Marriage, Equal Protection, and the Limits of "Tolerance"

The purpose of this post is mostly to do what my students did yesterday in class: to give a loud cheer for the California Supreme Court’s ruling that same-sex unions can’t be treated as legally second class. Yay!!

I was just about as heartened by the students’ reaction as by the ruling itself. Through discussions with them, I know that a good 80% of them don’t have a problem with gay marriage. When opposition drops that low – in Ohio, for goodness sake, no bastion of liberalism – it’s a hopeful sign for the future. They will outlive the older generations who still think the sun ought to revolve around the earth.

The rest of my students still have issues with homosexuality, ranging between aesthetic disgust and religious qualms – but they’re aware enough of their minority status that they’re slow to voice their feelings, and I notice a change in this even over the past five years. That 10 to 20% probably felt alienated by the cheering. They’ll have to get used to it. Homophobia is moribund. It’s already a social embarrassment in their generation, much like overt racism is in mine. And they know it.

But if you push hard, you still discover limits to “tolerance” even in the ostensibly pro-inclusion supermajority. For instance, some students still say that they don’t understand why gay people (and here they really mean gay men) “have to flaunt it.” As if a once-a-year gay pride event with men in nothing but lederhosen weren’t totally offset by the heterosexual spectacle on the streets and in the bars of this college town every weekend – and remember, the weekend starts on Thursday night, and on Wednesday in fine weather. The women’s clothes barely keep them from getting arrested – and the displays of heterosexuality are, well, blatant! Shocking! You see boys and girls together and golly, they flaunt it!

Another gripe a few of my straight students expressed was “why do ‘they’ have to be so angry at heterosexuals – aren’t they doing the same thing as the anti-gay people?” Well, sure, it’s exactly the same – if the gay haters feel they can’t hold hands in public or be open about their sexuality at work or adopt children or walk down the street without fear. Even otherwise well-meaning young people may still have a hard time seeing how oppression creates asymmetries that make anger mean something totally different among oppressed people.

Despite the limits of “tolerance,” I still think the California ruling shows how far this sea change has come and how irresistible it will be in the future. It’s of course wonderful news for the couples who will now have a real choice about how to organize their lives. It’s also a delicious irony in that six of the seven judges on the court are Republican appointees. More power to them for embracing the law and fairness rather than caving to political pressure.

While I’m no legal expert, two things popped out at me from Glenn Greenwald’s analysis that portend well for the future. First, the court specifically left open the possibility that California could comply with its state constitution by essentially establishing civil unions for all couples, gay and straight, and leaving “marriage” to the churches. This is a solution that I’ve favored for years, having seen how successful it’s been in European countries. First, the distinction draws a clear, bright line between church and state, which benefits both in the end. Second, with that distinction already in place, European governments have had a fairly easy time implementing same-sex unions. Of course, they don’t have organized wingnut opposition – groups like the Concerned Women of America strike them as almost a joke – though some of them, like Spain, did face the Catholic Church. But keeping church marriage distinct allows religions to have their own sphere of influence without dictating public policy.

Second, while the court emphasized that its ruling was based on the state constitution and not on the federal one, its rationale – equal protection under the law – illumniates the path that I think this country will ultimately have to take, whether we keep marriage under state control or redefine it as civil unions for all. The Fourteenth Amendment can and should be interpreted to protect everyone, no matter who they love. Obviously, our current SCOTUS tilts too far right to even consider this; it’s no longer the same crew who gave us Lawrence v. Texas. But “equal protection” ought to mean exactly that, and this ought to be glaringly obvious to all of us, legal experts or not.

Dr. Rüppel clematis from my garden.

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