gay marriage! controversy! slow down!

[by JSC5]

I’m a little late in getting to this, but a federal judge has ruled that California’s Proposition 8, which prohibited gay marriage in that state, is unconstitutional. I like to think of same-sex marriage is one of those “duh!” issues, like beer deregulation or early childhood education. We recognize, however, that despite how simple an issue it is for some, same-sex marriage has caused a great deal of controversy for other people. Orin Kerr had a post up recently over at Volokh Conspiracy that took this fact of controversy and conflated it with actual importance. He starts by quoting Judge Walker’s ruling, and then responds to it:

[Judge Walker’s opinion]: “Because the evidence shows same-sex marriage has and will have no adverse effects on society or the institution of marriage, California has no interest in waiting and no practical need to wait to grant marriage licenses to same-sex couples. Proposition 8 is thus not rationally related to proponents’ purported interests in proceeding with caution when implementing social change.”

[Orin Kerr’s commentary]: Whatever your views of same-sex marriage — or Judge Walker’s decision as a whole — I think this particular part of the analysis is pretty weak. First, the idea that same-sex marriage is not a significant social change strikes me as plainly incorrect. This is one of the more significant questions of social policy of our time: Whether you think it’s the greatest advance for civil rights in America or the end of the world, it seems pretty clear that it’s a big deal.

Now, gay marriage is certainly politically salient in that it stirs up emotions and seems to divide people into two camps. That said, I don’t think it’s nearly as polarizing as he makes it out to be. Who exactly is Kerr hanging out with to make him think that mainstream opinion runs from “the greatest advance for civil rights in America” to “the end of the world”? I know a lot of pro-gay marriage people, and I don’t think a single one thinks that gay marriage clearly outranks the civil rights movement for African-Americans or the women’s rights movement. Furthermore, I know many (though fewer) anti-gay marriage people,  none of whom think it will seriously end the world. In fact, mainstream opinion on this subject seems to stretch from “good idea/duh” to “I’m concerned about it/ewww”.

Either way, I’m not sure that the actual level of controversy even matters. It seems that Orin Kerr is confusing (1) political salience with (2) actual breadth or depth of change. What exactly is the evidence Professor Kerr would offer up in defense of his contention that same-sex marriage is “one of the more significant questions of social policy of our time”? The simple fact that Americans fall into two broadly equal pro and con camps isn’t enough. Lots of issues – both important and superficial – are politically salient in a similar way,  so the mere fact of salience can’t help us to distinguish actual importance.

Just how important and sweeping of a change would gay marriage be? Judge Walker;’s answer (quoting a bevy of experts who testified at trial) is that it’s pretty important for the gay couples who would get married, and not at all important for everyone else. In response, Orin Kerr says that the mere fact of political controversy proves Judge Walker wrong.

It’s an effective strategy for troglodytes trying to make sure that gay people don’t have the same rights as everyone else. They don’t even need to marshal any real evidence or reasons as to why the proposed reform would be bad or that implementing it right now would be dangerous; all they need to do is disagree, and the disagreement becomes the evidence.That is, until smart professors like Orin Kerr, along with the rest of us, some day stop believing the hype.