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September 12, 2004

THE WHOLE GAY MARRIAGE THING: Occasionally, people want me to blog more on "the issues" and less about stuff like Dan Rather. My advice to them is usually to blog on the issues they think are important, rather than telling me what I ought to be blogging about on my blog. But even I'm suffering from Kerry fatigue these days, and it's nice to break up these endless Christmas-in-Cambodia/CBS forgery posts with something else. So here goes.

Friday night, when I watched Kaus on Dennis Miller's show, part of the discussion involved gay marriage. Chrissy Gephardt (Dick's daughter) was there representing the Stonewall Democrats, and she launched into this whole diatribe about how Bush hates gays and calls them an "abomination." Miller called her on this, and got her to admit that, actually, Bush hadn't ever called gays an "abomination." He also pressed her hard on the gay community's different treatment of Bill Clinton, whose support for the Defense of Marriage Act gets a pass.

But he didn't ask the killer question. The killer question would have been: "What is John Kerry's position on gay marriage?"

Now, of course, any question beginning "what is John Kerry's position. . ." is a tough one. But -- correct me if I'm wrong here -- the only real difference between Kerry and Bush is that Bush has offered vague support to the certain-to-fail Federal Marriage Amendment. But it's, er, certain to fail. Now that's a difference, I guess. But it's not a huge one, and to me it doesn't seem to be a big enough difference to justify the vitriol. (Kerry's been, maybe, more supportive on civil unions, but I wouldn't take that to the bank.)

I support gay marriage, of course, though I'd be lying if I said it was as important to me as it is to, say, Andrew Sullivan. But if you look at the polls, it's opposed about 2-1 by voters. What that means is that you're not likely to see much difference between the parties until somebody thinks they can pick up enough votes to make a difference.

I think that gay marriage is good for everyone. Marriage is a good thing, and I don't see any reason why it wouldn't be just as good a thing for gay people as for straight people. Judging from the gay couples I know, it would be a good thing -- and I'm entirely at a loss to understand why people think gay marriage somehow undermines straight marriage. But to get there, you need to make that case, not just accuse opponents of being closedminded-biblethumping-bigotsoftheredneckreligiousright. (Andrew Sullivan made some of these positive arguments quite well in Virtually Normal, but I don't think the tone on his blog has been as constructive of late.)

Personally, I agree with the guy who told Julian Sanchez that it's a generational thing. As I've mentioned before, attitudes are changing fast, even in Dayton, Tennessee, best known for the Scopes Trial. And my law students seem to expect a change. I'm not sure that name-calling will accelerate this process, though.

I'm no expert political strategist, but it strikes me as a mistake for gay-marriage advocates to take the Bush-bashing Gephardt position. First, with the polls as they are, attacking Bush on gay marriage may solidify the Democratic base, but it probably costs swing voters, at least in the short term. Second, that sort of thing can only serve to alienate Republicans, even those who are supportive, or at least not opposed to, gay marriage. Given that right now it seems likely that we'll see a Republican Congress, and probably a Republican White House, in the coming years, that's probably poor planning, at least if you want actual change and not just an interest-group rallying cry.

Finally, in all of this I'm reminded of something one of the New Haven black panthers said on a radio show I produced back when I was producing radio shows. Looking back at their failures in 1970, he remarked: "Revolution is a process, not an event. It's not enough to agitate, you've got to inform and educate. And they didn't do that." It's possible to package gay marriage as a move toward traditional values and away from 1970s style hedonism (not that there's anything wrong with that). But again, you have to make the case, not call names, if you want to win people over.

So there you are. You want blogging on Bush's vs. Kerry's healthcare plans , you'll have to go somewhere else.

UPDATE: William Kelly objects that Bush's support for the Federal Marriage Amendment isn't "vague." He's right. A better term would be "lukewarm." He's said he's for it, but he hasn't exactly pushed it. Kind of like, to pick one of my issues, his support for a renewal of the Assault Weapons Ban, which was equally pro forma. In both cases, I think he's wrong, and he's pandering -- to different constituencies, of course -- but it's awfully weak pandering, and thus not worth getting too excited about.

Meanwhile, reader Madhu Dahiya offers a different perspective:

I like your blog 'as is', but it is nice when you blog on other topics such as gay marriage. I don't buy the argument that gay marriage undermines heterosexual marriage at all. I think the problem with heterosexual marriage is, uh, heterosexuals. If the opponents of gay marriage were serious about the challenges to straight marriage, then there would be tax credits for Match.com and Eight Minute Dating (and marriage counseling). There would be no mention of sports and steroids in any state of the union speech. Instead, the president would give a stern talking to those men, and women (and you know who you are), WHO NEVER CALL YOU BACK. I mean, you want to move the numbers towards the Republicans in the single, over thirty over educated female-type bracket? Well, there you go. There's an issue that should poll just nicely, thank you very much.

This certainly makes me glad I'm not single anymore. . . .

[LATER: When they don't call, it's because they're just not that into you.]

MORE: John Kerry's position:

Once one of 14 Democratic senators to oppose the Defence of Marriage Act, Mr Kerry now favours outlawing all marriages except those between a man and a woman. "I'm against gay marriage," he said. "Everybody knows that."

Apparently not.

STILL MORE: Harvard law professor Bill Stuntz emails:

Your post on gay marriage is thoughtful and wise. I write to add a thought about the behavior of all those alleged bigots on the other side.

It seems to me that the gay marriage debate today is the price we pay for Roe v. Wade a generation ago. Roe sent a message to a sizeable fraction of Americans, and the message was: your views don't count. Not "you lose," but "you don't even get to make an argument." I think the rush to constitutionalize marriage is very, very bad in a host of ways and on a host of levels, but it's hard to criticize the religious right for reaching for the weapons the other side used to crush them. Like you, I assume the marriage amendment is going nowhere. Maybe, once that happens, we can actually have a political debate (not a legal argument) that produces compromise and progress instead of polarization and regress. It'd be a nice change.

Keep up the good work. You're terrific.

Oh, and re Bush and Kerry: Has anyone noticed that each of these guys comes from a state his party can't possibly lose? Presidential candidates are career politicians, and they learn their trade running for office in their home states. Bush and Kerry both learned to appeal to very one-sided electorates. Is it any wonder that neither is very good at appealing to the other side? The mystery is why both parties behaved this way. The biggest political talents are generally to be found in swing states, or states that lean the other way: Think Rudy Giuliani in New York, or Arnold Schwarzenegger in California. Those guys are politically dead if they can't talk persuasively to Democrats. Just like John Edwards could never have won in North Carolina if he couldn't speak to Republicans. (If the ticket were reversed, I bet the Democrats would be ahead now.) Let's hope we swing voters get a different and better set of choices in '08.

I think that Texas was competitive until pretty recently, but the point holds. Swing states do seem to punch above their weight -- but I think the apparatus of national parties makes people from safe states stronger internal contenders for a variety of fairly obvious reasons. On the rest -- well: I'm one of the relatively few constitutional law professors who believes that Roe was properly decided, though the rationale needs to be understood in terms of limits to legitimate government power rather than affirmative individual rights. (I have a proof for this, but it will not fit in the margin.) Nonetheless, I think the basic point holds. Without Roe we would have had widespread legal abortion via legislation, something that was already well underway. It might have taken a bit longer, but as a practical matter, it might have been as available as it is now, given the many logistical hurdles in the path of legal abortion in many localities.

Gay marriage is different, but I do think that it would be much better obtained through political than judicial means. I might feel differently if I were gay, and anxious to get married, but of course that cuts both ways.

This is one of those hot-button issues that I don't get. Perhaps it's because I lack fire, but the strong feelings aroused by gay marriage escape me. Still, there's no doubt that many people dislike the idea, do so intensely, and resent efforts to achieve gay marriage without taking their views into account. In a democratic system like ours, their views do matter, one way or another, and I think it's better to try to persuade them. Others, of course, may disagree.

MORE: Andrew Sullivan has posted a nice response. Basically, he sees Bush as a cynical manipulator of homophobia. I see Bush as a beleaguered guy trying to keep his coalition together to fight a war, doing the bare minimum on this front to get by. Which of us is right? Your call.

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