Will this never end?
That thought – unusual for me – popped into my head more than once during the past week, as I’ve been reading about a series of events and comments related to marriage equality.
On one side are the continued struggles that same-sex couples face because of the continued legal and social failure to recognize our unions. On the other side, Maggie Gallagher has lately been doubling down on her opposition, seeming increasingly disconnected from rationality or moderation. Increasingly, her statements seem more concerned about some Platonic ideal of the form of marriage rather than its reality, and its capacity to solve problems.
Let me be more specific. On this site a few days ago, it was reported that the surviving member of a lesbian couple, and the couple’s child, is suing the state of Indiana for the death of her (unrecognized) spouse resulting from the collapse of a stage at the Indiana State Fair. But Janeen Beth Urschel, the surviving partner, faces a huge hurdle in her wrongful death suit: like most states, Indiana restricts recovery under these statutes to certain enumerated classes of people: spouses and children, usually . And unmarried couples, straight or gay, are not among those entitled to sue. So the victim’s seventeen-year-old daughter might be able to recover, but not Urschel.
Urschel’s lawyer, Kenneth Allen, plans to challenge the wrongful death law. Similar challenges were successful in California and D.C., but not in New York (even though, there, the couple had gone to Vermont and obtained a civil union license). So the prospects for success are unclear.
Of course, none of this legal maneuvering would be necessary if the state would recognize same-sex marriages. Urschel and her late partner, Tammy VanDam, had been together for 10 years, so perhaps they would have married had they been permitted to do so.
The lesson is clear: With a relative snap of the fingers, marriage can solve a host of legal issues that otherwise are complex and indeterminate. Yet it can’t stop discrimination from occurring, as seen by recent high-profile cases involving alleged discrimination by Vermont innkeepers against a same-sex couple, and the story I reported last week about a bridal shop that, risibly, declared illegal the sale of a dress to a lesbian.
Today, these stories inspire more sympathy for the couple than for the discriminators. And that drives the increasingly shrill rhetoric from equality opponents like Gallagher and her organization, the National Organization for Marriage. As we well know, people generally don’t like being viewed unsympathetically. So I was only mildly surprised to read her recent column, where, after recounting the woes that equality opponents have endured for daring to oppose our “agenda,” she launched into an intellectually vacuous comparison between abortion and marriage. It’s worth quoting at some length:
“At the heart of each movement is the belief that by re-jiggering words, elites change reality itself. A human life can be redefined as a cluster of cells. Marriage can be remade to mean whatever the government decides. Reality itself can be re-mastered to accommodate sexual desires.
“But in truth, government cannot create life, and did not create marriage, and government has no business redefining either.”
Her argument depends critically on having the reader overlook a glaring fact: Gallagher assumes that her definitions of “life” and “marriage” are somehow essential, and incontestable. If you buy that, then her conclusions follow. But in the real world, we have to make complex decisions about legal and social structures. The position that a human life begins at conception is intellectually respectable, but it’s not indisputable. It assumes that the potential for something that we’d all agree is human life is such a life from the moment the zygote is created.
As for marriage, she’s much further off the mark. Government surely created the legal institution of marriage, and it’s the definition of that institution – not some natural law construct of Gallagher’s or of Robert George’s – that is up to us to define. And the idea that marriage has never been redefined is so thoroughly contradicted by the evidence as to be embarrassing to read.
As the marriage equality movement accelerates toward its inevitable victory, expect much more of this – and expect it to get worse. Reason finds no shelter in a climate of fear.
John Culhane is a law professor and a blogger.