Croker Sack

"Democracy is the theory that the common people know what they want, and deserve to get it good and hard." — Henry Louis Mencken (1880-1956)

Friday, November 12, 2004

What if not all crows are black?

According to the New York Times, there may be a change in the strategy followed by people who advocate for equal legal treatment of homosexual and heterosexual behavior:

Fearful that aggressive action could backfire and generate public hostility, gay rights groups are planning to limit the scope of their legal challenges to the constitutional amendments banning gay marriage that were passed by 11 states last week.

The groups are making a temporary retreat from their most fundamental goal, winning the right for same-sex marriages, and focusing instead on those measures that addressed civil unions in some way. The groups say that broader suits seeking the right to marry could add fuel to President Bush's efforts to create a federal prohibition on gay marriage. Many of the state amendments passed by overwhelming margins, and Karl Rove, the architect of Mr. Bush's re-election, said this week that there was a broad national consensus that marriage is between a man and a woman.

From the viewpoint of some advocates of equal treatment, the article notes a practical reason for changing strategy:

"The consequences - the risks - of losing [in the courts] are great," Mr. Coles said. "And we're unprepared for the consequences of winning." In his eyes, he said, winning in court too soon could mean losing in the court of public opinion, in Congress and under the United States Constitution.

The challenge now, gay rights leaders said, is to change public attitudes.

There's another way of looking at the matter. If we can reach a resolution of the issues through the legislative process, rather than having them settled by a handful of people in the courts, it seems likely that we would all be better off. The legislative process usually reflects public attitudes, and those attitudes will have at least as great an impact on societal acceptance or rejection of homosexual behavior as any new laws.

Society's attitudes toward homosexual behavior have changed quite a bit over the past century in response to efforts at persuasion, so there is no reason to believe that change cannot come through the legislative process.

Starting from a generally held belief that homosexual behavior was simply sinful and wrong, there was a move toward the idea that such behavior resulted from a mental disease or defect. This argument had some success, including the adoption of it by the psychiatric profession.

Understandably dissatisfied with being categorized as either sinners or mentally defective people, those in the "gay rights" movement argued in the 1960s and 1970s that homosexual behavior was simply a "lifestyle choice" which should be tolerated in a free society. That argument persuaded quite a few people, as evidenced by the frequent appearance of the phrase "sexual preference" in public discussions.

Having succeeded in persuading many people that homosexual behavior was a matter of personal choice, the movement ran into a logical and legal problem: Personal behavior which results from freely made personal decisions is commonly subject to the government's authority to make distinctions between acceptable and unacceptable behavior, and to favor one behavior rather than another.

In response, there was yet another change in the argument put forward by advocates of egalitarian treatment: Homosexual behavior results not from a personal "lifestyle choice" but from "natural sexual orientation." If successful, this new argument would come close to the previous idea of mental disease or defect, but calling homosexual behavior "natural" might avoid a complete return to that view.

That brings us to the present. Presidential candidate John Kerry could state with an air of certainty that people who engage in homosexual behavior are simply being who they were born to be--just ask any of them.

The problems connected with the pursuit of equal treatment through lawsuits have apparently been recognized by some advocates of equal treatment of homosexual and heterosexual behavior.

Now, let's see if they can also recognize the problem with changing arguments to fit the moment--from mental disease or defect to "lifestyle choice" to "natural sexual orientation." Depending on who is asked, and when they are asked, the answers aren't the same. Persuading a majority of people to forget what you previously said may not be as easy as persuading Senator Kerry to toss those old arguments down the memory hole.

Besides, it is probably not correct to state that all people who engage in homosexual behavior do so as a result of one reason. Arguing that it is all the result of a natural, perhaps even congenital, condition is like arguing that all crows are black. When someone finds a crow that isn't black, the argument is disproved. Anne Heche's behavior, for example, appears to be a good rebuttal to the argument that homosexual behavior isn't a personal choice.

We may never know with certainty the reason or reasons for homosexual behavior, and claiming to know doesn't change the facts.

Nevertheless, many issues are settled for the time being in our legislative process without knowing with certainty the answers to all the questions surrounding them.

How to treat the differences between homosexuality and heterosexuality seems to be one of those issues which has to be decided without knowing all the answers.

It is far better to decide such issues in the legislatures, not the courts.


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