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.