ndrew Sullivan has posted a detailed response to "Gay-Marriage Endgames," my latest piece in our ongoing debate over gay marriage. Sullivan denies that he misrepresented my position. I don't buy it, and I'll say why below. But Sullivan's larger response raises truly interesting and important questions. So let me address what I think are the underlying issues behind my recent exchanges with Sullivan and ultimately, behind the entire gay-marriage debate.
Sullivan has answered me by denying that there is any contradiction in his position. Yes, Sullivan affirms, he believes that gays have a fundamental right to marry a right that is prior to the right to vote; a right that is constitutionally more significant than any of the amendments to the Constitution; a right that is vested in the Declaration of Independence. While Sullivan would ideally like this right to be recognized by the Supreme Court, he says he understands that this is unlikely any time soon. So instead, Sullivan is content to let state-by-state experiments proceed, in the hope that in the far-distant future, the country will finally be persuaded that gay marriage is not socially dangerous. At that point, perhaps the courts will formally recognize a fundamental right to marriage that includes gay marriage.
This position works reasonably well on two conditions. First, it has to be true that gay marriage will not undermine the institution of marriage. After all, if gay marriage will undermine marriage, then Sullivan is arguing for the existence of a right that will harm a vital social institution. Second, Sullivan's stance works only so long as the great majority of those who support gay marriage are not attempting to nationalize the practice in the near present, rather than in the far distant future. If few supporters of gay marriage (including supporters on our courts) share Sullivan's federalist sensibilities, then Sullivan's willingness to go slowly doesn't matter at least it gives no comfort to conservatives concerned about forced federalization of gay marriage. These are the contradictions that have been playing themselves out in Sullivan's debates with me, and with others.
But the truth is, the contradiction goes deeper than this. It isn't just a question of simultaneously claiming that a right to gay marriage exists now (and has always existed), while also claiming that this right will (and should) only be recognized in the far distant future. The deeper problem is that, as Sullivan uses it, the radical and pre-existing right of gays to marry is really a right to abolish marriage. As Sullivan uses it, the pre-existing "right to marry" can only lead to an infinitely flexible system of private contracts between any combination of people, of any number or gender i.e. to polygamy, group marriage, etc.
If a right to marry that includes gay marriage inheres in the Declaration of Independence, then clearly the actual definitions of marriage that real societies have produced are all subordinate to a larger right of anyone to have their union, of whatever sort, be a legally recognized marriage. Sullivan's reply provides no way at all of distinguishing between gay marriage and practices like polygamy or group marriage (polyamory). Sullivan does deploy his formula: "...all we are fighting for is not the right to marry anyone, but the right to marry someone." But this does nothing to meet the polygamy problem.
And all attempts to draw distinctions between gay marriage and polygamy or polyamory on grounds of social utility would fall before a pre-conventional right to marriage. If the pre-existing right to marry entails the right to redefine what marriage means in actual social practice, then there is simply no way that Sullivan can deny to polyamorists that right to marry. After all, polyamorists believe that their propensity for multiple sexual union is a "sexual orientation," precisely on the model of homosexuality. The two cases are quite parallel.
By the same token, it follows from Sullivan's premise about a pre-existing right to marry that trumps existing social definitions of marriage, that anyone can redefine the content of marriage by weakening or changing its obligations or benefits. Their right to create weaker forms of union and to call these marriage overrides established social practice.
So the real contradiction in Sullivan's position (which is also the deep contradiction at the heart of the gay-marriage movement) is that its premises inevitably lead to the abolition of marriage, and its substitution by a series of infinitely flexible individual contracts even as it is claimed that traditional marriage is being supported and endorsed. Many gay-marriage advocates, and many libertarians, are open about their ultimate aim the elimination of all socially shared legal conventions of marriage. Sullivan denies that this is his position, yet his way of positing and making use of a fundamental and pre-conventional right to marry necessarily entails the most radical libertarian consequences.
It is quite true, as Sullivan says, that he has always been open about his belief in a fundamental pre-existing right to marry that includes the right to gay marriage. By the same token, for some time I have been pointing out the many contradictions in which this position embroils Sullivan. When Sullivan is pressed on the potential social dangers of gay marriage, he generally answers that these dangers really don't matter, since gay marriage is a fundamental right. But if a right to marriage, as Sullivan defines it, would effectively abolish marriage as a real social institution, then the contradiction in his position matters very much.
Now turn to the more pragmatic side of the contradiction Sullivan's take on the legal campaign to nationalize gay marriage. Sullivan stands by his "dead parrot" quote, his claim that the threat of federalized gay marriage is bogus, an unfact, pushing up daisies, etc. Sullivan's detailed claim is that DOMA is unnecessary, that the "public policy exception" will protect states that don't want to recognize gay marriages performed in Massachusetts, that federalization of gay marriage on constitutional grounds is a distant and unlikely prospect, and that legalization of gay marriage by a single state is, in any case, irrelevant to the case for federalizing gay marriage.
Alright, let's have a look at the reality of the current legal campaign for gay marriage. Here is a passage from the "Friend of the Court" brief by the Boston Bar Association in the Massachusetts gay-marriage case:
Here, the Boston Bar Association contradicts Sullivan's various assertions. It argues that gay marriage in one state will be a critical step in the campaign to nationalize gay marriage on constitutional grounds. Briefs in this case also argue that there is a constitutional right to marriage, and that gay marriage is the only way available for same-sex couples to challenge the constitutionality of the Defense of Marriage Act.
Of course, Sullivan can claim that the prospect of federalized gay marriage as clearly called for by the Boston Bar Association is nothing but a dead parrot. However, I submit that anyone opposed to gay marriage would be a utter dunce not to take the claims of the Boston Bar Association seriously. Contrary to Sullivan, The Boston Bar Association clearly sees the Massachusetts case as a critical step in a campaign to federalize gay marriage on constitutional grounds. It also appears to believe that the elimination of DOMA is a vitally necessary part of that larger campaign. So advocates of gay marriage have already undertaken the very project of imposing gay marriage on the nation that Sullivan says is not only ill advised, but a political-legal impossibility (although, of course, Sullivan also says that he agrees with the project's larger aims and arguments). Sullivan can resolve these contradictory views as he will. But any opponent of gay marriage who doesn't see the legal freight train that's headed straight for us is a fool.
The Supreme Court decided the Boy Scout case by only one vote. Sandra Day O'Connor could easily shift over and federalize gay marriage, if the chaos in the wake of a Massachusetts legalization was powerful enough. O'Connor has always been at least as interested in social pragmatics as in legal principle. A social crisis could certainly push her to act.
As I show in "The Right Balance," there is no precedent for what we are about to face. There have really been only two cases seeking to force recognition of transplanted mixed-race marriages by couples actually residing in a non-recognizing state. And in one of those two cases, despite the clearly stated horror of miscegenation, the marriage was recognized anyway. Why? Because horror at miscegenation was outweighed by the fear of social chaos if marriages could not be recognized from state to state.
That was over 100 years ago, when mixed-race marriage was rare (even in the North), and before the advent of telephones, automobiles, television, and the Internet. With hundreds or thousand of married gay couples regularly traveling between recognizing and non-recognizing states, there will be an ongoing media firestorm over the problem. In such a case, with no real compromise available, I believe that there is a serious chance that O'Connor will shift and nationalize gay marriage.
Would O'Connor base her decision on full-faith-and-credit grounds, equal-protection grounds, some combination of the two, or some other ground? I don't know. But I do know that gay-marriage advocates will make every available argument. O'Connor will listen carefully and cook up something that works, something that stops the chaos and complaint of couples whose marriages disappear and reappear on the Interstate. To deny that this is a real possibility is utter naïveté. And that's not to mention the possible advent of a more liberal Court.
Sullivan's claims about my shifting views are all wrong. In "The Right Balance," I did mention equal protection. I even said clearly that the case on equal protection was stronger than the case on full-faith-and-credit grounds. I simply spent time on the somewhat weaker case on full faith and credit in order to show that the FFC issue cannot be dismissed. I took the same position in "The Coming Battle," and in "Responding to Sullivan." Sullivan has simply mischaracterized my views. (Note: I see that at the top of his posts for Tuesday, December 10, Sullivan has finally acknowledged his error.) At this point, though, I care much less about who's misrepresenting who than the fact that my differences on this smaller matter have led to a discussion of what I think is the fundamental issue.
Of course, Sullivan is a brilliant fellow. The contradictions in his position are certainly not a function of any lack of intellectual acuity. They are deeply written into the issue itself. I honor Andrew Sullivan for his courageous, creative, and thoughtful advocacy on this issue. I also acknowledge that Sullivan has done a magnificent job of balancing reason and personal passion in his defense of gay marriage. I admire Andrew Sullivan. We should all honor him for his willingness to argue with conservatives respectfully, and on our own terms, on gay issues, while also standing up to extremists on the Left. I consider Andrew a friend and, frankly, I hate being at odds with him.
Yet the deeper contradiction will not go away. Marriage is not an abstract pre-conventional right, but an institution that rests on the characteristics of real societies and of particular "genders." Sullivan has been creative in melding a radical rights-based case to a "conservative" case based on social particulars, and to federalism as well. Ultimately, however, the contradictions cannot hold.
A radical pre-conventional right to marriage is really a right to redefine marriage into nothingness. Many will avail themselves of such a right. And a radical pre-conventional right to marriage is also an authorization to prosecute a fast-moving campaign of nationalization. Thoughtful people like Andrew Sullivan often hold together contradictions that others cannot. Maybe that's why those who share Sullivan's views about the right to gay marriage see no need to adhere to his strictures about federalism. In fact, they feel a positive compulsion to move quickly. That may be why Andrew Sullivan's federalist claims, whether intentionally or not, amount to an attempt to distract opponents of gay marriage from reality.
The plain truth is that the legal campaign for gay marriage is a massive and carefully coordinated attempt to bring about the very program of rapid federalization that Andrew Sullivan calmly assures us cannot and will not come to pass. When opponents of gay marriage see that campaign in action, they will quickly move to support the Federal Marriage Amendment.