By JAMES K. FITZPATRICK
Do I really mean by “throwing in the towel” that we should surrender to the proposition that same-sex marriage is morally equivalent to the traditional understanding of marriage? Well, yes — if we are going to continue to argue the case for traditional marriage while conceding the secular liberal con job about the First Amendment and the separation between church and state. There is no way we can win the argument if we make that concession. It stacks the deck against us.
Consider the debate between Ted Olson and Tony Perkins of the Family Research Council on Fox News Sunday on October 12. Olson argued in favor of same-sex marriage; Perkins against. I submit that Olson won the debate, even though I was rooting for Perkins to come out on top. Olson is highly respected in conservative Republican circles, serving as assistant attorney general during the Reagan administration and solicitor general for George W. Bush. (Someone will have to explain why he has become a militant in the cause of same-sex marriage. It is not what one would expect.)
Certain of Olson’s positions were little more than talking points meant to sway listeners to his side. He argued that “over 59 percent of Americans now believe that marriage equality should be the law of the land.” That doesn’t mean anything. We don’t decide major societal changes on the basis of opinion polls. There was a time that a majority favored segregation and denying women the right to vote. Ironically, just a minute or so later, Olson argued that the right to same-sex marriage did not depend upon majority opinion, because we have “a Constitution and a Bill of Rights precisely because we want protections from majority rule.”
Which is it, in Olson’s view? That same-sex marriage is a fundamental right that needs to be protected, regardless of what the majority thinks? Or a new societal consensus that needs to be enshrined into law? Maybe whichever talking point helps carry the day in the court of public opinion. Lawyers have been known to want things both ways. I am sure you have heard the wisecrack that circulates among lawyers: “When the facts are on your side, argue the facts. When they are against you, argue the law.”
So we can ignore the above elements of Olson’s case. It was when he moved beyond them that he made his most telling points. He talked of how a good society would respect the “fundamental right” to “privacy, association, and liberty” of those with same-sex attractions, of how their “dignity” must be upheld. He spoke of the “tens of thousands” of children being raised in same-sex households who “deserve the right to equality and the same respect and decency that other people have that are living next door.”
He added, “Marriage is about being with the person you love.” And that “there’s no heterosexual couple that is going to decide to get divorced or not to get married or not to raise children just because another couple next to them is treated equally and with respect and decency under our Constitution.”
Chris Wallace, the Fox News moderator, underscored Olson’s point by asking Tony Perkins, “You and your wife live happily in this house, and there’s a same-sex couple living next door. What’s the damage to you?”
Perkins tried hard, but could not deliver an effective counterpunch. He asked the right question, about why an exception should be made for “same-sex” couples seeking to marry, but not for polygamists, pedophiles, those who commit incest and other forms of sexual behavior that were labeled “deviant” not that long ago. It is a good question: Why should these other forms of sexual attraction be denied fulfillment, if, as Olson maintains, if it is all “about being with the person you love”?
But, I submit, it is not a proposition that will carry the day in the court of public opinion, even if it should. People will roll their eyes and dismiss it, acting offended that anyone would dare to compare a “same-sex, monogamous couple” to polygamists, pedophiles, and “perverts.” They will repeat Olson’s argument about how permitting same-sex couples to marry will not cause any harm to traditional families living near them.
Isn’t Olson right about this — if we accept the parameters of his argument? Most people will continue to marry and raise families as they always have, even if there is a same-sex couple living down the street. Indeed, most Americans will not have to deal with the situation. The number of same-sex married couples will be small. It will be hard to point to evidence of anyone being harmed — in an empirical, material way — by same-sex marriage being made legal. Property values will not go down. School taxes will not be affected. Crime rates will not change. Throw in the towel.
Unless we take a different tack. Making the case for traditional marriage requires that we shake ourselves loose from the fear of saying that sexual activity is immoral except when it takes place between one man and one woman who are married to each other. That we understand that not every member of our society will adhere to this moral conviction — that all of us sin in some way — but that it is a value we seek to encourage by incorporating it into the law of our land. That we as a society are not willing to elevate immoral behavior into a constitutional right.
But would that not violate the First Amendment? Would we not we be imposing our religious beliefs on fellow citizens who do not agree with us?
We would not. We would not be forcing them to get baptized by full immersion, go to Confession, wear a yarmulke, dance with snakes, say the rosary, abstain from pork products, kneel praying to Mecca, or chant Hare Krishna in the airports. Forcing those behaviors on nonbelievers would be an imposition of religion, a violation of the First Amendment’s no-establishment clause.
In contrast, using the force of law to promote moral beliefs — such as our societal belief about the nature of marriage — is a different matter, as American as apple pie. We do it all the time. We have laws about public decency: You can’t do in public what you have a right to do freely in the bathroom or the bedroom. We have laws against hate speech. Our schools are full of rules and regulations to ensure that minorities — racial minorities, sexual minorities, women — are not offended. In many cities, smoking is banned even in windblown outdoor parks because of the “bad example” it will give to the young.
We have laws against murder, theft, and perjury, even though our belief that these things are wrong is rooted in the Ten Commandments.
Perhaps American society has reached the point where the majority no longer wishes to promote through law the idea that marriage is between one man and one woman. If that is the case, defenders of traditional marriage will have lost this battle in the culture wars. But let us not pretend that we had no choice but to accept same-sex marriage because doing otherwise would be a denial of their First Amendment rights and the “right to equality and the same respect and decency that other people have that are living next door,” as Ted Olson would have us believe.
That’s clever lawyer talk, not honest debate.
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