On the Supreme Court Ruling

Carlos McKnight of Washington waves a flag in support of same-sex marriage outside the U.S. Supreme Court on Friday, June 26. <a href="http://www.cnn.com/2015/06/26/politics/supreme-court-same-sex-marriage-ruling/index.html">The Supreme Court ruled 5-4</a> Friday that states cannot ban same-sex marriage, handing gay rights advocates their biggest victory yet. See photos from states that approved same-sex marriage before the nationwide ruling:

The New York Times has an interactive article titled “How We Changed Our Thinking on Gay Marriage.” It features interviews with a Republican Congresswoman, a Baptist pastor, and even the president of the Institute for American Values and former Proposition 8 witness. Given the Supreme Court’s ruling yesterday on same-sex marriage nationwide, I thought I’d post a piece from a couple years back that helped me formulate my own outlook on gay marriage. The essay is by William & Mary law professor Nate Oman.[ref]I’ve cited it before.[/ref] When it boils down to it, I ultimately share his view: “I am neither entirely joyful about gay marriage nor entirely pessimistic. Rather, I am worried. I think that gay marriage has the potential to be a positive social phenomena, as well as having the potential to be destructive. I don’t purport to know what its ultimate effects will be, and I suspect that they will be mixed.”

Nate Oman

Instead of virtually reposting Nate’s whole paper (which you really should take the time to read) by means of huge quotes, I’ve highlighted a few main points that really stand out to me:

  • Function vs. Equality: As much as I love the rhetoric of liberty and equality, such rhetoric may miss the point. “I do not think that marriage is primarily about equality,” writes Oman. “I do not think that it is a special status conferred on heterosexuals as a reward for being heterosexual, one from which homosexuals are excluded in order to convey a message of social inferiority. Rather, I think that is an institution that does certain things, serves certain functions.” Oman’s approach to the institution by means of processes and functions instead of abstract principles resonates with me.[ref]Reminds me of Thomas Sowell’s Knowledge and Decisions.[/ref] Marriage’s functions as identified by Oman include
    • Bonding couples together via legal commitment and social pressures/norms, resulting, on average, in more productive and resilient people.
    • Legitimating sexual activity and cutting down on the emotional, physical, and social risks of illicit sex.
    • Providing a context for child rearing and shielding their vulnerability.
  • Ideals vs. Reality: My unease over same-sex marriage was largely due to my religious upbringing and later research on family structure. I think the social science (including economics) is very supportive of the notion that family structure matters for a child’s economic, emotional, and educational well-being, with biological parents in a low-conflict marriage being the ideal.[ref]There is far too much literature to cite in a blog post, but here are a few recent books on the subject of marriage and children: Mitch Pearlstein’s From Family Collapse to America’s Decline: The Educational, Economic, and Social Consequences of Family Fragmentation, Kay Hymowitz’s Marriage and Caste in America: Separate and Unequal Families in a Post-Marital Age, Isabel Sawhill’s Generation Unbound: Drifting into Sex and Parenthood Without Marriage, Robert Putnam’s Our Kids: The American Dream in Crisis, and the Columbia University-published Gender and Parenthood: Biological and Social Scientific Perspectives.[/ref] Yet, this same research suggests that stable, low-conflict same-sex marriages may be a healthy alternative to high-conflict heterosexual marriages, divorce, cohabitation, and single parent households. Even Mark Regnerus’ controversial research on child outcomes of same-sex parenting points to instability as the main culprit behind the negative results he found.[ref]However, he also argues that instability is an endemic characteristic of same-sex relationships according to the data.[/ref] If marriage became more of a norm and ideal in the gay community, it’s possible that this instability would decrease. Which leads to the next point.
  • Traditional Values vs. Hedonism: “Gay marriage,” Nate writes, “is potentially most powerful as a conservative retrenchment, an effort to impose a more traditional model on the unruly riot of family structures that already dominate the lives of many children.” Furthermore, he thinks “that one of the greatest potential benefits of gay marriage is that it makes possible gay chastity.” Swedish economist Andreas Bergh once described Sweden has heading in a more market-oriented direction, while the U.S. tends to move in a more socialist direction. I think of the two communities in similar ways. Broadly speaking, it seems that heterosexual relationships are becoming increasingly fragile and fragmented, while homosexual relationships are moving in a more stable, domestic direction.

Nate concludes,

To homosexuals who are now going to get married, I say congratulations. I hope that you have happy and fulfilling lives.[ref]I couldn’t help, but get a little emotional when I read about the first same-sex marriage in Dallas County: after 54 years together, Jack Evans (85) and George Harris (82) were married.[/ref] I hope that your marriages are strong, and I hope that they become an example that will discipline and orient the lives of others. To the advocates of gay marriage, I hope that you will stop talking so much about freedom and equality and will start talking about marriage, about how it should organize people’s sexual lives and give structure to their families. I hope that your new found enthusiasm for marriage translates into the revival of some of the informal social pressures and expectations that signal to everyone that marriage is not simply a choice or a right but a preferred way of life…I don’t expect the language of liberty and equality around gay marriage to recede from the public stage but having lost the political battle on gay marriage, social conservatives should embrace the rhetorical and social possibilities it provides for talking about the good of marriage as opposed to its alternatives. A focus on gay marriages as a superior structures for gay families rather than on gay marriage as a marker of social equality strikes me as the best road going forward. In the end, I don’t know what will happen. I think that marriage will be good for gay families. I am less sanguine about the effects of the gay marriage debate on our shared public understanding of marriage. I fear it has reinforced ideas that are destructive to marriage at the margins. The good news is that I may be wrong, which would make me happy.


3 thoughts on “On the Supreme Court Ruling”

  1. I wonder whether this author represents mainstream gay opinion in his resistance to the idea that marriage should actually regulate gay relationships and sexual behavior now that it is legal.

    That’s really the big question for me, and my skepticism on that point is the reason I have not been able to find sanguinity like Nate Oman’s. Aside from the question of gender, traditional views of marriage include things like permanence and strict monogamy that are not universally accepted in the gay community. These are exactly the concerns that many traditionals have when it comes to the consequences of gay marriage for heterosexual couples: marriage’s implicit behavioral strictures are going to be weakened.

    On the other side, I thought that Lowder made a really interesting point about the impact that marriage will have on the gay community as well. For example: If marriage equality becomes the law of the land, many states and businesses may decide to do away with any domestic partnership-type arrangements that came before, forcing couples who might not otherwise want to marry to get with the program. Also: There’s also the question of marriage becoming a mark of “success” or “seriousness” among queer people—a hierarchical framing that has long plagued the straight world.

    This is why, many years ago, I felt that one of the problems with legalizing same-sex marriage was that you’re effectively retrofitting a heteronormative institution for homosexuals. This may very well end up being the worst of both worlds, with none of Nate’s hoped-for chastity emerging within the broader gay community and yet some of the marriage-superiority impinging on it.

    It’s too early too tell, of course, what will happen. But I cannot share Nate’s hopefulness. Not because of the fact of gay marriage, but because of the rationale by which it was attained. The argument, as Nate noted, had very little to do with duty, obligation, or commitment and an awful lot to do with rights, equality, and respect. I can easily imagine an alternate scenario where we got to gay marriage via a different path, but given the actual path we’ve traveled I just don’t see marriage retaining its distinctive attributes (especially monogamy and permanence) for very long.

    (Last point: obviously gay marriage was not the first blow struck against that conception of marriage. I don’t even know that it will turn out to be the deepest. It’s just one among several.)

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