North Carolinians have overwhelming approved (with about 61 percent of the vote) an amendment to their state constitution to ban same-sex marriage. As Chris Cillizza notes, 28 states now have constitutional prohibitions, while a further ten have legislative bans — Massachusetts, Iowa, Vermont, New Hampshire, Connecticut, New York, and the District of Columbia are the only places in the U.S. where gay marriage is legal.
Polling in the Tarheel State consistently showed a generation gap, with younger voters being generally less supportive of the ban, a finding in tune with national surveys. Is this a tectonic shift in Americans’ attitudes, or will today’s youth become more conservative with age, as they have families of their own? The former, I suspect, but that doesn’t mean voters will remove the ban in 10 or 20 years — the North Carolina constitution still disqualifies from office “any person who shall deny the being of Almighty God” and requires voter literacy, two provisions that no one nowadays would consider trying to enforce, but that no one is organizing to repeal, either. The federal courts and Voting Rights Act render those restrictions moot. (As Duke law professor Mike Munger tells the Charlotte Observer, “The screaming, excruciating paradox” of the amendment “is that supporters wanted to take this out of the judges’ hands. Clearly it will have the opposite effect. … There will be litigation, and judges will have to decide what the darn thing means.”)
Neither the Christian right nor marriage-equality campaigners are going away, and neither side seems content with a federalism that lets North Carolina be North Carolina and Iowa be Iowa. But the dynamics of the issue at the federal level are quite different from those of each state taken individually. Amending the U.S. Constitution is nowhere near as easy as amending the several state constitutions: it’s hard to imagine an amendment either banning or imposing same-sex marriage nationwide getting the necessary two-thirds majority in both houses of Congress; nor does the alternative path to an amendment, an Article V convention called by two thirds of state legislatures, seem likely. This leaves the ongoing gay-marriage fight to the federal courts, terrain that doesn’t favor the side of traditional marriage. Not only liberal Democrats but top Republicans like Ted Olson are happy to see the federal bench overrule state bans.
The courts are not very adventurous these days, but when they think the public has moved far enough in the direction of gay marriage — easily within 20 years, assuming the younger generation keeps going the way it’s going — they will strike down a state ban and marriage equality, as its supporters call it, will prevail nationwide. North Carolina’s constitutional language on the matter will be as inoperative as its voter-literacy and faith-test provisions.
In order for opponents of same-sex marriage to succeed in the long term, they would have to do a better job of inculcating their worldview in their own children. My earlier essay on gay marriage points to structural reasons why inculcating that worldview is becoming increasingly difficult. The historical, institutional, and philosophical foundations of the Christian view of marriage are eroding, and while a certain set of right-wing attitudes is one of the successors to the ambient Christianity of old, the prevailing philosophical-institutional matrix of our era is distinctly liberal and egalitarian. (Note that even the European far right, delusively considered to be a “real” right by some American foes of multiculturalism, is in fact increasingly progressive in its attitudes toward homosexuals and abortion.)
There aren’t so many homosexuals in general, let alone those who want to be married, that gay marriage can be expected to have much practical impact on American family life. What’s really at stake are the values communicated by our institutions: liberal values of tolerance and equality or broadly Christian values that differentiate virtue from sin. But should Christians look to the institutions of a modern, liberal, mass democratic state to uphold their values?
The tendency of democracy, in values conflicts as well as economic policy, is to look to short-term, easy fixes that aren’t fixes at all: temporizing measures that placate voters and keep power-seeking coalitions together, but that leave the larger forces of culture to work their logic without citizens even being conscious of what’s happening. Amending fundamental law to ban gay marriage when Americans have already created a culture that insists on equality — in all things but wealth — only turns constitutions into op-ed pages.