*The U.S. Supreme Court’s decision to finally hear cases on America’s emerging cultural shift, gay (or same sex) marriage puts America, front and center, in the dominant culture shift of the day. After a decade of state initiated attempts to mainstream gay marriage were confronted with legal and cultural challenges, and years after the federal government passed a law (Defense of Marriage Act) defining marriage as between a man and a woman, the courts will decide if culture trumps law. The Court will take up the California case (the validity of Proposition 8) and the validity of the Defense of Marriage Act. Generally, it takes the law some time to catch up to culture shifts, and it takes culture shifts some time to catch on with the rest of society. We’ve witnessed it with race, citizenship and gender equality. We are now witnessing it with sexual orientation equality.
The challenge confronts America’s oldest institution, marriage. Unlike America’s second oldest institution, racism, marriage is practiced (or desired to be practiced) by all-at least once in their life-and is cherished by most. The biggest impediment to a cultural shift on marriage has been the nation’s third oldest institution, religion. The church has evolved in many ways. Marriage ain’t one of them. The controversiality of gay marriage in the church is tied to the confliction with doctrine that teaches against it. The politics of gay marriage has been to leave the church (for the non-denominational congregations that are more tolerant of it) or leave the church out of it but not attacking it in the LGBT’s movement to mainstream it. The “moral question” is ignored for the rights question, and that has been the conflict gays won’t discuss—because it puts them directly in the sightlines of morality (the church’s argument). It is a culture clash of enormous proportions and resistance to gay marriage has been waning. Whether a legal decision will force acceptance certainly is not clear. Society didn’t accept the Brown decision (desegregation), nor did it accept the Lovings decision (inter-racial marriage), nor did it accept Roe v. Wade (women’s choice). It has been proven that you can legalize social change but you can’t legislate it, meaning you can make a ruling on law—it doesn’t mean people will accept it.
Mainstreaming gayness has been controversial to say the least, largely because it has been viewed as an imposition of values on others. When it was forced to a vote, by ballot referendum in many states, people voted their values—which were tied to their moral groundings—which was tied to their religious belief systems. In short, people sided with the church. Many in the progressive community, especially African Americans, were attacked for not putting the politics of supporting gay marriage over their church. Marriage is a political act (meaning one of choice backed by law). Sex is a political engagement (a personal choice to engage or not engage). Gender is a biological act (beyond the control on oneself, or act act of God). Therein lies the convolution, or the confliction. Do we have an unrecognized third gender in our society? Not if the church hasn’t recognized it, and not if medicine hasn’t recognized it. But does society now recognize it? That is the question. How the shift left the church behind?
When asked to choose between a “politic” and your church, guess what most people chose? The real argument of equal protection under the Fourteenth Amendment or full faith and credit under Article Four of the Constitution, got lost in the morality question LBGT activists tried to bury under the equality argument. Well, guess who has already raised the morality question?
That’s right. Supreme Court arch-conservative, Antonin Scalia, who a few days after High Court decided on hearing cases on gay marriage raised question on the validity of society’s moral feelings as defensible by law. At a lecture a Princeton University this week, Justice Scalia, in responding to a students question to defend his past homophobic statements, comments, “If we cannot have moral feelings against homosexuality, can we have it against murder” Can we have it against other things?” Scalia’s comments have created a firestorm in its comparing homosexuality to murder, clearly an extreme misanalogy, and calls for him to recuse himself for having an obvious bias. But the integrity of his point was not lost. The Court is about to be put to a morality test, just as the American people were. This case is as much about the shift in cultural morals as it is about equal protection under the law. Now lost in Scalia’s comments were that fact that he said that the Constitution is flexible, that neither abortion or the death penalty are in it, but it is permitted because the people allow it. Let the states decide. That may be the forerunner conclusion of how the Court will sidestep the issue. Just strike down the federal law and let the states decide whatever they decide (of which nine states have decided to permit same sex marriage). Even when the states decide, the confliction will persist.
Society has a greater tolerance of same sex relationships. It does not equate to acceptance of them. Something African Americans, Ethnic immigrants and women can attest to. Culture shifts in the United States take 100 years; Race (1865 to 1965), Gender (1870s to1970s), Citizenship (1880s to 1990s). All of these movements were court tested before acceptance came about. And some of these groups are still waiting… The LGBT movement is 30 years into their movement. Their test for social acceptance is about to come. In some regards, it’s already here.
The gay marriage question should have been in the courts long before it was on the ballot. It is predicted that the law will fall in their favor. Equal protection is the law. Period. The question is, will social acceptance fall in their favor? Can cultural morals embrace the shift?
Time will be the real teller.
Anthony Asadullah Samad, Ph.D., is a national columnist, managing director of the Urban Issues Forum (www.urbanissuesforum.com) and author of the upcoming book, REAL EYEZ: Race, Reality and Politics in 21st Century Popular Culture. He can be reached at www.AnthonySamad.com or on Twitter at @dranthonysamad.