Listening to the radio broadcast of Newshour with Jim Lehrer yesterday, I heard Gary Kmiec, a Pepperdine Law School professor, use a very telling (and duplicitous) rhetorical trick in his discussion of gay marriage. He was on with Gwen Ifill, providing the opposing view to Laurence Tribe's pro-gay-marriage position. Here's the relevant quote, transcribed from the RealAudio copy of the show (any errors are my own):
Professor Tribe sees [gay marriage] as an expansion of rights. Others of us would see it as a disregard of created reality, of in fact, the fact that states have preferred marriage, have given it a position of prominence, because it does some very important things: it supplies new members to our community and it supplies a household that is the most important educator in our community. In this sense it is not a denial of right, it is an affirmation of what is important.
Notice how, in the second sentence, the antecedent of "it" changes: at first, "it" is gay marriage ("a disregard of created reality"); as the argument goes on, "it" becomes "marriage", implicitly invoked as heterosexual marriage. By the end of the sentence, the antecedent has changed again: "it" (the outlawing of gay marriage) is "is not a denial of right" because it affirms what is important to the society. Now, it seems to be a very peculiar thing that can only be affirmed by removing it from a minority.
While I was puzzling this out, I went over to the Corner to see what the "other side" is saying. Their site is notable today for its lack of impassioned defense of the Federal Marriage Amendment; they seem to be doing it ambicon-style. But this post by Jonah Goldberg resonates tellingly with what Kmiec had to say:
But I do wish that oppressed and "oppressed" minorities could understand that under our system of law and in our culture majorities can feel oppressed too. In fact, in our society it's much easier to take a pound of flesh out of the majority than it is from the minority. Think affirmative action or, more relevant to this discussion, the denial of their religious symbols in the public square and doing what they perceive as violence to institutions like marriage. I agree that sometimes these grievances are "merely" symbolic. But I fail to see how symbolically slighting the majority is any more or less legitimate than similarly slighting the minority.
So it is about rights, but to the conservatives, their right not to be offended, or to have their traditions "violated" (a negative right), trumps gays' positive right to the privileges and benefits of marriage. Compare and contrast gun control, where the right wing, as a minority on the issue, cherishes constitutionalism and strict constructionism. Funny how their strident defense of the rights of minorities flies out the window when they're in the majority that needs to be "protected".