Questions for Marriage Equality FoesPosted: March 14, 2014
A new poll last week showed a striking continuation of the dramatic shift in national public opinion toward broad acceptance of same-sex marriage. The trend is hard to miss:
This latest Post/ABC poll also finds that 61 percent favor allowing same-sex couples to adopt children, and 81 percent say businesses should not be allowed to refuse service to gays and lesbians. And there’s an accelerating body of judicial opinion to go with public opinion: In the wake of last summer’s Supreme Court ruling on DOMA we’ve seen federal judges striking down gay marriage bans in Ohio, Kentucky, Virginia, Oklahoma, Utah and Texas, along with state court rulings in New Jersey and Mexico.
Here in Tennessee, of course, a state constitutional ban on same-sex marriage enacted in 2006 remains in effect, although a federal lawsuit of the sort that has worked in these other states is in process.
All of which raises the question: What is going through the minds of stalwart opponents of marriage equality as they digest these developments? The Family Action Council of Tennessee’s David Fowler is among those trying to stop the tide from coming in. Some questions for Mr. Fowler:
 Mr. Fowler, you are fond of reminding us that a very large majority of Tennessean voters “approved our constitutional definition of marriage” and that most still say that “marriage is between a man and a woman.” Both of these things are true, but while geographic splits on same-sex marriage approval do show the South lagging other regions, it’s no longer a minority view even here, and it isn’t hard to fathom which way it’s trending. Do you look at the polling data, Mr. Fowler, and honestly convince yourself that this shift happening everywhere is not actually occurring here in Tennessee?
 You have written that if federal court decisions like the one in Ohio ultimately extend to Tennessee, “a conflict will immediately arise between what the federal government, through the courts, will require Tennessee to recognize as a marriage and what Tennesseans voted to recognize as a marriage.” Is your grasp of constitutional law and the Fourteenth Amendment so tenuous that you will regard federal court decisions striking down bans on same-sex marriage as inciting conflict between federal law and Tennessee voters? Do you believe, accordingly, that the 1967 ruling in Loving v. Virginia invalidating state laws prohibiting interracial marriage was wrongly decided?
 You wrote last summer that “if same-sex marriage advocates want equality, then the burden is on them to prove that a same-sex union is essentially the same as a heterosexual union in all regards. Otherwise, everyone knows that there is nothing ‘unequal’ or ‘unfair’ about treating two different things two different ways.” Do you really believe that threats to equal protection under the law are taken seriously only if those in a social category denied equal protection can prove that they are just like those whose rights are protected “in all regards”? So black people have to be able to prove they are like white people “in all regards”? Muslims have to be like Christians “in all regards”? Women have to be like men “in all regards”?
The fact is, Mr. Fowler, that you and your organization cling to a viewpoint support for which is rapidly deteriorating everywhere. Do you imagine that Tennessee will somehow defy the trend and become a heterosexual oasis of bigotry? You are free to believe these things, of course, but why not just admit publicly what you no doubt understand privately: that opposition to marriage equality almost certainly will not outlast judicial momentum toward a Supreme Court ruling that throws Tennessee’s constitutional ban under the bus of history.
So what’s your end game, Mr. Fowler? Will you help usher Tennessee into the 21st century by hopping on the bus now in a gesture of humility and humanity? Or do you choose to remain defiantly in its path, somehow imagining that everyone else is going to suddenly wake up from a Fourteenth Amendment nightmare and reclaim bigotry and discrimination as righteous paths to Tennessee’s glorious future?
A version of this post appears on the Nashville Scene‘s Pith in the Wind blog.