Renewed Optimism on Same-Sex Marriage

By Jason Pierceson

Events in 2009 have reshaped the national conversation on same-sex marriage. While the year started with continued consternation by progressives about Prop. 8 in California, most everyone in the country was taken by surprise of the decision by the Iowa Supreme Court to legalize same-sex marriage. This was followed almost immediately by a series of state legislative enactments of same-sex marriage in Vermont, Maine, and New Hampshire, as well as intense political activity on the issue in New York and other states. The Iowa decision also energized activist in California to continue with their grassroots efforts to overturn Prop. 8 in 2010. People on the liberal coasts asked themselves, if Iowa can do it, why can't we?

After these developments, it is unlikely that supporters of same-sex marriage will ever again be on the defensive, as they largely have been since the Hawaii decision started this national conversation in 1993. Indeed, we appear to be light years from the narrative of 2004 that same-sex marriage would help to keep Democrats in the political wilderness as long as litigation and activism continued. But, slowly, the moral landscape has changed.

Part of this shift stems from the continued framing of the issue by courts as one of constitutional and civic, not theological, morality. As the Iowa court stated, "This approach does not disrespect or denigrate the religious views of many Iowans who may strongly believe in marriage as a dual-gender union, but considers, as we must, only the constitutional rights of all people, as expressed by the promise of equal protection for all." This has further emboldened activist and elected officials to argue for and enact relationship equality policies, including calls from prominent conservatives and Republicans such as Steve Schmidt and Ted Olson. Indeed, Olson has framed his support of same-sex marriage in moral constitutional terms. "This is about the rights of individuals to be treated equally and not be stigmatized," he stated to the Associated Press.

To be sure, the fight for same-sex marriage is not over. The Defense of Marriage Act and the multitude of state constitutional bans on same-sex marriage and other forms of relationship equality represent a substantial hurdle for same-sex marriage advocates, but this hurdle is significantly less formidable given the new and powerful frame of constitutional and civic morality. In other words, the moral argument is veering towards the side of same-sex marriage supporters, and away from traditionalist opponents.

Before the events of this year, I predicted a modest expansion of relationship equality policies alongside entrenched opposition. Now, however, I am much more optimistic that the power of constitutional and moral arguments is on the side of same-sex marriage advocates, resulting in much more rapid change, that and opposition will become less entrenched and monolithic as more and more people recognize this issue for what is truly is: an issue of civil equality for sexual minorities that demands that the nation and its citizens live up to its fundamental principles.

Jason Pierceson is associate professor of political science and legal studies at the University of Illinois at Springfield and co-editor, along with Gordon Babst and Emily Gill, of the forthcoming Lexington book Moral Argument, Religion, and Same-Sex Marriage: Advancing the Public Good.

Comments

[public policy exception]

So is polygamous marriage "an issue of civil equality for sexual minorities that demands that the nation and its citizens live up to its fundamental principles"? Is that what consensual incestuous marriage "truly is"? What about bigamous bisexual marriages? Homosexual polyamorous marriages? Why is the moral urgency of recognizing homosexuals greater than the moral urgency of recognizing other minorities like polyamorists, bigamists, bisexuals, polygamists or persons in consensual incestuous relationships?

It seems to me that this rhetoric of "framing" is at bottom, vapid. It may be applied to any sexual minority for the proposition that they too, must have their own relational permutations formally recognized by the state or federal governments. And why not? For to argue otherwise would be to privilege heterosexuality and homosexuality, but not, say, bisexuality or polyamory.

What you're really arguing for is decadent morality ungrounded in precedent -- not "civic" or "constitutional" morality, moralities which, insofar as legal doctrine is concerned, are doctrinally arrayed against you.