The Choice of Children: The Logic of Gay Marriage and Abortion

Ross has been doing a yeoman’s work making me almost regret my critique of his essay on gay marriage by offering a patient, sophisticated case for preserving the “ideal” of heterosexual marriage.

Specifically, I was pleased to see him affirm my point that the legal affects culture in addition to reflecting it, a point often lost on my peers .  One of my favorite moments is when he turns the civil rights narrative on his opponents to prove the point:

Second, I think that most of Greenwald’s examples of cultural norms that aren’t legally enforced actually tend to back up my belief that law and culture are inextricably bound up, rather than his case that they needn’t be. A stigma on racism, for instance, would hopefully exist even in a libertarian paradise, but it draws a great deal of its potency from the fact the American government has spent the last 40 years actively campaigning against racist conduct and racist thought, using every means at its disposal short of banning speech outright. The state forbids people from discriminating based on race in their private business dealings. It forbids them from instituting policies that have a “disparate impact” on racial minorities. It allows and encourages reverse discrimination in various settings, the better to remedy racism’s earlier effects. It promulgates public school curricula that paint racism as the original sin of the United States. It has even created a special legal category that punishes crimes committed with racist intentions more severely than identical crimes committed with non-racial motivations. In these and other arenas, there isn’t a bright line between the legal campaign against racism and the cultural stigma attached to racist beliefs; indeed, there isn’t a line at all.

Ross suggests that as gay marriage is legalized, the stigma against those who have old-fashioned views of marriage will increase and the line between culture and law will continue to blur.  That’s near the center of the social conservative anxiety over gay marriage,  despite the Constitutional protections that are in place to preserve the “freedom of religion.”  Like freedom of speech, the ability to practice our religion doesn’t seem to be absolute when the “harm” of other individuals is in question.