Justice Samuel Alito offered just such an argument during oral arguments yesterday, as the Supreme Court began to consider California's Proposition 8. "Traditional marriage," he said, "has been around for thousands of years." Same-sex marriage, by contrast, "is newer than cell phones or the internet." He expressed the worry that because it is so new, there "isn't a lot of data about its effects" and "we do not have the ability to see the future."
On the surface, this will sound to many like a reasonable expression of concern. But there are several rather serious problems with this "newer than cell phones" objection--problems that expose the objection as little more than a smoke screen. Here are three, arranged from the least significant to the most:
1. The objection is applied selectively
Cell phones exploded across the nation over the last decade--smart phones more recently than that. In recent years we've all seen the social-commentary cartoons depicting families sitting at the Thanksgiving table, all their noses glued to their phones. These images speak to the scope of the effects that the introduction of a major new technology can have. Time and time again, history has proven that sweeping technological innovation can have major and very serious social effects.
Think about the introduction of commercial television--which, arguably, has driven consumer culture to a point that has helped to dangerously stress the planet's carrying capacity. Before that, there was the internal combustion engine. Global climate change, anyone?
In none of these cases was the new technology called for by basic fairness and equality under the law. The motive was something far less pressing: commercial interest, the desire for new conveniences or entertainments. If Justice Alito wants the country to be guided by his "proceed with caution about new innovations" principle, even when the new innovation is introduced in the service of equality and justice, then what about when it's not? Is he prepared to insist on comparable allegiance to this principle in Silicone Valley?
2. Same-sex marriage has been around a lot longer than cell phones
Mel White and his partner, Gary Nixon, have been together for over 32 years. The nature of their relationship is marital. That is, they're like an old married couple, and their partnership history has a shape and trajectory comparable to "traditional" marriages--the same struggles that characterize all long-term relationships, the same initial romantic intensity that eventually settles into something less defined by fire and more by shared history and commitment and love.
They are not alone. I know many same-sex couples who have been together for decades and whose relationships look like, well, marriages. Many gay couples, although denied state-recognized civil marriage, have been formally married by their progressive faith communities or had more personal ceremonies with their friends and families. There are same-sex couples who have spent a lifetime together, grown old together, experienced that final, painful parting. These are relationships that lack the official sanction of the state but are in other respects very familiar. The stories they tell could be included in the intimate snippets of old married couples scattered throughout the movie, "When Harry Met Sally"--and except for the tales of discrimination and hatred, if their words were spoken by male and female actors none would know that they originated from a same-sex couple.
The broad social stamp of approval may be new--and there are things that go with that. But what, exactly, does go with that? Less discrimination? Fewer pressures aimed at breaking them apart? Wider access to a support structure for preserving their relationship? What worrisome outcomes--comparable to the kinds of outcomes that have never motivated anyone to consider banning technological innovation (global climate change, runaway consumerism)--is Alito worried might follow from greater stability and longevity in same-sex relationships?
3. Same-sex marriage isn't a new thing at all. It's the decision to make an old thing available to people who've been denied it
Let's think for a minute about no-fault divorce. Now there was a major change in traditional marriage. It involved a change in the very structure of the marital institution. No longer was it a lifelong commitment with a narrow escape hatch based on compelling evidence of harm or betrayal. Instead, with the introduction of no-fault divorce, marriage became a partnership that could be dissolved pretty much at any time at the discretion of either party. That changed the very fabric of the institution of marriage.
Same-sex marriage is not a structural change in the nature of marriage, the way that no-fault divorce was. Instead, it is simply the act of making the institution of marriage available to a new group of people. The same institution, with the same structures, the same expectations, the same rights, the same way of relating to each other. It's not this new thing, "same-sex marriage"; it is, rather, the same old thing--marriage--made available to same-sex couples.
I've made this point before, in answer to Rick Santorum's absurd napkin-waving attempt to treat same-sex marriage as something that simply cannot fit under the definition of the term. Here's part of what I said in that earlier essay:
...marriage in our contemporary understanding is first and foremost a certain kind of relationship. And relationships are defined by how the parties are related to each other.
In marriage as we know it in the US (and most of the western world) today, the parties to a marriage are related in terms of mutual love, support, long-term partnership in life, and sexual fidelity (or at least promises to that effect), combined with social and legal recognition. Or perhaps it's better to say that these things--love and support, life partnership and sexual fidelity--describe an ideal type, and that real marriages are attempts to approximate that ideal type.
In any event, if you can be related in this “marital way” (if you can pursue this ideal with another person) then you can be married. And unlike Farmer Joe and his goat (to use a common conservative example), my friends John and David can pursue a mutual life partnership characterized by love, support, care, and sexual fidelity. And if the state were to legally recognize their partnership, they’d be related in exactly the kind of way that my wife and I have in mind when we describe ourselves as “being married.” Calling their relationship marriage would be absolutely nothing like calling a napkin a platypus (or a pincushion, of an alto saxiphone).
So, what we are talking about, when we speak of same-sex marriage, isn't some radically new thing at all. It's marriage. Made available to people who have been denied it in the past.
And we have a lot of experience with the effects that this institution of marriage has. And so we can make some pretty sound predictions about what making this institution available to gays and lesbians will mean. More stability of relationships over time. Less promiscuity. Less sexual volatility, with the concomitant heartbreak and jealousy. More reliable support persons and partners to help more people through the trials of life. Reduced spread of sexually transmitted diseases, including HIV/AIDS. More stable environment for child-rearing.
To use a spin on Rick Santorum's dumb example, making marriage available to same-sex couples is nothing like introducing a new technology with unpredictable effects. It's more like making napkins available to people who've previously been denied (for some weird reason) the legal right to use them. What can we expect from this? The same things we know napkins do for those of us who've been using them for a long time: fewer greasy fingertips; fewer smears on shirt sleeves, less frequent embarrassment caused by that dollop of spaghetti sauce lingering on the chin.