ON Monday, a swathe of US states began licensing same-sex marriages. Earlier that day, their supreme court had declined to hear appeals against the decision of the lower federal courts to strike down legislation banning those unions.
Some of those states included Oklahoma and Utah. When anti-same-sex marriage legislation, passed at state level, was overturned in the federal courts several states appealed to the supreme court. In refusing to hear their appeal, the supreme court allowed the lower federal courts’ ban on anti same-sex marriage legislation to stand. It was a momentous, but complicated, decision.
There was no consideration of, or ruling on, principles. A supreme court that is in the main conservative arguably backed away from taking the cases because the key swing vote on the court, Anthony Kennedy, an appointee of Ronald Reagan, would have sided with more liberal colleagues.
Without Kennedy, there would have been no possible majority to uphold a same-sex marriage ban. Justice Kennedy has form in related cases, not least United States V. Windsor.
In his judgement in that case, Kennedy, speaking of the New York state’s same-sex marriage law, said: “This status is a far-reaching legal acknowledgment of the intimate relationship between two people, a relationship deemed by the state worthy of dignity in the community equal with all other marriages...
It reflects both the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality.” So, rather than risk either a sharp division within the court, or a majority judgement that would established far-reaching legal principles, the supreme court allowed the status quo to stand. It was judicially a minimalist approach, and it has enormous consequences.
It has put a constitutional challenge against same-sex marriage beyond the reach of its opponents in the United States. By allowing same-sex marriage laws stand in a majority of states, it institutionalised revolutionary change.
Revolutions, however, are curious. They are always read as short-hand for liberal change. Yet the sudden, sweeping movement towards same-sex marriage across the western world is conservative. The change is sudden. It is hardly a decade since it began to evolve from an unlikely proposition to a now apparently immovable foundation in the mainstream.
One of the paradoxes of the debate on same-sex marriage is that the proposition is juxtaposed with its so-called conservative opposition. This is based on the fact that there is no basis for it in millennia-old traditions of marriage in mainstream cultures.
Therefore, their argument is that it is both revolutionary, and destructive of marriage as an institution. Same-sex marriage is, if judged on the basis of gender and traditional attitudes towards homosexuality, an astonishing change indeed.
The underlying cultural conversation tells a starkly different story. This is far less an assault on the institution of marriage than a radical expansion of a conservative institution.
That institution, in social terms, was always about a legal contract that controlled women, fertility, children and property. Now, the ultimate outcasts in terms of most societies’ views of sexuality, namely gay men and women, have increasingly been brought within its ambit. Justice Anthony Kennedy has effectively said as much.
The historically-evolving view of equality of which Kennedy spoke is a positive corollary of what, in the western world, is the near universal decriminalisation of homosexuality.
It is also an extension of the controls long-deployed in the mainstreams of those societies. It was a seminal book, Virtually Normal, published in 1995 by a conservative gay commentator, Andrew Sullivan, that first most prominently pushed the concept of gay marriage (which will be the subject of an Irish constitutional referendum next year) onto the main stage of political debate.
Sullivan, a skilled polemicist, argued for gay marriage as both a humanising and as a traditionalising institution.
The reason the so-called conservative argument against gay marriage is so weak is that it is fighting a rear-guard action against a conservative proposition, which, from its genesis, outbid its most likely opponents. Same-sex marriage is not anti-marriage; it is the opposite.
In fact, the most searing, but radical, criticism that could be mounted against it is its embrace of an institution that is fundamentally oppressive.
In their radical prime, this was the feminist and gay liberation movements’ critique of same-sex marriage. If the rapidity of the normalising of the once unthinkable concept of same-sex marriage is understandable, less so is the almost complete airbrushing from recent history of the opposition to the institution itself, from the very quarters now leading the cause for it.
Less noticed on Monday was a comment in Rome from the Cardinal Primate of Hungary, Péter Erdö. He is Pope Francis’s choice as realtor, or de facto chairman, of the Synod of Bishops on the Family. Erdö spoke of the “full consensus that people with a homosexual orientation should not be discriminated against”, but opposed the notion that “these relationships be equated with marriage between a man and a woman”.
Ostensibly, therefore, the battle lines are clearly drawn between ideological opposites. Except that ostensibly stark differences belie an astonishing collusion of thought.
It is very recent Irish history since the then chief justice, Tom O’Higgins, in 1988, explicitly relied on the preamble to the Irish Constitution, which opens: “In the name of the most Holy Trinity…humbly acknowledging our obligations to our Divine Lord”, as a basis for his majority verdict in the David Norris case, upholding the constitutional basis for the criminalisation of homosexuality. In light of Cardinal Erdö’s comment on Monday, it is unlikely that the preamble could be deployed in the future to support the arguments O’Higgins enforced as Irish criminal law only 26 years ago.
The fundamental problem facing opponents of same-sex marriage is how to contain what is now not a crime, and for which they are no longer willing to advocate prosecution.
Contemporary commentary focuses on the narrow issue of being for or against same-sex marriage. The longer view of history will understand that the underlying, but fundamental, shift in thought is the normalisation of what had previously been outcast.
Conservatives like Andrew Sullivan and Justice Anthony Kennedy fully understood this. Ultimately, those most bereft by the proposition are radicals on the left and right, who, from opposite perspectives, enjoy a largely shared view of the institution of marriage. For them, understandably, same-sex marriage is patriarchy reincarnated in drag.
This is less an assault on marriage than an expansion of a conservative institution.