Blankenhorn and Reno

This is the second in a planned series of pieces on David Blankenhorn’s “Conversation,” an online interview show put out earlier this spring and summer as part of the Institute for American Values’ “Call for a New Conversation on Marriage.” My first post featured my thoughts on the pilot episode, in which Blankenhorn sat down with NYU professor Jonathan Haidt for a wide-ranging discussion about the future of the culture war over marriage. In the second installment, he hears from a guest who is far less sanguine than Haidt about the possibility that we can substantially change the terms of the debate anytime soon: First Things editor (and Haverford alum!) Rusty Reno.

The episode is entitled “Should Religious People Join the New Conversation on Marriage?”, and it attempts to address some of the fundamental questions raised by Blankenhorn’s “call”: namely, what do norms of public engagement demand from people of faith who wish to defend their understanding of morality in the public sphere? Is there room for opponents of same-sex unions in an initiative that declares the gay marriage debate to have reached “a dead end”? Can people with radically different ideas of what marriage means really come together to promote policies that aim to strengthen it – when they don’t even agree on what “it” is? As I did in my earlier post, I’ve noted how far into the episode certain points come up for those who are interested in seeing the highlights but don’t want to watch start-to-finish.

The first portion of the video features Blankenhorn pressing Reno on an essay he wrote in the January issue of First Things that in part criticizes hedge fund manager Paul Singer, a wealthy donor to the Republican Party who recently came out in favor of same-sex marriage. Blankenhorn takes issue with the fact that Reno spends much of the piece calling Singer and others like him “fatuous” for claiming to be “pro-marriage” while dissenting from the traditional understanding of matrimony, but then concludes by challenging such people to prove their sincerity by coming out in support of policies like no-fault divorce reform and a tax code that incentivizes marriage (8:00). How, he asks, can Reno ever hope to build widespread support for his agenda by first attacking his would-be allies as insincere?

Reno replies that the so-called “conservative case for gay marriage,” advanced by writers like Andrew Sullivan and Jonathan Rauch and now defended by Blankenhorn himself, is “sociologically fatuous” regardless of what its proponents may believe. For him, gay marriage is “an exclamation point on the sexual revolution,” a phrase that he repeats several times throughout the exchange. He insists that “gay marriage is perceived by the public as an affirmation of sexual liberty,” and not as an attempt to establish stabilizing norms of bourgeois family life in the LGBT community (16:00). Moreover, he believes that “the libertarian streak that runs through [our society] militates against a culture of marriage,” and feels that reinvigorating an institution which is designed “to limit radically people’s sexual choices” will necessarily require reintroducing a vocabulary of “prohibition words” (19:00).

Despite offering up what he admits are provocative arguments, Reno is articulate and gracious throughout the interview, even stepping up to the plate to keep the conversation flowing when Blankenhorn’s train of thought spectacularly derails (39:00). When asked to explain an incendiary comment he made in the pages of First Things about how gay marriage would prove to be a “luxury good for the rich paid for by the poor,” he carefully describes how he sees a flexible and individualized understanding of family structures as easily navigable for young people in the upper and upper middle class, who often have the financial security and social capital to spend a period of their young adulthood engaged in romantic experimentation before ultimately “reaffirming the bourgeois mode of life” (5:00). But for those in the lower classes, who often lack the same prospects for future advancement, the path to domestic stability is less obvious. For that reason, Reno posits, clear social norms are needed to steer people into healthy patterns of life, and open disregard for such norms in the ambient culture will have serious unintended consequences.

That may be so. But Blankenhorn rightly points out several flaws in Reno’s line of thinking. For one, he contests Reno’s claim that gay marriage is perceived by the public as a victory for libertinism, and expresses outright surprise at his assertion that married gay couples will eventually come to serve as symbols of sexual freedom rather than commitment and domesticity (1:18:00). Having himself come to support gay marriage by interacting with homosexual couples who “just wanted to join the PTA” and “bake cookies for their children when they came home from school,” Blankenhorn is understandably skeptical of the idea that approval of same-sex unions can be rising as quickly as it is if homosexuality has in fact all the while been connected with sexual anarchy in the public’s moral imagination.

In fact, opinion poll after opinion poll has shown a strong correlation between support for gay marriage and whether an individual personally knows someone who is gay. This is presumably the case because having a close relationship with a gay person leads one to the realization that the basic aspirations of gays are the same as those of straights, and not because being acquainted with a homosexual radically changes one’s fundamental attitudes about sexual propriety. Indeed, it is precisely because the gay rights movement has so effectively dissociated itself from the threatening image of an antinomian bathhouse culture that it has attained such widespread mainstream acceptance.

Blankenhorn also rejects Reno’s corollary argument that gay marriage “not only degrades but denies” the traditional understanding of marriage as “unitive and procreative,” since “homosexual acts are intrinsically sterile” (37:00, 54:00). He insists that broadcasting a message of “marry for keeps before you have children” is wholly compatible with gay marriage, and that recognizing the equal value and worth of gay relationships is not mutually exclusive with promoting married two-parent households as the ideal environment for child-rearing (42:00). This position is bolstered by the fact that Western legal traditions have always recognized sterile heterosexual marriages, a fact that has never been interpreted as denying that there is a morally significant connection between marriage and procreation.

Both Blankenhorn and Reno are civil and good-natured throughout the interview, and the exchange epitomizes the sort of productive disagreement of which we here at RM are so enamored. Blankenhorn’s quirky and deadpan sense of humor is also reliably entertaining, as for example when he tries to reassure Reno about his influence as a public intellectual by pointing out that he’s “not just some guy at a bar” (33:00). There are many points on which the two agree, including the need to understand marriage as a vital social institution (and not merely as a private contract between individuals) and the importance of building coalitions with those whose beliefs about marriage are very different from one’s own. Reno is at his most persuasive when discussing the unseen costs of applying libertarian ideas in the real world and when articulating his concern that “the vocabulary of civil rights” has made it difficult for many in the gay rights movement to cooperate with religious conservatives on a broader pro-marriage agenda (and vice versa) (34:00). After all, why cooperate with someone you think is a bigot?

But he is less persuasive in his attempts to show why legal recognition of gay marriage will be socially deleterious even if most same-sex couples just want to join the PTA and bake cookies, and he offers oblique responses whenever Blankenhorn tries to question him about the incongruity of it all. When Reno talks about “disenchanting taboo structures,” Blankenhorn voices confusion at the high level of abstraction, and even seems to wonder whether he is using actual words (1:07:00). This is not to deny that the cumulative social impact of a policy that is beneficial for specific individuals can nevertheless be undesirable, but only that Reno is fuzzy on detailing what the mechanism driving such a paradox might be in this particular case.

Reno is easily the least supportive of same-sex marriage out of all the guests that Blankenhorn hosts over the course of the series, and his views will clearly be at odds with those of the show’s more liberal viewers. That said, people who sit down to watch 90-minute videos about how to transcend a sterile culture war are generally self-selected for an openness to opposing viewpoints, so maybe that isn’t a problem. If you’re one of those people, you should go watch. And you should tell all of your moderate friends to start following RM, because… well, because we need pageviews. Keep ’em coming.

Blankenhorn and Haidt

I promised a while back (a long while back) that I would be doing a series of pieces on David Blankenhorn’s online interview show “The Conversation,” part of the Institute for American Values’ “Call for a New Conversation on Marriage.” Each video features Blankenhorn and one or more guests discussing ways that we might move beyond our polarized public debate about the future of marriage in American culture, which has for the past decade been concerned solely with the controversial issue of same-sex unions, and toward a productive dialogue about strengthening the institution more broadly.

My intention was to post my recaps in the order that the interviews themselves were taped, but I realized as I was about to publish my thoughts on Blankenhorn’s conversation with Rusty Reno that IAV had misdated one of the videos; his exchange with Jonathan Haidt of NYU actually took place in March and not, as indicated in the opening credits of the YouTube version, in June. Hence the (additional) delay in kicking off this series, which I hope to atone for by posting two recaps in relatively quick succession.

This first episode is entitled “Can We Get Beyond the Marriage Culture Wars?”, an appropriately foundational question to explore at the outset of an initiative that aims to do just that (one has the sense that it might be rhetorical). Haidt, a professor at NYU’s Stern School of Business who formerly taught at the University of Virginia, researches the psychology of morality and authored a book on the subject entitled The Righteous Mind: Why Good People Are Divided by Politics and Religion. The exchange is friendly and lighthearted throughout and offers some fresh perspectives on the marriage debate. That said, there are some aspects of the episode that could have been improved or even omitted, like the distracting and unexplained change in format midway through. To make it easier for you to skip around to the interesting parts, I’ve indicated in parentheses the number of minutes into the video that various points are raised.

Blankenhorn uses Haidt’s book as a jumping-off point for their conversation, and questions him about how the insights he develops therein are relevant to the marriage debate. One of these insights is the notion that “the rider serves the elephant,” (24:00) that contrary to our intuitive understanding of our own minds, our rational faculties are used more often than not to justify the prerational thoughts, feelings, and desires of our subconscious and our unconscious rather than to modify them or nudge them to conform more accurately to reality. This is consistent with psychological phenomena like “confirmation bias,” the tendency to interpret new evidence and information in a way that confirms rather than challenges what we already believe. Haidt argues that this makes dialogue and collaboration with others absolutely essential for intellectual and moral progress, since we all have blind spots that only other people will be able to detect and remedy.

How is this relevant to the debate over the meaning of marriage? Haidt explains that trying to change deeply entrenched beliefs and attitudes requires “talking to the elephant,” or crafting campaigns that use emotional appeals as a supplement to rational argument. He cites the example of last fall’s campaign for legal recognition of gay marriage in Maine (28:00), which he sees as a particularly effective instance of this type of engagement. (It should be noted that those on the losing side of a public debate tend not to see this as a particularly admirable tool of persuasion.)

Haidt also argues that all groups – be they tribes, societies, families, religions or social clubs – have “sacred values,” or ideals that animate them to such an extent that disrespecting those ideals is punishable by expulsion from the group (3:00). In many cases, those values which are professed to be sacred may not actually be sacred in practice, and those values which appear to be sacred under this definition may not be preached as such. What an individual or collective identifies as its highest principle is often not the principle that it actually defends with the most vigor.

When Blankenhorn identifies his own sacred value as “the free exercise of the mind,” Haidt launches into a discussion of contemporary academia and the disconnect between what many academics claim to value most and what they appear to actually value most (4:00). “If you want to make yourself not welcome at a dinner party [of academics] ever again,” he says, “falsifying your data would probably do it, but a surer route is to say something racist or sexist.” “Race and gender”, and not scientific truth, are what Haidt believes are the actual sacred values of the modern academy.

While Blankenhorn and Haidt spend a lot of time discussing the trajectory of the same-sex marriage debate up to the present day and IAV’s ambitious goal to “change the conversation,” they deal only superficially with what seems to me to be the more important variation on the titular question: how might we get beyond the culture war over marriage? The video features precious little in the way of concrete suggestions for how to turn Blankenhorn’s dream into a political reality.

We get some rough intuition for how this might work when Blankenhorn talks about how he sees a “shift on the left” with regard to whether or not marriage is perceived as good for society (57:00). He claims that back in the 1960’s and 1970’s, you “needed a search warrant to find liberals who had a good word to say about marriage,” and that many on the left saw marriage as a “prison” that was inextricably bound up with oppressive patriarchal norms. Blankenhorn believes that a number of critics of traditional family structures have had a change of heart as data has started coming in that marriage is “pretty darn good for kids” and as the “children of the divorce revolution have started sharing their stories.”

Yet the critics have not disappeared, and as far as Blankenhorn and IAV are concerned there is still work to be done. Haidt draws on the idea of sacred values to suggest that liberals might become even more sympathetic to a “pro-marriage agenda” (details of which are few and far between) if their attention were directed to the link between marriage and income inequality. He cites a New York Times article from the summer of 2012 entitled “Two Classes Divided by ‘I Do’,” (12:00) which he says made vivid for him the ever more salient connection between marital status and socioeconomic status in America, and even prompted him to become one of the signatories to Blankenhorn’s “Call.” In the latter part of the video there is a joking aside about how concerns about global warming can also be used to convince liberals that marriage is a vital social institution, since couples living together can share a single set of energy-hungry appliances (58:00).

But joking asides aside, there is a lot here that could be fleshed out further. For one, we never really hear about what tangible steps Blankenhorn or the Institute or anyone else could take to further this whole endeavor. What to do with the progressives once they’ve been roped in by concern about climate change? Blankenhorn jokes that the article’s author, Jason DeParle, is a “big liberal guy” who has “total credibility as not just some cranky conservative.” But he fails to explore how a fact like this might be leveraged in the service of some greater end. It isn’t enough to get the readership of the New York Times thinking about the connection between marriage and the plight of the working class, although that is important as a first step. What’s ultimately needed is a plan for how to get IAV’s objectives translated into a policy agenda, and then how to get that policy agenda noticed by legislators and others with the power to shape American law and culture.

Midway through the episode, Blankenhorn brings out psychiatrist and “old and dear friend and colleague” Kathleen Kovner Kline to join the conversation (45:00). But it isn’t clear why she is introduced at this point. Why not feature her as a participant in the discussion from the very beginning? Changing up the format midway through with little explanation struck me as an odd production decision. The inclusion of IAV scholar Elizabeth Marquardt, who joins the trio via telephone to report on questions being submitted by online viewers, made somewhat more sense, although I was puzzled as to why she couldn’t moderate an online discussion in person (maybe she had to actually climb down into the tubes to talk to people).

The latter half of the video features a wealth of great insights, including a story about a radio interviewer who Blankenhorn saw as embodying the stereotype of liberals only caring about marriage “if it has the word ‘gay’ in front of it” (55:00); musings about whether marriage is a force for conservatism, and whether the fact that gays are fighting to gain entry to the institution will transform them in addition to transforming it (59:00); a meditation on the uniquely modern view of marriage as a private contractual arrangement rather than a “social fact” (1:03:00); and a vivid metaphor from Jonathan Haidt involving electromagnets, Whole Foods, and political polarization (1:14:00).

This first episode of “The Conversation” has the potential to appeal to a wide audience because of the way that it approaches a controversial subject from novel directions and tries to get a handle on related issues that are important but that rarely get a hearing in the public square. As I’ve argued before, I think this can be an effective strategy for rebooting stalemated discussions – and a strategy that we at RM are trying to make use of ourselves.

Camosy on Labels

Fordham ethicist Charles Camosy, author of the wonderful, wonderful book Peter Singer and Christian Ethics: Beyond Polarization, wrote a column last week for the Washington Post’s “On Faith” series that took a close look at an important element of American political discourse: labels, and their all-too-frequent use as weapons by politicians, journalists, and even ordinary citizens. Camosy considers three labels in particular and examines their use in three specific and timely contexts.

The most striking aspect of his argument is not the fact that he thinks we should be more circumspect about how we refer to those with whom we disagree. Rather, it is his choice of examples and his deliberate effort to avoid the appearance of defending a single ideology that makes his case especially compelling.

The three labels that he takes up are “racist,” “radical,” and “bigot.” He relates the first to the trial of George Zimmerman, and maintains that the media behaved badly when covering it because they “distort[ed] the facts to fit the preordained racialized story.” A number of journalists have described Zimmerman as “white” when he is actually Hispanic. NBC was embroiled in controversy when it came to light that it had misleadingly edited the tape of Zimmerman’s 911 call to make it seem as if he had claimed Trayvon Martin looked suspicious because he was black. Observers can and will continute to debate whether or not this was what Zimmerman actually believed, but it is not what he actually said.

Camosy is careful about how he approaches this neuralgic subject and prefaces his remarks by insisting that “no one should compromise on principle of resisting the racist social structures in our culture of whiteness.” That said, he does take a position on the issue of Zimmerman’s putative racism and, insofar as the Martin case has become a proxy war for other issues in American politics (gun control, race relations, etc.), to defend Zimmerman is to take the “conservative side” in the debate.

The “radical” label takes Camosy to the recent clash over late-term abortion in Texas and the key role that Democratic State Sen. Wendy Davis played in trying to block passage of a sweeping set of restrictions on the practice. He rebukes the most strident supporters of these measures for calling their opponents “pro-aborts” and “radical feminists,” noting that those who say they want to “keep big government out of the private choices of women… need not be ‘pro-abortion’ any more than those who support the First Amendment are ‘pro-pornography.’”

Lastly, he considers the “bigot” label in the context of same-sex marriage. In his view, the rhetoric employed in the struggle over gay unions has “reached new levels of incivility.” He again makes his argument thoughtfully, decrying the fact that “those who oppose gay marriage are… labeled ‘bigots’ or ‘homophobic'” while acknowledging that “LGBT people continue to be subjected to horrific bigotry.” Since there was a time (not long ago) when gay marriage was a notion not seriously entertained by anyone, regardless of religious or political affiliation, Camosy rightly observes that to apply such a vitriolic label to its opponents is to claim that even someone as socially liberal as Barack Obama was a “homophobic bigot” a mere year or two ago when he supported civil unions but not same-sex marriage.

The end result is that Camosy comes across as defending a hodgepodge of causes that virtually no one would see as constituting a coherent set of political positions. His examples give the impression that he has pro-George Zimmerman, pro-choice (“bro-choice”?), and anti-gay marriage leanings. This combination is even more unusual than his actual political views, which were, as Ross Douthat recently put it, “once commonplace, [but are] now mythical.”

That’s precisely the point. Camosy means for his readers to be disarmed by this. Our discourse is rife with the hypocritical tendency to plead for tolerance of and sympathy for one’s own views or the views of one’s allies while denigrating those of others, and so it’s no wonder that we tend to be skeptical of any piece that bemoans bias against the author’s own worldview in the media or elsewhere while remaining blind to the ways in which that bias afflicts his opponents too.

But Camosy really means what he says, and he proves it by skillfully directing our attention away from the substance of his own personal opinions. Someone who defends his enemies is almost certainly being sincere. Camosy is able to effectively leverage that fact to make an otherwise trite argument credible and persuasive.

The Intellectual Peregrinations of Anthony Kennedy

I’m on the verge of finally posting the first installment in my promised series of pieces on David Blankenhorn’s online interview show “The Conversation,” but I felt that there would be an obvious lacuna in my treatment of the culture war over gay marriage if I failed to say something about last week’s Supreme Court rulings on the subject. Disclaimer: I am not a lawyer and have no specialized training in the law, so the following should not be taken as an attempt at professional legal analysis.

This past February, Chris and I were fortunate enough to meet (now former) Daily Beast blogger Andrew Sullivan when he was invited to speak at Haverford College. His talk was primarily concerned with the apparent contradictions in his identity; he began by announcing that he was “coming out” as a Christian, a conservative, and a homosexual – and that the last of those three was probably the least controversial at a place like Haverford.

In the course of illustrating how he reconciles what others often see as conflicting values and commitments, Sullivan explained that, while he personally supports the legal recognition of same-sex marriage (a cause that was brought into the public consciousness in part through his own pioneering work), he believes strongly that the issue should not be decided in the courts. Rather, it should be settled by the people, whether through popular referenda or the acts of state legislatures. In his view, contentious public debates are not ultimately resolved by the dictates of judges, but by the changing of hearts and minds as citizens enter into dialogue with one another. In the case of gay marriage, Sullivan sees acceptance as more likely to spring from the realization that one has gay friends, neighbors, and family members who aspire to form committed relationships than from the “intellectual peregrinations of Anthony Kennedy,” the justice generally considered the Supreme Court’s swing vote in tough cases.

I was reminded of that phrase when I read the opinions and dissents in the two same-sex marriage cases that were decided by the Court last week: United States v. Windsor, which dealt with the constitutionality of part of the 1996 Defense of Marriage Act (DOMA), and Hollingsworth v. Perry, which challenged California’s Proposition 8, a voter-enacted ban on recognition of gay marriages. The Windsor case in particular seemed to me to be an important example of what Sullivan was worried about.

Many outside observers had predicted that the Could would strike down Section 3 of DOMA, which prohibits the federal government from recognizing same-sex marriages that are performed in states where such unions are legal, on the grounds that it interfered with the traditional ability of states to regulate the definition of marriage for themselves. When it came to Proposition 8, the Court was seen as either dismissing the case for procedural reasons or otherwise finding a way to allow same-sex marriages to resume in California without mandating their recognition nationwide. To do otherwise would be to take sides in a volatile culture war. In both cases, these outcomes would be consistent with Sullivan’s pluralistic attitude about how a charged debate over social issues should proceed.

But this is not quite how things turned out. Helen Alvaré, a law professor at George Mason University, wrote after the rulings on Bloomberg’s SCOTUSblog that

[m]any likely expected that, to the extent that a discussion of the “nature of marriage” would feature at all in the Supreme Court’s same-sex marriage opinions, it would take place in the Hollingsworth v. Perry (Prop 8) case… Windsor (DOMA), it was widely thought, could well be decided upon federalism grounds: i.e. states’ traditional authority over the validity and incidents of marriage.   Instead, the Supreme Court’s discussion over the meaning of marriage took place in Windsor, albeit after a fairly extended, but ultimately inconclusive and nondispositive treatment of federalism.

Although Section 3 of DOMA was ultimately invalidated by relying in part on the concept of states’ rights, the Court also cited the fact that the law abridged the “equal liberty” guaranteed under the Fifth Amendment. The argument, authored by Kennedy, is esoteric. As I understand it, it is considered to be novel even by experts in constitutional law. In fact, it seems to me that it would not be inappropriate to label it an “intellectual peregrination.”

This is not to suggest that novelty in Supreme Court decisions is a bad thing. Cases that deal with hitherto unexamined constitutional questions will have to draw upon novel legal theories from time to time. The issue here is the fact that the argument seemed secondary to the sentiments the Court wished to express, and those sentiments came dangerously close to – as the title of Alvaré’s post puts it – “taking sides on the meaning of marriage.”

What do I mean when I say that argument was made secondary to sentiment? Ultimately, it is clear that the majority does not rely on the notion of states’ rights as the final justification for its decision, since it admits that

[b]y history and tradition the definition and regulation of marriage… has been treated as being within the authority and realm of the separate States. Yet it is further established that Congress, in enacting discrete statutes, can make determinations that bear on marital rights and privileges.

Rather, the final justification is the fact that DOMA was motivated by a “bare desire to harm” a politically unpopular group:

When New York adopted a law to permit same-sex marriage, it sought to eliminate inequality; but DOMA frustrates that objective through a system-wide enactment with no identified connection to any particular area of federal law. DOMA writes inequality into the entire United States Code.

The problem is that this line of reasoning begs the question of whether limiting the definition of marriage to opposite-sex couples does or does not represent a form of legally sanctioned inequality. It asserts what is still disputed by so many: that the right to same-sex marriage follows necessarily from norms of fairness and justice. In other words, the Court takes sides in the debate over the meaning of marriage.

Again, it was entirely possible for the majority to reach the same result by a less controversial logic. All that was needed was to embrace wholeheartedly the idea that is halfheartedly entertained at the outset of the opinion, and conclude that the enactment of DOMA interfered with the historical prerogative of the states to “define and regulate” marriage. Leaving the power to define marriage to the states could hardly have been assailed as judicial activism or progressive social engineering, and even those disappointed with the result would have been obliged to admit that the argument used to justify it was a neutral one.

The always colorful Antonin Scalia authored a scathing dissent in which he railed against what he saw as an implicit ad hominem in the majority’s opinion:

To be sure (as the majority points out), the legislation is called the Defense of Marriage Act. But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution. In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to “disparage,” ”injure,” “degrade,” ”demean,” and “humiliate” our fellow human beings, our fellow citizens, who are homosexual. All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence— indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.

Chief Justice John Roberts made a similar, if more measured, point in his own dissent:

The majority sees a more sinister motive [for DOMA], pointing out that the Federal Government has generally (though not uniformly) deferred to state definitions of marriage in the past. That is true, of course, but none of those prior state-by-state variations had involved differences over something—as the majority puts it—“thought of by most people as essential to the very definition of [marriage] and to its role and function throughout the history of civilization”… That the Federal Government treated this fundamental question differently than it treated variations over consanguinity or minimum age is hardly surprising— and hardly enough to support a conclusion that the “principal purpose”… of the 342 Representatives and 85 Senators who voted for it, and the President who signed it, was a bare desire to harm… At least without some more convincing evidence that the Act’s principal purpose was to codify malice, and that it furthered no legitimate government interests, I would not tar the political branches with the brush of bigotry.

While I admire Roberts (and I suppose Scalia too) for urging his colleagues to assume good faith on the part of DOMA’s defenders, it is somewhat disingenuous to maintain that there is no “convincing evidence” that animus played a role in its passage. A report of the House Judiciary Committee on DOMA, as quoted by Justice Elena Kagan during the case’s oral arguments, explained that “Congress decided to reflect and honor a collective moral judgment and to express moral disapproval of homosexuality” in passing the law. The lawyer defending DOMA before the Court responded that “we are not going to strike down a statute just because a couple of legislators may have had an improper motive. We’re going to look… [i]s there any rational basis[?]”

For Scalia, ordinarily a champion of textualism, originalism, and the need to consider legislative intent when interpreting the meaning of statutes, to elide this fact seems irresponsible. Of course, his position is that the defense of traditional marriage need not involve animus, and this is admittedly true – if in the world of 1996 more so than that of 2013. But it is not prima facie absurd to suppose that, for many of the lawmakers who voted for DOMA, their “expression of disapproval of homosexuality” did indeed shade into a kind of “disparagement of homosexuals.” We cannot prove this beyond a reasonable doubt, but we are hardly lacking evidence.

To supporters of same-sex marriage, some of the more benign justifications for DOMA proffered by the lawyers defending it may seem like desperate post hoc rationalizations. Nevertheless, in his 2012 opinion upholding the Affordable Care Act, Chief Justice Roberts quoted an earlier decision that held that “every reasonable construction must be resorted to [by a court], in order to save a statute from unconstitutionality.” In the case of Obamacare, this involved interpreting the “penalty” levied on individuals who fail to buy insurance as a “tax” that was legitimately authorized by the Constitution. The analogy isn’t perfect, but it captures the principle that a suspect interpretation of a law need not seal its fate if less nefarious interpretations are available (assuming that the law does not openly violate some other provisions of the Constitution).

Scalia also touches in his dissent on the issue of “scrutiny,” or the threshold used by the Court in a particular case to determine whether the justification for a law is an acceptable one. When federal laws employ racial classifications, for example, legal precedent has established that “strict scrutiny” must be applied; statutes that treat people differently on the basis of race have historically had such unpleasant motivations that any new laws of this sort must have a really good reason for discriminating as they do.

As Scalia points out, the Court does not say in Windsor that laws involving classifications dealing with sexual orientation require “strict” or even “heightened” scrutiny, and so it has implicitly bound itself to use the most “deferential” standard possible: so-called “rational basis review.”

In accord with my previously expressed skepticism about the Court’s “tiers of scrutiny” approach, I would review this classification only for its rationality… As nearly as I can tell, the Court agrees with that; its opinion does not apply strict scrutiny, and its central propositions are taken from rational-basis cases like Moreno. But the Court certainly does not apply anything that resembles that deferential framework. See Heller v. Doe… [which states that] a classification “must be upheld . . . if there is any reasonably conceivable state of facts” that could justify it…

Is there such a “reasonably conceivable state of facts”? Chief Justice Roberts believes that the claim that DOMA serves to create a uniform definition of marriage for the purposes of thousands of federal statutes and regulations suffices: “[i]nterests in uniformity and stability amply justified Congress’s decision to retain the definition of marriage that, at that point, had been adopted by every State in our Nation, and every nation in the world.” Again, I don’t mean to claim that homophobia had nothing to do with the process by which DOMA came into being (it almost certainly did), but only that there is a “reasonably conceivable state of facts” under which the law aims at a rational and legitimate purpose.

Like Andrew Sullivan, I was pleased with the outcome of Windsor, although I’m sure that it would have been all the more satisfying if I too had played a pivotal role in bringing America to this point. In his exuberance, however, he seems to forget some of what he had previously written about how he hoped the debate over same-sex marriage would play out.  I wish that he had been more consistent in his opposition to judicial partisanship, especially in light of his comments at Haverford a few months back. Sullivan is right to praise Anthony Kennedy for writing eloquently in the majority opinion about the equal dignity of gays, but he ignores his own criticism of the man’s penchant for peregrination when he supposes that that eloquence is enough – legally speaking – to make it the right decision.

Can We Find Common Ground in the Gay Marriage Debate?

I’ve been watching a fascinating series of video interviews that are being posted online by the New York-based Institute for American Values as part of an initiative called “A New Conversation on Marriage.” The Institute is a nonprofit think tank that was founded in the late 1980’s by the author David Blankenhorn to “study and strengthen civil society.” Despite identifying as a liberal Democrat, Blankenhorn and his organization have long been involved in causes that are traditionally championed by social conservatives, like promoting the value of two-parent households or proposing policies “to reduce unnecessary divorce.”

Until June 2012, when he published a New York Times op-ed reversing his earlier position, Blankenhorn was also one of the most visible opponents of the movement to legally recognize same-sex marriage. He changed his mind after coming to the conclusion that “the equal dignity of homosexual love” requires offering equal legal status to gay and straight couples, and that opposition to gay marriage had done little to strengthen marriage more generally or to counteract its “steady transformation in both law and custom from a structured institution with clear public purposes to the state’s licensing of private relationships that are privately defined.”

While this shift should hardly have come as a shock to anyone who had heard or read about – or seen dramatic reenactments of – Blankenhorn’s conflicted (and occasionally incoherent) testimony at the California Prop 8 trial in early 2010, it did alienate some of his conservative backers and board members and upset some liberal commentators uncomfortable with his continuing critiques of out-of-wedlock childbearing and single parenthood. The upside for him, as recounted in a more recent NYT profile, was that the realignment freed Blankenhorn to take up the task of building a new coalition of advocates for what Jonathan Rauch has dubbed “the family values agenda for the post-gay world.”

The result has been an innovative attempt to seek common ground in the marriage debate. The project was launched with the publication of “A Call for a New Conversation on Marriage: An Appeal from Seventy-Five American Leaders,” a document signed by a wide array of academics, clerics, lawyers, journalists and others. It lays out some guiding principles for how we might have a productive public discussion about marriage that both accepts the reality of shifting public opinion on issues of gay rights and acknowledges the concerns of social conservatives about the potential costs associated with an increasingly privatized view of adult relationships. It has continued with “The Conversation,” the YouTube interview series I mentioned at the outset.

Blankenhorn’s guests so far have run the ideological gamut. They have included Peter Steinfels, a pro-life Democrat and columnist for the liberal Catholic magazine Commonweal; Rusty Reno, a theology professor and editor of the traditionalist journal First Things (and an alum of my very own alma mater); Amy Ziettlow, a progressive Lutheran pastor and Huffington Post contributor; Charles Murray, a fellow at the American Enterprise Institute and co-author of a controversial book on race and intelligence entitled The Bell Curve; Glenn Loury, a Brown University scholar who was also Harvard’s first tenured black economist; and John Corvino, a gay philosopher and author of several books on homosexuality and gay marriage.

My goal is to put up some brief thoughts about each of the videos as I make my way through the series. So far I’ve found them to be well worth watching and chock-full of thought-provoking insights, although they do require a significant time commitment (the average length to date has been around 90 minutes).

The one downside is that Blankenhorn’s style and demeanor can be somewhat distracting; his opening exchanges with guests about their backgrounds and biographical details are often halting and awkward, and he outright forgets a question in mid-sentence during his interview with Rusty Reno. That said, he is generally quite skilled at playing Devil’s Advocate and at steering the conversation in interesting directions. I look forward to seeing where he steers the capital-C “Conversation” in future episodes.