What victory looks like, or not

Two columns in today’s NYTimes on what victory looks like, or not.

Maureen Dowd is outraged that Chief Justice John Roberts thinks the gays have already won. She points out that homosexuality is still not a protected category federally (that is, you can legally fire someone because they’re ugly, gay, or underperforming; but not because they’re Black, female, or disabled). It was an outrageous moment in the oral arguments when Roberts told Edie Windsor’s lawyer that “political figures are falling over themselves to endorse your side of the case.”

This was not idle mean-spiritedness, however. Roberts is arguing against the crucial point that policies against gays and lesbians should be considered under “heightened scrutiny” by the law because they are a systematically oppressed “class.” Here is the exchange (at p. 106 of the transcript):

CHIEF JUSTICE ROBERTS: You don’t doubt that the lobby supporting the enactment of same sex-marriage laws in different States is politically powerful, do you?

MS. KAPLAN: With respect to that category, that categorization of the term for purposes of heightened scrutiny, I would, Your Honor. I don’t –



CHIEF JUSTICE ROBERTS: As far as I can tell, political figures are falling over themselves to endorse your side of the case.

Besides deciding on marriage equality, the Supreme Court has a chance to establish heightened scrutiny as the principle protecting people from persecution on the basis of sexual orientation. Roberts raises the possibility that the electoral shift on this issue — which is just one aspect of anti-gay oppression, after all — makes that unnecessary.

Ross Douthat, writing on the same page, might agree.

Douthat goes actually further, arguing that the victory of gay marriage actually is destroying the “older marital ideal,” just as its defenders feared. My jaw actually dropped a little when I read this:

Yet for an argument that has persuaded so few, the conservative view has actually had decent predictive power. As the cause of gay marriage has pressed forward, the social link between marriage and childbearing has indeed weakened faster than before. As the public’s shift on the issue has accelerated, so has marriage’s overall decline.

Of course he adds: “Correlations do not, of course, establish causation.” But you can’t unring that bell.

Not only are the gays doing the victory dance over the corpse of traditional marriage, but them and their liberal allies are actually persecuting religion.

A more honest, less triumphalist case for gay marriage would be willing to concede that, yes, there might be some social costs to redefining marriage. It would simply argue that those costs are too diffuse and hard to quantify to outweigh the immediate benefits of recognizing gay couples’ love and commitment.

Such honesty would make social liberals more magnanimous in what looks increasingly like victory, and less likely to hound and harass religious institutions that still want to elevate and defend the older marital ideal.

I guess we might need special protection for the beleaguered religious minority who are just trying to live their lives in traditional peace. Maybe they could use some of the billions of dollars they save from their tax-exempt status to inform us about the benefits of this older marriage ideal, or use their political clout to divert hundreds of millions of dollars from welfare to promoting marriage among the poor.

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