Gay Marriage & the Finite Nature of Fabian Delay

This post was scheduled for this morning — but I made a huge mistake. Apologies!!

Insofar as it exists, the rational case against gay marriage depends upon surprise and caution — homosexuality, the argument goes, is new, at least as an institution, and its repercussions on family life can’t yet be fully gauged. We should wait and see how this pans out before embracing the “gay family” as a new institution.

Perhaps this argument is compelling at a superficial level, but it’s a little disingenuous. Homosexuality isn’t new, and the gay lifestyle isn’t new. The only part of gay life that is new is its existence as a viable alternative to a life of pretending to be straight — an option that carries its own, acknowledged, and disastrous consequences. And, the argument only works if the harm to come from deferring the dream is outweighed by the harm avoided by caution. That balance is nowhere indicated, and because American society tends to look askance at laws that create second-class citizens, accepting that opponents of gay marriage must show this balance saddles them with a heavy burden.

Further, like Fabius’ strategy for handling Hannibal, the delay argument is only a temporary solution. After a certain amount of time, we as a society will have to make a decision, and that moment draws nearer every day. The media began accepting the validity of “out” gay life early last decade, and with every state that legalizes gay marriage, either as marriage or through some institution of lesser dignity, another clock starts ticking down the time until we’ll “know” what a world where gay marriage is fully legal would look like.

In fact, the time to decide might’ve already come. Earlier this week, a long-term study concluded that far from the nightmare scenario envisioned by “family values” conservatives, the children of lesbian couples are actually pretty damn happy. Happier, even, than the children of straight couples. As facts like these emerge, we can stop treating guesses about potential damage as authoritative — see Lynn D. Wardle, The Potential Impact of Homosexual Parenting on Children, 1997 U. ILL. L. REV. 833 — and engage with a known reality. And as the contours of that reality become clear, it’s starting to look like one where there’s literally no objective reason not to treat gay families with the respect they deserve.

Helpful social science, though, doesn’t make the legal battle much easier. Studies like these compel no result of their own force, because the law lags far behind social science, and because current doctrine requires only that governments invent an excuse to discriminate not blatantly based on animus. Those are easy to fabricate, and courts not otherwise inclined to do so won’t look too closely at them. See, e.g., Lofton v. Sec’y of the Dep’t of Children & Family Servs., 358 F.3d 804 (11th Cir. 2004).

That leaves us precisely nowhere — still. But as the moral high ground continues to solidify, the fact of an eventual positive result approaches a certainty.



  1. James F · ·

    This will be the most crushing defeat of the Religious Right in decades, and they know it. They have entire organizations, generally with “family” in the title, arrayed against extended civil marriage recognition to same-sex couples – if they can push it to a protracted state-by-state battle, the funds will keep rolling in for several more years. Meanwhile, DADT and DOMA will fall, ENDA will be passed, and they will be forced into a smaller and smaller corner. It will not be pretty, and I fully expect that they will decide to redouble their attacks on science after they are defeated on LGBT issues.

  2. While I naturally agree with your conclusion, it’s worth noting that the Fabian strategy was actually fairly successful, both against Hannibal and later in history (George Washington comes to mind).

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