Hate and marriage.

The law, lawyers, and the court.
July 12 2006 4:50 PM

Hate and Marriage

Same-sex marriage setbacks may not be all bad news for gay rights.

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It should go without saying that the state should not advance anti-gay prejudice through the force of law. And as far as I'm concerned, the state has no business propping up distinctive sex roles in any context—that's a job for Wonderbras and Viagra. But a hunger for distinctive sex roles is just not the same thing as anti-gay bigotry.

So, the good news for gay-rights activists is that this string of same-sex marriage defeats doesn't suggest that civil rights for gay men and lesbians in other contexts are doomed. Opposition to same-sex marriage can be perfectly consistent with strong support for gay rights elsewhere. The bad news is that the fight for gay marriage may be much more daunting than they had imagined. Proponents may need to fight not only anti-gay bias but a deeply ingrained desire for stable sex roles, too. Some gay-rights activists have begun to ask whether the fight for marriage is worth the resources they've been devoting to it. It's a good question: If same-sex marriage provokes a distinctive form of popular resistance that isn't anti-gay bias, maybe it would be better to avoid a war on two fronts and shift focus to civil unions and domestic partnerships.

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And if, despite all this, marriage remains at the top of the gay-rights agenda, proponents should try to respond to the inchoate fears and legitimate concerns of a large and potentially movable nonbigoted opposition, rather than attacking them as hateful bigots.

Richard Thompson Ford teaches at Stanford Law School. His latest books are Rights Gone Wrong: How Law Corrupts the Struggle for Equality and Universal Rights Down to Earth.

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