If you can't base a gay-marriage ban in tradition or in a religious objection—because laws have to have a secular purpose—and you also can't ground it in the claim that children raised by same-sex couples are worse off, because the research shows just the opposite, than what rational-basis argument can you make? The Proposition 8 proponents are taking heat for their crappy trial record. But what evidence could they have put on instead?
—Emily Bazelon, in Slate
I was as dumbstruck by conservative New York Times columnist Ross Douthat’s piece in yesterdays’ Times as law professor and author Linda Hirshman makes clear in a Slate piece today that she is. But not only because Douthat uses pseudo anthropology to conclude that it is in society’s interest to promote heterosexual marriage. Or even Douthat’s concession that heterosexuals now have the culturally accepted options of serial monogamy and procreation outside of marriage.
Instead, what really knocked me over was his conclusion that precisely because heterosexuals in such large numbers now choose these options, and therefore threaten to vanquish—his word—the older marital ideal, and because the older marital ideal is still worth striving to preserve because it is the most likely to be a foundation for happiness, the government must preserve it as the ideal to strive for by denying the option of marriage to one, but only one, category of couples who cannot attain it: homosexuals.
The claim is a bald non sequitur. The ideal is still worth honoring, and still worth striving to preserve, he says. Therefore, preserving it ultimately requires some public acknowledgment that heterosexual unions and gay relationships are different: similar in emotional commitment, but distinct both in their challenges and their potential fruit, he says. As if the latter concept logically follows the former. No need even to explain this. His next sentence: “But based on Judge Walker’s logic — which suggests that any such distinction is bigoted and un-American — I don’t think a society that declares gay marriage to be a fundamental right will be capable of even entertaining this idea.”
In other words, we should continue to deny homosexuals the right to marry because we want the government to encourage straights to strive for the ideal of a single decades-long marriage in which husband and wife remain faithful throughout, because this is the most likely to bring them and their children happiness.
All the evidence that is necessary for the higher federal courts to reverse Judge Vauhan Walker’s already-iconic opinion, which held that California’s Proposition 8 prohibition of gay marriage violates the Fourteenth Amendment’s due process and equal protection clauses precisely, is that heterosexuals are en masse undermining the older ideal of marriage.
No evidence upon which to overturn Walker’s opinion? Of course there is! And Ross Douthat provides it.
Makes sense if you’re Ross Douthat, I guess. But not if you’re not.