View From a Height
Commentary from the Mile High City
Wednesday, October 27, 2004

Gay Marriage 

I have tended to avoid the topic of gay marriage in this space. In the first place, my personal opinions on the matter are pretty much fixed by virtue of my being an Orthodox Jew: marriage simply cannot be anything other than between one man and one woman. And for me, that's about where it ends. I know how I'd vote on a referendum, and how much I'd try to punish Ken Gordon or Andrew "The Tsar" Romanoff if they tried to push is through the General Assembly. But I can't expect that convince many people; Orthodox Jews will be pretty much with me, anyone else indifferent to such argument, if you can even call it that.

More, I doubt the usefulness of such a debate, testimony to the destructive power of Roe v. Wade, and a generation of activist, liberal judges. They went to law school in the 60s, and saw a couple of decades laboring in law firms not as training to understand the law, but as the dues they paid on the way to power. Power, naturally, over you and me. The Massachusetts Supreme Court, or rather, enough members of it to play bridge, can issue a single ruling whose logical conclusion is the equivalent of a dictat from the Sultan. Until we begin to solve that problem, and its solution will take a generation, debating certain social issues seems a little pointless. (David Frum, in his superb book on the 70s, posits that voting has declined because it has mattered less. Judges and bureaucrats do not feel bound to respect even majorities of 80% and 90%.)

There is one argument, though, proposed by Glenn Reynolds and Andrew Sullivan, that deserves to be answered: the notion that a small number of people, say, 2-3% of the population, cannot threaten a major institution. There is, in fact, no reason at all why a small group of people can't force us to rethink and question social structures. I can think of two examples, both starting out with noble and necessary goals, both turning into national nightmares.

First, there is no doubt in my mind that a large part of the secularization of social life comes from a desire to more fully integrate religious minorities, especially Jews, into public life. I am old enough to remember being excused from 4th grade music class when December came around, and the class sang Christmas carols. I can remember mouthing the words to "Come, All Ye Faithful" at the Cub Scout Christmas pageant. Neither of these things would be thinkable now. And I'm not that old.

But what started as an attempt to make a non-denominational civic religion, in keeping with the Founders' intention, has morphed into a legal war against religion. The Founders didn't specify the nature of the God in Whom We Trust; but they put it on the coins, just the same. I was not thrilled at Greeley or at Fiddler's Green being asked to pray in the name of a deity in whom I do not believe. But I was uncomfortable not at all when the pastor at Red Rocks made the invocation. Listen to Dennis Prager for a few days, and you'll get the distinction.

The other example is poverty. Frum writes:

In 1980, there were 27 million poor people in America, or about 12.4% of the population, approximately the same proportion as in 1965. The level of poverty in the United States had not changed much over those 15 years, but its character had. Poverty, before 1960 mostly rural and white, became urban and nonwhite. Almost 70% of America's poor lived in metropolitan areas in 1980....This "underclass" - a term originally coined by the Swedish economist Gunnar Myrdal and popularized in a 1982 by journalist Ken Auletta - tallied perhaps 2.5 million souls nationwide, almost all of them black or Hispanic. Two and a half million people is a small proportion of the total American population. But this relatively miniscule population challenged the country's ideals of equal citizenship and equal human potential more radically than the tens of millions of unemployed in the 1930s had ever done.

The analogies aren't perfect. Each situation is unique. But the notion that a small part of the population can't challenge the way we think about ourselves and our society, even its most important institutions, is clearly untrue. Marriage is a public institution, conferring a publicly recognized status on its members. It confers ancillary rights of inheritance, of surrogate life-and-death choices, of adoption, of finances, of birth, and of family.

At a practical level, I don't see where civil unions, on this basis, are any better a solution that "marriage," since they reproduce all of the above effects without the word. In each of the above cases, we started by making common-sense changes (not requiring Jewish kids to say the Lord's Prayer, for instance), and extended them to the ridiculous (lifetime membership on the welfare rolls). The virtue of civil unions is that if we come up with any further "innovations," we don't need to extend them to the rest of existing marriages, but we can limit them to the civil unions.

But I do see where, before we go throwing the full weight of Law and Society behind another radical social experiment, we might want to think about it a little.

Especially since it's 2-3% of the population.

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