Politics & Policy

The Roe of Marriage

Where do we go from the Supreme Court?

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.

LOPEZ: Why are opponents of same-sex marriage so wedded to marriage? Is reclaiming the “man and woman for life” definition, and strengthening that, in our best interests for way more than a same-sex-marriage fight?

GALLAGHER: I don’t speak for anyone but myself: Marriage is the word and the idea that incarnates a series of tremendously important ideas our contemporary post-sexual-revolution culture is inclined to deny — and now disparage as bigoted. Our bodies matter. They are part of who we are. Men and women are different, and the whole society needs — because our children need it, and because our future depends on it, on culturally creating it — a pathway from male to female (and vice versa) in which we do not hurt each other or our children with our sexual desires. To become the kind of people who care for our children, not kill them, or hurt them, require a tremendous commitment that adolescents make only in a society where adult society is committed to these norms.

Gay marriage is only plausible because our background commitment and capacity to recognize these ideas — in particular as ideals — is overridden by a number of ideological imperatives.

In the name of equality, we have schools now that massively fail boys — injuring the life prospects of both boys and girls. And yet it’s hardly a social problem. By refusing to recognize masculinity, we refuse to engage in the work of identifying what boys (or girls) need, and creating a civilized social order.


LOPEZ: At some point are proponents of marriage as between a man and a woman going to have to call it something else?

GALLAGHER:Holy matrimony”? It’s not a question I’ve thought about. Changing the language will change the battlefield only briefly. Can we sustain a cultural vision that sustains marriage as a norm and an ideal in the next generation? We need a powerful influx of culture-creators: artists, filmmakers, poets, novelists, journalists (not op-ed writers), songwriters, storytellers — as well as credentialed social scientists and intellectuals.

And we need philanthropists willing to sustain these networks, and entrepreneurs opening up for-profit markets and audiences for these creators.

And politicians with the courage of Ronald Reagan.


LOPEZ: What would you like to see Congress consider?

GALLAGHER: I would like the House to repass an expanded DOMA — including a clause that makes it clear that polygamous marriages need not be recognized if the second DOMA effort is struck down.

We also need urgently new protections for traditional believers. How about making it clear that unlike Loving v. Virginia, Windsor will not lead to the IRS taking away the tax deductions of groups with a traditional view of marriage, to give just one example.


LOPEZ: In your book with John Corvino, Debating Same-Sex Marriage, you argue that we’re not actually debating same-sex marriage. Can we ever? Or will emotions overtake reason?

GALLAGHER: I don’t know that I’m any less emotional than the other side. I don’t see emotion and reason as opposites. Emotion gives important information about oneself; it’s food for reason.

For gay-marriage advocates, almost without exception, gay marriage is primarily a debate about orientation equality, and about marriage only incidentally. How much does the culture care about marriage to resist this formulation? Not enough, not yet, at least among the cultural elites.


LOPEZ: What’s your advice to people who are a wee bit bewildered, looking at the human body and human history and not understanding how we have the authority to redefine marriage?

GALLAGHER: Be not afraid. Go reread City of God. Our political order has just shifted and you are now in a disempowered and disfavored minority group in the Supreme Court’s eyes. Don’t let that be your eyes.

Trust the truth. This is not over because the questions raised cannot be settled by fiat.

— Kathryn Jean Lopez is editor at large of National Review Online.


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