That’s what I thought after hearing several right-wing academics arguing against marriage equality this past Friday at St. John’s Law School.
I was a (too) early-morning panelist at an all-day symposium that bore the Fiona Applesque title: “Legal, Secular, and Religious Perspectives on Marriage Equality/Marriage Protection/Same-Sex Marriage.” As the name suggests, the organizers were careful to avoid taking any sides in the conflict, and were willing to sacrifice marketing punch to make clear their commitment. So while many spoke from the pro-equality side, there was, if anything more air time and prominence given to oppositionists, including Maggie Gallagher, Bill Duncan (Director of the Marriage Law Foundation), a couple of natural law Catholics, including Professors Robert John Araujo and Jane Adolphe. Professor Lynn Wardle of Brigham Young Law (who’s been writing about this stuff forever, but not persuasively), and Amy Wax, a professor at Penn Law.
After a bruising day of hearing their arguments, it became clearer than ever that the anti-equality side is intellectually exhausted and – whether because of that or their growing sense that they’re on a sinking ship – sometimes quite angry. And my sense, shared by many in the room, is that they were digging themselves into deeper holes with every uncharitable or unsupported statement they made.
Araujo and Adolphe had no argument, really: Their position is based on the natural law idea of complementarity between the sexes.
They can’t explain, though, how this fact of nature does or should translate into a legal prohibition on the marriage of same-sex couples. Araujo, who kept saying that people were intelligent, that the world was intelligible, and that “right reason” should lead people to just “see” that same-sex marriages were a bad idea. Unlike any other speaker, he made sure to use up all of his time so he wouldn’t be troubled with pesky questions.
Adolphe was worse, rarely advancing beyond the thrice-repeated point that we should just “look at our bodies in the mirror” to see the differences between the biological sexes (which is then supposed, somehow, to dictate law). Beyond this increasingly creepy narcissism, Adolphe came across as angry and insistent: “There can’t be a same-sex marriage. It can’t exist.”
But it does, and natural law theory has no arguments to stop it. In fact, at the first break after these two had concluded, a couple of law students came up to me and, in essence, apologized for their Catholicism to the extent that it compelled such conclusions. They surely weren’t convinced.
They weren’t the only ones who were moved in exactly the wrong direction by listening to the other side. During the panel featuring Wardle and Wax, I was sitting near a lawyer who told me she was there for the legal education credits and to hear different perspectives on the issue. Another self-described Catholic, she said she favored civil unions but was struggling with full marriage equality. After hearing Wax’s bizarre and essentializing tirade, though, her burden had been lifted considerably.
Elsewhere, I have gone into depth on the problems with Wax’s arguments and assertions. But they’re all grounded in a view that biology is really (almost) all that matters, and that it’s just too bad for those who differ from a “gold standard” that she isn’t shy about setting forth: Families are arranged in a hierarchy, with straight families and their bio kids sitting comfortably on top. (Reading her other work makes clear that she subscribes to a racial hierarchy, too; here’s a quote from her vile book Rights, Wrongs, and Remedies: “blacks have lower cognitive ability than whites or Asians.”)
And, in a statement shocking from a law professor, she opposed casting sexual orientation as a suspect legal class – and therefore deserving of heightened scrutiny under equal protection law – on the ground that this category was no different from, say, looks or intelligence. This statement overlooks the history of official discrimination against LGBT citizens and misunderstands equal protection law, but is at least consistent with Wax’s worldview: some people (read: her) are better than others.
After one of my questions (I flatter myself to think) had drawn some of these assumptions more fully into the open, the woman sitting next to me was shaking her head in disbelief. Through her offensiveness, Wax had made the case – against her own side.
Let them keep talking.
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