The Iowa Supreme Court made history today by upholding a district court’s previous ruling concerning section 595.2 of the Iowa code, which states the marriage in Iowa is defined as a union of one man and one woman. The decision strikes the language from the Iowa Code that limits civil marriage to a man and a woman. It goes on to direct that the “remaining statutory language be interpreted and applied” in a way that allows “gay and lesbian people full access to the institution of civil marriage.”
Camilla Taylor of Lambda Legal commented on the decision:
“Today the dream becomes reality … and Iowa constitution’s promise of equality is fulfilled. Iowans have never waited for others to do the right thing. Iowa took its place in the vanguard of the civil rights struggle, and we couldn’t be more proud to be part of this.”
When one frames the debate in terms of civil rights and equal protection as the Iowa Supreme Court did, one is left wondering why polygamy would be ruled out under such logic. Piece’s like this one written by Slate’s William Saletan which argue against the similarity between the two seem to actually establish it. Saletan’s friend Charles Krauthammer asks “If, as advocates of gay marriage insist, the gender requirement is nothing but prejudice, exclusion and an arbitrary denial of one’s autonomous choices,” then “on what grounds do they insist upon the traditional, arbitrary and exclusionary number of two?” Saletan’s response:
“Here’s the answer. The number isn’t two. It’s one. You commit to one person, and that person commits wholly to you. Second, the number isn’t arbitrary. It’s based on human nature. Specifically, on jealousy.”
Saletan then goes on to argue that polygamous unions have innate problems that traditional partnerships don’t. They are more unstable and thus more apt to break down, and they go against the natural order of things. But opponents of gay marriage make the same arguments and are often able to marshall empirical data to support it. While the famous Dutch Study that found that men in the Netherlands who were in “steady partnerships” still had on average eight sexual partners per year is problematic for a number of reasons (click here for a summary of them), other studies like The Social Study of Sexual Organziation which make similar points seem more reliable. But statistics and studies aside, do we want to base legislation concerning marital unions on perceptions of the order of nature or on sexual practices of some groups that some find disturbing? Isn’t this exactly the sort of rhetoric social conseratives engage in to the chagrin of most advocates of gay marriage? Do gay marriage advocates now want to conveniently start employing it?
It may seem absurd and abstract to challenge the logic of Supreme Court decisions like Iowa’s on the basis of the possible claim to the right to polygamy. But I recall just last year having a conversation with a Saudi Arabian friend studying law in the United States about this very question. He asked me how in America, the land of religious freedom, he was not free to practice polygamy, something not all proscribed by his Muslim faith. Could he appeal Iowa’s code on the same equal protection logic? Do we have the right to redefine marriage along the lines of gender but restrict participation in the institution to couples? Can we tell my Muslim friend that gays and lesbians have the right to demand that we redefine marriage on grounds of sexual orientation but that he does not have the right to request the same redefinition along religious lines?
Yes. We do have this right legislatively. We can as a people make laws that define civil marriage, and in my opinion we ought to define the institution in such a way that provision is made for the full inclusion of gay and lesbian couples. But we ought to do it carefully through deliberative legislative bodies that include the voices of all the people through their elected representatives. This allows us to make careful distinctions and to define the institution in ways that make sense and benefit the common good. It also allows us to innovate and redefine tradtional understandings all the while ruling out things like polygamy. Making space for gay marriage through judicial action may not safeguard such possibilities, and also serves to create the sort of backlash we saw with California’s Proposition 8.
Accomplishing good political ends by good political means is always difficult and tries the patience of the most forebearing souls, as Max Weber reminded us in his masterful little lecture “Politics as a Vocation”, which concludes as follows:
Politics is a strong and slow boring of hard boards. It takes both passion and perspective. Certainly all historical experience confirms the truth –that man would not have attained the possible unless time and again he had reached out for the impossible. But to do that a man must be a leader, and not only a leader but a hero as well, in a very sober sense of the word. And even those who are neither leaders nor heroes must arm themselves with that steadfastness of heart which can brave even the crumbling of all hopes. This is necessary right now, or else men will not be able to attain even that which is possible today. Only he has the calling for politics who is sure that he shall not crumble when the world from his point of view is too stupid or too base for what he wants to offer. Only he who in the face of all this can say ‘In spite of all!’ has the calling for politics.