Hey you! Go out and defend some marriage!
Mawwidge. Mawwidge is what bwings us togethew today.
-The Princess Bride
Then David and Jonathan made a covenant, because he loved him as his own soul.
-1 Samuel 18:3
Nobody is more fervently committed to defending marriage than I am. That’s why I have always supported gay marriage: I believe as many people as possible should marry, as this will increase our overall chances of somebody figuring out how to make it work.
Nonetheless, the phrase “defense of marriage” has been appropriated by the Christian right as code for denying same-sex couples their constitutional rights. This agenda became part of the law fifteen years ago, when the “Defense of Marriage Act” was passed by Congress.
Recently, the Obama administration decided not to defend the law, which is facing numerous challenges from gay rights advocates, on the grounds that it is unconstitutional. House Republicans responded by hiring the firm King & Spalding to come to its defense. Now, according to NPR, the firm has withdrawn “under pressure from gay rights advocates,” and quotes conservative lawyer Ed Whalen to the effect that “the heat was too intense.” (Whalen added, “At night when you turn off the lights / There’s no place that you can hide / Oh no, the rhythm is gonna getcha.”)
My friend tomemos posted this story to Facebook, questioning whether applying such pressure to King & Spalding was really ethical. He raised a critical question: “If despicable people are entitled to defense, isn’t the same true for despicable laws?” Sure, we might feel greater sympathy for a person, as opposed to a piece of paper, but that shouldn’t affect the principle at stake here.
My initial reaction was that lobbying the firm was justified because it’s a business, and American citizens have many perfectly legal avenues through which they can try to influence how businesses operate, including boycotts, public protests, media campaigns, and so on. This is still true even if the business provides an essential service — yes, America needs lawyers and telephones, but that doesn’t mean we couldn’t stage a boycott of Verizon. (Come to think of it, we probably should.)
However, on further reflection, it’s the difference between laws and people that matters most here. Many people said something about this to tomemos, but it’s important to identify just what the key differences are. When a man or woman is accused of a crime, several problems always arise. First of all, it is hard to obtain precise information about past events — the accused may in fact be innocent. Even if the defense attorney is convinced that her client is guilty, in reality, the defense attorney is in no position to decide. Intimidated, mentally ill, or uninformed clients may believe that they are guilty when they are not. In other words, no matter how open-and-shut the case appears, there is still good reason to hold a fair trial.
Furthermore, since the crime occurred in the past, but criminals are punished in the present, there is an inescapable divide between the crime and the punishment. Free individuals are perpetually capable of choosing new and better courses of action. To the extent that we prolong their punishment, we are simply making a citizen into a prisoner, without being able to reverse the harm that was done. This absurd, existential reality is the basis for the Western religious concepts of penance, atonement, mercy, and salvation/rebirth — we are never exactly the person we were. It is also the basis, in the courtroom, for such critical legal procedures as plea bargains, probation, parole, and suspended or reduced sentences. In short, while punishing criminals is necessary, it is inherently problematic, and this too argues for a strictly fair trial.
Laws, on the other hand, exist in a perpetual present. There is no need to reconstruct the scene of a crime, and little about the law is, logically speaking, undecidable. While it may be impossible to guess how a particular judge might decide a particular case, any individual with an Internet connection can research what a law is supposed to do, what precedents it has set, and how it interacts with other laws and the Constitution. No eyewitness is going to break down under cross-examination. We are no longer in the world of Kurosawa’s Rashomon, which is why it is perfectly reasonable for Obama’s lawyers to decide not to defend a bad law in court.
Similarly, striking down a law as unconstitutional does not compromise the liberty of a free and conscious being. A law cannot choose to become something better than it was; rather, it is up to us to enact better and more just laws. This is, of course, a political process, subject to all the vicissitudes of lobbying and influence-peddling that function — and, up to a point, rightfully so — in our democracy.
What concerns me most about stories like this one, broadcast by a news organization desperate to prove that it is more center than left, is that they seem designed to portray gay rights advocates as a dangerous, unscrupulous group of special interests — the flaming Hollywood millionaire or power lesbian, living in sin and donating to Democrats. Meanwhile, the powerful fundamentalist groups who pushed for the Act and continue to fund the “defense of marriage” are never mentioned, groups like the God-obsessed Evangelicals Sanctimoniously Talking About Persecuting Others (GESTAPO). Having read the article several times, I still don’t know what kind of pressure Spalding & King actually faced. Broken kneecaps? Did they send over the turns-out-to-be-gay character from The Sopranos?
There is no doubt in my mind that gay rights advocates are an influential political force now, in Washington and around the country. The reason is neither obscure, nor is it sinister. They have, and have always had, justice on their side, and many people of all orientations who would like to see the promise made to them, at the inception of our nation, honored at long last.
Thus you nullify the word of God by your tradition that you have handed down. And you do many things like that. -Mark 7:13