It’s an amazing four minutes, in which both O’Reilly and his guest come to the conclusion — from slightly different starting points — that there’s really “no reason” to oppose or prohibit same-sex marriage, once you’ve left aside religious “reasons.”
I’ve yet to see a full transcript, but Pam — posting about it at Pandagon — grabbed this telling tidbit.
OREILLY: “You’ve got to go beyond religion if you want to win the fight against gay marriage. You’ve got to go into a reason why this is not good for the state of California. Now what would that reason be?”
Family Law Attorney Don Schweitzer seem to get a handle on what eats at him about marriage equality (he even doesn’t bother with articulating the whole penis-in-vagina dealie), but O’Reilly actually pushes at Schweitzer to come up with something that isn’t insane. The dude just can’t come up with anything other than the “definition” of the word is in jeopardy. It’s hilarious.
SCHWEITZER (on why it’s bad): ”It’s like summer and winter…it’s two different things.”
It’s hilarious, yes, and pathetic in a way. It also illustrates something spelled out in the California Supreme Court Ruling.
Under the strict scrutiny standard, unlike the rational basis standard, in order to demonstrate the constitutional validity of a challenged statutory classification the state must establish (1) that the state interest intended to be served by the differential treatment not only is a constitutionally legitimate interest, but is a compelling state interest, and (2) that the differential treatment not only is reasonably related to but is necessary to serve that compelling state interest. Applying this standard to the statutory classification here at issue, we conclude that the purpose underlying differential treatment of opposite-sex and same-sex couples embodied in California’s current marriage statutes — the interest in retaining the traditional and well-established definition of marriage — cannot properly be viewed as a compelling state interest for purposes of the equal protection clause, or as necessary to serve such an interest.
A number of factors lead us to this conclusion. First, the exclusion of same-sex couples from the designation of marriage clearly is not necessary in order to afford full protection to all of the rights and benefits that currently are enjoyed by married opposite-sex couples; permitting same-sex couples access to the designation of marriage will not deprive opposite-sex couples of any rights and will not alter the legal framework of the institution of marriage, because same-sex couples who choose to marry will be subject to the same obligations and duties that currently are imposed on married opposite-sex couples. Second, retaining the traditional definition of marriage and affording same-sex couples only a separate and differently named family relationship will, as a realistic matter, impose appreciable harm on same-sex couples and their children, because denying such couples access to the familiar and highly favored designation of marriage is likely to cast doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples. Third, because of the widespread disparagement that gay individuals historically have faced, it is all the more probable that excluding same-sex couples from the legal institution of marriage is likely to be viewed as reflecting an official view that their committed relationships are of lesser stature than the comparable relationships of opposite-sex couples. Finally, retaining the designation of marriage exclusively for opposite-sex couples and providing only a separate and distinct designation for same-sex couples may well have the effect of perpetuating a more general premise — now emphatically rejected by this state — that gay individuals and same-sex couples are in some respects “second-class citizens” who may, under the law, be treated differently from, and less favorably than, heterosexual individuals or opposite-sex couples. Under these circumstances, we cannot find that retention of the traditional definition of marriage constitutes a compelling state interest. Accordingly, we conclude that to the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional.
Like the state in the California case, Mr. Schweitzer failed to show a compelling interest in prohibiting same-sex marriage except for “It’s different.”
O’REILLY: …What’s the the reason that you oppose gay marriage?
SCHWEITZER: I don’t oppose, uh, a civil union. We already have that. We’ve had that for three years.
O’REILLY: (Talking over Schweitzer.) Alright, alright … Gay marriage, Mr. Schweitzer, why do you oppose that?
SCHWEITZER: I only oppose the defintion of marriage applying to same-sex marriage, because it’s an age-old definition. It’s like naming one thing from another.
O’REILLY: But are … Isn’t change good? This is a year of change? Everybody wants change?
SCHWEITZER: Well, that’s a decision for the people, and the people determined that they don’t want it. Year’s ago there was a referendum, and the people spoke, and the California Supreme Court overruled the people’s voice, in this regard…
O’REILLY: So you really don’t don’t have a good reason for me about why you oppose gay marriage.
SCHWEITZER: Yes I do. I think the reason is that the people want a definition making a distinction between gay marriages and …
O’REILLY: Why do they want that distinction?
SCHWEITZER: Because of the fact that it is different. It is just a different distinction. They’re two different relationships. And they don’t want to be grouped together in the same type of relationship.
O’REILLY: Isn’t that bigoted?
SCHWEITZER: No. No, it’s like describing Summer from Winter. They’re two different things.
O’REILLY: I don’t think that’s gonna cut it.
SCHWEITZER: How is that bigoted, Bill?
O’REILLY: I’m not saying it’s bigoted. I just asked the question. I mean, if it’s … Look. I think you guy are going to have to come up with a cogent reason to convince independents, who are going to make the decision on this, because it is now getting closer, why gay marriage isn’t good for California. And you really haven’t done it tonight.
SCHWEITZER: OK. Well, I beg to differ with you, and I think the people will speak in November. They’re gonna say that we just want the definition. They’re not gonna say that it’s…’
O’REILLY: “We just want it.” OK. Maybe you’re right, but I think that there’s got to be a more pointed definition.
Schweitzer fails to make the case in the same way that the state failed to make the case to the California Supreme Court. He fails to show how “the exclusion of same-sex couples from the designation of marriage” (in other words, the definition he kept talking about) is necessary to preserve the benefits and protections of married opposite-sex couples. He failed to show how letting same-sex couples marry will take away from opposite sex couples any of the benefits or protections they currently enjoy. (I keep asking that question — which of the 1,000+ benefits and protections are they going to lose if we get married? — and I’ve yet to get a coherent answer.) He failed to show that denying marriage to same-sex couples would cause “appreciable harm” by “cast[ing] doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples.” Like the kind of doubt that makes it easier to deny benefits to couples in civil unions, or keep one partner out of another’s hospital room. He fails to show that denying marriage equality to same-sex couples would not relegate them to “second class citizenship.” In fact, he just keeps repeating “it’s different” as a reason for denying the designation of marriage to same-sex couples, and segregating them to “civil unions” and “domestic partnerships” that are easily abrogated, eliminated, or whittled away to nothing by voters or the legislature; in other words, legal statuses that carry no civil rights — no rights not subject to a majority vote. (He also forgets that the state legislature elected by the people, in the years following the referendum, twice sent marriage equality legislation to the governor.)
He’s reduced to, essentially “We just want it.”
And Bill O’Reilly, strangely enough, comes to the same conclusion as the California Supreme Court. The case was not made. Or rather, no reasonable case was made.
Schweitzer, interestingly enough, stopped short of saying so, but lurking just beneath the surface of the objections he voiced to O’Reilly are religious reasons for opposing gay marriage. But, as a post by Andrew Sullivan points out, when you remove religious arguments from the debate there is no rational basis for opposing marriage equality.
Once you accept that gay people are gay in the way that straight people are straight, and once you remove purely religious arguments from a secular debate, the case against marriage equality simply collapses. One reason I have been so eager to have this debate on rational grounds is that, if reason is your guide, the pro-gay side wins overwhelmingly. What’s left is a base-line argument for caution. But as gay marriage takes root, you see it has nothing but good effects on society as a whole. Soon, this will be over. Not yet. But sooner than some now believe.
Pastordan over at Street Prophets links to another post that fleshes out Sullivan’s point.
At the same time, though, I suspect it’s impossible for some to remove religous arguments from the debate. That’s why the debate always goes the way it does; I might argue from a purely rational point of view, but rationality is only one of the factors influencing those who dislike gay marriage on religious grounds, and often isn’t the most important factor. If you wholeheartedly believe that gay marriage is immoral, you look in the Bible to find the passages that condemn homosexuality and buttress your own feelings (and please don’t say that you wouldn’t harbor those feelings if it weren’t for those scant passages, because that isn’t true, is it? If those passages didn’t exist, would you feel differently about homosexuality?) And because you then find confirmation of the things you feel in your gut in your Good Book, that is rational for you. That is part of the debate.
…except that in a secular society, the legal case isn’t to be based upon that. And there’s the rub. There has to be a secular case against gay marriage, but there really isn’t one; or if there is, all it is is an admonishment to go slow. The rest of it rests on these vague assertions of how this will “harm” the family and communities, when in fact the opposite is probably true. But so long as religion is the primary motivation for opposing gay marriage, the opposite cannot be true. And we must not even consider the possibility.
You must not consider the possibility. That means you must not consider evidence or arguments that would tend to contradict your belief, especially if doing so would tend to lead you to reconsider your beliefs. As I pointed out in a previous post, that is something you just cannot do.
I came upon my own definition of irreducible complexity. It is not the point at which a biological system is so complex that it can only have been created by an intelligent designer. It is the point at which some people simply stop thinking about that or any other biological system. It is a boundary on the map of human knowledge beyond which are written the words, “Here be dragons.” And at that boundary, some people stop asking questions. They have to, because hell yawns beyond that boundary.
When you have to believe something in order to get into heaven, and you will spend all of in hell if you don’t believe it or if you believe anything else, at some point you stop asking questions. You have to, if you don’t want to go to hell.
It is as though you are standing in a room, and at the other end of that room is the gate to hell. You arm is outstretched, and in your hand is the key to that gate. Every question asked and answered by scientific inquiry is a step that takes you closer to that gate. Ask one question, and you take a step closer. Answer another one and you take another step. Keep asking and you’re walking across the room. Before you know it, the key is in the lock, and one more question may turn the key.
But not only must you stop asking questions, but you must stop others from asking questions if you believe in a “designer” that punishes entire cities and entire nations for tolerating disbelief. Because every step they take, every inquiry, every question asked takes them towards that gate that must stay locked, not just to keep out what’s on the other side, but because if the gate is ever opened, only one thing can be worse than what it unleashes, and that’s if it unleashes nothing at all.
At least if the very foundations of your reality depends on that gate staying closed and what you say is on the other side of it staying what you say it is and where you say it is.
If you take that and apply it to gay marriage, that means reconsidering homosexuality and considering a moral context for homosexuality that leads to just the kind of troubling questions mentioned above, the kind that an unquestioning believer can’t afford to ask.
If “God created homosexuals the way they are” then by extension — assuming that God doesn’t make mistakes, and that what God created is good and has a purpose even if we don’t understand it — there must be a moral context for homosexuality. It would have to be amoral rather than immoral. Just as heterosexuality is morally neutral, but is instead defined morally by how the individual uses his or her sexuality, so too would homosexuality be moral or not depending on how the individual uses his or her sexuality
That is, there must then be a way to be a “good” way to be gay; or simply a way to be “good and gay.” Or as Campolo put it earlier when discussing Ted Haggard, the individual who’s same-sex oriented must then decide what that means for his or her life. For some it might be celibacy, but for others it might mean finding a healthy outlet to express their sexuality.
And that’s where the religious right hits a brick wall. There can be no outlet for same-sex orientation that is not morally corrupt. It’s essential to their understanding of how the world must work. Gays have a specific role to play in that scenario, and goodness has very little to do with it.
Well, yes. This has never been an argument about policy alternatives or visions of the family or even about different readings of scripture. It’s about raw power, by way of determining whose moral vision will be allowed to dominate the social discourse. There’s one side that claims a consistent, unified and eternally operative religious morality trying desperately to fend off a more heterodox vision.
And that’s really it. The one side is frightened to death – rightly – that if they lose the power to define the institution of marriage, their moral vision will become only one among many at work in society. They want to maintain that power not because the family will fall apart without it, as they like to tell people, but because if they lose, “religion” – by which they mean their religion – will lose its privileged place in the discourse. It’s a bit above my paygrade to say if their decision to draw lines in the sand around abortion and homosexuality was foolish or not; what’s important is that they did, and it’s not quite working out the way they intended. Their ideas have to compete in the political marketplace, and at least on this issue, they’re losing.
In any case, think back to John Rawls’ dictum that citizens in a liberal democracy owe to one another good reasons for their political positions. The conservative Christians (and a few others) are terrified that if they lose this battle, the reasons they offer are going to be reduced to “just because,” which obviously doesn’t really cut it. So they’re right to be scared: the stakes are very high for them. Expect them to dig in even more as things start to slip away.
Maybe that’s what O’Reilly was getting at; hoping that the opposition — his side, after all — has any arguments, any rational reasons, anything more than “We just want it” or “Just because” to support their arguments. And it appears they don’t.
The opposition won’t cease, of course, or go away without a fight. But we know now that where they’re required to give rational reasons for opposing marriage equality, they come up empty.
And as their “die-hards” die off, more and more people will see that the opposition keeps coming up empty.