at all suggests that, among at least a good chunk of the population, we are not dealing with "deeply felt moral views," but rather opinions that can be influenced. Over the summer, when the news was filled with images of gay couples getting married, support for gay marriage was strong; in the fall, when the airwaves were filled with hysterical ads warning that failure to pass Proposition 8 would lead to churches losing their tax-exempt status and the virtues of gay marriage being taught in elementary schools, views changed. This isn't demography; it's politics. And it's powerful evidence that voters are open to persuasion, in both directions.
Finally, there's one more data point that casts doubt on the notion that people's views on this subject cannot be swayed by the testimony of others. If you look at the exit polls from the Proposition 8 vote, you'll see that, for the most part, support for gay marriage declines steadily with age. Those between 18 and 24 are the most supportive, those between the ages of 25 and 29 are slightly less supportive, and so on--until you reach the 65-and-over group, which is the least enthusiastic. This is no surprise, of course: The past ten years have seen a revolution in the way that young gays and straights relate to each other, at least in culturally liberal and moderate areas of the country. It is now common for gays to come out in high school or college, and it is also common for 20-something straights--Republican and Democrat, religious and secular alike--to have numerous gay friends. But, in the exit polls, there was one age group that interrupted the steady pattern of the data: Those between 50 and 64, while narrowly rejecting gay marriage, 51-49, were actually eight points better on the issue than those between 40 and 49; and they were one point better than even those between 30 and 39. What could explain this? I have a theory, albeit one that I can't prove: The 50-to-64 group are the parents of the 18-to-29-year olds who have experienced the sea-change of the past ten years. While they themselves grew up with more conservative attitudes on homosexuality, some now find themselves with gay sons and daughters, gay nieces and nephews; and many more have seen their straight children come of age with close gay friends. Those in the 40-to-49 range, by contrast, are mostly too old to have grown up with legions of out gay friends, but mostly too young to have seen their children experience the new culture being created by people in their 20s--a culture in which it is perfectly normal, even unremarkable, to be gay.
My point is simple: Individual opinions on this subject can shift. Members of my parents' generation are more supportive of gay marriage than demography would have predicted because personal experiences have changed at least some of their minds. This is why I believe that, despite the setback in California, we should continue to use all available means, including judicial ones, to push for gay marriage in as many states as possible. The more people see gays getting married--whether relatives, co-workers, or even just celebrities on TV--the more minds will change. It can be done. People can be swayed. We know this because we've already seen it happen.
Thanks for a fun exchange. Looking forward to continuing the discussion in the months to come.
Richard Just is managing editor of The New Republic.