From the newly stigmatized, a plea for pluralism.
Dear Justice Kennedy:
The forces for gay marriage are powerful. You have been their hero in the past, when gay people were not so powerful. The tables are turned now, as I think is clear to everyone. The LGBT community has built a powerful cultural, legal, and political movement. They are not helpless or friendless. They do not need you to distort the Constitution to win the right to live as they choose. We who believe in the traditional understanding of marriage do need your help. We live at a time when our livelihoods are under new attack, when our standing as equal citizens is under attack, when the system of ideas and the deep human realities that gave rise to marriage for millennia are now being dismissed as mere bigotry, as irrational, incomprehensible hatred.
Let me offer you four reasons why you should reject the idea that marriage equality requires all states to treat gay unions as marriages.
1. It is not true that same-sex and opposite-sex couples are equal. Not all sexual relationships are equal, even if they are loving and committed. Same-sex couples have to deal with the preference that the majority has for opposite-sex relationships, ranging from mama’s slight mourning for the family her son will likely never have to Westboro Baptist’s awful, crude, ugly, and unchristian hatred. Opposite-sex couples have the task of managing the reality that from the about age 14 until the woman ages out around 45, every single act of sex could make new life. Nothing the Supreme Court says or does about marriage will change these realities, but importing gay marriage into our Constitution will unleash a cavalcade of consequences for traditional believers.
2. The equality line will require continual policing, because it is based on an untruth about human nature. Maintaining the idea that there is no significant difference between same-sex and opposite-sex couples will require actively suppressing the reality that the potential for new life in opposite-sex unions is both morally and socially significant, that it colors the meaning not only of marital unions but of most every sexual interaction between male and female. Of course we will notice that sex makes babies, but every time we do, we will have to twist our heads in a pretzel to think of the ways same-sex unions and opposite-sex unions are the same and to make those the significant features of marriage.
You were a hero to proponents of same-sex marriage when gay people were not so powerful. The tables are turned now, as I think is clear to everyone.
3. This policing of the equality line will fall the heaviest on those most committed to the older view of marriage, that it is deeply rooted in the reality that society must bring male and female together to make the future happen; that marriage is more than a relationship, it is a social institution with purposes larger than the intentions of the young couple in love, that it exists to channel erotic love in such a way that men and women can live together across the gender divide, and share the task of loving and raising their children. This means that sustaining marriage privately, without public or governmental approval, will become immeasurably harder, as the portions of society most committed to marriage, classically understood, become consumed with the task of figuring out how they survive the hatred and dhimmitude directed their way. When the solicitor general of the United States concedes that the argument he is making may lead to stripping Christian schools of their tax-exempt status, you know we are not making things up, or whining, or complaining for no reason. If we want to get to live and let live, we need your help to not constitutionalize the Human Rights Campaign’s sexual morality.
4. Finally, dear Justice Kennedy: Government cannot confer dignity on our relationships. My best friends, my adult children, my godchildren, my brothers and sisters, every single intimate relationship that I have and that gives meaning to my life, government has no role there. To imagine that a government stamp of approval is what creates value in human relationships, or gives dignity to our sexual lives, is to accord to government a power it does not have: a power to impose an idea of equality that is not true, and to remove from the American people the hard work — of negotiating, compromise, and dealing with one another — that belongs to the democratic process, not the Constitution.
Justice Kennedy, you’ve surprised us before. Do it one more time. If originalism doesn’t move you, perhaps an honest plea for pluralism from the newly stigmatized might?