aTypical Joe: a gay New Yorker living in the rural South

Sunday, September 11, 2005

Incrementalism

Cass Sunstein says that for the Supreme Court to take a big stand on discrimination on the basis of sexual orientation would polarize the country.

I think we’re already polarized.

I want a case to come before the Supreme Court.

But the win I want is a Sunsteinian incremental one, and precisely the one the Federal Marriage Amendment is designed to circumvent: that each state must recognize a legal marriage performed in any other state.

I’d be happy with that. It doesn’t force any state to perform gay marriages, only to recognize and enforce this legal contract like any other. (Massachusetts doesn’t have a residency requirement for marriage, but I don’t much care if they pass one.)

I’d be happy too, to have the Federal Marriage Amendment debated in every state legislature throughout the land. The Massachusetts experience suggests that 38 state legislatures won’t ratify it. Amendment proponents know that, so the amendment sits dead in the water. It’s a rhetorical bat to fire up the base; nothing more.

But, of course, if a case does come before the Supreme Court, my side’s likely to lose. For that contingency I’m working on another post…