New York now joins Massachusetts, New Hampshire, Iowa, Connecticut, Vermont and Washington DC in having legalised gay marriage. Internationally, the club also includes Argentina, Belgium, Canada, Iceland, the Netherlands, Norway, Portugal, South Africa, Spain, and Sweden.
So we should not pretend the decision of the New York legislature is ground-breaking. Once implemented in a jurisdiction, gay marriage fades into the background. While its introduction is controversial, its existence is mundane.
Yet there’s still a lot to learn from the New York decision for supporters of same-sex marriage reform.
One reason the New York decision is interesting has been the muted reaction of the conservative movement – varying from resigned acceptance to warm support. Nowhere was this clearer than on the website of the National Review.
The National Review is the rock on which the American intellectual conservative movement was built. Unambiguously conservative, its founder, William F Buckley, nevertheless described himself as a libertarian – his magazine can take large credit for melding the post-war conservative fusion between anti-communists, libertarians, and social conservatives.
The first thing the National Review published after the New York decision was an article which can only be described as warm and congratulatory. The columnist Michael Potemra wrote about the “sweetness of a symbolic victory”.
Certainly, Potemra’s wasn’t the only piece published on National Review Online immediately after the decision. A moderately hostile one – although focusing more on process than policy – was written by William C Duncan, chief of the Marriage Law Foundation, an anti-gay marriage lobby group.
Yet the comments on those articles are running about 50/50 for and against. That is itself a pretty big deal, considering the National Review’s position in the conservative world. It’s a sign the intellectual case against gay marriage is looking flimsier by the year.
If gay marriage is destined to undermine traditional marriage, there’s no evidence it has done so yet. In none of the jurisdictions which have made this change have key social indicators slid backwards.
As the conservative David Frum wrote on CNN.com on Monday: “The case against same-sex marriage has been tested against reality. The case has not passed its test.”
Frum was a prominent opponent of gay marriage in the 1990s. The energy has gone from the anti-gay marriage movement.
Of course, one can still have an objection to gay marriage on the grounds of religious faith. But without evidence that such a reform could harm society, there’s no reason for the non-religious (or those whose religious beliefs do not preclude same-sex marriage) to share that objection.
Well, except for one thing.
The critical issue for New York Republicans was ensuring those who have religious objections to gay marriage would not be penalised for refusing to marry a same-sex couple. After all, it would hardly be a step forward if an expansion of freedom for gay people required a reduction in religious freedom.
The final bill protected religious organisations from lawsuits or the withdrawal of state funding if they declined to participate in same-sex marriage ceremonies.
It proved to be a surmountable barrier in New York, but this religious freedom proviso should remind us that our wealth of anti-discrimination law could hold back liberal and progressive reform.
Supporters of gay marriage who do not sufficiently account for religious freedom do their cause a disservice. It’s likely anti-discrimination laws will be – deserve to be – a major sticking point when an Australian parliament inevitably deals with gay marriage legislation.
American states have the power to decide whether to extend marriage. Australian states do not. The New York decision has shown how vital this difference is. Reform-minded states can do things a federal government can not.
Federalism has allowed American states to test and observe the effects of gay marriage, and roll it out in stages across the country. And federalism has prevented this reform being foisted on more conservative states against their wishes.
It’s indicative that Barack Obama has rejected gay marriage, because he held the opposite view while campaigning for State Senator back in 1995. Now on a national stage, politically Obama feels he cannot proclaim the views he held when his stage was smaller.
In Australia, marriage is a Commonwealth responsibility. This is a bad thing if you want marriage equality. Those on the left hostile to federalism and devolution of power might want to rethink their position because, as in the United States, Australian conservative opposition to this policy is less determined than it has been in the past.
In 2011, you’re more likely to hear a conservative or right-leaning commentator support same-sex marriage than oppose it. If only they had the power, now would be a great opportunity for an enterprising state or territory to introduce same-sex marriage.
Of course, a libertarian would insist the government get out of the marriage business altogether. But conservatives and libertarians should welcome the further expansion of legally-recognised same-sex marriage. For as long as the government has the power over marriage it is obligated to adjust that power to changing social circumstances.
And, clearly, gay marriage is a reform whose time has come.
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