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He Who Must Not Be Fisked
08/06/2003

Some writers are notable for the way in which they leverage common sense and humor to prove a point. The casual tone often taken to accomplish this somehow makes the reader feel as if the author so thoroughly understands the subject matter that he has found its underlying significance and can address it at that level. When we agree with the conclusion, there is no opinion writing more satisfying.

When we disagree with a particular conclusion of an author who is particularly brilliant in this way, however, we might be inclined to ponder three possibilities: "I am wrong on this issue," "I forgive — even to the point of not seeing — the author's intellectual shortcuts when I do agree," or "the author's just wrong on this one, and naked holes are an indication that he knows as much deep down." In the case of James Lileks's piece about gay marriage, my admiration for the author's usual touch is such that I think I'd best take it point by point. This may look like a fisking, but we all know that one simply does not fisk James Lileks (in public). When doing so takes a position contrary to that held by both Instapundit and Andrew Sullivan, the fisking would simply be a waste of time. Therefore, I must strenuously insist that I am merely taking apart Mr. Lileks's piece in order to discern where I have gone astray in my handling of the issue of gay marriage such that I disagree with the princes of the blogosphere.

So now we're after a constitutional amendment that defines marriage as a guy-and-gal thing. To the founders, this would have been like an amendment requiring the sun to rise in the east; it would fall under the category of obvious truths that the Constitution need not address.

True enough, although then we might reasonably ask whether taking this as a "given" enabled the founders to take any other important foundations of that which they founded as given. In other words, the question becomes whether this particular aspect of American society is important enough to the operation of the country that it ought to be written into the Constitution now that it can no longer be taken for granted.

But times have changed. Times are always changing. Things like gay marriage would have made your average 18th century political theorist swoon with vapors, but so would female voting rights and the wide-eyed notion that people really ought not own other humans and make them harvest cotton in leg irons. Who knows what amendments will be on the table in 2103?

Why, I do believe you are correct, Mr. Lileks. The world changes. I imagine the founders, themselves, were aware of this truth. But not all changes are equivalent in implication, particularly in their implications for the structure of our society. Apparently we, as a society, discerned that the denial of voting rights to women was decidedly not something on which the structure of our society depended (particularly once women no longer suffered from the travesty of a lack of education and independence). Something similar is true of slavery, an issue that was, indeed, raised in those founding board meetings and whose resolution then might have avoided a Civil War.

So then, Mr. Lileks, what are the various implications of gay marriage?

The 34th Amendment: Grants citizenship to robots.

35th Amendment: Extends the Second Amendment to robots.

36th Amendment: Repeals the 34th and 35th Amendments AS QUICKLY AS POSSIBLE and bans robots entirely.

The 46th Amendment: Rescinds the previous 45 and replaces them with the Law of the Zorg Continuum, the new rulers of the Milky Way!

Apart from imagining future amendments that apparently will prove ill-advised, what does this have to do with gay marriage?

We'll see. For now, we'll grapple with the fallout from the decision in the Texas case. Perhaps this wasn't a constitutional issue, but matters of constitutional law interest only those who pay attention to such things, and most don't. Most people saw this as a case about two guys who got arrested for whooping it up in the privacy of their home, and most people aren't comfy with anti-whooping laws.

Okay, I'll go along with that. The public isn't necessarily interested in considering the constitutional ramifications of particular legal cases, and anti-whooping-in-private laws are seen as tipping the scale that balances group rights (as expressed through the government) and individual rights. I suppose it might fit, here, to argue over whether the inevitable lack of interest in the minutia of the Constitution among the general populace was one factor that led to our having a representative form of government, and one that separated the lawmakers from the law interpreters. But let's put that aside until we've covered the more-central question of how this lesson about bedroom behavior transfers to the public arrangement of marriage.

If the Texas policemen were knocking down the doors of heterosexual couples for doing anything besides the state-sanctioned positions for connubial friction, the law would have been off the books years ago. People's tolerance for this sort of Comstockery is greatly diminished when the state bans consensual jollies and enforces the law at gunpoint.

Okay, James, I got it: the public only wants handcuffs and badges in the bedroom if it is a consensual matter. Oh sure, there were other states that had equal-opportunity sodomy laws, but let's get to that gay marriage thing that your column's supposed to be about.

If you think that this will inevitably lead to bigamist incest with polygamist animals, fine, we can have that argument. But this was about a law some regard as the legal equivalent of a head on a pike -- a warning, a sign. A cautionary example.

Actually, it would seem that it would be pointless to "have that argument" now that the Supreme Court has locked the public out of the private affairs of consenting adults. Anyway, let's move on to the argument about gay marriage, shall we?

Some want statutory condemnation as a symbol of society's values -- fine. But if you want something to be against the law, then surely you want that law enforced. And if you want the law enforced, then allegations should be investigated.

Is the gay marriage verse coming around on the guitar any time soon? Because that was what your title promised, and that was what I read the previous 333 words to get to.

There's no shortage of brazen sodomites out there; ought not they be investigated and prosecuted? If you say yes, then everything the left says about JOHN ASHCROFT'S AMERICA is true. If you say no, then you want the law to be a hypocrite.

Okay, James. Not only are you beating a dead horse within your column, but you're beating a dead horse in the society of the United States: the Supreme Court has already ruled on this one. Let's move ahead, 'kay?

No. Many who like the anti-sodomy laws want them intact, defended, displayed -- and ignored. Most don't care what consenting adults do for fun in a Texas bedroom as long as they don't frighten the horses.

Yup, no noisy sodomy... and leave the horses alone (even the dead ones). Now what about...

But gay marriage -- that's another issue.

Finally!

Does gay marriage threaten heterosexual marriage? Of course! Who knows how many women woke last week to find notes on the kitchen table: "Dearest Wife, now that homosexual sodomy is legal in Texas, I have to go try it. Took the cell phone. Farewell."

Huh? Are we talking about marriage or sodomy, now? Who argued that gay sodomy had to be banned because it was the last thread keeping heterosexual husbands from leaving their families?

No, if heterosexual marriage is threatened by anything, it's by heterosexuals. Famous heterosexuals in particular. We see them grinning from the covers of gossip mags, celebrating wedding No. 9 or dissolving marriage No. 14, or just having a hot fling with whatever good-gened, white-toothed cretin is the flavor of the season.

Yep, famous heterosexuals' public attitude toward marriage and fidelity is certainly one of the problems and one of the symptoms of the larger problem, these days. No doubt about it. Now why does that indicate that we ought to add famous homosexuals to the list? Famous people seem to crash their cars at a higher rate, too. Does that mean we should start giving driver's licenses to blind people?

People don't get divorced because Demi did. That's not the point. But because the culture attaches no particular stigma to divorce or catting around, our pop-culture heroes don't even have to pretend anymore. Say what you will about gay marriage, it's nice to see someone taking the institution seriously.

Is this column about divorce or about gay marriage? And who's taking the institution "seriously"? Gays can't marry, yet, in order to prove seriousness. And how does your argument that straights no longer uphold fidelity as intrinsic to marriage address a single objection to gay marriage? For one thing, I haven't seen homosexuals coming forward with gay-marriage-rights proposals in one hand and stronger-divorce-law proposals in the other.

Would a constitutional amendment on marriage pass? Probably. Would states allow "civil unions"? Probably. Would the republic endure? Sure. If you're opposed to gay marriage, don't have one. If you want to defend traditional marriage, stay married.

So are you for gay marriage? Or are you for the amendment and the state-by-state institution of "civil unions" so that the republic can "endure"? The evocation of the "don't have one" cliché suggests that you're for gay marriage. It also glosses over the fact that you never addressed the differences between private behaviors and public recognition of social arrangements. A good place to start in remedying that failing would be contemplating the difference between gay marriage's potential effects on "a marriage" and its effects on "marriage."

But keep your eyes on those robots.

They're up to something.

I hope that's a sly way of letting the reader know that this column was written by a prototype automated Lileks Column Confabulator. Otherwise, I might find it necessary to assume that James Lileks simply hasn't thought the issue of gay marriage through sufficiently to write about it at his usual level and to suggest that he not write about it until he has done so. Of course, that would require him to resist the lure of links from those who find the column clever simply because it comes to their conclusion... I think.

Posted by Justin Katz @ 12:45 AM EST