With the ramparts crumbling all around them, marriage equality opponents seem to be left with two talking points, which are really cris de coeur, the last howlings of a doomed defense. First, they fall back on their definition of marriage. Thus, the Iowa Supreme Court, in recognizing the marriages of same-sex couples, has spoken an “untruth.” Second, they tirelessly remind us that, where people get to vote on others’ right to marry, they consistently vote against it (otherwise put, “courts are undemocratic”). The first is an assertion in search of an argument, while the second overlooks what is probably the central function of courts: the protection of minority rights against the vicissitudes of majority will, whim, or prejudice.
When this is the best you can do, you’ve lost the argument.
Of course, the Iowa court’s unanimous decision, portentous as it is, can’t be expected to bring a quick end to the debate. In fact, in the short run it may yet impel a few more states to strengthen their marriage bans by driving them into constitutional concrete. (For reasons cogently developed here, it’s somewhat unlikely that Iowa’s own constitution will be amended in this way. It certainly won’t happen soon.) Nonetheless, the opposition to marriage equality is starting to seem like a last stand. (Remember the Alamo?) Perhaps this commentator is right in thinking that a “tipping point” may just have been reached:
Moving from politics back to law: The Iowa court shoved the debate towards conclusion with its brisk and effective dismissal of the state’s arguments. I was especially struck by how the court, echoing the California Supreme Court’s decision from last year, gave no credence at all to the vague speculation that marriage equality will somehow harm the institution “in the long run.” And by now courts have seen just about enough of the “virtual equality” promised by the civil union — Iowa would have no truck with it, and all three of the states that currently have it (Vermont, New Jersey and New Hampshire) are likely to take the marriage equality plunge very soon.
The court’s willingness to address the religious argument directly will prove important, too. I read the point to be this: “We respect religious opposition to same-sex marriages, but you need a properly public, secular reason to exclude people from a privileged institution.” That is a thoughtful and respectful response to citizens who sincerely oppose marriage equality for religious reasons, or because of a more general unease. Both of these sentiments were poignantly reflected in the comments of one Iowan:
“Diane Thacker’s eyes filled with tears when the ruling was read to a crowd that had gathered outside the Iowa Judicial Building.
‘Sadness,’ she whispered. ‘But I’m prayerful and hope that God’s word will stand.’ Thacker said she joined a group of gay-marriage opponents ‘because I believe in the marriage vow. I can’t see it any other way.'”
With respect to Ms. Thacker and so many like her, do we really want to deny basic equality on this kind of basis?1 Here’s a quote I’ve always liked, from a California tort case:
“No good reason compels our captivity to an indefensible orthodoxy.”
Finally, I find myself asking yet again: How much energy can opponents justify expending on this issue? In Afghanistan, a law is passed that sets back women’s rights (and arguably permits marital rape); in Iraq,2 gay men and condemned are killed for their “perversion.” I could go on and on.
Yet stopping the marriages of gays and lesbians is worth all of this time and effort? Go build a house, or something. You’re not going to stop marriage equality in any case.