Of Prop. H8 and boycotts: response to Maggie Gallegher

Supporting Prop. 8 meant retroactively un-marrying more than 10,000 couples. It’s not surprising that some of them, and some of their friends, are just a tad angry.

Maggie Gallegher’s publicist sends me Gallegher’s latest essay for National Review Online, about a woman who had to quit her job running a restaurant in West Hollywood after news of her contribution to Proposition 8 led to a boycott of the restaurant. Since the email asked for comments, it would have been churlish of me not to reply, and I’ve used up my week’s quota of churlishness on poor Glenn Reynolds.

So here’s my note in response:

Dear Maggie Gallegher:

I feel sorry for Marjorie Christofferson, and I wish half of the energy now being expended in futile retaliation against the proponents of Prop H8 had been spent to defeat the damned thing (and yes, I do mean damned, or would mean it if I believed in a just God) in the first place.

However, since you asked for comments:

1. Marjorie Christofferson is, by your account, a kind and decent person. But she voluntarily participated in an act of atrocious cruelty. She isn’t being made to “pay a price for her religious beliefs.” She’s being made to pay a price for her heartless attack on thousands of families.

2. May I see your parallel column protesting the successful effort to drive the Dixie Chicks out of country music for criticizing the Beloved Leader? [An effort, let’s remember, that included banning their music from the nation’s largest chain of radio stations.] Or is your concern for freedom of expression limited to those who express ideas you agree with? I’m glad to see that even in the pages of the National Review, which was founded in part to further Joe McCarthy’s work, it can now be taken for granted that McCarthyism was wrong.

3. Legislation is not discussion. Saying “Because I disapprove of gay people getting married I want there to be a law against it” is not the same as merely saying “I disapprove of homosexual acts.” That contribution to Yes on 8 meant retroactively un-marrying more than 10,000 committed couples. I don’t know if you’re married, but just imagine that someone did that to your marriage. I doubt you’d be satisfied with a mere boycott.

4. Being black or white is of course involuntary. When a black person marries a white person, that’s a voluntary act, subject, as you say, to moral criticism. The people who passed the anti-miscegenation laws thought that interracial marriage was disgusting and contrary to natural law, and they were acting to protect their notion of the sanctity of marriage against what they thought was an abomination. By your announced standard, they were doing nothing fundamentally wrong.

(Note that the anti-miscegenation laws were less cruel than Prop. H8. Anti-miscegenation laws left black men free to marry black women and white men free to marry white women. But under Prop. H8, gay men and gay women aren’t free to marry anyone they might actually want to marry.)

So: I wouldn’t have boycotted El Coyote. (Easy for me to say; it wasn’t my marriage that was at stake.) I’m sorry for Marjorie Christofferson. But she did something that, although she had a perfect legal right to do it, caused pain to people she’d never met and who weren’t doing her any harm. If they and some of their friends want to do in retaliation something they have a perfect legal right to do, and it causes her pain, part of me – not, admittedly, the nicest part – wants to say “Sauce. Goose. Gander.” As far as I know, no one on the pro-H8 side of the debate has ever expressed any sorrow for the injury done to those 11,000 couples.

Not that it matters, but I’m not especially a fan of legal recognition for same-sex marriage. I agree with Barack Obama that the state should recognize and protect committed pairwise domestic partnerships regardless of what they are called, and leave the definition of “marriage” to be worked out in civil society without the interference of the state. But that wasn’t the question on the ballot.

Yours for a kinder and gentler political discourse,

Mark Kleiman

Update The last paragraph above has been misunderstood to mean that I endorse “civil unions” as a compromise between allowing and forbidding gay marriage. Indeed, some people do believe that opposite-sex couples should be allowed to be “married” and that same-sex couples ought to be allowed some lesser status called “civil union” or “domestic partnership,” or even a status that is legally completely equivalent to “marriage” but called something else. However, that’s not my position (and I take it it’s not the President-elect’s position either).

I would prefer something much more radical: defining in law only (pairwise) domestic partnerships, and abolishing “marriage” as a term with legal significance. All domestic partnerships, however constituted and whether or not consecrated in a church, ought to confer the same rights and impose the same duties. That leaves the question of what to call “marriage” up to civil society, taking the state out of what some see as a religious question.

Both the current ban on same-sex marriage and the proposed recognition of same-sex couples as “married” take a position in favor of one religious opinion and against another. In my view, that is not properly the business of the government. The government ought to stand for legal equality for all citizens; it need not, and ought not, get into defining a term that for many people has religious content.

I understand that for many gay men and women it’s important to have the government officially affirm that gay couples are “married”: that is, to have the state say to the Catholic Church, for example, “You’re wrong about the meaning of one of your sacraments.” But I think that asks more than the government should give. The state should no more have an official position on the meaning of “marriage” than it should have an official position on the Real Presence. The law should define the rights and duties of domestic partnership and specify how that relationship is entered into and how it can be dissolved, and then get out of the way.

Now, given the choice between having the state define “marriage” unequally and having the state define it equally, of course I’ll stand tall for equality. But better not to define it at all.

I should also add that, while I regard Prop. 8 as a special case, as a general matter I think it’s wrong to boycott businesses to punish them for the political actions of their employees.

Second update It appears that I agree with Camille Paglia in wanting to abolish “marriage” as a legal status. That means I must be wrong, but for the life of me I can’t find the flaw in the reasoning. It’s a puzzlement.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com