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Laws Can Only Go So

Laws Can Only Go So


Iowa's supreme court decision was a major victory for marriage equality. But it will take more than mere legal decisions for gays to win social approval.

In a unanimous ruling last week, the Iowa supreme court held that, "Perhaps the ultimate disadvantage expressed in the testimony of the plaintiffs," challenging the state statute limiting marriage to one man and one woman, "is the inability to obtain for themselves and for their children the personal and public affirmation that accompanies marriage." While gay rights advocates are right to celebrate this landmark decision -- a major victory given Iowa's place in the socially conservative American heartland -- the court's sweeping claim here should give them pause.

Ever since same-sex marriage emerged on the national agenda, the most convincing point in its favor has been the argument that barring gays from marrying someone of the same gender violates the bedrock American constitutional principle of equality before the law. Equal Protection is not limited to the federal Constitution; this legal reasoning was paramount in bringing about pro-gay marriage decisions in Massachusetts, California, and Iowa, where supreme courts all ruled that statutes barring same-sex marriage violated state constitutional equal protection clauses. All of these courts recognized the discrimination inherent in preventing gay people from enjoying the same rights and privileges that the government bestows to heterosexuals.

Yet the Iowa court ruling, at least rhetorically, suggests another rationale for why gay marriage should be legalized: because without it, gay people are unable "to obtain for themselves and for their children the personal and public affirmation that accompanies marriage." In other words, without official government recognition of their romantic unions, gays cannot gain social acceptance. While it is an admirable aspiration on the part of the Iowa justices to correct this malady, it elides a distinction between what the law can and cannot accomplish.

In its decision, the court readily acknowledged the various legal abasements to which gays in Iowa are subjected, from the "inability to make many life and death decisions affecting their partner" to the "inability to share in their partners' state-provided health insurance, public-employee pension benefits, and many private-employer-provided benefits and protections." In addition to the bestowal of these benefits, the altering of public attitudes in a more "progressive" direction may be another positive side effect, but a court decision will not be the panacea for entrenched homophobia.

To think otherwise risks complacency. The vast amount of effort that has already been poured into passing hate-crimes and antidiscrimination statutes is evidence of the proclivity to assume that laws are enough to change popularly held attitudes. A person harboring so much ingrained homophobic animus that he would physically attack a gay person is unlikely to be persuaded from doing so because of a law imposing stiffer penalties on such assault. While an employment nondiscrimination ordinance banning sexual-orientation bias as cause for termination will no doubt protect some gays from being fired, it is not as if the existence of such a regulation will make homophobic employers more enlightened in their attitudes. Likewise, newly legal gay marriage in Iowa won't help the closeted teenager in Des Moines whose parents will throw him out of the house if he tells them he's gay. Alleviating these dire situations is far harder than passing a law or winning a strategic legal victory.

None of this should be construed as an argument against the Iowa court's decision, which I applaud. But, at the same time, I worry that by investing so much energy in winning court decisions and not working to win marriage equality through popularly elected legislatures, the gay rights movement is shunting aside the harder -- but no less important -- work of convincing the American people that there is nothing unhealthy, morally wrong, or threatening about homosexuality.

Social conservatives worry that court decisions like the ones in Massachusetts, California, and Iowa will lead to greater cultural acceptance of homosexuality, and in the end, they have a right to be anxious. As the Civil Rights Act of 1965 played a role in altering the way Americans think about race, the Iowa supreme court's decision will change the way Iowans view their fellow gay citizens, at least over time. But legal decisions written by a handful of lawyers form only a part of the struggle for the hearts and minds of the public. It wasn't lawyers and legislators who won the struggle for black equality, but rather the moral suasion, physical sacrifice, and humility of the everyday participants in the African-American civil rights movement that convinced Americans of the immorality and intolerability of the racial status quo.

Disputing the notion that marriage should remain heterosexuals-only because that's the way it's always been, the Iowa justices wrote that such reasoning can "allow discrimination to become acceptable as tradition and helps to explain how discrimination can exist for such a long time." The Iowa supreme court put a chink in the armor of the deeply ensconced antigay animus that bedevils so much of this country. Reveling in this victory, however, gays should not expect court decisions to be a substitute for the widespread social acceptance that we have sought for so long but have yet to achieve.

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James Kirchick