The Uses of Crying Hate

For a variety of reasons, I don't want to write about the issues in Appling v. Doyle and am only doing media to discuss the issues presented by the case. I just don't think that going back and forth on the blogs would serve the clients' interest.

But I read a couple of things last week that do prompt me to write on a related issue. David Boies is a high powered New York lawyer who, along with Ted Olson, has brought a challenge to California's Proposition 8 banning same-sex marriage in that state. In a column in the Wall Street Journal, he offered a defense of his clients position. It was, from a legal standpoint, rather weak and largely given over to assertions that opposition to same sex marriage could be based in nothing other than hate and fear. A rather devastating response to Boies by high powered Washington lawyer, Charles Cooper, appeared in the Journal's letters section a few days later.

Locally, a woman named Maria Cardenas wrote an op-ed suggesting that opposition to same sex marriage - or at least to the domestic partner registry - can only be based in hate and fear.

I realize that, to some extent, this is a rhetorical and strategic ploy. It behooves Boies and Cardenas to have their opponents seen as hateful and the issue to be framed as one about sexual liberty and discrimination. Over the past 40 years, our public morality has been of one mind about those. Sex is good. Discrimination is bad.

But it seems to me to be the ultimate form of hate to deny the human subjectivity of those you disagree with. And that is precisely what Boies and Cardenas are doing. They refuse to respond to - or even acknowledge - the arguments that their opponents make. They presume bad faith. They strive to define those who disagree with them as "the other" - someone outside the circle of civil society.

I assume that Cardenas truly believes that. She wants what she wants and is understandably miffed by those who say she can't have it. (Boies is a skilled litigator who knows which arguments sell so I'm not sure.) But the belief that opposition to same sex marriage is rooted in some form of hate is fear is simply false. And its wrong, I think, to engage in that type of attempted ostracization and objectification of one's opposition.

There are straight people who have a visceral reaction to homosexuality. The idea of it is repulsive. Most of them, however, put that aside. Some do express it in hateful ways. A few even express that hate in religious terms, not appreciating that Christian Hate is an oxymoron. But these aren't the church people behind the marriage protection movement.

Of those within that movement, there are, of course, many who believe that homosexual conduct is sinful. I am not one of them, but I think it's wrong to suggest that they are, for that reason, "hateful." They have a great deal of tradition and history behind their position. This has been - and still overwhelmingly is - the position of the Abrahamic faiths. While this may be a religious justification for feelings of revulsion or for preservation of a purity code (the Roman Catholic theology of the body is far more sophisticated and much different than that), there is a distinction between hating someone and thinking they are doing something wrong and that will, in fact, harm them. This is so even if you think that belief is mistaken. Gays and lesbians understandably object to the charge that they are engaged in wrongful conduct, but it is not accurate to say that those who believe otherwise either "hate" or "fear" them.

Finally, there are those - and this would be me - who make no judgment on the morality of same sex relationships. They believe that same sex marriage or the creation of a marriage-like state for couples other than one man and one woman would, over time, change our traditional understandings and expectations of marriage in a way that would weaken it as the preferred vehicle for heterosexual relationships.

Once again, there seems to be a concerted effort to mistate and deliberately misunderstand this argument. It is not predicated on an assumption that homosexual relationships are "worse" than heterosexual ones (although it does reflect a belief that children, not always but in the great run of cases, are best off when raised by their biological parents who cannot, of course, be a same sex couple)or that gay and lesbians do not love one another. It is not an argument that Mary will divorce Joe on Tuesday because Bill and Tom moved in next door on Monday.

Nor is it anything like discrimination against blacks. Racial discrimination was predicated on an assumption that blacks were inferior human beings whose participation in all of civil society should be surpressed and segregated. The idea that blacks and whites should not marry was not the central feature of that belief, but an incident of it.

Opposition to same sex marriage says nothing about participation of gays and lesbians in civil society. It does not imply - or even provide support for - discrimination in housing, employment and public accomodations. It does not suggest that homosexuality should be criminalized or that gays and lesbians should be ostracized.

It does not even say, contrary to the repeated assertions of supporters of same sex marriage and the domestic partner registry, that same sex couple can't visit each other in the hospital or make medical decisions for one another. It only says that those rights ought not to be created by conferring a marital-like status and, of course, it is not necessary to do so to ensure that they are respected (if, in fact, they are not.)

I don't expect that anyone will read this and, while retaining their support for same sex marriage or the registry, dial down the rhetoric. But these are the facts.