On Tuesday, a number of conservatives gathered at the Lege for Texas Faith and Family Day, an event organized to highlight a number of social issues, including, of course, gay marriage. Over at the Texas Observer, Chris Hooks reports that when this issue came up, the conservatives seemed slightly deflated, even wistful: gay marriage is not legal in Texas, but with rulings on the subject pending before the 5th Circuit and the Supreme Court, that could change very soon.
I certainly wouldn’t be surprised, after reading a number of the letters that have been sent to Texas Monthly since the publication of our March issue, which features a cover story by my colleague Pamela Colloff about the suit that could bring gay marriage to Texas, and the women who filed it. Ignoring the letters that were senselessly vitriolic, which is the appropriate thing to do with them, and paying attention to arguments that readers were offering against gay marriage, I realized that there were three recurring lines of argument. Personally, my view is that a Texan should be free to marry the person of his or her choosing, so long as the other person agrees to the arrangement and isn’t underage or married to someone else or so on. So I wasn’t predisposed to agree with the arguments against gay marriage, and I didn’t. But I noticed a bigger problem with the recurring arguments: from a political or legal perspective, all three were completely untenable.
The first type of argument was religious: homosexual behavior (or homosexuality itself) is sinful, and gay marriage therefore violates God’s law. This premise, of course, is not universal among Christians. But more to the point, the premise is a theological claim about sin that doesn’t overlap with any standing legal precepts that might create an opportunity to advance the moral goal without citing that as the reason. The argument, as a result, is irreducibly religious. That’s fine, if you’re in church: If the Pope says gay marriage is wrong, the government shouldn’t force priests to offer that sacrament to same-sex couples. But if we’re talking about state law, religious arguments aren’t enough on their own: Texas law allows both divorce and remarriage, although Catholic teaching prohibits it. And if a Catholic seeks a divorce, she has the same legal rights as anyone else would, even though a stern nun might scold her.
The second type of argument was about the political process: In 2005, Texas voters approved a constitutional amendment banning gay marriage, by whopping margins; clearly, most Texans oppose gay marriage, and judges who would strike down the ban would be flouting the expressed will of the people. There are two problems with this. The first is that public opinion on gay marriage has obviously changed since 2005, in Texas and around the country. A clear majority of Texans supports legal recognition for same-sex couples. The 2005 results are a valid measure of public opinion at that time; turnout was low, but if people don’t bother to vote then they can’t subsequently complain about not being counted. But they’re not a reliable measure of public opinion today. And the second problem is actually more significant: we don’t restrict rights on the basis of public sentiment. If anyone doesn’t understand why, ask an open carry activist the next time you run into one.
The third type of argument exhorts us to think about children such as the young boy who appears on the cover of the issue along with his family. He was conceived with the help of an anonymous sperm donor, and although both of his parents are loving and committed, neither of them is a man; such circumstances, according to this line of argument, are bound to have troubling effects. This isn’t a good argument against gay marriage because it’s not actually an argument against gay marriage. It’s an argument against gay parenting, and a misdirected one at that. It’s true that if a girl meets a girl and they fall in love, the romance is unlikely to yield a baby by accident. But the technology that they may use to acquire one, and their subsequent domestic arrangements, are available to heterosexuals too. There are reasonable discussions to be had about such matters; this is interesting terrain and it’s always evolving. And rapid change, technological or social, can be unsettling. But it’s analytically imprecise to blame gay people for causing all this upheaval. A lot of horses were out of the barn well before they started asking for legal reforms. And considering that the legal reform gay Texans are hoping for is the right to marry their partners rather than living in interminable sin, it’s a little uncouth to scapegoat them.
Commenters, I’m sure, will tell me if I’m overlooking other lines of argument against gay marriage. But there’s only two I can think of offhand that aren’t obviously flawed like the three above. One is that since gay marriage is new, we don’t actually know what its long-term effects will be. I suppose that’s true, although I don’t know if it’s a particularly strong argument. We’ve all been pretty quick to adopt social media, which seems like a greater threat to civilization than gay marriage, at least so far. The other is the argument made by then-attorney general Greg Abbott in defense of Texas’s current ban, which is roughly that the state has the right to set marriage laws based on its own interests, but that it’s not obligated to do so, and that traditional marriage advances Texas’s interests because it’s extra-good for parents to be married, and even if a married straight couple doesn’t have kids, that’s fine because they’re still helping foster the norm of marriage. When I first read the brief, I was really confused, because by that logic, as far as I could tell, gay marriage would also further Texas’s stated interest in fostering bourgeois ideas about how children should be raised; but the government’s right to promote marriage laws that advance the public interest is not an obligation to do so, so Texas doesn’t have to legalize gay marriage. I’m still confused by that argument, and since I don’t understand it in general I can’t understand why it’s wrong. Maybe it’s good? If not, social conservatives should get to work. If they want to hold off gay marriage they’ll need better arguments than the ones they’re currently wielding, and it may already be too late.