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What if gays were straight?
The question is absurd—gays are defined as not straight, right?—yet increasingly central to the debate over civil-marriage rights. Here is how California’s Supreme Court put it in a key passage in its now-famous May 15 ruling that gay couples in California must be granted the right to marry, with no qualifications or euphemisms:
These core substantive rights include, most fundamentally, the opportunity of an individual to establish—with the person with whom the individual has chosen to share his or her life—an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage.
What’s notable here is the starting point of the discussion: an “individual.” The individual citizen posited by the court is defined as prior to his or her sexual orientation. He or she exists as a person before he or she exists as straight or gay. And the right under discussion is defined as “the opportunity of an individual” to choose another “person” to “establish a family” in which reproduction and children are not necessary. And so the distinction between gay and straight is essentially abolished. For all the debate about the law in this decision, the debate about the terms under discussion has been close to nonexistent. And yet in many ways, these terms are at the core of the decision, and are the reason why it is such a watershed. The ruling, and the language it uses, represents the removal of the premise of the last generation in favor of a premise accepted as a given by the next.
The premise used to be that homosexuality was an activity, that gays were people who chose to behave badly; or, if they weren’t choosing to behave badly, were nonetheless suffering from a form of sickness or, in the words of the Vatican, an “objective disorder.” And so the question of whether to permit the acts and activities of such disordered individuals was a legitimate area of legislation and regulation.
But when gays are seen as the same as straights—as individuals; as normal, well-adjusted, human individuals—the argument changes altogether. The question becomes a matter of how we treat a minority with an involuntary, defining characteristic along the lines of gender or race. And when a generation came of age that did not merely grasp this intellectually, but knew it from their own lives and friends and family members, then the logic for full equality became irresistible.
This transformation in understanding happened organically. It began with the sexual revolution in the 1970s, and then came crashing into countless previously unaware families, as their sons and uncles and fathers died in vast numbers from AIDS in the 1980s and 1990s. It emerged as younger generations came out earlier and earlier, and as their peers came to see gay people as fellows and siblings, rather than as denizens of some distant and alien subculture. It happened as lesbian couples became parents and as gay soldiers challenged the discrimination against them. And it percolated up through the popular culture—from Will & Grace and Ellen to almost every reality show since The Real World.
What California’s court did, then, was not to recognize a new right to same-sex marriage. It was to acknowledge an emergent cultural consensus. And once that consensus had been accepted, the denial of the right to marry became, for many, a constitutional outrage. The right to marry, after all, is, as the court put it, “one of the basic, inalienable civil rights guaranteed to an individual.” Its denial was necessarily an outrage—and not merely an anomaly—because the right to marry has such deep and inalienable status in American constitutional law.
The political theorist Hannah Arendt, addressing the debate over miscegenation laws during the civil-rights movement of the 1950s, put it clearly enough:
The right to marry whoever one wishes is an elementary human right compared to which ‘the right to attend an integrated school, the right to sit where one pleases on a bus, the right to go into any hotel or recreation area or place of amusement, regardless of one’s skin or color or race’ are minor indeed. Even political rights, like the right to vote, and nearly all other rights enumerated in the Constitution, are secondary to the inalienable human rights to ‘life, liberty and the pursuit of happiness’ proclaimed in the Declaration of Independence; and to this category the right to home and marriage unquestionably belongs.
Note that Arendt put the right to marry before even the right to vote. And this is how many gay people of the next generation see it. Born into straight families and reared to see homosexuality as a form of difference, not disability, they naturally wonder why they would be excluded from the integral institution of their own families’ lives and history. They see this exclusion as unimaginable—as unimaginable as straight people would if they were told that they could not legally marry someone of their choosing. No other institution has an equivalent power to include people in their own familial narrative or civic history as deeply or as powerfully as civil marriage does. And the next generation see themselves as people first and gay second.