14 October, 2014

Winning the (Court) Battle but Losing the War

Same-sex marriage; which never seems to make it longer than a few weeks away from the headlines these days; is in the news again. A panel of Federal judges has stricken down same-sex marriage bans in several Western states, including my own. After a brief stay, the Supreme Court declined to hear an appeal, legalizing (for the time) same-sex marriages in a majority of states. Despite Little Bitch Butch Otter's continued protestations, the green light seems to have been given.
On the face of it, this development is one which meets with my approval. Those who know me know that I am a staunch advocate for equality of marriage privileges for all Americans. However, I have an objection to what seems to be today’s zeitgeist- I think that the strategy currently pursued by most mainstream proponents of marriage-equality is wrongheaded and likely to backfire.
Depending on which polls you believe- if any- and depending on which corner of our nation you are discussing, public support for same-sex unions and marriages varies greatly. In some areas, according to some polls, there is a strong and bipartisan support, and in others there is an equally strong and nearly (though lesser) bipartisan opposition. Many states, my own included, have passed ballot initiatives, referendums,  or even state constitutional amendments prohibiting certain unions or defining marriage in narrower legal terms to be between one adult male and one adult female.
I’m not going to argue that we ought to follow public opinion on matters such as these. There was broad public support in favor of Jim Crow laws and for the wholesale massacre and relocation of American Indians in our national past, yet clearly both were morally reprehensible. Democratic public support doesn’t make something immoral moral any more than a pop single’s million sales makes it a better song (as anybody who has, like me, been overexposed to Pharell’s ‘Happy’ can attest). A plurality of homophobia in the public doesn’t make it excusable or mean that we as a nation are justified in enforcing homophobic laws or policies.
However, we should all be aware of the consequences, good and ill, that our actions are likely to have. As someone who has studied economics  I have been thoroughly inundated with the consideration of unintended consequences, which may have severely detrimental long-term effects. A point in case is the legalization of homosexual marriages. There are several immediate consequences that are easy to see, but a few that are less obvious and may only manifest themselves over time spans that seem to be utterly unfamiliar to politicians and evening news anchors alike (e.g. any interval longer than ‘the news cycle,’ which seems to be approximately 36 hours).
Legalizing anything through judicial fiat is likely to engender more pushback than legalization through legislation, civil law, or public referendum. The opposition are likely to feel, with some justification, as though their opinions have been circumvented by so-called ‘activist’ judges, who are usually (though not exclusively) unelected by the people affected by their decisions. This is the poison pill to the strategy of pursuing though lawsuits a legal remedy to the injustice of same-sex marriage or union prohibitions- you may win in the short run, but in the long run you run the risk of losing allies of a more moderate bent or who may be on-the-fence with their support, and you will almost certainly embitter an already reactionary group of conservatives, causing them to redouble their efforts.
I can understand the sense of immediacy to the effort; many couples don’t want to wait years or decades more than they already have to be able to enjoy marriage. They see these laws for what they are- an injustice- and seek for them to be stricken down with all possible haste. My concern is that this is a shortsighted approach, which misses what might be a better long-term solution. If you change the hearts and minds, so to speak, of those who are either ambivalent about the issue or those who are against it, you will bring about a shift in the public opinion.
Such a shift is already underway. More and more people are beginning to realize that homosexuals are no different than the rest of us and are not deserving of our condemnation or reprobation. Open homophobia is becoming less and less socially acceptable and mild slurs that would have barely registered have become potentially career-ending errors (as Jonah Hill’s tearful apology after calling a cameraman a ‘faggot’ and telling him to ‘suck his dick’ shows). This is real progress, and this is the sort of momentum that the LBGTQA community should throw their weight behind. Neil Patrick Harris, George Takei, and Stephen Fry have probably done more to advance the cause of their fellow gay men than any judge or any lawyer ever have.
Bringing more people into the fold and pressing home a decisive moral advantage are slower, though surer, methods than fighting complex constitutional law battles in court is. A time will come; and that time will likely come sooner than you think; when we look back with the same disgust at current bans on gay marriage that we presently have for the anti-miscegenation and school segregation laws of 50 years ago. Those who, like me, support equality of marriage privileges must consider the long term ramifications of our strategy, lest we win the court battles but lose the larger war for the sentiments of Americans at large.

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