We've had an entire weekend to react to news of New York's gay marriage law, and the silence of so much of the right on the topic is pretty notable. I've periodically checked in at a number of leading conservative blogs over the last 48 hours—Hot Air, Power Line, Red State, No Left Turns, Commentary, Weekly Standard—and the reaction has been almost total silence. There has been more hubub in the Catholic precincts of National Review, but it's not one-sided: there's genuine debate going on there.
Obviously there are plenty of self-described conservatives out there—particularly religious conservatives—who are incensed. And they always will be. But a good chunk of the conservative intelligentsia just can't rouse itself to battle on the topic—probably, I'm guessing, because so many folks in that group have gay friends. It takes two sides to have a culture war; on this issue, at least, one side appears to be leaving the battlefield.
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New York neutralized one of the major conservative arguments against gay marriage by enacting it through legislation. I think it's difficult for thoughtful conservatives to come up with convincing non-religious arguments against gay marriage legislation if they also believe, for example, that Roe v. Wade should be overturned and abortion rights decided on a state-by-state basis using democratic processes.
It seems to me that a big argument against gay marriage is that it "destroys" or "harms" traditional marriage. But that's not a position that can be intellectually honestly argued, because how does allowing two gay people to enjoy the civil rights and legal benefits of state-recognized union actually destroy or harm either the religious or the secular aspects of a traditional marriage? Likewise I think the evidence is there to show that kids raised by same-sex parents turn out fine, whether they're biological children of one of the parents or fostered or adopted children.
There's also a legal catch-22 regarding civil rights. If gays are a "protected class," then laws discriminating against them must be evaluated with heightened scrutiny. That is, the state has to give a very good justification for why the law exists. But the anti-gay-rights side argues that there should be no "special rights" for gays -- that they aren't a protected class.
So if gays aren't a protected class, then any law that discriminates them has to meet only a "rational basis" level of review. Well, then, what is the rational basis for disallowing any American citizen the legal benefits of a state-recognized marriage (e.g., the option for file taxes jointly, default inheritance laws, or the hundreds of other state and federal perks you can qualify for if married)? The law would have to be rationally related to any legitimate government interest.
Is there a legitimate government interest in preventing gay people from marrying? The groups defending the California ballot measure focus on childbearing (which raises the question of why seniors are permitted to marry). Others may focus on defrauding the government (but I personally know two opposite-sex couples who got married solely for health insurance, and one of the couples involved a military spouse).
Never mind the general conservative and libertarian call for smaller government interference in one's life.
Long story short, it's hard to both be intellectually honest and also argue against gay marriage.
Ha-ha-ha, David Frum agrees with me.
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