NEAL CONAN, host:
With the debate over "don't ask, don't tell" now over, the gay rights agenda focuses next on same-sex marriage - already legal in five states and the District of Columbia, explicitly prohibited in the constitutions of 30 other states, and currently at issue in a federal court case that's expected to wind up before the U.S. Supreme Court.
In an opinion piece in the Washington Post, Matthew Franck argued that we need robust, even passionate debate on the issue, but that the charge of hate is not a contribution to argument. It's the recourse of people who would rather not have an argument at all.
Have you used the hate charge in an argument over gay marriage? Have you heard it? Our phone number: 800-989-8255. Email: firstname.lastname@example.org. You can also join the conversation on our website. That's at npr.org. Click on TALK OF THE NATION.
Matthew Franck directs the Center on Religion and the Constitution at the Witherspoon Institute. His piece in the Washington Post is titled "In the Gay Marriage Debate, Stop Using the Hate Card." And he joins us now from his office in Princeton.
Nice to have you on the program today.
Mr. MATTHEW FRANCK (Director, Center on Religion and the Constitution, Witherspoon Institute): Thanks, Neal. Very nice to join you.
CONAN: And you wrote that a determined effort is afoot in cultural bastions controlled by the left, who anathematize traditional views of sexual morality, particularly opposition to same-sex marriage, as the expression of hatred that cannot be tolerated in a decent, civil society. How so?
Mr. FRANCK: Well, as I detail in the article, I've been seeing over the course of the last year a number of episodes - I relate some anecdotes here - episodes in which one sees people holding the traditional view of sexual morality or simply opposing same-sex marriage, without more, being tarred with the hate label.
This has happened to a couple of Midwestern college professors. I think it is the underlining story of the Christian Legal Society's exclusion from campus recognition at the University of California's Hastings College of Law.
I think this is, you know - this recently happened in the case of the Manhattan Declaration, an ecumenical Christian statement opposing gay marriage and abortion, and standing for religious liberty. And the Manhattan Declaration app was chased out of the iTunes store by a relatively small number of petitioners, complaining to the Apple Corporation that it was a hate fest.
So I see this sort of thing happening, and I'm wondering, you know, why? Why is this label being - with seeming indiscriminate use, thrown around in this debate? And I think that it is, as I say in the article, it's the counsel of desperation.
The American people are pretty solidly against gay marriage, at present. I think the most reliable polling is 57 percent. Nearly three in five Americans opposing gay marriage. Three-fifths of the state, as you mentioned, Neal, have banned it explicitly in their constitutions. But there is an effort, I think, to achieve a victory in the culture and a victory in the courts. And the hate label is part of that strategy.
CONAN: You write: The Southern Poverty Law Center, a once-respected civil rights organization, publishes a report identifying a dozen or so anti-gay hate groups, some for no apparent reason other than that - their vocal opposition to same-sex marriage. Do you deny that there are not anti-gay hate groups, that homophobia exists?
Mr. FRANCK: I think there are people saying hateful things, and perhaps the label hate group might be accurately applied to some of them. My problem with the Southern Poverty Law Center's report was that it was rather undiscriminating. I think they engaged in a failure to discriminate some groups from others.
The National Organization for Marriage, for instance, made a watch list. And it was really rather hard, in the report, to discover who is on the hate group list, and who was just on the watch list - you know, sort of an "Animal House" double-secret probation. We're watching you. But the National Organization for Marriage was put on the list for no reason I can see other than that a bus driver once employed by them had spoken out of turn, some rather objectionable things - and was taken to be a spokesman for the organization.
Now, that plus the watch list status - I think that this is just -a kind of disreputable attack strategy by the SPLC, rather than an honest engagement in the public debate over the questions at issue.
CONAN: A lot of the debate is framed in terms of the - well, you mentioned the Southern Poverty Law Center, a once-respected civil rights organization. It is framed in the same kind of terminology as the civil rights arguments - that gay men and lesbians want the same rights as other people, and that those opposing it are opposing their right.
Mr. FRANCK: Mm-hmm. So the argument is made. I don't agree with that argument. I'm not persuaded by it, and I think most Americans are not. There's frequently an effort to analogize the situation of gay couples to the situation of interracial couples 45 years ago. As everyone should know and this is history...
CONAN: Before the Loving decision...
Mr. FRANCK: ...you know, there were anti-miscegenation laws that forbade blacks and whites from marrying. Those laws, of course, prevented opposite-sex couples from coming together in marital unions that everyone recognized would actually be marital unions if they were permitted to form them. In other words, people universally understood to be capable of marrying one another were prevented from marrying one another by an intrusion and intervention of the state into their freedom to marry.
The situation is rather different with same-sex couples, who have never been permitted to marry under any understanding of the laws of marriage -common law, statutory law - in any country, until quite recently.
And in order to fold them into the institution of marriage, we don't merely have to remove an obstacle to their marriage. We have to redefine what marriage is. And that's where, I think, the debate needs to be. What is marriage? And what do we take it to be? And what change are we undertaking if we extend it to gay couples? My argument, and the argument of many marriage advocates - traditional marriage advocates - is that the extension of marriage to gay couples is not an expansion of the institution but an inversion of it, and a dismantling of it.
CONAN: You say that the - to ignore arguments of traditional marriage's defenders, that marriage has always existed in order to bring men and women together so that children will have mothers and fathers.
Mr. FRANCK: Right.
CONAN: And well, there's that. There's also plenty of examples of people well over the age of capable of having children who get married.
Mr. FRANCK: That's true. They do. And what they have in common with the couples who do form marriages and produce children is that they are members of the opposite sex. That is, they're heterosexual couples.
Now, it is true that the law has never prevented infertile couples from marrying or couples past the age of - where childbearing is normally possible...
CONAN: Or the couples who don't want to have children, yeah.
Mr. FRANCK: Pardon me?
CONAN: Or couples who simply don't want to have children.
Mr. FRANCK: Or it's - couples who simply don't want to have children. That's true. It's also true, however, that under ancient common law understandings of what consummates a marriage, only the act of sexual intercourse that is directed towards the production of children actually consummates a marriage.
So there's always been a linkage between marriage and procreation. The institution would not exist were it not for the need, as I said in the article, to bring men and women together in order to give children mothers and fathers. And I think that it's a red herring to point to childless couples, or couples past the age of childbearing, as somehow being, you know - they're having their marriages demeaned or delegitimized by the argument that marriage is oriented towards procreation.
Only those couples that are, in principle, of a kind capable of procreation - in principle - are understood to be marriageable under the traditional understanding. And that's men and women.
CONAN: Matthew Franck is our guest. His article in the Washington Post was titled, "In the Gay Marriage Debate, Stop Playing the Hate Card." You can find a link to that op-ed at our website. Go to npr.org. Click on TALK OF THE NATION; 800-989-8255. Email: email@example.com. Have you used the hate argument? Have you heard it?
Gabe is on the line, Gabe calling us from Cambridge in Massachusetts.
GABE (Caller): Hey. How are you? Thanks for having me on.
GABE: Yeah, you know, I've heard it. I'm from - I'm here in Massachusetts where, you know, they legalized gay marriage. And, you know, I've heard a lot of - you know, people suggested - those against it are against it because of hate, you know, for homosexuals. And honestly, you know, in many ways, I've seen that to be true, though I think it might be more appropriate to really, you know, think that they are, you know, against gay marriage mainly not because they hate, but more because of some kind of fear. And I'm not exactly sure what everyone is afraid of. I'm not sure what your guest may be afraid of.
But, you know, I would just like to make the point that when you talk about people's civil rights, you don't poll the population to think what - you know, ask what they think. If we had done so, we, you know, we may have never gotten rid of slavery and, you know, women may not be able to vote. So I just would like to ask your guest, you know, why does it bother him so much? What is he afraid of?
Mr. FRANCK: Well, to say that some civil right is being denied is, of course, to beg the very question at issue. So what we have to do first is...
GABE: I would like to talk about that. You know, I recently got married, two years ago.
GABE: And I didn't, you know, necessarily think there'd a big change, but I noticed right away the way in which the society was responding to me because I was married was totally different. Because I had a ring on my finger, suddenly I had, you know, all sorts of, you know, credibility and respect and options that I didn't have when I was single. And so...
CONAN: Gabe, I think you have to give Matthew Franck a chance to answer your question.
Mr. FRANCK: Yeah. Let me come back to the point where our caller began, and that is, that there's a denial of civil rights going on. First of all, that is the very question at issue. We have to decide as a society what people's civil rights are. Now, do we refer these questions to the society at large? I think, in fact, in many respects we do. Slavery was settled - the slavery issue was settled violently, by force of arms. The segregation issue was settled, in part, by court decisions and in part by legislation, the great Civil Rights Act of 1964. Women were given the vote by constitutional amendment, by men giving women the vote. It was not settled by courts of law. So there are multiple ways - multiple avenues towards settling questions of rights, and majority rule is not simply out of the question as one of the ways to do that.
I don't think that there are - let me address the constitutional issue. I think that it is surprising how much ground has been caned, frankly, by the argument for gay marriage in the courts, because I don't think that even 10 years ago or 15 years ago, there was any serious argument being made by anyone that - say the 14th Amendment accords same sex couples the right to marry. This is plausible only on a basis that says that courts can make the Constitution say anything, more or less, at will, the kind of living Constitution arguments. But tradition, history, the text of the Constitution, simply don't point to it.
Now, if we're going to settle this, though, as a matter of - not of legal argument in courts, but as a matter of justice to the parties concerned, again, we have to come back to the question: What is marriage? Before we decide that someone was being denied something they have a right to, we have to find what that thing is, and who does have a right to it.
So far, and to my knowledge, the advocates of gay marriage have not been able to come up with an answer to the question - what is marriage - that will give a principled account of why marriage should be limited to two, or why it should be a sexual partnership, or why it should be legally recognized at all.
CONAN: And Gabe, we will stipulate that you would disagree because...
CONAN: ...we want to give some other people a chance. But thanks very much for the phone call.
We're talking with Matthew Franck. You're listening to TALK OF THE NATION, from NPR News.
And here's an email from Kathleen in Cape Cod: The discussion is absurd. Of course, there are hate groups. What in the world do you call an organization that exists for the sole purpose of fighting a minority group's civil rights? Who, calling for the jailing of gay people simply for being gay, like the National Organization for Marriage board member Mr. Card does, or who demonize gay people with rhetoric that compares us to child molesters, or makes insane claims that the Nazi SS was made up of gay people. The hate card is being played. Here is hatred of gay people.
And I think - well, you might disagree with some of the particulars there, Matthew Franck. Hate is being played on both sides. I think that's accurate.
Mr. FRANCK: Yes. The difference, I think, is this: that on the side of the defenders of marriage, there are no mainstream marriage advocacy organizations that are engaging in hate speech or propagating falsehoods or myths about gay people. I just - it's not happening.
On the other side, there is, I think - on the other hand - a kind of mainstreaming of the strategy to anathematize, which is what I described in my article.
CONAN: Among those you describe as part of the strategy is the judge in Perry v. Schwarzenegger, currently pending in the U.S. Court of Appeals for the 9th Circuit. Judge Vaughn Walker held that California's Proposition 8 enacted without reason a private moral view about the nature of marriage that cannot properly be embodied in public policy.
Mr. FRANCK: Right, exactly right. And that brings us back to what I think is a key to a lot of what's going on. In the courts, a key legal question is: Is there a rational basis for a policy? If there is not a rational basis, then it cannot be upheld on equal protection or perhaps due process grounds. And so I think the full-court press we see in the culture has a kind of judicial parallel. The idea is if you can propagate the idea that defenders of gay marriage have no rational basis for defending marriage, as it has always been known in every human civilization, as the union of men and women, for - chiefly - for procreative ends, but if you can say that there's no rational basis for that, then you achieve a great strategic goal in the courts of law, which is to have judges hold that no rational basis exists for such distinctions in the law and therefore, laws like Prop 8 have to fall.
But if you can see that there's no rational basis for that, then you achieve a great strategic goal in the courts of law, which is to have judges hold that no rational basis exists for such distinctions in the law and therefore laws like Prop 8 have to fall.
CONAN: And we will see what the 9th Circuit decides - and I suspect, eventually, the Supreme Court. Matthew Franck, thank you very much for your time today.
Mr. FRANCK: Thank you, Neal.
CONAN: Matthew Franck, director of the William E. and Carol G. Simon Center on Religion and the Constitution of the Witherspoon Institute. His op-ed on gay marriage, "Stop Playing the Hate Card," ran in the Washington Post. There's a link to it at our website, npr.org; click on TALK OF THE NATION.
Guest Political Junkie Mara Liasson is with us tomorrow. This is TALK OF THE NATION, from NPR News.