Why is Gay Marriage an Issue in this Campaign?

Maggie Gallagher

2/16/2012 1:12:00 PM - Maggie Gallagher

In an appearance on Al Jazeera, I was asked: Why is gay marriage emerging as a big issue in the campaign?

Obviously economic issues dominate this year, as they do every bad economic year. But thanks to President Obama, the culture war is heating up as well.

For the first time, voters will be offered a clear contrast between a Democrat who supports what the courts are doing to marriage and a Republican who opposes it.

But the biggest reason gay marriage is emerging as an issue is because the federal courts are now pushing the culture wars, and Obama is cooperating with them:

Two judges of the most liberal court in America -- the U.S. Ninth Circuit Court of Appeals -- just took away 7 million Californians' right to vote for marriage.

For those of us who fought hard to give voters this right, by helping put Proposition 8 on the ballot, this 2-1 divided opinion not only takes away their rights, but insults the good name of millions of decent, hardworking, law-abiding Americans.

As a piece of law, it is an ill-natured and illogical opinion.

As I read through Judge Stephen Reinhardt's opinion, I shook my head. Did he really say the fact that California voters voluntarily gave domestic partnership status to same-sex unions but tried to protect marriage is evidence for their irrational hatred of gay people?

Yes, he did, "because California had already extended to committed same-sex couples both the incidents of marriage and the official designation of 'marriage,' and Proposition 8's only effect was to take away that important and legally significant designation, while leaving in place all of its incidents. This unique and strictly limited effect of Proposition 8 allows us to address the amendment's constitutionality on narrow grounds."

This is part of a dishonest attempt by Reinhardt to pretend this opinion can be restricted to special circumstances that apply only to California. The veneer of incrementalism is getting pretty thin.

There's something dishonest, as well, in pretending that if Proposition 8 had stripped same-sex unions of benefits it would somehow be more likely to pass these liberal jurists' constitutional muster.

But the greatest inconsistency is in the way these two judges acknowledge that the word "marriage" can matter to gay couples, but consider it totally irrational for anyone else to be concerned about that same change in public meaning.

Rummaging through constitutional law and popular culture, the judges stumble across the obvious: Marriage is a highly charged issue because it is not just a set of benefits; it is a symbol, whose sacredness and meaning were not created by the law alone.

"Had Marilyn Monroe's film been called 'How to Register a Domestic Partnership With a Millionaire,' it would not have conveyed the same meaning as did her famous movie," Reinhardt writes.

Yes, marriage means something. That is why voters who have no interest in keeping two gay men from visiting each other in a hospital room, want to protect the meaning of the word marriage, including sustaining its deep roots in human nature.

Marriage is a social institution, one that arises across time and history because it is rooted in human realities beyond the power of courts to change.

For millions of Americans, the sense that marriage is sacred, that it involves something foundational to our culture, is rooted in human nature: Unions of husband and wife really are different from other loving relationships; they are necessary to the whole future of society in a way other relationships, however loving, are not.

Marriage is sacred because when male and female come together, the necessary conditions of our being are fulfilled in a unique way -- a way no other relationship approximates.

Marriage is not just a set of benefits. It's a symbol of enduring human truths. Adding same-sex couples does not just add a few new entrants to an existing institution; it changes the public meaning -- if not for Judge Reinhardt, then for millions of American for whom a husband means a man willing to take a bride, not a man who chooses any other sort of loving relationship.

Gay marriage is rooted in a false equation: Loving a man is not the same as loving a woman; a sexual union that can give rise to children is fundamentally different in kind than a union not so freighted, for good and for ill, with the fact of procreativity.

There is no constitutional right to same-sex marriage, and sooner or later, the Supreme Court will make that clear.

In the meantime, thankfully, between now and the time that court will rule, we have an election this November in which we can make our voices heard.