Saturday, October 09, 2004

Gay marriage and the gay political agenda

I don't believe that my opinions regarding gays are based on any irrational, primal fear or loathing of gays, lesbians, transgenders or whatevers. I’m straight, but have had gay friends/acquaintances since the age of fourteen, and have never found gays, male or female, repulsive, disgusting, perverted or whatever other negative descriptions that have at one time or another been attached to those with a different view of their sexuality than most of us have of our own.

My objections to the Gay Political Agenda – GPA - are based on a combination of considerations regarding judicial activism, federalism, democratic rule, and the rights that all Americans, not just gays, should have under the Constitution. Most, if not all, of the GPA seems focused on the benefits to be reaped by gays should their demands for recognition, approval, protection, inclusion and distinctive legal status be met. With gays comprising, as even Andrew Sullivan concedes, only about five percent of the adult male population, I find it curious that little regarding the benefits to society as a whole is ever discussed.

Jonathan Rauch has attempted to demonstrate the benefits to society of gay marriage, but I find his arguments unconvincing. I agree with his preference that the issue be settled state-by-state through the federalist mechanism. If this were the only possibility, little else would need be said. However, Robert Bork makes the case that this process would probably be short-circuited by the Supreme Court. Even if not a certainty, this result is quite likely.

With what appears to be a majority of Americans opposing gay marriage, imposition of such a revolutionary concept upon the nation would, I fear, lead to greater domestic discord than did the abortion issue which itself still strongly divides the country. The benefits of abortion-on-demand that were touted as justification for legalization at the time Roe v. Wade was adjudicated have, over the past thirty years, proven largely illusory. Thirty years hence will the promises of court-mandated gay marriage prove as empty? This is not an idle or unimportant question.

Personally, I would prefer a constitutional amendment mandating that the gay marriage question be left to the states, but even this approach, according to Mr. Bork, has its drawbacks in that it might not prove definitive. What then is to be done? A very difficult question to answer now that for approximately a half-century we have accustomed ourselves to having the courts legislate from the bench. The jurisprudence genie has been loosed from the bottle and is to a large extent now beyond anyone’s control as judges seem little inclined to restrain themselves.

Even an amendment that would provide Congress and the President a mechanism for abrogating Supreme Court decisions could prove ineffective. Canada has such language in their constitution but Parliament has yet to muster the political will to use it. A case can even be made that the President, with or without the consent of Congress, may do so on his own. But if Congress and the President, together or separately, don’t have the will to take on the Supreme Court, then we are already living in a judicial oligarchy – amendments or not.

Another aspect of the GPA that I find personally offensive is that all is fine and dandy only when things go in its favor - when the question has been settled to its satisfaction and everyone had better damn well abide by it. But should a court decision find against the GPA’s position, then that’s just the start of the battle. I am, of course, referring to the Boy Scouts of America and the finding of the Supreme Court that the Constitutional doctrine of freedom of association permits the BSA to prohibit openly-gay men from being scoutmasters.

That was the shot fired from the litigation and dirty tricks starting gun that sent the ACLU, school boards and local authorities in many a locale out of their blocks in the race to undermine and, if possible, destroy the Boy Scouts. The GPA and its cohorts would from now on litigate, castigate, excoriate and isolate the Scouts wherever and however they could. All to what end? How many gays with an unquenchable desire to be scoutmasters have been crushed by this heinous miscarriage of justice? How dare the parents of scouts object to openly-homosexual men being alone with their sons on camping trips? What an outrage!

I strongly suspect that the real reason was to let other potential litigants know that even if you beat us in the courts, we’ll make life so miserable for you that you’ll regret having ever opened your mouth. And if we can, we’ll litigate you into oblivion. And the GPA complains about gay-bashing? Look in the mirror, guys.

One distinction that seems to get lost in the GPA is the difference between “behavior” and inherent characteristics or the “accidents of birth.” Race, sex, national origin and religion are specifically established by the Constitution as not being criteria for discriminating between individuals. These are “accidents”, and as such, for individuals have no choice in the matter, may not be used as distinguishing characteristics before the law. One may argue that this is not true of religion, but as a general principle an individual will adopt the faith of his parents as his own – at least until some later point in life - so the “of birth” part still holds.

So the question then becomes whether homosexuality is an “accident of birth” or a behavioral issue. I would contend that if one cannot at birth distinguish between those children who will and will not become gay, then it cannot be an accident of birth. For we have no way of telling. We know that someone is gay because of how they behave. We cannot at a glance see that they are gay in the same way that we can distinguish between black and white, male and female.

Except for the specific prohibitions against certain government actions given in the Bill of Rights, there are no constitutionally mandated strictures against the states passing laws restricting or prohibiting specific behaviors. The people have the right, through their elected representatives, to establish what is and what is not acceptable behavior. And this includes behavior that meets the GPA litmus test of private behavior between consenting adults.

Whether or not it is appropriate or wise to attempt to legally restrict or prohibit private sexual behavior between consenting adults is one question. Whether or not the States have the authority to do so is another question altogether. For if that authority does not exists, there is no clear way to distinguish what sorts of behavior are and are not acceptable to society and thus permissible by law.

Questioning the prohibitions against polygamy, adult incest, or any of the other myriad arrangements the human sexual imagination can concoct, is then not much more of a stretch than legalizing gay marriage. Prior to the Supreme Court’s decision in Geddes v. Texas overturning that state’s sodomy laws, most states had already repealed such laws on their own. The court did much more than just let the fellas off the hook. It further muddied the already turbid Constitutional waters. How much farther down this road can we go before we have no notion whatsoever of how we are to legislate what is and is not legal behavior?

If one wants to argue that a law is unfair or unfairly applied in a particular case, the defense may and should be permitted to appeal to jury nullification as means of avoiding injustices imposed by an over-zealous State. Unfortunately, the entire jurisprudence system has for a long time discouraged and suppressed this final safeguard, as James Madison described it, against an oppressive government. Tools that have long been in place, both for the establishment and maintenance of good order as well as protection against the totalitarian tendencies of all authority, are whimsically being discarded, ignored or suppressed.

This brief polemic, of course, comes nowhere near covering the totality of the gay political agenda. But, regarding gay marriage, the underlying issue seems less about tolerance than it does acceptance and approval of gays by society as well as themselves. If a majority of the citizenry in my state voluntarily accepts and approves of such arrangements, so be it. I will tolerate and accept it even if I don’t approve of it. If the courts impose gay marriage, I fear that we are in for a long, hard battle that will be to our detriment both as individuals and as a nation.

And that’s not a price worth paying to ensure anyone’s personal satisfaction.