What next for supporters of traditional marriage?
The election is finished. There were thankfully no terrorist attacks. The post-mortems are arriving now in numbers, as every commentator becomes a coroner. Letâ€™s join them. The official Church advocates using political means to encourage the traditional family (“We call on responsible citizens and officers of governement everywhere to promote those measures designed to maintain and strengthen the family . . . .”). Lately that has meant supporting the effort to codify the time-honored definition of marriage and to oppose legal recognition of SSM or of civil unions (“The Church accordingly favors measures that define marriage as the union of a man and a woman and do not confer legal status on any other sexual relationship.”). Whither that advocacy, whither those efforts? Whither the cause?
First, things neither ballot propositions nor candidate positions nor vote totals are still important to gauging the effect of an election. I for one was impressed by the presidential candidatesâ€™ obvious devotion to their wives and daughters. I was impressed in the debates when George Bush and John Kerry started talking about each otherâ€™s families and it became clear that they both respected each other as husbands and fathers. Both families were also a conspicuous presence in the concession and victory speeches. These public examples, I think, do good, even if in some campaign years they are merely the tribute vice pays to virtue. In this campaign I got the sense they were not.
Constitutional amendments defining marriage as between a man and woman (excluding SSM, in other words), and in 8 states banning civil unions too, passed in each of the 11 states where they were on the ballot. Oregon was the closest, at 57%-43%. Marriage amendments had already passed this year in Louisiana and Missouri. There were other signs of the mood of the electorate. Values voters apparently made the difference in Ohio, where reputedly moral values was the number one concern for more folks than any other issue, including security against terrorism. Admittedly, as Rick Garnett discusses over at Mirror of Justice, this election is total victory for religious conservatives only in the minds of the secular left. Though we may also have to forgive our brothers on the religious right a little converse overstatement and triumphalism. Still, the results must be encouraging. (Note: T&S was on the cutting edge of identifying this political trend!)
Supporters of traditional marriage, however, need to realize that they have barely won a battle, much less the war. Most of the marriage amendments will be quickly challenged in the courts. Louisianaâ€™s amendment is a harbinger of things to come. A judge has already struck it down. And if state constitutions and state court judges donâ€™t overturn these laws, SSM activists will turn to federal courts and the federal constitution, against which state marriage amendments are powerless. Several equal protection suits are already in the works. If successful, these suits would impose SSM nationwide, marriage amendments or no. Two other points are worth considering. First, legal efforts to protect marriage, even constitutional amendments, can influence social change but they cannot dictate it any more than King Canute could stop the tide. Second, the effort to prevent SSM is defensive. It staves off an attack on the traditional definition of marriage but does nothing to reverse the sexual wantonness and broken homes that afflict so many Americans. In 1914 jubilant Frenchmen stopped the German drive to Paris along the Marne, at great cost in casualties. The war continued for four more desperate years. Defenders of traditional marriage may have defended Paris but the Prussian arms, alas, still glitter.
I wonder what strategies the movement to defend marriage ought to pursue from here? The following are my thoughts. I would appreciate yours.
First, more states need to adopt marriage amendments. The state court SSM lawsuits that marriage amendments frustrate in one state will break out in another unless the same remedy is applied. Additionally, the marriage amendment campaigns are educational. They elicit a public discussion of the purposes of marriage and commitment that can only do good. Lastly, voting in favor of a marriage amendment is a concrete act that crystallizes commitments, much like baptism or marriage itself. That commitment will help pave the way for other necessary measures or for a federal amendment.
Second, the federal lawsuits to impose SSM need to be vigorously opposed. The aim should not merely be winning the lawsuit, however. Educating the public on anti-SSM views on the meaning of marriage and the real requirements of the Constitution ought to equally be aims. These efforts should be tied to the campaign for a federal marriage amendment. Nonetheless, lawyers defending traditional marriage should be careful to not ignore every legal battle that isnâ€™t explicitly an attempt to impose SSM. Flank warfare on tangential issues or on legal doctrines will buttress or weaken the legal position.
Third, supporters of a federal marriage amendment ought to watch court nominations closely.
Fourth, despite the election results, marriage amendment supporters need to appeal to the conservativism with a small c of the general population. Traditional marriage amendments are succeeding because SSM activists are overreaching. They need to emphasize that gays and lesbians receive lots of rights and toleration in this country and that no one wants to reverse that. They need to appeal to the spirit of compromise by suggesting that lots of changes favoring gays and lesbians have already been made, and its time that the far more numerous believers in traditional marriage get a little of their due too. This involves emphasizing that traditional marriage is the default and that SSM is the untried innovation. Along these lines, the actual hardships that gays and lesbians face need to be dealt with. Supporters of traditional marriage need to ensure, for example, that it is legally possible for a person to assign visitation rights to someone not their spouse. They need to emphasize, also, that many of the rights and privileges of marriage are mimicable by contract to those who are so inclined.
Conversely, supporters of traditional marriage must ensure that whatever steps they take to rectify real injustices do not too closely mimic the rights and privileges of marriage. If states start creating â€œcivil unionsâ€? that are marriages in all but name, the social and political climate will rapidly grow more favorable. The causual link to any projected social ills will be unclear, like social causual links usually are. Familiarity will breed not contempt but indifference. So supporters of traditional marriage need to do what they can to prevent granting civil unions most of the rights and privileges of marriage. They also need to ensure that its not reserved for gays, either de jure or de facto. The term describing the relationship and the features of it need to be primarily geared to singles who might want someone to look out for them if catastrophe strikes.
Efforts need to be made to change hearts and minds. Good secular and non-sectarian arguments for protecting marriage need to be evolved. They should range from the sophisticated to bumper-sticker simple. Social science needs to get geared up for a protracted but hopefully educational struggle.
Finally, supporters of traditional marriage need to be as bipartisan as possible. Democrats should be actively encouraged to join the cause. They should also be encouraged to see that once these kinds of issues go away, so does the Republican advantage on them. Here is where arguments that defending traditional marriage doesnâ€™t really hurt gays and lesbians will prove particularly helpful. Republicans, on the other hand, need to be told over and over that blacks and Hispanics support traditional marriage.
Oregonâ€™s campaign for traditional marriage also offers some lessons. Oregon is one of the least religious states in the country. Portland and Eugene, the two population centers, are proudly secular and permissive. The campaign against the marriage amendment had twice as much money as the campaign for it. But the marriage amendment people got several things rights. African-Americans took up a prominent leadership role. Oregonâ€™s marriage amendment cautiously said nothing about civil unions one way or the other. And the marriage amendment people made two effective arguments. First, they linked SSM to promoting gay and lesbian sex in public schools. They argued that if legal equality required recognizing marriage of all sorts it also required sex ed of all sorts, and they pointed to the Massachussetts example . I donâ€™t know if this works as a legal argument, but it certainly works as a practical argument. They also linked SSM to no-fault divorce, the last major loosening of marriage. Not only did this highlight the pitfalls of marriage experiments, it also prepared the ground for later, broader attempts to strengthen marriage. The marriage amendment in Oregon passed by 14%.
These are my thoughts. I am interested in your views on how laws and culture changes protecting traditional marriage can best be advanced (i.e., the means). Per the Faulconer-Huff proposal, I am not interested in a debate on the morality of SSM or on the morality of applying moral views in the legal and political sphere (i.e., the ends). For those who wish to discuss the ends, this post collect links to our various debates. A discussion of means here should not be taken to imply an endorsement of the ends.
For the Canadian bloggern out there (the Canadackers? The Canadern?), hereâ€™s a rumination on the state of affairs in Canada.