Gay Marriage's Great Hope

The gay-marriage case now unfolding in a San Francisco courtroom may be the most important battle between tradition and modernity since the Scopes trial.

01.14.10 11:07 PM ET

On the second day of the gay marriage trial, Harvard historian Nancy Cott testified that the opponents’ vision of marriage reminded her of the parable of the seven blind men and the elephant. Defendants’ chief lawyer Charles Cooper, who had defined marriage as “between a man and a woman, which is to promote procreation and channel procreative activity into stable unions,” was the blind man who felt the elephant’s trunk and declared the beast to be a snake. “Even monogamy” Cott testified, “is hardly the historic norm. It is just the version of marriage that resulted, because the Christian missionaries were so successful for a time, in imposing their idea of morality on a previously polyglot world.”

The defendants should have a tough time winning the contest between religion and secularism, between revelation and reasoned proof, prejudice and a free social contract, because they are in the United States federal courts.

In the confrontation between an irrefutable religious standard and a worldly empirical survey, the challenge to California’s prohibition on gay marriage reveals a fissure that runs throughout American history: Are we modern or are we medieval? Do Americans live together in a social contract for our material well-being, or are we following ancient traditions of how to live, because tradition is a better teacher than reason? This issue does not surface often in the United States, but it did most powerfully almost 90 years ago in Scopes vs. the State of Tennessee, the “monkey trial.” And it did so again this week.

In Scopes, Tennessee was trying to enforce a law that forbade teaching anything but a biblical belief about how the world was formed. Although Prop 8, the anti-gay marriage law, does not explicitly refer to Scripture, as Cott pointed out, Prop 8 clearly rests on a version of a Christian religious belief about marriage. (In addition to Cooper’s Christian “definition,” plaintiffs presented one of the ads the Prop 8 forces used to pass the law. In it, the voiceover describes “marriage” as “biblical marriage” and enjoins the viewers to “stand up for Jesus Christ as he stood up for you”). Like the defendants’ assertion that marriage means the union between a man and a woman, because that is the definition of marriage, Tennessee made its arguments in the Scopes trial relying on the assumption that the Bible was authoritative, and the only relevant arguments could be about what it requires. Nancy Cott testified about how American marriage always served a secular purpose—organizing people into households where they would be responsible for each other, making governance easier. The defendants responded that those purposes weren’t important, because those purposes were not part of their self-proclaimed central meaning of marriage—channeling reproductive sexuality. The Scopes judge wouldn’t even let the scientists testify.

Like Prop 8, the law at issue in Scopes was part of a nationwide campaign particularly aimed at protecting children from learning new beliefs in school. The Scopes law was explicitly aimed at what children could be taught. But the Prop 8 trial revealed this week that Prop 8 is also heavily driven by a desire to black out what children may consider. The plaintiffs played numerous commercials from the marriage opponents urging people to vote against gay marriage, lest their children be taught that gays can marry. “Protect the children!” the ads implored again and again. One widely circulated ad featured a Massachusetts couple who were horrified to learn that their son had been exposed to a children’s book in which the happy ending featured two princes.

The marriage opponents had been hammering the gay-marriage witnesses with this ad, demanding repeatedly that they admit informing children about the possibility of gay unions was depraved and an assault on parents’ authority over what their children should think about the world. That line of questioning ended when, in a priceless moment Wednesday, famed Yale historian George Chauncey finally looked at the opponents’ lawyer and said “why shouldn’t children learn that gays can marry? Would you argue that children shouldn’t find out that black people can marry whites?”

The defendants should have a tough time winning the contest between religion and secularism, between revelation and reasoned proof, prejudice and a free social contract, because they are in the United States federal courts. The federal courts, like all modern Western legal institutions, are bound by the prohibition against establishing religion, and also by rules of evidence, rational chains of thought, and that oldest social contract, the American Constitution.

As everyone knows, Scopes lost the case in 1926 and the prohibition against teaching evolution remained in force. As appeals to the ancient ways of doing things have defeated the claim for gay marriage in state after state, the cold rationality of the rule of law is gay men and lesbians’ best hope for equality. The Scopes decision was wrong, of course, and, 40 years after the Tennessee Supreme Court upheld the prohibition on teaching evolution, the Supreme Court ruled, in Epperson v. Arkansas, that such religious bans violate the constitutional protections for freedom of religion. One hopes that the many gay people who want to make a marriage and obligate themselves to care for one another, will not have to wait that long.

Linda Hirshman is a retired professor of philosophy. She is the author of Get to Work: A Manifesto for Women of the World. She is writing a book about the gay revolution.