It’s not illegal to be gay anymore. Schwoo! Just as marijuana is supposed to be the gateway drug, I was beginning to think that my criminalized sex life would soon lead me to armed robbery. Now, I can gleefully return to second-class citizenship without the eroticized fear of jail time. With the Supreme Court’s affirmation of that de facto freedom, a furor has emerged from the Right. The gay marriage debate, inaugurated by the repeal of sodomy laws, could become a showdown of Godzilla movie proportions as religious conservatives fight to preserve their last bigotry toehold.
Though I’ve read the arguments of many gay marriage opponents, I focus here on responding to Stanley Kurtz of The National Review. Reading his salvos in their entirety is more than worth your time. He is unambiguously brilliant. He puts his arguments forward passionately and without malice. Best of all, his primarily secular approach avoids a soiling engagement with arguments of the mirror, mirror, mind of God variety.
If Kurtz can be beaten, handling lesser opponents will be as easy/difficult as electing someone who won’t pander to rabid zealotry. For many, passionate reason will be the deciding factor in a long overdue cultural debate about the place of gays and lesbians in our society. The Left, no less than the Right, has gotten too used to believing that self-satisfaction is sufficient grounds for holding a belief. In the push for gay marriage, glibness and condescension will not be enough to win the debate. Though both are big fun in shot glass doses. Although I don’t have the space to capture every single perceived threat, I have tried to shank the scariest doomsaying predictions, below.
The Sodomy Law Floodgate
“Just as the taboo on incest reduces the temptation to child abuse, the taboo on non-marital and non-reproductive sexuality helps to cement marital unions, and helps prevent acts of adultery that would tear those unions apart.” Stanley Kurtz
One of the most frequent screeds against gay marriage involves some imaginary slip ‘n slide into moral anarchy, lubed up by an allegedly activist court reading the Constitution like a liberal Mad Lib. This argument blithely ignores the history and logic of sodomy laws themselves, and that the “slippery slope” is often invoked as an argument against a level playing field.
Sodomy laws were not introduced as bulwarks against gays, but against all forms of non-procreative sex. Heterosexuals clearly found the presence of the state in their private matters of sexuality wholly intolerable. With the help of Supreme Court decisions like Griswold v. Connecticut (protecting the decision to use birth control as within a constitutional sphere of privacy), heterosexuals became progressively excluded from the clot of no-nos enshrined in sodomy statutes. Whereas previously, anal sex between a husband and wife would have been just as scarring to the eyes of God, straight society decided to say “sin schmin”, thereby leaving such matters to the confessional, but not to Johnny Law. Unfortunately, piety is as difficult to get rid of as chiggers with rappelling gear; thus, the laws changed in their application to cover only the truly “deviant” who weren’t included in heterosexuality’s new shrine to consensual sex.
Interesting to note in this thumbnail sketch is that consistency of logic was not automatically a factor in the law’s revision. Surely once the Church was made to sleep without covers, the next logical step would be to kick it out of bed altogether. That didn’t happen. Only after additional decades of incremental struggle did the Supreme Court finally adhere to the logic that was always already there once the first Biblical prohibition had been lifted. Kurtz’s failure to even acknowledge that heterosexuals have largely eliminated the Church and the Bible from their bedroom is one of the primary weaknesses of his approach. My guess is that by avoiding this subject, it’s easier to elide the injustice of religious selectivity.
The slippery slope argument is hobbled by the overwhelming number of changes that have occurred in the relationship between Church and State. Why didn’t allowing birth control require allowing incest? Why didn’t allowing fellatio for straight, unmarried persons mean that Rover had to put out or get out? The reason that Caligulan avalanche never occurred was because other cultural values emerged. Adherence to picky scriptural booty rules was replaced with a philosophy of consent, heterosexuality, and adulthood as the factors that should determine the illegality of a given sex practice. Marriage became much less defined by the subservient woman churning out babies for her God and her husband/overseer, and more about two people expressing a lifelong commitment through a sometimes religious and other times wholly secular contractual ceremony. At every single juncture in these shifts there were proclamations that the whole institution would have to be tossed in the shitter, only to have, time and time again, new values evolve to buttress the shaking foundations. The justice of these new equilibriums was much more generously dispersed just as the traditions themselves were salvaged by their elasticity and inclusiveness.
What Kurtz seems unable to acknowledge and yet tacitly assumes in his arguments against gay marriage is that every prohibition within culture exists on some foundation of pragmatic arbitrariness that may or may not have a well-defined argument attached. The real question is not whether or not one can argue that formal logic demands that people now be allowed to marry their pets, but whether or not such prohibitions make sense given the current cultural climate and whether or not they really protect us from tangible harms. What gives Kurtz’ argument such alarmist force is the implication that once “A” is done, the philosophical imperative will demand “B”. But philosophical imperatives rarely determine the immediate course of social agreements. In fact, I can think of no issue in the history of American politics where formal logic held an ounce of sway. Arguments of arcane principle, like Southerners arguing Federalism against Civil Rights for blacks, are frequently just excuses to remain latched to a cherished bigotry. It’s time for the Right to be weaned off this nipple.
When gay marriage opponents argue that group marriage and adult incest are the progeny of such a union, surely they protest too much. They assume that laws, especially given the idiots who write them, mean anything in and of themselves. Laws without secondary beliefs are less than useless, they have absolutely no moral force. Consider laws against marijuana, which almost no one adheres to for their entire life. If the imaginary Lawyer’s Guild for Legalized Incest were to try to overturn laws against adult incest tomorrow, does Kurtz honesty believe that the entire country would become a V.C. Andrew’s novel? Either incest would be opposed because familial intimacy compromises the integrity of unambiguous consent, or incest would become legal and the same number of devotees would be enjoying the taboo of taboos while being stricken from Christmas card lists. One can’t help but think of the total annihilation anti-segregationists thought would happen if white and black kids used the same beach ball. This is not much more than a sandwich board with an Armageddon date written in pencil.
Further, there may indeed be a future when polyamory and group marriage are seen as wholly legitimate and non-threatening arrangements coexisting alongside traditional marriage. But those groups have yet to amass intellectual momentum or convincingly forward their point of view. Gays have worked hard to make the argument that their similarly situated analogous partnerships deserve legal recognition. As I’ve already demonstrated, logical consistency is only one of the least influential factors that impact the trajectory of tradition. This seat-of-the-pants approach does not just apply to sex laws. Take a breeze through the area of First Amendment jurisprudence and you will find a field rife with ad hoc judgment, patchwork rubrics, and rulings that amount to transitional non-answers awaiting a future, less foggy verdict. Polygamy (though sanctioned by the Bible) and polyamory are destined for similarly thwarted, piecemeal and possibly permanently impeded futures, though their success or failure does not necessarily hinge on gay marriage even if conservatives refuse to parse out their differences.
The unspoken irony of slippery slope ravings is that, at some level, they quietly admit a certain failure for religious conservatives. After all, if gay marriage unleashes the floodgates of Gomorrah and the swelling of the homo ranks, isn’t that an argument that people will not freely choose guidelines set down by the right-wing God touched? Can’t religious conservatives find a way, like Jesus Christ did, to persuade people to choose a certain path without the complicity of state coercion? The institution of marriage has done nothing but change over the course of its history and yet retains many of its original contours. Feminism didn’t make every woman in America form covens and snip the nuts off their first born sons, and gay marriage will not burst the gates of Hell which always appear on the brink of opening whenever conservatives feel their cultural influence snubbed.
Nuts and Sluts
“First, gay marriage threatens monogamy because homosexual couples particularly male homosexual couples tend to see monogamy as nonessential, even to the most loyal and committed relationships.” Stanley Kurtz
“So the radicals themselves know what I said in my piece is true: that they are not on the fringes, but are fast making progress toward turning the movement for gay marriage, not in a conservative direction, but toward the ultimate abolition of marriage itself.” Stanley Kurtz
Kurtz’ other major argument is basically another version of the slippery slope but one that is a long-winded way of saying “there goes the neighborhood”. Gay men are whores, or so it goes. (Lesbians are almost always erased from these arguments because of their better rates of monogamy better than straight people’s rates of monogamy.) If we let gay men marry, they will merely slurp up the benefits and toss the sacrifices out like the plastic sword in their cocktail cherry.
This bad faith brand of observation obliterates the back-story of gays and lesbians in the United States. One could easily argue that the history of homosexuality in our culture has been one of gays gradually absorbing the conservative ethos of American life. In the early period, being gay simply meant finding a dark space to spill an urge. Gradually, with the intellectual assistance of Feminism and the Civil Rights movement, gays and lesbians began to carve out autonomous enclaves where they expected to be “left alone”. In the present, being in a couple is the norm for gays and lesbians and, for a majority of them, their aspirations of marriage, family and suburban integration are indistinguishable from the dreams of heterosexuals. By failing to acknowledge these shifts, gay marriage opponents seek to portray gays and lesbians as ripping the mainstream into some sort of freak show of free-love experimentalism. The stepford truth of the matter is far less threatening. Even Kurtz would have to admit that while gay men might have more sex and partners than their heterosexual counterparts, the larger historical trend has been toward coupling, restraint, and monogamy.
Part of the alleged promiscuity certainly has to do with the aftereffects of overcoming repression, which is one of the reasons gays are so loathe to criticize each other’s sex practices in all but the most extreme cases. We’ve spent our lives piecing together a self within a shitstorm of hate, doubt, denial, and self-loathing a gauntlet that many straight people can’t begin to fathom. Many come out of the closet well after their teenage years, thus experiencing an adolescent renaissance that involves much of the sexual play they feel has been robbed from them by living a lie. I can’t imagine that gay marriage opponents are arguing that gay people are genetically prone to promiscuity since they are loathe to give up their delusion that homosexuality is a choice made by people who do it just to toss a bur in the manger. I used to joke that my definition of conservatism was someone punching you in the eye and than criticizing you for your intrinsic tendency to bruise. When I hear such arguments used to keep gays from marriage, I’m reminded that reality is the punchline.
Kurtz never bothers to sketch out exactly how the behavior of a subculture would transform the deeply held beliefs of the majority merely by existing. Even if gay marriages were somehow less monogamous than people who already get divorced half the time, so what? Many straight people have gay friends or family, but I would doubt very much that this has influenced their views on monogamy. Straight couples with children also have alternate incentives for monogamy: like ensuring the paternity of their offspring and conserving the resources used for their upbringing. If this is an argument against gay marriages, it’s also an argument for the nullification of open marriages or anyone else that is in a marriage and does not view monogamy as sacrosanct. His only attempt at pointing out a mechanism is to suggest that television shows (presumably those on HBO) will begin to question the centrality of monogamy in relationships and this, in turn, will put the idea in heterosexuals’ heads. Surely these innocent babes have never dared think such things before. What’s more, the perversity of this argument considered in conjunction with Kurtz musings on sodomy laws is that he’s suggesting that other people’s desires and relationships be suppressed or made illegal because people in traditional marriage don’t have the behavioral fortitude to adhere to their own beliefs. This is a lot like telling the person you’ve just had an affair with that it’s their fault for being so damn fine.
This ignores the dialectic of outsiders and insiders in culture. Far from some sort of wild Mongolian influx, outsiders in culture are more like a skinny kid playing teeter-totter with an anvil. The system changes slightly, but so is radicalism tempered when it lobbies to be a part of the institutions it critiques. Some feminists sought a complete overhaul of society, but as equality brought certain creature comforts, many of the most radical ideas, rightly or wrongly, lost their traction. Gay marriage opponents imagine that gay marriage is hatched in some kind of laboratory bent on the destruction of Western Civilization. But the fact of the matter is that the gay marriage battle has been fought on a much less academic level, by couples wanting to live out their suburban dream of getting married, and raising their children in some well kept subdivision. The vast majority of marriage radicals exist as an unwanted conscience, babbling from the intellectual outback. As much as I deeply sympathize with some of their criticism, I have no doubts that I am one of a handful that give a rip. Radical gays who wanted to chuck marriage altogether would have to face the prospect of making their case within a hostile society as well as within a hostile subculture. They’ll be pissing in a hurricane. Straight people, if they capitulate on gay marriage, are going to be totally unbudging with any further perceived encroachments. Kurtz never once shows how disgruntled legal theorists, theorists that virtually no one has heard of, will somehow leap from the shadows and come to dominate the public policy debate.
Liberals should both fight hard and hope harder. Despite periodic stumbles, there is no going back to the traditional role for women, blacks, or any other minority. Liberals have successfully pushed such views to the margins, even if the margins have found a megaphone in one of the largest political parties. That’s why the ferocity of tone against gay marriage heartens me as much as it makes me want to barbed wire my front yard. It’s not the fearsome roar of a group about to take back their righteous and indulgent monopoly of privileges. It’s the death throes of a bitter, retreating fringe being forced to relinquish what was never theirs to hoard.
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// Marginal Utility
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