Wednesday, October 07, 2020

Laying to Rest Old Wrongs

Guest Blogger

For the Balkinization symposium on William N. Eskridge, Jr., and Christopher Riano, Marriage Equality: From Outlaws to In-Laws (Yale University Press, 2020).

Robin Fretwell Wilson

For a book threaded through with journey stories (e.g., 204, 212, 237, 247, 257, 440, 487, 666), we should not miss in these pages the unspoken story of understanding and forgiveness between once bitter adversaries.

I first met Bill Eskridge, with whom I would later do a book on the Prospects for Common Ground in our seemingly unending culture war, when I was seated next to him and Maggie Gallagher on a panel of academic luminaries that included Emory’s Martha Fineman and Notre Dame’s Peg Brinig. It was January 2004. Maggie, who would become the “one-woman think tank for” the ultimately doomed Federal Marriage Amendment and a founder of the National Organization for Marriage (262, 368, 369), was seated to my right. Bill was seated to her right. Still a relatively new faculty member, I was nervous. Before the panel began, I stepped out for water and, frankly, to compose myself. I returned for the panel’s start to find an empty chair between Maggie and Bill. Confused, I took the seat that was left for me. I should have worn a flak jacket. The animosity rippling between Maggie and Bill was palpable.

At that point, the culture war over same-sex marriage had begun in earnest: Goodridge v. Department of Public Health had recognized the right of same-sex couples to marry only two months before. Marriage Equality chronicles the fever pitch at that moment. As one barometer, although the “jurists in the [Goodridge] majority expected criticism for their big move, … the reaction was worse than they imagined.” “One person wrote, ‘We pray every day that you all get cancer and rought [sic] in hell.’” (225) The first gay couple to marry in the US, Jack Baker and Michael McConnell (5), would tie the knot four months later, on May 17, 2004 (224). 

Little had changed when I encountered Bill and Maggie again in September 2010 at a “Consultation” convened by Brookings Senior Fellow for Governance Studies Jonathan Rauch about Achieving Disagreement Over Same-Sex Marriage. By now, the battle over same-sex marriage had reached a fever pitch—“In September 2010, there were still only five marriage equality states” (525) although some had voluntarily embraced same-sex marriage in legislation. Two group of scholars, one led by me and one by Professor Douglas Laycock, had worked with lawmakers to include step-offs for churches and religious organizations (353), so I had a better sense of the titanic clash being waged between proponents and opponents of same-sex marriage. This time I was seated between Bill and Maggie at dinner.  Dinner was an icy affair.

So, imagine my surprise when my review copy of Marriage Equality arrived, and I found that Maggie Gallagher had contributed a jacket blurb. Her gracious words echo the gracious treatment she receives in its pages. Understanding the healing that this small gesture reflects is important to finding a détente to in our endless culture war over LGBT rights.

Like many social movements, the group that opposed same-sex marriage included people who started from very different premises but coalesced around the idea that marriage must be limited to heterosexual couples.  Here, the authors do yeoman’s work untangling those different voices and laying bare their priors. Social conservatives who want to understand their own coalition should read this book—it is succinct, insightful, illuminating.

In the tent opposing same-sex marriage were a number of conservative luminaries— “former judge Robert Bork, …Gerry Bradley (Notre Dame), and Mary Ann Glendon (Harvard)” (258)— but the principal intellectual powerhouses were Maggie Gallagher and Robby George (Princeton), who proceeded from very different places. 

The book movingly recounts Maggie’s experience as a single mother raising her first son, who never grew up in the same household as his biological father. The authors connect Maggie’s grief about this hole in her son’s life to her work on fatherlessness and especially to her concern for the “fragile status” of traditional marriage. (252)

One quickly gets the sense that marriage is choate, a thing in existence that deserves society’s protection and solicitude, like a third person in the room. Among other things, marriage confers:

Relational Joy. Interpersonal commitment is necessary for human flourishing. Marital sexuality seals and deepens the connection between the spouses and, at the same time, deepens their connection with their children. (252)

The Marriage Movement: A Statement of Principles (2000), for which Maggie was a key drafter, put it this way: “Marriage is a productive institution, not a consumer good. Marriage does not simply certify existing loving relationships, but rather transforms the ways in which couples act toward one another, toward their children, and toward the future.” (253) And perhaps most important given the number of families forming outside marriage (Fig. 1, 254; 271 n. 51), marriage, in this account, channels sexuality in a prosocial way. Quoting Maggie’s work at length:

“Marriage is the way in which every society attempts to channel the erotic energies of men and women into a relatively narrow but highly fruitful channel—to give every child the father his or her heart desires. Above all— normal marriage is normative. Marriage is not primarily a way of expressing approval for an infinite variety of human affectional or sexual ties” such as friendship or a sexual relationship. “It consists, by definition, of isolating and preferring certain types of unions over others.”  (254)

Of course, nothing about this vision of marriage need exclude gay couples. Whatever message “Adam and Steve” marrying would send about marriage (261)—in Marriage Equality’s shorthand, that “marriage is all about two people’s romantic relationship—not about children, society, or the future of the human race” (261)— is upended when gay and “lesbian couples raise children,” as the authors observe. 

More difficult for opponents, same-gender marriages are tiny in scale compared to the social forces that wrested sea changes in marriage and family formation:  assisted conception, no-fault divorce (40, 45, 64, 134, 267, 262, 277, 288, 345, 582, 606, 622, 732, 732, ), nonmarital child-bearing, cohabitation (44, 45, 252, 253, 311, 321, 422, 588, 606, 608, 611, 682, 712, 716, 717, 718, 719, 720, 732, 787), contraception (45, 598, 604, 655, 713). Gay couples were never going to account for more than a small sliver of marriage or nonmarriage rates. It was the least of marriage’s worries.

The twin commitments of social conservatives, that marriage is good for adults and good for children, ultimately doomed the campaign against same-sex marriage. That marriage shores up couples and insulates them from adversity—that it supports the “lifetime commitment” between couples like April DeBoer and Jayne Rowse and provides “a more stable environment for their children” (256) –is the very basis for the Supreme Court’s decision to open marriage to loving couples in Obergefell v. Hodges. 

With hundreds of thousands of children being raised by gay couples when Obergefell was decided— with some children placed in these homes by the state (e.g.,177)—it is little wonder that skilled litigators like Shannon Minter legal director at the National Center for Lesbian Rights, among others, pierced “the Maginot line” (248) that Maggie and others sought to draw around heterosexual marriage. On the (traditional) marriage movement’s own terms, excluding loving couples with children from marriage’s protections was a line that should never have been drawn, much as “Bowers was wrong the day it was decided.” (266)

Still, Marriage Equality describes Maggie in almost admiring terms. Although “she has irritated gay people with her blunt rhetoric and take-no-prisoners debating style” (251), she “treated gay people with respect and, in person, great affection.” (251) Maggie, the authors note, was “anti-anti-gay.” (251) “A poised and confident public intellectual,” she publicly distanced herself from “unashamed bigots—including racists who also hated homosexuals.” (279) The authors urge readers to “evaluate [Maggie] based upon her actual theories and arguments.” (251)

Marriage Equality signals the way out of ending our endless culture war over LGBT rights. They note that “For some of the same reasons Maggie Gallagher wanted two parents for her son, April and Jayne wanted two parents for [their son,] Nolan.”  (281)

President Abraham Lincoln taught us more than a century and a half ago that if we are to heal the rifts that divide us, we have to remember that we “read the same Bible, and pray to the same God; and each invokes His aid against the other.

The generous treatment Maggie receives may be because Maggie has faded away after Obergefell. The post-Obergefell culture wars over, as one example, trans people and public accommodations are not hers. They are in squarely in the mold of “get off my planet.

Not all opponents of same-sex marriage have faded away, and not all come in for such generous treatment. “Religion-based defenders of traditional marriage often demonized homosexuals in abusive, stereotype-driven terms,” (251) the book notes. The shocking examples cited in the book speak for themselves, including this from 1997: “Homosexual living arrangements under the guise of marriage are not only sterile, incapable, and insufficient, they are destructive to the very fabric of our society. The strategy to inculcate active homosexual practice into our society as a favored institution is synonymous with injecting a cancer into a healthy body.” (251) One would hope, nearly a quarter century later, that no one still believes such things.

If we are to ever call a truce in our perennial culture war, we would all do well to follow Bill and Maggie’s example, and lay to rest old wrongs.

Robin Fretwell Wilson is Mildred Van Voorhis Jones Chair in Law, University of Illinois College of Law, and Director, Institute of Government and Public Affairs, University of Illinois System. You can reach her by e-mail at

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