In the great comic movie “The In-Laws,” a CIA agent tells his dentist friend to avoid gunfire on a Central American runway by running “serpentine, Sheldon, serpentine!”
The arguments heard by the Supreme Court this week were a barrister’s version of “serpentine, Sheldon” — as several of the best lawyers in America weaved themselves in and out of the justice’s questions about whether they even had the standing to argue the arguments they were arguing.
They had to do so because, for almost everyone involved, the Supreme Court questions about the nature of the law are actually beside the point. That is, nearly everyone in the gay-marriage debate has been forced by circumstance to be like Sheldon and run a serpentine pattern in their advocacy.
Advocates of gay marriage want it however they can get it. They challenge the results of statewide referenda that ban it (California) on the grounds that the method of the ban is unconstitutional — but welcome its imposition by referendum in other states (three of them this year).
Liberals among them usually thrill when Congress imposes mandates on states — and yet this week many of them raged like members of the Federalist Society when inveighing against Congress’s evil usurpation of the definition of marriage (in the 1996 act whose constitutionality is now under consideration by the high court).
Conservative foes of gay marriage oppose it any way they can. My guess is that most of them were horrified by the federal standards imposed on states by the No Child Left Behind Act in 2001 — yet have no problem with the federalization of the definition of marriage.
In other words, the mechanics of the imposition of gay marriage or its rejection are secondary to the aim either of making it the law of the land or preventing it from becoming so.
On the one side, however it can be gotten is mostly fine, although advocates hope for the broadest and most capacious form of acceptance. On the other, however it can be blocked is mostly fine, too.
The supporters of gay marriage have triumphed in the popular culture because they’ve made their case about love and acceptance. They have convinced people that gay marriage is a moral advance because it opens our hearts.
It’s the ultimate feel-good choice in public policy: If you support it, it means you are more loving, more accepting, and the society that will be created after it becomes a normal part of everyday life will be better for it.
Opponents are making a more complicated case — one that emphasizes the durability of tradition while simultaneously stressing its fragility. On the one hand, traditional marriage should remain as it is because it has been with us for millennia. On the other hand, adding same-sex couples to its definition would shatter it.
The political brilliance of the gay-rights movement’s embrace of same-sex marriage was that it outflanked the traditionalists on their own territory.
Same-sex marriage advocates can lay a claim to embracing traditionalism and in doing so, to showing greater faith in the strength and durability of the marriage tradition than those who argue marriage can’t survive its expansion to homosexual couples.
There are many reasons the traditionalist argument ran into such difficulties once it found itself compelled to argue against broadening “the definition of marriage.” The truth is that no one cares about “the definition of marriage” in the abstract. Most of those who oppose same-sex marriage do so because they believe either fervently or by default in religiously-inspired ideas about marriage as a sacrament and the sinfulness of homosexual relations.
What we’re witnessing this week isn’t the sea-change in public attitudes toward gay marriage and their effect on the Supreme Court. The great change is this: People who believe homosexuality is a sin and that our common law should reflect that understanding no longer have the vocabulary to argue their case.