Life Watch: A Day at the Hearings

The improbable cast of characters, gathered in a spacious set of rooms, resembled nothing so much as those old Olson & Johnson movies (such as Hellzapoppin’), with every attribute save that of the trapdoors flying open and the guns exploding out of context. But it was, under its more sober title, a meeting of the Sub-committee of the Constitution of the House Committee on the Judiciary, and the subject was “same-sex marriage.”

Or more precisely, these were hearings called to discuss the Defense of Marriage Act of 1996, a measure that was designed to head off gay marriage, just as the courts were preparing to deliver that gift to the country. The characters brought forth for this argument were sharply etched, but the combination was improbable. On the congressional side, for example: Henry Hyde and Barney Frank, Charles Canady and Pat Schroeder. And among the witnesses: Dennis Prager (Jewish, conservative, articulate commentator on radio and television); Andrew Sullivan, the young, thoughtful, gay editor of the New Republic; and I. Why me? I had sounded the alarm on this question, in a series of talks and articles, running back to January 1994. The staff of the Judiciary Committee thought it fitting that I should come in to make the case for the bill—and to make myself a target for the likes of Congressman Frank, a flamboyant gay activist. A target I was pleased to be, as long as I could participate in the exchange of argument. But Mr. Frank, as it turned out, did not make me a target—or invite that exchange.

In fact, Congressman Frank was content to perform his version of the Claude Rains role in Casablanca: “I’m shocked—shocked—to discover that there is gambling in this establishment.” In this case, he was shocked—shocked—that Congress should come forth with this bill, when there was no pressing need for it. Other Democrats on the committee had professed astonishment that Congress would “federalize” the issue of marriage, and Rep. Frank seemed to echo that sense of disbelief as he insisted that this measure was unconstitutional. The professions of astonishment required more than the usual quotient of chutzpah or outright shamelessness, since part of the bill involved a move on the part of Congress to clarify the meaning of “marriage” in the federal code. Marriage may depend on the laws of the states, but there are several hundred references to marriage in the federal laws—references, for example, to the spouses of citizens or to the benefits that flow to spouses. Congress sought now simply to establish that the term “marriage,” in the federal code, “means only a legal union between one man and one woman as husband and wife.” How could it be an unwarranted move to “federalize” this question if Congress merely clarifies the meaning of federal statutes?

But the charge was quite as bizarre in regard to the other principal part of the legislation: the flexing of congressional power under the Full Faith and Credit Clause (Art. IV, Sec. 1). That is the clause that leads us to expect that the driver’s license granted in California will be honored in Maine, or that the marriage performed in Kentucky will be honored in Illinois. But that was the clause that gay activists have been counting on as the engine, that would spread gay marriage to the rest of the country after the courts had finally secured that novelty in the state of Hawaii. Again, this was a distinct part of the federal Constitution that promised to amplify, in the country, the problem of gay marriage. Yet, it was treated as an act of usurpation that Congress should dare to engage its authority under this clause of the Constitution.

And what Congress sought to do in this case had to be counted as the most delicate and moderate measure of federalism: Congress would not contest the authority of Hawaii to install same-sex marriage. Nor would it foreclose the freedom of other states to recognize those marriages from Hawaii. But Congress would simply provide now that no state would be compelled by the Full Faith and Credit Clause to honor, as a marriage, anything other than the union of a man and woman.

Still, this moderate policy was treated by the Democrats as nothing less than an act of aggression. For Barney Frank, that act of aggression stood out even more clearly because the bill seemed so unnecessary: Any state, he insisted, could enact right now a statute that refuses to recognize gay marriage. But this performance on the part of Frank had to set a new standard for the disingenuous, even on the part of such an accomplished artist: For Frank knew, as much as anyone in that room, that with one or two minor steps, the federal courts could simply remove from the states the authority to pass any such law, that refused to recognize unions solely because they were formed by gays or lesbians.

I pointed out, in my own testimony, that this step was expected any day now with the decision of the Supreme Court in the Colorado case of Romer v. Evans. So I testified on May 15, and as I sit down today to write this article, on May 20, the Court has now taken that step. The case involved a constitutional amendment passed by the voters of Colorado, that barred legislators at all levels from the authority to treat gays as a victimized class, deserving special preference or protection. The amendment simply preserved for people, in their private settings, the freedom to honor their own moral and religious judgments on homosexuality. The Court has now struck down that amendment, and in striking it down, as Justice Scalia remarked, the Court has “disparaged as bigotry adherence to [the] traditional” Christian and Jewish teaching on this matter. And in the meantime, the decision is likely to be read by activist judges in this way: that there is something immanently suspect, on constitutional grounds, in any move on the part of a state to incorporate into its laws an adverse judgment on homosexuality. Armed with that ruling, federal judges may have all of the levers they need to strike at laws that refuse to credit gay marriage—and much else besides. The effect of this decision on our law, and our lives, promises to be nothing less than portentous. In the name of “tolerance’,” this decision will provide a new lever for silencing those people who bear reservations about homosexuality. It will provide a wondrous, “clean” device for stepping up the attack on serious Christians and Jews in the universities and the professions. In comparison, Roe v. Wade may appear to us in later years as little more than a warm-up act.

In my own testimony, I had argued that, one way or another, this question of marriage and sexuality could not be discussed without using the “N”-word (nature). It is hard finally to detach marriage from what may be called the “natural teleology of the body”: from the inescapable fact that only two people, not three, only a man and a woman, can beget a child. We do not need a marriage to mark the presence of love, but a marriage marks something matchless in a framework for the begetting and nurturance of children.

I posed then this question: If marriage were detached from that natural teleology of the body, on what ground of principle could the law confine marriage to “couples”? On what ground would the law rule out as illegitimate the people who profess that their own love is not confined to a coupling of two, but connected in a larger cluster of three or four? But if that arrangement of plural partners were permitted to people of the same sex, how could it be denied in principle to ensembles of mixed sexes? That is to say, we would be back, in principle, to the acceptance of polygamy.

I was not offering here an empirical prediction. I was not saying that, if the law accepted gay marriage, we would be engulfed by polygamy. I was raising a question of principle of how the law would reject these claims. Beyond that, I was willing to suppose that the gay activists did not have even a remote interest in promoting polygamy. And yet this much could justly be said of them: They do have the most profound interest, rooted in their doctrine, in discrediting the notion that marriage finds its defining ground in “nature.” Their interest lies in showing that this relation is founded entirely in convention, that it may be shaped or reshaped as it suits the opinions that are dominant at any moment in the “culture.” We can count, then, on the fact that there will be someone, somewhere, ready to press this issue to the next level by raising a challenge in the courts and testing the limits even further. And the reason we can count on it is that the activists know, as well as anyone else, that the judges will not have any ground of principle any longer for holding back.

This question of polygamy was posed, during the hearings, to a young legislator from Iowa, who favored the acceptance of gay marriage as an acknowledgment of love: If Hawaii, say, permitted polygamy, could a man leave his wife in Wisconsin without a divorce, marry yet again in Hawaii, then return to Wisconsin—and expect to have his new marriage honored? The young legislator affected to be puzzled by this “hypothetical” case. And he remarked that polygamy does not seem to be a big issue in his state. But it seemed to escape this good man, bedazzled as he was by love, that polygamy is quite distant from our experience because the laws have cast up barriers against it; barriers that had been erected with great strain and conflict in our politics. The first platform of the Republican Party, in 1856, denounced both slavery and polygamy as “twin relics of barbarism.” When the proponents of gay marriage show a flippant disregard for polygamy, they show not only a want of historical memory, but a dimness of moral imagination. They do not apparently see that the argument for gay marriage could serve quite as well, at every point, as an argument for polygamy. The acceptance of one can be counted on to stir a renewed interest in the other. Those innocent people, who casually dismiss these prospects out of hand, are part of that tribe described by Aristotle in the Ethics: Their defect of understanding “is not due to a lack of years but living the kind of life which is a succession of unrelated emotional experiences.” As the principles they are planting now work themselves out, and the results kick in, these people, in their childish candor, will be the first to record their surprise. And to tell us, earnestly, that they never meant for things to go this far.

By

Hadley P. Arkes (born 1940) is an American political scientist and the Edward N. Ney Professor of Jurisprudence and American Institutions at Amherst College, where he has taught since 1966.

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