The Supreme Court is hearing arguments about DOMA and Prop 8 today, and there’s a lot of anticipation now, especially since they could truly use this opportunity to not only strike down these laws but also to make same-sex marriage a right held by all Americans. Unsurprisingly, same-sex marriage opponents are grimly warning pro-gay people that a win in the courts is going to backfire, an argument I find asinine on many levels.
The long-standing opposition to abortion rights post-Roe has nothing to do with the haste in which the Supreme Court moved to protect women’s rights. Let’s give our opponents the dignity of assuming they aren’t that stupid; their opposition to women’s rights is genuine, and not a temper tantrum over process. That said, I do think there’s a strong reason to believe that, unlike abortion, once conservatives lose the legal battle over same-sex marriage, they’ll probably give up, much as they did on the question of interracial marriage.
The reason is that conservatives are obsessed with appearances, far more than liberals, who tend to have an ideal of reconciling reality and appearances. That’s how conservatives can prattle about waiting for sex until marriage while 95% of Americans—including most people engaging in the prattle—have sex before marriage. This kind of social hypocrisy is held by both right and left—for instance, both Democrats and Republicans use drugs while supporting drug prohibition—but tends to be more of a thing for folks on the right. That’s why conservatives are fond of abortion bans. Abortion is a private medical choice, and so it’s easy enough to secretly get an abortion while publicly denouncing abortion rights. For well-off conservatives, abortion will always be an option, even if it’s banned, because you can just pay a discreet doctor to do it or travel to Canada.
The gay issue was being controlled by similar pressures for a long time. The issue used to be the closet, which was enforced by a set of laws and practices that made it dangerous for gay people to be out, lest they lose their homes, their jobs, or even their freedom, which was what the Stonewall riots were about. It creates incentives for privileged people to have discreet same-sex encounters while supporting compulsory hetereosexuality in public.
Shifting the topic to marriage, however, changed the social pressures in play. Marriage is a public institution, while sex is private. That’s why homophobes try to change the topic to sex whenever the issue of same-sex marriage comes up; they want to get people to be mad at gay people for supposedly involving the rest of us in their “private” issues. But marriage is about public weddings, raising children, visiting your family, and who has to take your extra bag off your hands while you try to read a map and bicker with them about the best direction to go. Once same-sex marriage is legalized, it’s going to be impossible to reconcile that with the conservative impulse towards hypocrisy. It’s one thing to ask people to hide their “sex lives”, but it’s another to refuse to acknowledge their legal spouse in public. If it was just about the closet, it would be easier for conservatives to blanch at people coming out and say, “Can’t you just keep that to yourself?” But Senator Rob Portman, for instance, is going to want to go to his son’s wedding one day, and that’s just all there is to it.
I hope that the Supreme Court justices understand this. Obviously, the best decision right now is to go bold and make same-sex marriage a legal right for all Americans, instead of just limiting themselves to the direct question of whether or not to overturn DOMA or Prop 8. This isn’t just for moral reasons, but for practical reasons. If they don’t make that ruling now, then they’ll be faced with the question in a few years time, presumably as the overturning of DOMA creates more lawsuits. But if they go bold now, that means all this will be over pretty quickly. Unlike with reproductive rights, conservatives won’t have a lot of avenues to chip away, and frankly, I don’t think they’re going to bother anyway. In one swift decision, they could pretty much bring the entire debate to an end by settling it firmly and permanently for the pro-gay marriage side. If they don’t do that, then the debate will continue on, and eventually the pro-marriage side will likely win. So it’s just a matter of whether to get this done quickly or not.
Let’s hope the Court sees sense and chooses to get this done quickly. Then we can get back to the work of ending employment, health care and housing discrimination issues for LGBT people, because you know, that stuff is still going on, even if you don’t hear that much about it with all the focus on same-sex marriage.