HOW IT WON'T HAPPEN: Eve replies to Jonathan Rauch

(Third in a random and disorganized series of posts commenting on Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America.)

In the post below, I talked about places where I think SSM will cause major rifts between the legal and the cultural understandings of marriage--in other words, the law will recognize, honor, and promote unions that a majority of Americans strongly reject. Rauch offers federalism and legislature-based strategies (rather than judiciary-based ones) as the solutions here: By requiring that SSM be instituted by legislative vote in one state at a time, rather than imposed by judges or imposed on the nation as a whole, he hopes to ensure that SSM is only legalized in the places where it is closest to the majority's understanding of marriage.

Rauch thinks a rift between legal and cultural understandings of marriage would have serious negative consequences: "In a community which looked on same-sex marriage with bafflement or outright hostility, a gay couple's marriage license would help solve some of their legal problems but would leave the social supports missing. Both the couple and the community would be shortchanged." Later, he writes, "Nationwide imposition of same-sex marriage by a federal court might discredit both gay marriage and the courts, as well as starting a long-lasting culture war like the one over abortion--only, perhaps, bigger." So federalism and legislature-over-judiciary are not solely procedural preferences for him: They're really important to securing the substantive value of same-sex marriage.

The thing is, SSM is just not going to happen that way. I have no idea how Rauch thinks his slow, majoritarian approach is going to prevail when legislatures have always rejected SSM whenever they've been allowed to vote on it, when instituting SSM has already become the province of the judicial and executive branches, and when SSM is presented in civil-rights language that calls for court intervention against the will of the majority.

Rauch is not going to get SSM the way he wants it. If he gets it at all, he will get a damaged, politicized version, rejected by most of the people around him. Given his strong (and well-argued) belief that social support, embedding the couple in a community that reinforces their marriage, is one of the key ways marriage strengthens couples, this is a pretty big problem for him. SSM in this respect is not like abortion, and Goodridge is not like Roe. Someone who supports abortion rights can say, "Well, yes, Roe caused a backlash, and there are lots of people who think abortion is abhorrent, but at least you can still get one." But with (civil) marriage, social support is a big part of how you "get one."

I'd be interested to know how important Rauch ultimately thinks social support is--is it worth it to actively fight against judicial or national imposition of SSM, or is it worth it to gamble on Goodridge-like decisions, figuring that after a period of instability eventually society will come 'round and most Americans will give up their opposition to SSM?

For other MD.com readers who agree with Rauch's procedural points (get SSM state-by-state and legislatively rather than nationally or judicially), how important do you all think the procedual approach is? Would you give up Massachusetts court-ordered SSM now in order to get legislative marriage later, or is the bird in the hand worth two in the bush?
posted by Eve at 9:24 PM | Link |

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