I had planned to write an analytical piece on today’s Supreme Court hearing on the topic of marriage equality. I had an introduction and a conclusion already written – all I needed was to pull some quotes from the news reports and let it fly. But after staring at the screen for an hour I realized I didn’t really want to write a legal analysis.
I’m not a lawyer. I’m a polytheist who recognizes that different Gods call different people to honor and work with Them in different ways. My devotion to Cernunnos is in no way diminished by your devotion to Freya, and neither of us are diminished by someone else who is devoted to no Gods at all. The question of whose God is best is a topic for light conversation over too much wine, not for fighting over.
The idea that there are many ways to approach matters of great importance flows into other areas of life, including marriage. My marriage to Cathy is typical in many ways and untypical in others. It’s been going strong for 27 years – it works for us. There are things we do that wouldn’t work for most couples and things most couples do that don’t work for us. There are many ways to have a good marriage – we’ve found the right way for us.
In reading the reports of the deliberations as to whether states should be allowed to refuse to recognize the marriages of same sex couples, the key question seems to be “who gets to decide?”
Justice Anthony Kennedy, the court’s lone moderate who likely will cast the deciding vote, put it this way:
The word that keeps coming back to me in this case is millennia, plus time. … This definition (of marriage) has been with us for millennia. And it’s very difficult for the court to say “Oh well, we know better.”
This was countered by attorney Mary Bonauto, who presented the case for same-sex couples:
In terms of the question of who decides, it’s not about the court versus the states. It’s about the individual making the choice to marry and with whom to marry, or the government.
To me, this is where it stops. The government – whether national, state, or local – has no more business telling a same sex couple their marriage is invalid than they do telling Cathy and me our marriage is invalid because we don’t have children.
But like I said in the first paragraph, I really don’t want to do legal analysis. There’s something deeper here, and it was expressed by Joseph Whalen, associate solicitor general for Tennessee:
Tennessee, Ohio, Kentucky and other states with a traditional definition of marriage have done nothing here but stand pat. They have maintained the status quo. And yet other states have made the decision, and it certainly is their right and prerogative to do so, to expand the definition, to redefine the definition, and then to suggest that other states that have done nothing but stand pat now must recognize those marriages imposes a substantial burden on the state’s ability to self-govern.
The key point here isn’t Mr. Whalen’s patently ridiculous idea of a what constitutes a substantial burden. The key point is the harmful but widespread idea that self-governing – the process by which a group of people decide how they will interact with each other – somehow includes the right to dictate to individuals how they must conduct their private relationships and activities. It assumes there is one right way and the majority has the right (if not the responsibility) to insure everyone follows it, whether it works for them or not.
This idea of “one right way” is a product of monotheistic religion and the thinking that flows from it. And it’s used to coerce others into conformance, or at least to hide their differences.
The reaction to Wiccan Priestess Deborah Maynard’s invocation to the Iowa House of Representatives showed how many who support public prayer are only interested in prayers that affirm their own religion. Their way is the only way and everyone else can convert or shut up.
Let’s not kid ourselves. This argument isn’t over states’ rights or the role of the courts in the political process. It’s about the normalization of homosexuality. “The love that dare not speak its name” is now no big deal for most people in the West, particularly for young people. Unfortunately, those who still fear homosexuality are disproportionately older and more powerful and they are using all their power to try to reinforce their idea of the One True Way.
They are losing, but gay and lesbian couples shouldn’t have to wait till the old guard dies off to have their marriages recognized by the state and to enjoy the rights and responsibilities that the state grants married couples.
For my Christian friends who insist your religion condemns homosexuality: 1) there are plenty of your fellow Christians who disagree, and 2) no one is asking you to marry someone of the same sex. Feel free to make your case in the marketplace of ideas, but do not expect your religious beliefs to carry the force of law.
I don’t know how this case will be decided. Justices Ginsburg, Breyer, Sotomayor, and Kagan will vote for marriage equality. Justices Scalia, Thomas, and Alito will vote against it. Chief Justice Roberts is likely to vote against it, although he is less of a conservative ideologue than the other three and may want to be seen as being on the right side of history.
The decision is likely to come down to Anthony Kennedy. Justice Kennedy has generally supported gay rights, including the landmark Lawrence v Texas case in 2003 that overturned Texas’ law against same sex relations. But nothing is certain.
One way or another, the court’s decision will change the law of the land, but it cannot change the basic facts: there are many ways to make a good marriage.