The Roe of Marriage
Where do we go from the Supreme Court?

Maggie Gallagher



Maggie Gallagher is most recently the co-author, with John Corvino, of Debating Same-Sex Marriage, a book published by Oxford University Press whose time has certainly come. She talks about the future of the debate and the institution in culture and politics with National Review Online’s Kathryn Jean Lopez.

KATHRYN JEAN LOPEZ: Are last week’s rulings on marriage as monumental, with the staying power, of Roe v. Wade?

MAGGIE GALLAGHER: What you are really asking is: Will we concede the legitimacy of Kennedy’s fatwa against us, or will we respond with a sustained opposition — legal, political, cultural, and of the moral imagination?

I don’t believe in inevitability, I believe in human freedom and our power to shape the future. So it depends on us. But certainly I believe, as I wrote in the Los Angeles Times, that the questions raised by marriage — deeply rooted in our conception of who we are as men and women, the meaning of sexuality and gender — cannot be put to rest by the power of five lawyers on however high a court.

The cultural struggle I predicted in “Banned in Boston” is clearly playing out. Will they succeed in persuading us to accept the second-class status Kennedy lays out for us?

Not me, what about you?


LOPEZ: The argument that gay marriage isn’t “inevitable” got incredibly harder last week though, didn’t it? Even if the legal implications remain somewhat limited, as a cultural matter, how do you hold gay marriage back when it already is a reality in states?

GALLAGHER: The legal implications are vast. I think this is, in fact, Roe v. Wade. The majority on the Supreme Court has clearly accepted that our Founding Fathers guaranteed us all a right to gay marriage in our Constitution, and is just prudentially biding its time — probably two to three years at most — before a case with clear standing gets in Justice Kennedy’s hands.

Already Kennedy has refused to accept for review a case in Arizona limiting marriage benefits to married couples. A Michigan federal judge also ruled our Constitution requires giving marriage benefits to non-married same-sex partners.

I think we are now in the post-Roe phase. Will we accede to the Court’s right to rule our values on marriage or not? And of course into the ever-more-intense religious-freedom phase.

I don’t think gay marriage is inevitable. But if the Supreme Court imposes it, of course it will happen.

Inevitability is an excuse for refusing to engage in whatever fight you think matters. The future is never inevitable. We shape it. But of course in a fight between us and Supreme Court, the Court has a lot more power than you or I.


LOPEZ: Opponents of same-sex marriage make the argument that marriage is between a man and woman for the protection of children. Is that still a credible claim? There are all kinds of relationships kids find themselves in. Why not be with two men who love one another and care enough to make a commitment?

GALLAGHER: Marriage as an important cultural status is rooted in a shared belief that we need to bring together male and female to make and raise the next generation together, and that adults have a serious obligation to make serious sacrifices, including of their sexual life, to make that happen.

Marriage, after gay marriage, is an under-defined commitment to love and caretaking, whose public character and status is newly uncertain. Why love? Why sex? Why just two? What does this have to do with parenting? What other relationships have an equal right to be counted as marriage?

Gay-marriage advocates will work this out, or more likely ignore — with the exception of a few like David Blankenhorn and Jonathan Rauch — these questions in favor of pursuing an ever more energetic strategy of using the power of law and culture to push new expanded equality norms around gay and transgender relationships.

I hope I am wrong, but so far I’ve been pretty right on the money. With Kennedy’s judgment, and his contempt of dissent, we’ve entered into a new era of the relationships between the American political order and traditional Judeo-Christian moral views.