The Marriages, They Are A'Changin'

At 60 years old, I find myself both astonished and delighted by the progressive mainstreaming and acceptance of gays and lesbians. My school years were filled with insults, 'homosexual dread' and psychiatrists who thought being gay reflected defects in fathering and could be cured with analysis. There's still a long way to go, but the change has been extraordinary. Similarly, in my youth, an interracial couple, in North as well as South, couldn't walk the street, and, if in a car, was an automatic police stop. Few regret that we've moved on from that, and fewer would say it out loud. I've no doubt that gay marriage--accepted, per my daughter, almost universally amongst high school and college students--will similarly continue movement towards acceptance.

'Conventional' male-female heterosexual marriage--mine is 40 years old--is alive and well in Massachusetts, despite legal gay marriage. Massachusetts, in fact, has the lowest divorce rates in the nation, along with Connecticut, in which, too, gay marriage is legal. There's still a lot of bigotry, not least from people still either in the closet or in denial with respect to their own sexuality. But that tide is turning. The Supreme Court, unless it restricts its purview to ideology and a history based largely on bigotry, will have to take the fact into account. The standard for denial or restriction of a constitutional right is, if that right is acknowledged, a clear and compelling state interest. It'll be difficult or impossible to back up such a claim, given Judge Walker's analysis and facts on the ground in the states and D.C. allowing gay marriage.

In which regard, I'd suggest a reading of Scalia's opinion in Lawrence v Texas. It isn't just a 'passionate dissent', as Linda Greenhouse calls it in her excellent Times article this morning. It's almost shrill, keening, barely in control, resembling a hysterical polemic more than a reasoned, logical legal opinion. (Note, by the way, that Scalia's first sentence gratuitously refers to the majority opinion in a key opinion upholding abortion rights, Planned Parenthood v Casey, as 'sententious'.) I confidently predict that Scalia will, given the opportunity, vote with utter disregard for Judge Walker's facts and logic and the ever clearer evidence that gay marriage threatens society, 'traditional marriage' and civil society not a whit. And when he does so, he will be celebrated for it by those opposing gay marriage, without any pretense that their opinion arises from other than prejudice. Judge Walker was struck by the exceedingly limited presentation of fact and logic in favor of Prop. 8, in comparison to that presented in opposition to it. Justice Scalia, and opponents of gay marriage in general, have not been, are not, and will not be, and not for legal reasons.

Cites:
Greenhouse: http://opinionator.blogs.nytimes.com/2010/08/12/hiding-in-plain-sight/?hp#preview
Mass. divorce rate: http://www.divorcereform.org/94staterates.html
Scalia J. in dissent, Lawrence v Texas: http://www.law.cornell.edu/supct/pdf/02-102P.ZD