Same-Sex Marriage: The Depth of the Opposition and the Importance of Victory

Abstract

Legal recognition of same-sex marriage is close at hand. While marriages between two members of the same sex are not yet legal in any state, it is reasonable to suppose that legal sanction is near, at least somewhere in the United States. Such recognition would bring a host of tangible economic consequences, but, occasional efforts at camouflage notwithstanding, everyone knows that very little of the debate is actually about that. Instead, the issue has become a flag worth capturing in the culture wars: proponents herald the coming of same-sex marriage as contributing to the triumph of a secular, just, and humane society; opponents see instead accelerated erosion of the bedrock of stability needed to ground any successful society. One of the difficulties facing advocates of samesex marriage is that some of the fear fueling the opposition is not without basis. The challenge is to come up with a nuanced response to these arguments, one that convinces opponents that same-sex marriage both furthers the kind of stability that should be valued and, in the bargain, better respects values that are widely shared. As most people by now know, judicial developments in Hawaii ignited the smoldering controversy. In 1993, that state's Supreme Court ruled that denying the benefits of marriage to same-sex couples presumptively constituted gender discrimination. The high court remanded the case for a determination by the lower court as to whether the state could carry its heavy burden of showing that such denial was supported by an especially compelling justification. Panicked by these developments, Congress cast aside its long-standing practice of leaving the question of eligibility for marriage to the states, and in 1996 enacted the extraordinary Defense of Marriage Act. The Act accomplishes two goals. First, marriage between two members of the same sex, even if recog-